international conference “exploration, education … 2011 law.pdfconference proceedings –...

ldquoDUNĂREA DE JOSrdquo UNIVERSITY OF GALAŢIFACULTY OF JURIDICAL SOCIAL AND POLITICAL SCIENCES

Member of the Network of Institutes and Schools and PublicAdministration in the Central and East Europe

INTERNATIONAL CONFERENCE

ldquoEXPLORATION EDUCATION AND PROGRESS IN THE THIRDMILLENNIUMrdquo

Galaţi 29th ndash 30th of April 2011

- Proceedings -

VolI No 3

Galati University Press

The Scientific CommitteeHonorary Chairmen

PhD Professor Viorel MIcircNZURector of the ldquoDunărea de Josrdquo University of Galaţi

PhD Professor Stefano PIVATORector of the University of Urbino ldquoCarlo Bordquo Italy

PhD Professor Andrei POPARector of the University ldquoBogdan Petriceicu Hasdeurdquo Cahul Moldavia

PhD Professor Jerzy Marian KopaniaRector of the Stanislaw Staszic College of Public administration in Białystok Poland

MembersPhD George ANTONIU (Romania)PhD Massimo CIAMBOTTI (Italy)PhD Luminiţa Daniela CONSTANTIN (Romania)PhD Piotr SITNIEWSKI (Poland)PhD Nicolaie VOLONCIU (Romania)PhD Giorgio CALCAGNINI (Italy)PhD Alexandru BOROI (Romania)PhD Andreas P CORNETT (Denmark)PhD Dana TOFAN (Romania)PhD Robert SZCZEPANKOWSKI (Poland)PhD Luca IAMANDI (Romania)PhD Agnieszka BITKOWSKA (Poland)PhD Alexandru ŢICLEA (Romania)PhD Pierre CHABAL (France)PhD Nicolae DURĂ (Romania)PhD Irena SZAROWSKA (Czech Republic)PhD Petre BUNECI (Romania)PhD Giorgios CHRISTONAKIS (Greece)PhD Silvia Lucia CRISTEA (Romania)PhD Fabio Musso (Italy)PhD Dan DROSU-ŞAGUNA (Romania)PhD Valentina CORNEA (Republic of Moldavia)PhD Eleftherios THALASSINOS (Greece)PhD Sergiu CORNEA (Republic of Moldavia)PhD Emilian STANCU (Romania)PhD Claude BROUDO (France)PhD Tonino PENCARELLI (Italy)PhD Dan LUPAŞCU (Romania)PhD Daniel BUDA (Romania)PhD Nicoleta DIACONU (Romania)PhD Răducan OPREA (Romania)PhD Romeo Victor IONESCU (Romania)PhD Violeta PUŞCAŞU (Romania)PhD Florin TUDOR (Romania)

Organizing CommitteePhD Răducan OPREA (Romania)PhD Romeo Victor IONESCU (Romania)PhD Ioan APOSTU (Romania)PhD Violeta PUŞCAŞU (Romania)PhD Florin TUDOR (Romania)PhD Neculina CHEBAC (Romania)PhD Liviu Bogdan CIUCĂ (Romania)

Volume coordinatorPhD Florin Tudor

Copyright copy 2009 Galati University PressToate drepturile rezervate Nicio parte a acestei publicaţii nu poate fi reprodusă icircn nicio formăfără acordul scris al EdituriiGalati University Press ndash Cod CNCSIS 281Editura Universităţii ldquoDunărea de Josrdquo Str Domnească nr 47 800008 ndash Galaţi ROMAcircNIATel 00 40 336 13 01 39 Fax 00 40 236 46 13 53 gupugalroISSN 2066 - 7019

SUMMARY

LAW SECTION

Răducan OPREA - THE ACCEPTANCE OF THE BILL OF EXCHANGE 9Petre BUNECI - ADMISSION OF GUILT IN THE CRIMINAL TRIAL 15Nicolae DURĂ - THE BYZANTINE NOMOCANONS FUNDAMENTALSOURCES OF OLD ROMANIAN LAW 25Ioan APOSTU APPROCHE CRITIQUE SUR CERTAINES INSTITUTIONSDU NOUVEAU CODE CIVIL ROUMAIN LA FIDUCIE 49Silvia CRISTEA - UTILITEacute DE LA FIDUCIE EN TANT QUE FORME DECAUTION BANCAIRE DANS LE CONTEXTE DE LA CRISEECONOMIQUE 55Gheorghe IVAN - SPECIAL CRITERIA FOR INDIVIDUALIZATION OFTHE FINE AS PUNISHMENT 67Mircea TUTUNARU Beatrice - Daiana DASCALU - THE EDIFICATIONOF THE STATE OF LAW 73Romulus MOREGA - FORENSIC IDENTIFICATION - SIDES OFSETTING THE PROCESS OF FACTUAL CIRCUMSTANCES 79Simona Petrina GAVRILĂ - UNPREDICTABLE IN THE NEW ROMANIANCIVIL CODE 87Claudia ANDRIŢOI - THE LOGICAL DYNAMISM OF A JUDICIAL TEXTIN THE DOMAIN OF JUDICIAL INTERPRETATION 97Oana GĂLĂŢEANU - THE COMMUNICATION RIGHT AND THE LEGALMihaela AGHENIŢEI Silviu JIRLĂIANU - RELATIONSHIP BETWEENCENTRAL PUBLIC AUTHORITIES AND PUBLIC COMMUNICATION 107UNDERCOVER INVESTIGATORS THE SCOPE OF CRIMINALLIABILITY 115Nadia Elena DODESCU - EUROPEAN POLICIES ON HUMANTRAFFICKING 121Angelica CHIRILĂ George SCHIN - WITHDRAWAL OF AGGRIEVEDPARTYrsquoS PREVIOUS COMPLAINT 129Patrick LAZAR - INTERNATIONAL AND INTERNAL SYSTEMS FORPROTECTION OF THE RIGHT TO LIFE 135Angelica ROŞU Simona Petrina GAVRILĂ - MEDIATION AND OTHERSIMILAR PROCESSES 141Sergiu Adrian VASILE Amalia NIŢU - THE EU COMMON CONCEPTFOR INTEGRATED EXTERNAL BORDER MANAGEMENT 151Sergiu Adrian VASILE Amalia NIŢU - INTERMESTIC SECURITY ANDTHE DEVELOPMENT OF A NEW EU STRATEGY FOR INTERNALSECURITY 165Alexandru BLEOANCĂ - THE ELECTRONIC CONTRACT UNDER THEROMANIAN LAW 179Adriana TUDORACHE - CRIMINOLOGY ASPECTS OF COMPUTERCRIME SUBCULTURES 187Getty Gabriela POPESCU - ATYPICAL LEGAL SYSTEMS 195

Gina IGNAT - COORDINATES OF THE FAMILY LIFE ACCORDING TOARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTSAND ARTICLE 3 OF THE HAGUE CONVENTION 203Beatrice-Daiana DASCĂLU - THE CONCEPT OF LAW AND RULE OFLAW 217Nora Andreea DAGHIE - LE CONCEPT DE FAIT ILLICITE ndash CONDITIONPOUR LA RESPONSABILITE CIVILE CONTRACTUELLE 221Liliana MANUC Roxana TOPOR - ABSOLUTE AND RELATIVEJURISDICTION OBJECTION ON LACK OF JURISDICTION CHANGESBROUGHT BY THE ldquoLITTLE JUSTICE REFORMrdquo ON THE CIVIL CODEREFERENCES TO THE NEW CIVIL CODE 229Dragoş Mihail DAGHIE - THEORETICAL CONSIDERATIONS ON THESUPERVISORY BOARD OF JOINT STOCK COMPANIES 237Monica BUZEA - EVOLUTION DE LA CRIMINALITE CONCERNANTLES INFRACTIONS CONTRE LE PATRIMOINE 245Mădălina - Elena MIHĂILESCU - QUELQUES CONSIDERATIONS SURLrsquoIRRESPONSABILITE ET LrsquoIVRESSE INVOLONTAIRE CAUSES QUIENLEVENT LE CARACTERE DE CONTRAVENTION DE LrsquoACTE 249Monica BUZEA - CONSIDERATIONS SUR LrsquoAPPLICATION DE LrsquoART320 INDICE 1 DU CODE DE PROCEDURE PENALE DANS LEJUGEMENT PENAL EN CAS DE RECONNAISSANCE DE LA FAUTE 257George SCHIN Angelica CHIRILĂ - PRINCIPLES OF NOTARYACTIVITY 261Carmen MOLDOVAN - NATIONAL MARGIN OF APPRECIATION ORMULTIPLE STANDARDS IN THE ECHR CASE-LAW CONCERNING THEFREEDOM OF EXPRESSION 267Mirela Carmen DOBRILĂ - THE OFFENCE OF DECEIT INCONVENTIONS AND THE SALE OF GOODS OWNED BY OTHERPERSONS WITHOUT THE ABILITY TO PASS TITLE 281Bogdan BUNECI - COMPUTER SEARCH IN THE NEW CODE OFCRIMINAL PROCEDURE 295Ramona Mihaela OPREA - COMPANY MANAGEMENT BY THEDIRECTORS 301Prence MIRGEN - THE PROTECTION OF HUMAN DIGNITY IN ALBANIAAND ROMANIA 309Marin POPESCU - CONSTITUTIONAL FUNCTIONS OF THE JURIDICALAUTHORITY 327

LAW

SECTION

Conference Proceedings ndash Galaţi 29th ndash 30th of April 2011Year III No 3 Vol I - 2011

9

THE ACCEPTANCE OF THE BILL OF EXCHANGE

Răducan OPREA

AbstractThe acceptance of the bill represents in fact the acceptance of this title by the

drawee By this act the drawee becomes the bill debtor and must pay the bill at maturityThe acceptance must be unconditional and is usually obtained by the drawer who givesthe accepted bill to the beneficiary The bill must be submited for acceptance at thedraweersquos domicile The drawer may prohibit the submission of the bill for acceptance Thesubmission for acceptance may be done on a working day When the submission of the billor the protest within prescribed terms are prevented by an obstacle these terms may beextended

Keywords bill acceptancesubmissionwithdrawal draweedrawer billownerprovider

The drawee does not take part in preparing the bill he is acompletely foreign person

He is neither the creditor nor the borrowerIt is true that the drawer gives order to the drawee to pay an

amount of money to the beneficiary of the billOnly when the drawer declares that he accepts this order does he

become the principal debtor because by accepting the drawee undertakesto pay the bill at maturity (art 31 of Law no 581934 with subsequentmodifications and completions) From this moment on he is the acceptantThe drawee who has accepted remains liable even if he did not knowabout the drawerrsquos bankruptcy

This obligation to pay the bill applies not only to the beneficiarybut also to the drawer

In the event of default the holder of the bill even if he is thedrawer has the bill direct action against the acceptant

The acceptance must be unconditional nevertheless the draweemay restrict it to an amount Any other change to the acceptance of thebill introduced in the content shall be considered as a refusal ofacceptance The acceptant may still be kept within the limits of thisacceptance (art 29 of Law no 581934)

The acceptance only takes effect if the content of the bill is formallyperfect If the bill is formally invalid this invalidity reaches theacceptance

PhD Professor Faculty of Judicial Social and Political Sciences ldquoDunărea de JosrdquoUniversity of Galati Romania Email raducanopreaugalro


10

Presentation for acceptance

In practice the drawer obtains the acceptance if he gives the bill tothe beneficiary after he has accepted it

If the drawer handed the unnaccepted bill to the beneficiary thelatter has the obligation to obtain its acceptance In order to obtain theacceptance the beneficiary or a simple owner may submit the bill foracceptance

The bill must be submitted for acceptance to the draweersquos residence(art 24 of Law no 581934) even if the bill would provide another place ofpayment than the draweersquos residence (the place where the drawee lives orhas his registered office)

If the bill has more drawers the submission of the bill foracceptance must be noticed to all those mentioned in the bill If one ofthem refuses the owner is entitled to tame the protest bill of non-acceptance The submission for acceptance is in principle optional thebeneficiary may submit the bill for acceptance There are cases when thebill is required for acceptance and there are cases when the owner is notallowed to show the bill for acceptance

The bill drawer may stipulate in the bill that it must be submittedfor acceptance (art 25 of Bill of Exchange Law) It may set a time limitwithin which the bill is submitted for acceptance in which case the ownermust submit the bill for acceptance otherwise he will lose the right ofrecourse for non-acceptance as well as for non-payment

The bill is submitted for acceptance until maturity The bill at sightis not submitted for acceptance but only for payment If the drawer hasset a deadline the submission for acceptance must be made before thedeadline

If the drawer has not entered the obligativity of the billrsquossubmission for acceptance and if he did not prohibit the submission of thebill for acceptance any guarantor may stipulate that it must be submittedfor acceptance and he may set a deadline In this case the lack ofsubmission can be invoked only by the guarantor that inserted the clause

The drawer may prohibit the submission of the bill of acceptanceor stipulate that the submission will not take place before a certain date Ifthe owner of the bill will not respect this prohibition and if he submits thebill for acceptance before the set date he is liable for the caused damage

The drawer cannot prevent the submission of the bill for acceptanceif the bill is payable to a third party or if it is payable in another town thanthe draweersquos (art 25 of Bill of Exchange Law) The bill of exchangepayable at a certain time after sight is required to be submitted foracceptance (art 26) within one year from date of issuance The drawermay reduce or extend this period The guarantors can only reduce theterm


11

The presentation for acceptance can only be done on a working day(art 95)

The second presentation

The drawee may require a second submission to be made on theday following the first submission in order to have time to get informedThe billrsquos holder is not obliged to leave the bill for acceptance to thedrawee

In this case the protest will be made showing the submission foracceptance and the drawee will demand a new submission on the secondday If the drawee does not accept the protest of non-acceptance will beintroduced Those interested cannot rely on this application if it is notmentioned in the protest (art 27)

Extension of submission

When the submission of the bill or the protest within the timeprescribed are prevented by unavoidable obstacles (legal provisionsunforeseeable circumstances or force majeure) these terms are extended

The owner is obliged to notify without delay to its guarantor byletter the fortuitous event or the force majeure and write it on the bill or onthe additional document dated and signed by him After the end of theunforeseeable circumstances or of the force majeure the holder mustwithout delay submit the bill for acceptance or for payment if it isnecessary to protest it If the force majeure or fortuitous event lasts longerthan 30 days from the maturity term the rights of recourse can beexercised without the need for submission and protest

For the bill on demand or at a certain time to view the 30 dayperiod begins on the date the holder notified the guarantor of itsfortuitous event or force majeure even if the notification is made before thesubmission deadline a 30-day deadline are added to the view term

There are not cases of force majeure or fortuitous events the personalacts of the owner or the person who has the right to submit the bill or toprotest (art 59)

Form of acceptance

The acceptance of the bill is written and expressed in the word

bdquoacceptedrdquo or any other equivalent word The acceptance must be signedby the drawee

The acceptance can be written on any part of the bill The draweessignature affixed to the title is enough to be considered an acceptance (art28)


12

The acceptance of a bill cannot be done through a separatedocument

Date of acceptance

The acceptance must be dated only when a bill is payable ondemand when either the drawer or the guarantor have set a deadline inwhich case the bill must be submitted for acceptance (art 28) In othercases the date is optional The date is necessary because it primarily servesto determine the maturity and secondly to see if the owner has fulfilled theobligation to submit the bill for acceptance The drawees refusal to datethe acceptance will be determined through a protest within a year whenno other term has been fixed

Withdrawal of acceptance

The acceptance may be withdrawn by the drawee as long as the billis in his hands The withdrawal of the acceptance is made by deleting theacceptance and signature of the bill In this case the acceptance is deemeddenied If the acceptant surrenders the title the acceptance becomesirrevocable

The deletion is valid if it is made before the return of the title Theparty who has an interest to establish if the acceptance of the title wasremoved after the refund must make proof of this action

If the acceptant notified in writing the billrsquos holder or any othersignatory who has accepted the bill the acceptance deletion has no effectagainst those who have been advised

Refusal to accept

The protest of non-acceptance If the bill was submitted foracceptance and the drawee refused the acceptance the refusal is found bythe protest of non-acceptance (art 49 of Bill of Exchange Law) It must bedone within the deadline for submission of the bill for acceptance

If the drawee demanded a second submission to be made followingthe first day of submission and the first submission took place on the lastday of the period the protest can be done on the next day The protest ofnon-acceptance exempts the submission of the bill and the protest of non-payment

The failure to produce the protest of non-acceptance within theperiod stipulated by the drawer leads to the holderrsquos loss of any right ofrecourse unless it mentions that the drawer intended to be dischargedonly by the guarantee of acceptance

The consequences of the refusal of acceptance are very importantbecause the holder can exercise the right of recourse against the endorsers


13

the drawer and the others who are obliged before the maturity datewhether the acceptance was denied in whole or in part

References

Stanciu D Carpenaru (2009) Commercial Law Treaty BucureştiUniversul juridic

S Lupas (1946) Bill of exchange Law Cluj Cartea romacircneascăLaw no 581934 The Bill and the Promissory Note modifiedMethodological Rules of RNB regarding the bill and the promissory

note


14


15

ADMISSION OF GUILT IN THE CRIMINAL TRIAL

Petre BUNECI

AbstractThe need for this institution was determined in the second half of the nineteenth

century by the high number of criminal acts trialed in the United States courts whichled to the impossibility of resolving them within a reasonable time and in a propermanner given that it was mandatory to respect the excessive formalism that wasborrowed from Europe

That is how the institution of guilt admittance was created as a proceduralsystem a system which enables a better management of justice by negotiation between theprosecution and defense in the sense that the latter may plead guilty in exchange forconcessions from the prosecutor

We may affirm that the admission of guilt is a mutually binding contract ofbenefit to both parties ultimately representing a compromise after which the defendantsucceeds to minimize the penalty while the prosecution can obtain an optimal level ofimposed penalty at the lowest cost

Keywords admission guilt penalty individualization negotiation mutuallybinding contract

The admission of guilt historically appeared in mid nineteenthcentury in USA due to the high number of criminal acts trialed in courtsgiven that it was mandatory to respect the excessive formalism regulatingtheir solving formalism borrowed from across the ocean This is when theurge of creating a new procedural system appeared system which enablesa better management of justice by creating a negotiation practice betweenprosecution and defense in the sense that the latter accepts pleading guiltyin exchange for some concessions from the prosecution

At first the admission considered negotiating guilt and negotiatingfacts and punishment Thus in the first situation the prosecutor acceptsnot to retain certain accusations against the accused and he accepts toplead guilty for the rest of the accusations Negotiating facts is anagreement between the prosecutor and the defender of the facts that wereto be legally indicted by which the prosecutor accepts not to be retainedall facts that could be attributed to the accused in exchange for theaccused to accept to plead guilty

The negotiation is a normally engaged negotiation afterpronouncing the conviction but after the determination and

PhD Professor Faculty of Law and Administrative Sciences Ecological University of

Bucharest Romania Email cabinetbunecigmailcom


16

pronouncement of the sentence by which the prosecutor accepts to ask fora lighter sentence in the cases where the accused has helped justice or heaccepts to be submitted to an accelerated procedure (fast-track program)

Mention must be made that in the US proceedings the rupturebetween verdict and sentence is formalized and often recognized (as in thecase of replacing the death penalty) the verdict and punishment are twodistinct processes even if the penalty process takes place in front of thesame jury a little while after the first process of guilt The penaltynegotiation took place especially in the most important and mediatizedcases when the prosecutor did not want to restrain the accusations due tothe reaction of the mass media1

According to a dictionary definition the admission of guilt (guiltypleas and bargaining) is ldquoa negotiated agreement between a prosecutorand an accused in terms of which the accused pleads guilty for a minorcrime or for more counts in exchange of a concession from the prosecutorusually of a less severe punishment or of renouncing to other countsrdquo2 Inanother opinion the admission of guilt was defined as ldquoa procedurewhereby the accused persons plead guilty for less serious crimes inexchange for a default charge or for a sentence reductionrdquo3

From the foregoing it is clear that a procedure more or less formalhas been followed consisting in a negotiation conducted by a writtenagreement presented for approval of the judge in open court theprosecutor and defense attorney agreeing on a lower penalty from themaximum provided by law in exchange for a surrender of the accused to atrial by jury and rights relating to defense

In the US the practical ways in which such procedures are varieddepending on the jurisdiction

Thus only in some cases the prosecute may be negotiated when thestate pursues a policy of fix criminal punishment (mandatory sentencing)the negotiation can be explicit or implicit when the accused is entitled toexpect reasonably in some cases some benefits even if there had been nonegotiation4

In other situations the negotiation is aiming at both the facts andthe penalty to be applied as shown above

This procedure bears the seal of the contract model in whichindividual rights are considered debt to the holder freely available in

1 Stephen A Saltzburg Daniel J Capra American Criminal Procedure Cases andcommentary fifth edition West Publishing Co 1996 pp 816-8502 Bryan A Garner (ed) Black`s Law Dictionary 7 ed St Paul (Minesota) West Group19993 Anne Deysine La justice aux Etats-Units Presse Universitaires de France 1998 p 1094 Mircea Duţu Guilt admission and punishment negotiation Bucharest Economical

Publishing 2005 p 12


17

order to improve his situation For the application of this procedure inthe sense of guilt recognition by the defendant the followingarguments were formulated

it avoids the delay and increases the likelihood of applyingsanctions against other criminals

it helps to ensure the prompt and secure correctionalmeasures

the defendant admits he is guilty and manifests the desire toagree to answer for his conduct

it avoids the public process when the consequences go beyondany legitimate requirement in this regard

it makes it possible to ensure concessions for the defendantwhen cooperating or has offered to cooperate with theprosecution of other offenders

it prevents excessive damage to the accused by the form ofcondemnation

The arguments invoked against this procedure are

there is a real danger for innocent people to be convicted

prosecutors negotiate primarily to accelerate the settlement ofthe case

the negotiation distributes among criminals the inequitablyand inadequate opportunity to obtain a transaction to ensure amore favorable decision

it may reduce the deterrent effect of law by applying lessconviction

it makes correctional rehabilitation more difficult by limitingthe conviction

those who opt for the ordinary procedure usually receivehigher penalties

The evolution of admitting guilt in the United States of Americaespecially after the events of September 11 20015 led to the establishment(circulation of September 11 2003 Minister of Justice) of the six exceptionsto the prohibition to negotiate penalties thus emphasizing the control ofthe executive in the criminal phenomenon and its repression

5 A number of amendments have been adopted to comply with the requirements of the

draconian anti-terrorism law USA Patriot Act 2001 approved by the Bush IIadministration after and under the influence o the events of 11 September 2001 Zacaris

Moussaoui the only suspect indicted in US attacks on 11 September 2001 pleadedguilty on April 22 2005 before the Court in Alexandria (Virginia) on all six counts

against him detained


18

The American procedure took root in Europe primarily in theUnited Kingdom This practice is beneficial to all parties to the accused tothe police and to the judge providing English law with a series ofmeasures to encourage the accused to plead guilty The admission of guilthas either the effect of a reduction of charges or of the reduction of thepenalty that in both cases makes the subject of the negotiations betweenthe parties The negotiation of the accusations is made between theprosecutor and the defense attorney allegedly the two discuss the contentand can reach an agreement in exchange for a promise of the declarationof guilt

Regarding the reduction of penalty the attorney shall inform aboutthe reduction of penalty that the judge would be ready to give if his clientpleads guilty or the judge himself takes the initiative to call in his officethe prosecutor and the defense attorney for a negotiation on the sentenceThe evolution of the English legal system finally went through theCriminal Justice Public Order Act 1994 in recognition of the principle ofsentence reductions in exchange for an admission of guilt (art 48)

In 1988 the Italian Criminal Procedure Code introduced twoprocedures that were based on the legal recognition of certain effects ofthe agreement between the prosecution and the accused6 In fact it hasformalized an procedure existing since 1981 which established a specialprocedure based on documents filed without conducting trainingdocuments in which the accused surrendered voluntarily to assume thepresumption of innocence under art 27 of the Constitution of Italy at thefact of challenging the charge in exchange for a reduction of the sentencethe judge ratifying the agreement of the parties (to imprisonment for aterm not exceeding two years) If the judge does not accept the agreementof the parties the application of the procedure continues without thedefendantrsquos request to be treated as a confession

Also in the Italian Criminal Procedure Code the abbreviated trialwas established applicable to all crimes regardless of their severity withno limit on the amount of penalty except for life imprisonment

In the French law Law no 204March 9 2004 (entered into force onOctober 1 2004) on the adaptation of justice to developments in crime hasintroduced a new criminal procedure namely that of appearance on thepreliminary recognition of guiltrdquo aimed at speeding up and simplifyingthe handling of judicial of correctional cases where offenders admit theircommitment In this way it continues the understanding of criminalprocedure existing in the French law since 1999 in which the prosecutor

6 M Chiavario La justice negociee une problematique a construire APC nr 151 1993 p 29D Siracusano A Galati G Tranchin E Zappala Diritto processuale penale volume

secondo nuova edizione Giuffre editore 2004 pp 239-261


19

suggested to the offender the confession in exchange for serving a lightersentence approved by a judge in open court It covers much the samecategory of offenses and allows the prosecutor to suggest the author whopleads guilty to implement measures of criminal agreementrdquo meaninglight punishments such as fines confiscation or working of generalinterest If this agreement is accepted by the author of the crime theprosecutor notifies the court president high court for validation7 In termsof persons this procedure applies only to adults children under 18 yearsbeing excluded

The procedure concerns primarily misdemeanors punishable by amaximum prison sentence of five years excluding crimes of voluntarykilling political crimes or those whose follow-up procedure is providedthrough a special law From a procedural perspective the procedure isbasically applicable only to persons convened for that purpose before theprosecutor or as it is referred to art 393 of the Criminal Procedure Codewhich gives the prosecutor the option to open information or to bringbefore the tribunal on the road prevented the immediate presentation

The proceedings of the French law are conducted in two phasesa) before the prosecutor the procedure involves three main phases

prior recognition of the facts by the accused in a statement inpresence of his lawyer

a penalty proposal in which the prosecutor has broaddiscretion proposing one or more main or additionalpunishments The general principle governing the prosecutorrsquosactions of choice regarding the nature and the amount of thepunishment is one of punishment customization dependingon the circumstances of the crime and the punishment of theauthor

acceptance (it may require a period of reflection) or refusal ofthe proposed penalty (in case of refusal the cause resumes bynormal procedure) According to art 495-8 of the Code ofCriminal Procedure the interested party may apply for arespite of 10 days before expressing their option noting thatthe prosecutor will necessarily endorse this possibility

If the person refuses the punishment proposed by the prosecutorthe special procedure will stop and the prosecution will be continuedusing the ordinary procedure

If the person concerned accepts the penalty the proceedings willcontinue before the judge who will be notified by the prosecutor throughan application for approval

7 Mircea Duţu Guilt admission and punishment negociation Bucharest Economical



20

b) in front of the judge the procedure involves two phases

hearing the person concerned (before either the president or theCourt of First Instance judge)

delivery order substantiated by approval must necessarilyinclude references to the consent of the person concerned and theproposed penalty assessment is necessary to judge that it isjustified both to the circumstances of the crime and to theauthorrsquos personality

If the application for approval is rejected the criminal procedurewill continue under the common law procedure

In a similar manner there are rules in the French procedural law toinvite the victim before the judge for approval in conjunction with thefacts the author (with counsel or not) having the right to civil claim toseek compensation and to appeal against the order of approval That isunless you can address later identified by separate application thecorrectional tribunal will decide on the civil side of the case

In Romania mitigating the inquisitorial nature of the criminalprocedure and answering specific dimensions of the accusatory system areongoing processes materialized in terms of the present Code of CriminalProcedure as amended by Law no 2022010 regarding some measures toaccelerate the settlement process the court expressly states in art 3201 theadmission of guilt This piece of legislation was introduced by Section 43of Law no XVIII 2022010 regarding some measures to accelerate thesettlement process

A precursor of this development was the pre-complaint procedureas an exception to the principle of formality of the criminal proceedingsunder which for the prosecution of certain offenses expressly andexhaustively defined is required prior complaint of the victim In suchcases criminal proceedings shall be initiated on complaint of the victimaddressing the criminal investigation body or the prosecutor

The first signs of new trends have come mainly through theintroduction of art 278 of the Criminal Procedure Code on the complaint

before the court against the resolutions or ordinances of the prosecutor notto proceed to trial (text introduced by Law no 28120038) Drawing onDecision no 486 of 02121997 of the Constitutional Court it affords to thevictim of a crime indictment power (the right to initiate criminal actionand civil claim) and referral (contrary to the wishes of the prosecutor)and a provision (by supporting prosecution by indictment when theprosecutor does not exercise the function of promoting the titular criminalprosecution)9

8 Published in Monitorul Oficial al Romacircniei Part I no 468 010720039 M Duţu op cit p 58


21

The above regulations are only the excessive attenuation of theinquisitorial system this way the introduction of the proceedings ofadmission of guilt in our country completes the process in progress whichmeets the needs of Romaniarsquos integration into the Euro-Atlantic system Itis a process which can be defined as a decision taken early in apreliminary hearing which favors the defendant because it provides areduction of sentence on conviction It is anticipated that a real processcan lead to the same results as one in which public debates took place

Essentially this procedure involves an agreement between theprosecutor on the one hand and the defendant attended by the lawyeron the other hand for the purposes of recognition by the accused of theincriminating crime It was expected that this agreement recorded in thereferral document to be subject to strict control by the judge who verifiesthe existence of a factual basis for conviction and free expression (tosound) by the defendant of the recognition position of the act that issubject to such an accusation procedures The introduction of thisinstitution is doubled as I noted above also by the regulation of a legalcause of penalty reducing for that defendant who freely consented togoing through this procedure

Thus art 320 of the Criminal Procedure Code makes it clear that bdquotostart the judicial inquiry the defendant may state personally or in writingthat he acknowledges committing the facts found in the documentinstituting the proceedings and calls for justice to be done on the basis ofevidence adduced in the prosecution phase Judgment can only be basedon evidence adduced during the criminal prosecution only when thedefendant says that he fully admits to the facts established in thedocument instituting the proceedings and does not require the use ofevidence except the documents which can be given at this court term

At the hearings the court asks the defendant if he demands that thetrial take place under the evidence in the prosecution phase that he meetsand appropriates then proceeds to hearing this and then giving the wordto the prosecutor and the other parties The court resolves the criminalside when from the evidence adduced it results that the facts areestablished and that there are sufficient data regarding his person to allowa sentence

In the event that for solving the civil action should be takingevidence in court it will necessarily have its severance

If the defendant admits guilt the court will reduce the sentenceprescribed by law for imprisonment by one third and the one prescribedby law for punishment by fine by one fourth The above provisions do notapply if the prosecution is for a crime punishable by life imprisonment


22

If the request is rejected the court proceedings will continue underthe common law procedure

In the new Criminal Procedure Code adopted by Law no 1352010published in the Official Gazette no 48615072010 governing Title IV(bdquoSpecial Proceduresrdquo) a plea bargain agreement in the art 478-488Criminal Procedure Code brings a number of new provisions to thecurrent rules on the recognition of both the institution and prosecutionduring the trial stage

Thus art 478 of the new Criminal Procedure Code provides thatduring the prosecution after the criminal action the defendant and theprosecutor may conclude an agreement as a result of the defendantadmitting guilt The effects of a plea bargain agreement are submitted tothe Counsel noting that it can be started both by the prosecutor and thedefendant The limits of the agreement on the recognition of guilt areestablished by prior written opinion of the superior prosecutor

If the criminal proceedings were moved to several defendants onecan conclude a plea bargain agreement separately with each of themwithout undermining the presumption of innocence of the defendants forwhich no agreement has been concluded The juvenile accused can notenter a plea bargain agreement

The plea bargain agreement may be concluded only for the offensesfor which the law provides fine penalties or imprisonment not exceedingseven years and it ends when from the evidence adduced it appears thatthere is sufficient data on the deed to put in motion criminal proceedingsrelating to guilt In a plea bargain agreement legal assistance is requiredThe plea bargain agreement is concluded in written form and in thissituation for the defendants who have concluded that agreement

After the proceedings before the prosecutor what follows is thesecond phase the court referral with plea bargain agreement governedby the new Code of Criminal Procedure art 483-488 Thus after theconclusion of the plea bargain agreement the prosecutor notifies the courtthat he would return power to hear the case on the merits and it sends aplea bargain agreement together with the criminal prosecution

The court may accept a plea bargain agreement only on some of thedefendants When the agreement is concluded only with regard to some ofthe facts or only some of the defendants whereas for other offenses ordefendants the prosecution is ordered the court referral is madeseparately The prosecutor submits to the court only the documentsrelating to criminal acts referring to facts and persons undergoing a pleabargain agreement

The court rules on a plea bargain agreement by sentence followingnon-contradictory proceedings in open court after hearing the prosecutorthe defendant and his lawyer and also the civil party if present


23

In terms of solutions of the court there may be

accepting a plea bargain agreement and sentencing the defendantto a term the limits of which were reduced under art 480 para(3) if the conditions laid down in art 480-482 on all the factsadduced against the defendant who made the agreement

rejecting a plea bargain agreement and sending the file to theprosecutor for further criminal prosecution unless the conditionslaid down in art 480-482

The foregoing provisions have sometimes significant social andhuman costs and facilitate a decision process quickly and efficiently in acriminal case

On the other hand we consider that this procedure presents somelegal drawbacks that in my opinion should be more clearly regulatednamely

is the victimrsquos participation in the negotiation and or consentnecessary

if the judge that verifies the expression of the defendantrsquosrecognition finds that it is flawed will she use the testimony onthe defendant

if the position of the parties changes during the trial can theagreement be dropped

may the defendant be granted a period of reflection tocommunicate the response If so the judge for Liberties can takeone of the preventive measures

However even under these circumstances we consider that thisprocedure is revolutionary for the Romanian criminal law since itaddresses a number of crimes of medium social gravity for which the lawprovides imprisonment not exceeding seven years or a fine and theCriminal Code confirms this Work setting prison sentences in that amountto much of the crime

This institution which is consistent with the practice of Europeancourts is beneficial because the parties can deal with the civil action thecourt being obliged to take note of this agreement Thus the within 10days of notification as stipulated in art 488 of the new Code of CriminalProcedure

The guilt admission agreement may be applied only defendants oflegal age not to under age ones

In conclusion we showed that the institution of guilt admission andin Romanian criminal law is for the defendant a mitigating circumstanceand on the other hand an excessive softening of the inquisitorial systemexacerbated in the communist period one trying to gradually open theroad to European values as part of the euroatlantic integration process forour country


24

This institution represents a true progressive process thatultimately leads to the same result as if the public debates were held thejudge ruling in accordance with art 334 and art 340-344 CriminalProcedure Code

References

ldquoThe Romanian Constitutionrdquo published in Monitorul Oficial (TheOfficial Gazette) Part I no 767 of 31102003

ldquoThe Romanian Code of Criminal Procedurerdquo published inMonitorul Oficial (The Official Gazette) Part I no 79 of30041997 modified version through Law 2022010regarding some accelerating measures of case solving

The Romanian New Code of Criminal Procedure adopted by Lawno 1352010 published in Monitorul Oficial (The OfficialGazette) no 486 of 15072010

Mircea Duţu Guilt admission and punishment negociation BucharestEconomical Publishing 2005

Stephen A Saltzburg Daniel J Capra American Criminal ProcedureCases and commentary fifth edition West Publishing Co1996

Bryan A Garner (ed) Black`s Law Dictionary 7 ed St Paul(Minesota) West Group 1999

Anne Deysine La justice aux Etats-Units Presse Universitaires deFrance 1998

Baldwin M McConville Negotiated Justice London 1977M Chiavario La justice negociee une problematique a construire APC

nr 151 1993D Siracusano A Galati G Tranchin E Zappala Diritto processuale

penale volume secondo nuova edizione Giuffre editore2004


25

THE BYZANTINE NOMOCANONS FUNDAMENTALSOURCES OF OLD ROMANIAN LAW

Nicolae DURĂ

AbstractByzantine Law has been known and applied in the Romanian Principalities since

the XIVth and XVth centuries especially by means of Nomocanons (Rom Pravile) whichare fundamental sources of the old written (positive) Romanian law

Getting to know this old Romanian Law implies above all our jurists getingacquainted with the text and content of the Codes of Laws these being not onlymonuments of this Law but also of the Southeast European one Secondly to exploretheir content implies on the part of our jurists not only a knowledge of Roman Law ofByzantine Law and of Greek and Church Slavonic but also being well grounded in thefields of Eastern Theology and the history of the Byzantine Empire But as there are fewRomanian jurists or researchers of old Romanian Law to meet these requirements wecould also say that the old written (positive) Law has no chance to become well knownyet Actually in the Romanian Law History handbook ndash being taught for only onesemester at the Faculties of Law in our country ndash the Codes of Laws are only presented ona few pages that in addtion lack much information as regards the knowledge ofByzantine Law that was also exiled from the Romanian Academic Fortress once withCanonic Law around the years 1947-1948

That is why we consider that the students at our Faculties of Law TheologyHistory etc should also study the text of these Pravile (Nomocanons) that are not onlyfundamental sources of old written (positive) Romanian Law and monuments of theEuropean legal culture but also first-hand information sources for the ones who want toknow both the history of Byzantine institutions and of Romanian ones in the XIVth-XIXth centuries

In order to bdquofacilitate the knowledge and the userdquo of the Byzantineimperial1 laws adopted bdquo by the Greek-Roman civil power with regard tothe Churchrdquo2 their texts were published ndash since the age of emperorJustinian (527-565) ndash under the title of bdquopolitical Lawsrdquo (πολιτικαi Διατάξεις)Usually these laws were attached ndash as a sort of appendix ndash to theCollections of canons of the respective age

The first collection of such bdquopoliticalrdquo laws was known under thename Collectio XXV capitulorum (the Collection in 25 chapters) and was

PhD Professor Vice-rector of Ovidius University of Constanta Vice-Rector Emailnicolaedidimosyahoocom1 Cf E Zachariae von Lingenthal Die Griechischen Nomokanon Petersburg 1877 p 3-42 N Milaş Dreptul bisericesc oriental (The oriental canon law) transl by D I Cornilescu and

V S Radu revised by I Mihălcescu Bucharest 1915 p 100


26

made by an unknown author3 It includes texts ndash in the integrality of theircontents ndash from the Codex and the Novels of Emperor Justinian In thecompetent opinion of some specialists in the history of this legislation thetexts in the Novels were inserted later and the respective Collectioncirculated initially as an Appendix to the canonical Collection in 60 titles4finished at the beginning of the VIth century and considered to be bdquothe firstversion of a systematical collection of canonsrdquo5

Another Collection of bdquopolitical lawsrdquo entitled Collectio LXXXVIIcapitulorum6 (the Collection of 87 chapters) which included the text ofabout ten Novels of Emperor Justinian was made up by John Scholasticthe Patriarch of Constantinople (565-578) and was inserted as an

addendum to his canonical Collection (Συναγωγ κανόνων) in L titles7A third Collection of civil laws is Collectio constitutiorum

ecclesiasticarum (the Collection of ecclesiastical constitutions) which wasmade up by an unknown author in the first half of the VIIth century based

on the laws of Justinian (the Codex and the Novels) Made of three partswith titles and added titles (παρπτιτλα) bdquo that is parallel titles to the text ofthe Codices and Novels of Justinian which are attached to the respectivetitlesrdquo8 the Collection is still known under the title Collectio tripartita9 orParatitla This Collection of bdquopoliticalrdquo laws was used bdquofor the writing ofThe Nomocanon in XIV titles in its first versionrdquo10

From the VIIth century onwards the jurists and canonists started ndashout of practical reasons ndash to structure the state legislation pertaining to theecclesiastical matters and the canons in a unique Collection where theircontent was exposed in a systematical order as they took into account therespective juridical-canonical institutions these documents referred to Thatis how these Collections appeared and were to circulate under the name ofNomocanons and in the text of which bdquonorms of both legislationsrdquo11 wereincorporated namely those bdquoνομοι πολιωκοίrdquo (civil laws) which regard thechurch life

3 E Zachariae von Lingenthal Historia juris graeco-romanum delineatio Heidelberg 1839 p23 Idem Jus greaco-romanum IV vol Lipsa 1856-18774 Idem Die Griechischen Nomokanon Petersburg 1877 p 3-45 C Popovici Fontacircnele şi Codicii dreptului bisericesc ortodox (The Sources and the Codices of

the Orthodox Church Law) Cernăuţi 1886 p 486 J Pitra Juris Ecclesiastici Graecorum historia et monumenta vol II Roma 1868 p 385-4057 See Vl N Benesevici Ioannis Scholastici Synagoga titulorum caeteraque eiusdem opera

iuridica Muumlnchen 19378 N Popovici Manual de Drept bisericesc oriental (Handbook of Eastern church Law) Arad

1925 p 569 See Collectio Tripartita Justinian on religious and ecclesiastical affairs Edited by N van der

Wal and B H Stolte Egbert Forstem Groningen 199410 N Popovici op cit p 5611 N Milaş op cit p 131


27

A product of the socio-juridical medieval reality these mixedcollections of laws namely of the imperial Byzantine laws (bdquoνομοίrdquo) whichrefer to aspects of the ecclesiastical life and of laws with a juridical andecclesiastical content known under the name of canons have been appliedalong the centuries in all Eastern European States among which theRomanian Principalities (Wallachia Moldavia and Transilvania)

According to the statement accredited by some historians ofRomanian Law bdquothe written law appeared on the Romanian territory oncewith the Nomocanons (pravile) ndash codes of written laws ndash in the XVIIth

century whereas the unwritten laws were called from then on bdquocustomrdquo orbdquothe law of the landrdquo12 However such a statement needs certaincorrections accompanied of course by the inherent specifications andcompletions and this is what we shall do further on

Starting from the VIth century in bdquoRespublica christianardquo namely inthe Christian world of bdquoPars Orientisrdquo and bdquoPars Occidentisrdquo of the RomanEmpire the canonical law according to which both the State and theChurch the two fundamental institutions of the Byzantine feudal societywere governed shall become preeminent to bdquoimperial lawsrdquo Thispreeminence of the canonical law to the state law is vividly certified by thelast Roman Emperor and the first Basileus of the Byzantine Empire that isEmperor Justinian (525-565) himself who specified that in case that a statelaw be it even an imperial bdquoConstitutionrdquo comes into collision with acanon (κανoacuteνος) the canonical law it shall always have priority (cf Nov123)

Starting from the same century namely the VIth they added to thiscanonical law the laws of the Byzantine State regarding church matters (theclergy the laymen the monks trials heresies schisms metropolitan seatspatriarchate etc) which were enforced both in the case of the clergy and ofthe laymen (the seculars) all of them under the law of the respective State

In the Carpathian-Danubian-Pontic space the canonical law hasbeen known since the IVth century since a Church with an organisation ofan archiepiscopal and metropolitan nature such as the one at Tomis13 hadto pick up and apply this canonical ecumenical legislation starting fromthe respective century and more precisely since the year 325 (acc to can 4I ec) In fact in the city of Tomis the See of the Metropolitan Church of

12 I Chiş Istoria Statului şi Dreptului romacircnesc (The history of the Romanian State and Law)

Bucharest 2002 p 9613 See N V Dură bdquoScythia Minorrdquo (Dobrogea) şi Biserica ei apostolică Scaunul arhiepiscopal şimitropolitan al Tomisului (sec IV-XIV) (bdquoScythia Mynorrdquo (Dobrudja) and its apostolic ChurchThe archiepiscopal and metropolitan See of Tomis (the IV-th to XIV-th centuries)) the Didactic

and Pedagogiical Publishing House Bucharest 2006 267 p)


28

Scythia Minor the Father of the western canon law namely the Proto-Romanian Dyonisius Exiguus (dagger 545)14 studied the Roman and canon law

That the Proto-Romanians (the Daco-Romans) were familar with thecanonical ecumenical legislation since the IVth century is also confirmedby the fact that the hyerarchs of Scythia Minor ndash starting with Evangelicusa participant in the first ecumenical Synod (the year 325) ndash also contributedto the drafting the reception and publication of this canonical ecumenicallegislation Being present and active participants starting with the firstecumenical Synods (Nicea 325 and Constantinople 381) they had surelybrought to their country and Church the first canons of the ecumenicalChurch which they have applied in the spirit of the evangelical doctrine

At last we should mention specify and keep into our minds the factthat on the land of the Romanians of today bdquothe written lawrdquo or bdquojusscriptumrdquo has been known not only since the age of the Roman rule (theyear 27 BC in Scythia Minor and 106 in the Dacia ruled by Traian) butalso once with our christianization and more precisely once with thetaking over of the canonical ecumenical legislation by the Daco-Romans(Proto-Romanians) a process which started once with the first ecumenicalSynod (Nicea 325) which was in fact also the first Parliament of thatChristian bdquooekumeacutenerdquo (world)

Starting from the VIth century the same thing happened with thenomocanonical Byzantine legislation very well-known to the Tomitanhyerarchs often present in the capital of the Byzantine empire both on theoccasion of the ecumenical synods and of the constantinopolitan ones (thelocal ones endemeussa)

On the Romanian territory the nomocanonical legislation was takenover ndash by means of the Church ndash before the XIVth to the XVth centurieswhen the Rulers of the Romanian Principalities turned the Nomocanonsinto the bdquoLaws of the Countryrdquo that is into the State and Church Law thetwo basic institutions of the Romanian medieval society

Once with the emergence of the Romanian Principalities (the XIVth

century) the relations of the Church of the North-Danubian bdquoVlachsrdquo withthe Patriarchate of Constantinople ndash which had called itself bdquoecumenicalrdquo(universal) since the end of the VIth century ndash also took shape through thetaking over and enforcement of the nomocanonical legislations in the

14 Idem Străromacircnul Dionisie Exiguul şi opera sa canonică O evaluare canonică a contribuţiei

sale la dezvoltarea Dreptului bisericesc (The Proto-Romanian Dionysius Exiguus and hiscanonical work A canonical evaluation of his contribution to the development of canon Law) in

The Orthodoxy XLI (1989) no 4 p 37-61 Idem Un daco-roman Dionisie Exiguul părinteledreptului bisericesc apusean (A Daco-Roman Dioyisius Exiguus the father of Western canon

law) in Theological Studies XLIII (1991) no 5-6 p 84-90 Idem Denis Exiguus (Le Petit)(465-545) Preacutecisions et correctifs concernant sa vie et son oeuvre in Revista Espantildeola de

Derecho Canonico (Universidad Pontificia de Salamanca) L (1993) p 279-290


29

Romanian Principalities15 We also find out of this reality from the Pravila(Nomocanon) published in the age of Alexander the Good (1401-1432) thatDimitrie Cantemir also mentioned

That is why we can say that the written law by bdquoRomaniansrdquo wasalso an obvious reality in the XIVth century that is three centuries beforethe printing of the Pravile (Nomocanons) in the XVIIth century (the Pravila ofGovora (1640) the Pravila of Iassy (1646) and the Pravila of Tacircrgovişte (1652))when the nomocanonical law became bdquothe law of the Countryrdquo

We also want to specify that bdquoius non scriptumrdquo (unwritten law)which bore the title of bdquo customrdquo or bdquo law of the landrdquo since the Dacian-Roman period became in the XVIIth century the second source ofRomanian law preceded by the written nomocanonical law which servednot only to the Church but to the entire country

Among the Romanian historians credit was given to the theory thatthe ecumenical Patriarch Nifon II ndash who occupied the metropolitan See ofWallachia between 1503-1505 ndash was the one who required bdquohellip the strictenforcement of the Byzantine pravila to the detriment of some localcustoms denounced as being worth to be censored by the Church andimplicitly by the state This thing ndash they say ndash caused the fall of thedynamical priest and his being sent away from the countryrdquo16 In factRadu the Great the Ruler of Wallachia (1495-1508) was the one who askedPatriarch Nifon (dagger 1508) ndash brought from Adrianopolis where he lived inexile in order to take the metropolitan See of the Country ndash to adapt bdquoallthe customs according to the Pravile (Nomocanons) and on theconstitutions of the Saint Apostlesrdquo17 namely to the Byzantinenomocanonical legislation and to the canonical legislation of an apostolicorigin

Therefore the taking over of the Byzantine nomocanonicallegislation in the Romanian Principalities was imposed ndash through theRulers of the Country ndash by the stringent necessity to endow the

15 See L Stan Tradiţia pravilnică a Bisericii Icircnsemnătatea şi folosul cunoaşterii legilor după carese conduce Biserica (The Church Tradition pertaining to the Nomocanons The importance and the

use of knowing the laws according to which the Church is governed) in Theological StudiesXIII (1960) no 5-6) Idem Vechile noastre Pravile (Our old Nomocanons) in The

Metropolitan See of Moldavia and Suceava XI (1958) no 9-10) Idem Pravila lui

Alexandru cel Bun şi vechea autocefalie a Mitropoliei Moldovei (The Nomocanon of Alexander theGood and the old autocephaly of the Metropolitan See of Moldavia) in The Metropolitan See of

Moldavia and Suceava XIII (1960) no 3-4)16 VG ndash VI ndash NI Ţările Romacircne Biserică (The Romanian Principalities The church) in

Instituţii feudale din Ţările Romacircne Dicţionar (Feudal institutions from the RomanianPrincipalities Dictionary) The Publishing House of the Academy of the Socialist Republic

of Romania Bucharest 198817 Gh I Moisescu Şt Lupşa and A Filipaşcu Istoria Bisericii Romacircne (The history of the

Romanian Church) vol I IBMBOR Publishing House Bucharest 1957 p 306


30

Principalities and their Churches with the same nomocanonicalecumenical legislation which at that time was in force in all the States ofthe South-East European space Anyhow through this taking over of theByzantine nomocanonical legislation the Romanian Principalities alsolegitimated their geopolitical belonging to that ByzantinebdquoCommonwealthrdquo without which no State in the Carpathian-Danubian-Pontic space could acquire the institutional recognition of its existencefrom the part of the imperial power of those times

As regards the enforcement of this nomocanonical legislation bdquoto thedetriment of some local customsrdquo that is of the customary Romanian Lawwe should also specify and keep into our mind that the former PatriarchNifon Metropolitan Bishop of Wallachia has left his Metropolitan Seebecause he had come to a misunderstanding with Radu the Great becauseof the non-observance of the canonical law by the latter which forbade thata marriage be contracted as long as one of the spouses was alreadymarried Indeed Radu the Great had approved ndash against this canonical lawndash the marriage of his sister Caplea with Bogdan ldquoVorniculrdquo (chief-in-chargewith internal affairs) who came from Moldavia where he had a legitimatewife Since Nifon required the separation of the two cursing bdquothe unlawfulactionrdquo the Ruler of the country chose to send the former Patriarch awayfrom his Court than to ban his sisterrsquos way to happiness Therefore thatrelentless attitude of the former Patriarch ndash regarding the observance andthe enforcement of the ecumenical canonical law ndash was the one that led toMetropolitan Nifonrsquos being removed from the See and not the fact that hewould have enforced the Pravila (Nomocanon) to the detriment of localcustoms which ndash in the respective case (marriage) ndash were also based on thecanonical law

By source of law one shall understand bdquothat special form taken bythe juridical norms depending on the necessities of the society theyserverdquo18 In this sense up to the emergence of Pravile (the Nomocanons)two formal sources had existed in the Romanian Principalities the customsand the law that is the written law which in fact was rather expressed inthe form of a customary law known under the name of bdquozakonrdquo (law) or bdquostaricirci zakonrdquo (the old law) In fact in the documents written in Romanianthe term bdquozakonrdquo has the meaning of unwritten law that is of custom sincewithin the village community the basic norm of the peoplersquos livingtogether was bdquothe customrdquo of the landrdquo which was in fact bdquothe law of theCountryrdquo up to the emergence of the law of the Pravile (the nomocanonicallaw)

18 Vl Hanga Izvoarele dreptului feudal structura generală şi trăsăturile lui stilistice (Thesources of feudal law its general structure and its stylistic traits) in Istoria Dreptului romacircnesc

(The history of the Romanian law) vol I Bucharest 1980 p 202


31

The word bdquopravordquo (just) ndash we encounter in the same documents ndashrefers bdquonot only to the unwritten law to customs but also to equityrdquo19understood by some researchers and historians as bdquofeudal equityrdquo asbdquofeudal ethics of the timerdquo (Hanga anul)

According to the definition of Ulpianus bdquojus est ars boni et aequirdquo(law is the art of the good and the equity) Therefore the law has both anethical and a philosophical and juridical dimension However in theopinion of some historians of Romanian law the notion of bdquolawrdquo onlyexpresses the idea of equity of public good and not that of conformitywith the moral law which in fact precedes the juridical law and exceeds itin its axiological content bdquoIf the juridical law expresses the idea of law andjustice justice ndash the respective historians of Romanian law wrote ndashrepresents the idea of equity of public goodrdquo20 Anyhow for the oldRomanian law the purpose of bdquojusrdquo is the observance of the divine andhuman law and ipso facto the accomplishment of public good whereasequity aims at the fulfillment of lawfullness both according to the juridicallaw and to the moral law21 of a Christian origin

Some historians of Romanian Law stated that bdquohellip the Pravile(Nomocanons) of the Orthodox Church are only made according to theByzantine canonical sourceshelliprdquo22 (sic) But as we also specified above thePravila is a nomocanon that is a collection of (Byzantine) State laws ndashregarding the life of the Church ndash and of canonical laws namely canonsTherefore its sources are the Byzantine state legislation and the canonicallegislation of the ecumenical Church of the first millenium23 hence itsmixed nomocanonical character In fact the study of these sources gavebirth to the juridical discipline known under the name of nomocanonicalLaw apart from having been studied in the Byzantine Empire continues tobe a subject of study not only within the Chair of canon law of the Facultiesof Theology but also within the Chair of ecclesiastical law24 of the Facultiesof Law in countries such as Germany Italy Spain Belgium HungaryBulgaria etc but not in Romania where since 1947 when the two Subjectshave been eliminated from the academic world the Byzantine and canon

19 I Chiş op cit p 9820 Ibidem21 See N V Dură Ideea de Drept bdquoDreptulrdquo bdquoDreptateardquo şi bdquoMoralardquo (The ideea of Law bdquoThe

Lawrdquo bdquoThe Justicerdquo and bdquoThe Moralsrdquo) in Ovidius University Annuals The Series Law andAdministrative Sciences no 1 2004 p 15-4622 Em Cernea ndash Em Molcuţ Istoria statului şi dreptului romacircnesc (The history of theRomanian state and law) Press Mihaela SRL Publishing House Bucharest 2001 p 12723 See N V Dură Le Reacutegime de la synodaliteacute selon la leacutegislation canonique conciliaireoecumeacutenique du Ier milleacutenaire Bucarest 1999 1023 p24 In the context of this subject the students shall first of all study the State legislationregarding the Church and the religious Cults in general and afterwards the history of

the relations between the two institutions the State and the Church


32

Law25 the nomocanonical and canon Law have not merely beenmentioned This is of course caused by the lack of specialists in the field ofByzantine and of canon Law among the academic staff from our Facultiesof Law who for almost 50 years (1947-1990) were educated and remainedentangled in the spirit of an imported juridical culture incompatible bothwith the spirit of bdquothe law of their countryrdquo and with the contribution ofthe great jurists and canonists from among their own people starting withDyonisius Exiguus (dagger 545) the father of Western Canon Law26 and endingwith the regretted Professor Liviu Stan27 (dagger 1973) who has brought a realand efficient contribution to the knowledge of Byzantine and of canon Lawin our country

Competent researchers of nomocanonical Law have observed withgood reason that within the Byzantine Empire bdquothe codex of civil (and

penal) law νόμος πολιτικὸς that is the secular imperial law remainshowever an exception in the theocratical Byzantine Empire and that iswhy even the Slavic juridical collections rarely include civil lawsindependent from the ecclesiastical legislation In most cases ndash Mr RaduConstantinescu ndash the excerpts from the secular laws were introduced in acanonical context hence the Byzantine name of nomocanon which meanslaw and canon in the same contextrdquo28

In the Byzantine Empire the imperial secular law was indeedintroduced ndash next to the canon law ndash in those mixed collections callednomocanons Moreover the secular imperial legislation had not only beenintroduced bdquoin a canonical contextrdquo that is canonised but also enforced inthe spirit of the canonical doctrine (teachings) the principles of which ithad asserted along the centuries hence its nomocanonical character Thefact that this Byzantine legislation was enforced in the spirit of theChristian doctrine is confirmed in the highest sense of the word even bythe text from the Foreword to the published Codex Justiniani (in a firstedition in the year 529 and in a second edition in the year 533) bdquoIn nomine

25 See N V Dură Dreptul Canonic o disciplină exilată Pe cacircnd o repunere icircn drepturile eiadică icircn racircndul disciplinelor de studiu şi cercetare icircn cadrul Facultăţilor de Drept (Canon Lawan exiled subject When if ever will it regain its due namely its place among the study andresearch subjects of the Faculties of Law) in In the Justice III (2002) no 14 (4-10 nov) p 19

no 15 (20-26 nov) Idem Dreptul canonic disciplină de studiu icircn Facultăţile de Drept din

prestigioase Universităţi europene (Canon Law subject of study in the Faculties of Law of famousEuropean Universities) in the Ovidius University Annuals The Series Law and

Administrative Sciences no 1 2007 p 328-33226 Idem Străromacircnul Dionisie Exiguul şi opera sa canonicăhellip(The Proto-Romanian Dionysius

Exiguus and his canonical work) p 37-61 Idem Un daco-roman Dionisie Exiguul hellip( ADaco-Roman Dyonisius Exiguus ) p 84-9027 The author of the present work has been one of his students and doctoral candidates28 R Constantinescu Vechiul drept romacircnesc scris Repertoriul izvoarelor 1340-1640 (The old

Romanian written law The catalogue of sources 1340-1640) Bucharest 1984 p 156


33

Domini nostri Jesu Christirdquo (In the name of our Lord Jesus Christ) In fact thecontents of the Foreword to this Codex ndash which refers to the state lawsissued by the Roman Emperors from the year 117 up to the year 533inclusively ndash express in fact in a vivid manner the Christian conception ofthe world and life In fact through this conception they expressed the veryideology of the respective society which can also be found in the text ofthe legislation of bdquoillo temporerdquo (of those times)

Since the IVth century the laws of the Roman State (Western andEastern) have been material sources for the canon Law no matter if theyhave been issued only by the State or at the explicit request of the ChurchIn fact since the age of Constantine the Great the Orthodox theecumenical Church has recognised the competence of the State to issuelaws regarding the church matters as well The only condition was that thislegislation do not come against the Evangelical principles and preceptsHowever during the age of Emperor Justinian the Church asked that thisState legislation regarding the life of the Church be in conformity to thespirit of the Byblical precepts and of the ecclesiological-canonical doctrine

In 1830 Professor C Flechtenmacher talked in the bdquoAcademy ofVasile Lupurdquo of Iassy about bdquoThe history of Romanian law or of theRomanian Pravile (Nomocanons)rdquo In the perception of the jurists of thosetimes the Romanian Pravile (Nomocanons) bdquowere therefore identifyablewith the bdquoHistory of Romanian Lawrdquo itself In this sense we should notforget that bdquothis lecture is the first lesson of law printed in the Romanianlanguage and keptrdquo29

Therefore the study of the Romanian Pravile (Nomocanons) ndash whichdefine in an eloquent manner the content of the old Romanian law ndash hasbeen a major preoccupation for the researchers of Byzantine law in ourcountry hence the necessity that every student of Law know and becomefamiliar with their text Finally we should also not forget the fact that thestudy of these Pravile (Nomocanons) also requires a prior analysis of thenomocanonical sources of the body of nomocanonical Law the emergenceof which in fact goes back to the VIth-VIIth centuries and ends up in theXVIIIth-XIXth centuries

The Byzantine law emerged into the Romanian Principalities boththrough the canonical Collections and through the nomocanonical onesknown under the name of Pravile (Nomocanonical) Indeed starting withthe nomocanonical collection bdquowith a canonical characterrdquo atributted toJohn Nesteutes (John the Faster) from the VIth century which emerged bdquohellipfrom the beginning in Moldavia and in Wallachia we shall come tonomocanons in the highest sense of the word among which the most

29 N Popa Teoria generală a Dreptului (The general theory of Law) Bucharest 1994 p 18


34

famous was for the Romanian Principalities the Syntagma of Vlastares(1335)rdquo30

In the Slavic and Romanian Pravile (Nomocanons) in a manuscriptand printed form the text of this Canonical collection attributed to John theFaster Patriarch of Constantinople is inserted at the end of the Syntagmawritten in Greek by Matei Vlastares a monk of Salonic in 1335

Structured in an alphabetical order ndash according to the 24 letters ofthe Greek alphabet ndash the Syntagma of Matei Vlastarea which is also knownunder the name of The Alphabetical Syntagma was translated in the Slaviclanguage only three years after it had been published We refer to thetranslation that was made in Serbia in the year 1348 during the rule ofŞtefan (Stephen) Duşan In the Slavic version the Syntagm of Vlastares hadcirculated ndash in the form of manuscripts ndash in all the countries in the area ofthe Byzantine bdquoCommonwealthrdquo of those times that is Bulgaria theRomanian Principalities Russia Armenia and Greece

As regards the text of this Nomocanon we owe to Matei Vlastares ndashwe must mention and keep into our minds the fact that later on bdquothecopysts have also added other pieces lent from other sources of law andhave also appended to some copies a Latin-Greek and also a Latin-Slavicvocabulary of the juridical termsrdquo31

In the Carpathian-Danubian-Pontic space this Nomocanon hadenjoyed a large circulation as early as in the XIVth-XVth centuries The firstmanuscripts of Greek origin came from Thessaloniky and from the HolyMountain Athos the same place that bdquothe prototypes of the Slavic onesbrought during the age of the voivode Alexander the Goodrdquo also camefrom bdquowithout excluding the possibility that the Syntagma could have beenknown even earlier by means of the Bulgarians and Serbianshelliprdquo32

On the Romanian territory the Alphabetical Syntagma ndash written byMatei Vlastares ndash has also circulated in the form of Slavo-Romanianmanuscripts Such a Manuscript is the Pravila (Nomocanon) of Tacircrgoviştewritten in 1451 by the copyist Dragomir by the order of Voivode Vladislavof Wallachia As regards this Pravila the experts said it is bdquothe first Pravila(Nomocanon) with regard to its age that is known to exist on theRomanian territoryhelliprdquo33

Among other things the Syntagma of Matei Vlastares was alsoincorporated in the text of a Codex known as the Moldavian Pravila(Nomocanon) manuscript no 116 the XVIth century which is kept in the

30 Valentin Al Georgescu Nomocanon (Nomocanon) in Instituţii Feudale din Ţările Romacircne

Dicţionar (Feudal Institutions from the Romanian Principalities Dictionary) The PublishingHouse of the Academy of the Socialist Republic of Romania Bucharest 1988 p 32031 I N Floca and S Joantă Drept bisericesc (Church Law) vol I Sibiu 2006 p 4032 Ibidem33 Ibidem p 41


35

Library of the Theological Academy in Kiev This Manuscript has a veryspecial value bdquoby virtue of the almost 400 Romanian glossesrdquo whichbdquorepresent the first step in bdquothe Romanizationrdquo of the juridical textsrdquo34Indeed these bdquoglossesrdquo stress the fact that the Byzantine juridical texts hadnot only been taken over in a tale-quale manner but also commented uponand adapted to the spirit of the Romanian realities

This Nomocanon (the Moldavian Pravila) is the result of thecompetent work of those nomocanonologists ndash contemporary jurists andcanonists ndash educated and trained both in the Schools of the AthoniteMonasteries or in the ones of Constantinople and Thessaloniky and in theones within the diocesan Centres and of the great monasteries of ourCountry Anyhow the presence of these glosses remains an obvious proofboth as regards the existence of a School of Romanian Law and a realprocess of translating the Byzantine nomocanonical legislation into aRomanian context also confirmed by the existence in the Romanianlanguage starting from the XVIIth century of some fragments from the dinSyntagma of Matei Vlastares

But what did our medievialists (historians of the institutions juristsetc) understand by Nomocanon According to the definition in TheDictionary of the feudal institutions in the Romanian Principalities edited bythe Academy of the Socialist Republic of Romania in 1988 the Nomocanonis a bdquoa collection of norms of law consisting in a combination of canonswith the secular laws We are talking ndash V Al Georgescu wrote ndash about acivil law (nomoi) with a canonical implication (sic) applied both by thechurch and by the state in a complicated simbiosis (sic) of the twoorganismsrdquo35

As we have also mentioned above the Nomocanons are collectionsof state laws promulgated especially with regard to matters of anecclesiastical nature and of church laws (canons) and not some rules oflaw which would include a so-called combination of canons with secularlaws Anyhow it is true that this civil law issued by the Byzantine rulingpower has been observed and applied both by the Church and by the Stateby virtue of that politics of bdquosimbiosisrdquo or better said of bdquosymphonyrdquo - asthe Byzantines wanted to write in the Collection published in the year 870by the order of Emperor Basil I the Macedonian namely in the Prohironand in the Epanagoga collection which appeared in the years 884-886 -between the two fundamental institutions of the Byzantine Empire namelythe State (regnum) and the Church (ecclesia) or between bdquoimperiumrdquo andbdquosacerdotiumrdquo

34 Ibidem p 4235Valentin Al Georgescu op cit p 320


36

They also said that the bdquotaking over of the nomocanonical lawrdquo inthe Romanian Countries was bdquoat the same time a political affair of theStaterdquo36 In fact this taking over was more than a so-called bdquopoliticalaffairrdquo it was a requirement a necessity of the respective age alsoconditioned and intensified by the fact that the Romanian Principalitieshad belonged ndash starting with the XIVth century ndash to that ByzantinebdquoCommonwealthrdquo the only one that legitimated at that time the politicalexistence and independence of the States in the South-East Europeangeographical space

Historians of old Romanian law tell us that in the RomanianPrincipalities we had been dealing with a bdquolegal regimerdquo defined exactlythrough the process of taking over the nomocanonic Law since the XVth

century Beyond doubt bdquothe divine law or the law of God that the rulerenforced in the XVIth and the XVIIth centuries could not be far from anomocanon As early as the XVth century ndash the same historian and juristValentin Al Georgescu wrote ndash this taking over ndash nomocanonical orimperial ndash represented a bdquolegal regimerdquo bdquoa rule of law for the feudal statesof Wallachia and Moldaviardquo37

This reality is certified in the most eloquent manner both by thePravile (Nomocanons) printed in the XVth century and by the Collections oflaws that appeared in the Phanariot Age Indeed we can observe beyondany doubt that the bdquonomocanonical (direct or extended) structure shallremain dominant in the Romanian law up to the project for a general codeof Mihai Fotino (1777) and the Pravilniceasca Condică (NomocanonicalRegister) from the year 1780rdquo38 In fact not only in the two projects for ageneral code from the years 1765 and 1766 and finally in the one of 1777bdquowe encounter a modernised nomocanonical structure (two books ofsecular law followed by a book of canon law)rdquo39 but also in thePravilniceasca Condică (Nomocanonical Register) the reference to thenomocanonical text is an obvious reality

Hence this bdquonomocanonical structurerdquo shall remain dominant in theRomanian law up to the XVIIIth century But we should also not forget thatin the Romanian Principalities (Wallachia ansd Moldavia) theseCollections of laws with a preeminently nomocanonical structure havebeen the unique sources of Romanian positive law up to the age of VoivodeCuza and in Transilvania up to the year of the Great Union of 1918

One of the main branches of Byzantine Law ndash once studied at theFaculty of Law of the Universities of Constantinople Beirut Rome

36 Ibidem37 Ibidem38 Ibidem39 Ibidem


37

Bologna Sorbonne Oxford etc and today in the great Faculties of Law ofthe European Universities ndash was nomocanonical Law Above all itconsisted in the study of the laws of the Roman Christian state recte of theByzantine one regarding the relations between bdquoImperiumrdquo andbdquoSacerdotiumrdquo that is between the State and the Church as well as thematters pertaining to the ecclesiastical life collected in the Pravile orNomocanons

In Romania up to the present the nomocanonical legislation has notbeen approached as a subject of research by the contemporary historians ofRomanian Law hence some eroneous or incongruous statements Forexample for some historians bdquothe nomocanonsrdquo are bdquochurch lawsrdquo40 Forothers nomocanons are collections of bdquojuridical rules of the societyrdquo at thebasis of which lie bdquothe Christian teachingsrdquo41 But as the termbdquonomocanonrdquo itself indicates we are dealing with a state law (νομος) andwith a church law called bdquoκανονrdquo (canon)

In the opinion of the same historians of Romanian law bdquoat the timewhen in the form of written codes ndash pravile ndash from the XVIIth century theystarted calling the written norm a law the old unwritten law has becomethe custom of the landrdquo42 As this unwritten law is concerned that hasbecome a customary rule of the land we can identify some narrativesources since the age of Burebista

The historians of Romanian law are also unfamiliar with the canonLaw hence some statements ndash in some specialised manuals ndash which showcomplete ignorance For example in one of the recent manuals we are toldthat the canon law is bdquoan ensemble of religious normsrdquo bdquobased on theByzantine Nomocanonshelliprdquo43 Obviously this wrong definition of thecanon law also requires us to make the necessary corrections

First of all we want to specify that by Canon Law one shouldunderstand bdquohellip the Christian religious law or the law of the ChristianChurch namely the sum of the principles and norms of law according towhich the entire Christian church is organised and led that is all theChristian denominationsrdquo44

As a branch of (religious and secular) law the canon law presentsthe principles and norms of the law according to which the both divine andhuman institution namely the Church of Christ is organised and ledrdquo As

40 Ibidem41 I Chiş op cit p 842 Ibidem43 I Bitoleanu Istoria Statului şi Dreptului romacircnesc (The history of the Romanian State andLaw) Constantza 200344 I N Floca Drept canonic ortodox Legislaţie şi administraţie bisericească (Orthodox CanonLaw Church legislation and administration) vol I IBMBOR Publishing House Bucharest

1990 p 55


38

a juridical science the bdquocanon law ndash as professor Liviu Stan (dagger 1973)specified in his academic course published by I N Floca ndash deals with theresearch with the methodical study and analysis and with the systematicalpresentation that is with the binding in a logical system of the customsprinciples and norms of law according to which the Church is led helliprdquo45

To that we must specify and keep into our minds that theNomocanons only emerged in the Byzantine age whereas the canons hadbeen written since the pre-Nicene age (year 325) Hence the statement thatthe canon law is based on the Byzantine Nomocanons is totally wrong asin fact these ones only emerged in the VIth century

Which are these nomocanonical laws when they appeared which istheir actual content how valid they still are today etc are just as manyquestions we shall try to answer starting with the very last one which isnot the least important given that the content of this answer will generateother questions and will suggest other answers and ipso facto it will alsolevel our path for the answers to the other questions

In 425 when the famous University of Constantinople became thefirst Christian University this one counted 30 professors out of which 15taught the Greek language and literature and the others the Latinlanguage law and philosophy Starting from 425 all these subjects weretaught in the spirit of the Christian teaching based on the Word of theHoly Script and of the testimonies of church Tradition from the content ofwhich bdquoTheologyrdquo the queen of sciences and of academic subjects until theEnlightenment ndash has legitimated its very reason to exist

From the age of Emperor Justinian (527-565) the Roman law wasalready being taught according to the precepts of the Evangelical doctrineAfterwards the Roman Christianised law known since the time ofBasileus under the name of bdquoByzantine lawrdquo was to incorporate in itsmatters both the canonical and the nomocanonical law This kind of lawwas also structured and presented according to the precepts of theideology of those times regarding the world life and society namely withthe ones typical of the Christian doctrine

Apart from the rules and the canonical laws promulgated for itsown organisation and administration the Eastern Church recognises eventoday the right of the State to issue laws in the field of the external thechurch of life bdquoBut ndash as a well-known Orthodox canonist specified ndash weshould always admit that the power of the State shall recognise as a rulethe validiy of all church laws that between the State and the Church thereis a reciprocal understanding and that the norms issued by the secular

45 Ibidem


39

legislation on matters of the church are only issued in the spirit of churchlaw and always to the interest of the Church bdquo46

But in what resides the historical and juridical fundament of thisrecognition of civil laws by the Church as a source of its law on the mattersof the external church life In order to answer this question we have toappeal to some of the historical testimonies of the Orthodox ecumenicalchurch

As it is known in the year 380 the Christian religion wasproclaimed a state religion of the Roman Empire After that the Churchwas bdquoproclaimed as basis of the Roman lawrdquo since bdquothe political rightsand to some extent even the general rights of individualsrdquo were providedin such a manner as bdquo to depend on the fact of belonging or not belongingto the Churchrdquo Finally volens-nolens the Church left bdquoto the power of thestate the right to enact laws on church matters too either by itself or incommunion with the clerical authorityrdquo47

Both in the East and in the West these laws of the Roman Christianstate especially the ones regarding the interests of the Church wereobserved and enforced up to the XIXth century The Roman pontifs forexample have appealed to bdquoleges Justinianeasrdquo (the laws of Justinian) bdquononsolum in civili et ecclesiastica administratione sed praesertim in ordinatione sacripalati lateranensisrdquo48 (not only with regard to the civil and ecclesiasticaladministration but especially to the organisation of the Holy Palace ofLateran)

The Byzantine laws therefore served the Papal State and ipso factothe Papal Court the first state authority of the West towards the end of thefirst millenium and the beginning of the second one In fact in theByzantine Empire and in the States of South-Eastern Europe ndash which werein the area of political and religious influence of that ByzantineCommonwealth ndash the Byzantine legislation was at home up to the XIXth -XXth centuries In countries such as Greece Serbia Romania etc thislegislation served as a main source basis and reference both in the courtsof the State and in the ldquodicasteriardquo that is in the Church law courts

In the old collections of canons they also included laws issued by theChristian Roman Emperors pertaining to different fields of the ChurchThis kind of laws considered an auxiliary (supplementary) source ofecclesiastical law would already appear in the Canonical Collection of Johnthe Scholastic written around the middle of the VIth century Excerptedfrom the text of Justinianrsquos Novels (527-565) which regarded the Church

46 N Milaş op cit p 4547 Ibidem p 4348 J P Pitra Juris Ecclesiastici Graecorum historia et monumenta vol II Roma 1868 p

XXXIV n 6


40

they were inserted by John the Scholastic as an appendix to its canonicalCollection or Syntagma in the Introduction to which he wanted to specifythat these laws had been formulated in accordance with the spirit of theChurch laws namely of Canons and that they had also given the latter a

special authorityrdquo (αὐθεντίαν) within the state for all the subjects of theempire contributing in this manner to the application of all these lawsbdquoaccording to the divine teachings to the use of the entire mankindrdquo(Collectio LXXVII capitulorum)

The same John the Scholastic (the VIth century) said that the laws ofEmperor Justinian bdquo pursued the spirit of the canons of our OrthodoxFathershellip who have gained authority from the part of the imperialpowerrdquo and that these ones namely the laws of the Emperors and the

canons of the Fathers pursue bdquothe interests of the entire mankind (πάση τῆ

ἀνθρωπίνη κτίσει)rdquo49Therefore based on the statement of John the Scholastic we shall

keep into our minds not only the fact that these imperial laws had to takeinto account the spirit of the canonical legislation but also the fact that thelaws of the Church that is the canons that had been given the power of alaw ndash for all the subjects of the empire ndash by the imperial authority that isby the Christian Emperors of the Roman-Byzantine Empire and later of theByzantine Empire were ndash next to the political (civil and penal) ones to theuse of the whole mankind hence the perception of their humanistic anduniversal character

As regards the humanistic character of this canonical andnomocanonical legislation that John the Scholastic explicitly mentions inhis Syntagma (Collection) we have to specify that this one was evinced inthe text of this legislation since the IIIrd-IVth centuries For example the textof canon 5 of the first ecumenical Synod (Nicea 325) explicitly providesthat bdquothe canon be observed which decides that the ones who were putaway (cast out excommunicated) by some should not be received byothers But research should be carried out in order to find out if these onesmight have been excommunicated because of the meanness of the soul orbecause of hate or any other evil deed of this kind of the Bishoprdquo (can 5 Iec) In other words the first ecumenical Synod ndash the first Parliament ofthat bdquoRespublica Christianardquo namely of the Christian world of the RomanEmpire ndash underlined the major preoccupation of the Christian Church forthe observance and assertion of that bdquodignitas humanardquo50 (human dignity)

49 Synagoga icircn 87 capitole (The Synagogue in 87 chapters) in JP Pitra op cit vol II p

39050 See N V Dură Dreptul la demnitate umană (dignitas humana) şi la libertate religioasă De la

ldquoJus naturalerdquo la ldquoJus cogensrdquo (The right to human dignity (dignitas humana) and to religiousfreedom From ldquoJus naturalerdquo to ldquoJus cogensrdquo) in The Ovidius University Annuals The

Series Law and Administrative Sciences no 1 2006 p 86-128


41

and ipso facto of the human rights that the texts of the Treaties ofEuropean Law explicitly mention51 ending up with the Treaty establishinga Constitution for Europe (cf Art 6) published at first in Rome inSeptember 2004 and then in Lisbon in December 2007

Also from the statement of John the Scholastic we shall keep intoour minds that since the age of Justinian the insertion of state lawsregarding problems of an ecclesiastical nature ndash in the canonical Collectionsndash had become a reality These Collections ndash which included canons andstate laws ndash were to be known and to circulate under the generic name ofbdquoNomocanonsrdquo (laws and canons) which are therefore mixed collectionsof church laws (canons) and state laws (νομοί) with a concreteapplicability especially in the field of Church life

Finally we should also keep into our minds the fact that initially inthese Collections or Nomocanons the canons were inserted first followedby the state laws regarding the same matter or issue

As regards the word bdquoνομοκανονrdquo it was translated by the Slavesthrough the phrase bdquothe pravila (Nomocanon) of the lawrdquo52 hence thenotion of bdquopravilardquo that was taken over and imposed in the ecclesiasticaland juridico-canonical language since the XIVth-XVth centuries

From the first millenium three Nomocanons were kept and thecompetent researchers of Byzantine Law studied both their content andthe sources that their writers had used These are The Nomocanon in 50Titles The Nomocanon in XIV Titles and The Nomocanon attributed toPatriarch Fotie

1 The Nomocanon in 50 Titles (Nomocanon quinquagintatitulorum)

The first Nomocanon mentioned in the specialised literature is TheNomocanon in 50 Titles attributed by its editor (Justel) to a formerAntiochian lawyer who later became the Patriarch of Constantinople (565-577) We are talking about John the Scholastic who was also attributed aCollection of canons Anyhow this title of the Collection bdquofrom the editionof Justelrdquo is eroneous as bdquoin the manuscriptsrdquo this one mentions himselfbdquosometimes using the name of Theodoret the Bishop of Cyrrhus and most

51 See Jean-Franccediloise Renucci Tratat de drept european al drepturilor omului (Treaty ofEuropean Law of human rights) transl by C Constantin et al Hamangia Publishing

House Bucharest 2009 p 704-71252 This is for example the case of the Nomocanon bdquoKormčaya Knigardquo in the Russian

edition of the XII-th century


42

of the times without indicating the name of the author with the title

Συναγωγή κανόνων ἐκκλησιασωκῶν εῖς πεντήκοντα τίτλους διηρημένηrdquo53But whereas the name of the author is still unknown in turn we can

say that in this Nomocanon - which in the Byzantine world has circulatedunder the paternity of John the Scholastic - bdquothe 50 titles of the Collection ofcanons of John the Scholastic are kept in their entirety and their titles tooare literally prescribedrdquo54 being followed by excerpts from the Novels ofJustinian

Summing up we can therefore say that the Nomocanon attributedto John the Scholastic55 is the work of a canonist who had also beeneducated as a jurist (Roman and Roman-Byzantine law) from the time ofEmperor Justinian (527-565)

However there are not a few Greek Nomocanons stating that theauthor of this Nomocanon is considered to have been Theodoret theBishop of Cyrrhus56 some of the great theologians and historians of theOld Oriental (non-Calcedonian) Churches That is why I personallyconsider that the true author of this Nomocanon was Theodoret ofCyrrhus but being a bdquonon-Calcedonianrdquo he was refused the paternitywhich was attributed a posteriori to the constantinopolitan Patriarch Johnthe Scholastic

Anyhow the opinions of the researchers were and are still differentnot only with regard to the paternity for this Nomocanon but also withregard to the time it was written In the opinion of some researchers of thisnomocanonical legislation this Nomocanon was written a little time beforeHeraclius (610-641)57 or bdquoin the time of Heraclius or immediately afterhimrdquo58 Finally in the opinion of the canonist Liviu Stan The Nomocanon in50 Titles was made up bdquoafter the year 565 when he (John the Scholastic)became Patriarch of Constantinople (566-577) and who used as a basis forthis Nomocanon the collection of canons in 50 titles itselfrdquo59 which is theoldest bdquoof the ones kept up to our timeshelliprdquo60 Although the hypothesisregarding the existence of other Nomocanons before the one attributed toJohn the Scholastic cannot be denied this remains however the oldestNomocanon we have kept

53 IBerdnikov Curs de Drept bisericesc (Course of church Law) transl by S Bălănescu

Bucharest 1892 p 4954 Ibidem55 It was edited and published by Justel in Juris Canonici Library56 C Popovici op cit p 5057 V Pocitan Compendiu de Drept bisericesc (Compendium of Church Law) Bucharest 1898 p3458 C Popovici op cit p 5159 Apud I N Floca op cit p 9760 V Pocitan op cit p 33


43

Later this Syntagm (this canonical Collection) was completed withthe state laws issued up to the beginning of the VIIth century givingtherefore consistency to the contents of a true Nomocanon

As regards the first translation in the old Slavonic language of theNomocanon of John the Scholastic61 in bdquo50 titlesrdquo experts said that bdquoit isbeyond doubt the work of Methodius made up as a collection for the useof the Slavic Church of Moravia the Archbishop of which he wasrdquo62

Indeed the old manuscripts in the Slavic language attribute thisNomocanon to Archbishop Methodius who next to his brother Cyril isconsidered the father of the juridico-canonical literature of Slavonicexpression Anyhow we cannot exclude the hypothesis that thisNomocanon was made by an apprentice of Methodius or the one that inthe form in which we know it today his text was reframed or completed byhis apprentices But no matter who its real author is it is certain that thisone used the Dionysiana Collection namely the canonical Collection writtenand published in Rome by the Proto-Romanian Dionysius Exiguus63 (theHumble) by the beginning of the VIth century That is why we should sayand keep into our minds that in matters of canonical legislation it is notthe Romanians who are tributary to the Slaves but the latter who aretributary to our ancestors because the Archbishop Methodius or hisapprentices who made up the respective Nomocanon used the canonicalCollection of Dyonisius the Humble for all the canonical texts referencesand links64

61 The Nomocanon was published by V Beneševici Sinagoga v 50 titulu i drughieiuridiceskiie sborniki Ioanna Scholastika St Petersburg 191462 AEN Tachiaos Sfinţii Chiril şi Metodie şi culturalizarea slavilor (The Saints Cyril and

Methodius and the culturalization of the Slaves) transl by C Făgeţan Sofia PublishingHouse Bucharest 2002 p 106-10763 Dionysius Exiguus was born in Scythia Minor namely in Dobrudja on the Romanianterritory of today But there are also erroneous and tendentious statements lacking any

historical basis according to which our Proto-Romanian was ldquoa monk from Russiardquo(James A Veitch Dionysius and the New Millenium icircn The Fourth R volume 126

SeptemberDecember 1999 ndashhttpwwwwestarinstituteorgPeriodicals4R_Articles4r_articleshtml) As regards

his Dacian-Roman origin and his birthplace where he also studied (theology law

astronomy etc) see N V Dură Străromacircnul Dionisie Exiguul şi opera sa (The Proto-Romanian Dionysius Exiguus and his work) p 37-61 Idem Dionisie Exiguul şi Papii Romei

(Dionysius Exiguus and the Popes of Rome) in The Romanian Orthodox Church CXXI(2003) no 7-12 Idem Denis Exiguus (Le Petit) (465-545)hellip p 279-29064 In the Romanian specialised literature this observation was presented ndash for the firsttime by the author of this paper in the study entitled 350 de ani de la tipărirea Pravilei de la

Govora Contribuţii privind identificarea izvoarelor sale (350 years from the printing of thePravila of Govora Contributions regarding the identification of its sources) in The Shrine of

Banat I (1990) no 3-4 p 58-79


44

2 The Nomocanon in XIV Titles

The second Nomocanon entitled The Nomocanon in XIV Titles wasmade up during the reign of Emperor Heraclius (610-641) with theapproval of the Patriarch Serghei of Constantinople (610-638) by bdquoaclergyman of the Church of Constantinoplerdquo65 who added to the state lawsregarding ecclestiastical issues and activities that were issued during thereign of this Emperor some previous ones Being divided in 14 largechapters this one bore the name The Nomocanon in XIV Titles The text ofthis Nomocanon was not kept but it was used as a basic material byPatriarch Fotie (the IXth century) who has also explicitly mentioned it inthe Nomocanon published in 883

We should also stress and keep into our minds the fact that theauthor of this Nomocanon quatordecium titulorum has used the canonicalCollection (version III) made up by the Proto-Romanian DionysiusExiguus This reality is also certified by the fact that in the text of thisNomocanon we also find bdquothe canons of the Synod of Cartagena from theyear 419 translated into Greek byhellip Dionysius Exiguusrdquo66 that cannot befound in the canonical Syntagma of John the Scholastic

Apart from Codex Africanum ndash written and published by the Synodof Cartagena in 419 ndash in this Nomocanon we find bdquothe canons of Saint Basiland excerpts from the epistles of other Fathers of the church such as theones of Dionysius Peter Gregory Taumaturg etcrdquo67 and finally bdquo acollection of political and church laws lent from the Collectio tripartitardquo68

However the Dionysiana (the third version 523) that is thecanonical Collection made by Dionysius Exiguus in Rome was used as abasic canonical material ndash if not as the unique source ndash not only by theauthors of the Nomocanon attributed to Methodius the Apostle of theSlavs but even by the Patriarch Fotie of Constantinople (the IXth century) inthe Nomocanon written by him

3 The Nomocanon atributted to Patriarch Fotie (883)

In writing the Nomocanon bdquounjustly attributed to Patriarch Fotierdquo69

(858ndash867 September 23 867 May 23 877) ndash who was anyhow a man ofhigh humanistic-encyclopaedic culture (a man of letters philosopherjurist canonist politologist etc) he had used all the Nomocanons and theCollections of canons known up to his time but as a main text and patternhe used the Nomocanon in XIV Titles in its first version (the VIIth century)

65 N Popovici op cit p 5766 C Popovici op cit p 5167 Ibidem68 N Popovici op cit 5769 Ibidem


45

However the importance of this Nomocanon ndash also known underthe name of The Syntagma of Fotie although its text bdquoalso comprises civiland church lawsrdquo70 namely Byzantine state laws regarding the matters ofcanon law ndash also resides in the comments which accompany the texts of thecanons and of some (Byzantine) state laws

The Syntagma (Collection) of Patriarch Photius has remained up toour days the official Collection of laws of the Orthodox Church Itsconsecration and institutionalization were made by the bdquoendemoussardquoSynod that gathered in Constantinople in 920 the resolutions of whichwere adopted by the entire Eastern Church

The Nomocanon of Fotie also translated in the Slavonic71 languagehas also circulated in the Romanian Principalities both in the Greek andthe Slavonic languages

The Syntagma of Patriarch Fotie was also commented upon by thejurist and canonist Theodor Balsamon (the XIIth century) Its text ndash togetherwith the Scholia (the Comments) of Theodore Balsamon ndash were inserted inthe first volume of the famous collection bdquoThe Athenian Syntagmardquo(Athens 1852) published by GA Rhalli and M Potli in Athens in 1852

After the fall of the Byzantine Empire (1453) the state legislationregarding the Church that the Nomocanon of Fotie explicitly refers to hadbeen applied further on in the Orthodox countries of South-EasternEurope in the Romanian Principalities inclusively by means of the Pravile(Nomocanons)

However the spirit of this Byzantine legislation can be found notonly in the nomocanonical legislation ndash in force up to our days in theOrthodox Church ndash but also in the juridical legislation and doctrine ofsome European states which have found in the Roman and Byzantinelegislation a model and a referrence (eg Greece Italy Germany Franceetc)

Following the pattern of the Nomocanon attributed to PatriarchFotie (the IXth century) other Nomocanons were written along thecenturies often with a heterogeneous content but they did not enjoy thesame circulation and authority as regarded the life of the Byzantine Churchand State Among these Nomocanons the most representative ndash withregard to their content ndash are

1 The Nomocanon of Gregory Doxapatri (the XIIth century)2 Kormčaya Knigardquo (The book of guidance) which is a systematical

Nomocanon derived directly from the great Constantinopolitan patriarchalNomocanon from the XIIth century known and used in Romania bdquoin

70 V Pocitan op cit p 3671 Acc to Br A Ţisary Dreptul bisericesc (The Church law) ( (in the Serbian language) vol

II Belgrade 1973 p 47


46

several versions quite different from one another starting from the middleof the XIVth century and up to the middle of the XVIIth centuryrdquo72 One ofthese versions ndash known and used in the Romanian Principalities ndash was alsothe Serbian one written in the time of Sava of Serbia (1208-1220) A copy ofthe Serbian Kormčaya of Vidin was sent to the Metropolitan Bishop Kiril IIIof the Keevan Russia in 1270

3 The Nomocanon of Arsenie Antorian (monk at Athos and since1255 ecumenical Patriarch) His Nomocanon in 141 chapters is based onthe legislation of Justinian

4 The Nomocanon of Matthew Vlastares published in Thessalonikyin 1335 which was made up of 28 large chapters after the number of theletters of the Greek alphabet hence its name The Alphabetical Syntagma Itenjoyed a large circulation in South-Eastern Europe on the Romanianterritory inclusively where bdquohellip some appendices and glosses have drawnsome attentionrdquo73

5 The Nomocanon of Cotelerius written by the end of the XVth centuryor by the beginning of the XVIth century This nomocanon is calledCotelerius after the name of its editor Johannes Baptista Cotelerius whopublished it in the first volume of his monumental work Ecclesiae GraeciaeMonumenta (vol III Paris 1667 şi 1686) As regards the Byzantine statelegislation this Nomocanon served as a source for the Pravila(Nomocanon) of Govora printed between 1640 and 164l74

6 The Nomocanon of Manuil Malaxos (dagger1581) written between 1561and 1563 comprises 541 chapters

The Nomocanon of the scrivener of the Metropolitan Church ofTheba Manuil Malaxos of Nauplia is suggestively entitled bdquoA law made ofdifferent useful canons of the divine and Apostle Saints of the holyecumenical synods of the Holy Fathers and of other all-holy bishops aswell as of some Novels of the Byzantine Emperors and of other sourcesrdquoTherefore the main sources of this Nomocanon are the canons and thelaws of the Byzantine emperors

The Nomocanon of Manuil Malaxos ndash considered one of the mostcomprehensive of the Byzatine Nomocanons ndash served as a first-handsource for the Pravila (Nomocanon) of Tacircrgovişte (the Great Pravila) printedin 1652 The same Nomocanon also served as a main source for the Pravilamade in 1632 by Eustatius the Chancellor (which remained in the form of amanuscript)

72 R Constantinescu op cit p 20773 Ibidem p 23574 Cf NV Dură 350 de ani de la tipărirea Pravilei de la Govorahellip (350 years from the printing

of the Nomocanon of Govora) p 58-79


47

7 Vactiria (the Rod of the Bishops) This Nomocanon was writtenbetween 1645 and 1648 by the monk Jacob of Ianina by the order of thePatriarch Partenius II of Constantinople (1644-1648) and has 1624 chapters

8 The Nomocanon of George of Trapezunt Published in 1730 thisNomocanon was mainly used by the students of the Princely Academy ofBucharest In fact the author a Greek monk was one of the scholars of histime and a Professor at the Greek (Princely) Academy of Bucharest

9 Very useful book for the soul ndash with a preeminently penitentialcontent ndash was published by the end of the XVIIIth century Its main sourceis The Canonikon atributted to Patriarch John the Faster (582-595) and it isin fact a late work (from the Xth century) This bdquoBookrdquo improperlyincluded among the Nomocanons was worked out and incorporated inExomologhitar (bdquothe Book of the Sacrament of Confessionrdquo) of the HagioriteSaint Nicodimus (1748-1809) printed in 1794 also translated in Romanianas early as 1799 and printed afterwards up to our days75 In fact this bdquoveryuseful book for the soulrdquo ndash one of the first canonical treaties of theOrthodox Church regarding the holy sacrament of confession ndash serves tothe confessors in the See of Confession that is during the administration ofthe Sacrament of the Holy Confession76

To sum up we can say that the Byzantine Law has been known andapplied in the Romanian Principalities since the XIVth-XVth centuries bymeans of the Nomocanons (Pravile) which are fundamental sources of theold Romanian written (positive) Law

Getting to know this old Romanian Law implies first of all ourjuristsrsquo getting acquainted with the text and the content of the Pravile(Nomocanons) which are not only monuments of this Law but also of theSouth-East European one Moreover the research of their contentsrequires on the part of our jurists not only to have significant knowledgeof Roman Law and of Byzantine Law and ipso facto of Greek and Slavonicbut also a serious training in the field of Eastern Theology and of thehistory of the Byzantine Empire In this sense as there are only few

75 See St Nicodimus the Hagiorite Carte foarte folositoare de suflet (Very useful book for the

soul) transl from Greek by Al Elian The Printing House of the Archbishopric of

Timişoara Timişoara 1997 p 676 See N V Dură Taina Sfintei Mărturisiri icircn lumina dispoziţiilor şi normelor canonice ale

Bisericii Ortodoxe (The Sacrament of the Holy Confession in the light of the canonical provisionsand norms of the Orthodox Church) in the Metropolitan See of Moldavia and Suceava no

LIX (1983) no 4-6 p 248-270 Idem Preocupări canonice ale ierarhilor Bisericii OrtodoxeRomacircne de-a lungul secolelor XVII-XIX icircn lumina Pravilelor mici (Prăvilioarelor) (Canonicalpreoccupations of the hyerarchs of the Romanian Orthodox Church during the XVII-th to XIX-thcenturies in the light of the Small Nomocanons) in the Romanian Orthodox Church CII

(1984) no 3-4 p 217-232 Idem Activitatea canonică a mitropolitului Iacob Putneanul (1719-1778) (The canonical activity of the Metropolitan Bishop Jacob of Putna (1719-1778)) in The

Voice of the Church XXXIX (1980) no 10-12 p 812-829


48

Romanian jurists or researhers of the Old Romanian Law to meet theserequirements we can also say that for the moment the old Romanianwritten (positive) Law has no chance to become well-known In fact theRomanian Law History manual ndash which at the present is only taught for aSemester77 at the Faculties of Law in Romania ndash the Pravile id est theByzantine Nomocanons are only presented on a few pages that inaddition lack a lot of information regarding the knowledge of Byzantinelaw which was also exiled from the Romanian academic city once with thecanon law around 1947-194878 That is why we consider that the studentsof our Faculties of Law of Theology of History etc must also study andanalyse the text of these Pravile (Nomocanons) which are not onlyfundamental sources of the old Romanian written (positive) Law andmonuments of the European juridical culture but also first-handinformation sources for those who want to get acquainted both with thehistory of the Byzantine institutions and with the history of the Romanianones from the XIVth-XIXth centuries

77 We are talking about a compulsory Course But there are also some Faculties of Law

where the subject The History of the Romanian Law is only taught as an optional

course Quod erat demonstrandum78N V Dură Dreptul canonic disciplină de studiu icircn Facultăţile de Drepthellip(Canon Law subject

of study in the Faculties of Law ) p 328-332 Idem Dreptul Canonic o disciplină exilatăhellip(Canon Law an exiled subject hellip) no 14 (4-10 nov) p 19 no 15 (20-26 nov) p 19 Idem

Dreptul nomocanonic (Nomocanonical Law) in In Justice year III (2002) no 16 (Nov 27 ndashDec 3) p 19 no 17 (Dec 4-10) p 19 year IV (2003) no 1 (Jan 8-14) p 19 no 2 (Jan 22-

28) p 19 no 3 (Jan 29 - Feb 4) p 19 no 4 (Feb 5-11) p 19 no 5 (Feb 19-25) p 19 no 6(Feb 28 ndash March 4) p 22 no 7 (March 5-11) p 22 no 8 (March 19-25) p 22 no 9

(March-April) p 22 no 10 (April 9-15) p 22 no 11 (April 16-22) p 22


49

APPROCHE CRITIQUE SUR CERTAINES INSTITUTIONSDU NOUVEAU CODE CIVIL ROUMAIN LA FIDUCIE

Ioan APOSTU

Resume

Le nouveau Code Civil roumain repreacutesente sans aucune doute une nouvelle loimoderne adapteacutee a des besoins sociaux actuels qui ont imposeacute un travail seacuterieux deleacutegifeacuterassions systeacutematisation et harmonisation de toute la leacutegislation civile roumaine

En principe le nouveau code adopteacute par la loi 2872009 suit lrsquoanciennesysteacutematisation technique eacutetant diviseacute dans des laquo cartes raquo laquo titres raquo laquo chapitres raquo et laquosections raquo certains pouvant arriver jusquagrave lrsquoidentiteacute quand on parle par exemple de laCarte I laquo La personne raquo ou la Carte III laquo Les biens raquo Bien sur dans sa nouvellesysteacutematisation le nouveau code reacuteunit un nombre de sept cartes certaines cartesrepreacutesentant des adaptations des anciens textes comme crsquoest le cas par exemple de laCarte IV laquo Heacuteritage et libeacuteraliteacutes raquo qui repreacutesente les anciens titres I et II de la Carte IIIDrsquoautres preacutesentent un veacuteritable caractegravere de nouveauteacute il srsquoagit de la Carte V laquo Lesobligations raquo la Carte VI laquo La prescription extinctive deacutegradation des droits et le calculedes termes raquo ou bien la Carte VIII laquo Dispositions de droit international priveacute raquo

Tregraves riche en preacutevois nouvelles les unes beacuteneacutefiques les autres moine inspireacutees lenouveau Code civile offre de larges perspectives certaines institutions qui srsquoimposent parinventiviteacute et originaliteacute La fiducie est une de ces creacuteations bien qrsquoelle ne soit pas unetregraves originale les opeacuterations fiduciaires sont connues a partir du droit romain

Lrsquoarticle 773 et les suivantes du NCciv donnent la caracteacuterisation geacuteneacuterale de lafiducie crsquoest lrsquoacte juridique par lequel une personne ndash fiduciant transfegravere la proprieacuteteacutedrsquoun bien corporel ou incorporel droits de creacuteance des garanties ou autres droitspatrimoniales a une autre personne nommeacutee fiduciaire soit a titre de garantie drsquounecreacuteance sous lrsquoobligation de garantie drsquoune creacuteance sous lrsquoobligation de reacutetroceacuteder le bienau constituant de la surette lorsque celle-ci nrsquoa plus lieu de jouer soit en vue de reacutealiserune libeacuteraliteacute sous lrsquoobligation de retransformer le bien a un tiers beacuteneacuteficiaire apregraveslrsquoavoir gegravere dans lrsquointeacuterecirct de celui-ci ou drsquoune autre personne pendant un certain tempssoit afin de geacuterer le bien dans lrsquointeacuterecirct du fiduciant sous lrsquoobligation de le reacutetroceacuteder a cedernier a une certaine date Les caractegraveres juridiques les conditions les acteurs de lafiducie la finaliteacute etc font lrsquoobjet de lrsquoanalyse de cette eacutetude

Fiducia

Noul Cod civil reglementează printre alte instituţii noi icircn dreptulromacircnesc fiducia icircn textele art 773 ndash 791

Originea fiduciei se găseşte icircn dreptul roman ea reprezentacircnd o

PhD Assistant Professor Faculty of Judicial Social and Political Sciences ldquoDunărea de

Josrdquo University of Galati Romania Email ioanapostujustro


50

convenţie icircncheiată icircntre un dispunător şi un dobacircnditor al unui bunultimul asumacircndu-şi obligaţia de a folosi şi de a restitui bunuldispunătorului sau unui terţ

Icircn sistemul modern ea a fost consacrată de dreptul britanic undeeste cunoscută sub denumirea de bdquotrustrdquo Prin aceasta se icircnţelege un raportjuridic născut prin acte icircntre vii sau mortis causa la iniţiativa uneipersoane numită fondator (settlor) care transferă unul sau mai multebunuri sub controlul unui administrator (trustee) icircn beneficiul unei terţepersoane

Potrivit noii legislaţii civile fiducia este definită ca fiind operaţiuneajuridică prin care unul sau mai mulţi constituitori transferă drepturi realedrepturi de creanţă garanţii ori alte drepturi patrimoniale sau un ansamblu deasemenea drepturi prezente şi viitoare către unul sau mai mulţi fiduciari care leadministrează cu un scop determinat icircn folosul unuia sau mai multor beneficiari

Drepturile patrimoniale astfel transmise sunt distincte depatrimoniile fiduciarilor faţă de care au o situaţie autonomă

Ca şi izvoare Noul cod civil numeşte legea şi contractul caretrebuie icircncheiat icircn formă autentică Dacă icircn privinţa contractului lucrurilesunt clare icircn privinţa legii ca izvor al fiduciei reglementarea este văditinsuficientă atacircta vreme cacirct singurul text din legislaţia noastră cu referirela fiducie este Codul civil Fireşte de lege ferenda icircntr-o legislaţie viitoarear putea fi reglementate şi alte modalităţi concrete sau generice ce ar puteagenera raporturi juridice specifice fiduciei

Subiectele fiduciei

Aşa cum am precizat mai sus fiducia implică icircn mod genericparticiparea a trei persoane dispunătorul numit constituitor dobacircnditorulnumit fiduciar şi beneficiarul

Atacircta vreme cacirct icircn privinţa constituitorului textul nu face nici-oprecizare se deduce că acesta poate fi orice persoană capabilă săcontracteze

Icircn ceea ce priveşte icircnsă fiduciarul textul art 776 alin 2 şi 3 dinNcciv face trimitere expres şi limitativ la subiecte calificate de drept Icircncategoria acestora avem icircn vedere instituţiile de credit societăţile deinvestiţii şi de administrare a societăţilor de asigurare şi reasigurare legalicircnfiinţate avocaţii şi notarii publici

Beneficiarul fiduciei nu trebuie nici el să aibă o calificare el poate fiicircn egală măsură constituitorul fiduciarul sau un terţ aşa cum precizeazăart777 din Ncciv Atacircta vreme cacirct el este un terţ faţă de convenţiainiţială nu s-ar cere nici măcar să aibă deplina capacitate de a contracta icircnsensul că el poate fi şi minor sau interzis


51

Condiţiile contractului de fiducie

Urmărind condiţiile de validitate ale contractului de fiducie trebuiesă evocăm condiţiile de fond generale şi speciale precum şi conditiile deformă

Ca orice contract acesta trebuie să icircndeplinească icircn primul racircndcondiţiile generale de validitate prevăzute de art 1179 din Nccivprivitoare la capacitatea de a contracta consimţămacircntul valabil exprimatal părţii care se obligă un obiect licit şi o cauză licită

O primă condiţie specială icircn ceea ce priveşte obiectul contractuluiacesta trebuie să cuprindă sub sancţiunea nulităţii absoluteindividualizarea drepturilor transferate durata transferului (care nu poate fi maimare de 30 de ani) identitatea constituitorului a fiduciarului şi a beneficiaruluiscopul fiduciei precum şi icircntinderea puterilor administrative şi de dispoziţie alefiduciarului (art 779 din Ncciv) Referindu-se icircn mod expres la nulitateaabsolută aceasta ar putea fi invocată de oricine oricacircnd pe cale deexcepţie sau acţiune directă Competenţa de a constata nulitateacontractului fiduciar aparţine judecătoriei icircn a cărei rază teritorială icircşi aredomiciliul sau sediul fiduciarul icircn condiţiile art 5 şi 7 din C proc civ

A doua condiţie specială de validitate a contractului de fiducie esteprevăzută de art 780 din Ncciv care impune icircnregistrarea fiscală

Sub sancţiunea nulităţii absolute contractul de fiducie şimodificările sale trebuie să fie icircnregistrate la cererea fiduciarului icircntermen de o lună de la data icircncheierii acestora la organul fiscal competentsă administreze sumele datorate de fiduciar bugetului general consolidatal statului

De asemenea dacă masa patrimonială fiduciară cuprinde printrealtele sau numai drepturi reale imobiliare acestea sunt icircnregistrate icircncondiţiile prevăzute de lege sub aceeaşi sancţiune la compartimentul despecialitate al autorităţii administraţiei publice locale competent pentruadministrarea sumelor datorate bugetelor locale ale unităţiloradministrativ-teritoriale icircn raza cărora se află imobilul dispoziţiile decarte funciară rămacircnacircnd aplicabile

Şi desemnarea ulterioară a beneficiarului icircn cazul icircn care acesta nueste precizat chiar icircn contractul de fiducie trebuie să fie făcută sub aceeaşisancţiune printr-un act scris icircnregistrat icircn aceleaşi condiţii

Icircn ceea ce priveşte condiţiile de formă nelipsind convenţia deconsens fără de care nu poate fi conceput nici-un contract legea impunecondiţii autentice de formă atacirct icircn privinţa acordului fiduciar cacirct şi amodificărilor sau adăugirilor ulterioare

Prerogativele şi obligaţiile fiduciarului

Fiduciarul este icircndreptăţit să pretindă şi să se bucure de


52

următoarele prerogative1 Dreptul de a primi icircn administrare bunul sau bunurile ce formează

obiectul fiducieiAcordul fiduciar avacircnd un caracter solemn supus unor condiţii

speciale de publicitate momentul transmiterii bunurilor este acela alicircndeplinirii condiţiilor de publicitate Icircn măsura icircn care icircnsă obiectulfiduciei icircl constituie bunuri generice momentul transmiterii lor va fi cel alindividualizării prin numărare măsurare cacircntărire etc Acest moment esterelevant icircn privinţa transmiterii riscului pieirii bunurilor

2 Dreptul de a dispune prin acte de administrare şi chiar de dispoziţieasupra bunurilor din masa fiduciară Toate actele sale sunt opozabileterţilor cu excepţia cazului prev de art 784 alin 1 din Ncciv respectivatunci cacircnd aceştia au avut cunoştinţă despre limitarea puterilorfiduciarului

3 Dreptul de a fi remunerat potrivit icircnţelegerii părţilor iar icircn lipsaunei astfel de icircnţelegeri potrivit regulilor ce cacircrmuiesc administrareabunurilor altuia Legea nu este icircnsă generoasă cu informaţii icircn aceastăprivinţă deoarece şi textul art 793 alin 1 din Ncciv privitor laremuneraţia administratorului face icircn mod generic trimitere la lege (careicircncă nu a fost adoptată) sau la obiceiul locului (inexistent deoareceinstituţia este icircncă nouă şi nu a avut timp să creeze o cutumă) ori lavaloarea prestaţiilor

Fiduciarul are următoarele obligaţii1 Potrivit art 783 alin 1 din Ncciv fiduciarul are obligaţia de a da

socoteală constituitorului şi beneficiarului cu privire la icircndeplinireaobligaţiilor sale Obligaţia este una periodică deoarece trebuie adusă laicircndeplinire la intervalele precizate icircn contractul de fiducie sau ori de cacircteori i se va cere de către constituitor beneficiar sau un reprezentant alacestora

2 Fiduciarul are obligaţia de a răspunde icircn condiţiile art 786 alin 2din Ncciv pentru o parte sau pentru icircntregul pasiv al fiduciei dacă icircn acordulfiduciar a fost stabilită o asemenea obligaţie

3 Fiduciarul răspunde pentru prejudiciile cauzate prin actele sale prinneicircndeplinirea obligaţiilor sau punerea icircn pericol a intereselor ce i-au fosticircncredinţate (art 787 din Ncciv)

Denunţarea şi icircncetarea contractului de fiducie

Atacircta vreme cacirct nu a fost acceptat de beneficiar contractul defiducie poate fi denuntat de către constituitor După acest momentcontractul nu mai poate fi modificat sau revocat de către părţi ori revocatunilateral de către constituitor decacirct cu acordul beneficiarului sau cuautorizarea instanţei judecătoreşti


53

Icircncetarea acordului fiduciar are loc icircn condiţiile arătate de art 790din Ncciv respectiv

- prin icircmplinirea termenului sau prin realizarea scopului urmăritcacircnd aceasta intervine icircnainte de icircmplinirea termenului

- icircn cazul icircn care toţi beneficiarii renunţă la fiducie iar icircn contractnu s-a precizat cum vor continua raporturile fiduciare icircntr-o asemeneasituaţie Declaraţiile de renunţare sunt supuse aceloraşi formalităţi deicircnregistrare ca şi contractul de fiducie Icircncetarea se produce la datafinalizării formalităţilor de icircnregistrare pentru ultima declaraţie derenunţare

- icircn momentul icircn care s-a dispus deschiderea procedurii insolvenţeiicircmpotriva fiduciarului

- icircn momentul icircn care se produc potrivit legii efectele reorganizăriipersoanei juridice

Efectele icircncetării contractului de fiducie

Cacircnd contractul de fiducie icircncetează masa patrimonială fiduciarăexistentă icircn acel moment se transferă la beneficiar iar icircn absenţa acestuiala constituitor

Confuziunea masei patrimoniale fiduciare icircn patrimoniulbeneficiarului sau al constituitorului se va produce numai după platadatoriilor fiduciare


54


55

UTILITEacute DE LA FIDUCIE EN TANT QUE FORME DECAUTION BANCAIRE DANS LE CONTEXTE DE LA CRISE

ECONOMIQUE

Silvia CRISTEA

Resume

Parmi les institutions juridiques reacutecemment introduites par le Nouvel Code CivilRoumain (Loi 2872009) la fiducie a sa place bien agrave part Pour eacutetablir si la fiducie estutile en tant que forme de gestion des biens drsquoautrui ou en tant que forme de cautionnous lrsquoavons compareacutee drsquoabord aux institutions juridiques preacuteexistantes et ensuite auxinstitutions juridiques drsquoautres systegravemes de droit et par rapport auxquels nous avonstrouveacute quelques particulariteacutes (agrave voir le droit franccedilais ameacutericain et canadien)

Nous avons fait quelques suggestions dans les conclusions agrave partir desparticulariteacutes de lrsquoinstitution de la fiducie dans le droit franccedilais (ougrave le constituteur nepeut ecirctre qursquoune personne morale soumise agrave lrsquoimpocirct sur socieacuteteacute) et dans le droit canadien(ougrave la fiducie peut se constituer sous forme de donation ou de leacutegat)

1 La fiducie dans le Nouvel Code Civil Roumain1

Selon lrsquoart 773 dans la Loi no 2872009 la fiducie est lrsquoopeacuterationjuridique par laquelle un ou plusieurs constituteurs transfegraverent desdroits reacuteels des droits de creacuteance des cautions ou drsquoautres droits depatrimoine ou un ensemble des droits pareils actuels ou futurs agrave unfiduciaire ou plusieurs fiduciaires qui les gegraverent agrave un but biendeacutetermineacute pour le beacuteneacutefice drsquoun beacuteneacuteficiaire ou plusieurs beacuteneacuteficiairesCes droits constituent une masse autonome de patrimoine distincte desautres droits et obligations portant sur patrimoine des fiduciaires

Jrsquoai essayeacute de superposer cette notion sur le cas reacuteel drsquounpatrimoine drsquoaffectation constitueacute selon lrsquoarrecircteacute 4420082 qui deacutefinit lepatrimoine comme la totaliteacute des biens droits et obligations drsquounepersonne physique autoriseacutee du titulaire de lrsquoentreprise individuelle oudes membres de lrsquoentreprise familiale affecteacutes au but drsquoune activiteacuteeacuteconomique et constitueacutee comme une fraction seacutepareacutee du patrimoine dela personne physique autoriseacutee du titulaire de lrsquoentreprise individuelle ou

PhD Assistant Professor Deacutepartement de Droit Acadeacutemie des Etudes Economiques

Bucharest Email silvia_dreptyahoocom1 Publieacutee dans le M Of no 511 de 24 juillet 20092 Concernant les activiteacutes eacuteconomiques deacuterouleacutees par les personnes physiques autoriseacuteesentreprises individuelles et entreprises familiales publieacutee dans le M Of no 328 de 25

avril 2008


56

des membres de lrsquoentreprise familiale seacutepareacutee du gage geacuteneacuteral descreacutediteurs personnels de ceux ci (art 2 lettre j)

Jrsquoai pris le cas ougrave une personne physique autoriseacutee voudrait limitersa responsabiliteacute envers les dettes commerciales avec la liste des bienspersonnels affecteacutes au commerce en seacuteparant ainsi le patrimoinecommercial du patrimoine civil3 et jrsquoai supposeacute que pour geacuterer cepatrimoine elle trouve une institution de creacutedit (une banque) agrave laquelleelle donne le mandat de fiduciaire

Le but de la fiducie dans ce cas lagrave serait de geacuterer le patrimoinedrsquoaffectation pour que la situation preacutesente un inteacuterecirct pour la banquendashfiduciaire nous avons consideacutereacute que la banque ndash fiduciaire pourrait ecirctredeacutesigneacutee dans cette qualiteacute comme personne morale qui octroie deacutejagrave desemprunts au constituteur donc elle connaicirct deacutejagrave les conditions danslesquelles son activiteacute se deacuteroule

Nous avons continueacute le cas hypotheacutetique en deacutesignant leconstituteur comme beacuteneacuteficiaire de la fiducie qui accepte lrsquoopeacuterationjuridique dans les conditions de lrsquoart 777 du Nouvel Code Civil

Nous aurons pu supposer aussi que le fiduciaire ait aussi la qualiteacutede beacuteneacuteficiaire (surtout si nous supposons que la personne physiqueautoriseacutee a garanti ses emprunts avec ses biens personnels et dans ce caslagrave la banque pourrait ecirctre inteacuteresseacutee drsquoune gestion diligente dupatrimoine drsquoaffectation drsquoautant plus que plus tard le problegraveme duremboursement des creacutedits apparaitra) en conformiteacute avec le mecircme art777 du Nouvel Code Civil

Apregraves avoir analyseacute les droits et les obligations des parties selonles dispositions du Nouvel Code Civil nous avons trouveacute

a) Obligations du constituteur- de leacutegaliser lrsquoaccord soumise agrave la sanction de nulliteacute absolue

(conformeacutement agrave lrsquoart 774 paragraphe 1)- de stipuler dans le contrat les droits les obligations les biens du

patrimoine drsquoaffectation4 qui soient conformes agrave la deacuteclarationdeacuteposeacutee au Registre du Commerce conformeacutement agrave la Loi 2690concernant le Registre du Commerce5 la dureacutee du transfertlrsquoidentiteacute du constituteur du fiduciaire et du beacuteneacuteficiaire ainsi quele but de la fiducie et les pouvoirs de gestion soumise agrave la sanction

3 A voir Lucia Herovanu bdquoDreptul romacircn şi patrimoniul de afectaţiunerdquo dans RDC no

62009 p 67 ndash 684 Publieacutee dans le MOfno 121 de 7 mars 1990 republieacutee dans le M Of no 49 de 4 feacutevrier

1998 avec les modifications et compleacutetions ulteacuterieures5 Liviu Narcis Pacircrvu et Ioan Florin Simon Legea privind registrul comertului-comentarii

si explicatiirdquo Ed CH Beck Bucarest 2009 p111


57

de la nulliteacute absolue conformeacutement agrave lrsquoart 779 lettre a ndash f si cesstipulations y manquent

- de reacutemuneacuterer le fiduciaire mecircme si le caractegravere oneacutereux du contratnrsquoest pas expresseacutement stipuleacute notre opinion est que lrsquoeacutenumeacuterationcomprise dans lrsquoart 776 paragraphes 2 et 3 ne permet pas uneconclusion contraire tous les fiduciaires demanderont un paiementque son nom soit commission ou honoraire en plus dans le cas ougravela reacutemuneacuteration nrsquoest pas expresseacutement stipuleacutee les dispositions duchapitre concernant la gestion des biens drsquoune autre personnesrsquoappliqueront (art 784 du Nouvel Code corroboreacute avec lrsquoart 793du Nouvel Code)

- lrsquoobligation drsquoenregistrer la fiducie dans le Registre National desfiducies sera solutionneacutee apregraves lrsquoadoption drsquoun Arrecircteacute dans lesconditions de lrsquoart 781 paragraphe 1 du Nouvel Code

- lrsquoobligation de faire lrsquointabulation des droits reacuteels immobiliers quifont lrsquoobjet du contrat peut appartenir soit au constituteur soit aufiduciaire (art 781 paragraphe 3 du Nouvel Code)

b) Obligations du fiduciaire- Enregistrement de la fiducie soumise agrave la sanction de la nulliteacute

absolue aupregraves de lrsquoautoriteacute fiscale compeacutetente de gestion desmontants que le fiduciaire doit au budget geacuteneacuteral consolideacute(conformeacutement agrave lrsquoart 780 paragraphe 1 du Nouvel Code) et desdroits reacuteels immobiliegraveres au deacutepartement speacutecialiseacute de lrsquoautoriteacute delrsquoadministration publique locale qui a lrsquoimmeuble dans sacompeacutetence (art 780 paragraphe 2 du Nouvel Code)Concernant lrsquoobligation stipuleacutee dans lrsquoart 780 paragraphe 1 nous

nous demandons quelle est lrsquoexplication pour laquelle les leacutegislateurs sesont occupeacutes de lrsquoaspect de lrsquoenregistrement de la fiducie aupregraves delrsquoadministration fiscale Nous consideacuterons que la seule explication est lemodegravele du code civil franccedilais qui inclut cette disposition mais nouspreacutecisons que les justifications de la loi franccedilaise sont claires autant quedans le droit franccedilais le constituteur ne peut ecirctre qursquoune personnemorale eacutetant donneacute lrsquooption soumise agrave lrsquoimpocirct sur les socieacuteteacutes il estnormal que la fiducie soit enregistreacutee aupregraves de lrsquoadministrateur fiscal quiest en mecircme temps le collecteur des impocircts

Selon de Nouvel Code Civil toute personne morale et juridiquepeut ecirctre un constituteur (conformeacutement agrave lrsquoart 776 paragraphe 1) etlrsquoobligation drsquoenregistrer la fiducie aupregraves de lrsquoadministration fiscale dansnotre opinion nrsquoest pas la meilleure solution Srsquoil existe un Registre


58

National des fiducies lrsquoenregistrement suffit dans notre opinion pourassurer la validiteacute de la fiducie6

- de stipuler la qualiteacute de fiduciaire chaque fois qursquoil agit dans lecompte de la masse de patrimoine fiduciaire (conformeacutement agrave lrsquoart782 paragraphe 1) ainsi que chaque fois quand il fait descommunications qui doivent ecirctre inscrites dans le registre depubliciteacute (art 782 paragraphe 2 )

- de rendre compte au constituteur aux beacuteneacuteficiaires et aurepreacutesentant du contribuable sur demande conformeacutement agrave lrsquoart783 du Nouvel Code CivilEn ce qui concerne la limitation de la responsabiliteacute du fiduciaire

dans notre opinion la solution qui existe dans le droit roumain estmeilleure que la solution qui existe dans le droit franccedilais Ainsi selon lrsquoart786 du Nouvel Code Civil si la loi nrsquoen a pas disposeacute autrement pour lesdettes de la fiducie que les biens de la mase de patrimoine fiduciairepeuvent ecirctre poursuivis la fortune personnelle du fiduciaire et les autresbiens du contributeur sont agrave lrsquoabri Si la situation contraire a eacuteteacute preacutevuepar la loi les actifs de la masse de patrimoine fiduciaire seront poursuivisdrsquoabord et ensuite srsquoil srsquoavegravere neacutecessaire les biens du fiduciaire ouet duconstituteur dans la limite et dans lrsquoordre preacutevues dans le contrat defiducie (art 786 paragraphe 2 du Nouvel Code Civil)

Lrsquoart 787 du Nouvel Code Civil doit ecirctre interpreacuteteacutee dans notreopinion dans le sens que pour les preacutejudices causeacutes pendant la geacuterance lefiduciaire sera responsable avec sa fortune personnelle7

2 Comparaison avec drsquoautres institutions juridiques du droitroumain

21 Comparaison avec le gage

Le gage est la caution donneacutee par le deacutebiteur et qui concerne lrsquounde ses biens pour assurer qursquoagrave lrsquoeacutecheacuteance dans le cas ougrave la dette nrsquoest paspayeacutee le creacutediteur puisse couvrir le montant de la creacuteance avec le biendonneacute en gage ougrave avec lrsquoargent fait agrave la suite de sa vente8

6 Dans notre opinion les formes drsquoenregistrement imposeacutees par la leacutegislation roumaine

pour les biens mobiles et immobiles eacutetaient suffisantes Nous interpreacutetonslrsquoenregistrement aupregraves de lrsquoadministration fiscale comme une difficulteacute imposeacutee au

reacutegime juridique de la fiducie7 Les regraveglements du code civil franccedilais ont eacuteteacute pris de Florence Deboissy et Guillaume

Wicker bdquoCode des socieacuteteacutes ndash Autres groupements de droit communrdquo Ed8 Dans ce sens lagrave a voir S Angheni M Volonciu et C Stoica bdquoDrept comercialrdquo 4egraveme

eacutedition Ed CH Beck Bucarest 2008 pp 66


59

Du point de vue de lrsquoobjet on observe que le gage et la fiducie seressemblent puisque les deux se reacutefeacuterent aux biens mobiles corporels ounon corporels tandis que la fiducie se reacutefegravere en plus aux biens immobilesaux cautions ainsi qursquoagrave une masse de patrimoine autonome distincteDrsquoun coteacute le gage se reacutefegravere agrave un bien deacutetermineacute tandis que la fiducie sereacutefegravere agrave une universaliteacute de biens et de lrsquorsquoautre coteacute la fiducie se reacutefegravere agraveplusieurs cautions (soit plusieurs contrats de gage soit des contrats degage aussi que des contrats drsquohypothegraveque) La fiducie peut donc inclure legage tandis que le contraire nrsquoest pas possible

Tandis que le gage put ecirctre conclu avec ou sans la provision dedeacuteposseacuteder le deacutebiteur du bien avec lequel il a garanti en ce qui concernela fiducie le Nouvel Code Civil nrsquoen preacutevoit rien malgreacute que le modegravele lecode franccedilais preacutevoit la possibiliteacute drsquoutiliser le fonds de commercelorsqursquoil est lrsquoobjet de la fiducie9

En ce qui concerne les maniegraveres de constitution si le gage ne peutecirctre que conventionnel leacutegal ou juridique nous consideacuterons que la fiduciene peut ecirctre que le reacutesultat drsquoune convention entre le constituteur et lefiduciaire10

De point de vue du caractegravere du contrat nous trouvons desgrandes diffeacuterences si le gage a un caractegravere unilateacuteral et institue desobligations qui portent sur une seule partie11 la fiducie a un caractegraverebilateacuteral le constituteur aussi bien que le fiduciaire assument leursobligations Le gage aussi bien que la fiducie sont des contrats agrave titreoneacutereux

Si la fiducie est un contrat principal le gage est un contrataccessoire La nature de lrsquoobjet de la fiducie impose quand mecircmequelques clarifications Si le fiduciaire gegravere des droits de creacuteance despatrimoines distinctes (comme celui drsquoaffectation) ou des cautions nousnous demandons que-est ce qursquoil se passe avec la fiducie si lrsquoobjet dutransfert disparait si le droit de creacuteance cesse est-ce que la caution ou lepatrimoine ne seront plus exeacutecuteacutes Est-ce que ces conseacutequences affectentla nature mecircme de la fiducie est-ce qursquoelle devient un contrat accessoire

En ce qui concerne la forme sous laquelle ils sont reacutedigeacutes si lagage peut ecirctre reacutedigeacute sous signature priveacutee ou authentique la fiducie doitecirctre leacutegaliseacutee soumise agrave la sanction de la nulliteacute absolue

9 A voir en dessous la section no 31 sur les diffeacuterences de regraveglement dans le droit

franccedilais10 Mecircme si comme la section no 32 preacutesente le droit ameacutericain reacuteglemente la version

leacutegale ou judiciaire du trust11 Nous consideacuterons que de lrsquointerpreacutetation bdquoper a contrariordquo de lrsquoart 775 du Nouvel

Code Civil la fiducie a un caractegravere oneacutereux pour toujours Ainsi conf a lrsquoart 775 bdquolecontrat de fiducie sera soumis agrave la sanction de nulliteacute absolue srsquoil reacutealise une libeacuteraliteacute

indirecte dans lrsquoavantage du beacuteneacuteficiairerdquo


60

En ce qui concerne les personnes qui peuvent conclure le contrat degage le code civil ne preacutevoit pas des restrictions tandis que dans le cas dela fiducie ce nrsquoest pas nrsquoimporte quelle personne qui puisse ecirctre fiduciairele Nouvel Code Civil impose donc des restrictions12

La modaliteacute de publiciteacute et la preacutefeacuterence ont des solutionsdiffeacuterentes en ce qui concerne le gage la Loi no 99199913 imposelrsquoobligation drsquoenregistrer la caution reacuteelle immobiliegravere aupregraves de lrsquoArchiveElectronique des Cautions ainsi le creacutediteur soit peut prendre enpossession le bien garanti sans conflit soit dans le cas ougrave il ne peut pasfaire ccedila sans conflit il peut faire appel aux exeacutecuteurs juridiques ou agravedrsquoautres autoriteacutes drsquoexeacutecution soit il peut vendre le bien en ce quiconcerne la fiducie le Nouvel Code Civil preacutevoit lrsquoenregistrement aupregravesle Registre National des Fiducies aussi qursquoaupregraves lrsquoautoriteacute fiscalecompeacutetente ougrave le fiduciaire paie les impocircts au budget drsquoeacutetat consolideacute

22 Comparaison avec lrsquohypothegraveque

Lrsquohypothegraveque est un droit reacuteel sur des immeubles affecteacutes jusqursquoaupaiement drsquoune obligation14

Si on compare lrsquohypothegraveque avec la fiducie de point de vue delrsquoobjet nous observons que les deux ont comme objet des biens immobilesmais la fiducie peut avoir comme objet drsquoautres droits de patrimoinecomme par exemple les droits reacuteels mobiliegraveres les droits de creacuteance lescautions aussi qursquoune masse de patrimoine distincte Crsquoest que la fiduciequi peut avoir comme objet des biens futurs pas lrsquohypothegravequeLrsquohypothegraveque se constitue sans deacuteposseacuteder tandis que dans le cas de lafiducie le Nouvel Code Civil ne stipule pas des provisions expresses

En ce qui concerne lrsquoopposition entre les caractegraveresunilateacuteralbilateacuteral et principalaccessoire aussi que lrsquoopposition agrave titregratuitagrave titre oneacutereux les commentaires mentionneacutes dans la section sur legage restent valables

La forme sous laquelle le contrat est reacutedigeacute est identique la fiducieaussi bien que lrsquohypothegraveque doivent ecirctre reacutedigeacutees sous forme authentiquesoumises agrave la sanction de la nulliteacute absolue en ce qui concernelrsquoenregistrement aupregraves du Registre National des Fiducies le NouvelCode Civil preacutevoit comme obligatoire lrsquoenregistrement des droits reacuteelsimmobiliegraveres qui font lrsquoobjet de la fiducie aupregraves du deacutepartementspeacutecialiseacute de lrsquoautoriteacute publique compeacutetente ougrave lrsquoimmeuble se trouve les

12 A voir la section no 4 de lrsquoarticle13 Publieacutee dans le MOf no 236 de 27 mai 199914 A voir le collectif du Deacutepartement de Droit ndash ASE bdquoDrept civil ndash pentru

icircnvăţămacircntul superior economicrdquo Ed Lumina Lex Bucarest 2003 pp 388-391


61

dispositions concernant le registre foncier restent valables aussi dans le casde la fiducie

En plus il est obligatoire dans le cas de la fiducie drsquoenregistreraupregraves de lrsquoautoriteacute fiscale compeacutetente les montants dues par lefiduciaire au budget geacuteneacuteral consolideacute

23 Conclusion sur la comparaison entre les deux formes decautions

Mecircme si dans le Nouvel Code Civil la fiducie nrsquoest pas mentionneacuteecomme une forme de caution et dans sa propre deacutefinition nousconstatons que la fiducie peut avoir comme objet certaines cautions nousconsideacuterons utile drsquoanalyser lrsquoutiliteacute de la fiducie comme forme de cautionbancaire

Si la banque assume une position de fiduciaire par rapport agrave unclient constituteur et elle est deacutesigneacutee comme beacuteneacuteficiaire les avantagesseraient- si le constituteur a lui donneacute un patrimoine distinct autonome pour legeacuterer et le contributeur est en mecircme temps deacutebiteur ndash emprunteacute par labanque nous consideacuterons que la fiducie est une forme de caution puisquela bonne gestion du patrimoine accroitra les chances de la banque ndashcreacutediteur drsquoencaisser lrsquoemprunt du contributeur agrave lrsquoeacutecheacuteance Dans notreopinion il est possible que la caution de la banque soit double drsquoun coteacutelrsquoemprunteacute peut garantir lrsquoexeacutecution de son obligation avec un droit reacuteelsur un bien du patrimoine (gage ou hypothegraveque) de lrsquoautre coteacute lepatrimoine donneacute agrave la banque ndash fiduciaire peut inclure non seulement lesbiens avec lesquels lrsquoemprunteacute a garanti mais aussi drsquoautres biens stipuleacutesdans le contrat de fiducie - dans le cas ougrave agrave lrsquoeacutecheacuteance le constituteur ndash emprunteacute ne rembourse pasle creacutedit la banque a le titre exeacutecutoire confeacutereacute par le contrat de creacuteditaussi que sa qualiteacute de geacuterant de la fiducie et surtout de beacuteneacuteficiaire de lafiducie la saisie-exeacutecution sera mise en pratique par la banque (dans saqualiteacute de geacuterant) et dans son avantage (en tant que beacuteneacuteficiaire) En plusla banque recevra un paiement pour cette saisie -exeacutecution (commission)pour des services rendus en tant que fiduciaire

3 Diffeacuterents regraveglements concernant la fiducie dans drsquoautressystegravemes de droit

31 Diffeacuterences dans le droit franccedilais

Selon le code civil franccedilais les constituteurs ne peuvent ecirctre quedes personnes morales soumises agrave lrsquoimpocirct sur socieacuteteacute comme effet de la


62

loi ou de lrsquooption non seulement que les droits des contributeurs nepeuvent pas ecirctre transmis agrave titre gratuit (interdiction mentionneacutee aussidans lrsquoart 775 du Nouvel Code Civil Roumain) mais il nrsquoest permis de lestransfeacuterer en cession agrave titre oneacutereux qursquoagrave drsquoautres personnes moralessoumises au paiement de lrsquoimpocirct sur socieacuteteacutes (art 2014 du code civilfranccedilais)15

La dureacutee de la fiducie est prolongeacutee jusqursquoagrave 99 ans (agrave partir de lrsquoan2009) par la modification de lrsquoart 2018 du Code Civil franccedilais (dans letexte anteacuterieur la dureacutee la plus longue stipuleacutee eacutetait de 33 ans et lrsquoart 779du Nouvel Code Civil roumain a adopteacute cette dureacutee)

La possibiliteacute du contributeur de garder lrsquoutilisation du fonds decommerce ou du siegravege professionnel preacutevue par lrsquoart 2018 ndash 1 du CodeCivil franccedilais nrsquoest plus possible dans le Nouvel Code Civil roumain

Par opposition avec la solution proposeacutee par le Nouvel Code Civilroumain le code civil franccedilais preacutevoit dans lrsquoart 2025 paragraphe 2 lapossibiliteacute dans le cas ougrave les dettes de la fiducie deacutepassent les actifs dupatrimoine fiduciaire que les biens des contributeurs constituent le gagegeacuteneacuteral des creacutediteurs fiduciaires agrave lrsquoexception du cas ougrave par la fiducie ila eacuteteacute expresseacutement mentionneacute que le fiduciaire srsquooblige agrave porter uneresponsabiliteacute avec ses biens pour une partie du passif du patrimoine dela fiducie

Autrement dit la seacuteparation faite par la fiducie entre un patrimoinecivil et un patrimoine commercial est annuleacutee et on revient agrave laresponsabiliteacute avec la fortune soit du contributeur soir du fiduciaire Depoint de vue de la doctrine on remarque le retour agrave la theacuteorie de laseacuteparation des patrimoines la theacuteorie de lrsquouniciteacute du patrimoine16

32 Diffeacuterences dans le droit ameacutericain

Mecircme si admise comme dans le Nouvel Code Civil roumain (art774 paragraphe 1) la possibiliteacute drsquoinstituer la fiducie agrave la suite de lavolonteacute des parties (express trusts = created voluntarly by the owner) orpar lrsquoeffet de la loi (implied trusts) dans le cas des fiducies qui ont commesource la loi deux formes retiennent notre attention bdquoresulting trustsrdquolorsque le constituteur fait un transfert incomplet des biens etbdquoconstructive trustsrdquo constitueacute dans le but drsquoeacuteviter lrsquoenrichissement drsquounepersonne sans une cause juste17

15 Regraveglements du code civil franccedilais qui ont eacuteteacute pris de Florence Deboissy et Guillaume

Wicker bdquoCode des socieacuteteacutes ndash Autres groupements de droit communrdquo Ed Pg 588 ndash 59116 Dans ce sens lagrave a voir L Herovanu œuvre cit sect2 (pg 67 ndash 68) et sect5 (pg 72 ndash 74)17 Dans ce sens lagrave a voir Daniel V Davidron Brenda E Knowles Lyun M ForsytheRobert R Jesperen bdquoComprehensive business law ndash Principles and casesrdquo Kent

Publishing Company Borton ndash Massachusetts 1987 p 1216 et 1232 ndash 1233


63

Le document qui fait la preuve de la fiducie (trust deed) est undocument similaire agrave lrsquohypothegraveque par lequel le proprieacutetaire (creacuteateur)drsquoun bien immobile le transfert vers un fiduciaire (trustee settlor ortrustor) comme caution pour le paiement drsquoune dette envers un tiers lebeacuteneacuteficiaire (beneficiary)18

Si on corrobore les deux hypothegraveses en dessus mentionneacutees onobserve que par rapport au droit roumain le fiduciaire (the trustee) est leproprieacutetaire mecircme des biens transfeacutereacutes par la fiducie et il a des pouvoirsillimiteacutes sur le patrimoine fiduciaire pour ces raisons les lois ameacutericainesinsistent sur les qualiteacutes du fiduciaire (surtout parce que dans le droitameacutericain toute personne physique ou morale peut assumer cette qualiteacutecontrairement au droit roumain) et les obligations de rendre compte pourles opeacuterations juridiques conclues agrave la fin de la fiducie19

33 Diffeacuterences dans le droit canadien

On observe que beaucoup de dispositions dans le droit canadien(art 981a ndash 981n Code civile canadien) sont pris dans le droit roumainmais on observe aussi les diffeacuterences en ce qui concerne les deacutefinitions delrsquoinstitution Ainsi conformeacutement agrave lrsquoart 981a du Code civil canadien20toute personne qui peut librement disposer de ses biens peut transfeacuterer laproprieacuteteacute des biens mobiles ou immobiles agrave des fiduciaire par donationou par testament au beacuteneacutefice drsquoautres personnes pour lesquelles ellespeuvent conclure de maniegravere valable des donations ou des leacutegats(testamentaires)

Apregraves le modegravele du droit anglo-saxon le droit canadien admetparmi les qualiteacutes du fiduciaire (trustee) la qualiteacute de proprieacutetaire desbiens du patrimoine fiduciaire

Conclusions

Parmi les deacutefis auxquels ceux qui ont reacutedigeacute le Nouvel Code Civilroumain ont eacuteteacute confronteacutes21 en ce qui concerne la fiducie nous avonsanalyseacute les trois suivants la deacutefinition de lrsquoinstitution les personnes quipeuvent constituer des parties les limitations de la responsabiliteacute pour lepassif du patrimoine de la fiducie

18 Idem pg 1216 ndash 121719 Idem pg 1217 ndash 123220 Pris de Paul A Crepeacuteau Gisegravele Laprise bdquoLes codes civils ndash eacutedition critiquerdquo reacutealiseacutee

par le Centre de recherche en droit priveacute et compareacute de Queacutebec Montreal 1986 p 208 ndash21221 Pour des deacutetails sur ces deacutefis a voir Paul Perju bdquoConsideraţii generale asupra NouluiCod civil (titlul preliminar persoane familie bunurirdquo dans Revista Dreptul no 92009

pg 13 ndash 30 surtout sect1 pg 13 ndash 15


64

Nous consideacuterons que la disposition preacutevue par lrsquoart 773 du NouvelCode Civil roumain est un progregraves par rapport au droit canadien car ledroit roumain ne se limite plus aux documents agrave titre gratuit (donation etleacutegat) mais institue une nouvelle cateacutegorie de contrat agrave caractegraverespeacutecifique22 Nous consideacuterons que en plus de la fonction de servir agrave latheacuteorie de la seacuteparation des patrimoines stipuleacutee expresseacutement par lrsquoarrecircteacute442008 la fiducie peut ecirctre consideacutereacutee une nouvelle forme de cautionpar exemple la banque octroie un emprunt et conclut un contrat defiducie par lequel elle se constitue en fiduciaire et beacuteneacuteficiaire par rapportau client contributeur

En ce qui concerne les personnes qui participent agrave la convention ndashfiducie nous remarquons que par rapport au droit franccedilais qui limite lescateacutegories des personnes qui peuvent ecirctre contributeurs le droit roumaindonne la possibiliteacute agrave toute personne qursquoelle soit physique ou moraledrsquoavoir cette qualiteacute (art 776 paragraphe 1) Nous consideacuterons que cetteliberteacute aurait du avoir une liberteacute correspondante en ce qui concerne lefiduciaire Pourquoi avoir des fiduciaires qui ne puissent ecirctre que desinstitutions de creacutedit des socieacuteteacutes drsquoinvestissement et de gestion desinvestissements des socieacuteteacutes des services drsquoinvestissements financiers etdes socieacuteteacutes drsquoassurance et reacuteassurance ou des notaires publiques et desavocats (art 776 paragraphes 2 et 3)

Nous consideacuterons que la restriction preacutevue par le droit franccedilais estla conseacutequence de la qualiteacute speacuteciale des contributeurs qui impliquelrsquoenregistrement speacutecial de la fiducie aupregraves des autoriteacutes fiscales

Dans notre opinion les deux dispositions suivantes sont excessivesdans le droit roumain les restrictions imposeacutees sur les cateacutegories depersonnes qui peuvent avoir la qualiteacute de fiduciaires et le caractegravereobligatoire de lrsquoenregistrement aupregraves drsquoune administration fiscale

Nous appreacutecions la solution adopteacutee dans le droit roumain en cequi concerne la responsabiliteacute limiteacutee envers le patrimoine fiduciaire lasolution franccedilaise drsquoune stipulation expresse dans le sens drsquoeacutelargir laresponsabiliteacute au-delagrave du patrimoine (soit sur les fortunes descontributeurs soit sur la fortune du fiduciaire) malgreacute qursquoelle ne soit pasattrayante pour les parties correspond agrave la formule adopteacutee par lesleacutegislateurs dans le domaine du patrimoine drsquoaffectation Dans le droitfranccedilais aussi que dans le droit roumain lrsquoentreprenant personnephysique est responsable pour ses obligations avec son patrimoinedrsquoaffectation (srsquoil a eacuteteacute constitueacute) et srsquoil nrsquoest pas suffisant pour compleacuteteravec son entier patrimoine

Tandis que dans le cas du patrimoine drsquoaffectation on admet leretour agrave la theacuteorie de lrsquouniciteacute et de la personnaliteacute patrimoniale dans le

22 Preacutesenteacutees dans la sect1 de cet ouvrage


65

cas de la fiducie les conseacutequences de la seacuteparation des patrimoines enfonction des buts sont meneacutees agrave la fin23

Il en reste que la pratique montre lrsquoutiliteacute de lrsquoinstitution de lafiducie et impose les modifications leacutegislatives qui srsquoavegraverent neacutecessaires

23 Dans le droit franccedilais les disputes concernant la possibiliteacute de seacuteparer de maniegravere

eacutetanche entre le patrimoine civil et le patrimoine commercial continuent apregraves lrsquoentreacutee envigueur de la Loi no 2003 ndash 721 de 1 aoucirct 2003 pour lrsquoinitiative eacuteconomique Dans ce sens

lagrave Lucia Herovanu œuvre cit note no 24 pg 73


66


67

SPECIAL CRITERIA FOR INDIVIDUALIZATION OF THEFINE AS PUNISHMENT

Gheorghe IVAN

AbstractThe fine is a financial punishment and the offendersrsquo assets may vary in extent

and social and economic duties therefore when establishing the concrete value of the fineit is necessary to also take into account certain criteria of individualization others thanthe general ones

With regard to this matter the provision of art 63 para 5 of the Criminal Codein force stipulates special legal criteria which must be considered by the Court whensetting out a fine Thus according to this provision when establishing a fine the generalcriteria stipulated by art 72 of the Criminal Code in force must be observed but at thesame time the fee must be set out so that the convict may fulfill his legal duties regardingthe support upbringing education and professional training of his dependants

Furthermore art 61 para 3 of the new Criminal Code (Law no 2862009)stipulates that the Court establishes the number of days-fine according to the generalcriteria for the individualization of the punishment The amount corresponding to a day-fine is to be established also in accordance with the legal obligations of the convicttowards his dependants

Keywords fine generalspecial criteria for individualization of punishmentdays-fine convictrsquos dutieslegal obligations towards his dependants

1 The fine is a financial punishment and the offendersrsquo assets mayvary in extent and social and economic duties therefore when establishingthe concrete value of the fine it is necessary to also take into accountcertain criteria of individualization others than the general ones Withregard to this matter the provision of art 63 para 5 of the Criminal Codein force (1969) stipulates that special legal criteria must be considered bythe Court when setting out a fine Thus according to this provision whenestablishing a fine the general criteria stipulated by art 72 of the CriminalCode in force must be observed but at the same time the fee must be setout so that the convict may fulfill his legal duties regarding the supportupbringing education and professional training of his dependants These are infact legal special criteria for the individualization of the fine whichhowever apply only to its superior limit Therefore while the Court mayset out a small fine complying with the special minimum and the general

PhD Lecturer Faculty of Judicial Social and Political Sciences ldquoDunărea de JosrdquoUniversity of Galati Romania Chief Prosecutor of Galati Territorial Office National

Anticorruption Directorate Email ivangheorgheugalro


68

minimum with regard to its superior limit nevertheless the Criminal Codein force stipulates a legal enclosure which the Court must consider whenestablishing the fine alongside the special and the general maximum1

The convictrsquos legal duties stipulated in the Family Act are supportduties and upbringing duties education and professional trainingAccording to the Criminal Code in force the material status of the offenderdoes not represent a criterion which the Court should take into accountwhen establishing the fine however it may be considered in the field ofthe general criterion provided by art 72 of the Criminal Code ndash ldquotheoffenderrdquo Within this criterion the Court must take into consideration theoffenderrsquos material status so that the fine may represent a real juridicalconstraint The judge shall assess the material position of the offender incompliance with various elements such as the convictrsquos fortune hisincome his family difficulties etc2

2 The first new Criminal Code of Romania (2004) ndash which did notcome into force and was abrogated by the second new Criminal Code(Law no 2862009) ndash did not embrace the ideas of the Criminal Code inforce and adopted the system of the days-fine with regard to naturalpersons Thus art 68 para 2 stipulates that the fine as punishment isapplied as days-fine In this situation the total amount payable is given bythe multiplication of the number of days of punishment established inCourt in accordance with the gravity of the offense and the offender withthe amount representing the evaluation in cash for each day ofpunishment taking into consideration the financial possibilities of the offenderand his obligations towards the dependants as a legal special criterion ofindividualization

With reference to the two special criteria (the financial possibilitiesof the offender and his obligations towards the dependants) we assess thatthe lawgiver has abandoned the system of the Criminal Code in forcewhich stipulates that the only duties to be considered when establishingthe fine are the defenderrsquos legal obligations towards his defendants (art63 para 5) and stipulated expressly the material status of the offender as alegal special criterion for individualization so that the fine penalty mayrepresent a real juridical constraint

1 Vintila Dongoroz Siegfried Kahane Ion Oancea Rodica Stanoiu Iosif Fodor Nicoleta

Iliescu Constantin Bulai Victor Rosca Theoretical Explanations of the Romanian CriminalCode General Part volume II Bucharest Romanian Academy Publishing House 1970 p

68 Gh Ivan Individualization of Punishment Bucharest CH Beck Publishing House 2007pp 251-252

2 V Dongoroz and collab quoted work p 68


69

The financial possibilities relate to the offenderrsquos income achievedfrom any economic activity (wages pensions dividends bank interestincome support etc)3

3 The second new Criminal Code (Law no 28620094) adopted thesame system of days-fine Regarding the natural person article 61 para 3stipulates that the Court establishes the number of days-fine in accordancewith the general criteria for the individualization of the punishment Theamount corresponding to a day-fine is set out also in compliance with theconvictrsquos legal obligations towards his dependants

According to the new criminal law the individualization of thepunishment as days-fine consists of three stages The first stagedetermines the number of days of punishment in correlation with the twogeneral criteria of individualization (gravity of offense and the offenderthreat) and during the second stage is calculated the amount equivalent toeach day of punishment in correlation with the two general criteria ofindividualization but also with a special criterion of individualization (theconvictrsquos legal obligations towards his dependants) Finally the thirdstage establishes the total amount by multiplying the number of daysobtained in the first stage with the amount obtained in the second stage5

We have to mention that the lawgiver of the new Criminal Codeembracing the pattern of the German Criminal Code6 stated not only thegeneral main criteria for the individualization of the punishment ndash gravityof the offense committed and offender threat - but also the generalsecondary criteria for the individualization of the punishment whichactually are useful in the assessment of the first ones Therefore art 74para 1 stipulates that the settlement of time or punishment is to be made

3 Gh Ivan quoted work p 2534 Published in Monitorul Oficial (The Official Gazette) Part I no 510 of 24 July 2009 The

second new Criminal Code will come into force on the date established by the lawreferring to its enforcement

5 Gh Ivan idem pp 252-2536 sect 46 para 2 of the German Criminal Code stipulates that for the determination of

punishment both the circumstances in the offenderrsquos favour and those against him areconsidered For this purpose the following aspects are especially taken into consideration

a) the offenderrsquos mobile and purpose

b) the offenderrsquos behaviour as it results from his deed and his will referring to thedeed

c) the measure he breached his legal obligationsd) the way the deed has been committed and its consequences

e) the offenderrsquos antecedents and his personal and material positionf) the offenderrsquos behaviour after having committed the crime especially his efforts

to repair the damage caused as well as his efforts to reach an understanding withthe injured party


70

in accordance with the gravity of the offense committed and the offenderthreat which are assessed in compliance with the following criteria

a) circumstances and way of having committed the crime as wellas means used

b) state of jeopardy created for the protected valuec) nature and gravity of the result created or of other consequences

which have been brought forthd) reason for having committed the crime and the purpose which

has been aimed ate) nature and frequency of offenses which represent the criminal

antecedents and previous convictions of the offenderf) behavior after having committed the crime and during the trialg) level of education age health condition family and social

status

We may notice that the elements mentioned from a) to d) areactually useful to assess the gravity of the crime committed while theothers [from e) to g)] are useful to assess the offender threat

With regard to the natural person and referring to the specialcriteria for the individualization of the fine we notice that the second newCriminal Code faces a regress from the first new Criminal Codeembracing the system of the Criminal Code in force which stipulates thatfor the settlement of the fine punishment the only duties that matter arethe legal obligations of the offender towards his dependants (art 63 para5) neglecting the idea advanced by the first new Criminal Code accordingto which the material status of the person convicted should represent alegal special criterion for individualization so that the punishment mayrepresent indeed a real juridical constraint

The offenderrsquos legal obligations towards his dependants are theparentrsquos obligation to bring up educate and support his minor childrenthe obligation to support his spouse the obligation to support his bloodrelatives ndash brothers and sisters as well as other persons mentioned underthe law etc These obligations are provided for instance by articles 261487 488 499 516 of the new Civil Code (Law no 2872009)

With regard to the legal person the second new Criminal Codestipulates in rt 137 para 3 that the Court settles the number of the days-fine according to the general criteria for the individualization of thepunishment The amount corresponding to a day-fine is determined inaccordance with the turnover for lucrative purpose legal personrespectively with the value of the assets for other legal persons as well asin accordance with the other obligations of the legal person Consequently


71

the material status of the legal person is to be considered alongside hislegal obligations such as the reimbursement of debts

4 Other criminal legislations mention the offenderrsquos material statusas a special criterion for the individualization of the fine Art 132-24 2nd

thesis of the French Criminal Code stipulates that if the Court delivers afine punishment the Court shall determine its total value taking intoconsideration to the same extent both the offenderrsquos income and hisobligations

Article 50 of the Spanish Criminal Code establishes the system ofdays-fine prescribing in the 5th paragraph that the Court shall settle theamount corresponding to the shares taking into account exclusively theeconomic position of the person convicted deducted from his assets his familyduties and obligations and his personal circumstances

Finally the Italian Criminal Code stipulates special criteria in art133 bis according to which when determining the amount of the fine(either ldquomultardquo for offenses or ldquoammendardquo for contraventions) the judgemust take into account the economic conditions of the offender alongsidethe general criteria indicated in rt 133 The 2nd paragraph of the samearticle adds that the judge may increase the fine (ldquomultardquo or ldquoammendardquo)established by law three times at most or reduce it to a third at most ifdue to the economic status of the offender the judge considers that themaximum limit is ineffective or that the minimum limit is excessivelyhard

The Italian doctrine criticized the traditional system of the globalamount provided by rt 133 bis of the Criminal Code where the criteria forthe settling of the fine are still the general ones (gravity of the offense anddelict capacity7) In reply it was retorted that the Italian lawgiver had notconsidered the recommendations of the dominant doctrine which inclinedtowards the opposite model of Scandinavian origin of the ldquodaily ratesrdquowhich in fact divides the stage of individualization in two autonomousmoments the first moment settles the number of sums based on thegeneral criteria and the second moment determines the daily ratesumbased on the economic status of the offender If this system had beenadopted it would have constrained the judges to really take intoconsideration the economic status of the offender the Italian lawgiverrsquosrefusal as it was claimed by some authors would be grounded on thehidden intention to elude the delicate problem of verifying the offenderrsquosincome besides that the Italian tax administration being unable to provideexact information related to incomes

Moreover the Italian lawgiver has been also criticized for the factthat he did not stipulate the criteria that the judge must obey within the

7 See at large Gh Ivan quoted work pp 85-88


72

assessment of the offenderrsquos economic status In this situation the judgemust take into consideration the offenderrsquos income at the moment he wasconvicted and his pecuniary obligations (obligations for support debtsmade in order to deal with essential needs such as the purchase of adwelling house etc)8

5 In our judicial practice it has been decided that the fine is settledaccording to the legal criteria for the individualization of the punishmentand not to the offenderrsquos possibilities of payment the latter may beeventually taken into consideration when a criminal fine is enforced9

8 G Fiandaca E Musco Diritto penale Parte generale Zanichelli Editore SpA Bologna

2001 pp 742-7449 The Supreme Court military section judgment no771985 qtd in The Romanian Review

of Law no 91986 p 75


73

THE EDIFICATION OF THE STATE OF LAW

Mircea TUTUNARUBeatrice-Daiana DASCĂLU

AbstractAs a concept and as a form of expression of the ldquomodern staterdquo the state

governed by the rule of law is not just a simple word association It expresses a conditionon the power a rationalization movement and its ordering and also a new outlook onlaw on its role and functions The limiting power of the state of law means an authenticand humanistic conception of democracy The constitutional state crystallized as amodern one The theory of the state of law has become a veritable axiom of the public lawThe judicial review of administrative acts and the control of the constitutionality of thelaws were created as effective tools of its achieving The state of law includes a strictseparation of the state in social life The essence of the rule of law is normativism

Keywords state state of law democracy political power jurisdiction legalityrule of law freedom

In todayrsquos democracies the state of law has become the foundationof society The state of law must be accompanied by a system ofguarantees to state as a final limit on the right

Today Romania is at a further stage in the approach to the state oflaw The Romanian Constitution adopted in 1991 and amended by thenational referendum of 2003 referred in article 1 (3) to the fact that

bdquoRomania is a democratic and social state governed by the rule of lawrdquoThe theory of the state of law is a national not a global idea We believethat we must build the national model of the state of law from actualrealities of our country from the times in which we live

It was noted that the state of law is in theory a concept aimed atintegrating the correlation between the political and the legal Politicalpower is the control of a company driven by social relations which aregenerated by legal values and fall into the consciousness of the

comunities`conditions One of these conditions is that the law should beapplied not only for the governors but also for the government

The concept of the State law has its roots in antiquity but there hasnever been a single conception of the State law and may not ever exist

PhD Lecturer Faculty of Law Tg-Jiu University Titu Maiorescu Bucharest Email

mircea_tutunaruyahoocom PhD Student Assistant Faculty of Law Tg-Jiu University Titu Maiorescu Bucharest

Email beatrice_daianayahoocom


74

This can be explained by several factors such as democratic politicalsocial and legal traditions historical and cultural evolution diversity andspecificity of the political and legal systems etc

The idea of the State law is now something which contemporarycivilization aims at The State law is a specific responsibility towards itscitizens and the state respect for the rule of law by all organs of the statepublic organizations and work groups and it also ensures maximumrights and freedoms

The state of law or the legal state reflects the coexistence of two

social entities the bdquostaterdquo and the bdquorightrdquo mutual relations andinterdependence between power and normativity In this respect Duguit

said bdquoThe right without force is powerless but without law is a barbaricforcerdquo1

The state of law has always supported the idea of the dualism of thestate and law and was based on philosophical views about the law as a

supreme value As Aristotel stated bdquowhere the rule of law is absent thereis no way to order such a staterdquo The state should be managed by goodlaws as Socrates said and mentioned as an ideal state in Platonrsquos beliefThe equity Platon was talking about only admitted to the masters of

slaves and Cicero spoke of the state as bdquoa problem of peoplerdquo and as bdquoacommon law orderrdquo Cicero believes that the basis of law is actually acharacteristic attribute of nature fairness

In his Politics Aristotel speaks of the basic ideas of the state of lawthe rule of law the separation of powers and social equity2

The theoretical construction of the state of law is not the work ofchance the theory has advanced the field of natural law and ideologicalconcerns a set of representations and values known in all Europeancountries The state of law is an abstract collective entity distinct from thecivil society It is a conception of law and expresses the ideal of justice Thestate of law based on a conception of power and individual freedomscrystallized through the 1789 French Revolution the 1776 Declaration ofIndependence and the Constitution of the US In England the state of lawwas adopted over centuries from Magna Charta Libertatum (1215) but asI stated above the roots of the rule of law are much deeper reaching theGreek and the Roman antiquity

The state law theory was born in the late nineteenth century indefiance of democratic regimes and synchronized with its liberal ideologygiving full meaning The state of law appears as a social and politicalorganization designed to put into practice the principles of liberal

1Leon Duguit apoud John Ceterchi Ion Craiovan Bucharest Ed All 1996 p 1172Aristotel Politics Book IV capXI Bucharest Ed 1996


75

democracy and the principles of natural law as a substrate It has a specialconnotation especially in totalitarian countries being a reaction against thedictatorial rule which oppressed people or against the abuse of legalityor edict and application of unjust laws

Professor T Drăganu3 whose opinions we share believes that thestate of law must be perceived ldquoas a state which organized the principleof separation of powers under which justice achieves real independenceand seeking to promote the rights and legislation inherent humanfreedoms ensures strict compliance with its regulations by all his workthroughout his organsrdquo Regarding the rule of law one of the mostdifficult problems as Professor Tudor Draganu says is to find the mosteffective procedural ways to make state institutions which directly orindirectly have the force of constraining the citizens to abide by the laws

Professor Ion Deleanu referring to the relationship betweenfreedom and constraint shows that we should be rational becauseldquofreedom without authority alters authority without freedomdegeneratesrdquo4

Normative power and states are in a mutual conditioningrelationship Thus the power creates the norms and these legitimate andlimit power Analysed from this perspective the state of law issubordinated to the law Certainly the author adds other specificrequirements to this fundamental dimension of the state of law

A very well-known jurist Hans Kelsen speaks about the state oflaw considering the limit on the state According to this theory before statelaw and subject to the law that created it The rule of law is a relativelycentralized legal order with the following features

- jurisdiction and administration are bound by laws enacted by aparliament elected by people The courts are independent

- citizens are guaranteed certain rights and freedoms especially thefreedom of conscience and belief the freedom to express opinions etc

In a constitutional state the law must prevail it must govern thestate Thus the law must not become an arbitrary expression of the will ofa minority but should be a summary of the interests and aspirations of allcommunities the general expression of the will Legitimate law should beconsistent with fairness The lawmaking process and the rule of law areessential to the state of law

3T Drăganu Introduction to the theory and practice of rule of law Cluj-Napoca 1992 pp 12-

164Ion Deleanu Constitutional Law and Political Institutions A Treatease vol I Bucureşti

Europa Nova 1996 pp 110-111


76

The state of law is defined by the French lawyer Jacques Chevallieras ldquothe type of political regime in which the state power is framed andlimited by lawrdquo5

Professor`s George Babos state theory shows that the name of lawwhich the state wants to suggest is not entirely independent in its workbut is restricted by the law6 Professor Babos also argued that the theorywhich supports the state of law emerged during the nineteenth centurybeing in close collaboration with the theory of the separation of powers

In the case of a lack of an international authority that wouldguarantee human rights the rule itself should exercise it by means of theseparation of powers within the three branches of the government(legislative executive and judicial) which control each other so that theydo not allow abuse Within these three functional branches the judicial oneshould have the main role in protecting individual rights But the legalposition is not the same in many different countries For example Englandhas printed a great authority of law subjecting both the state and thecitizens to the same authority the customary law applied by the courts InEuropean countries the principle of the separation of powers led to thedevelopment of a theory of the individualrsquos subjective rights theirrelationship to the state through the ldquopublic lawrdquo It is designed as agroup of rules that aim to protect the individual against arbitraryadministrative bodies

The state of law precludes any legality instituted otherwise than bya parliament elected by universal suffrage and acting in accord withconstitutional principles

In modern conditions the removal of totalitarian regimes andmedical changes have occurred in all structures of society and peoplersquoslives The reorganization of society on democratic principles especiallythe updated concept of the state of law as the only alternative for thedevelopment of former socialist countries in accordance with authenticsocial values existing in contemporary societies that developed democraticstates

Considering the state of law there is not enough to establish a legalmechanism that would ensure strict compliance with the law but it is alsonecessary that this law be given a certain content inspired by the idea ofpromoting the rights and freedoms the most genuine human spirit and a

5Jacques Chevallier LrsquoEtat de droit qtd by Petru Niculescu The rule of law Bucureşti

Lumina Lex 1998 p 236George Babos General Theory of State and Law Bucureşti Editura didactică si pedagogică1983 p 50


77

broad liberal democracy Organic laws and other normative acts have animportant role in establishing the state of law they have shall be sodesigned as to not violate constitutional principles but rather to meet theirattainment

Regarding the activities of the state we can act in accordance withthe requirements of the state of law but also with its opposite whichreveals the fundamental role the state authorities have in this area So inall key positions in areas of state activity professionally skilled competentpersons should be promoted with political and legal culture and a highconscience to determine their priority to act for the common interest

The state of law cannot build only through constant struggle and inthis sense both the rulers and the governed must fight and not forget thatthe main opposition resides between the legislative and the executive butbetween those who lead and those who are led and both belong to thesame companies where the task of building and maintaining the rule oflaw is coming back to them

In our opinion it is not enough to say that the rule of law ensureslegal protection of a strict hierarchy of rules and that the Governmentreplaced it with the natural consensus people at the governance of rulesStructure rules may be more tyrannical than any tyrant because it makesman a project by setting aside a specific man that man again talkingabout communist regimes

What distinguishes the state of law from a totalitarian state is thatthe first is concerned with the content of the structured of the legal orderand the second only with its form Totalitarian systems are not right forthe states that they are the liberal conception antipozii about state lawTotalitarian state denies its inherent rights of the individual denies thereality autonomous individuality In a state also other individual is only asocial atom and its rights are state concessions So totalitarianism is builton the ruins of human rights

Human rights are provided in the Constitutions of the totalitarianstates as formal reality but are not effective because the state stifles civilsociety there is no other initiative that that of the state In totalitarianstates the rights lose any protective dimension they are just a tool in thehands of the state The formal structure of rules is used to legitimize theabuse Changing the nature of the law because its purpose is opposite tothat which it has in liberal states The state of law cannot be confused withthe principle of legality because it is more than this Summarizing thestate of law is key normativism and his character is the judgeConstitutional states as modern form has crystallizedthe ruleoflawbypostulatingand implementap propriate mechanismsto sanction the ruleof law and primarily of the fundamental


78

Conclusions

The idea of ldquostate of lawrdquo describes the relationship between thestate and the law The true meaning of this relationship can only berevealed through rigurous research on human activity and the state legalinstitutions in the shaping and development of the civil society

The concept of the ldquorule of lawrdquo is in a continuous evolution in timeand space

For Romania the state of law is unique an alternative tototalitarianism and dictatorship Therefore the rule of law must be notonly the constitution but de facto

The rule of law is meant to create conditions for the humancommunity and ensure that its representatives will not abuse theprivileges granted by law

Bibliography

Leon Duguit apoud John Ceterchi Ion Craiovan Introduction togeneral theory of law Ed All Bucharest 1996 p 11

Aristotel Politics Book IV capXI Ed Bucharest 1996Drăganu T Introduction to the theory and practice of rule of law

Cluj-Napoca 1992 p1216Ion Deleanu Constitutional Law and Political Institutions Treaty

vol I Ed Europa Nova Buc1996 p11011Jacques Chevallier Etat Apoud Petru Niculescu the rule of law Ed

Lumina Lex Bucharest 1998 p23George Babos General Theory of State and Law Teaching and

Pedagogical Publishing House Bucharest 1983 p50


79

FORENSIC IDENTIFICATION - SIDES OF SETTING THEPROCESS OF FACTUAL CIRCUMSTANCES

Romulus MOREGA

AbstractJudicial investigation aimed at establishing the truth out of all the circumstances

in which a criminal act was committed as well as the persons involved almost alwaysimplies the identification of persons and objects

The most important way to establish judicial identification is forensicidentification Their relationship may be defined as whole-part relation forensicidentification being both a stage and a premise for judicial identification

The former regards particular individual aspects whereas the latter iscomprehensive as it has to judge all the evidence presented

Although ldquoidentityrdquo and ldquoidentificationrdquo seem simple words at first sightjurisprudence proves that in legal proceedings they get different meanings and aresometimes misinterpreted

ldquoAppearances are a glimpse of the unseenrdquo (ANAXAGORAS)

Setting the truth in justice is done through the evidenceAccording to the Romanian Criminal Procedure Code article 63 it

is actually evidence any element used to declare the existence or non-existence of a crime identify the person who committed it and knowingthe circumstances necessary for a fair settlement

The purpose of probation (thema probandum) is thus what must beproved (factum probandum) facts circumstances conditions orcircumstances relating to the existence of the fact prohibited by law andthe personrsquos participation in the offense

The management task of the evidence must concern the prosecutionand the court because our legislation enshrines the presumption ofinnocence of the defendant (art 66 C of the Code of Criminal Procedure)in the sense that anyone is considered innocent as long as his guilt was notestablished with certainty

A suspect initially then the accused and counted as the possibleauthor this person will not be convicted unless it is made full proof ofcorpus delicti and committed participation The special importance of thesample to reach the unknown known ldquoto shed light on nebulae issuesrdquo as

PhD Lecturer Faculty of Law Tg-Jiu University Titu Maiorescu Bucharest


80

Traian Pop said prompted him to call it ldquothe main nerve of the criminalproceedingsrdquo1

Forensic identification is only one means of proof permitted by lawone of the sides of the process of establishing the facts In other wordsprobation include identification as one of its components not to beconfused with it and moreover without being reduced to it Theconviction of judicial body is finally formed thereof The conviction ofjudicial body is formed finally by analyzing the totality of the relevantadministrative evidence which is critically objectively and unilaterallyevaluated

The main contents of probation with forensic identification isposting the person or object involved in the offense investigationsomewhere far from a set of possibly unknown objects or persons Theultimate goal is the individualization of the person (offender victimwitness accomplice etc) either directly after traces of body parts orindirectly through objects If the object (such as an instrument which hasbeen used to commit a crime) serves as a means of discovering the ownerforensic identification appears as an intermediate stage of the overallprocess of legal identification Evidentiary value can be proved only bycorrelating the two forms of identification Therefore some authors eveninclude the concept of forensic identification in addition to the concreteobject and its connection with the case investigated We believe thatestablishing such a connection is beyond the actual act of identificationExpert competence shall be limited to technical findings and judicialbody owned by the expertrsquos conclusion is solely responsible and liable tomake the link mentioned2

Identity is thus from the beginning one of the fundamentalconcepts of thinking and at the same time an important research of thematerial objects with the broadest application in various fields of scienceforensic science physics chemistry biology etc

There is almost no process of thinking that falls outside theprinciple of identity Knowledge is not restricted to identification butincludes it as component of a complex process3

Identity is the nature of what is identical (single) or ldquoproperty of anobject to be and stay at least for a while as what it is the capacity topreserve for some time its fundamental characteristicsrdquo

Under its most general aspect identity means that category whichexpresses consistency the object equal to itself

1 Colectiv (1978) Forensics Practical Treaty Bucharest Editorial Service IInd vol2Colectiv (1978) Dictionary of Philosophy Bucharest Ed Politica3Erikson SA Jorgensen J (1979) Recherches drsquoEmpreintes par Ordinateur in

laquo Revintpolcrim raquo no 300


81

As a result forensic investigation is not required to determine theobject itself but to reach an evidentiary identity Thus it does not matterthat the offenderrsquos footwear is identical to itself in a certain moment butthat because of its characteristics from seeking coverage from the scene itcan be identified and serves as evidence The analysis of the concept ofidentity would be incomplete if it fails a second aspect namely theidentity between objects4 In forensic identification the main content ofexamination and assessment is to highlight similarities a fully sufficientsimilar individual characteristics leading to the identification of traces andimplicitly to distinguish the totality of these characteristics similar to thoseof other objects If two objects signs events etc resemble we must seekwhich are identical and which are not and thus we could say that thesimilarity is the evidence of a hidden identity5 On the other handdifferences may also play a cognitive role the differences between objectsand compared traces contributing to their individualization anddelimitation In the specialized literature this method is even calledidentification through differentiation The judgment of similarity such asldquoit is just like the otherrdquo is of great importance in the work of expertiseand generally in the process of probation but not to equate identity withthinking

To identify means to distinguish to isolate and to ldquoextractrdquo anobject from a set of similar objects or objects that create putative traces interms of committing the criminal act Forensic identification is possiblyobjective by individuality relative stability and reflectivity of things andbeings Through the individuality of an object it is ontologicallyunderstood that the object is determined by its specific propertiesGnosiologically the term ldquoindividualrdquo means the singularity of an objectin relation to other objects from its class the fact that it is unique in itselfenjoys the uniqueness and is different from any other object Objects andbeings suffer in time changes under the action of internal and externalfactors Only abstractly they may be overlooked considering identity as apermanent state The continue moving and transforming of the materialworld is not contrary to the property of an object of being individual Forsome time intervals identification remains possible when the changes arenot essential In this context personality appears to be relatively stableEpistemologically speaking the coverage - inextricably linked to theprevious expresses the essence of cognitive relationship between subjectand object between consciousness and existence The movement of thematerial world is achieved through the interaction of objects and beings ina process of mutual influence

4 Gayet J (1961) Manuel de Police Scientifique5 Gobot E (1937) Traiteacutee de Logique Paris Libraire Armand Colin


82

The characteristic of the material world to reflect is more complexas the movement form is more advanced ranging from the simplest formsof coverage from the world of mechanical and inorganic matter to theintricate processes of organized education such as the human brain whoreflects reality through perceptions representations concepts and otherways of knowing Reflecting bodies through interaction reproduces theouter structure (natural reflection) Multiple forms of coverage outline twodistinct types of identification identification by materially fixed picturesand identification by pictures set in memory The first is the most commonand is obtained mainly by comparing traces of objects believed to havecreated them or their reflections The second type of identification is basedon the strength of memory of the subject which in certain spatial andtemporal conditions perceived the characteristics of an object being orphenomenon

Identification by material reflections is achieved by scientificresearch carried out by specialists and the findings are materialized in atest or technical-scientific report

Identification by description and recognition is achieved throughinvestigation activities in accordance with procedural rules andrecommendations by criminal tactics (hearings confrontation andreconstruction) and the results are recorded in various documents such asstatements records tape photographic plates sheets and collections6 Ofthe processes of automatic recognition of digital impressions you shouldknow the following

1 The comparing system based on design and staging pointsdeveloped by E Angst K Frieden MP Grop and MW Frun isbased on classification data as monodactilar coupled The data isbased upon the Dactyloscopic sheet ranked upon Galton-Henrymethod For each fingerprint there is a set formula mono-1 andmono-2 recorded in a basic form and then put on punch cardsThey receive a serial number are read and processed by computerand stored on tape Similarly traces of offending are classified asfully as possible the data obtained being written on an array ofresearch Simultaneously the basic condition of trace is determinedusing a code The data are processed into the computer on punchcards and compared with those of the impressions gathered ontape after an appropriate situation Comparison results arerecorded in an automated minutes

2 The system proposed by H Thiebault is based on topographicreveal and envisages schematic representation of fingerprintcharacteristic points simply by tracking their relative position on a

6 Ionescu L Sandu D (1990) The Forensic Identification Bucureşti Ed Ştiinţifică


83

plane Two prints will come from the same finger if images ofrepresentative points overlap ie if the configuration of therdquo cloudrdquoof singular points of fingerprint misconduct can be found in anypart of the ldquocloudrdquo of points much larger more complete footprintof the uncertain origin Selectivity can be significantly increasedfurther by comparing the orientation of the tangent to the papillaryline The fingerprints comprising data bank are obtained byshooting with a camera specially designed for objects with a tumidsurface7

3 The IMDOC system is based on registration data in a selectiveaccess memory It uses the descriptions of cues modus operandi andcases but also in dactiloscopy Information items are calledldquodocumentsrdquo Information is found by reference to words indocuments so each word is considered a search element Theldquowordrdquo is defined as an alphanumeric chain of letters In the fieldof fingerprints they are operating with nine types of drawingspiniforme springs simple radial loops cubital simple loops specialloops circular designs ellipsoid drawings composite drawingsamputations and destroyed drawings Numbering provides the keycode to the various types of drawings representing their qualitativevalue The number of lines representing the quantitative value isdetermined by three factors the size of the nucleus the thicknessand spacing ridge crests Quantitative value is determinedaccording to certain rules and expressed by four figures As a rulequantitative value is independent of quality except for the springswith the value 0000 Piniforme spring height value is expressed inmm In computing the quantitative value is split into two parts thefirst two digits form section A and the last two section B It isadded each personrsquos fingerprint registration order date of birthcivil registration number and number of tape and of film

4 The Japanese computer system automatically detects features(stops and bifurcations of the papillary ridges) which puts them inmemory and compares them To detect features computer considersfingerprint as an image whose X and Y axes have origin in thecenter of the image that kernel footprint Each particularcharacteristic is defined by the distance from the two axes and thedirection indicated by the angle which the axis X forms Thecomputer then establishes the relationship between the number offeatures growing between them The position direction andrelationship features are translated into numerical data The

7Triebault B (1970) Procčde Automatique de Reconnaissance des Empreintes

Digitales in laquo Revintpolcrim laquo no234


84

machine detects an average of 100 features on the image of a fingerMisconduct impressions are subject to automatic reading Inputspeed is about 15 seconds to a finger 15 seconds to decadactilarsheet and 6 seconds for a latent trace The comparing speedbetween two finger impressions is 13 milliseconds Specifically thedevice compares the position direction and reporting features andwhen it finds similarities it selects pairs of identical features Whenthe number of individuals sighted in the form of pairs exceeds thenumber prescribed the owner creates a state according to what is inmemory making it to rotate or move the footprint coordinate axesdrawn Then it is calculated the degree of similarity between twocomparing fingerprints features and it is determined their degree ofagreement

5 The AFIS (Automated Fingerprint Identification Systems) systemincludes computer equipment that sweeps a finger Automaticallywe get a charted geometric representation of papillary ridges(shape direction details) Spatial relations are translated intobinary code and computer algorithms investigated Thefingerprints of good quality are carefully coded about 90 for eachfinger The latent one provides less detail but the system can workonly with a scanning part of the map establishing correspondencewith a definite impression on the average of 15-20 items Animportant advantage of the system is the possibility of cleaningrdquofragmentary prints by filling gaps due to blood coverage and dirtcaused by scarring and burns On the other hand the system is ableto assess the quality of fingerprints and to disqualify those unableto identifyThe computer does not compare the images of fingerprints but

makes a list of mathematical research which shows fingerprints likehaving a binary code similar to the criminalized one This research isconducted by an AFIS system component called ldquomatcherrdquo whosecapacity is 500-600 fingerprints per second The matcher can work inparallel so that they can use more matchers each working with some ofthe data bank Time is several minutes at a volume of up to 500000 clearimpressions about half an hour to the latent one In order to determine themathematical correspondence the computer uses a numerical system Afingerprint technician defines the parameters of research and sets anumber of criteria to ensure sufficient input for obtaining the necessarygender identity Based on search parameters the system reads the list ofequality ie fingerprints (finger) ldquocandidaterdquo to have created the one onissue A big number indicates identity as possible to a small number theprobability is low If all candidates are inferior to the number of inputthen it is likely that the mark is sought not to be in the system As a


85

precaution against mistaken identifications there are provided certainsafeguards Thus for latent prints with few details of value thecomparison will be made mandatory with at least 3-5 clear fingerprints

Although extremely powerful the AFIS system like any othersystem does not give the final decision Only an experienced eye will beable to decide whether there is identity between the mark sought and thatproposed by the computer

On the whole issue of computer forensic use we must emphasizewithout any reservation the huge benefits offered by up-to-date datastorage and their retrieving for volume accuracy and speed of operationsare far beyond human possibilities

References

Colectiv (1978) Forensics Practical Treaty Bucharest EditorialService IInd vol

Colectiv (1978) Dictionary of Philosophy Bucharest Ed PoliticaErikson SA Jorgensen J (1979) Recherches drsquoEmpreintes par

Ordinateur in laquo Revintpolcrim raquo no 300 Gayet J (1961) Manuel de Police ScientifiqueGobot E (1937) Traiteacutee de Logique Paris Libraire Armand ColinIonescu L Sandu D (1990) The Forensic Identification

Bucureşti Ed ŞtiinţificăTriebault B (1970) Proceacutedeacute Automatique de Reconnaissance des

Empreintes Digitales in laquo Revintpolcrim laquo no234


86


87

UNPREDICTABLE IN THE NEW ROMANIAN CIVIL CODE

Simona Petrina GAVRILĂ

AbstractContracts affected by a suspension term and the one with successive execution

can be subject during their execution to circumstances which were not foreseen and couldnot be foreseen by the parties when they have completed and which may affect the value ofbenefits to which they have been obliged The unpredictable theory allows a debtor who isin a situation caused by drastically and unpredictable changing of economiccircumstances from the execution time of the contract against conclusion time of the willcontract of the contracting parties to prevent the loss that would arise if he would be heldto perform this obligation

With the title of novelty the new Romanian Civil Code consecrates theinstitution of unpredictable in art 1271

1 THE CONCEPT OF UNPREDICTABILITY

For contracts that require a running time such as successiveexecution contracts or the one affected by a suspension period it ispossible that the occurrence of certain events prior to the closing of thecontract would lead to an imbalance to the detriment of any party of thecontract usually to the detriment of the debtor The debtor will not be ableto perform the obligation under the contract but not because it isimpossible but because the performance of the obligation will put thedebtor in a very difficult economic position even bankruptcy Specificallywe are in the presence of an excessive onerous of the debtorrsquos obligationwhich he has not taken into account when contracting

Unpredictability or hardship is the contractual stipulation whichallows the change of the contents of a contract when during its executionsome events occur that affect the contractual balance substantiallychanging the facts and data that the parties took into account whencontracting creating for one party onerous consequences in carrying outtheir duties that would be unfair to bear alone It is essential that theseevents occur or occur without fault of any of the contractors as much asthey would have been reasonable and prudent they would not have beenable to foresee at the time of closing the contract

PhD Lecturer Faculty of Judicial Social and Political Sciences ldquoDunărea de Josrdquo

University of Galati Romania Email gavrilasimonapetrinayahoocom


88

The hardship clause is a creation of the Anglo-Saxon practice itsuse by the parties joining in the prevailing trend of insurance of thestability of foreign trade contracts by promoting legal mechanisms toenable them to adapt to the dynamic market situation In the light of newlegal techniques the content of the contract is never final it may be calledinto question by the complex process of renegotiation of any disputesimagined by the parties

Regarding the concept of unpredictabillity most authors agree thatit is a matter of economic and financial (services offered to the creditor inperforming the contract does no longer correspond to the actual value ofthe counter performance the unpredictable is related to the currency) Thecause of the imbalance is an event external to the debtorrsquos person and willwhich does not lead to an impossibility of performing the obligation butonly makes it more onerous although not being sure it is necessary thatthe event be unpredictable or meaning that it was unforeseen Adiscussion on the unpredictable nature queries if the event itself musthave been unpredictable or just the effects of the economic balance of thecontract (the event seems predictable but its consequences have exceededthe projections) as well as if the unpredictability must be assessedobjectively or subjectively (depending on the contractor)1

J Ghestin supports that the theory of the unpredictable is foundedon a wrong postulate it focuses on the cause of a phenomenon while theeffect produced on the balance of the contract must be essentiallyconsidered as unbalanced objective of the services question the fullmaintainance or the contract review and not the occurrence of a new andunpredictable circumstances In this sense we can say that there isunpredictability if the price of a good or of a service set in an agreementno longer corresponds to its value objectively appreciated by the judgeplacing us at the moment of performing the contract2

If the laws of some states are specifically dedicated to the theory ofthe unpredictable (eg Italian3 Greek4 or Portuguese5 law) this institution

1 Gabriel Anton Theory of unpredictable in Romanian law and in the compared law ndash

Law Magazine no72000 p 252 J Ghestin p 345 qtd by Gabriel Anton in op cit p 253 Art 1467 and Art 1468 of the Italian Civil Code which provide that the continuous or

periodic performance contracts and those with different performance if the service of aparty became too onerous as a result of an extraordinary and unpredictable events it

may request termination of the contract together with the effects provided by art1468(ldquoreducing the service or changing the methods of execution allowing the continuation

of such executions according to equityrdquo) Termination shall not be required if new tasksfall in the normal risk of the contract The party against whom termination is requested

can avoid it offering to accept the equitable amendment of the contractrsquos conditions4 Art 338 of the Greek Civil Code also provides the termination or revision of the contract

on change of circumstances according to the good faith principle


89

has not been until recently unitary regulated in the Romanian law withonly special legislation authorizing the judge to review an ongoing6

contract or which enable updating the damages7In the United Nations Convention on international sale of goods

contracts stipulates that

A party is not responsible for the failure of any of his obligations ifhe proves that such failure is due to an impediment independent ofits will and that normally was not expected to take it into accountwhen closing the contract to prevent it to overcome it or to warn itor overcome the consequences If the failure of a party is due to thefailure of a third party that it has been instructed to execute thecontract in whole or in part this part is not exempt from liabilityonly if when it is exempt under the preceding paragraph when thethird party would itself be exempt if the provisions of thisparagraph would be applicable for him The exemption providedby this article shall take effect during the duration of theimpediment The party which has not executed its obligation mustwarn the other party about the impediment and its effects on itsability to perform If the warning does not reach the destinationwithin a reasonable period starting from the moment when theparty which did not execute knew or should have known theimpediment it is liable for compensation for damage caused by thislack of reception The provisions of this article shall not prohibit aparty from exercising its rights other than to obtain compensationunder this Convention

2 THE THEORY OF THE UNPREDICTABLE PRIOR TO THECIVIL CODE

5 Art 437 of the Portuguese Civil Code (1966)6 Law no81996 on copyright and related rights art 43 para 3 provides that ‟if there isa clear disproportion between the remuneration of the authorrsquos work and the benefits of

the one that has obtained property rights transfer the author may seek judicial bodies toreview the contract or increase the remunerationrdquo7 Law no 1121995 on the legal situation regulation of properties destined for housing

owned by the state (art13 para1) Law no102001 regarding the legal status ofproperties confiscated during the March 6 1945 - December 22 1989 (art10 para6 art11

para2 and art12 para2 art19 para1 art32 para4 and art44 para2 and 4) emergencyGovernment Ordinance no1842002 amending and supplementing Law no102001

regarding the legal status of properties unlawfully seized during the March 6 1945-December 22 1989 as well as for establishing measures to accelerate its application and

the emergency Government Ordinance no942000 regarding the returning of real estateswhich belonged to religious cults in Romania approved with amendments and

completions by Law no5012002 (artI para1 from title II)


90

Even in the absence of express legal consecration of theunpredictable in the Romanian legislation its necessity has been stressedby many academic commentators who have attempted to argue formingvarious theories

Rebus sic standibus theory The main argument is set in thegrounds of probable will interpretation of the parties who will contractwith an implied condition namely that a certain stability in the economicsituation In any contract must be presumed that there is a clause that theobligations of the parties remain unchanged only for as long as theconditions contemplated by the parties at the closing of the contractremain unchanged If these conditions change radically the obligations ofthe parties can not remain unchanged As long as socio-economicconditions or the ones that existed in the moment of creation the willagreement have changed drastically we can say that this is not inaccordance with the will of the party at the time of closing the contract

It is thus assumed at the time of closing the contract someeconomic stability during the performance of the contract presumptionmanifested under an implied condition of an implied clause on which theparties based the will to contract This clause is called rebus sic standibusclause (goods clause unchanged realities)8

The theory of good faith and equity The obligations must beexecuted in good faith and in accordance with equity (art 970 of the CivilCode) The person who claims his contractor a service which becamedisproportionately large due to unforeseeable causes unrelated to the willof the parties does not lie in the realm of good faith

There was also an appeal made to the obligation of loyalty thatexisted between contractors the creditor must in the name of good faithrenegotiate the contract which became unbalanced

In the Romanian law it is considered that you can only appeal togood faith for the interpretation of ambiguous and doubtful contractterms not in the situation of precise terms in which is stipulated thecontract price9 However this opinion should not be extended to casesrelated to the theory of the unpredictable In case of contracts to which thetheory of the unpredictable applies although the contract terms are clearthey still must be interpreted according to good faith and equity

The theory of unjust enrichment Forcing a party to the executionof a service which became more onerous would result in unjustenrichment of the other contracting party Although the enrichment of the

8 Radu I Motica Ernest Lupan General theory of civil obligations LUMINA LEX

Publishing Bucharest 2005 p 749 C Hamangiu I Rosetti ndash Balanescu Al Baicoianu op cit p 518 quoted by Cristina

Zamsa Theory of unpredictable Annals of Bucharest University no 12003 p 95


91

other party is due to the terms stipulated at the closing of the willagreement during the performance of the obligations arises economic andfinancial circumstances which are in favor of the creditor and in disfavorof the debtor circumstances leading to the ruin of the debtor and to theenrichment of the creditor

The theory of the cause If after the closing of the contract theservice balance was broken one of the services will not have the causebecause the service is unequivalent

The theory of the abuse of rights Although the party has the rightto demand the execution of the conditions stipulated in the contract itimproperly exercises its right if in this case it economicaly ruins thecontractor

Theory of force majeure The circumstances that cause seriousimbalance between services are objective unforeseeable unavoidable andoutside the will of the parties so that they can be considered cases of forcemajeure The cases of force majeure may lead to termination for inability toperform the obligation of one party Fluctuations in prices are the essenceof economic life and closing a contract with execution in the future theparties have consciously assumed the risk of these fluctuations Such a riskis more or less random It ruled out the existence of a rebus sic stantibusclause in contracts which would be implied Itrsquos about the occurrence ofevents that the parties have not foreseen so have not shown anywillingness regarding them

The rebus sic stantibus clause could be presumed at least in thedebtorrsquos intention of products and services but not in the one of thecreditor According to art 977 of the Civil Code the interpretation of thecontract is the common intention of the parties and in this case also lacksa common will because the common intention of the parties is that ofexisting a balance between counter performance intention resulting fromthe contract if we consider the moment when the contract was closed

Among other authors we consider that the theory of theunpredictable is to recognize as implied in contracts of omnis conventiointelliguntur rebus sic stantibus clause according to which if between themoment of closing the contract and the time of execution unforeseenevents have occurred that have fundamentally changed the economicconditions or when other nature existing in the moment of the initial willagreement of the parties making noticeably sluggish performance of oneof them the principle of binding force of contract no longer act judicialbody having the right independently of the existence of a clause in thecontract to that effect to precede to the replacing of the contract


92

depending of new circumstances or alternatively to terminate thecontract and appropriate removal of the debtorrsquos liability10

CURRENT LEGISLATION

Currently Article 1271 of the new Civil Code with the marginal

name ldquounpredictablerdquo provides that(1) The parties are required to perform their obligations even if theirperformance has become more onerous(2) However the parties are obliged to negotiate in order to adaptor terminate the contract if performance becomes excessivelyonerous for one party because of a change of circumstancesa) which occurred after the closing of the contractb) which could not be reasonably considered when closing thecontract andc) regarding to which the aggrieved party shall not bear the risk ofoccurence(3) If within a reasonable time the parties do not reach anagreement the court may ordera) adapting the contract to distribute equitably between the partieslosses and benefits resulting from changing the circumstancesb) termination of the contract at the time and the conditionsestablishedrdquo

We observe that the Romanian legislature has not indicated thescope of the unpredictable respectively types of contracts where thecontractual balance could be broken We appreciate that contracts affectedby a suspensive term and those with successive execution will fall underthis category and only they can be subjected during their execution tocircumstances which were not foreseen and could not be foreseen by theparties when they closed a contract and which may affect the value ofservices to which they have committed11 This assessment is supported bythe lawrsquos requirements that changing circumstances have occurred afterthe closing of the contract and that the aggrieved party will not have tobear the risk of occurence

10 Dragos Al Sitaru International Trade Law ndash Treatise vol II ACTAMI PublishingBucharest 199611 For example a supplier that is committed by contract with successive execution todeliver specific quantities of products in exchange for a fixed price set per unit payable

on delivery of product will see increased value of its obligations if an increase in prices isdetermined by the inflation without being able to claim the contractor the additional

difference in price


93

Considering the fact that in case of contracts with immediateexecution the obligation must be carried out immediately we are notunder the incidence of the unpredictable Thus if the service is performedimmediately there will be no material time in which the events that willlead to breakage of contractual balance can occur In case the debtor of anobligation is late in performing it and the adverse consequences ofbreaking the contractual balance occur in its heritage he will have to bearthis risk due to his fault in executing the contract according to legalprinciple nemo auditur propriam turpitudinem allegans Finally in case thecreditor of the obligation will be harmed by the failure of the other partyto fulfill its assumed obligation he may request appropriate defaulttermination of contract or moratory interest on compensation

As the pre-contract is a contract an agreement under which theparties establish the essential conditions of the contract undertaking toconclude at a later date we appreciate that it may also fall within thescope of the unpredictable

The clause of the unpredictable does not apply to cases when theparties have inserted indexing terms (binding of an economic value toanother economic value while maintaining the real value of contractualobligations) in their contract which will vary in price depending on theevolution of a particular chosen index Inserting such a clause means thedisposition by the parties of the possibility for reviewing the contract incertain circumstances and the judge approached for this purpose will onlyapply the contractrsquos dispositions thus fulfilling its binding force

Related to the scope of the unpredictable it imposed the analysis ofpossibility that under its incidence to enter also the random contracts Atfirst glance it might seem that since in this category of contracts are notknown with certainty from the moment of closing the contract theexistence or extension of rights the parties have not provided acontractual balance which makes them not fit to enter in the scope ofunpredictable Closer analysis reveals however that the unpredictableexists in cases where the cause of breaking the contractual balance couldnot reasonably be taken into account while that element is alwaysconsidered but it is not known if or when it will intervene

Consequently it results that the random contracts may fall withinthe provisions incidence regarding the unpredictable except the purelyspeculative contracts such as stock transactions12 For example if a lifeannuity contract the moment the rentier creditor died is unknown andalso the period for which the life annuity is owed but the amount ofregular services is known If however after the closing of the contract and


Law Magazine no72000 p 27-28


94

after the transfer of ownership the currency in which the annuity is paidundergoes a rapid and strong depression we are in the obvious situationof the unpredictable and the contract has to be modified

Regarding the importance of the imbalance created we see that it isnecessary that the economic circumstances to create an imbalance of acertain severity which can be determined by the judge who will

determine whether performance has become bdquoexcessively onerousrdquo Theseeconomic circumstances must put the debtor in a very difficult economicposition even bankruptcy but we do not consider that the potentialfailure is the only situation that would attract the application of the theoryof unpredictable

The debtor may be in a position in which the execution of theobligation even if it would not entail its bankruptcy would cause greatdamage Such situations should attract the application of the theory ofunpredictable the criterion which should be considered is the one relatingto the disequilibrium between the partiesrsquo services and not the effectswhich would occur if the debtor executes this excessive onerousobligation

Although the law does not expressly state we consider that theparties will be able to stipulate themselves the limit at which it is assessedthat the contractual imbalance is broken as they can through their willagreement make inapplicable the provisions relating to the unpredictablethus supporting with anticipation the fluctuation possibility of the servicesowed

Naturally the contracting parties are first asked to amend thecontract to maintain its goals and economic and social environment or toestablish its termination From article 1271 para 2 results that they have anobligation of measures namely to negotiate any failure of the negotiations

or their failure to complete bdquowithin a reasonable timerdquo causing thepossibility of referral to court

Although the law does not set a maximum time limit on these

negotiations indicating them just as bdquoreasonablerdquo we consider that itsestablishment should be made in concreto taking into account issues suchas the complexity of the contract to be adapted the distance between theparties and the means chosen by them for communication

We observe that legal rules do not require the debtor of theobligation which has become excessively onerous to notify the creditorabout the change of the conditions in a specific term but given the factthat he bears the risk and that the solutions which can be adopted areprimarily the contract modification or its termination both withconsequences for the future we consider he will be the first interested toinitiate renegotiation any state of passivity being contrary to his interests


95

But if the solution adopted is to terminate the contract together withrepayment of services according to the dispositions provided by article1322 of the Civil Code the creditor held for this repayment will not haveto bear the consequences of passive attitude of the debtor

Although the legal provisions relate only to the possibility that theparties determine the amendment or termination of the contract weconsider that in fact they may agree for example to suspend the contractfor a certain period of time or may proceed to a novation by changing apart combined with interest on compensation or with a change ofobligations which clearly exceeds the resolutions given by the legislatorwhich involves only the contracting parties

If the parties fail to reach an agreement within a reasonable timeeither because they have opposing views or because of excessive durationof negotiations the debtor of the obligation which has become excessivelyonerous as a person interested in resolving this issue may apply to thecourt authority asking either to adapt the contract to distribute equitablybetween the parties losses and benefits resulting from changingcircumstances or termination of the contract

Typically the judgersquos intervention is claimed to redress a contractwhich due to the imbalance between the services occurred after itsconclusion could lead to economic bankruptcy of the debtor

Of course with the introduction of the action he will have to provethat he tried to solve the dispute in an amicable manner by inviting theother party to negotiate We consider that where necessary in commercialcases the notification seeking negotiations or minutes registering thepartiesrsquo position will be able to replace the evidence of compliance of theprior procedure of conciliation

Considering the fact that sometimes between the moment ofinvitation to the negotiations and the time of the action can pass a lot oftime we consider that the applicant may request the modification ortermination of the contract from the date of invitation to negotiations

According to paragraph 3 of the same article bdquothe judge can decideeither to adapt the contract to distribute equitably between the partieslosses and benefits resulting from changing circumstances termination ofthe contract at the time and conditions established by himrdquo Although thelegal text suggests that the judge may decide alternatively for the twomeasures being retained only by the principle of availability we considerthat on the principle of legal stability he could decide the termination ofthe contract only if the amendment is not possible or when both partiesoppose the change

The modification of the contract that the court ordered will have totake into account the necessity for equitable distribution of losses and


96

benefits resulting from changing circumstancesThis means that they willnot be able to modify certain terms and penalties for delay and that thesolution will be to consider the amount of duties and obligations set fromthe beginning For example if the change is devaluing the paymentcurrency it might consider the exchange rate to a stable currency from themoment of closing the contract If breaking the contractual balance wasdue to excessive growth of raw materials the price of finished productshould be reflected in this growth Finally if the cost of goods deliveredvaried a lot it should be considered the index of growth as a fractionbetween the average market price at the moment of closing the contractand from the moment when the settlement of the case took place

If the court will decide the termination of the contract dependingon the nature of the assumed obligations it will be able to decide thereparation of the prejudice and reimbursement of the services according tothe dispositions of article 1323 in reference to article 1639 and thefollowing of the Civil Code

CONCLUSIONS

Compared to previous concerns of the doctrine and the need toadjust the contracts to subsequent economic realities that were notenvisaged by the parties the legislator intervention by adopting the newCivil Code rules for the unpredictable is welcome

However it would be useful if the drawing of the law text wouldhighlight the need to adapt the contract to new economic conditions withpriority and only in subsidiary o the termination of the contract

Of course it remains as true evidence of how the legal regulation ofthis legal institution is to be made by jurisprudence after the new CivilCode will enter into force


97

THE LOGICAL DYNAMISM OF A JUDICIAL TEXT IN THEDOMAIN OF JUDICIAL INTERPRETATION

Claudia ANDRIŢOI

AbstractThe sign is subject to any interpretation with priority emphasis on the word the

ldquosign of signsrdquo and it can ldquospeakrdquo about all the words in words but also semioticbecause words translate significant relevance to all the other signs Interpretable are notonly books but also gestures sounds tastes tactile impressions smells everything thataffects intentionally one or another of our senses Such passages can be found if takenliterally absurd unnecessary or contradictory requiring other methods to complete theinterpretation of a text claiming a specific method of interpretation

Comparison and interpretation modalities are diverse bringing into light a seriesof senses the historical sense the analogical sense the etiologic or factitive sense thetypological sense that search for resemblances and analogies between successive eventsthe parabolic sense involving an update of the text meanings by sending to anotherreferential situation analogical to the given announced situation and updating theinterpreted text so that it fits to the nature of the legal rule

Keywords judicial arguments coherence meaning multiplication principlesmethodology

JEL Classification K1

1 INTRODUCTION

The knowledge of sign meanings contained by the legal rule allowsthe familiarization with the competitive interpretations ndash acceptablecredible or false in relation with the agreed rule A proper handling of artinterpretation in law involving deciphering the true meanings of the legalrules represents the necessary tool for the interpret The reason disciplinesorder judgments and arguments so that the interpretations seem bothconsistent and persuasive (Djuvara 1994)

Meaning interpretation may be legal and extension with apolyvalent it relies on a combination of an internal text and the infinitelyexistential situations which allows an updating of the message It canmultiply and is achieved in different but complementary not exclusiveunderstandings It is necessary to have an adjustment between themeanings or levels of interpretation so that the performer knows that thetext definitively established should not be out the significance of its

PhD Lecturer ldquoEftimie Murgurdquo University of Resita Email candritoiuemro


98

simple through a juxtaposition of hermeneutics with its firstinterpretation

In all cases the result of the interpretation must contain answers forjustifying the principle according to which the interpretation is madebecause even the Constitutional provisions must be justified Thereforewithin the legal doctrine lies the disclosure of its meanings

2 THE EXIGENCY OF CONTINUITY OF THE JUDICIALINTERPRETATION EXERCISE

It is necessary to proceed systematically under certain rules ofinterpretation setting a firm methodology for the text to disclose as muchas possible of its semantic resources Mastery of such rules depends on theperformance of the legally interpreted text The capture of the meaningdepends decisively on the ability of a performer who is offering thefreedom to submit to numerous methodological limitations

How does success or successful interpretations can be proved If itresists the ldquoverifyingrdquo proof (ie one and the same thesis may not becontradicted by one or another passage of the same paper) theinterpretation will become lawful and promoted as such The methodtherefore requires the interpreter to rediscover what they already knowTheir competence is apparently repetitive and depends essentially on theway previous themes are problematic underlined and refined

It is necessary to discover the diachronic size of the utterancealongside with the history of the discursive events Interpretation mustunearth and also investigate the archaic origins of the meaning of a textThe exegetic approach involves effort knowledge method and reflectionThe meaning of the text should not be inherited but found by knowingthe doctrine and legal practice supported by assiduous and intuitiveldquocriticismrdquo

Starting from these expectations a methodology of legalinterpretation in a systematic pattern is setting up Exegesis of theinterpretation text is subject to a hermeneutic frame which regulates therelations between the textual premises and existential conclusionsbetween prime formulations and semantic translations It searches into thetext for traps and for exploiting all the possibilities Therefore there is nogenuine autonomy for decoding but yet no ldquocensorshiprdquo that bans theproliferation of interpretation The method (interpretation) intended tostrongly circumscribe the processing ways of hermeneutics so that theenrichment technology to be accessible without necessarily guarantee theaccessibility of the heuristic time

Interpretation involves four steps


99

1 historical investigation to establish what must be learned aboutthe texts (mistakes copies involuntary or premeditated errors themoment of writing its unit the veracity of the facts and evidenceauthenticity critics provenance comprehension and credibility)

2 establishment of the concepts involved in interpretation3 discovery and knowledge of previous legal doctrines4 general application of the facts to particular situations (eg

conflict resolution in the text)In contrast the hermeneutical text analysis involves seven

methodological steps1 reading of the legal text submitted to interpretation first and

then of its summary2 reporting to casuistry3 research into the historical process of becoming the rule of law on

the vertical scale using the historical method4 research using the horizontal comparison with similar texts or

with similar rules - prospective research5 exegesis of the context is achieved by using the Grammar method

involving multidisciplinary research identification of text meaning and ofobscure meanings

6 investigation of the possible objections to the used judgmentscontradictions being clarified using the dialectical method

7 showing of the arguments and exemptions with the finalobservation of the general principles and proposals for ferenda law whichinvolves reporting to the current text

The logic of the text is dynamic and can be redefined according tothe chosen perspective of interpretation Normalization is always done inrelation to the meaning of the text so as to limit the approximations andthe arbitrary Exercises of interpretation should be done continuously andwithout limits in terms of getting results respecting the principle ofaccuracy so that every utterance is clear exact without margins ofuncertainty Although interpretation is considered a form of alteringoriginal semantic richness it is intended to give unity and coherence tocombine elements into a well-articulated system to associate the text withits character and the corresponding existential significance

3 BASIC PRINCIPLES REPRESENTING THE SOURCE OFPOSITIVE LAW

The general theory of interpretation (cf Emilio Betti) is structuredaccording to three main requirements developing rules of hermeneuticsdesigned as a general deployment of principles that allow theconfiguration of a specific methodology in hermeneutics critical


100

hermeneutic philosophy inspired by Heideggerrsquos Sein und Zeit One of themerits of the Italian teacher outlined in this text is his seeking to bringorder in an area seemed doomed to sidestep intentions of any settlementunder logic fates and do that systematically

The objective law in force requires from generic compliancerecipients to respect its abstract general and impersonal rules whichregulates typical behavior invoking a rational basis for values andprinciples

Beyond the specifics of each branch of law and default of particularaspects of legal interpretation the law has through its integrativeorganization a unitary character which should provide or ensure theuniform application of the principles techniques and interpretation of therules a whole regulatory system The rule of positive law private andpublic imposes because it is a social rule constituted on an idealbackground order and social peace However this ideal is involved in thevalues and principles made by those who interpret them Moreover this isforeseen in the legal process of deontology (Millard and Troper 2000)

Once assumed the method of legal interpretation stops speculationpointing at argument demonstration It is associated with the workingperspective drawing principles policies strategies tactics and techniquesdesigned to discipline the effort to shorten the road to an end It respondsto a need for order to avoid speculative waste improvisation andargumentative superficiality or logic incoherence But is only one goodapplication of the method enough (Popa Eremia and Cristea 2005) Doesit support the lack of talent or the depth of the interpreter Does it ensureon its own the performance of a text We cannot answer these questionswithout defining the method as a form of science knowledge that issystematic based on firm rules (Kant 1995) Therefore the stakes arealways the emphasis on the critical interpretation of the wording becauseif there is no thesis there is any rationale any demonstration any wayany response or resolution The problem requires at least three issues howthe interpretation is made (the solving) how to reach a result (thedemonstration) that is the way to solve (Mihăilă 2005)

The focus should be placed on reflection in surprising the laws theinternal connections and not on the inductive generalization observationand experiment

The positivism of Auguste Compte and John Stuart Mill leavesroom for several assumptions first methodological monism or the idea ofunity in the diversity of objects of scientific inquiry proposes an ideal or astandard methodology for other sciences including human rights andscience and finally the effectiveness of causal explanation that consists ofthe subordination of individual cases to law valid including humannature (von Wright 1995)


101

The second position is antipositive called hermeneutics reclaiminga particular type of intervention in the claimed areas of interest Themethodological function of legal hermeneutics makes this science an art ofcomprehension that is differs from the pattern that applied to other lawwhere an efficient work of causal explanation is done Whereas othersciences generalize the legal hermeneutics individualizes

The difference is the methodology namely the binder betweenexplanation and understanding (Riedel 1989) So we have on the onehand the nomologic science which shall hypothetical and constructivelyand on the other hand hermeneutic sciences (history-descriptive)oriented towards the interpretation of what happened then describingevents and individual actual states Meanwhile there is a methodologicalawareness of legal hermeneutics articulated under the law system Thisrelates to the past by using the historical method so that comprehensivemethods can divide its own but can understand it objectively

These issues urge us to ask if we can bring into question thefoundations of a general theory of interpretation and what that would beEmilio Betti was the one who first formulated such an ambitious idea andbrought the way to shorten the time between legal and validating them

Since 1954 an ambition to be recognized as a bdquoreformerrdquo and thedetermination to reduce and remove speculative chaos inside anincreasingly required discipline urged him to lead a discussion about thefundamentals of a general theory of interpretation Zur Grundlegungen

einer allgemeiner Auslegungslehre is presented in a bdquomanifestordquo whichalready announced the main themes of hermeneutics themes developed ayear later in his Teoria generale della interpretazione (1990)

Of course these observations should be considered shaded on thebasis that the positive law is a human product and lies in doubt invicissitudes in precariousness more or less to the extent that they rely onnatural law passed through the sieve interpretation legislature (Mihai2008) The rule of law is involved and leads in turn sociologicalpsychological and political meanings more or less transparent Thesemeanings are historic and are revealed through the fundamentalprinciples as the merits of any positive law The general principles aredistinguished by the fundamental principles and legal interpretation butthey all are part of a positive legal order (Bergel 1989) They are objectiverules of law not of natural law expressed or not in legal texts but applied

by the practice of law equipped with a character bdquosuffisant de geacuteneacuteraliteacuterdquo inorder to be considered principles (Bergel 1999)

What does Bergel refer to when he considers the principle character

bdquosuffisant de geacuteneacuteraliteacuterdquo Although there are rules of law principles areprinciples because of the generally sufficient character distinguishing


102

them from other rules of law which are not principles because they do nothave this character But if the principles are considered as rules thatwould mean they have the same three part structure as those but nointernal logical structure as the rules do J Festenbert considers theprinciple as a body of rules unified by a guiding idea with a sufficientlyprecise wording so as to justify a relation of subordination (Festenbert1976)

On the contrary B Jeanneau says that the general principles cannotbe treated as any written law neither custom nor law practice (Jeanneau1954) Other authors consider the principles as binding rules of law ofState valid and penalty without stating through what definition the legalprinciples have these characteristics but notes that they are subject of thisThat means that the principle of equality before the law is subject to thelegal issues before the law in order to ensure equality unlike the standard

bdquoif the witness statements are false it is sanctionedrdquo It says in theory thatthe principles are of State as the rules which are not principles whichmeans that each state establishes its principles of law resulting that thereare any fundamental principles of law

If a legal rule is contained in one or more legal texts then it meansthat we get it through deductive interpretation because the rule and itslanguage expression is not the same Or when we say that a certainprinciple is involved in regulatory texts we cannot distinguish it from therules In this case the proximity of the kinship degree between the heirs ofthe same class is a rule that has exceptions (representation) while if itwere a principle its exemption would not make any sense while it brings

into light not binds bdquoIn the matters of legal conclusion of the civilian therule or principle is the ability to conclude civil acts incapacity being anexceptionrdquo - says the doctrine but it requires the following questionexception of the rule Or exception of the principle How can it be a ruleand also a principle the capacity to conclude civil legal acts A similarsituation is met in the current legal code where legal proceedings (art 2para1) and truth searching (art 3) are basic rules whereas the penaldoctrine considers them principles (Pfersmann 2001)

Nobody says that the law is an idea inferred or induced bysomeone in a particular circumstance because it would bring confusionbetween the statements of a certain reality with reality itself A statementis lawful if it refers to a necessary objective and essential relationshipwhich always exists in relationship to other entities Once the law is called

a bdquoprinciple the angle on it is changed because a legal statement is basedon a principle character only when it guides brings into light or directsthe actions of people


103

The principles of positive law are not necessary or regulatory butarise as formulated rationality and are considered in the joint that being aguidance of building legislative and case-law rules Between a principleand its formulation the distance is always emphasized because thewording is contingent and related to various socio-historical and politicalconditions The principle talks in forms and this translates it

Hence the sense principles of interpretation to serve as a guide ininterpreting the law and business orientation legislature Applyingvarious provisions the judge reads them in their spirit Identifying theapplied principles and materialized by law the judge may avoid suchinconsistencies contradictions indecision in the completion andjustifications In this lies the difference because rules from regulationsapply and cable the principles and researching the rules we find insidethem the principles

The definition of the term (ie legality fairness responsibility) asthe statement of principle has the purpose to disclose the legal natureLegal terms are not understood by themselves do not become available tothe good sense of anyone the statement of principles does not return towhat happens as a situation Defining a term has the legislature authorityor has the legislature or the judge being accepted also the doctrinarianauthority that proposes another meaning In law things with principlesare worse because it is not a principle what is decided by a legislative orlaw authority that would be although in practice such deformities happen

as in the phrase bdquothe legal content of principlerdquo given that it could be thereare principles with illegal content or from the content of a principle wecould detach a legal sense as well an illegal one

CONCLUSIONS

In reality the principles of legal interpretation although based onthe principles of logic kept rationality interpretation which involves logicbut is not limited to it because it involves complementary and systemiclegality A legislature adopts rules only by virtue of guiding ideas whichgives unity and a systemic character thus avoiding contradictionsinconsistencies and gaps Then in the implementation of the law the legalcase maker does not only appeal in certain situations to these principlesbut also tries to step over the surface of legality entering justice thatsupports legality a fact that increases the responsibility of the judge (Terri2001)

Consequently the most difficult problem for a judge is to establishstep by step the case facts that they judge by analyzing and evaluating theevidence given in order to discover the truth


104

The legal truth results from the joined objective law interpretationof normative texts - interpretation of the law - and middle or immediateinterpretation of the facts in their general or concretefactualinterpretation Therefore each fact should according to the rule of truthbe interpreted as much as possible according to the reality of its time ofhappening without subjective distortions of those interested or involvedin the case

The interpretation of the positive law as a perspective of justiceprinciple serves the human on the one hand and on the other hand thisinterpretation may relate to the entirety of a positive law or to one of itscomponents ndash a legal law (the Constitution an organic law an ordinanceof Government) a legal act a legal proceeding (Kelsen 2000)

The justification is not the same with legitimating the meaningtension between these two terms has decisive practical consequencescontaining different intentions and normative action reasons In any casethe court order has justification not legitimacy but the judiciary has thelegitimacy to rule the state itself

The principles of interpretation are transpiring in probation at thecourts of law they could be detected in the substrate of each phase of thelegal proceedings and in the decisions of judicial bodies On the statementof any significant practical principle depends the activity of theestablishment of laws (Craiovan 1998) The decisions of these bodies mustbe legal that is be granted to the appropriate formally sense of principlesThe judge can issue himself principles in solving cases because the lawdoes not prohibit him to do so In addition it is claimed that manyprinciples are found in the substrate of rules which would be deducted bysome analysis Sometimes these principles are so general that they arequalified as fundamental essential for the industry legal body indicated

Setting the concrete fact on the balance of justice that would moldthe law generic and abstract and then connecting them means applyingthe law of which the truth founds and the law justifies The court of law isan official subject with formal rights and obligations in this regard itdecides the final solution left to express the factual truth and justice lawtogether establishing what we described by the phrase ldquolegal truthrdquo

REFERENCES

Bergel JL (1989) Methodes du droit Theorie generale du droitLGDJ Paris

Bergel JL (1999) Theorie generale du droit LGDJ ParisBetti E 1990 Lrsquoermeneutica come metodica generale delle scienze

dello spirito Saggio introduttivo scelta antologica e


105

bibliografie a cura di Gaspare Mura Cittagrave Nuova EditriceRoma

Djuvara M (1994) Teoria generală a dreptului Editura All Beck Bucureşti

Festenbert J(1976) Recherche sur la notion juridique de specialitedes personnes publiques Paris

Heinrik von Wright G (1995) Explicaţie şi icircnţelegere EdituraHumanitas Bucureşti

Jeanneau B (1954) Les principes generaux du droit dans lajurisprudence administratif LGDJ Paris

Kant I (1995) Logica generală Editura Ştiinţifică şi EnciclopedicăBucureşti

Kelsen H (2000) Doctrina pură a dreptului BucureştiMihăilă Marian (2005) Tratat de drept internaţional public Vol II

Editura BREN-VISPRINT Bucureşti pp468Mihai GhC (2008) Fundamentele dreptului Probarea icircn dreptul

pozitiv volumul VI Editura CHBeck BucureştiMillard E Troper M (2000) Les theories realistes in Analele

Facultăţii de Drept din Strasbourg seria a IV-aPfersmann O (2001) O Arguments ontologique et argumentation

juridique icircn Raisonnement juridique et interpretation ParisPopa N Eremia M C Cristea S (2005) Teoria generală a

dreptului Editura All Beck BucureştiRiedel M (1989) Despre teoria şi istoria ştiinţelor hermeneutice

Editura Dacia Cluj-NapocaTerreacute F (2001) Introduction generale au droit Paris


106


107

THE COMMUNICATION RIGHT AND THE LEGALRELATIONSHIP BETWEEN CENTRAL PUBLIC

AUTHORITIES AND PUBLIC COMMUNICATION

Oana GĂLĂŢEANU

AbstractCommunication is the transmission and reception of information between various

subjects through certain means As one of the meanings of social psychologycommunication is the mechanism by which human relationships exist and evolve Thecommunication right plays an important and complex role in relationships These rulesare submitted by the impersonal time and space messaging to organize social relationsand maintaining relations communities organized state Establishes and guarantees theright of communication content of those messages mainly service based on thefundamental human rights and freedom of expression and free access to information Thislaw regulates public aspects of communication modes and types independenttransmitting and receiving The communication of legal topics is diverse and can beachieved by individuals and legal entities such as individual persons media agenciespublic authorities The study presents central authorities in their capacity as subjects oflegal relations of public communication

Keywords communication public communication public authority publicinterest

I General aspects of communication and communication law

Communication is the transmission and reception of information onvarious topics by some means It can take place directly or indirectly in apublic or private space over a longer or shorter period of time immediateor for an indefinite period It is made between more or less determinedpersons

The communication process has become very complex and has seenmany changes related to the subject content and quantity of theinformation the technical means of transmission and time and space

The amount of information is very high the time that they can betransmitted almost instantaneous the number of subjects transmiting andreceiving can be very high and only national borders are barriers tocommunication


University of Galati Romania Email OanaGalateanuugalro


108

Over time more and more aspects of communication were subjectto legal provisions that mention them as part of the content quality andeffects of information Thus for example only the message sent by aprivate letter concerns the right to secrecy whereas the informationtransmitted by means such as the radio the television the press areregulated by the law in terms of accuracy objectivity and their effect onthe receiver

Right expresses complex communication relationships The rules oflaw are submitted in a diffuse and impersonal messages time and spacemessages that are necessary to structure social relations and to maintainlinks between organized communities of the state

Citizens is the kind of behavior must have in certain situationswhat to do or not do The legal relationship is a relationship ofcommunication based on an impersonal message that legal standardforward it as an expression of objective law However in terms of timeregardless of the changes that may occur the right retains a certainautonomy and continuity ensuring the transmission of messages that arerelated to the essence

Along with its strong relationships emphasized transformationsunder the influence of communication science and technology haveemerged and national and international legal provisions This is thecontext in which law necessarily requires the demarcation of a distinctdifferentiated from other branches of the legal system

The communication right is (therefore) a recent right still intraining both in terms of theory and in terms of principles and rules

The legal regime of various communication activities distinct fromthe beginning now tend to approach which allows a gradualconfiguration of a public law unit

The communication right is composed of rules and principlesgoverning the relations of public broadcasting and the content ofinformation through written messages images audio and otherlanguages and their receipt at a public indefinitely

One of the features of this law is represented by the fact that itlegislates (governing) public aspects of communication regardless of themeans and ways by which the transmitting and receiving is achieved(printing Internet multimedia)

Professor E Derieux believes that the communication right is topublic notice all activities through writing picture sound or any otherform of signs contributing to disclosure of facts ideas knowledgefeelings opinions

The leading content of the principles of public communication ismainly based on the fundamental right to the freedom of communicationThese principles are set out in international documents and constitutional


109

and legislative provisions and are 1 pluralism and impartiality 2correct objective and in good faith character 3 independence andfreedom of communication 4 equal rights of broadcasters to transmitinformation and of individuals to receive it 5 transparency in the publicdissemination of information 6 access to justice

The legal aspects of communication are complex and can beprovided for several categories of rules some from other branches of law

The subjects of these legal relationships are diverse and can berepresented by individuals and legal entities namely individual personsgroups organizations associations parties public authorities agents andthe public communication media (which may be for example legal statusof companies)

The quality of the legal subject of communication is provided andrecognized by law as follows the Romanian Constitution on states inrelation to a personrsquos right to freely access public information publicauthorities the mass media (public and private) - among the importantsocial and political groups public television and radio services otherspecial laws (the Law on the organization and functioning no 411994the Romanian Radio Broadcasting Corporation and the RomanianTelevision Society republished and amended by Ordinance no 712003and Law nr 4692004) provide those authorities whose public messagesmust be sent compulsorily and freely primary public radio and televisionbroadcasting such as the Parliament the president of Romaniarsquos SupremeDefense Council the government

The Law on free access to public information 5442001 as amendedby Law no 3712006 defines the authority or institution as any authorityor institution that uses or manages public financial resources anyindependent director a national company and any company under theauthority of a permit or local government and the Romanian state or asthe case may be an administrative territorial unit as the sole or majorityshareholder All the laws require the authorities to ensure access toinformation through specialized departments of information and publicrelations whose duties are set by laws and regulations on the organizationand functioning of those authorities

The law on transparency in government decision specifically statesthat public authorities are covered as central public administrationauthorities ministries other central government bodies subordinate to theGovernment or ministries public services and decentralized theirautonomous administrative authorities local authorities county councilslocal authorities mayors institutions and services of local or countypublic


110

Public authorities covered by the disclosure law requirementsimposed by some law that requires transparency and public access toinformation regarding their work

II Romanian central public authorities issues of legal rights andobligations related to communication

The Parliament in carrying out its functions as the supremerepresentative body has a series of legal relationships that impose rightsand obligations regulated by both constitutional and administrative lawsand communication laws

Its main function is represented by the law-making activityHowever entry into force is subject to public notification The RomanianConstitution stipulates in article 78 that ldquohe law is published in the OfficialGazette and shall enter into force 30 days after publication or at a laterdate provided in its textrdquo

The Parliament is the central topic in other areas of regulatory lawsrelating to public relations communication because it is the sole authorityto issue laws (constitutional organic or ordinary) and the most importantareas of communication organic laws are adopted An example is theorganization of the public radio and television which is provided by anorganic law Also the communication within public relations andregulations are theirs by ordinary laws

Another function of the parliament is appointing investingdesignating public authorities and this exercise devolved powers inrelation to communication (eg the 11 members of the NationalAudiovisual Council an autonomous public authority underparliamentary control are appointed by the Parliament)

Generally the Parliament is an institution with opencommunication that carries out its work transparently (its meetings arepublic with the exception of some which under certain circumstancesestablished by regulations are secret)

In fact the Parliament is bound by the constitution to be ademocratic institution to perform its work in a transparent manner thereare provisions to this purpose in the operating rules of the Chamber ofDeputies (the preparation of minutes during meetings drafting of pressreleases at the end of the meetings the office of the Commission a weeklypublication in the Official Gazette Part II summarizing the issuesdiscussed the voting on articles and bills)

Representatives of the press the radio and the television as well asother guests and citizens (on the basis of passes) may be present at thepublic meetings of the Board of Deputies

The Parliament has


111

- a direction for press and vision (the Chamber of Deputies) with aduty to present a daily press review by members of the PermanentBureau the parliamentary group leaders and chairpersons of the standingcommittees

- a direction for public relations (the Chamber of Deputies) whichaims to professionally and transparently communicate real and timely toall interest information for public the actions of legislative activity of theChamber of Deputies and the General Secretariat to the media the NGOrsquosthe citizens This directorate consists of three services and two centers 1)documentation and imaging service 2) multimedia service 3) the servicefor public information and relationship with the civil society and 1)educational center 2) television and publication center

Of all the components mentioned the service for public informationand relationship with the civil society is a specialized compartment of thePublic Relations Department the one who provides public information onall individuals in the current work of the Chamber of Deputies and ofDeputies according to Law no 5442001 It systematically presentsinformation to the public and to the representatives of the civil societyand is intended to enhance effective communication with them

The President of Romania is a central public authority who has theobligation to ensure the compliance with the requirements of goodcommunication and functioning of public authorities including those withresponsibilities in relation to public communication The RomanianConstitution stipulates that the president acts as mediator between thestate and the society this role cannot exclude other personsinstitutionsthat are under the obligation to communicate Among the Presidentrsquosduties is the one to propose candidates for the governing bodies of certaininstitutions with responsibilities in public communication (eg heproposes two members of the National Broadcasting Council whereas theChambers of the Parliament propose one candidate for the Board ofDirectors of the Romanian Company for the Radio and Television Society

A form by which the President of Romania may require citizens toexpress their will on matters of national interest is the referendumHowever the decrees of the President are notified by publication in theOfficial Gazette

The organizational structure includes the PresidentialAdministration and a Department of Public Communication These have aduty to promote the views of the President to release the documents andmessages media analysis and monitoring run a page on the Internetmake documentation activities This department is headed by thePresidentrsquos spokesperson and is divided into three sections 1) theDepartment for relations with the media events accreditation 2) theDepartment for assessment of communication 3) the Department for web


112

site management documentation library All these chapters are aimed atefficient and effective communication with the citizens regarding issuesthat are considered public

The government is an institution which generally can accomplishtasks in the sphere of communication by regulatory decisions that itselfissues relating to law enforcement and more rarely through ordinances(but fewer given that the communication relations are governed byorganic laws for the most part) Its judgments and orders are published inthe Official Gazette In order to achieve a communication with the publicthe citizens the General Secretariat of the government is set up as aservice of public relations and media It is requested by the publicinformation on inter alia statements of assets and interests foundations orassociations of public utility government spending budgetary allocationspublic information requests from other institutions or public authoritiespublic administration public finance matters of the revolutionaries andwar veterans

The judicial authority is formed according to the RomanianConstitution of the High Court of Cassation and Justice the courts thePublic Ministry and the Superior Council of Magistracy The High Courtof Cassation and Justice ensures uniform interpretation of the law of othercourts and appeals in the interest on which it is pronounced they arecollective acts which may be subject to public access to information orfreedom of expression and other problems with public communication Toestablish a link with the public and the mass media to ensuretransparency of the judicial work in accordance with legal requirementsthe High Court of Cassation and Justice has created an Office ofInformation and Public Relations headed by a judge designated by itspresident who is also spokesperson for the task This Office works underthe Regulation on the organization and the administrative operation of theHigh Court of Cassation and Justice and among them are those related toreceipt and processing of public requests for information providinginformation to journalists about the public works of the High Courtensuring whenever the work of the High Court of Cassation and Justiceregards the immediate public interest the dissemination of press releasespress conferences briefings interviews

A new structure in the judiciary also referred to by the Rules oforganization and running of the High Court of Cassation and Justicerepublished in the Official Gazette Part I no 107630112005 isinformation-documentation of the High Court of Cassation and Justicewhich operates within the Office of Information and Public Relationsspokespersonrsquos control under the direct authority of the vice-president ofthe court This point supports the time required to solve claims relating topublic information


113

According to the Rules for the application of Law no 5442001 onfree access to public information the Office for Information and PublicRelations prepares an annual report on the number of legal requests theirscope the decisions that the High Court of Cassation and Justice hasruled on legal advice or interpretation of laws on personal data of thejudges of the High Court etc

The Superior Council of Magistrates is a constitutional body withthe role of guarantor of judicial independence It also has an Office forPublic Information and Media Relations whose duties are to respond torequests and complaints made under Law no 5442001 in relation to theiractivity to inform the President on issues that are significant in terms ofjustice communicated through mass media and the President to themedia official points of view The Chairman is informed about thepossibilities of solving those problems posed by those being received inaudience by collaborating when appropriate with other departmentstogether with information and public relations offices of the courts andprosecutorsrsquo offices or with their carriers on issues of common interestdraft press releases dealing with the issues of interest for the Council andorganize press conferences whenever Plenum departments or the deputypresident deem necessary make or participate in the completion ofstudies evaluation synthesis papers to highlight the Councilrsquos work in themedia make predictions about aspects of Council activity to be shown inthe media The Office for public information and relations with the mediacarries on business and spokesman of the Council with certainresponsibilities stipulated in Law no 5442001

Also information and public relations offices are set up within thecourts organized under the Regulations of procedure of those courtsTheir role is to maintain the connection with the public and the massmedia in order to ensure the transparency of the judicial work andoperate with advisers on information and clerks appointed by the courtpresident All to fulfill the duties they have as the ratio of publiccommunication issues the courts and no longer have public relationswhich is available to those interested in information material inducementHowever the access of the public in the meeting rooms is strict (30minutes before the opening of the hearings) the compartments with thepublic activities working after a particular schedule and hearing hours

Conclusions

In society in addition to spontaneous communication that weencounter in the field of human relations there is a communication to thepublic for the dissemination of messages that are considered of generalinterest The latter form of communication requires a certain mindset and


114

actions specifically provided by law This is public communication whose

scope is determined by reference to the term bdquopublic interestrdquo Fulfillingthe public interest is achieved by the state public institutions theprerogatives and duties of which are determined by legally andconstitutionally

The communication right is one that includes rules and principlesrelating to public relations for the transmission of information and theirreception by the public Public communication occurs whenever it comesto applying a rule the conduct of proceedings a decision publicSatisfying the public interest requires transparency for which publicnotice must make known the existence of people organization operation functions of public institutions legality and appropriateness of decisionsPublic communication should help to discover the public interest the civiceducation of citizens and public support to carry out actions it mustemphasize the significance of certain actions and attitudes of the publicinstitutions and help establish connections with those for which publicaction is taken and the effects of which influence their behavior

Public authorities as subjects in the report as a communicationmust respect peoplersquos fundamental right to freedom of expression whichincludes their right to accurate information provided objectively and ingood faith and transparency in the public dissemination of information

References

Victor Duculescu Legal protection of human rights Lumina LexPublishing House Bucharest 1994

Nastase Maria Georgescu Communication right UniversityPublishing House Bucharest 2009

European Convention on Human Rights


115

UNDERCOVER INVESTIGATORS THE SCOPE OFCRIMINAL LIABILITY

Mihaela AGHENIŢEISilviu JIRLĂIANU

AbstractArticle 2241 and the following of the current Criminal Code regulate the use of

undercover investigators the legislator establishing the criminal offences for whichundercover investigators may be used as well as the scope of practice of suchinvestigators

However the legal text does not state expressly that the actions and potentialoffences performed by an undercover agent while investigating a transgressor do notconstitute offences or contraventions this fact being only presumed as the investigatoracts upon the decree issued by the Prosecutor in charge with the case in question

This omission has been remedied by the regulations of the new Criminal Code(adopted by Law 135July 1 2010) which came into force on October 1 2011

Thus in chapter IV ldquoSpecial supervision or investigation techniquesrdquo art 148and the following stipulate that ldquothe activities for which the undercover investigatorreceives authorisation shall not be considered contraventions or offencesrdquo The legalprovisions also include concrete situations which do not constitute offences as long asthey are related to the developing investigation such as the use of certain writs or objects

Keywords undercover investigator special investigation techniques scope ofcriminal liability

The increasingly diversified practices used by lawbreakersnowadays required a fast response from authorities who had to adoptlegal dispositions which entitle police officers to find evidence to besubmitted to prosecutors and judges in order to determine the guilt of thetransgressor

Of course undercover investigators are not used for crimes inwhich evidence can be found by means of usual methods for research andidentification of defining elements which would lead to the ultimate goalof the criminal trial - calling the lawbreaker to account

The use of an undercover investigator is a special investigationmethod because in many cases the so-called classical investigationmethods are obsolete or can only lead to a partial fulfilment of the goal of

Lecturer Prosecutor Brăila Court Prosecutorrsquos Office Email m_agheniteiyahoocom PhD Judiciary Police Deputy Marshal the National Anticorruption Directorate Galaţi

Territorial Department


116

the criminal trial the discovery of truth and the involvement of thelawbreakerrsquos criminal liability

Therefore acknowledging the special quality of a certaininvestigation in which undercover investigators are used the legislatorspecifically designated the crimes for which undercover investigators canbe used in evidence finding

Consequently with reference to the preliminary actions performedby undercover investigators Article 2241 paragraph 1 of the Code ofCriminal Procedure stipulates that ldquoIf there are solid and concrete signsthat an offence has been committed or is to be committed against nationalsafety stipulated in the Criminal Code and in special laws as well as inthe case of drugs or weapons trafficking human trafficking terrorism actsmoney laundering counterfeit of currency or other values or in the caseof an offence provided by Law no 782000 for the prevention discoveryand punishment of corruption deeds with the subsequent amendmentsand supplements or in the case of another serious offence which cannotbe discovered or whose perpetrators cannot be identified by other meansin order to gather data on the existence of the offence and on the identityof the suspects investigators may be used under a different identity thanthe real onerdquo

One can notice that an undercover investigator may be used in theinvestigation of offences with special impact on the city and strong impacton the citizen namely corruption crimes drugs and weapons traffickingterrorism acts money laundering etc

Naturally the safeguarded social values are not essentiallydifferent only the investigation tactics is more difficult to achieve in thecase of extremely dangerous crimes and therefore investigationtechniques require special methods as lawbreakers become more andmore specialised their methods are more sophisticated and their deedsresult in significant profits

However the question is which is the scope of action ofundercover investigators

The answer is given by the law the undercover investigator onlyacts with the motivated authorisation of the Prosecutor (article 2242 Codeof Criminal Procedure) The individuals regulated by article 2241 canperform investigations only with the motivated authorisation of theProsecutor who carries out or monitors prosecution The authorisation isgranted by motivated decision for a period of 60 days at most and can berenewed for duly justified reasons Each renewal cannot exceed 30 daysand the total duration of authorisation for the same case and regarding thesame individual cannot exceed one year In the application forauthorisation addressed to the Prosecutor there shall be specified the dataand the clues concerning the facts and the individuals deemed to have


117

committed an offence as well as the dates for which the authorisation isrequested

The Prosecutorrsquos decision authorising the use of the undercoverinvestigator must include in addition to the mentions stipulated in article203 the following

a) solid and concrete signs which justify the measure and the reasonsfor adopting the measure

b) the activities that can be performed by the undercover investigatorc) the individuals deemed to have committed an offenced) the identity under which the undercover investigator will develop

the authorised activitiese) the authorisation datesf) other mentions provided by the law

In urgent and dully justified cases authorisation can be requestedfor other activities than the ones already authorised the Prosecutorrsquosgiving his immediate verdict

Article 2243 which refers to the use of data obtained by undercoverinvestigators stipulates that the data and information obtained byundercover investigators can only be used in the criminal case and inrelation to the individuals specified in the authorisation issued by theProsecutor

These data and information will be used in other cases or in relationto other individuals provided that they are relevant and useful

The provisions of article 2242 paragraph 2 letter b of the Code ofCriminal Procedure which specify the activities to be developed by theundercover investigator are relevant for the analysis of the scope ofpractice of the undercover investigator of course they are expressly statedin the decree issued by the Prosecutor of the case in question Thereforehe is the only one who can grant to a police officer the legal ldquoprivilegerdquo toconsciously engage in criminal activity

One can notice that the enforceable legal provisions do not stateexplicitly that the supposed criminal activity of the undercoverinvestigator is allowed and the deed will not be subject to criminalinquiry It is presumed that the investigator acted upon the order of theprosecutor who monitors case investigation therefore a criminal act isonly allowed in order to identify and call the real lawbreakers to account

This omission of the legislator was eliminated by the new Code ofCriminal Procedure Chapter IV ldquoSpecial supervision or investigationtechniquesrdquo article 148 regulates the use of undercover investigators andparagraph 6 states that the activities for which the undercover investigatorreceives authorisation shall not be considered contraventions or offences

Also article 150 which regulates ldquothe discovery of a corruption oragreement conclusion crimerdquo stipulates in paragraph 3 that ldquothe activity


118

of the individual who takes part in the discovery of a corruption oragreement conclusion crime shall not be considered provocationcontravention or offencerdquo

It is also specifically stated that the use of certain writs or objectssubmitted to an investigator only for the purpose of the action does notconstitute an offence This provision refers to special writs or objectswhich cannot be normally accessed or used by everyone

We wonder how could be treated the actions of the undercoverinvestigator which exceed the scope of the Prosecutorrsquos decree We mustrefer here to the technical and tactical training of the undercoverinvestigator who must always act on the authorisation granted by theprosecutor and for the purpose of the decree that is for identifying theevidence and the perpetrators and for involving the criminal liability ofthe investigated individuals

If the investigator has not been authorised for a certain criminalactivity he will be held responsible for it because he is not covered by theProsecutorrsquos authorisation

However this matter is subject to interpretation for in manysituations in order to maintain his cover the undercover investigatormight be forced to commit an offence which presents low social risk inrelation to the criminal offence under investigation and to the safeguardedsocial values and under these circumstances his liability will not beinvolved

Furthermore provocation constitutes a situation in which anundercover investigator could obtain evidence by inducing the suspect tocommit the offence

Of course in such an undesirable situation the judge might cancelthe evidence because it was obtained without observing the legalprovisions

The scope of practice of an undercover investigator also takes intoaccount the provisions of article 68 of the Code of Criminal Procedurewhich states that ldquoIt is forbidden to use violence threats or other meansof constraint as well as promises or incentives in order to obtain evidenceIt is also forbidden to induce someone to commit or to continue theperformance of a criminal offence in order to obtain evidencerdquo

We will present certain decision of the European Court of HumanRights concerning the use of undercover investigators in police actionsdrawing our attention to instances of provocation Thus

- Teixeira de Castro v PortugalThe use of undercover agents must be limited and guarantees must

be granted even in the cases of fighting against drug trafficking publicinterest not being a justification for the use of evidence found by means of


119

provocation In this case the Court does not contest that the interventionof police officers took place as part of an operation against drugtrafficking ordered and supervised by a judge however thecircumstances of the case reveal that the two police officers did not limitthemselves to a passive examination of the criminal activity but exerted acertain influence which led to the perpetration of the crime The action ofthe two police officers went beyond the scope of action of an undercoveragent and their intervention bereft the plaintiff of a fair trial ab initio anddefinitely (European Court of Human Rights Decision of June 9 1998wwwechrcoeint)1

- Edwards and Lewis v UKIn order to determine whether the defendant was the victim of an

illicit provocation by the police the national judge had to examine acertain number of aspects especially the reason for the organisation of thepolice operation the nature and extent of police participation to crimeperpetration the determination or pressures made by the police As theplaintiffs were denied access to certain evidence they could not provebefore the judge that they had been induced by the police to commit thecrime Under these circumstances the Court appreciates that theprocedure which had been followed for establishing aspects related toprovocation observed neither the requirements for guaranteeing thecontradictory nature of the proceedings neither the equality of arms noguarantees being provided for the adequate protection of the plaintiffsrsquointerest and therefore article 6 of the Convention was breached (EuropeanCourt of Human Rights Decision of October 27 2004 sect 46wwwechrcoeint)2

- Ludi v SwitzerlandWhen the undercover agent was not properly confronted with the

accused in any stage of the proceedings neither him nor his lawyerhaving the possibility to interrogate the agent or to question hiscredibility the Court considers that this fact could have taken into accountthe legitimate interests of police authorities in complex cases such as theones concerning drug trafficking preserving the anonymity of the agentfor his protection and also the defendantrsquos right to a fair trial (EuropeanCourt of Human Rights Decision of June 15 1992 sect 28-30 in C Birsan

1 George Antoniu Adina Vlăşceanu Alina Barbu HAMANGIU CODES CPP The Codeof Criminal Procedure Hamangiu Publishing House p 2482 Opcit p 248


120

European Convention on Human Rights Comments on articles Vol IRights and Liberties All Beck Publishing House Bucharest 2005 p 520)3

In our opinion the foregoing account supports the amendmentsbrought to the Code of Criminal Procedure by Law 135July 1 2010which represent a guarantee for the observance of fundamental rights andliberties of any individual who might be subjected to investigation thelegal proceedings ensuring thus the right of every person to a fair trial

REFERENCES

The Code of Criminal Procedure of RomaniaThe new Code of Criminal Procedure (Law 135 July 1 2010)Law no 1432000 on the prevention and control of drug trafficking

and illegal consumption with the subsequent amendmentsand supplements

Law no 782000 for the prevention discovery and punishment ofcorruption deeds with the subsequent amendments andsupplements

Law no 6782001 on the prevention and control of humantrafficking with the subsequent amendments andsupplements

Law no 6362002 for the prevention and punishment of moneylaundering as well as for the enforcement of certainmeasures regarding the prevention and control of terrorismfinancing with the subsequent amendments andsupplements

Law no 392003 on the prevention and control of organisedcriminality

The Criminal Code and the Code of Criminal Procedure withamendments and supplements Hamagiu-BucharestPublishing House 2007


George Antoniu Adina Vlăşceanu Alina Barbu HAMANGIUCODES CPP The Code of Criminal Procedure HamangiuPublishing House 2009

3 Opcit pp 248-249


121

EUROPEAN POLICIES ON HUMAN TRAFFICKING

Nadia Elena DODESCU

AbstractAt European level the issue of human trafficking is part of the justice and home

affairs domain being a component of combating organized crime Politically it can besaid that since 1986 human trafficking is a different theme in the domain of justice andinternal affairs ever since the European Parliament began adopting measures regardingwomen generally speaking and more particularly regarding women trafficking

However the human trafficking became more of an issue for the European Unionafter a decade when the Commission publicly announced her first conclusions on thematter Ever since at European institutional level a series of policies legislation andfinancial schemes have developed which made the prevention and combating of humanbeings trafficking a more important theme

Keywords European Union human beings trafficking cooperation in thedomain of justice and home affairs The Treaty of Maastricht European cooperationEurojust and Europol

The legislation and institutional framework in Justice andInternal Affairs

According to article 249 TEC the community legislativeinstruments are the regulations directives decisions recommendationsand opinions Recommendations and opinions are not binding and do notestablish rights or obligations to those whom they are addressed Themandatory community measures are therefore the regulations which arebinding on all Member States and are directly applicable the directiveswhich are binding only on results and leave the Member States theopportunity of chosing the means to achieve results and the decisionswhich are mandatory on whom they are addressed

JHA legislative instruments characteristic broad which as will beshown below do not belong to the Community sphere but to a separatepillar are different in shape and nature of the formal instruments of theCommunity Thus article 342 TEU after the amendments made by theAmsterdam Treaty lists the following tools that the Council may adoptcommon positions defining the overall EU approach in one respectframework decisions which are mandatory as to the outcome leaving

PhD Lecturer Faculty of Law Tg-Jiu University Titu Maiorescu Bucureşti Email

nadia_dodescuyahoocom


122

Member States the choice of methods to achieve those results which areadopted solely for the approximation of laws decisions which aremandatory but with no direct effect adopted in other respects than theharmonization of Member States legislations and conventions that arerecommended for approval by Member States in accordance with theirconstitutional requirements which must be ratified by nationalparliaments In addition to these tools the Council may use theresolutions recommendations or declarations which are devoid ofbinding are informal and flexible but it is an effective means ofexpression of political will

Cooperation on justice and home affairs (JHA) has undergone aninteresting evolution from rather modest beginnings to a more dynamicand complex policy Cooperation in this area engages Member States inefforts to define the European policy on migration asylum policecooperation and judicial cooperation The sensitive nature of these issueswhich together constitute the field of JHA have made progress andcooperation in this field to be slow and difficult process often involvingpolitical compromises and special arrangements when taking decision

The Treaty of Rome (1957) did not foresee cooperation in the JHAand the institutional issues which further defined the relevant market wasan ad hoc working groups represented in areas that would laterdistinguish themselves as policy JHA1

The Treaty of Maastricht (1993) also known as the Treaty onEuropean Union (TEU) introduced the three pillars of the EU structurethe first pillar consists of the two communities (the European EconomicCommunity and the European Atomic Energy Community) the second ofthe Common Foreign and Security Policy and the third in police andjudicial cooperation in criminal matters Title VI brings JHA under theauspices of the EU treaty although maintaining a distinct character due tothe importance attached by Member States to the JHA issues Thus theprocedure for making decisions is complex and distinct from theCommunity method While the first pillar decision-making process startswith a Commission proposal to the Council which may adopt it modify itor ignore it and approval method is the community one when it comes tothe third pillar the Commission has no right to proposals it is theintergovernmental method JHA institutional framework as defined bythe Maastricht Treaty was the subject of criticism Due to the sensitivity of

1 The first group of debate at Community level less formal nature the Trevi Groupestablished in 1975 to jointly discuss the problems of terrorism especially following the

attacks on the territory of Member States in the 70s It follows the group of judicialcooperation the Customs Mutual Assistance Group and ad hoc groups on immigration

and organized crime


123

JHA issues and unwillingness of Member States to cede to the Communityany control on decisions regarding internal issues when it comes to JHAthe Maastricht Treaty provided high priority to Member States and to theEUs institutional structures directly involved The procedure for decision-making and the allocation of institutional roles as defined by the Treatydescribes a Commission lacking legislative proposal a parliament with anexclusive advisory role and a Court of Justice which is not recognized anycompetence in the field of JHA Moreover it does not provide for a thirdpillar legal instruments as directives binding on results and regulationswith binding and direct effect as it does for the community areas of thefirst pillar Although it is considered that the most important role is for theCouncil it can make decisions only by unanimous decision in this matterwhich leads to the risk of blocking the decisionmaking process Thismakes not at all risky the claim that in reality the Member States are inpart the main actor

Without doubt the first important step in defining the institutionalframework of the JHA and the EUrsquos capacity to take collective and bindingdecisions in this area is made by the Treaty of Amsterdam (1999) thatbrings in the first pillar of action Community part of JHA issues namelyimmigration asylum and external border control Cooperation in criminalmatters including terrorism organized crime human trafficking andcrimes against children arms trafficking corruption and fraud remain inthe third pillar However the treaty provides for a reallocation ofinstitutional roles according to which the Commission obtained a right oflegislative initiative that is shared with Member States the Parliamentobtained the right to be consulted and the Court of Justice was recognizeda limited jurisdiction to give preliminary rulings on questions of the thirdpillar being able to rule on important cases brought before nationalcourts

The Council remains the dominant decision maker and continuesto take decisions unanimously The Treaty does not alter the logic ofintergovernmental of the third pillar keeping procedures andintergovernmental agreement and unanimity rule We can say howeverthat the Treaty of Amsterdam opened the way for a more dynamic processfor cooperation on JHA The significance of the Treaty of Amsterdam istherefore a double one in the way of strengthening cooperation betweenMember States in the JHA area while generating an image of a fortressEurope type (Fortress Europe) in which the common policies on visas andexternal borders asylum and migration would restrict access

Finally an additional step to communization and greater flexibilityof decision making in the JHA area is achieved by the Treatyof Nice (2001) By a special clause it states that in areas which the Treatyof Amsterdam has left the third pillar the Member States which wish to


124

establish enhanced cooperation may require the Commission to submit aproposal

If it refuses the Member States concerned may themselves developa proposal that they submit to the Council for approval This is providedby a qualified majority after consulting the Parliament Enhancedcooperation procedure as introduced by the Treaty is intrinsically linkedto the theoretical acceptance of several speeds and diversity of EUMember States Moreover the reformulation of article 31 redefines thecommon action on judicial cooperation in criminal as follows

(1) Common action on judicial cooperation in criminal matters involvesamong others(a) facilitating and accelerating cooperation between competentministries and judicial or equivalent authorities of the Member States on mattersof procedure and enforcement of decisions including where appropriatecooperation through Eurojust (b) facilitating extradition between Member States(c) ensuring compatibility in rules applicable in the Member States to the extentnecessary to improve such cooperation (d) preventing conflicts of jurisdictionbetween Member States (e) progressively adopting measures establishingminimum rules relating to the constituent elements of criminal acts and penaltiesin the field of organized crime terrorism and drug trafficking

Allowing Member States to achieve closer cooperation betweenthem the treaty not only solves downtime decision making sinceunanimity proved most difficult times but also more flexible rules ofdecision making especially in view EU enlargement which would followthe entry into force of the Treaty with the admission of 10new Member States on 1 May 2004

Legal instruments and institutional framework at EU level

Existing EU legislative instruments are determined by the institutionalframework for this area and focus mainly on police and judicial cooperationin criminal matters As oted above criminal law is one which has remainedtributary to national sovereignty and cooperation between EU countries isonly at the beginning compared community policies However for MemberStates to improve cooperation in criminal matters several rules agreementsand treaties were adopted

The most important legal instrument for controlling human beingstrafficking is article 29 of the Treaty on European Union (TEU) Creating aspace of freedom security and justice which will be achieved by tacklingcrime has become the main focus of the third pillar Under article 29 theUnion is to provide citizens with a high level of safety within an area of freedomsecurity and justice by developing common action among Member States in police


125

and judicial cooperation in criminal mattersThe Treaty explicitly states that this will be done including through

the prevention of human trafficking and provides for a closer cooperationbetween police and judicial authorities Likewise it is explicitly mentioneduniform penal provisions of the Member States

Mention of human trafficking in article 29 of the Treaty makes allother legal instruments adopted to be based on this article of the TEU

In the prevention and combating trafficking of human beings themost important legislative steps are represented by adopting the CouncilFramework Decision of 19 July on combating human trafficking2 theapproximation of criminal laws of Member States Council Directive of 29April 2004 on the permit of temporary residence for victims of traffickingor who have been subjected to actions facilitating illegal immigration andwho cooperate with authorities3 and the Council Framework Decision of22 December 2003 on combating the sexual exploitation of children andchild pornography4 relating only in certain respects to human beingstrafficking At Community level have been adopted also other regulationsof horizontal importance matters relevant to human trafficking as far asthey enable and facilitate the implementation of legislation on this matter5

Council Directive 200481EC of 29 April 2004 on the residencepermit issued to third country nationals who are victims of humanbeings trafficking or who have been subject to an action to facilitateillegal immigration who cooperate with authorities6 is an importantmeasure in the context of acceptance of special measures for persons whoare victims of the phenomenon The Directive seeks to define theconditions and terms of issuance of a temporary residence permit for thirdcountry nationals who cooperate in the fight against human traffickingand illegal immigration (article 1) With regard to victims of crimes relatedto trafficking in a broader sense the directive provides that the measure ofissuing a residence permit to be made including those who have illegallyentered the territory of Member States (article 3 paragraph 1) Recognizingthe fundamental rights of the European Charter of Fundamental Rightsstated in the preamble is translated by the existence of a period ofreflection to allow victims to recover somewhat after the traumaticexperience and escape from the influence of traffickers (article 6) and alsoassistance measures to victims before the issue of a residence such asaccess to health care language assistance and free legal assistance (article

2 OJ L 203 of 1 August 2002 p 13 OJ L 261 of 6 August 2004 p 194 OJ L 13 20 January 2003 p 15 For example the Council Framework Decision of 13 June 2002 on the European arrestwarrant and transfer procedures between Member States OJ L 190 July 18 2002 p 16 OJ L 261 of 6 August 2004 p 19-23


126

7)2002629 JHA Council Framework Decision of 19 July 2002 on

combating human beings trafficking7 is the most important instrumentin this field As shown the framework decision is binding although nodirect effect and can be an effective tool to combat the phenomenon atEuropean level The act is adopted after the implementation of joint actionin 1997 failed the main reason being according to the Comision theabsence of a common denominator in the definitions and penalties in theUnion8 The text of the Framework Decision is largely based on the UNConvention Protocol without completely taking the approach of thatprotocol as it does not provide protection and assistance for victims

In conclusion it appears that the Framework Decision fails toregulate in a balanced manner on the one hand the obligations ofprotection and victim assistance in respect of which the decision is silentand the other hand requirements of criminal liability of offenders Apossible argument is that there should be a separate law governing thestanding of victims in criminal proceedings but the frame is a much toogeneral9 for the needs and special vulnerabilities of victims of humantrafficking In addition the Framework Decision does not address themain causes of the phenomenon of human trafficking such as povertysocial instability and marginalization without which the anti-traffickingarea is only one segment and does not have a prevention role as thererefers to cooperation with third countries of origin or transit

In the same context of combating all forms of trafficking andexploitation of persons 2000375JHA Council Decision of 9 June 2000 tocombat child pornography on the Internet10 is an important tool for childprotection

It should also be mentioned the Council Decision 200187EC of 4December 2000 regarding the signing on behalf of the European UnitedNations Convention against Transnational Organized Crime and itsProtocol on combating human beings trafficking especially women andchildren and smuggling of migrants by land air or sea11

At the institutional level through Council acts have been createdspecialized structures of police and judicial cooperation which have been

7 OJ L 203 of 1 August 2002 p 1-48 Joint action to eliminate human trafficking and sexual exploitation of children OJ L 063

of 4 March 19979 Council Framework Decision of 15 March 2001 on the standing of victims in criminal

proceedings OJ L 182 of 22 March 2001 p 1 In the same vein see and then actDirective 200480EC of 29 April 2004 on compensation for victims of crime OJ L 261of 6

August 2004 p1510 OJ L 138 of 9 June 2000 p 1-411 OJ L 030 of 1 February 2001 p 44


127

given specific powers to combat human trafficking in view ofstrengthening at European level these types of cooperation in criminalmatters The first European efforts to institutionalize cooperation in thepolice forces and discussion although at an early stage the jointdiscussion of issues related primarily to terrorism are embodied in theTrevi Group followed by the creation of a anti-Office Operations Europoldrug in 1994 By Act of July 1995 the Council adopted the Conventionestablishing the European Police Office12 Europol as amended by theCouncil Act of November 200313 which extends the powers of materialsother than drug trafficking crime Important is that the annex of theEuropol Convention contains the first definition of human trafficking as aform of crime Human trafficking is defined as submitting a person to areal and illegal sway of other persons by using violence or threats orreports of abuse of authority or manipulation in particular its exploitationof prostitution forms of sexual exploitation and violence on to minors ortrade-related abandonment of children These forms of exploitationinclude also activities of the production sale or distribution ofpornographic materials involving minors

According to article 1 and Annex 2 of the Europol Convention itaims to improve [] the police cooperation between Member States theeffectiveness of the authorities of Member States and cooperation betweenthem in terms of prevention and fight against serious forms ofinternational crime [] when two or more countries are affected in such away that Member States common action is essential []

Among the offenses specifically listed in that article for whichEuropol is competent under the conditions described above is includedhuman trafficking also forms of exploitation and sexual assault andtrafficking of children abandoned when the offense is transnational andtherefore are involved two or more Member States

Tampere European Council14 recommended the establishment of aEuropean structure for the coordination of judicial cooperation againstorganized crime A Council decision in June 2000 decided to establishEurojust which is ultimately established by Council decision in February200215 after its importance is mentioned in article 31 TEU amended theTreaty of Nice

(2) The Council shall encourage cooperation through Eurojust like this

12 OJ C 316 of 27 November 1995 p113 OJ C 002 of 6 January 200414 European Council meeting in Tampere on 15 and 16 October 1999 endorsed theprinciple of mutual recognition should become the cornerstone of judicial cooperation in

both civil and criminal matters within the Union15 Decision of 28 February 2002 establishing Eurojust Council to strengthen the

fightagainst organized crime OJ L 063 of 6 March 2002 p1


128

(a) enabling Eurojust to facilitate a good coordination between nationalprosecuting authorities of the Member States

(b) promoting support by Eurojust serious research on cross-border crimeparticularly in cases involving organized crime particularly in view of theanalysis carried out by Europol

(c) facilitating close cooperation between Eurojust and the EuropeanJudicial Network in particular to facilitate the execution of letters rogatory andthe implementation of extradition requests

Eurojust groups one representative of each Member State which isjudge prosecutor or police officer or has an equivalent professionalcompetence and in accordance with article 2 of Decision in 2002 ismandated to assist in the investigation of serious crime in which the legalassistance is needed Eurojust objectives defined in article 3 of thatdecision are to stimulate and improve cooperation between MemberStates in the prosecution and punishment of crimes and to facilitateinternational mutual legal assistance and extradition requests settlementIn the unlimited jurisdiction in article 4 of the decision is noted thatEurojust is competent in all types of crime and crime in which Europol iscompetent so various companies including human beings trafficking Inthe competence of Eurojust in May should be noted that in accordancewith article 3 it is limited by the fact that it may act only at the request of aMember State and provided that the potential offense involves besides theState making the request another Member State

The fact that Eurojust and Europol have no power to initiatecriminal procedures greatly reduces their chances of being effective inareas such as human beings trafficking which is a cross-border crimephenomenon

A common feature of both police and judicial structures is thatcooperation will depend on Member States and their willingness to sendthem the information they hold This can be a problem for the functionalefficiency of the two structures


129

WITHDRAWAL OF AGGRIEVED PARTYrsquoS PREVIOUSCOMPLAINT

Angelica CHIRILĂGeorge SCHIN

AbstractAccording to legal provisions in case of offences for which putting to motion the

penal action is performed following to the previous complaint of the aggrieved party thedismissal of criminal responsibility effects not only due to the lack of complaint but alsodue to its withdrawal

The withdrawal of previous complaint therefore dismisses the penalresponsibility being regulated in the provisions of article 131 paragraph 2 of the PenalCode The withdrawal represents the unilateral document of will of the aggrieved partythat comes back to the complaint performed according to the law until the convictiondecision remains final Accordingly the right to give up the exercise of penal action ofthe aggrieved party in these cases (ius abdicandi) can be exercised in any phase of thepenal case until the moment shown

The withdrawal of previous complaint has the same legal nature the samegrounds of penal politics and the same consequences as the lack of previous complaint

Keywords previous complaint penal action withdrawal of previous complaintaggrieved party

According to the legal provisions in case of offences for which putting tomotion the penal action is performed following the previous complaint ofthe aggrieved party the dismissal of criminal responsibility effects notonly due to the lack of complaint but also due to its withdrawal

The withdrawal of previous complaint therefore dismisses thepenal responsibility being regulated in the provisions of article 131paragraph 2 of the Penal Code The withdrawal represents the unilateralact of will of the aggrieved party that comes back to the complaintperformed according to the law until the conviction decision remainsfinal Accordingly the right to give up the exercise of penal action of theaggrieved party in these cases (ius abdicandi) can be exercised in any phaseof the penal case until the moment shown

PhD Lecturer Danubius University Galati Lawyer Email

chirila_angelicaunivdanubiusro PhD Student Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea de

Josrdquo University of Galati Romania Notary public Email schingeorgeyahoocom


130

The withdrawal of previous complaint has the same legal naturethe same grounds of penal politics and the same consequences as the lackof previous complaint

The other cause that dismisses the penal responsibility ndash thereconciliation of the parties ndash is a bilateral legal act that consists in thesettlement between the aggrieved party and the offender for the penalprocess not to start or in case it began to end it (art 132 of the PenalCode)

Although the withdrawal of previous complaint as well as thereconciliation of the parties are causes which dismiss the penalresponsibility for offences that set to motion the penal action by theprevious complaint of the aggrieved party actually between those twoinstitutions there are significant differences A first difference is that whilethe withdrawal of previous complaint produces effects in rem thereconciliation of the parties produces effects in personam Also thewithdrawal of previous complaint is a unilateral manifestation of willwhile the reconciliation of the parties presupposes a bilateralmanifestation of will between the aggrieved party and the offender

The withdrawal of previous complaint will produce legal effectsonly if the manifestation of will is real unequivocal and undetermined throughvices (false pretence or violence) In judiciary practice1 it is considered thatthe manifestation of will was obtained through false pretence as long as incase of a breach of trust the defendant promised to return the goodspreviously possessed and later on she did not keep herhis promiseAlso it must be formally declared it was admitted that it should bedetached from the assembly of the proofs administrated even though it isnot explicit

Moreover the withdrawal of previous complaint made through anauthentic declaration to this extent and expressed with unconstrained willis also admissible (Bulai amp Bulai 2007)

Previous to the changes brought to the Code of Criminal Procedureby Law no 3562006 the withdrawal of complaint could be also implicit ifthe person who made the complaint groundlessly missed two consecutivecourt hearings in front of the Court of the First Instance (art 2841 of theCode of Criminal Procedure) These dispositions did not apply when theaggrieved party was present at the trial and hisher representative waslegitimately missing two consecutive court hearings in the front of theCourt of the First Instance2

1 Bucharest city Court First Criminal Division dec no 19051983 in RRD no71985 p632 S Court Penal decision no 3321985 in RRD nr 121986 p 75


131

Any unequivocal manifestation of will of the aggrieved party (ie itdoes not follow to convict the defendant and consequently the solutionthat imposes is ceasing the criminal prosecution charges or ceasing thepenal trial) is assimilated to a withdrawal of previous complaint 3

The withdrawal of previous complaint must be total andunconditioned ie with regard to both the penal and the civil parts andtakes place before the decision of conviction becomes final

If in a penal case the aggrieved party withdraws hishercomplaint but asks to solve the civil action the withdrawal of previouscomplaint is conditioned and consequently the court should not decide tocease the penal trial and to reject as inadmissible the request to bind overthe defendant to civil compensations4

In specialized literature (Paicu 1998 Elian 1965) it was shown thatthe Court cannot acknowledge the withdrawal of previous complaint inanother case but the one submitted to trial this was also stated by thejudiciary practice5

A previous complaint represents a special manner to notify thecriminal prosecution authorities that condition only the criminal actionsymmetrically the withdrawal of previous complaint even in thehypothesis that civil claims were formulated has in view only the penalaction As a consequence having in view the provision of article 131paragraph 2 of the Penal Code which expressly provides that thewithdrawal of previous complaint dismisses only the penal responsibilitythe aggrieved party can further address to the civil court due to the factthat by withdrawing the previous complaint it is not considered thatheshe also gave up to the civil action This is the reason why in actuallaw according to article 346 paragraph 4 of the Code of CriminalProcedure the withdrawal of previous complaint justifies letting the civilaction unsolved by the penal court with the possibility that later on theprejudiced person can address to the civil court through a separate civilaction

The withdrawal of previous complaint for removal of penalresponsibility must take place regarding all participants and not onlyregarding some due to the fact that the previous complaint has anindivisible character and produces effects regarding all persons and notthe declaration of its withdrawal6 In case the aggrieved party wishes togive up the complaint regarding one or some participant(s) heshe has athisher disposal the institution of the reconciliation of the parties

3 Suceava county Court Penal decision no 3751983 in RRD no 71984 p 694 Sighetu Marmaţiei Court Penal sentence no 262-1974 in RRD no51976 p 605 S Court Penal decision no 11741982 in RRD no 51983 p 776 To the same extent CSJ (Supreme Court of Justice) Criminal Division Decision no

18891995 in Law magazine no 61996 p 114-115


132

operating in personam Also in order to produce the effects provided bythe law the withdrawal of previous complaint must be performed by allaggrieved parties that introduced the complaint because even if a singlecomplaint is maintained the penal responsibility is not dismissed (Bulai ampBulai 2007)

In case the withdrawal of previous complaint had intervened in duecourse ndash until the decision of conviction remained final ndash it producesirrevocable effects ie the aggrieved party cannot revert it or formulate anew previous complaint for the same deed

In what concerns the proceedings in case of withdrawal ofprevious complaint it is decided to cease the prosecution charges or thepenal trial According to article 13 of the Code of Criminal Proceduremodified by Law no 2812003 in case of amnesty prescription orwithdrawal of previous complaint as well as in case of existing anunsanctionable cause the accused or defendant can ask to continue thepenal trial and according to article 13 paragraph 3 in case it is notobserved any of the cases provided in art10 letters a-e the prosecutormust decide the ceasing of the prosecution charges except for the caseprovided in art10 paragraph 1 letter i when the court must decide theceasing of the penal trial

In case the aggrieved party withdraws hisher previous complaintand the defendant requires according to article 13 paragraph 1 of theCode of Criminal Procedure to continue to penal trial if it is found thatheshe committed the deed the court cannot pronounce the convictionbut it must decide to cease the penal trial according to paragraph 3 of thesame article7 (Volonciu amp Vasiliu 2007)

As against the previous complaint of the aggrieved party and itswithdrawal in case of other trial impediments (authorizing or notifyingthe competent authority or another condition provided by the lawnecessary in order to put to motion the penal action) its furtherwithdrawal does not remove the penal responsibility this not beingprovided by the law as cause of this nature (Theodoru 2008)

Bibliography

Bulai C amp Bulai B N (2007) Criminal law handbook General PartBucharest Universul Juridic Press

Elian G (1965) The aggrieved party in the penal trial BucharestScientific Press

7 S Court Penal section dec no 28101982 in RRD no 121983 p 104


133

Paicu A (1998 ) The authority of the case law in case of twoidentical previous complaints forming two penal cases notconnected to the same court Law magazine no 9 p p128

Theodoru G (2008) Treaty of Criminal Proceedings Law 2nd editionBucharest Hamangiu Press

N Volonciu amp Al Vasiliu (2007) Code of Criminal Procedurewith comments Art 1-611 Basic rules and actions in penaltrial Competence Bucharest Hamangiu Press


134


135

INTERNATIONAL AND INTERNAL SYSTEMS FORPROTECTION OF THE RIGHT TO LIFE

Patrik LAZĂR

AbstractThe protection of human rights in general and of the right to life in particular is

obtained on the one hand internally through legal provisions contained in thefundamental laws and other regulations and on the other hand internationally throughthe protection system established by the United Nations for the entire planet as well asthrough regional protection systems

On the European continent the protection of the right to life is obtained throughthe system of the European Convention on Human Rights with an importantcontribution from the European Court of Human Rights similar systems work on othercontinents having a regional calling and being stimulated by continental courts such asthe African Court on Human and Peoplesrsquo Rights whose first decision was pronouncedon December 15th 2009 or the Inter-American Court of Human Rights established in1979

Keywords protection of human rights right to life ECHR UN

The idea of the existence and protection of the fundamental rightsof the individual occurred centuries ago first without having aninternational calling

According to some opinions the first document compared with acharte of human rights is the Cylinder of Cirus issued by the Persian kingCir the 2nd the Greatest after the Persians conquered the Babylon in theyear 539 BC1

As documents that stated human rights we point out Magna ChartaLibertatatum (1215 ndash England) Petition of Rights (1628 ndash England) Habeas

PhD Student Lecturer Email patrick_lazaryahoocom1 The document has the shape of a clay cylinder inscribed with cuneiform writing and it

was discovered in 1879 in the ruins of Esagila the temple of Marduk of Babylon It is atpresent in the possession of the British Museum The site of the British Museum dates the

document from 539-530 BC and points out the opinion according to which this cylinderwas described as ldquothe first Charte on human rightsrdquo but states that in fact it highlights a

long tradition in Mesopotamia where even from the 3rd millennium BC the kings begantheir kingship with declarations of reform(httpwwwbritishmuseumorgexplorehighlight_objectsmeccyrus_cylinderaspx)At the beginning of the year 2010 this document was the object of a diplomatic dispute

between Iran and the Great Britain since the British Museum postponed the rendering ofthe document to Iran in accordance with a previous agreement regarding lending it to the

Asian state


136

Corpus (1679 ndash England) Bill of Rights (1689 ndash England) Virginia Bill ofRights and the Declaration of Independence of the United States (1776 ndash USA)Declaration on the Rights of Man and of the Citizen (1789 ndash France)

The bourgeois revolutions had an essential contribution inrecognizing the idea of the natural inherent rights of the individual

In the 19th century the first elements occurred regarding theinternationalization of the issue of the human rights especially as a resultof the interests of certain important states to protect their nationals andtheir rights abroad Also the protection of certain human rights wasachieved through the human law more exactly the protection of the warvictims in 1864 in Geneva the first International Convention was adoptedand was destined to improve the situation of soldiers wounded on thebattlefield later amended by other acts which had in view the protectionof the civilians and the prisoners of war2

The confirmation and the valuation of the human rights wererealized in the 20th century mainly starting from 1945 when the followingwere adopted the Charter of the United Nations (1945) the UniversalDeclaration of Human Rights (1948) the European Convention on HumanRights (1950) the International Covenant on Civil and Political Rights and theInternational Covenant on Economic Social and Cultural Rights (1966) theAmerican Convention on Human Rights (1969) the Helsinki Final Acts OSCE(1975) the African Charter of Human and Peoplesrsquo Rights (1981) the UniversalIslamic Declaration of Human Rights (1981) the Rio Declaration onEnvironment and Development (1992) as well as the Vienna World Conferenceon Human Rights (1993)

At present the protection of human rights in general and of theright to life in particular is accomplished internally by generalizing thedemocratic regimes in more countries of the world as well asinternationally through the protection system established by the UnitedNations on the entire planet on the European continent the protection isaccomplished through the system of the European Convention on HumanRights

The universal protection system of the human rights is made of thedocuments that form the ldquoInternational Charter of Human Rightsrdquo theUN Charter the Universal Declaration on Human Rights the InternationalCovenant on Civil and Political Rights as well as the InternationalCovenant on Economic Social and Cultural Rights

As regards the protection of the right to life in the UN systemaccording to article 3 of the Universal Declaration on Human Rights everyhuman being has the right to life and article 6 of the International

2 B Selejan-Gutan ldquoProtectia europeana a drepturilor omului Editia 3rdquo[European protection

of human rights 3rd edition] Editura CHBeck Bucuresti 2008 p3


137

Covenant on Civil and Political Rights states that the right to life isinherent to the human being that no one may be arbitrarily deprived ofthe right to life and that this right must be protected by law

The European convention however chooses another approacharticle 2 paragraph 1 states that every personrsquos right to life is protected bylaw and that death cannot be inflicted to someone intentionally unless itinvolves the execution of a capital sentence ruled by a court of law in casethe crime is sanctioned with this punishment by law

Despite the fact that the texts issued under the aegis of the UNbenefit from a more complete wording than article 2 of the EuropeanConvention expressly stating the right to life itself (article 3 of theDeclaration) then instituting the nationsrsquo obligation to protect this right bylaw (article 6 paragraph 1 of the Covenant) it must be specified that thesystem for protection of the right to life established by the EuropeanConvention is much more efficient than the one of the United Nations

First the control over the way the states fulfill their obligationsregarding the protection of the right to life is different in the case of thetwo systems On the one hand the Universal Declaration (as the nameitself shows) is missing the power of constraint not providing any legalmechanism to watch over its enforcement at the same time the efficiencyof the United Nations Human Rights Committee as mechanism of controlof enforcement of the provisions of the United Nations Covenant has moreof a declarative character On the other hand the European Convention onHuman Rights disposes of an efficient legal mechanism which controls theway the right to life is protected in the signatory states through article 2 ofthe Convention3

As an element of novelty we point out the interest for increasing theefficiency of the system for protection of the European human rights bythe enforcement as from June 1st 2010 of the Protocol 14 to the Conventionfor the Protection of the Human Rights and Fundamental Freedomsregarding the amendment of the control system of the Convention in itspreamble it is mentioned that ldquoit is necessary and urgent to amend someof the provisions of the Convention with the purpose of maintaining andstrengthening on the long-run the control system especially due to theconstant increase of the tasks of the European Court of Human Rights andof the Committee of Ministers of the Council of Europe it is necessary to

3 C Birsan ldquoProtectia dreptului la viata in Conventia europeana a drepturilor omuluirdquo[Protection of the right to life in the European Convention on Human Rights] Curierul

Judiciar nr 92002 p2


138

watch over the fact that it would continue its preeminent role in protectingthe human rights in Europerdquo4

Secondly the jurisprudence of the former Commission andespecially of the European Court drew up the principles that give acomplete content to the obligation to protect the right to life established byarticle 2 of the European Convention on Human Rights5

The regional systems for protection of human rights exist in othercontinents as well the African Court of Human and Peoplesrsquo Rights6

whose primary decision was pronounced on December 15th 20097 or the

4 For the complete text of the Protocol 14 see CBirsa M Eftimie ldquoConventia europeana a

drepturilor omului in vigoare de la 1 iunie 2010rdquo [European Convention on Human Rights inforce as from June 1st 2010] editura Hamangiu Bucuresti 20105 C BirsanrdquoConventia europeana a drepturilor omului Comentariu pe article Vol I Drepturi silibertatirdquo [European Convention on human rights Comments on articles Volume I

Rights and freedoms] Editura All Beck Bucuresti 2005 p 157-1586 The idea of an African court of human rights occurred ever since 1961 when during theConference of the African legal councilors in Lagos Nigeria it was agreed that it was

necessary the adoption of a charte if human rights and the establishment of a CourtTogether with the adoption of the African Charte on Human and Peoplesrsquo Rights in 1981

the proposal of establishing a Court was replaced with that of establishing a Commissionwhose jurisdiction would consist of promoting and guaranteeing the protection of human

rights (the Commission started its activity in 1987) However the Commission did notstand out through a high level of efficiency and for that reason in 1994 they began the

process of establishing a Court Starting with 2004 the date of entering into force of the

Protocol of Establishing the African Court on Human and Peoplesrsquo Rights it may bediscussed about a new organism for protection of human rights in Africa The African

Court has the jurisdiction to trial the claims filed by the African Commission the statesparties concerned in the matter and by the intergovernmental African organizations In

exchange the African Court cannot receive claims directly from private bodies and thenon-profit organizations which have the statute observant to the African Commission

unless the state party concerned previously declared that it admits this right Practicallythe private bodies and the non-profit organizations with the statute of observant to the

African Commission may notify directly the African Court if the state concerned party of

the Protocol made a statement based on article 346 of the Protocol thus authorizing sucha procedure as a result of accepting the jurisdiction of the Court to trial such claims (A

M Rosu ldquoCurtea Africana a Drepturilor Omului ndash intre teorie si realitaterdquo [The African Courtof human rights ndashbetween theory and reality] Revista AEPADO ndash Asociatia europeanapentru apararea drepturilor omului nr 11 ianuarie 2009 [AEPADO Magazine ndash Europeanassociation for protection of human rights no 11 January 2009]

httpwwwaepadororevistanr_11indexphppage=06) The regulations regarding thejurisdiction and the functionality of the African Court can be found at

httpwwwcorteidhorcr7 S Belhassen president of IFHR ndash International Federation of Human Rights is

enthusiastic towards this event ldquoThe African Court of Human and Peoplesrsquo Rights iseventually operational It gave its first ruling on December 15th 2009 It is a memorable

occasion for all supporters of the fight against impunity in Africa and for the victims ofviolation of the human rights The actual establishment of the Court was slow taking over

5 years Indeed the Protocol came into force in January 2004 and the Court became fully


139

Inter-American Court of Human Rights with its headquarters in San JoseCosta Rica a judicial independent institution of the Organization of theAmerican States established in 1979 whose aim is the application andinterpretation of the American Convention on Human Rights and othertreaties in the field of human rights formed of legal counselors of thehighest moral standards and competence recognized worldwide in thefield of human rights8

Besides these there are the internal systems for protection of theright to life in the legislation of numerous states from all continents theright to life is stipulated protected and guaranteed by fundamental law aswell as by other normative acts

Section 7 of Chapter 2 of the Constitution of Finland stipulated thatldquoevery person has the right to life personal freedom integrity andsecurity No one can be sentenced to death tortured or treated in amanner that violates the human dignityrdquo also the old Constitution ofFinland in force until the year 2000 guaranteed by article 6 paragraph 1the assurance of life9

Article 24 of the Constitution of Portugal states that ldquothe human lifeis inviolablerdquo also forbidding the death penalty Article 15 of theConstitution of the other iberian state Spain stipulates that everyone hasthe right to life and physical and moral integrity and in no case may besubjected to torture or inhuman or degrading treatment also the deathpenalty is abolished except in situations of war

Also in Germany the right to life enjoys constitutional protectionarticle 2 stating that every person has the right to life and physicalintegrity these rights not being restrained unless otherwise provided bythe law10

Switzerland also proclaims at constitutional level the right to life ofevery human being equally forbidding the capital punishment (article 10paragraph 10 of the Federal Constitution)

operational only starting with 2009rdquo (ldquoGuide practique ndash La Cour africaine des droits delrsquohomme et des peoples vers la Cour africaine de justice et des droits de lrsquohomme ndash Prefacerdquo)[Practical guide ndash The African Court on human and peoplesrsquo rights to the African Court of justice

and the human rights ndash Preface] (httpwwwfidhorgIMGodgGuideCourAfricainepdf)8 The detailed description of the jurisdiction and the Courtrsquos functionality is found on

httpwwwcorteidhorcr9 C Calinoiu VDuculescu GDuculescu ldquoDrept constitutional comparat Tratat EditiA A

IV-A VolIrdquo[Compared constitutional law Treaty 4th Edition Volume I] Editura LuminaLex Bucuresti 2007 p29510 Ibidem p396


140

Also the central and east European countries constitutionally turnto best account this right Poland Hungary Ukraine or Moldavia11

It is important to mention that as regards the moment theprotection of human rights starts the constitutional provisions of CzechRepublic (article 6) and Slovakia (article 15 paragraph 1) stipulate that thehuman life is protected from the moment of conception while theConstitution of Ireland establishes the rule of protection of the right to lifefrom the moment of conception abortion being permitted only in case ofsevere endanger of the motherrsquos health12

In Africa countries like South Africa Tanzania or Nigeria includein their fundamental law provisions regarding the right to life13 while onthe Asian continent article 13 of the Constitution of Japan stipulates thatevery citizen is respected as a person and his right to life must beconsidered at the highest level in the legislation and other governmentacts provided that it does not contravene with the public welfare14

As regards the Constitution of Romania according to article 22 theright to life as well as the right to physical and mental integrity of theindividual is guaranteed and no one may be subjected to torture or anytype of punishment and inhuman or degrading treatment Also the deathpenalty is forbidden We mention that article 18 of the 1866 Constitutionforbade the death penalty except in situations of war provision alsoresumed in article 16 of the 1923 Fundamental Law

11 C Calinoiu VDuculescu GDuculescu ldquoDrept constitutional comparat Tratat EditiA a

IV-A VolIrdquo[Compared constitutional law Treaty 4th Edition Volume I] Editura LuminaLex Bucuresti 2007 p256 274 150 17512 NMVladoiu op cit p87 13213 C Calinoiu VDuculescu GDuculescu ldquoDrept constitutional comparat Tratat EditiA A

IV-A VolIrdquo[Compared constitutional law Treaty 4th Edition Volume I] citsuprap291 328 32514 C Calinoiu VDuculescu GDuculescu ldquoDrept constitutional comparat Tratat EditiA AIV-A VolIrdquo [Compared constitutional law Treaty 4th Edition Volume I] citsupra

p467


141

MEDIATION AND OTHER SIMILAR PROCESSES

Angelica ROŞUSimona Petrina GAVRILĂ

AbstractIn the absence of legal definitions of the concept of mediation the quite difficult

task to propose definitions went to the legal doctrine According to one of thesedefinitions mediation is a way of settling disputes through which a person chosen bythe opposing parties proposed them a draft resolution without trying to approach themand without being invested with the power to impose a judicial decision

It was considered that this definition is useful because most of the lawsgoverning mediation as a way of settling disputes prefer to use the operationaldescription and to avoid the legal concept

To better specify the nature of mediation it is useful to indicate what it is not inrelation to similar concepts that are sometimes confused

Thus in this study we will show that although mediation has many commonelements with other methods of settling disputes (such as negotiation arbitrationconciliation) it cannot be concluded that these concepts are identical In this respect wewill identify the differences that make these concepts clearly distinguishable

The most difficult seems to be to draw a distinction between mediation andconciliation a real concern for the legal literature

1 Definition

The term ldquomediationrdquo is derived from the Latin mediare which is

explained in several ways all having in common the involvement of athird person1 According to the Romanian Explanatory Dictionary tomediate means ldquoto interpose an agreement between two or more adverseparties to make formal approaches to prevent or end hostilities betweentwo or more statesrdquo

Explaining the term confirms its membership in publicinternational law2 where mediation is defined in the legal sense as the

PhD Student Lecturer ldquoDanubiusrdquo University of Galaţi Lawyer Email

avocatrosuyahoocom PhD Lecturer Faculty of Judicial Social and Political Sciences ldquoDunărea de Josrdquo

University of Galati Romania Email gavrilasimonapetrinayahoocom1 See httpwwwdexonline roro search mediahtm 12k2 In international law though peaceful means of resolving disputes have been used

since antiquity Briand Pact - Kellogg in 1928 established for the first time ininternational relations duties of the parties to resolve any disputes between them by

peaceful means only Much later the Hague Conferences of 1899 and 1907 performed by


142

action of a third party (a state international organization or personality)which participates directly in the negotiations and proposes solutions tothe parties following their positions near reach agreement

The Code of ethics and professional conduct for mediators3 definesmediation as a voluntary means of resolving conflicts between two ormore persons amicably with the assistance of a neutral third partyqualified and independent through an activity in accordance with thelaws of field and rules of the Code of Conduct

The European Code of Conduct for Mediators also proposes adefinition of mediation any structured process regardless of how it isnamed or referred thereto in which two or more parties to a dispute trythemselves on their own initiative to reach an agreement on thesettlement of their dispute with the assistance of a third person called aldquomediatorrdquo

Directive 200852EC of the European Parliament and the Councilof 21 May 2008 on certain aspects of mediation in civil and commercialmatters4 provided in art 3 (a) that ldquomediation is a structured processhowever it is named or referred to it as in which two or more parties to adispute attempt on their own initiative to reach an agreement on thesettlement of their dispute with the assistance of a mediator This processcan be initiated by the parties recommended or imposed by the court orrequired by law of a Member Staterdquo

encoding peaceful means without the obligation to establish peaceful resolution ofdisputes Thus the Hague Convention of 18 October 1907 rules that it is clear that no

weapons will be used to attempt mediation before the conflict UN Charter (1945)enshrined the principle of resolving international disputes by peaceful means in art 2

(3) which provides that All Members shall settle their international disputes bypeaceful means so that international peace and security and justice are not

endangered Another chapter of the Charter (Chapter VI) deals with peacefulsettlement of disputes establishing the art 33 both the obligation and the means of

peaceful settlement of disputes In this respect it requires the parties to any dispute the

continuance of which may threaten international peace and security to seek above allto settle it by negotiation inquiry mediation conciliation arbitration judicial

settlement recourse to regional agencies or arrangements or other peaceful means oftheir choice In fact mediation was used in the practice of the UN for example in 1948

when he was appointed a mediator in the Palestinian problem and in 1958 the Cyprusproblem3 This was adopted by Council of mediation on 021720074 This directive was published in the Official Journal of the European Union L 136 3

This directive applies to cross-border disputes in civil and commercial matters except

those rights and obligations of the parties may have under the relevant applicablelegislation It does not apply in particular for taxation customs or administrative or

State liability for acts or omissions in the exercise of public authority


143

According to art 1 of Law 1922006 on mediation and theprofession of mediator5 mediation is a way of resolving conflictsamicably through a third party as mediator specializing in conditions ofneutrality impartiality confidentiality and having the free consent ofparties

2 Delineation of similar procedures

To better specify the nature of mediation it is useful to indicatewhat it is not in relation to similar concepts that is sometimes confused

a Negotiation

If the parties do not need the interposition of a third party to enterinto negotiations their dialogue is conducted in a negotiation and notmediation even if this dialogue is worn through counselors lawyersNegotiation by the parties directly involves the parties to resolve thedispute without the intervention of a third party

Thus we can see that what distinguishes mediation fromnegotiation is the autonomy of the parties in their attempt to reach anagreement without the intervention of a third party The absence of athird party in this way of fighting conflicting reports concluded that thenegotiation is not a real alternative dispute resolution ADR beingcharacterized by the intervention of a third party6

The similarity between the two methods concerns the voluntarynature of dispute resolution procedures mediation and negotiationinvolving the willingness of both parties to find a mutually acceptablesolution to the problem of what is at issue

5 This law was published in the Official Gazette of Romania Part I no 4412006 Law

no 1922006 have been changes and additions made by the Law no 370 of 26

November 2009 amending and supplementing Law no 1922006 on mediation and theprofession of mediator (Official Gazette of Romania Part I no 831 3 December 2009)

as amended and the article stated GO no 132010 for amending and completing certainnormative acts in justice to transpose Directive 2006123EC of the European

Parliament and the Council of 12 December 2006 on services in the domestic market(Official Gazette of Romania Part I no 70 30 January 2010) Law no 2022010

regarding some measures to accelerate the settlement process (Official Gazette ofRomania Part I no 71426 October 2010) In the original settlement mediation was

defined as a voluntary method of settling disputes amicably through a third party as

mediator specializing in conditions of neutrality impartiality and confidentiality6 Dennis Campbell Dispute Resolution Methods The Comparative Law Yearbook ofInternational Business Special Issue published under the auspices of the Center forInternational Legal Studies London 1994 p 91


144

It is also possible to settle the case by both methods regardless ofwhether a court or an arbitral tribunal has already been submitted withthis resolution

b Arbitration

Mediation and arbitration are concepts that have commonelements but in any case they not allow the conclusion that theseconcepts could be considered identical

As the similarities of the two forms of dispute resolution statesfirst whether voluntary (contract) In fact no arbitration or mediationcan be conceived in the absence of an agreement between the partiesThis agreement relates to the option for one of these ways whether thisagreement was expressed with the commercial contract or thereafter

Also both methods of settling dispute involve the intervention ofa neutral and impartial third party because in its absence we cannotspeak about any mediation or arbitration

However in terms of when they may occur (before or after thecourt was notified) we see that in the Romanian law there is nodifference between the two means of settling disputes This is becausenothing prevents the mutual agreement7 of the parties to request thecourt to suspend proceedings until the resolution of the dispute throughmediation or arbitration It follows that the parties may opt for one of twoways both before referral to court or after that

Both arbitration and mediation is conducted according topredetermined rules

There are enough distinguishing features that make the twoconcepts clearly distinguishable In arbitration the third partyrsquosinterposed mission received from the parties is to resolve their disputeTherefore the third partyrsquos solution is required whereas in the case ofmediation the third party merely at most proposes a solution

Because the mediator has no judicial power they just try to get theparties together allow the expression of each point of view anddetermine hearing from the other party facilitating the search for anagreement by both litigant parties

A successful mediation thus results in a mutually beneficialagreement to end the dispute in part or in full the terms of which theparties discussed and accepted

Nevertheless this is not the only difference between mediationand arbitration Although both methods involve procedural rules

7 According to art 242 par (1) item 1 of Civil Procedure Code The court will suspend

proceedings when both parties so require


145

(established by law the parties or by the institutions organizing suchprocedures) the mediation procedure excels in flexibility andconventionality8

Furthermore although the decision of the arbitrator may bedissolved by the action for annulment if communicated to the parties itis effective as a final decision On the contrary the agreement resultingfrom mediation is not res judicata9 In addition mediation a larger areathan arbitration as the parties may have turned to mediation regardingnon-property litigation

c Expertise

Mediation is also different from expertise Although both conceptsinvolve the intervention of a third party the expert is not a mediator buta person trained to draw the necessary views for the clarification offactual circumstances10 The findings of the expert may lead to a solutionthat will be accepted by the parties or that can show to a party that itsposition technically fragile will weaken the argument before a judge orarbitrator Thus the opinion of the expert may lead to an amicablesettlement whereas the expertrsquos work can be considered a driver for itBut even if such a result is often desirable it is only the fruit of a ldquohappyconcurrence of circumstancesrdquo11 because the nature of the expertrsquosmission is not aimed at reaching an agreement between the parties

d Transaction

Mediation and settlement transaction are also terms that might bemistaken Both are alternative forms of voluntary non-judicial or judicialresolution of a dispute and the transaction does not exclude theparticipation of a conciliator or mediator

8 Another distinction made between the two institutions was made on the criterion

regarding the effects that that mediation clauses and arbitration clauses produce The

first does not imply lack of jurisdiction of the court in connection with the dispute that is

subject to the Convention while arbitration clauses have such an effect See I Deleanu

Medierea icircn procesul civil icircn Dreptul nr 102006 p 739 But parties can ask the court to render a decision according to Art 271 Civil Procedure

Code10 The subject of an expertise is represented by the factual circumstances that require

expertise because of circumstances related to and not legal matters However for thedetermination of foreign law according to Romanian law the court may take into

account the opinion of an expert See M Tăbacircrcă Ghe Buta Codul de procedură civilă

comentat şi adnotat Editura Universul Juridic 2007 p 58211 H J Nougein Y Reinhard P Ancel M C Rivier A Boyer Ph Genin Guide

pratique de lrsquoarbitage et de la mediation commerciale Litec Paris 2004 p 142


146

We point out however some differences mediation necessarilyinvolves a third party as mediator while the participation of third partiesin the transaction is not required but may be the result of directagreement between the parties the mediation involves a contract formediation or the existence of a mediation clause whereas the transactiondoes not involve a commitment in advance although we can say that theparties at least tacitly master a trading hypothesis12 according to someauthors the transaction always involves mutual concessions while thesolution reached at in mediation can develop into an acknowledgment ofthe claims of the opposing party a waiver of law a discontinuance

e Early Trial Evaluation

What Americans call ldquoEarly Evaluation Trialrdquo (prior assessment ofthe process) cannot be described as mediation The parties in disputemerely require a third opinion about the solution that should be given totheir dispute opinion that they are free to follow or not

In fact this method of resolving a dispute between the parties doesnot create any dialogue each trying hard to convince a third party that itsposition is closer to the eventual outcome that would have a process asrequired to view and be favorable

f Conciliation

The most difficult to draw seems to be the boundary betweenmediation and conciliation which is a real concern for literature

We emphasize that until the UNCITRAL law on internationalcommercial conciliation no regulatory text proposed a precise definitionfor conciliation It appears that neither the Romanian Code of CivilProcedure or any laws of other states give a definition to that proceedingstricto sensu13 However we can identify various definitions offered byacademics or dictionaries

According to the Explanatory Dictionary of the Romanianlanguage ldquoto reconcile = to eliminate differences contradictions betweentwo or more opinions ideas doctrinesrdquo and retaining the legal sense ofthe word = ldquoto try settling or avoid a dispute through reconciliationrdquo(French = ldquoconcilierrdquo Latin = ldquoconciliarerdquo)

12 I Deleanu opcit p 7213 To note however that if we consider that the transaction is a particular form ofappeasement its Civil Code gives a definition art1704 see also art 2044 of French Civil

Code


147

From the legal definitions of reference dictionaries14 we note thatthe conciliation procedure is ldquoan agreement by which two people put anend to its proceedings (whether by settlement or by abandonment of anyclaim unilaterally or reciprocally) the solution of the dispute does notarising from a decision justice (not that of a referee) but from theagreement of the partiesrdquo

Given these general definitions it can be seen that the concept ofreconciliation has specific features has not a legal origin and its legalconnotation stems from the fact that the current judicial practice hasassigned it15

The French doctrinal discourse illustrates the two definitions ofboth concepts trying to highlight their differences ldquoConciliation is aninformal procedure in which a third is trying to lead the parties towardan agreement settling tensions providing technical assistance seeking apath to resolution is through informal negotiation or through asubsequent mediation16rdquo ldquoMediation is a structured procedure in whichthe mediator assists the parties to achieve a negotiated settlementMediation is usually a voluntary process initiated following the signatureof an agreement that defines the future conduct of the parties Mediatoruses a variety of tools and techniques to help parties reach an agreementbut he has no power to decide 17rdquo

It is stressed that the degree of intervention of the third party orthe manner in which it occurs become of crucial theoretical importance inthe effort to distinguish between conciliation and mediation18 in that thethird party acts as mediator turns conciliator as soon as beyond the roleof seeking a rapprochement between the parties they propose asolution19

Also the Romanian doctrine of the Civil Procedural Law hasindicated as essential to distinguish between the two concepts thepossibility that the mediator has to propose a formula for agreementldquoThe conciliator seeks to engage the parties to an agreement organizing

14 G Cornu Vocabulaire juridique Association Henri Capitant PUF Paris 2005 see

bdquoconcilierrdquo15 See also A Roşu Concilierea ndash mijloc alternativ de soluţionare a litigiilor comerciale

internaţionale RDC nr 122005 p 85-9016 L Richer Les modes alternatifs de regraveglement des litiges et le droit administratif Lrsquoactualiteacute

juridique- Droit administratif in F Baias V Belegante Medierea un alt fel de justiţie RDCnr7-82000 p 74-7517 Idem p 7518 In this regard see R W Jagtenberg General Report of the Workshop on Alternative

multilateral dispute settlement organized by the Council of Europe Strasbourg 29

November 1 December 1999 p 3 unpublished19 ABaudoin-Mazand La conciliation et la meacutediation deux modes amiables de regraveglement des

diffeacuterends commerciaux Petites Affiches 6 aoucirct 1993 p31


148

and directing the negotiations the mediator is even something moreproviding a reconciliation project that is subject to agreement of thepartiesrdquo20

Without ruling out the doctrinal controversies the UNCITRALModel Law on international commercial conciliation formulates adefinition in Article 1 point 3 According to this definition ldquoconciliationmeans a process whether referred to by the expression conciliationmediation or an expression of similar import whereby parties request athird person or persons (ldquothe conciliatorrdquo) to assist them in their attemptto reach an amicable settlement of their dispute arising out of or relatingto a contractual or other legal relationship The conciliator does not havethe authority to impose upon the parties a solution to the disputerdquo

We note in the sense of the UNCITRAL Model Law the broadinterpretation of the notion of conciliation The intention of theCommission that drafted this law was to embrace in the notion ofinternational commercial conciliation all alternative dispute resolution inwhich parties ask a neutral third party to assist them in resolving theirdispute These methods may vary depending on the techniques used orthe third party involvement (which is limited to facilitating dialogue orpropose solutions to the dispute) According to art 6 section 4 of theUNCITRAL Model Law the conciliator may forward proposals toresolve the dispute

Directive 200852EC stipulates in art 3 that the mediation is astructured process however it is named or referred to it as in which twoor more parties to a dispute attempt on their own initiative to reach anagreement on the settlement of their dispute with the assistance of amediator Writing the article can lead to the conclusion that for thepurposes of European Union law the mediator can propose a solutionThis is because it shows that the parties attempt on his own initiative toreach an agreement with the assistance (support) of a mediator

So we can characterize mediation based on two essential elementsthe interposition of a third party unless the decision-making power andfree negotiation between the parties to resolve their dispute But thesetraits are also reflected in the concept of the conciliation On the otherhand we see that international regulations also include conciliation in thedefinition of the concept of mediation

In conclusion in an effort to clarify the two concepts we considerthat mediation is a peaceful means of dispute resolution where a neutralthird party who has no decision-making power assists parties in finding

20 I Deleanu Tratat de procedură civilă Volumul II Editura All Beck Bucureşti 2005 p332


149

a solution to the problem at issue The mediator cannot propose anagreement formula to the parties whereas the conciliator can

BIBLIOGRAPHY

A Baudoin-Mazand La conciliation et la meacutediation deux modesamiables de regraveglement des diffeacuterends commerciaux PetitesAffiches 6 aoucirct 1993

F Baias V Belegante Medierea un alt fel de justiţie RDCnr7-82000

Dennis Campbell Dispute Resolution Methods The ComparativeLaw Yearbook of International Business Special Issuepublished under the auspices of the Center for InternationalLegal Studies London 1994

G Cornu Vocabulaire juridique Association Henri Capitant PUFParis 2005

I Deleanu Medierea icircn procesul civil icircn Dreptul nr 102006I Deleanu Tratat de procedură civilă Volumul II Editura All

Beck Bucureşti 2005H J Nougein Y Reinhard P Ancel M C Rivier A Boyer

Ph Genin Guide pratique de lrsquoarbitage et de la mediationcommerciale Litec Paris 2004

A Roşu Concilierea ndash mijloc alternativ de soluţionare a litigiilorcomerciale internaţionale RDC nr 122005

M Tăbacircrcă Ghe Buta Codul de procedură civilă comentat şiadnotat Editura Universul Juridic 2007


150


151

THE EU COMMON CONCEPT FOR INTEGRATEDEXTERNAL BORDER MANAGEMENT

Sergiu Adrian VASILEAmalia NIŢU

AbstractIn recent years the concept of Integrated Border Management (IBM) has been

developed to tackle this neuralgic point in border mechanisms in the perspective ofreconciling facilitation and security needs both vital for the functioning of modernsocieties In accordance with its specific needs the EU established its own IBM conceptwhich pays particular tribute to the incomplete state of the Union and the multitude ofcompetent authorities involved at national and EU level While the US based on itsestablished status of a sovereign nation state and a set of fixed and clear borders has beenable to adapt its concepts rather rapidly to changing global challenges including those ofpost-911 the EU still finds itself hampered by institutional inconsistencies when tryingto react to such situations Enlargement of the Schengen area had been a deliberate choiceof the European Union to focus more on the free movement of persons than on securityaspects

Keywords Integrated Border Management Schengen Area SIS EurosurFrontex US borders

1 The development of a new EU concept for border management

According to Andrew Geddes land borders are usually understoodas those key points where the state exercises its sovereign authority toexclude third country nationals1 However land borders must not beregarded as a barrier for free movement of persons and goods butassimilated to the notion that defines national security and all theconvergent fields

Starting from the integration of the Schengen Acquis following theconclusions of the European Council in Tampere (15-16 October 1999) EUhas stepped forward towards an integrated management at the border On7 December 2001 the Council issued the European Concept of Border

PhD Assistant Border Police Schengen Training and Foreign Languages Department

Alexandru Ioan Cuzardquo Police Academy Email sergiuvasileacademiadepolitiero Assistant Border Police Schengen Training and Foreign Languages Department

Alexandru Ioan Cuzardquo Police Academy Email amalianiţuacademiadepolitiero1 Geddes A Europersquos Border Relationship and International Migration Relations Journal of

Common Market Studies 43(4) 2005 p 787-806


152

Control Management2 which is a starting point for future cooperationbetween Member Sates

At the Laeken meeting (14-15 December 2001) the EuropeanCouncil stated that a better management for external border control willhelp the fight against terrorism illegal migration networks and traffickingin human beings Pursuant to this conclusion on 7 May 2002 theEuropean Commission sent to the Council and Parliament a documentregarding the integrated management at external borders of the memberstates which comprises an analysis of the operational and normativesituation and proposes a set of measures to be implemented within EU3After adopting this Plan there have been taken measures at operationaland legislative level to gradually develop a common integratedmanagement system by creating the Schengen Catalogue regarding bordercontrol by adopting the Schengen Border Code by writing a Manual ofpractice for border guards by setting up a Fund for External Borders andFrontex Agency as a specialized structure for risk analysis

At the 4-5 December 2006 meeting the Council for Justice andHome Affairs gave a definition for the border integrated management Aset of recommendations and best practices has been developed andincluded in the Ist Part of the Schengen Catalogue

A successful initiative of the Member Sates regarding policecooperation is represented by the signing of the Treaty between Belgiumand the Federal Republic of Germany Spain France Luxemburg theNetherlands and Austria on enhancing cooperation regarding crossborder crime and illegal migration signed at Pruumlm on 27 May 20054

In June 2007 the Commission has presented to the Member Sates aplan for setting up a European system for border surveillance ndash EurosurThis concept will be implemented in three phases between 2008 and 2013On 13 February 2008 the Commission released three documents under thename of Border Package 1 Evaluation Report and setting up the Frontexagency 2 European System for border surveillance ndash Eurosur 3 Futurechallenges regarding external border management

The first edition of the Schengen Catalogue ndash External bordercontrol Extradition and Readmission Best Practices andRecommendations was published on February 2002 but it was modified in2009 according to the European documents on border security

2 European Concept for Border Control Management Doc 1457001 FRONT 69 from

December the 7th 20013 COM (2002) 233 final of the Commission for the Council and the European Parliament

regarding external border integrated management4 Romania signed the Prum Treaty by enforcing the Law no 1462008 and the

international document has been enforced starting with March the 3rd 2009


153

2 The inequities of abolishing internal borders within EU

The wisdom of the minor powers is to go towards the power thatbest fits their interests regardless of morale In this context theConvention for Implementing the Schengen Agreement makes thedifference between external borders of the Schengen area and its internalborders Internal borders5 are common to the contracting parties as well asairports for internal flights maritime harbors for passengers that have as adeparting point or exclusive destination other harbors placed on thecontracting parties territories without any stops outside this area

External borders are land or maritime borders as well as airportsand ports of the contracting parties unless they are internal borders TheSchengen space is a free movement area A country that adheres to thisarea has to eliminate controls at the external borders and to enforce theSchengen Acquis There is only one external border where controls arecarried out according to a set of rules for visas migration asylum as wellas police and judicial cooperation

Schengen internal borders can be crossed anytime and anywherewithout control This also applies to third country citizens However anypartner state has the right to re-introduce control for a limited period oftime if this is necessary for protecting public order and national securityand only after the partner states have been consulted on6 This privilegeoffered for the citizens of the Schengen states is also a big disadvantagefrom a strategic point of view because we are loosing an importantinstrument in pursuing and analyzing the illegal migration routes andcross border crime in Europe7

This statement contrasts with the optimism of the EU officials whosaid that there are not any reasons of concern Losing control within theinternal borders should be balanced by other security instruments Whencomparing the effectiveness of the border controls carried out with the fullresponsibility of the representative authorities at the external borders onecannot be sure that the breach at the security level has been solved

3 Integrated border management (EU-IBM)

External borders management is a security function for which themember and associated states have a common interest EU Acquis

5 Art 1 Title I The Convention from 19 June 1990 for implementing the SchengenAgreement from 14 June 1985 regarding the gradual abolishing of border checks

Schengen 19 June 19906 Art 2 Title I from the Convention from 19 June 1990 for implementing the Schengen

Agreement from 14 June 1985 regarding the gradual abolishing of border checksSchengen 19 June 19907 Ilka Laitinen Frontex an interview for Reuters


154

regarding border control represents a standard for the third countrieswhich are assisted in their process to develop the integrated bordermanagement concept This concept is based on the principles of solidaritymutual trust and responsibility stated between Member Sates andcomplies with the human rights

In the last two years the concept of integrated border management(IBM) has been developed in order to strengthen the border mechanism byaiding instruments and security solutions two important aspects in amodern society According to its specific needs EU has established itsown IBM concept which concentrates especially on the incomplete statuteof the Union and the number of competent authorities at national andUnion level8 EU-IBM approach ahs been successfully exported beyond itslimits in the Western Balkan countries9 and Central Asia10

International organizations like UN and ICMPD have assisted inthe process of implementing this advanced model in the field of trade andtraffic control while NATO and OSCE have appreciated the reforms as animportant contribution to demilitarizing the activities at the bordercarried out by the armed forces in the ex-Soviet Union11

From the same point of view EU-IBM standards have beenintroduced in the CESS training courses under the title ldquoDemocraticgoverning in the security fieldrdquo organized by the Black Sea countries andSouthern Caucasus in 2006-200712 Apart from the member statesencouragement to use the manuals above mentioned13

EU does not have any authority to ensure the implementation ofthis concept at the local level On the contrary there are statements thatthese manuals and guides do not create any obligation for the memberstates14 and reaffirm the national supremacy This aspect is confirmed bythe fact that the document for EU-IBM has been presented as part of theconclusions of the JHA Reunion and is not legally binding Despite all thepositive aspects the main sensitive points continue to exist for instancethe existence of a unique central authority

8 Hobbing P Management of External EU Borders Enlargement and the European Guard

Issue DCAF Conferenceon Managing International and Inter-Agency Cooperation at the

Border held in Geneva 13-15 March 20039 Guide for Border Integrated Management in the West Balkan Countries January 200710 Mannual for implementing the EU-IBM Concept in Central Asia December 200611 ICMPD ndash International Centre for Migration Policy Development12 See NATO and OSCE Ministerial Conference The concept of border securitymanagement Ljubljana 2005

httpwwwosceorgdocumentsmcs20051217436_enpdf 22052010 ora 160013 Guide for Border Guards (Schengen Manual) see EU Commission 200614 Communication of the European Commission 12092006 p 6


155

4 Specific aspects regarding the EU external borders

41 Security of the EU land borders

Land borders are an important part of the Frontex activity and werefer here to the borders of the EU member states which are not the samewith the Schengen states These do not include the border between Russiaand Norway Also we have not included the external borders of Romaniaand Bulgaria EU Member Sates but not Schengen states Until May 2004Finland Germany Austria and Italy secured the main eastern border ofthe EU measuring 4095 Km (2545 miles)

Land borders until 1 May 2004

Finland Russia 1340

Germany Poland 454

Germany Czechoslovakia 810

Austria Czechoslovakia 466

Austria Slovakia 107

Austria Hungary 356

Austria Slovenia 330

Italy Slovenia 232

Total 4095 km

After ten new member states adhered on 1 May 2004 the externalborder has been secured by Estonia Lithuania Latvia Poland SlovakiaHungary and Slovenia When Frontex began its activity the external landborder measured 6220km (3866 miles)

Land borders after 1 May 2004

Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161

Lithuania Belarus 651

Lithuania Russia (Kaliningrad) 272

Poland Russia (Kaliningrad) 232

Poland Belarus 418


156

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136

Hungary Romania 448

Hungary Serbia 174

Hungary Croatia 344

Slovenia Croatia 680

Total 6220 km

None of the two tables above include Greece Although a memberstate it was not geographically part of the main group of states and itsborders with Albania Macedonia Bulgaria and Turkey were externalthus coming under the Frontex responsibility However after Romania

and Bulgaria adhered the situation has completely changed Greece cameunder the main continental group and its eastern external land border laysnow from the Arctic to the Black Sea and the Aegean Sea measuring 6378km (3964 miles) After that the western Balkan states became an enclavewhose land borders become a sensible part of the EU external borders anda new border of 1580 km (982 miles) is added to the total of 7958 km(4946 miles)

External land borders after 1 January 2007

Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161

Latvia Belarus 651



Poland Belarus 418

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136

Romania Ukraine (East and Westof Moldova)

649

Romania Moldova 681


157

Bulgaria Turkey 259

Greece Turkey 215

Greece Albania 282

Greece Macedonia 246

Bulgaria Macedonia 165

Bulgaria Serbia 341

Romania Serbia 546

Total 7958 km

At the moment the EU has nine neighbors exposed to the migrationphenomenon and a transit route made of CIS15 and Asia16 This is alsocommon to the southern part of the maritime borders much moreexposed to the migration flows coming from Africa If Turkey which has

been struggling for many years will become a EU member state theexternal border will include fourteen neighbors and conflictualinternational areas like Iraq Iran and the Caucasian region17

The land border sector between Greece and Albania has recordedthe highest rate of illegal crossings (38600) but comparing to 2008 it hasdecreased by 10 Most of the illegal migrants are Albanian citizens whoare sent back in accordance with a long term and effective readmissionagreement However despite this good cooperation these persons tryagain sooner or later to cross the border

The land border between Greece and Turkey has reported 14500illegal border crossings Comparing to 2008 the percentage has decreasedby 14 due to the joint operation Poseidon in 2008 At the eastern bordersthere have been reported 6200 illegal crossings Out of the total numberPoland reported 3298 Slovakia 978 Hungary 877 Romania 756 and thewhole amount represents 95 of the total of illegal border crossingsreported at the eastern land borders Joint operations Adriane Fiveborders Gordius and Lynx 2008 have concentrated on the eastern landborders

42 Maritime borders ndash the EU vulnerable point

15 CIS Commonwealth of Independent States16 IOM 2008 About Migration Facts and FigureshttpwwwiomintjahiaJahialangenpid 2506201017 Hobbing P Uniforms without Uniformity A Critical Look at European Standards inPolicing in E Guild and F Geyer Security versus Justice Police and Judicial Cooperation

in the European Union Ashgate 2008 p 243-263


158

The EU maritime borders have a length of about 80000 km (50000miles) and more than half of that area (34109 km or 21199 miles) is thesouthern maritime border the weak link of the European Union18 bdquoTheSchengen area is as strong as vulnerable is its weakest linkrdquo a Frontexofficial commented for Reuters referring to the Greek islands

EU Southern Maritime Border

Portugal (including Cocircte drsquoAzur Madeira) 2555

Spain (including the Canary Islands) 4964

France 4720

Slovenia 48

Italy 7600

Greece (including over 3000 islands) 13676

Malta (including Gozo) 253

Cyprus 293

Total 34109

Greece with over 3000 islands has the longest maritime border ofall the member states even longer than that of the UK Most of the islandsare very close to Turkey a fact exploited by criminal gangs The borders ofthe Black Sea in Romania and Bulgaria measure 572 km (358 miles) andalso have a high degree of risk for the criminal gangs in Turkey due tomigratory flows

At the maritime borders most detections were reported in the lightof the evaluation and analysis made by Italy (37000 or 41 of the total atthe maritime border) mainly the island of Lampedusa (31300) but alsothe main Sicilian island (3300) Sardinia (1600) and the mainland (800) Inthe island of Lampedusa the arrivals of illegal immigrants have almostdoubled between 2008 and 2009 Following the growth of Lampedusa thearrivals from Malta the neighboring state have also increased from 1700in 2008 to 2800 in 2000 (55) Joint operations coordinated by FrontexNautilus and EPN-Hermes were deployed in the central Mediterraneanarea19

18 Georgi F Bordering on a Nightmare A commentary on the 2008 Vision for an EU BorderManagement System MCP Prague 200819 External evaluation of the European Agency for the Management of OperationalCooperation at the External Borders of the Member States of the EU Final Report 15

January 2009 Parallelvej 2 DK-2800 Kongens Denmark wwwcowicom


159

In Greece the detection at the maritime border along the Turkishcoast has also doubled between 2008 and 2009 reaching up to 29100illegal border crossings Detections were reported in particular in sixislands located near the coast of Turkey Lesvos Chios Samos PatmosLeros and Kos

Spain has reported 16200 illegal border crossings at its maritimeborders The number of arrivals in the Canary Islands fell to 9200 (26)and detection along the Spanish peninsula and the Balearic Islands hasalso decreased (-23) Frontex conducted a joint operation in 2008 Herain the Atlantic Ocean near the West African coast Minerva and EPN-Inaldo Joint Operations in 2008 and 2008 covered Western andMediterranean Sea20

In 2009 the member states have issued a total of about 140000refusals of entry at the EU external borders This represents a decrease of11 compared to 2008 The analysis shows that the decrease is due to asmaller number of refusals of entry at land borders between Poland andUkraine and between Poland and Belarus after decreasing the regulartraffic due to new visa requirements with the entry of Poland into theSchengen area in December 2007 In total the refusals at the eastern landborders of the EU amounted to 30000

Refusals of entry were split about evenly between land (around60000) and air borders (about 65000) while their number at the seaborders has been significantly lower (6700) In addition Spain hasreported 400000 refusals for permission to enter its land border withMorocco Ceuta and Melilla

43 Air borders and the contemporary threats

The air borders of the member states are the safest because it is verydifficult for illegal immigrants to reach an international airport if theiractions are inappropriate and their status will always be checked

The border sector that recorded the highest number of refusals ofentry was the air border of the UK with 17600 or 13 of the totalrejections However the UK figures include refusal of entry both in termsof flights from outside the European Union and within it The Spanish airborder reported the second-largest volume of refusals 13600 whereas atthe top are located France (81200) and Spain (77000) representing 40 ofthe number of interceptions and the largest increase between 2008 and2009 A second group of member states belonging to Italy and Greecereported fewer than 50000 for each member state A third group consists

20 Frontex Report 2009 httpwwwfromtexeuropaeugfxfrontexfiles

general_report2009general_report_2009_en_pdf 24082010


160

of Portugal the United Kingdom Belgium and Sweden which reported anumber of interceptions of illegal stay between 20000 and 30000 Othermember states have reported interceptions under 1000021

This brief view on the current situation of the state borders of theEU confirmed the (still) fragmented aspect of the protection mechanismsthe national structures still dominate the landscape and are relatively fewitems bearing the European Union Neither the clarification of stateborders nor the establishment of the central authority have been made

5 Comparative study between European and US borders

While the US as a sovereign national state with defined and clearborders22 was able to adapt their concepts in a short period of time to therapidly changing global challenges including the post-911 period the EUis still hampered by institutional inconsistencies when they have to reactin crisis situations

Unlike uniform concepts available in the US in the field of securityorganization and equipment Europe still looks like a patchwork of statesand administrative traditions The treaties do not provide theharmonization of public administration in member states nor does theEuropean Commission have the means to impose its laws with someexceptions in terms of fair economic competition laws

Moreover border security closely related to sovereignty andjustice23 remains a difficult field to implement supranational concepts24Thus despite the vast influence of the European Union upon governingrules of the internal space without borders and upon the crossing ofexternal borders border control remains the prerogative of the memberstates

This has caused serious concern in the period which has elapsedafter the 911 events when Europe was addressing security

21 Frontex Report 2009 httpwwwfromtexeuropaeugfxfrontexfilesgeneral_report2009general_report_2009_en_pdf 2408201022 Meyers D R Koslowski Ginsburg S Room for progress Reinventing Euro-Atlanticborders for a new strategic environment MPI October 2007 p 523 See Sieber U Die Zukunft des Europaischen Strafrechts Ein neuer Ansatz zu den

Zielen und Modellen des europaumlischen Strafrechtssystems To be published at ZStW 121(2009) p 1 - 63 English translation under title The Future of European Criminal Law A

New Approach to the Aims and Models of the European Criminal Law System plannedin Grasso G and R Sicurella (eds) Per un rilancia del progetto europeo esigenze di

tutela degle interessi comunitari e strategie di integrazione penale Catania 2009 p 685-75724 Carrera S The EU Border Management Strategy FRONTEX and the Challenges ofIrregular Immigration in the Canary Islands Working document No 261 CEPS Brussels

March 2009


161

arrangements At the Laeken summit in December 2001 it was criticizedthe increasing imbalance in the financial costs of the external border Bythat time the costs were covered almost equally by all the member statesand especially by Germany and France The gradual development of theSchengen Zone has involved a change to the new partners in particularthe Baltic states Poland Slovakia Hungary and later Romania andBulgaria25

Although at this stage the time had not yet come to consider radicalsolutions such as the European Corps of Border Police26 to assume fullresponsibility of border control and taking a part of the nationalresponsibility in the benefit of the Union a process has been launched toexplore options to pay some debts and at the same time to ensureincreased EU influence

While the principle that responsibility for control and surveillanceof external borders lies with the member states27 is formally reaffirmedinstitutions develop a policy which is done in small steps of gradualinvolvement of the European Union in a manner acceptable to the leadersof the other nations

In particular the establishment of the Frontex agency in 2004 is anexcellent example of such methods of operation making use ofencouragement not coercion the member states were encouraged to usethe option made available namely the use of Frontex services Among theservices offered the technical ones prevailed while any involvement inoperational activities was carefully camouflaged especially on the requestof the member states to avoid the impression that the EU would try toundermine national autonomy

Also in some regions the European Union maintained itsrequirements the selective nature and the strict observance of thesubsidiarity principle the major decisions that have shaped the reality ofEuropean borders directly establish the European concept of IntegratedBorder Management (EU-IBM) various IT systems at a large scale such asthe Schengen Information System (SIS II) the Visa Information System(VIS) Eurodac and Frontex

Nevertheless differences occur in the attempts to implementtransatlantic policies into action In contrast with the current powers of the

25 Hobbing P Management of External EU Borders Enlargement and the European

Guard Issue DCAF Conference on Managing International and Inter-AgencyCooperation at the Border held in Geneva 13- 15 March 2003 p626 As regarded by the Commission in May 2002 as a direct answer to the questionsdiscussed at the Laeken Summit27 Council Regulation (EC) No 20072004 from 26 October 2004 for setting up theEuropean Agency for the Management of External Borders operational Cooperation of

the EU Member States publshed in the EU Journal L349 25112004 p 5


162

European Union the US have launched new initiatives such as the Centerfor Security Initiatives (CSI) and Databases of Travelers (PNR) Seeminglypragmatic at first sight the impasse during negotiations could be resolvedonly by implication and extension of the initiative to include the Union assuch28

For example the European Information System (SIS) was originallydesigned as a set of compensatory measures29 in the Schengen Agreementin 1985 to allow the abolition of internal border controls but as currentlyconceived it clearly does not contribute to correct the gaps in the Europeansystem of entryexit

Another example is the European Visa Information System which isoften seen as a duplicate of the US-VISIT30 representing the prototype ofall entryexit systems whereas in reality things are different31 Just as SISII the European Visa Information System has its origins in the set ofprojects implemented to compensate any shortcomings in security thatmight arise from the abolition of internal border controls

The main purpose is to support the common visa policy which is animportant condition for the functioning of the Schengen area Such atransformation into an entry-exit system was proposed in the context ofdiscussions regarding the synergy and interoperability of EU databasesbut had no complete safety and practicality reasons

This shows how far the European Union has come and especiallyhow far it is from the US situation characterized as an old state frontierswith structured borders and a federal administration for borders thatunderstands its duty as a national law enforcement agency from coast tocoast from border to border

REFERENCES

Carrera S The EU Border Management Strategy FRONTEX andthe Challenges of Irregular Immigration in the Canary

28 Communication of the Commission to the European Parliament and the Council COM(2010) 385 final General presentation on the data management in the area of freedom security

and justice Bruxelles 2007201029 Together with the other complementary measures according to the SchengenConvention from 1990 reintroducing the border checks at the external border according

to the common standards (see 111 and 114) common visa policy (see 113) and policeand judicial cooperation30 Jacksta Robert Smart Borders The Implementation of US-VISIT and other BiometricControl Systems Alexandria VA October 26-27 200431 Hobbing P A comparison of the now agreed VIS package and the US-VISIT systemBriefing Paper for the European Parliament 4 July 2007


163

Islands Working document No 261 CEPS Brussels March2009

Communication COM (2002) 233 final of the Council andEuropean Parliament on integrated management of externalborders of member states of the European Union EuropeanConcept on Border Control Management Doc 1457001FRONT 69 7 December 2001

Communication of the Commission to the European Parliamentand the Council COM (2010) 385 final Overview on themanagement of information in the space of freedom securityand justice Brussels 2072010

Convention of 19 June 1990 implementing the SchengenAgreement of 14 June 1985 on the gradual abolition ofchecks at common borders Schengen 19 June 1990

Council Decision COM (2007) 654 final of 11272007 to use PNR

for the correct enforcement of the lawIlka Laitinen Frontex Declaration made in Warsaw for Reuters

12182009Council Regulation (EC) Nr 20072004 of 26 October 2004

establishing the European Agency for the Management ofOperational Cooperation at the External Borders of theMember States of the European Union published in theOfficial Journal of the European Union L 349 11252004

Frontex General Report for 2009Geddes Europes Border Relationships and International Migration

Relations Journal of Common Market Studies 43 (4) 2005Georgi F Bordering on a Nightmare A Commentary on the 2008

Vision for an EU Border Management System MCP Prague2008

Guide for the border guards (Schengen Handbook) see EuropeanCommission 2006

Hobbing P A comparison of the now agreed VIS package and theUS-VISIT system Briefing Paper for the EuropeanParliament 4 July 2007

Guidelines for Integrated Border Management in the WesternBalkan countries January 2007

Hobbing P Integrated Border Management at the EU LevelCEPS Brussels 2005

Hobbing P Management of External EU Borders Enlargementand the European Guard Issue DCAF Conference onManaging International and Inter-Agency Cooperation at theBorder Geneva 15032003


164

Hobbing P Uniforms without Uniformity A Critical Look atEuropean Standards in Policing in E Guild and F GeyerSecurity versus Justice Police and Judicial Cooperation inthe European Union Ashgate 2008 pp 243-263

IOM 2008 About Migration Facts and FigureshttpwwwiomintjahiaJahialangenpid 25062010

Jacksta Robert Smart Borders The Implementation of US-VISITand other Biometric Control Systems Alexandria VAOctober 26-27 2004

Manual for EU IBM concept implementation in Central AsiaDecember 2006

D Meyers S Ginsburg and R Koslowski Room for progressReinventing Euro-Atlantic Borders for a New StrategicEnvironment MPI October 2007

NATO and the OSCE Ministerial Conference the concept ofBorder Management and Security Ljubljana 2005

Sieber U Die Zukunft des Europaumlischen Strafrechts Ein Neueransatz Modellen und zu den Zielen des europaumlischenStrafrechtssystems To be published at ZStW 121 (2009)English translation under the title The Future of EuropeanCriminal Law A New Approach to the Aims and Models ofthe European Criminal Law System planned in Grasso Gand R Sicurella (eds) Per un rilancia del progetto europeoesigenze di tutela degle interessi comunitari e strategie diintegrazione penale Catania 2009

UK Parliament House of Lords FRONTEX the EU externalborders agency European Union - Ninth Report EuropeanUnion Committee London 26 February 2008


165

INTERMESTIC SECURITY AND THE DEVELOPMENT OFA NEW EU STRATEGY FOR INTERNAL SECURITY


AbstractThe term intermestic is an portmanteau word standing for international and

domestic and it is a strategic management approach in the field of foreign affairs andsecurity that views the relatively equal important spheres of domestic and internationalaffairs Europe must consolidate a security model based on the principles and values ofthe Union respect for human rights and fundamental freedoms the rule of lawdemocracy dialogue tolerance transparency and solidarity The Internal SecurityStrategy has been adopted in order to help drive Europe forward bringing togetherexisting activities and setting out the principles and guidelines for future action Securityhas therefore become a key factor in ensuring a high quality of life in European societyand in protecting our critical infrastructures through preventing and tackling commonthreats

Keywords intermestic security strategy Lisbon Treaty StockholmProgramme Schengen Space security Europeanization

1 Between common foreign security and the internal securityidentity of the EU

Within the EU the relation between domestic and foreign security1

is a concept often called intermestic security The elements of foreigncommon elements (PESC and PESA) have correspondents in the domesticsecurity configured according to the Lisbon Treaty2

A contemporary concept of security the so called general securityconcentrates not only on the military elements but also on the non-military

PhD Assistant Border Police Schengen Training and Foreign Languages Department ldquo

ldquoAlexandru Ioan Cuzardquo Police Academy Email sergiuvasileacademiadepolitiero Assistant Border Police Schengen Training and Foreign Languages DepartmentldquoAlexandru Ioan Cuzardquo Police Academy Email amalianiţuacademiadepolitiero1 K Derghoukassian After Powell Global Intermestic Security Doctrine p5 Annualmeeting of the International Studies Association Honolulu Haiti 05032005

httpwwwallacademiccommetap69935_ indexhtml 190420102 Costică Voicu Strategia de Securitate Internă a Uniunii Europene configurată de

Tratatul de la Lisabona International Conference bdquoInternal Affairs and Justice in the Processof European Integration and Globalizationrdquo Police Academy May 2010 Bucharest p 254-

263


166

threats to security On the other hand for those in favor of the humansecurity concept the main objective is the individual and their securityThe two approaches regarding security and the globalization processwhich may be called inside the EU structures the Europeanization ofsecurity have a significant impact on the concept of domestic securityHowever Barry Buzan who developed the theory of general securityemphasized that generalizing security does not mean the fall of thedomestic security concept or the failure of the state-nation conceptunderstood as a main objective of security3 The concept of EU domesticsecurity is said to be a highly complex concept yet undefined and inconsequence hard to implement

2 The development of the domestic security concept

First of all it is necessary to revise the main concepts related tosecurity taking into consideration the fact that the development of thisconcept brought the development of the domestic security idea

21 The approach of the Copenhagen School for Security Studieson domestic security

During the Cold War security was reduced mainly to militaryelements For instance Ole Waever taking into consideration a fewpacifist initiatives from the ex Soviet Union noticed that the Easternsecurity concepts in the 80s have a broader meaning and are mainly basedon military aspects The Western concept concentrates on its militarydimension4 Thus an innovative approach of the security studies whichunderlined the importance on non-military threats for the state securitymay become popular for the first time in the West at the end of a bipolarepoch5 In 1983 Richard H Ullman criticized the domestic security asbeing excessively narrow and militarized His definition shows a wrongimage of the reality6 As a consequence the Copenhagen School considersthat the threats are both military and non-military (political economicsocial and environmental) On the other hand it is possible to make a

3 Barry Buzan Human Security in International Perspective in Mely AC Hassan MJThe Asia-Pacific 14th Reunion 3-7 June 2000 Kuala Lumpur ISIS Malaesia 2001 p 583-

5964 Waever O Conflicts between visions Visions of conflicts in Waever O Lemaitre P

Tromer E European Philosophy Basingstoke Macmillan 1989 p 302-3035 Barry Buzan Rethnking Security after the Cold War Coopeartion and Conflict vol 32 no 1

1983 p 1586 Ullman R H Redefining Security International Security vol 8 no 1 1983 in Buzan B

Hansen L vol 1 London Thousand Oaks Sage Publications 2007 p 296


167

distinction not only between military security but also political economicsocial or environmental security

Another problem is the nature of internalexternal security threatsas some of them fall within the scope of foreign affairs (military threats)while others fall within the competence of both (military and non-military) Redefining security threats illustrates a partial combinationbetween internal and external security domains7

Steadily the nation-state is perceived by the Copenhagen School asthe principal element in all sizes and for all threats to security

22 The influence of the concept of human security for internalsecurity

A meaningful concept of security has been elaborated in recentyears in this way security focused on the individual

The research on security in the rsquo90s realized by Buzon and hiscolleagues was not the only idea of security that has become popular TheUN also developed the secondary concept of human security in itsactivity in 1945

The concept of human security was very popular in the rsquo90s andremains popular in the western countries today A large number of booksarticles and papers on this subject have appeared on the other handseveral countries were also very interested in the idea Japan and Canadain particular Following the establishment of the two approaches to humansecurity the Japanese approach focuses on the freedom to desire theCanadian one on the freedom to be afraid (the right to a safe lifedemocratic state) in foreign policy

In 2004 the European Union has also greatly appreciated the ideaof acceptance of a Doctrine for Europe on human security known as theBarcelona Report8 More importantly both dimensions of the humansecurity situate the individual on the main objective position while for theconcept of security in the broadest sense the main objective remains thenation-state

The western-European integration process was the trigger for theEuropeanization O Waever a member of the Copenhagen Scholldisagrees with this statement according to which internal and externalsecurity is interviewed On the other hand as risks increase in Europe thatwere previously held within the states in recent years they have becomeexternal or intermestic

7 Anderson M et al Reasurring European Union New York Oxford University Press1995 p 1588 Doctrine for Europe on Human Security Barcelona Report 2004


168

The main reason obviously is the growing independence of themembers of the European Union ndash this phenomenon has reached anunimaginable level here9 It determines the unique character of theEuropeanization internal security within the European Union being areveler phenomenon reported and illustrated by Didier Bigo ldquochangingthe significance of national borders in barriers and the creation ofEuropean level distinction between internal and external borders of theEuropean Unionrdquo10

3 Intermestic security between internal and external security ofthe member states

Another issue that should be considered is the growing role of thedomestic (internal) and foreign relations (external) in economy politicsetc and consequently as the security features are observed today Whatmay be surprising today is that these connections are directly related toLeninrsquos old dictum ldquothere is no greater nonsense than separating theinternational from the internal policyrdquo11

In fact the meaning of the word lsquointermesticrsquo as a neologism wasestablished by an American scientist ex-president of the ExternalRelations Council professor Bayless Manning who has argued that thisnew problem meant a growing interdependence between economypolitics diplomacy and other which simultaneously profoundly andinseparably is internal and external ldquoIf I am allowed to create a word ndashthese issues are intermestic ndash a neologism formed by garaging the wordslsquointernationalrsquo and lsquodomesticrsquordquo12

Initially as Manning pointed out the term referred strictly to theeconomic and political aspects Under the current work however arementioned briefly the connection between domestic and foreign policiessince they have a direct impact on relations between the internal andexternal security Why does it so obviously the increasing ofglobalization and regionalization in all sectors of state ndash policy includingsecurity policy and its threats

9 Wagner W The setting up of the Community Internal Security Democratic Peace and

extradition policies in Western Europe Peace Research Journal vol 40 6 November 2003 p699-70010 Bigo D The Mobius Ribbon of Internal and External Security Mathias A Jacobson DLapid Y Identities Borders Orders rethinking international relations theory Minneapolis

2001 p 11211 Sherr J The Soviet Power continuance of challenge Basingstoke London Macmillan

1987 p 1212 Manning B Congress executive and intermestic affairs three proposals Foreign Affairs no

55 1997 p 309


169

Finally the idea has been analyzed by scientists and politicians overthe past two decades They have created terms such as intermesticpolicy13 intermestic problems14 or intermestic area15 It is thusunderstandable that sooner or later the intermestic security term willbecome also popular An example of intermestic policy definition statesthat it contains a set of government policies that show both internal andexternal policies such as the trade policy and the immigration policy

Christopher Hill states ldquoif someone may talk analytically about aninterpretation between governmental domain and intergovernmentalrelations in the middle of the area where grey is situated intermestic areathis can be helpful to specify the various functions of governments andtranslational actorsrdquo

Intermestic security was introduced by Victor D Cha in 2000 in hisarticle named ldquoGlobalization and international Security studiesrdquo Inparticular the author focused on the changing nature of threats that heassociated to the phenomenon of globalization ldquoGlobalization creates anoverlap between domestic issues and the nature of external nature thatnational governments need to recognize in policy development Anexample of this intermestic approach of security policy can be anacceptance that the threats of transnationalism removed traditionaldivision between internal and external security16rdquo

On the other hand some opponents to the idea of intermestic stillmake a clear distinction between domestic and foreign policies bysupporting their position with the following statement ldquothis division isone that commonly applied in rhetoric but carefully treated can beheuristic valuablerdquo17 In particular these adversities are often quoted byresearchers of the Copenhagen Scholl requiring distinction betweendomestic and foreign affairs trans-nationalism is another version of aliberal attempt to deny the specific of foreign affairs Internal policies aredifferent from foreign policies18

A problem that arises when the concept of intermestic is used(restricted to the European Union level) is the interference of internalsecurity issues regarded as are of the unique features of the European

13 Barringtonet L et all Comparative Policies structure and choice Boston Cengage

Learning 2009 p 48814 Rose R Learnings from the public comparative policy A practical Guide New York

Routledge p 3415 Hill Ch Changing the foreign policies Basingstroke New York Palgrave Macmillan

2003 p 21416 Cha V D Globalization and the International Security Study Peace Research Journal

vol 37 no 3 2000 p 39717 Anderson M Protecting the European Union p 15818 Weaver O A Conflict of Visions p 305


170

Union At the beginning one of the researchers from the CopenhagenSchool Ole Waever in the late rsquo80s brought up a new term related to thepolitical and security changes that were eventually produced in Europe asa consequence of the collapse of the USSR Europeanization What is itWhat does it represent Europeanization is a fact ndash if taken into account aEurope that is gradually defined more inside and less outside by thesuperpowers

4 Premises of a strategy for internal European Union Security

41 Europeanization of internal security in the area of freedomsecurity and justice

For a long time the European Union wished to develop an effectivecooperation and mutual relationships in creating internal security forexample Section of freedom security and justice Moreover the EuropeanUnion adapted a series of documents relating directly or indirectly to theinternal security

Key documents in this case are The European Security StrategyExternal Strategy of justice freedom and security InformationalManagement Strategy Programme Stockholm Programme ndash a singleEurope serving and protecting its citizens and ultimately the securitystrategy of the European Union

People must be protected from both military and non-militarythreats One question remains open who can do it the member-states orinternational organizations such as the European Union or both Orsomebody else The nation-state will be the main topic in terms ofsecurity in a united Europe while the Lisbon Treaty effectually enters

into force the European integration processFirst of all one of the most relevant documents of the European

security in general was the European Security Strategy ndash a securedEurope in a better world adapted in 2003 An internal Security Strategy isformulated to complete this document Some dispositions of thesedocuments relate directly to the new approach of providing internalsecurity to the European Union

It has an important role in particular the merge of external andinternal threats for the security member states After the Cold War theborders were left more and more open and the internal and externalsecurity aspects are interconnected and large-scale aggressions on thecurrent members are unlikely Instead Europe faces difficulties becoming


171

more diverse less obvious and less predictable moreover the new threatsare dynamic19

Regarding new dangers phenomena such as terrorism buildingweapons of mass destruction regional conflicts government failures andorganized crime can be listed On the other hand the overlap of internalsecurity issues with those of foreign security can be understood as aconsequence of the gradual intensification of the cooperation process inthis case The Third Pillar and on the other hand the profoundglobalization that forces member states to co-work intensely in the field ofinternal security (the Europeanization of the European Unionrsquos internalsecurity)20

42 The Stockholm Programme and the foreshadowing of thestrategy fields

The next document that contains instructions about a Strategy forthe Internal Security of the European Union is The Stockholm ProgrammeAn open and safe Europe serving and protecting its citizens adopted by theEuropean Council in the second half of 2009 and planned for the 2010-2014period Among other purposes it has been highlighted that ldquointernal andexternal security are inseparable The elimination of the threats even theones that are remote to our continent is essential for protecting Europeand its citizensrdquo21

In conclusion achieving the fusion of the internal security with theexternal one among the territories of the European Union states is themain objective nowadays So the nation-state as the main objective ofsecurity could be replaced with new objectives the European Unioncitizens and its bodies

According to the Stockholm Programme (2009) the InternalSecurity Strategy must be built around three complementary andinseparable fields of action the consolidation of police cooperation anadapted criminal justice system and a better management of access interritory Based on the principle of availability the program aims todiscuss a large scale extension of the collecting and processing of the dataregarding border crossing and putting it together at European levelAlthough it is accepted that it promotes opening and safety theprogramme is assigned also the characterization of a step towards a

19 Ibidem p 28620 European Strategy for Security Bruxelles 12122003httpwwwconsiliumeuropaeuuedocscmsUpload 78367pdf 20042010 p221 EU Council The Stockholm Programme 1702409 Bruxelles 02122009


172

European stronghold of advanced technologies22 It is expected to bringfighting against the immigration phenomenon and also a tightening of themethods used by the European Union in order to make their borders moreinaccessible

The list of measures adopted by the European Union at theConference on security in Stockholm (December 2009) represents an effortto establish a standard architecture for the European Union security andan area of freedom security and justice in the service of the citizens

An agenda was established regarding security and justice startingwith 2010 until 2014 which should be translated into guidelines orlegislative proposals before coming into force This way the exchange ofinformation between national security services would be easedsignificantly based on the principle of availability the databases would becentralized in the European Union and made accessible to the authoritiesof every single state

The multi-annual programme establishes an agenda regarding thepoliticies about refugees in the European Union for the next 5 years Anextension is desired of the control system of the European bordersEurosur which is going to use satellites and cameras in drones (airplaneswithout pilots) and airplanes Frontex specialized in border control in theMediterranean area shall extend in order to detect illegal refugees in theterritorial waters surveillance network

The Stockholm Programme has as its main objective the finalizationof the process of European integration the freedom to travel for theEuropean citizens The Schengen agreements mean more liberty and at thesame time more security23 This is because the Schengen agreementfacilitated border crossing for the European Union citizens but theSchengen Informational System (SIS) stopped being just a simpledatabase and now it focuses on preventing and identifying the threats topublic order and security

The Stockholm Programme in internal security of the EuropeanUnion sets a series of measures meant to support achieving this goalAmong these measures there are police staff training in Europeanproblems including exchange of programmes (like Erasmus) the settingup of a European model of information and the improvement of collectionand handling of operative information (including custom-house field) it isbeing aimed at overcoming obstacles against information exchange withthird countries

22 Wicht Christine More Security at Any Price - The Stockholm Programme of the European

Union wwweurozinecom 0208201023 Wolfgang Schaumluble interview with the finnance minister wwwwordpresscom

March 2010


173

Also the integration of the Prum Treaty in the European Unionlaw24 insures indirect access to the databases of the member states thatinclude information about digital finger-prints and DNA and a directaccess to the car registration files And the technical measures have animportant role Therefore it is made a special mention about thedevelopment of the informational system SIS II (Schengen InformationSystem) and VIS (Visa Information System) and introducing an electronicrecording system for entrances and exits of the member states territoryand also a programme with registered travelers For this purpose theCommittee has in sight the setting up of a new agency that would startfunctioning in 2015

Also it wishes to strengthen the policy on visas the setting ofcommon goals the fight against international organized crimerepresented by human trafficking sexual exploitation of children andchild pornography cyber crime economic crime the continuation of theanti drug strategy (2005-2012) reducing the terrorist threat

In the context a very important element is control and surveillanceof the borders in order to protect them ldquoThe European Union finds itselfin the situation of facing the challenge of insuring the exercise of freedomof free movement insuring in the same time the security of the peoplewithin an integrated approach to control access to the territory25rdquo

Control types (security immigration border) at the crossing pointsmust be rationalized especially by separating the private traffic from thecommercial one In some particular cases this type of rationalization willinvolve the improvements of the existing infrastructure and the increasedappeal of new technologies A closer cooperation between nationalauthorities will allow a simplification of the procedures making it easierto cross the border Also there is a necessary attention that must bedirected to vulnerable people or group of people Priority will be given toneeds of international protection and receipt of unaccompanied minorsFor that we have to ensure good coordination of Frontex activities withthose of European Asylum Support Office for receiving personsintercepted at the crossing of external borders

Of particular importance in this area is the visa policy The Unionmust effectively implement the tools at its disposal Entry into force of thenew code of visas and the progressive pursuit of VIS will allow greaterconsistency and efficiency The regional programmes for consularcooperation will accompany the implementation of VIS and will include

24 Decision 2008615JAI from 23 June 2008 published in the EU Official Journal L2101

from 0608200825 Wolfgang Schaumluble Interviu cu ministrul de finanţe al Germaniei

wwwwordpresscom martie 2010


174

European training of consular staff of member states systematic planningof common visa application centers or representation agreements betweenmember states information campaigns and awareness in the countriesconcerned and establishing a regular dialogue with these countries26

The following aspects should also be taken into account the legalinstitution of family reunification27 the improvement of control overillegal immigration with the following aspects combating illegal workhuman trafficking implementation of return28 a directive that has to betransposed into national law by December 2010 adoption of commonstandards on the status of illegal immigrants who can not be removedinclusive

43 Identification of the strategy functions of the EU internalsecurity

At the current level some established theories are accepted for thedefinition and implementation the theory about the increasing role of thestate in regulating the essential areas (economy finances justice securityand public order) the theory which promotes deregulation reduction ofthe state intervention in society function theory or the current thatencourages the growth of the decisional role of the European Union thathas to have two Security Strategies a strategy for internal security and astrategy for external security

Anyway in the structure of internal security the followingcomponents are identified economic security financial security socialsecurity military security the security of the environment judicialsecurity

In the same time the European Unionrsquos Internal Security Strategymust be conceived according to the following principles the principle ofrespecting the rights and the fundamental liberties the principle of real solidaritybetween the member states the principle of preventing and controlling the mainthreats against persons and collectivities the principle of complete approach andof a common culture regarding the internal security the principle of mutual trustbetween the member states the principle of joining the European Unionsstrategies of internal security and external security the principle ofharmonization between the internal security strategies of the member states andthe European Unions security strategy

In February the European Unionrsquos ministers of Internal Affairsamended a Strategy for Internal Security for the European Union that is

26 C Voicu op cit p 254-26327 C Voicu op cit p 254-26328 By revising the Directive 200386CE from 22 September 2003 published in the EU

Official Journal L 251 3102003 p 12-18


175

one of the priorities of the Spanish presidency Additionally a Committeeon Operational Cooperation on Internal Security (COSI) was set up

Other regulations of the strategy are also particularly relevantbecause of its connection with the changes in the perception of internalsecurity and its current objectives These problems are debated based onthe documents published by European Unionrsquos agencies and branchesFrom here it results that the theory of extension in the matter of internalsecurity is confirmed by the Unionrsquos documents regarding the externalaspect of the internal affairs

5 The impact of integrated management of the borders on theEuropean Unionrsquos internal security

The notion of border is rapidly dissolving representing the oldnotion of lines and fronts Instead there are frontiers and regions and theconcept of security must be adapted taking into consideration thesechanges The trans-nationalisation of security opposes the national and thesocial security It creates a situation in which we cannot make thedifference between external and internal29

Still the European Union admitted the process of globalization andits effect on security Furthermore only in the countries where democracyis very well founded where the peoplersquos rights and laws are obeyed thatthe efficient fight against trans-national dangers is possible So theEuropean Union paraphrases the idea of human security (Kofi AnnanrsquosMillennium Development Purposes)

The most relevant aspect for the concept of evolution of the internalsecurity concept is nevertheless the adoption of a Strategy for InternalSecurity by the European Union in February 2010 it was one of thepriorities of the Spanish presidency The strategy encompasses a broadspectrum of objectives for the European Union regarding the internalsecurity matter So in terms of a theoretical approach of internal securitythere are provisions that are analyzed

In the first instance the Strategy formulates a definition of internalsecurity this way the internal security concept must be understood as a broadand scope concept that supports a broad range of sectors to eliminate these majordangers and others that have major impact on the life integrity and welfare of thecitizens including natural hazards and the ones made by man earthquakes forestfire floods and storms30

29 Directive 2008115CE from 16 December 2008 published in the EU Official Journal L

34898 2412200830 Bigo D When Two Become One Internal and external securitisations in Europe Londra-

New York Routledge 2000 p 171


176

So these declarations refer to the Canadian approach to humansecurity (the so called freedom to protect yourself) that focuses more onpolitical freedom than on the other one The strategy states a commonpolicy of internal security in the European Union defining in the samedimension the European Model of Security consisting of tools and jointefforts for mutual consolidation of the relationship between security freedomand intimacy cooperation and solidarity between member states implication of allEuropean Union structures investigation of the causes of insecurity not just theeffects produced stimulation of prevention and anticipation implication in all theareas that play an important role in public-political economical and socialprotection and a larger independence between internal and external security

The purpose of the common fight against modern threats such asterrorism organized crime cyber fraud illegal border crossing naturalhazards or set by a human being The main purpose of the strategy is amore integrated approach to achieve the selected goal we selected a security modelthat combines law enforcement with the legal work border management and civilprotection31

Mostly the globalization process is the one that has a major impacton changing the connotation of the internal security term in our era Soterms like intermestic security have the role to highlight the interplaybetween external and internal areas nowadays

Taking into consideration the conclusions mentioned above and theEuropean Unionrsquos definition of internal security we consider that amodern concept of national security should not only focus on securingnation-states and their authorities the way traditionalist connotationshows it but especially on securing citizens and all the other fields (internal external non-military military ) a wide and embracing conceptthat complies multiple areas being able to tackle these major challengesand others that impact the life integrity and welfare of citizens in order toenforce law and order and public safety32

REFERENCES

Barry Buzan Rethinking Security after the Cold War Cooperationand Conflict vol 32 no 1

Barry Buzan Security of persons from international perspectivequoted by Mely A C Hassan M J Asia of the PacificOcean in the new millennium political and securitychallenges the 14th Asia-Pacific Reunion 3-7062000 KualaLumpur Malaysia 2001

31 EU Council Draft for the EU internal security strategy 584210 Bruxelles 2302201032 In 2008 due to regional and national efforts at EU level 1009 persons were arrested on

the terrotory of 13 countries charged with terrorism Europol TE-SAT Report 2009 p 6


177

Bigo D When two become one Internal and external securizationin Europe Kelstrup M Williams M C The theory ofinternational relations and European integration policiesPower security and community Londra-New YorkRoutlefge 2000

Decision 2008615JAI from 23 June 2008 on enhancing cross bordercooperation mainly for combating terrorism and cross bordercrime EU Official Journal L2101 from 06082008

Derghoukassian K After the Powell Doctrine The GlobalIntermestic Security p 5 annual meeting of the Internationalstudies Association Honolulu Haiti 05032005

Directive 200386CE from September 2003 on the right to familyreunification published in the EU Journal L251 3102003

Directive 2008115CE from 16 December 2008 setting out commonstandards and procedures to be applied in Member States forreturning illegal thirdcountry nationals published in the EUJournal L34898 24122008

European strategy for security Bruxelles 12122003European Union Council Draft of the UE security strategy

towards a European security model 584210 Bruxelles23022010

European Union Council Stockholm Programme A safe and openEurope protecting its citizens 1702409 Bruxelles02122009

Hill Ch Changing the foreign policies Basingstroke NY PalgraveMacmillan 2003

Human Security Doctrine for Europe The Barcelona Report of theStudy Group on Europersquos Security Capabilities Barcelona2004

KPMarcyuk Bezpieczeństwo wewnętrzne w poszerzonejagendzie studioacutew nad bezpieczeństwem (szkoła kopenhaskai human security) Warszawa Elipsa 2009

L Barringtonet al Comparative policies Boston CengageLearning 2009

Manning B Congress executive and intermestic affairs threeproposals Foreign affairs no 55 1977

R Doty Sovereignty and the nation constructing the boundaries ofnational identity in The social construction of statesovereignty TJ Biersteker and C Weber (eds) CambridgeCambridge University Press 1996

R Rose Learning from comparative public policy New YorkRoutledge


178

RHUllman Redefining security international security vol 8 no1 1983 in B Buzan L Hansen (eds) vol I LondonThousand Oaks Sage Publications 2007

Sherr J Soviet Power The continuing challenge BasingstokeLondra Macmillan 1987

VDCha Globalization and the international security study in TheJournal of Peace Research vol37 no 3 2000

Voicu C EU internal security strategy according to the LisbonTreaty paper presented at the international conferenceInternal Affairs and justice in the process of globalizationPolice Academy May 2010

W Wagner Community Internal Security Democratic peace andWestern Europe Extradition policies The Journal of PeaceResearch vol40 no 6 November 2003

Wicht Christine More Security at any Price ndash The StockholmProgramme of the European Union wwweurozinecom02082010

Wolfgang Schaumluble interview with the Finance Minister fromGermany wwwwordpresscom March 2010


179

THE ELECTRONIC CONTRACT UNDER THE ROMANIANLAW

Alexandru BLEOANCĂ

AbstractThe paper analyzes certain aspects of the electronic contract (the contract

concluded in electronic form) as regarded from the perspective of its dynamics ie thesequence of its chronological stages (negotiation conclusion performance of obligationsand dispute resolution) It starts from the premise that the use of electroniccommunication means which allow the contract to take the electronic form is the modernexpression of collaboration between legal science and computer science

The first topic regards the informational fundaments of the contract which is thecharacteristic that allows a contract to accept an electronic form Therefore the definitionof the electronic contract is centered on the special feature of the legally accepted evidenceof such contract

Specific rules for the conclusion and performance of electronic contracts areanalyzed (contractual negotiation offer and acceptance moment of conclusion obligationcarrying a dematerialized object) as well as the special problems regarding consumerprotection and personal data protection

Last but not least the paper includes two propositions for law modification(applicable not only in the Romanian law) aimed at enhancing the way electroniccommunication means are used in contractual relations

Definition of the Electronic Contract

The contract is a fundamental institution of the private law both indomestic and international relations As the whole society evolvestowards the virtual environment the contract has to adapt to the newelectronic technologies But the legal system has a greater resistance tochanges and adapts later to such structural changes

In its attempt to adapt to the virtual environment the contract tookthe shape of the contract concluded in electronic form or in short theelectronic contract We shall make a short analysis of the electroniccontract

The electronic contract may be defined as an agreement between twoor more parties enforceable by law agreement that is stated in electronicform1

PhD Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea de Josrdquo

University of Galati Romania Email alexandrubleoancagmailcom1 It should be noted that there is no legal definition of the electronic contract under the

Romanian law


180

This definition that we suggest underlines the two structuralelements of the electronic contract respectively

- the common category ndash the contract as a legal institution and- the specific difference ndash the electronic form

The electronic contract is not a new species of contract such as thecivil contract the commercial contract the administrative contract etcbut it can be any of the above mentioned to which it offers a new shapeAs a result there can be a civil contract concluded in electronic form or anelectronic civil contract a commercial contract concluded in electronicform etc

The electronic form results from the use of the electronic means ofcommunication at distance As this condition is lax in this category anytechnical instrument can be included however it should be noted that notall of them can be used as a piece of evidence in court And it would be awaste of the potential to conclude an agreement by use of electronic meansbut to prove it by classic means (such as witness testimony paper-basedwritings etc) This is why we had to restrict the definition of electroniccontract to the agreement concluded in electronic form by use of meansthat are accepted as court evidence

Nowadays under the Romanian law the only electronic formaccepted as piece of evidence is the one resulting from the use of electronicsignature for electronic data (in Romanian is ldquoinscris electronicrdquo which canbe approximately translated as ldquodocument in electronic formrdquo orldquoelectronic deedrdquo although the Romanian Law no 4552001 on theelectronic signature is the implementation of the EU Directive no199993EC the ldquoelectronic deedinscris electronicrdquo is not to be found inthe European act)

1 The Electronic Signature

In order to be accepted as piece of evidence in legal proceedings aspecific means has to be recognized as such by law Only one electronicmeans may be used nowadays as court evidence under the Romanian lawand this is the electronic document (data that is electronically signed)regulated by Law no 4552001 Of course this is a very low level use ofthe potential of the very numerous electronic communication means

As already shown the Romanian law (Law no 4552001) createdan institution that is not to be found in the source-legislation (EU Directiveno 199993EC) which it implements and this is the ldquodocument inelectronic formrdquo or the ldquoelectronic deedrdquo It is defined by law (article 4para 2) as ldquoa collection of logically and operationally interrelated data inelectronic form that reproduces letters digits or any other meaningful


181

characters in order to be read through software or any other similartechniquerdquo2

The document in electronic form is an institution created for thepurpose of assimilation from a functional perspective of the computerdata with the paper-based data the same way as the electronic signatureshould be similar to handwritten signature

The legal definition underlines the fundamental difference betweenthe written document and the electronic document the last one lacks asubstantial base When written a classic agreement is indissolubly relatedto its support (the paper) meanwhile the electronic data does not need aspecial support but can be copied and transferred to any support that istechnically suitable to record it For the handwritten document therelation between the content and the support is fundamental for theelectronic document only the content matters Therefore the concepts oforiginal and copy become meaningless and the copy even the copy of acopy is not only similar but even identical to the original

The paper-based agreement proves the will of the parties by theirhandwritten signatures Similarly the electronic document has to bear thesignature of its issuer(s) but in this case it is an electronic signature

The electronic signature is defined by art 4 para 3 of Law no4552001 as data in electronic form which are included in attached to orlogically associated with a document in electronic form and serve as amethod of identification

The electronic data is widely open to copy and distributiontherefore the regulation is very strict on the conditions regarding thecreation and use of electronic signatures The public service of certifyingthe electronic signature is monitored and controlled by the supervisoryauthority (which currently is the Romanian Ministry of Communicationand Information Society3)

2 The Dynamics of an Electronic Contract

From a static point of view the contract as a legal institution isshaped by its definition its classification and by the relation with otherlegal institutions

In the same time the contract is a very useful and also very usedlegal instrument therefore we should analyze it from a dynamic point ofview which is the sequence of its stages from negotiation to fulfillment ofobligation This is the structure we shall observe in our coming analysis

2 The translation was kindly provided by Dr Bogdan Manolea and is to be found on his

web-site at the following address httpwwwlegi-internetroene-signhtm3 For any other information please visit the Ministry website at the following address

httpwwwmcsiro


182

A Negotiation

The negotiation is the pre-contractual phase in which the partiesexpressly state the elements of the future contract The electronic means ofcommunication are intensely used even more intense than at the momentthe contract was concluded as there is no conditioning in doing so theparties do not have to take legal proceedings in order to negotiatecontracts

Any person can be easily contacted and offered a contract by usingelectronic means of communication therefore the commercial marketdeveloped many on-line advertising techniques some of them quiteunfair The most disturbing of them all proved to be the so-called ldquospamrdquo4and it triggered anti-spam legislation

Spam can be defined as the use of electronic messaging systems(including digital delivery systems) to send unsolicited bulk messagesindiscriminately While the most widely recognized form of spam is the e-mail spam the term is applied to similar abuses in other media such asinstant messaging spam or mobile phone messaging spam5

The anti-spam regulation was gradually adopted and modified inthe European Union throughout the years but it was implemented inRomania all of a sudden from the ldquoacquis communautairerdquo when Romaniabecame a member state As a result the legislation missed the correlationbetween its components and for a period of time Romania hadantagonistic legal solutions for the same problems

Such was the case of unsolicited commercial messages sent byelectronic mail as the Government Ordinance no 1302000 regardingdistance contracts imposed the opt-out system6 (art 16 original form)while Law no 3652002 on electronic commerce imposed the opt-insystem7 (art 6 para 1) The problem was solved by the change of the

4 The word is a commercial trade mark designating some canned pork meat its

computer-related use seems to originate in a scene from a popular British TV showldquoMonty Pithonrdquo in which some of the characters kept on repeating the word ldquospamrdquo

every two or three words making the others characters furious5 Spamming is economically viable because advertisers have no operating costs beyond

the management of their mailing lists and it is difficult to hold senders accountable for

their mass mailings Because the barrier to entry is so low spammers are numerous andthe volume of unsolicited mail has become very high In the year 2011 the estimated

figure for spam messages is around seven trillion6 The addressee keeps on receiving such messages unless shehe solicited not to receive

any more The name originates from ldquooption-outrdquo as the addressee had the option to getout of the system7 The sender was not allowed to send such unsolicited commercial messages to personswho have not expressly stated that they accept to receive them The name comes from

ldquooption-inrdquo as the addressee has the option to get into the system


183

Ordinance but it was not the only problem revealing imperfections inlegislative technique

B Conclusion of the Electronic Contract

The electronic contract is concluded the same way as the paper-based one the rules imposed by the Civil and Commercial Codes beingapplicable by the meeting of the offer and of the acceptance The onlychange is that the offer and the acceptance should take the electronic formas they are the two halves of the future electronic contract For the specialcategory of the distance contracts8 the use of electronic means ofcommunication at distance imposes certain rules in order to guaranteethat every contracting party is fully aware of the facts that shehe will besubject of an obligation legally enforceable Such a special rule governs themoment the contract is concluded between a merchant and a consumerdifferent from a classic contract which is concluded in the moment theofferor receives the acceptance from the offeree the respective contract isconcluded only when the offeror (the merchant) informs the consumerthat the acceptance was received This a new way the consumer isinformed that shehe became part of a compulsory contract and is aspecial means of consumer protection such as the consumerrsquos right tounilaterally withdrawal from a distance contract

C Fulfillment of the Obligation

The fulfillment of an obligation assumed by electronic meansdepends on the nature of goods and services to be provided If it regardstangible goods then the fulfillment involves material performance andthe electronic contract is no different from the paper-based contract But ifit regards non-tangible goods or services the obligation may be fulfilledby the use of electronic means of communication The most commonexamples are the delivery of information (electronic paper news bulletinsetc) of audio-books music and films and of software

The electronic contracts are usually distance contracts concludedbetween merchants and consumers The lack of material contact ndash bothwith the other contracting party and the goodservice to be purchased ndashcreates certain distrust for the person that has to pay the price of theproduct (consumer) especially if the payment is to be made in advance

8 The distance contract is defined by the Government Ordinance no1302000 as theproduct or service provision contract concluded between a supplier and a consumer

within a selling system organised by the supplier who uses exclusively before and afterconcluding the respective contract one or more means of distance communication (art2

par1 letter a)


184

The consumer fears not only that the product is not conforming to thepromised standards but also that the product will not be delivered orworse that the contracting party does not even exist (if it takes a fakeidentity) The lack of confidence is increased by the fact that the payer hasto reveal certain personal data such as identification data (name andaddress) and financial data (bank account) and shehe is not aware of theway this information will be used by the product supplier who receives it

The law aimed to reduce this distrust so that it strictly regulatedthe payment procedure The rules rely on technical systems thatguarantee for example that the provider does not charge the consumerbank account with more than the sum representing the price of theproduct

D Litigation

The contract concluded by electronic means of communication isnot denied legal effects if its existence is evidenced in a traditional way(written paper witness testimony etc) but the use of the electronicdocuments is the method adapted to the new virtual environment In theRomanian contemporary law only the electronic document that bears theelectronic signature of its issuer is accepted in legal proceedings the audioor video recordings are not recognized legal effect in civil courts

Law no 4552001 on electronic signature regulates two differentsituations in which the electronic document is accepted as court evidence

- a document in electronic form that incorporates an electronicsignature or has an electronic signature attached to or logicallyassociated with it based on a qualified certificate not suspendedor not revoked at that time and generated using a secure-signature-creation device is assimilated in as much as itsrequirements and effects are concerned to a document underprivate signature (article 5)

- a document in electronic form that includes an electronicsignature or has an electronic signature attached to or logicallyassociated with it acknowledged by the party the respectivedocument is opposed to has the same effects as an authenticdocument between those who signed it and between those whoare representing their rights (article 6)

Further on the law states that should the written form be requiredas proof or validity condition of a legal document in such cases as the lawmay provide a document in electronic form shall satisfy to this conditionif an extended electronic signature based on a qualified certificate andcreated using a secure-signature-creation device was incorporated toattached to or logically associated with it (article 7)


185

This way the electronic document which is basically a collection ofelectronic data is completely assimilated to the paper-based documentMore than that there exists the category of authentic documents issued bya public notary (regulated by Law nr 5892004 on the electronic notary)

The evidence is to be used in court but the electronic contract has asmall value therefore is more likely that any litigation related to it is to besolved out of court The court proceedings consume huge resources (bothtime and finances) so it does not worth to bring such litigation to a judgeConsequently there was need for a category of alternative disputeresolution adapted to the new environment cheap and quick Themediation and arbitration are also applicable and increasingly used asthey are officially promoted

3 Other Special Situations regarding the Electronic Contract

As already stated the electronic contract does not represent a newcategory of contract but it can be any of the civil commercialadministrative etc contracts But the new electronic form createssupplementary issues which have to be addressed For example the needto offer a certain protection to the consumer imposes new means ofachieving this goal in this category we mention the consumerrsquos right tounilateral withdrawal which was created to outrun the distrust created bythe lack of material contact between consumer supplier and product(articles 7-10 of the Government Ordinance no 1302000)

In the end we emphasize that the legislation on the electroniccontract evolved from the incipient soft law (Resolution no 40711985 ofthe General Assembly of the United Nations regarding the legal value ofthe computer records) to the intermediary UNCITRAL Model Laws onElectronic Commerce (1996) and Electronic Signature (2001) and to theinternationally enforceable current legislation of the European Union Inthe future further steps have to be made towards at least these goals

- the acceptance of the multi-media means in legal proceedingsand

- the use of computer simulation as evidence in courtOnly when these goals are be achieved the full potential of the

electronic means of communication and therefore of the electroniccontract will be reached


186


187

CRIMINOLOGY ASPECTS OF COMPUTER CRIMESUBCULTURES

Adriana TUDORACHE

Abstract

The sociological term subculture refers to groups that share several elements ofmainstream culture but maintain their own customs values norms and distinct styles oflife

Mertons theory according to which those with low formal education and limitedeconomic resources are more likely to head to a life of crime can not explain theappearance of hackers - who are the product anomiei of influence and have ample meansof US aims to achieve success but instead may explain their involution

Internet as the industrial revolution had transformed every aspect of our sociallife including criminal subcultures

Today criminology agree on the fact that hackers are subcultures with verydifferent cultural values norms and practices

Din punct de vedere strict juridic infractorul este persoana caresăvacircrşeşte cu vinovăţie o faptă prevăzută de legea penală care prezintăpericol social Din punct de vedere criminologic conceptul de infractor are osemnificaţie complexă datorită condiţionărilor bio-psiho-sociale care icircldetermină pe individ să icircncalce legea

Cauza criminalităţii a constituit şi constituie una din problemeleesenţiale ale criminologiei Inţelegerea acestor cauze va permite o bunăprevenire a comportamentului criminal o prevenţie mult mai necesară decacirctprevenţia specială rezultată ca urmare a sancţionării icircncălcării legii

Teoria lui Merton constituie punctul optim de plecare icircn studiulcriminologic al subculturilor criminalităţii informatice deoarece aplicacircndaceastă teorie la subculturile criminalităţii informatice de astăzi aceastapoate fi utilă icircn icircnţelegerea fenomenului

Merton a actualizat Teoria lui Durkheim pentru a explicadezrădăcinările şi dislocarea socială cauzate de Marea RecesiuneEconomică care i-a lăsăt pe mulţi indivizi fără mijloacele de a icircndepliniţelurile americane

Durkheim a introdus versiunea sa conceptului de anomie nefiindprimul care a folosit acest termen o stare obiectivă a mediului socialcaracterizată printr-o dereglare a normelor sociale datorită fie unorschimbări benefice dar bruşte dar mai ales dezastrelor (naturale


University of Galati Romania Email ruvia_0777yahoocom


188

economice războaie etc) societatea fiind incapabilă momentan săregleze să modereze tendinţele crescacircnde ale individului pentrusatisfacerea unor idealuri de confort material şi prestigiu social

Robert Merton dezvoltă cu toate că preia conceptul de anomie de laDurkheim o paradigmă examinacircnd mai concret consecinţele negative aleanomiei Merton pune următoarea icircntrebare de ce frecvenţacomportamentelor deviante variază icircntre diferitele structuri sociale şi cumse intamplă că devianţele au diferite forme şi tipare icircn structuri socialediferite1

Merton susţine -concepţia sa diferind de a lui Durkheim- căadevărata problemă este creată nu de schimbarea socială bruscă ci de ostructură socială care oferă aceleaşi idealuri tuturor membrilor săi fărăicircnsă a le oferi şi mijloace egale pentru a le atinge această lipsă de integrareicircntre ceea ce cultura defineşte şi ceea ce structura permite (mai icircntaiicircncurajacircnd succesul apoi prevenindu-l) poate provoca prăbuşireanormelor care nu mai sunt ghizi eficienţi ai comportamentului

Teoria sa accentueaza importanţa icircn orice societate a douăelemente

scopurile-aspiraţiile culturale sau idealurile pentru care oameniicred că merită să te lupţi

mijloacele instituţionalizate sau căile acceptate pentru atingerearespectivelor idealuri

Icircntr-o societate stabilă aceste elemente trebuie să fie bine integratecu alte cuvinte trebuie să existe la icircndemacircna indivizilor mijloace atacirct deimportante pentru ei discrepanţa dintre idealuri şi mijloace determinăfrustrare care duce la stres

Merton a conturat 5 modalităţi icircn care oamenii se adapteazăidealurilor societăţii şi mijloacelor de obţinere Răspunsurile indivizilormodurile de adaptare depind de atitudinea lor faţă de idealurile societăţiişi mijloacele instituţionalizate de atingere a acestora

Tipologia modurilor individuate de adaptare(1) conformarea -presupune acceptarea scopurilor şi de asemenea a

mijloacelor societăţii- fiind cel mai obişnuit mod de adaptare cei ce seadaptează prin conformare luptă pentru obţinerea bunăstării prinmetodele aprobate de către societate şi vor continua acest lucru indiferentdacă vor reuşi ori nu

(2) inovarea -presupune acceptarea scopurilor dar respingereamijloacelor necesare pentru atingerea acelor scopuri- consideracircnd că ei nupot atinge bunăstarea prin mijloace legale scot la iveală noi metode pentrucare pot atinge scopurile (metode nelegale) bdquoicircn această situaţie o virtute

1 Merton R K Social Theory and Social Structure Free Press New York 1968 p 185


189

americană de bază ambiţia promovează un viciu american de baza -comportament deviantrdquo

(3) ritualismul -presupune respingerea scopurilor dar acceptareamijloacelor- cei ce se adaptează prin ritualism abandonează idealuriledespre care au crezut la un moment dat că sunt de neatins şi s-au resemnatmodului lor de viaţă este adaptarea celor care vor să bdquomearga la sigurrdquo auobţinut un nivel minim de succes prin mijloace legale sunt blocaţi deteama de a nu pierde chiar şi acest nivel minimal bdquonu ridica capul maisus nu ţinti mai departe2rdquo etc

(4) retragerea -presupune respingerea scopurilor cacirct şi a mijloacelorcea mai puţin comună dintre cele 5 moduri de adaptare- aparţine tipuluide persoană care este cu adevărat străină de societate Merton sugereazăcă bdquoretragereardquo apare după ce o persoană a acceptat atacirct scopurile cacirct şimijloacele dar a eşuat icircn mod repetat să-şi atingă scopurile prin mijloacelegitime icircn acelaşi timp din cauza socializării anterioare individul nu estecapabil să adopte mijloace legitime bdquoieşirea este completă conflictul esteeliminat şi individul este total asocializat3rdquo

(5) rebeliunea -care este caracterizată de respingerea scopurilor şimijloacelor legale şi de icircncercarea de a stabili o nouă ordine Mertonsugerează că această adaptare este icircn mod clar diferită de celelalte şireprezintă mai degrabă o icircncercare de a schimba structura socială oicircncercare de a instituţionaliza noi scopuri şi mijloace pentru restulsocietăţii

Adaptările prezentate nu descriu tipuri de personalitate ci oalegere individuală a comportamentelor ca răspuns la stresul anomieiastfel indivizii pot alege un anumit mod de adaptare sau pot folosiadaptări simultane

Termenul sociologic bdquosubculturirdquo se referă la bdquogrupuri care icircmpartmai multe elemente de cultură dominantă dar care icircşi menţin propriileobiceiuri valori norme şi stiluri distincte de viaţărdquo

Sociologii utilizează conceptul de subcultură pentru a se referi lagrupuri religioase de noi imigranţi şi la grupuri bazate pe vacircrstă averepreferinţe sexuale educaţie şi ocupaţie

Conformismul navigatorilor pe Internet

Conformitatea apare atunci cacircnd indivizii adoptă scopurileaprobate de societate folosind mijloace aprobate de aceasta Majoritateautilizatorilor de Internet sunt conformişti din punctul de vedere al lui

2 Merton R K Social Theory op cit p 2013 ibidem p 208


190

Merton pentru că aceştia folosesc Internetul icircn scopuri legitimeConformitatea utilizării Internetului include folosirea acestuia pentru acomunica a educa a consulta profesionişti a cumpăra cadouri şi pentru acomunica cu familia prietenii etc

Primii hackeri au utilizat intruziunile icircntr-o modalitate benefică dinpunct de vedere social -ca o practică prin care să icircnţeleagă cumfuncţionează sistemul- La icircnceputul anilor 1960 şi 1970 hackingul erapentru mulţi studenţi echivalentul funcţional al unui studiu avansatprivind calculatorul

Inovaţia hackingul pentru profit

Unii utilizatori se folosesc de Internet ca de un instrument pentru acomite infracţiuni bdquoInovaţiardquo este actul de introducere a unui noudispozitiv sau proces creat prin studiu şi experimente Merton defineainovaţia ca pe o acomodare socială a indivizilor care au asimilat accenteleculturale de succes fără a-şi icircnsuşi icircn acelaşi timp normele care guverneazăicircnţelesurile acestui termen Inovatorii săi ideali erau devianţi sociali carefoloseau mijloace ilicite pentru a obţine succesul financiar Acest tip deinovatori se aplică majorităţii infractorilor care utilizează Internetul ca peun instrument de cacircştig ilegal Deoarece găsesc calea convenţională cătresucces icircnchisă inovatorii utilizează mijloace ilegale pentru a-şi realizaţelurile

Inovatorii din umbră utilizează mijloace ilegale pentru a atingeicircmbogăţirea rapidă prin hacking Inovatorii calculatoarelor se bucurăatunci cacircnd instituţiile legale sunt incapabile să detecteze efectivcriminalitatea informatică Multe infracţiuni informatice se concentreazăpe utilizarea icircn alt scop a calculatoarelor icircn vederea obţinerii de cacircştigurifinanciare ilegale

Criminalitatea organizată privind Internetul din ţările mai puţindezvoltate poate constitui un sistem semnificativ al fraudelor on-line alinfracţiunilor privind calculatoarele şi al infracţiunilor cu tentă sexuală dinspaţiul informatic

Ritualismul hackingul ca obişnuinţă

A treia categorie de subcultură este reprezentată de ritualişti careau aşteptări scăzute avacircnd o viaţă fără scopuri sau ţeluri pe termen lungRitualiştii resping ţelurile de succes dar se conformează mijloaceloracceptate din punct de vedere social Exemplul clasic al ritualistului estemuncitorul cu un salariu minim pe economie care are aşteptări scăzute desucces pe termen lung Un adult care lucrează la un restaurant fast-foodsau la un serviciu de curăţenie este un exemplu de adaptare ritualistică


191

Industria calculatoarelor face multe meserii mai puţin solicitante făcacircndu-i pe cei care erau odată supracalificaţi să aibă acum o muncă de rutină

Evazionismul hackingul ca dependents

Merton susţine că evazioniştii cei care resping ţelurile şi mijloacelesunt cea mai rară subcultură Icircn zilele lui Merton evazioniştii erau nişteparia sociali cum ar fi agresorii dependenţii de droguri prostituatele şialcoolicii Pentru evazioniştii de astăzi calculatoarele şi Internetulreprezintă o formă de dependenţă

Evazioniştii care pătrund icircn sistemele informatice ale unorcompanii sunt iniţial motivaţi de emoţia căutării mai degrabă decacirct decacircştigul economic bdquoHackerii recreativi pătrund icircn reţelele informaticepentru emoţia provocării sau pentru a obţine drepturi icircn comunitateahackerilorrdquo4 Un infractor juvenil icircn vacircrstă de 15 ani din Connecticut a fostacuzat de pătrunderea icircn sistemul informatic al Forţelor AerieneAmericane care detectează poziţiile avioanelor forţelor aeriene dinicircntreaga lume El a fost de asemenea acuzat de pătrunderea icircncalculatoarele Departamentului de Transport al SUA icircn Centrul Volpe dinCambridge Massachusetts cauzacircnd pierderi economice majore5 Unadolescent din Massachusetts a cauzat inchiderea unui aeroport regionalprin intreruperea sistemului de telefonie dupa ce a patruns in sistemulinformatic al acestuia

Multi dintre infractorii informatici care lanseaza viruşi de calculatorpot fi de asemenea clasificati ca fiind evazionisti electronici deoareceautorii virusilor ca şi alti agresori prin calculator sunt motivati de emotiainselarii autoritatilor din intreaga lume

Rebeliunea hackingul ca nesupunere la regulile societăţii

Rebeliunea reprezintă al cincilea tip de subcultură propus deMerton icircn care scopurile şi mijloacele sociale sunt respinse icircn favoareaunor alternative Hackerii calculatoarelor care au dezvoltat programul decalculator numit bdquoDeCSSrdquo care icircnşeală sistemele de protecţie pentru DVD-urile care conţin filme se referă la ocupaţia lor ca fiind o formă debdquonesupunere la electronica civilărdquo

Extremiştii culturali de la sfacircrşitul anilor 1960 la fel ca şi ceielectronici de astăzi au blamat cultura dominantă arătacircnd valori norme şiinstituţii alternative Extremiştii culturali au respins familiile tradiţionalenucleare şi au experimentat grupuri familiale extinse avacircnd stiluri de viaţă

4 Sinrod amp Reilly Cyber-crimes A Practical Approach to the Application of Federal ComputerCrime Laws Santa Clara Computer amp High Tech p 1855 Linda Rosencrance Teen Charged with Jacking into Air Force System wwwinfowarcom


192

icircn comun Icircn mod similar bdquohacktivism-ulrdquo este o formă de activism politicicircmpotriva globalizării şi a controlului unor companii de pe Internet6Criminologul Paul Taylor observa că hacktiviştii icircşi aleg ca ţintă deregulă corporaţii puternice postacircnd mesaje politice pe site-urile acestoraRecent hacktivism-ul a fost extins la viruşi motivaţi politic De exempluun virus similar forţei Kournikova a fost lansat icircmpreună cu bdquoun mesaj deatac asupra Forţei de Securitate Israeliene şi de chemare la Icircncheiereaviolenţelor icircn Orientul mijlociurdquo7

Teoria lui Merton potrivit căreia cei cu o educaţie formală redusă şicu resurse economice limitate au şanse mai mari să se icircndrepte spre o viaţăplină de infracţiuni nu poate explica apariţia hackerilor -care suntprodusul anomiei de afluenţă şi care au ample mijloace de a atingeţelurile succesului american- dar icircn schimb poate explica involuţiaacestora

Internetul ca şi revolutia industrială a transformat fiecare aspectdin viaţa noastră socială incluzacircnd subculturile infracţionale Istoriahacker-ilor oferă o analiză a motivelor infracţiunilor informatice

Prima generaţie de hacked a cuprins copii din cele mai influente şieducate segmente ale societăţii americane Primii hackeri erau studenţiextrem de curioşi cu privire la domeniul calculatoarelor programatori decalculatoare foarte creativi care ulterior au devenit profesori de ştiinţeinformatice creatori de programe administratori de reţele şi antreprenoricreativi cum ar fi Bill Gates care a lansat revoluţia calculatoarelorpersonale

Printre primii hackeri au fost şi studentii de la MIT care au accesatcalculatoare fără a avea permisiune pentru a-şi satisface curiozităţileintelectuale

Studiul experimental a lui Dorothy Denning asupra hacker-ilor aconcluzionat că aceştia sunt un grup difuz cu valori complexe Interviurileei cu hackerii au confirmat spiritul etic al acestora icircn sensul că aceştiaaveau ca motivaţie primară dorinţa de a icircnţelege sistemele informaticesecuritatea şi reţelele şi nu dorinţa de a comite infracţiuni informatice

Cultura hackingului etic a involuat icircn hacking negativ crimăorganizată dependenţă de calculatoare pentru a numi cateva subculturi

Hacker-ii din anii 1960 s-au transformat icircn subculturi cu o existenţăjosnică cum ar fi cele care se ocupă de deparolări de spargerea parolelor şinu numai

Literatura de specialitate privind hackerii confirmă existenţa uneidiversităţi de subculturi de la hackeri etici pacircnă la reţele de crimăorganizată şi extremişti culturali

6 Stuart Millar For Hackers Read Political Heroes of Cyberspace Guardian 8 martie 2001 p 47 Cyberdigest Janes Intelligence Review 23 martie 2001 LEXIS Market amp Industry File


193

Astăzi criminologii sunt de acord asupra faptului că hacker-iiconstituie subculturi diverse cu vaste valori culturale norme şi practici

Se consideră că hacking-ul este un produs de conflict şi contestaţieicircntre grupuri sociale diverse8 Se precizează că bdquocei care cunosccalculatorul se icircmpart icircn două categorii cei care sunt pregătiţi săcoopereze cu baza calculatoarelor şi cei pentru care baza calculatoarelorconstituie o anatemărdquo

Bibliografie

Autori romacircni

Constantin A Tehnici de investigare icircn criminalitatea informaticăLucrare de disertaţie susţinută la Universitatea Romacircnă deŞtiinţe şi Arte rdquoGheorghe Cristeardquo Bucureşti 2008

Dobrinoiu MInfracţiuni icircn domeniul informatic Ed All BeckBucureşti 2006

Alecu G Barbaneagra A Reglementarea penală şi investigareacriminalistică din domeniul informaticii Ed Pinguin BookBucureşti 2006

Maxim T Chipăilă A Gorunescu TF Ungureanu R Informaticaversus criminalitatea Ed Pro Universalis Bucureşti 2005

Amza T Amza CP Criminalitatea informatică Ed Lumina LexBucureşti 2003

Giurea L Blanda P Proecţia juridică a programelor pentru calculatorEd Pidner amp Pildner Tacircrgovişte 2003

Cioclei V Manual de criminologie Ed All Beck Bucureşti 1998 Stănoiu RMCriminologie Ed Oscar Print Bucureşti 1998 Nistoreanu G Paun CCriminologie Ed Europa Nova Bucureşti

1996

Autori străini

Adler F Mueller GOW Laufer WS Criminology 2nd edtMcGraw-Hill New York 1995

Internet

Safe information security Services httpwww7safecomAmerican Society of Crime Laboratory Directors (ASCLD)

httpwwwascldorg

8 Paul A Taylor Hackers Crime in the Digital Sublime Routledge New York 1999 p 15


194

Electronic Crime Partnership Initiative (ECPI) httpwwwecpi-usorg

IBM TJ Watson Research Centerhttpwwwwatsonibmcomindexshtml


195

ATYPICAL LEGAL SYSTEMS

Getty Gabriela POPESCU

AbstractJuridical diversity generally grouped in a coherent ensemble of great branches

such as the Romano-Germanic Anglo-Saxon or Muslim branch counts several legalsystems which cannot be included in any of the classical branches whose differencesnever cease to intrigue yet however must not be rejected or wrongfully attributed to oneof the aforementioned branches for they are atypical systems and knowing them becomesa necessity as differences do not exclude the harmony existing in the juridical activity

Among the atypical juridical systems there are (I) theScandinavian legal system (II) the Japanese legal system and (III) theChinese legal system

1 The Scandinavian legal system

Although it was initially considered to be part of the Romano-Germanic branch due to its distinctive features the doctrine currentlyacknowledges it as being an independent legal system

The following states are part of the system Finland DenmarkSweden and Norway Some authors even include Iceland Thecharacteristic difference of the system is given by the history of thesestates as well as by the way they were influenced by the Romano-Germanic system especially by the German and the French civil codes Astrong historical influence is represented by the government form theconstitutional monarchy that is that played an important part startingwith the XVI century Nowadays of all the 4 Scandinavian states onlyFinland is a republic the 3 others being constitutional monarchies(Denmark Norway and Sweden) therefore their juridical systems havebeen profoundly influenced by the characteristics of constitutionalmonarchies

Therefore Denmark has a parliamentary regime the prime ministerbeing granted an essential role in exerting the political power while themonarch only plays a symbolical part The parliament is elected by thepeople for a period of 4 years The only difference is given by the fact thatNorway is a Lutheran state just as Sweden a country that elects part of itsparliament members by scrutiny (310 member) and another part by the


University of Galati Romania Email popescugettygabrielayahoocom


196

proportional system (39 members) for a period of 3 years Finland has apresidential regime the president being elected by the people for 6 yearsyet there is also a prime-minister running the government The parliamentmembers are chosen for a period of 4 years through the same manner

The sources of the Scandinavian law are mainly formed of theGerman and French codes which have imposed codification in theScandinavian states while also taking the measure of unifying theregulations on commerce patents trade marks the regime ofmatriculations as well as the financial legislation

With regard to the code of the family it reflects the tradition ofNordic cultures so that the rules regarding the divorce marriageadoption and child support obligations are deeply influenced bytraditional beliefs

Concerning the criminal law its conception avoids longpunishments and therefore the periods of imprisonment must be as shortas possible the longest of them only reaching 15 years

However the doctrine mentions the fact that the Scandinavian legalexperts acted just as the Anglo-Saxons did and although innovative legalsolutions were rapidly introduced the newly-proposed rules were neverconceptualized

2 The Japanese legal system

This type of legal system was influenced both by the Chinesesystem (1) and the western one (2) The Chinese influence determined theintroduction of Buddhist perceptions and the formation of juridicalmanuscripts The western influence is both European and American andled to a better development of the civil constitutional family law and alsoto a better juridical organization

1 The Chinese influence began in the 5th century and lasted until1986 during the reign of Emperor Meji who embraced the westernvaluesTherefore the Japanese legal system was built on the Chinese

model and in fact marked by Confucianism adopting several codescontaining repressive dispositions In fact the greatest development isknown in the administrative and criminal law The legal system was alsoformed by a Chinese customary part yet the norms describing this partplayed a double role both moral and legal this leading to the conclusionthat the science of law is still doubled by moral

Slowly but surely Confucianism lost its amplitude being replacedby Buddhism thus diminishing the role of the monarch the latter beingaided in dealing with the state affairs by a sort of councilor of the palacenamed shogun as well as by various noblemen This determined the


197

construction of feudal castles imposing the principle of superiority in thedetriment of inferiority (those outside the castle) the inequity betweencitizens being considered rightful As a matter of fact the notion ofsubjective law cannot be found in the Japanese legal system of this eraThe noblemen were given certain privileges as prerogatives of theirstatus

2 The western influence expresses itself starting with 1868 andreaches two peaks ndash the European influence on the legal system andthe American influence especially with regard to juridicalorganizationThe European influence reached its most important period

between1868 and 1945 and is characterized by the creation of civil lawbrought along by the adoption of the civil code which contained bothdispositions of the French civil code and dispositions of the German civilcode Nevertheless there are also dispositions materializing certainJapanese regulations most notably with regard to the family regulationsthat reflect the traditions of the Japanese culture The civil code wasfollowed by other similar events ndash the civil procedure code was adopted in1890 and the criminal procedure one was adopted in 1922 They are stillbeing used today (after having been amended and revised) except thecriminal procedure code

The 1898 Japanese constitution used the 1850 Prussian constitutionas a model being strongly influenced by a limited monarchy

With regard to the law of contracts it was of German influence yetelements of the French law can also be encountered Therefore in case offailing to comply with the conditions agreed in the contract the Germantheory is employed with three consecrated cases the non-execution forfailing to meet the time limit the impossibility of execution and the breachof contract

Moreover the contractual liability may be grouped with thecriminal liability in spite of the provisions of the French law Howeverthe situation of failing to comply with the provisions of the contract isapproached as per the provisions of the French law (according to the civilcode of the Napoleon era) meaning that if the debtor fails to comply thecreditor may demand reparations of interest

The civil liability has a mixed influence ndash both German and FrenchThere are only two conditions the existence of a premeditated orwrongful misdemeanor following a breach of the duty of care breach of asubjective right (mentioned by the German law) or of a norm mentionedin a law The reparation of damages includes both material and moralprejudice just as decided by the French law and further outlined by theGerman law


198

The second important moment in the formation of the Japanese lawsystem is represented by the introduction of the American law afterJapanrsquos capitulation in 1945 The American presence in Japan after the warexerted a strong influence over the juridical system Consequently a newconstitution was adopted in 1946 founded on innovative principles suchas the peoplersquos suzerainty principle the citizensrsquo equality principle thestate secularity principle granting the rights and fundamental liberties ofthe population The oral regulations which have been transposed to theCivil code especially with regard to the institution of the family were leftaside marking an important modernization phase of the Japanese law (thetraditional family law was changed) However the decisive influence ofthe American law has radically changed the juridical organization mannerand the control of the lawsrsquo constitutionality

With regard to the juridical organization there were the followingcourt categories the primary courts the regional courts the courts ofappeal and the Supreme Court Following the American model all thecourts have equal trial rights therefore their competence is universal nomatter the cause brought to trial Consequently the minor issues werepresented to the primary courts the appeals were presented to theregional courts the annulments to the courts of appeal the Supreme Courtannulled the decisions of the courts of appeal on matters related to casesof breaking the law or Constitution

The Supreme Court of Justice was formed by a president and 15judges appointed by the executive power for a period of 10 years yetwhenever legislative elections took place the judges needed to bereconfirmed In spite of the political influence the Court is authorized toissue regulations for the interpretation of procedural norms Moreover theCourt also sets up the budget plan for all the juridical bodies the planbeing further adopted by the Parliament

The Supreme Court as a higher body is habilitated to assess- the conformity of the verdicts with the laws in force being

obliged to deliberate and decide on all the causes brought to itsattention this marking a difference from the Anglo-Saxonsystem

- the conformity of the laws with the Constitution (similarly tothe American system) By accident this competence was jointlyexerted with the inferior courts

The doctrine mentions the fact that ldquothe jurisprudence of theSupreme Court is marked by a strong conservatorship which is given bythe reduced number of non-constitutional declarations of laws and alsoby the restrictive interpretation of the Constitution or examined lawrsquosinnovative dispositions This conservatorship is however much reducednow and is to be eliminatedrdquo


199

One can notice both a strong American influence and a Europeaninfluence in the Japanese juridical system however according totraditional Japanese conceptions every conflict is better resolvedamicably therefore trials are regarded as exceptional resorts

The aforementioned type or bringing justice is determined by twophases the compromise and the conciliation The compromise is anamicable convention reached during litigations eventually ending all theconflict-related actions Every court has a conciliation committee formedby a judge and two private persons The judge doesnrsquot play a decisive partin reaching the verdict his rights being equal to the ones of the thirdparties

3 The Chinese legal system

Until the 20th century the Chinese law was based on Confucianismwhich meant that the system was mainly formed by oral regulations Thewritten regulations were mostly found in criminal law related issuesunder the form of dynastic codes

The notion of subjective law is only introduced in the 20th centurybeing also a contribution of the European law Chinarsquos transition tocommunism and the creation of the Peoplersquos Republic in 1949 marked thebeginning of a new phase in the legal system which was now aligned tothe socialist ideology As a consequence the subjective law and stategoverned by the rule of law notions lost their significance

The transition to communism resulted in the rethinking of the lawsourcesrsquo values the written law gaining the status of main source Theother sources (civil and commercial oral regulations and thejurisprudence pertaining exclusively to the Supreme Court) are secondarysources Nevertheless the jurisprudence of the Supreme Court tries todetermine directly-applicable law principles

The laws are adopted by the Peoplersquos National Assembly counting2977 members elected for a period of 5 years by the indirect vote of thepeoplersquos assembly leaders in the province self-governed regions who alsoelect the 155 members of the permanent Committee who served as areplacement of the National Assembly once a year (between sessions)

The doctrine also mentions the fact that if the Chinese systemagrees to prioritize the international norms to internal ones wheneverthere is a conflict between the two categories the provided answer is notentirely positive Therefore no law foresees the superiority of aninternational text over an internal law ldquoThe juridical context surroundingthese pressing issues allows the Chinese political power to providepragmatic answers adapted to their own selfish interestsrdquo


200

Regarding the juridical organization it is formed by twojurisdiction types The first jurisdiction is comprised of the local peoplersquostribunals and special tribunals while the second one is represented by theSupreme Peoplersquos Court

The local peoplersquos tribunals can be further divided into 3 types ofcourts the basic peoplersquos tribunals (existing in communes and smalltowns) the superior peoplersquos tribunals (existing in provinces and selfgoverned regions) It is to be noted that these tribunals are assisted by aCommittee of judges only getting involved in the difficult cases

The special peoplersquos tribunals are in fact the specialized courtseither military or maritime ones

With regard to the Supreme Court it is structured in severalsections (civil penal economic administrative appeal communicationsand transportation) the judges are appointed on political reasons by thePermanent Committee of the Peoplersquos National Assembly The Court maybe the first but also the last to judge misdemeanors Its verdicts anddecisions are mandatory for any other inferior court

Regarding the criminal code it mostly follows the features of thesoviet (communist) legislation as it only focuses on the worst ofmisdemeanors The ldquosmaller misdemeanorsrdquo or contraventions areattributed to the administrative law In fact according to the Chinesecriminal code a misdemeanor can be sanctioned if it contravenes to thepublic order meaning that any deed aimed to hurt private or collectiveproperty in any way or the suzerainty and territorial integrity ispunishable

However among all the conviction the conviction to death is stillmentioned According to the official reports of Amnesty Internationalthere are around 2000 people sentenced to death leading to severalrecommendations and protests from the part of several internationaldocuments

If in the criminal law-related issues the influence of the soviet lawover the Chinese law increases in the private-law issues there areinfluences of the Romano-Germanic law as well as the reminiscence of theJapanese culture The private law was subject to an important reform in1987 when several laws were adopted and grouped into a single codexthen further named ldquoGeneral Civil Law principlesrdquo These laws wereintended to modify which brought along further modification in theimportance of law sources the most important one becoming the writtenlaw in detriment of the orally passed regulations

It is to be mentioned that apart from the socialist legal systemimplemented by the European countries until 1989 the Chinese systemencouraged the development of private property and the existence ofcommercial law Therefore unlike other ex-socialist states through the


201

1988 reform 4 new types of companies were created the equity jointventure the cooperative joint venture the limited liability companies andthe joint-stock companies considered to be far more flexible for foreigninvestors The only thing that needs to be added is that the legislativerequests that the owners of such companies should meet severalrequirements stipulate the number of years the company is believed tocarry out its activity and also obtain the approval of the Chinesegovernment (which brings about a serious afflux of bureaucracy)

Conclusions

Although in their content elements are borrowed either from theRomano-Germanic system or from the Anglo-Saxon one the atypical lawsystems are mixed judicial regimes that is why they do not belong to anyof the big law families On the other hand the fact that they do not belongto any of the classical families does not mean that they lack importance orthat they can be ignored by the scientific research every legal system orbranch represents an element of diversity of the judicial macro-system

Additionally there is no pure judicial system we borrow and adapteach otherrsquos realities and this creative exchange proves the harmonizationand unity of judicial diversity

But harmonization does not necessarily mean a unification orassimilation of the national systems because the juridical world cannot bereduced to only 3-4 legal systems Diversity is normal and necessary evenfor the juridical branches as it represents an element of national identity


202


203

COORDINATES OF THE FAMILY LIFE ACCORDING TOARTICLE 8 OF THE EUROPEAN CONVENTION ONHUMAN RIGHTS AND ARTICLE 3 OF THE HAGUE

CONVENTION

Gina IGNAT

AbstractA vector of the protection ascertained by the European legislator in article 8

paragraph 1 of the European Convention on Human Rights regarding family life (notexplained in the content of the Convention) is subject to ndash like many other cardinalinstitutions targeted by the conventional text ndash the dynamic and progressiveinterpretation of the human rights claim court This court has explained its contentestablishing multiple valences in agreement with the internal law of the national statesand with the relevant stipulations of the international law

The parentrsquos and childrsquos possibility of enjoying each otherrsquos company represents aprimary element of the family life that claims urgent and efficient interventions by stateauthorities for the exact implementation of both positive obligations arising from theConvention and those stated in the Hague Convention in 1980 regarding the civil aspectsof international child abduction

Thus the European Court of Human Rights has emphasized continuously eachcontracting statersquos duty to provide itself with an appropriate and sufficient legal arsenalto ensure that positive obligations are abided on grounds of article 8 of the Conventionand to other international law instruments which it has ratified

In this paper we intend to focus on the essential coordinates of family life as theyare presented both in the Convention text written down by the European Court ofHuman Rights and the Hague Convention in 1980

Keywords family life Convention positive obligations international law

1 Limitation of the state sovereignty by acknowledging andinternationally guaranteeing human rights

The appearance and the development of the internationalprotection of human rights therefore the international cooperation ofstates in this regard makes the problem of human rights no longerrepresent an area of exclusive national competence reserved only tonational sovereignty understood absolutely and discretionarily (Popescu2000)


University of Galati Romania Email ginaignatjustro


204

Thus the state has no longer absolute power over the individuals inits jurisdiction On the contrary it is obliged to respect their rights thatwere acknowledged by international lawnorms

Given the fundamental distinction between the international andthe internal law the international regulations of human rights have aspecial regime The internal law is a subordination that gives rise to onlyone judicial order within which the subjects are subordinated to the statepower in its triple function legislative executive and judicial Theinternational public law represents a law of coordination among sovereignstates and it does not accept any legislator judge or mandatory sanctionexcept the consent of the states in question (Sudre 2006)

One of the principles governing the relationship between theinternational law of human rights and the internal law is the principle ofsubsidiarity This principle may be enforced substantially and throughprocedures

In addition the principle of subsidiarity also functions in theinternational judicial norms in force regarding human rights In case of aconflict between two international norms that both tend to be enforcedalthough they have contrary provisions the solution will be given neitherby the principle of judicial hierarchy nor by the principle of succession intime but by the principle of subsidiarity which enforces the mostfavourable norm for human rights (Popescu 2007)

We consider that the applicability of international normsconcerning human rights must also be guided by another rule known tothe internal law namely the prelevance of special norms in relation to thegeneral one Therefore if more international regulations are involved thepriority will be for that regulation which regulates in detail the relationsconcerning a right or a category of individuals

For the present approach we intend to analyze mainly the relationbetween two such international regulations ndash the European Conventionon Human Rights and the Hague Convention on the civil aspects ofinternational child abduction ndash the convergence of which concerns theregulation of the relationships between parents and children but also thedistinctions demanding the applicability of the text with special normvalue by virtue of the settlement in detail of the key aspects that must betaken into account when defending family relationships

2 Relevance of international law in terms of jurisprudence of theEuropean Court of Human Rights

The jurisprudence of Strasbourg Court of Law an authority whichhas the monopoly over the interpretation of the European Convention on


205

Human Rights (ECHR) may impose obligations to states that go beyondwhat the text of the treaty seems to pretend

According to article 60 of the Convention no disposition can beinterpreted as limiting or affecting human rights and fundamentalfreedoms which may be recognized according to the law of eachcontracting party

One must also consider the prevalence of the authority of theEuropean mechanism of human rights protection an idea enhanced by theprovisions of article 62 stating that ldquoThe High Contracting Parties agreethat except by special agreement they will not avail themselves oftreaties conventions or declarations in force between them for the purposeof submitting by way of petition a dispute arising out of theinterpretation or application of this Convention to a means of settlementother than those provided for in this Conventionrdquo (Puşcă 2002)

The European Court of Human Rights emphasized in the firstdecision taken in an interesting dispute (Ireland against Great BritainJanuary 18 1978) the fact that ldquocompared to the classical internationaltreaties the Convention exceeds the common reciprocity between thecontracting statesrdquo Besides a series of bilateral synallagmaticcommitments it creates objective obligations that in terms of its Preamblebenefit from a ldquocollective guaranteerdquo The European judge emphasizes thespecificity of the Convention linking the objective feature of theconventional norm to the ldquocollective guaranteerdquo which represents itsinstitutional expression (Sudre 2006)

The recognition of human rights acquires a global and universalcharacter that shows a visible concord of the international society a goodcollective consciousness human rights urbi et orbi Though thisglobalization of the proclamation discourse cannot erase the differencesbetween the proclamation instruments (Sudre 2006)

Thus has the Court decreed in the sense of necessity andrequirement of enforcing the European Convention of human rightsaccording to the principles of international law especially those referringto the international protection of human rightsrdquo (ECHR the case PiniBertani Manera and Atripaldi vs Romania the ruling in June 22 2004)

It is worth mentioning in this context that at an international levelthere are treaties with general vocation and treaties with limitedapplicability linked to an analytical approach which translates aldquodivisionrdquo tendency of a person thus particularprivate rights or specialcategories of individuals are protected The following titles can be quotedas an example the declarations of the United Nations General Assemblyregarding childrenrsquos rights (November 20 1959) the conventions referringto childrenrsquos rights (November 20 1989) etc (Sudre 2005)


206

3 The right to respect for onersquos private and family life

If it is true that all the rights guaranteed by the Convention mustrespond to a preoccupation regarding effectiveness this statement is evenmore true when talking about the right to respect for onersquos private andfamily life This is the reason why the European judges have progressivelydevoted an evolution of the concepts of private and family life theseconcepts are rather vague since the notion of private and family life can beunderstood in a wider or narrower sense (Renucci 2009)

The protection of private and family life makes many internationaltexts overlap Thus the right to respect for private and family life isprotected against arbitrary or illegal interferences by the public authorityand family ldquoa natural and fundamental element of the societyrdquo sees itsright to protection acknowledged by the state and society

As for the protection ensured by the European Convention ofHuman Rights in this domain one can notice the preoccupation of theConvention authorities to interpret dynamically the Convention in orderto protect it against any anachronism and to take into account theevolution of its customs and social needs

According to article 8 of the Convention ldquoeach person has the rightto respect for his private and family life his home and correspondencerdquo(1)

ldquoThere shall be no interference by a public authority with theexercise of this right except such as is in accordance with the law and isnecessary in a democratic society in the interests of national securitypublic safety or the economic well-being of the country for the preventionof disorder or crime for the protection of health or morals or for theprotection of the rights and freedoms of othersrdquo (2)

The first paragraph of article 8 is drawn upon the UniversalDeclaration of Human Rights adopted few years before the Convention

The incidence field of this text is practically unlimited In general itguarantees the right to privacy the notion used in the American doctrineor the right to be left alone using a less judicial term Article 8 is the firstof a series of four texts that protects rights representing the social respectfor the individual the protection system of human individuality beingcompleted by the provisions of articles 9 10 and 11 (Bicircrsan 2010)

As shown by the text of article 8 this covers many situations fournotions being referred to ndash private life family life residence andcorrespondence These notions join other terms of the Convention theCourt giving them an autonomous definition different from thequalification present in the internal law of the respective state


207

4 Relationships between parents and children

Characterized by the exigency of effectiveness the dynamicinterpretation of the right to respect for private and family life takes placefirst on the land of conceptual definition Thus keeping the generousacceptation of the concepts governing the applicability of the rightguaranteed by article 8 (ldquoprivate liferdquo ldquofamily liferdquo) the European judgeenhances the applicability of the conventional norm and consequently ofthe sphere of applicability of the right in question

The protection of family life is organized around two axes the rightto marriage and the right to respect for family life As the right to marriageis mainly treated in article 12 of the Convention we will refer to theconnotations of article 8 devoted to the protection of family life

Through a constructive interpretation of the right to respect forfamily life the European judge has enhanced the sphere of applicability ofthis right giving a meaning to the notion of ldquofamily liferdquo and proceededto the extension of the content of the guaranteed right

As the European Court declares in the stipulation Marckx againstBelgium on June 13 1979 ldquoby guaranteeing the right to respect for familylife article 8 presupposes the existence of a familyrdquo

The notion ldquofamily liferdquo is meant as a family relationship to whichan effective relationship is added ldquoFamilyrdquo as presented by article 8 ofthe European Convention on Human Rights is not limited only torelationships based on marriage and the right to respect for family life isvalid both in case of a ldquonatural familyrdquo and a ldquolegitimaterdquo one from themoment we can speak of an effective family life (Sudre 2005)

The effectiveness of interpersonal relationship represents the maincriterion of ldquofamily liferdquo Living together is generally a decisive conditionof the effectiveness of a family relationship However family life can existeven when there is no living together A divorce or the ending of a lifetogether do not end the family relationship between a parent and hischild and neither does the absence of parents living together at themoment of birth since they had a ldquofamily liferdquo at a certain momentFormulating the principle according to which ldquofrom the moment of birthand simply through birthrdquo a ldquofamily liferdquo connection is establishedbetween parents and child the Court shows flexibility in its appreciationof the effectiveness of family life (Sudre 2006)

The citizenrsquos right to respect for their family life must have as apremise the insurance of the possibility of taking all the legal measures tokeep the family together (Bozeşan 2007)

Thus the Court has always stated that article 8 implies the parentrsquosright to benefit from the state adequate measures regarding their being


208

with their child and at the same time compels the national authorities todispose of these measures

5 Establishing of family relationships and necessity of theirpreservation in case of parents separation

The importance given to family life justifies the preoccupation ofthe international society to avoid situations of separation between parentsand children and to decrease the effects of such a separation when thiscannot be avoided

The main principles concerning child protection have beenstipulated in 1959 in the Declaration of the Rights of the Child ldquoThe childfor the full and harmonious development of his personality needs loveand understanding He shall wherever possible grow up in the care andunder the responsibility of his parentshelliprdquo (article 6)

The International Pact on Civil and Political Rights shows that ldquoThefamily is the natural and fundamental group unit of society and is entitledto protection by society and the Staterdquo (article 23 (1) supported by article10 of the International Pact on Economic Social and Political Rights) andthat ldquono person can be subject to arbitrary or illegal interference on hisprivate life family home or correspondence or to any illegal attack on hishonour and reputationrdquo ( article 16 (1) and (2)) ( Hodgkin 2004)

The same important ideas are underlined in article 9 of theConvention on the Rights of the Child adopted by the United NationsGeneral Assembly on November 20 19891 according to which

(1) States Parties shall ensure that a child shall not be separatedfrom his or her parents against their will except when competentauthorities subject to judicial review determine in accordance withapplicable law and procedures that such separation is necessary for thebest interests of the child Such determination may be necessary in aparticular case such as one involving abuse or neglect of the child by theparents or one where the parents are living separately and a decisionmust be made as to the childrsquos place of residence

(3) States Parties shall respect the right of the child who is separatedfrom one or both parents to maintain personal relations and direct contactwith both parents on a regular basis except if it is contrary to the childrsquosbest interests

Article 9 of the Convention on the Rights of the Child emphasizestwo essential principles for the rights of the child first children shouldnot be separated from their parents unless it is in their best interests andsecond all the procedures leading to this separation must be correct It

1 Retified by Romania in the regulation no 18 1990 republished in MOf no 31413 06

2001


209

also states the right of the child to maintain relationship with his or herparents and establishes at the same time the obligation of the state toinform the parent or the child where the other one is and if the separationwas required by the state (for example by deportation or prison)(Hodgkin 2004)

In the spirit of the Convention on the Rights of the Child in case ofparents separation the authorities of the European Convention on HumanRights clearly state the principle of maintaining personal relationships ofthe child with each parent

In other words although life together is generally an essentialcondition of family life it is not a sine qua non condition the absence of alife together does not prevent family life In fact family life exists before alife together starting with the birth of the child Parents living or nottogether at that moment does not matter as the connection with their childimplies per se the family life (Renucci 2009) The effective character of arelationship has been taken into account but always in connection with thefamily

The right to respect for family life determines the establishing of anobligation of means by the state The state must ldquotake action so that itcould allow individuals in question to lead a normal family liferdquo (Marckxvs Belgium June 13 1979)

The protection of family life presupposes the establishing of familyrelationships by judicially recognizing them

The effectiveness of family life presupposes that the relationshipbetween parents and children the basis of family life should be protectedas the Court states ldquofor a parent and his child the fact that they aretogether represents a fundamental element of family liferdquo (Olsson vsSweden March 24 1988)

The right of a parent and of a child to respect for family lifeguaranteed by article 8 as stipulated by the European Court of HumanRights (Olsson vs Sweden Eriksson vs Sweden Andersson vs Sweden)is a right to measures meant to reunite them (Debet 2002)

The nontitular father of the parental authority has such a visit andhosting right that he cannot be deprived of only if there are seriousreasons It remains to be determined if the court decisions are well carriedout a good execution being demanded in Hokkanen vs Finland (Debet2002)

The European Judge also imposes on judicial authorities somepositive obligations of educational assistance systematized in the decisionScozzari and Giunta vs Italy July 13 2000 the obligation to ensure thatdecisions are effectively and coherently put into practice tending to fosterthe meetings between parents and children and the obligation of socialservices that must not prevent the respective decisions from being


210

enforced the obligation of giving parents ldquopertinent and completeinformationrdquo regarding the placement measures taken the obligation ofsupervising the persons or the institutions the children were entrusted to

The parent to whom the child was not entrusted has the right tovisit and to have a relationship with him unless the child protectionopposes (Hendriks vs Holland Hokannen vs Finland September 231994) In more general terms any parent who does not live with his childhas the right to have a relationship with him and the European judgecondemns any difference in treatment concerning the right to visitbetween divorced fathers and those who have children that were not borninside a marriage (Sahin vs Germany July 8 2003)

On the execution of court decisions of entrusting children after adivorce the Court has decided that the national authoritiesrsquo obligation oftaking measures for the reunion with the parent to whom the child wasentrusted is not absolute on the assumption that he is with the otherparent as it is possible that such a reunion presupposes its carefulpreparation

However the state is not obliged to reestablish the conditions of adegraded life through the deeds of those interested (Debet 2002)

The nature and the extension of the highlighted obligation dependon the circumstances of each case but the understanding and cooperationof all people and institutions involved in its carrying out represent a veryimportant element that must be taken into account in such situations

The national authorities must make efforts to achieve the necessarycooperation taking into consideration the rights and interests of all peopleinvolved especially the interests of the child protected by article 8 Wherethe contacts with the parents might threaten these interests or violate hisrights national authorities are compelled to ensure a ldquojust balancerdquo for allthe interests

In the case Maire vs Portugal (Decision of June 26 2003) where theplaintiff invoked that the Portuguese authorities did not facilitate theexecution of a court decision pronounced by the court of another state(France) the European court showed that in such cases whether themeasure is appropriate or not this will be appreciated taking into accounthow fast it was decided It is true that the procedures regarding theallocation of parental authority including the execution of the decisionsthat have established it demand an ldquourgent treatmentrdquo because time canhave irremediable consequences concerning the relationship between thechild and the parent who does not live with him any more

In the case Monory vs Romania and Hungary (Decision of April 52005) the same Court stated that since in all these cases the interests of thechild have a primordial importance it is possible to justify the fact thatafter 8 months since the plaintiffrsquos daughter had left Hungary the


211

Romanian Court appreciated that she had got used to her new place andthat the main interest was to let her stay with her mother in Romania evenif no legal decision had been made regarding her new residence (Bicircrsan2010)

6 Exigencies of the conventional law on child abduction

The states that have ratified the Convention on the Protection of theRight of the Child have the responsibility according to article 11 ofpreventing the children from being taken out or retained withoutjustification outside their jurisdiction of ensuring the retrieval of thesechildren and of taking all the necessary measures so that the kidnappedchildren in their jurisdiction should be returned

The respective article aims especially at the cases of kidnapping orrestraint by parents

As it is stipulated in article 11 the most effective way ofimplementing its provisions is the signing and implementation of relevantinternational instruments such as the Hague Convention regarding thecivil aspects of children kidnapping at an international level (1980)2

The Hague Convention represents a global instrument proposing toprotect children under 16 who (by violating the custody rights of certainindividuals) have been illegally transferred or retained abroad providedthe Hague Convention is in force between the two involved statesNormally under these circumstances the Court decides that thesechildren should be returned immediately to their residence where a finaldecision will be made concerning their future The Court may refuse togive such an order if the child protests or if he is subjected to the seriousrisk of being harmed or if the child has lived in the new place for morethan a year

What is more besides the Hague Convention there are otherregional treaties such as the Inter-American Convention on returningchildren and the European Convention on Recognition and Enforcementof decisions concerning Custody of Children These treaties may be usefulto extend the principles of the Hague Convention for example byemphasizing the details of the decisions that already exist (Hodgkin2004)

As it was natural enforcing the European Convention on HumanRights cannot be achieved without ensuring the effectiveness of thetransposition of international law principles especially those connected tothe international protection of human rights Thus the rights enunciated

2 Retified by Romania in the regulation no 1001992 published in MOf no

24330091992


212

in this convention stipulating positive obligations for the contractingstates such as the problem of the reunion of children to their parent mustbe interpreted taking into account the Hague Convention regarding theinternational aspects of children kidnapping

Certainly the interference of the state is urgently requested when ithas been established that removing or returning a child has become illicitthat is there is one of the hypotheses considered by article 3 of the HagueConvention namely

a) it is in breach of rights of custody attributed to a person aninstitution or any other body either jointly or alone under the law of theState in which the child was habitually resident immediately before theremoval or retention

b) at the time of removal or retention those rights were actuallyexercised either jointly or alone or would have been so exercised but forthe removal or retention

In what concerns the international ldquokidnappingrdquo of a child by oneof the parents or the refusal to allow the child to return to the parent hewas entrusted to in other country the Court underlined that in thepreamble of the Hague Convention the contracting parties express theirconviction that ldquothe interest of the childrdquo is vital for any problemregarding his custody and state their will of internationally ensuring theprotection of the child against the damaging effects of his removal or illicitreturn and of establishing the necessary procedures that guarantee thereturn of the child in the state where he has his usual residence andeffectively achieve the right to visit of the other parent (Bicircrsan 2010)

Therefore the European judge does not hesitate to interpret thepositive obligation previously mentioned in article 7 of the HagueConvention of 25 October 1980 which presents a list of measures thatmust be adopted by the states ensuring the immediate return of thechildren On condition that the ldquokidnappingrdquo is illicit (Guichard vsFrance decision of 2 September 2003) national authorities must ldquomakeadequate and sufficient effortsrdquo to enforce a court order requesting thereturn of the child to his mother (Ignaccolo-Zenide vs Romania decisionof 25 January 2000 Sylvester vs Austria decision of 24 April 2003)

The Hague Convention establishes measures meant to ensure theimmediate return of children illegally retained in a contracting stateAccording to article 11 of the Convention the judicial and administrativeauthorities already informed have the obligation to take immediate actionfor the return of the child any action later than 6 weeks having a seriousreason

7 Interference of international norms on the protection of familylife Realities and perspectives


213

The principle of the minimum level of the international protectionis a principle of the international law on human rights stated as a clausein all the international treaties on this subject from which by means ofinternal norms one cannot derogate ldquodownrdquo but ldquouprdquo a greater nationalprotection being added (Popescu 2003)

The almost universal ratification of the Convention on the Rights ofthe Child is a remarkable achievement The fact that every state haspractically assumed the responsibility for an obligations code in favour ofits children places the rights of the children right on top of the objectivesof the fight for human rights It also places a huge responsibility on theshoulders of governments and the civil society namely that of living up tothe assumed commitments (Bellamy 2004)

A core principle in all the international treaties on child protectionthe best interest of the child gets a special significance when the child isseparated from his parent or both parents In such a situationgovernments and public and private bodies must evaluate the impact oftheir action on children ensuring that the childrsquos interest has priority thathe is given the adequate importance and that a ldquochild-friendly societyrdquo isbeing built

First of all this concept implies the obligation of taking intoconsideration the best interest of the child individually especially in thesituations regarding the separation of children and parents parentalresponsibilities and the absence of a family environment etc

Internationally it has been repeatedly underlined the idea thatchildhood is not ldquothe antechamber of liferdquo but ldquolife itselfrdquo

Given the importance of preserving the best environment for theharmonious development of each child society is forced to take care of thenecessary measures

Knowing the jurisprudence of the European Court of HumanRights with reference to the way in which the Hague Convention isapplied is a necessity

Therefore each state receives the task of making immediate andeffective efforts to apply the right of the applicant at his minorrsquos returnaiming to satisfy the right to respect for private and family life guaranteedby article 8 of the European Convention on Human Rights

In this respect the court of law must promptly adopt theimplementation of the corresponding disposals of the Hague Conventionas the celerity of the way in which trials of custody are solved may haveirremediable consequences on the relationships between the minor andthe parent that does not live with him

The Hague Convention offers a series of measures to mediate theimmediate return of minors removed or retained illegally in anycontracting state and stipulates the obligation of judicial and


214

administrative authorities of taking immediate action in the trials ofreturning minors any inaction longer than 6 weeks leading to the demandof an explanation for delay

As the essential aim of article 8 of the European Convention onHuman Rights is that of protecting the individual against arbitrary actionby public authorities domestic courts must interpret the guaranteesoffered by the Hague Convention in this respect Consequently the state isforced to take positive measures in order to achieve the right of a parent tobe with his child but also positive obligations which are inherent to theeffective ldquorespect to family liferdquo In both situations one must take intoconsideration the proportionality ratio that must exist between the interestof the person and that of society hypothesis in which the state benefitsfrom a certain margin of appreciation However attention promptnessand adequate and sufficient efforts are important to require respect forfamily life

While analyzing the objectives of the Hague Convention and thepositive obligations of a contracting state according to article 9 of theEuropean Convention on Human Rights although it is possible that themodification of relevant situations might justify why a definitive legaldisposal has not been applied or a violated right has not been achieved itis essential to establish the fact that the state bodies involved have takenall the measure of execution and the changes that appeared in thissituation are not due to their lack of action

Bibliography

Bellamy C Preface for the Manual of implementation of theConvention on the Rights of the Child revised editionBucharest 2004 p XI

Bicircrsan C The European Convention of Human Rights ArticleComments Second edition CH Beck Publishing HouseBucharest 2010

Bozeşan I Some Considerations on the ensurance of respect forprivate life and the right to a fair trial in the development ofcivil trials The Judicial Courier no 12007 p 5

Briţa D On the Hague Convention on the international childrenkidnapping and the CEDO jurisprudencehttpwwwmpublicrominori_2008minori_4_3pdf

Chiriţă R The European Convention of Human Rights Commentsand explanations Second edition CH Beck PublishingHouse Bucharest 2008

Debet A Lrsquoinfluence de la Convention europeacuteenne des droits de lrsquohomme sur le droit civil Dalloz Paris 2002


215

Hodgkin R Newell P Manual of implementation of theConvention on the Rights of the Child revised editionBucharest 2004

Lefterache L The Limitation of the exercise of some rights asaccessory punishment the Judicial Courier no 92006 p137

Popescu C-L The international protection of human rights ndashsources institutions procedures All Beck Publishing houseBucharest 2000

Popescu C-L The relationships between the international normsregarding human rights and the judicial internal norms Thesubsidiarity principle The Judicial Courier no 52007 p22-23

Puşcă B Puşcă A The Judicial Protection of human rights TheDanubius Academical Foundation Publishing house Galaţi2002

Renucci J-F A Handbook on the European Law of human rightsHamangiu Publishing house Bucharest 2009Sudre Fr European and international law on human rightsPolirom Publishing house Iaşi 2006


216


217

THE CONCEPT OF LAW AND RULE OF LAW

Beatrice-Daiana DASCĂLU

AbstractThe notion of law can be explained taking into account its material content or

nature of public authority vested with the right to adopt rules of conduct generallybinding and impersonal and the procedure used for this purpose

The ldquosupremacy of the Constitutionrdquo is a phrase usually used in specializedRomanian literature but also in other literature along with other expressions such assupreme legal value super legality the supreme law the law of laws etc

The supremacy of the Constitution is the fact that the Constitutionis the basis of state organization the legal basis of all legislationLeadership is a trait that stands on top of political and legal institutions ina society organized in states the source of all regulations directions ofeconomic development political social and legal

The concept of law is defined in terms of minor nuances of thevarious branches of the law system

In a broad sense the concept of law is extended to any rule of lawhaving general - required In literature the law is defined as a legal act ofParliament established under the Constitution according topredetermined procedures and governing social relations most generaland most important or a normative legal act adopted by the legislatureafter the procedure established for that purpose which in its legislativepowers lays down general rules for application and repeated applicationof which is assured by state coerciţiunii virtuality

The concept of law can be explained taking into account itssubstance or the nature of public authority vested with the right to adoptrules of conduct in general - mandatory and impersonal - and theprocedure used for this purpose

Affirming the principle Generalitat law leads to the consequencethat the ideas guiding spirit of the rule of law no laws can be consideredtruly so-called personal law is acts of Parliament (or the executivepower) to create rights or obligations to one or more individualspredetermined So the extent that such a law aimed at individualcircumstances established governed by a law of general earlier it can beremoved for failing its rules

PhD Student Assistant Faculty of Law Tg-Jiu University Titu Maiorescu Bucharest



218

Generality of law is absolute and nothing prevents a law regulatingthe narrow fields of social life and also to address some subjects to bedetermined but all the generic features

Other laws may be adopted and authorities of executive powerincluding the bodies of central and local government Between all theselaw occupies a central place it being within the top hierarchy of legaldocuments That is also the rule of law conferred in the first place that isadopted by representatives of the nation and express its sovereign willAll other legal acts must conform with the law

Legal force of law is superior legal force subordinates issued bythe executive

Rule of law is ensured primarily by establishing in the constitutionor by customary law of the field the regulatory sphere reserved to socialrelations law In principle Parliament can legislate in any area of sociallife as it is the sole legislative authority and supreme representative forumof the people However the political regimes in which the constitutionallevel is not set aside a certain regulatory domain of the Legislature as forexample if the US Congress and the French Parliament parliamentarypractice outlined a balance between the legislative powers of Parliamentand government regulatory power

It would be absurd to claim that Parliament could regulate allspheres of social life in the smallest details and would virtually lock theLegislature Therefore it is recognized in general executive power to issuerules of conduct primary fields of social life but to empower thelegislative power

Another way to ensure the rule of law of reserving the right toamend a law that body adopted is using the same procedure inParliament and legislative approval of the recourse to such law A lawmay be amended only by a rule with the same legal force

In the constitutional systems of law are distinct categories such asconstitutional laws organic and ordinary laws can be changed by thesame character

A law having an upper legally may amend the provisions of a lawwith a legally inferior

By its essence and its social function the Constitution is legallysuperior to any other rule of law Therefore all normative acts adopted byParliament and government and acts of other public authorities mustcomply with constitutional rules and principles If a piece of legislationincluding a law passed by Parliament or regulation of organization andoperation there of contrary to the Constitution can not take effect Thejustification lies in the very supremacy of the constitution and its legalpolitical character Thus the Constitution finds its supreme expression of


219

the people in terms of objectives and instruments for the exercise ofpolitical power

The Constitution is established rights and liberties and structuralfactors of the legal system to which they provide guiding principlesequality of all citizens legality laws etc

Modern constitutional systems provide penalties for violation ofconstitutional provisions or state authorities engaged in political activityitself as such the Head of State or by political parties Thus theConstitutional Court of Romania the Federal Constitutional Court ofGermany the Constitutional Court of Moldova are competent to rule onthe constitutionality of political parties

It is also the head of state a general duty to ensure compliance byall other authors these activities public nongovernmental organizationscitizens political parties etc of the Constitution (eg article 2 para 3 ofthe Constitution of Romania article 5 of the Constitution of France) InPortugal the guarantor of the constitution is Revolutionary Council under142 and 146 of the Constitution and the Republic of Moldova under theprovisions of 134 paragraph 3 Constitutional Court guarantees thesupremacy of the Constitution Ensuring constitutional rule means thusensure social stability and legal order in state Due to the supremacy ofConstitution the legislature has established a specific constituenthierarchy of normative acts the head of which are located the Basic LawUndertaking shall follow constitutional laws organic laws ordinary lawsordinances judgments etc government

The Romanian constitutional system like in the constitutionalsystem of the Republic of Moldova constitutional law is an exception tothe rule of the Constitution because it will change Of course this does notmean that constitutional law can be contrary even implicitlyconstitutional provisions unchanged We specify the law by changing theConstitution should be within the existing constitutional order Weshould make an observation regarding the Constitution based on customBy definition the problem of such kind of rule of fundamental law is putin terms other than the supremacy of the constitution written

New custom content or a new constitutional law will be easilycustom obsolete or that the law which required amendment or repeal

Supremacy of the Constitution is only one principle and should beaccompanied by a mechanism to give texture to defend it ProfessorGeorge Alexianu wrote that this view was to show a special mechanism toensure superior standards established by the constituent power toordinary laws meaning that they may be amended only by the power thatit has established with respect to forms and special safeguards differentfrom ordinary laws


220

To ensure the primacy of constitutional doctrine and constitutionalpractice created two legal institutions the control of constitutionality oflaws and administrative court The new Constitution of Romania tookover the practice of modern constitutional political-judicial system ofcompliance control laws with the Basic Law Between the constitutionaljurisdiction of the Romanian legal system and of Western are bothsimilarities and differences Thus the main difference between Romanianand French contentious procedure is that in our constitutional system ofchecking the constitutionality of organic laws and regulations of bothlegislative chambers before being promulgated and that to beimplemented not mandatory but is triggered following a complaint fromthe President of the Republic the Presidents of Chambers GovernmentSupreme Court of Justice or from a number of at least 50 deputies or atleast 25 senators while in France organic laws are subject mandatorycontrol exercised by the Constitutional Council

Also Romanias Constitutional Court ruling on the objection ofunconstitutionality raised before the courts Another difference lies in thescope of bodies empowered to seize the Constitutional Court about theconstitutionality of ordinary laws As in Romania and Moldova underthe new Basic Law High Court of Cassation and Justice may refer theConstitutional Court on the constitutionality of a law before itspromulgation The French legal system the high court of the judicialhierarchy is not involved in the referral to the Constitutional Council

Between the two institutions to verify the constitutionality ofnormative acts of Parliament there are a number of differences such as thetraining module of the Constitutional Court As in Romania and MoldovaConstitutional Court is composed exclusively of judges appointed andnot as members of law consists of the Constitutional Council of France

Regarding the opinions issued by the Constitutional Court ofMoldova rally our opinion Professor Victor Popa who observed that thelegislature has committed a serious error since the strength of juridicalopinion Constitutional Court makes a supranational body that basicallycan assume powers Parliament to suspend from office the President of theRepublic or to dissolve Parliament since the opinions of the ConstitutionalCourt are final and can not be appealed they go beyond the situation to beintended to see or justify the actions of Parliament and President of theRepublic


221

LE CONCEPT DE FAIT ILLICITE ndash CONDITION POUR LARESPONSABILITE CIVILE CONTRACTUELLE

Nora Andreea DAGHIE

Resume

Le conseil de surveillance de la socieacuteteacute commerciale par actions est compose drsquounnombre drsquoau moins 3 membres et au plus de 11 membres Ce nombre de membre situeacuteentre 3 et 11 est laisseacute agrave la latitude des commanditaires pour lrsquoeacutetablir par lrsquoacte constitutifen conformiteacute avec art 1536 de la Loi numeacutero 311990

La nature juridique des rapports entre membres du conseil de surveillance etsocieacuteteacute est eacutetablie par les dispositions concernant le mandat et celles speacuteciales inclues agrave laloi des socieacuteteacutes commerciales comme il reacutesulte de lrsquointerpreacutetation de lrsquoart 72 et 1538

alineacutea (3) de la Loi numeacutero 311990 Conformeacutement agrave ceux-ci lrsquoart 1442 alineacutea (1)srsquoapplique par conseacutequent aussi aux membres du directorat pendant que art1442 alineacutea(1) fait envoi agrave lrsquoart72 de la Loi 311990 qui regraveglemente les rapports entre administrateuret socieacuteteacute1

Mots cles conseil de surveillance socieacuteteacute commerciale par actions

JEL Classification K2 K22

1 Quality of Supervisory Board Member

Law no 311990 requires the fulfillment of certain conditions forthe membership in a supervisory board

Therefore according to art 15313 of the Law of Commercial

Societies bdquoThe directors of joint stock companies in the unitary systemrespectively members of the management in the dual system are naturalpersons A legal person may also be appointed administrator or memberof the supervisory board of a joint-stock company but they are compelledto assign a natural person as a permanent representative The latter issubject to the same conditions and obligations and has got the same civiland criminal liability as an administrator or member in the supervisoryboard natural person acting on his own behalf without exonerating bythat the legal person they represent from liability or diminishing the jointliability of the latter Whenever the legal person revokes their

PhD Student Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea deJosrdquo University of Galati Romania Email noradaghieyahoocom1 StD Cărpenaru Treaty of commercial law Ed Universul Juridic Bucureşti 2009 pag385 By modification of Law no 311990 by OUG nr 822007 the solution was adopted

in art 152 alin (2) and (3)


222

representative they have the obligation to assign a replacer at the sametimerdquo

Given that art 15313 is included within the III-rd section of Law no311990 under the heading bdquoJoint Dispositions for the unitary and the dualsystemsrdquo in case of both systems of administering commercial companiesa natural person may be appointed member The law becomes even morespecific in the case of supervisory boards and gives possibility forassignment of a legal person too in the position of a member which is notapplicable in the case of managers or management

Referring to dispositions under art 731 of Law no 3119902 thefollowing are applicable bdquoPeople who according to art 6 para (2) cannotbe founders can neither be managers members in supervisory boards andof management censors or financial auditors and if elected they will berevoked from these rightsrdquo3

Art 1538 of the law provides bdquoMembers of supervisory boardscannot be concomitantly members of management Also they cannotcumulate the capacity of a member in a supervisory board with the one ofemployee with the companyrdquo

Based on the same article of the Law of commercial societies it isset forth that by the deed of partnership or by a decision taken in theshareholdersrsquo general assembly shareholders have the possibility to setout specific conditions of professionalism and independence for themembers of the supervisory board4

2 Art 731 has been altered by item 6 of art I of OUG no 82 dated 28 June 2007

published in Official Gazette no 446 dated 29 June 20073 Art 6 para (2) of Law no 311990 bdquoPeople cannot be founder who according to law havebeen condemned for fraudulent administration use of false forgery misappropriation briberygiven or taken for crimes provided in Law no 6562002 for prevention and sanctioning for moneylaundry as well as for establishment of steps for prevention and fighting financing of terrorismdeeds along with alterations and further supplementing for crimes provided for under art 143 -145 of Law no 852006 on the procedure of insolvency or for the ones provided under the presentlaw along with alterations and further supplementingrdquo4 In assessing the independence of a member in supervision board criteria shall beconsidered as provided under art 1382 para (2) bdquoIn appointing the independentadministrator the Shareholdersrsquo general assembly will consider the following criteria he shall notbe manager with the company or of a company controlled by the former and not have fulfilled sucha position for the last 5 years he shall not have been employee of the company or of a companycontrolled by the former or have had such labour relation in the last 5 years he shall not receive orhave received from the company or from a company controlled by the former any supplementaryremuneration or other advantages other than the ones corresponding to his capacity of a non-executive administrator he shall not be significant shareholder in the company he shall not haveor have had in the last while business relationship with the company or with a company controlledby such in his position of either shareholder administrator manager or employee of a companyhaving such relationship with the concerned company if by their substantiate feature they are of akind to bias on his objectivity he shall not be or have been in the last 3 years financial auditor orassociate employee of the current financial auditor of the company or of a company controlled by


223

Under art 15316 of Law no 311990 there are restrictions providedas concerning the plurality of the supervisory board membersrsquo mandatesbdquoA natural person may exert concomitantly at most 5 administratormandates andor supervisory board member mandates in joint-stockcompanies whose registered office lies throughout Romaniarsquos territoryThis provision applies to equal extent to that natural person who isadministrator or member of the supervisory board and to the naturalperson who is permanent representative of a legal person beingadministrator or member in supervisory board The interdiction providedunder para (1) does not refer to cases when the person elected in theboard of directors or in the supervisory board is owner of at least onequarter of the total of the companyrsquos shares or is member in the board ofdirectors or supervisory board of a joint-stock company holding theconcerned quarter The person who breaches the provisions of the presentarticle is compelled to resign from positions of member of the board ofdirectors or the supervisory board who exceed the maximum number ofmandates provided under para (1) within one month after the occurrenceof a case of inconsistency On expiry of this period she will lose themandate for exceeding the legal number of mandates in chronologic orderof appointments and shall be compelled to restitution of remuneration andother benefits received towards the company in which he exerted such amandate The deliberations and decisions he took part in while exertinghis mandate will remain validrdquo

2 Assignment of Supervisory Board Members

According to art 1536 of Law no 311990 bdquoMembers of thesupervisory board are assigned by the Shareholdersrsquo General Assemblyexcept for the first members who are assigned by the deed of partnershipCandidates for positions of a member in a supervisory board arenominated by existing members of the board or by shareholdersrdquo

Before appointment in the position of a member in the supervisoryboard the nominee shall notify the companyrsquos body in charge withhisher nomination regarding any relevant aspects from the perspective ofprovisions in art 15315 and 15316

In case that after the nomination in the position of a supervisoryboard member one position gets freed the dispositions of art 1537 of Lawno 311990 are applicable bdquoIn case of vacancy of a position of member inthe supervisory board the board may proceed to assigning a provisional

such he shall not be manager in another company in which a manager of the company is non-executive administrator he shall not have been non-executive administrator of the company forover 3 mandates he shall not have family relationship with a person in one of the cases providedfor under letter s a) and d)rdquo


224

member until the meeting of the general assembly takes place Should thementioned vacancy (para (1)) determine a decrease in the number ofsupervisory board members below the minimum legal number then themanagement shall summon without delay the general assembly forcompletion of vacant places In case that the management fails to fulfill theobligation to summon the general assembly (para (2)) any concernedparty may address the legal court to appoint the person in charge with thesummoning of the general assembly of shareholders that shall make thenecessaryrdquo

In a similar manner with the assignment of the administrator andthe members of management the person assigned in the memberrsquosposition in a supervisory board shall accept explicitly the positionaccording to dispositions under art 15312 para (3) of Law no 311990

In order to fulfill the position of a supervisory board member theperson assigned shall be insured for professional liability

3 Mandate Duration of Supervisory Board Members

According to art 15312 para (1) and (2) of Law no 311990 bdquoTheduration of administratorsrsquo mandate respectively mandate ofmanagementrsquos and supervisory boardrsquos members is established by deed ofpartnership and cannot exceed 4 year time They are re-eligible unlessotherwise disposed by the deed of partnership The duration of themandate for the first members of the board of directors respectively of thefirst members of the supervisory board cannot exceed 2 year timerdquo

4 Remuneration of Supervisory Board Members

Members of the supervisory board are paid according to art 15318

para (2) (3) and (4) of Law no 311990 bdquoSupplementary remuneration ofmembers in the board of directors or supervisory board in charge withspecific positions within the concerned body as well as remuneration ofmanagers in a unitary system or of members of management in a dualsystem are established by the board of directors respectively thesupervisory board The companyrsquos articles (deed of partnership) of theshareholders general assembly will set up the general limits for everyremuneration granted this way Any other advantages may be grantedonly according to para (1) and (2) The general assembly or the board ofdirectors or supervisory board respectively and if applicable thecommittee of remuneration shall make sure in establishing remunerationsand other advantages that theseare justified based on the specific duties ofthe concerned persons and on the economic statement of the companyrdquo


225

According to art 1444 of the law crediting is forbidden to membersof management by the company

5 Attributions of the Supervisory Board

The main attributions of the supervisory board are regulated by art1539 of Law no 311990 bdquoThe Supervisory Board has got the followingmain attributions

a exerts permanent control on the companyrsquos management by thedirectorate

b appoints and revokes the members of the directoratec checks compliance with the law with the deed of partnership

and with the decisions of the shareholdersrsquo general assembly formanagement operations of the company

d at least once a year draws reports to the shareholdersrsquo generalassembly concerning the activity of the supervisory deployed

In exceptional cases when the interest of the company demands itthe supervisory board may summon the shareholdersrsquo general assembly

No attributions of company management can be assigned to thesupervisory board However there may be provided in the deed ofpartnership that certain types of operations cannot be carried out withoutagreement of the board In case the board gives their consent for suchoperation the directorate may demand agreement by the ordinary generalassembly The decision of the general assembly regarding such agreementis given with a majority of 3 quarters of the number of votes pertaining tothe present shareholders The deed of partnership cannot set out anothermajority and neither can set forth other conditionsrdquo

6 Obligations of Supervisory Board Members

The law of commercial companies requires that the members of thesupervisory board fulfill their obligations concerning the participation inthe life of the joint-stock commercial company

Based on art 1441 referred to by art 1538 of Law no 311990 asbeing applicable also in the case of supervisory boards bdquoMembers of theboard of directors will exert their mandate with caution and diligence of agood administrator The administrator shall not breach obligationprovided under para (1) if at the moment of making a business decisionshe is reasonably entitled to deem she acts in the companyrsquos interestand based on adequate information In respect of the present law abusiness decision is any decision to take or not to take any stepsconcerning the companyrsquos administration The members of the board ofdirectors will exert their mandate with loyalty and in the companyrsquos


226

interest They shall not divulgate confidential information and commercialsecrets of the company to which they have access in their capacity ofadministrators This obligation is in their charge also after the cease of theadministratorrsquos mandate The content and the duration of the obligationsprovided for under para (5) are set forth in the administration contractrdquo5

According to art 15323 of Law no 311990 the members of thesupervisory board are liable to take part in the shareholdersrsquo generalassemblies

Also in the case of members of the supervisory board art 1443 ofthe law is applicable if in a certain operation they have direct or indirectinterests contrary to the companyrsquos interests they shall notify on that theother members and the censors or domestic auditors and shall not takepart in any deliberation on this operation

7 Operation of the Supervisory Board

The supervisory board shall meet at least every 3 months asprovided under art 15311 para (1) of Law no 311990

The summoning is achieved under conditions of art 15311 para (1)(2) (3) and (4) of the law bdquo(hellip) The chairperson summons the supervisoryboard and presides the meeting The supervisory board may besummoned at any moment on demand by at least 2 of the board membersor the directorate The board shall meet in at most 15 days aftersummoning Should the chairperson not consider the demand ofsummoning by the board according to dispositions under para (2) thenthe authors of the demand may summon themselves the board byestablishing the daily agenda for the meeting The members of thedirectorate may be summoned for meetings of the supervisory boardThey have no right to vote in the boardrdquo

The making of decisions in the meetings of the supervisory board isachieved with due observance of art 15320 of Law no 311990 For theirvalidity at least half of the members in each of these bodies shall bepresent unless a larger number is stated by the deed of partnershipDecisions in the supervisory board are made with the majority vote of themembers present Decisions on appointment or revoking of thechairperson are made with the majority vote of the board membersMembers of the supervisory board may be represented in meetings of theconcerned body by only other members of such One member present mayrepresent a single member absent The deed of partnership may disposethat participation in meetings of the supervisory board should also take

5 See also R Catană The duty of care and prudence of managers in the reform of company law

in Pandectele Romacircne no 32006 page 188 and further on


227

place by means of distance means of communication with their dulyspecification At the same time the deed of partnership may limit the kindof decisions that may be made under such conditions and may provide fora title to oppose such procedure in favour of a determined number ofmembers of the concerned body The distance means of communicationprovided for under para(4) shall meet the technical conditions requiredfor identification of participants actual participation of such in themeeting of the board and re-transmittal of deliberations continuouslyUnless otherwise disposed by the deed of partnership the chairperson ofthe supervisory board will have the prevailing vote in case of parity ofvotes If the depending chairperson (in position) of the supervisory boardcannot or is forbidden to participate in the voting within the concernedbody the other members will be entitled to elect a meeting president withthe same rights as the depending chairperson In case of parity of votesand if the president does not benefit from the prevailing vote theproposition subject to vote is deemed rejected

Based on art 15311 para (5) of Law no 311990 a Minutes of eachmeeting will be drawn-up that shall include name of participants agendaorder of deliberations decisions made number of votes met and separateopinions The Minutes will be signed by the president of the meeting andby at least another member of the board present in the meeting

8 Revoking of Supervisory Board Members

According to art 1536 para (4) of Law no 311990 bdquoMembers insupervisory boards may be revoked at any time by the shareholdersrsquogeneral assembly with a majority of at least two thirds of the number ofvotes by the shareholders presentrdquo

9 Consulting Committees

According to art 15310 of Law no 311990 bdquoThe supervisory boardmay create consulting committees composed of at least 2 members of theboard and in charge with investigations and preparation ofrecommendations for the board within fields like audit remuneration ofthe members of directorate and of supervisory board and of personnel ornomination of candidates for different positions in the management On aregular basis committees will submit reports on their activity to the boardregular The president of the directorate may be appointed member in thesupervisory board without acquiring thus the capacity of a member in theboard At least one member of each committee created based on para (1)shall be an independent member of the supervisory board At least one


228

member of the audit committee shall hold relevant experience in applyingaccounting principles or in financial auditrdquo

Bibliography

M Bratiş Constituirea societăţii comerciale pe acţiuni EdHamangiu Bucureşti 2008

St D Cărpenaru Drept comercial romacircn ed a VIII-a EdUniversul Juridic Bucureşti 2008

St D Cărpenaru Tratat de drept comercial romacircn Ed UniversulJuridic Bucureşti 2009

N Dominte Organizarea şi funcţionarea societăţilor comercialeEd CH Beck Bucureşti 2008

F Gacircrbaci Societăţi comerciale deţinute public Instrumentejuridice de protecţie a investitorilor Ed Rosetti Bucureşti2003

Gh Piperea Drept comercial vol I Ed CH Beck Bucureşti 2008 D Sitaru Dreptul comerţului internaţional Partea generală Ed

Lumina Lex Bucureşti R Catană Obligaţia de diligenţă şi prudenţă a administratorilor icircn

contextul reformei dreptului societăţilor comerciale


229

ABSOLUTE AND RELATIVE JURISDICTION OBJECTIONON LACK OF JURISDICTION CHANGES BROUGHT BYTHE ldquoLITTLE JUSTICE REFORMrdquo ON THE CIVIL CODE

REFERENCES TO THE NEW CIVIL CODE

Liliana MANUCRoxana TOPOR

AbstractThe legal provisions on the subject of regulation of the legal jurisdiction may have

either a binding character thus determining the exclusive capacity of certain courts tosettle the claims and trials assigned to them or a provisional character based on rules thatdo not prescribe binding provisions for the parties or for the court

The legal system applicable in case of disregard of the jurisdiction provisions isdetermined precisely by the delimitation of the absolute provisions from the relative onesthus resulting the fact that the concept of lack of jurisdiction is indissoluble related to theone of the existence of jurisdiction this being exactly its opposite

The lack of jurisdiction is an abnormal situation which may appear in the courseof the legal procedure and the clearance of this situation may be realized only by legalmeans provided by the law to this end one of these being precisely the objection on lack ofjurisdiction

The changes brought by the ldquolittle justice reformrdquo on the Civil Code createhowever a system of exceptions from the Common Law for the binding provisions whichregulate issues regarding jurisdiction or lack of jurisdiction these changes seem to bemaintained mainly by the new Civil Code (Law 1341 July 2010 published in theOfficial Journal 48515 July 2010 still unenforced)

Keywords absolute legal provisions relative legal provisions legal systemresolution ruling refusal of jurisdiction

The legal provisions having as subject the regulation of the legaljurisdiction may have either a binding character or a provisional characterThe provisions having a binding character determine the exclusivecapacity of certain courts to settle the claims or trials legally assigned tothem

The absolute jurisdiction is created through binding legalprovisions that the parties cannot depart from the relative jurisdiction isset up on rules that do not prescribe the compulsory provisions for theparties or for the court Non-compliance with the legal provisionsregarding the jurisdiction of the courts imposes their lack of jurisdiction

PhD Student Assistant Email manuc_lilianayahoocom PhD Lecturer


230

disregarding the provisions with binding character regarding thejurisdiction brings up the absolute lack of jurisdiction whereasdisregarding the provisional dispositions determines the relative lack ofjurisdiction of the substantive courts11

The cases of absolute and relative lack of jurisdiction arise from thecorroboration of article 159 of the Civil Code with the provisions of article19 of the Civil Code

According to article 159 of the Civil Code the lack of jurisdiction isabsolute when the provisions regarding the general jurisdiction materialjurisdiction and territorial jurisdiction are violated According toparagraph 2 of the same article the lack of jurisdiction is of private naturein any other situation

Article 19 of the Civil Code provides that the parties may agree inwriting or by verbal statement in the court of law that the lawsuits onassets shall be trialed by other courts than those which according to thelaw have territorial jurisdiction except for the cases when the territorialjurisdiction is exclusive

From the corroboration of the two texts the following can beconcluded the jurisdiction of the courts of law is always absolute againstother state institutions the material jurisdiction is absolute a superiorcourt of law having no possibility to solve a certain cause assigned to thejurisdiction of an inferior court of law or the other way around theterritorial jurisdiction of the courts of law is mainly relative although theexceptional territorial jurisdiction has an absolute character2

In case of violation of one of the binding jurisdiction provisions theparties cannot ignore the act of violation of the jurisdiction provision andthe right to claim the absolute lack of jurisdiction devolves to all theparties involved in the trial even to the one responsible for violation of theprovision3

According to article 1591 paragraph 1 and 2 of the Civil Code4 theabsolute lack of jurisdiction may be claimed by either the parties or thejudge Before the ldquolittle reformrdquo the absolute lack of jurisdiction could beclaimed at any stage of the case however at present only the lack ofgeneral jurisdiction of the courts of law may be claimed either by theparties or the judge at any stage of the claim according to paragraph 1 ofthe above-mentioned article According to paragraph 2 the lack of material

1 I Les ldquoTratat de drept procesual civil Editia a III-ardquo [Treaty of process civil law Thirdedition] Editura All Beck Bucuresti 2008 p2562 I Les ldquoSanctiuni procedurale in materie civila Editia a III-a revizuitardquo [Proceduralsanctions in civil matter Third edition revised] Editura Hamangiu Bucuresti 2008 p1053 I Deleanu ldquoTratat de procedura civila Volumul Irdquo [Treaty of civil procedure VolumeI] Editura All Beck Bucuresti 2005 p3394 Art 1591 was introduced by artI para 23 of the no Law 2022010


231

and territorial jurisdiction of public nature may be claimed either by theparties or the judge on the first day of appearance in the first court but nolater than the beginning of the debates on the cause

If the parties do not claim the absolute lack of jurisdiction the courthas the responsibility ex officio to bring into debate this issue and thereforeto settle upon it If the interest to discuss the jurisdiction of public natureoccurs during a trial in which a representative of the Public Ministryparticipates she also has the right to bring to the courtrsquos attention theissue of lack of jurisdiction5

According to article 1591 paragraph 4 the judge is ex officio bound toascertain and to establish if the court referred to has general material andterritorial jurisdiction to decide on the claim taking down in the transcriptof the proceedings of the hearing the legal basis for ascertaining thejurisdiction of the referred court Paragraph 5 stipulates that ascertainingthe jurisdiction according to paragraph 4 does not impede on formulatingthe objections on the lack of jurisdiction in the cases and the conditionsprovided for in paragraphs 1 and 3 on which the judge shall decide inaccordance with the law

As regards the claim on the lack of jurisdiction of a private naturethe regulations remained the same namely it can be claimed by thedefendant through submission of defense or whenever the submission ofdefense is not mandatory it can be claimed on the first day of the hearingat the latest (article 1591 paragraph 3)

The new Civil Code preserves almost entirely the regulationsregarding the absolute and the relative jurisdiction (Chapter IV ndashProcedural incidents regarding the courtrsquos jurisdiction Section I ndash Lack ofjurisdiction and conflicts of jurisdiction articles 125 126)

The objection on lack of jurisdiction represents together with thejurisdiction regulator the procedural means established by the Civil Codefor avoiding the cases of lack of jurisdiction in which the party calledbefore a court with lack of jurisdiction may request the dismissal of thecase and the sending of the cause for settlement to the court of law or tothe legal organization with jurisdiction according to the law6

The legal system of the objection on lack of jurisdiction isdetermined by the nature of the violated jurisdiction provisions meaningthat non-compliance with the absolute jurisdiction provisions determinesthe absolute lack of competence and disregarding the provisionaldispositions on jurisdiction determines a relative lack of jurisdiction

5 I Deleanu opcit p3396 I Les ldquoTratat de drept procesual civil Editia a III-ardquo [Treaty of process civil law Third

edition] opcit p267


232

The objection on lack of jurisdiction is settled by the court referredto with the main case according to the rule ldquothe judge of the case is alsothe judge of the objectionrdquo with priority in front of other objections ofprocedure

In order to protect and guarantee the violated procedural rights andin order to prevent the decision pronounced from being censored by othermeans of appeal the court is compelled to bring into the preliminarydebate of the parties the objection on the lack of jurisdiction7

The court shall pronounce on the objection on lack of jurisdictionthrough a ruling in case of rejection of the objection and through adecision in case of admission

In case the court finds the objection unfounded it shall pronouncethe solution of rejection and continue to resolve the case According toarticle 158 paragraph 2 the discontented may lodge an appeal or recourseafter the ruling on the case

Admission of the objection on the lack of competence produces theeffect of sending the case for settlement to the court or the organizationwith legal jurisdiction according to the law and the decision of refusal ofthe jurisdiction has a double effect dissoluteness of the court referred towith the main case and investiture of another court or organization withlegal jurisdiction

According to article 158 paragraph 3 if the court declares its lack ofjurisdiction the decision is not subject to any means of appeal the casebeing sent immediately to the court with jurisdiction or as the case maybe to another organization with jurisdiction for legal activities8

Admission of the lack of jurisdiction has consequences with regardto the actions of procedure performed until the moment of refusal ofjurisdiction without being necessary to formulate an objection on nullity9The effect of invalidation of the actions of procedure is now producedfrom the moment of pronouncing the decision this being peremptoryeven from this moment In order to emphasize the idea of nullity of theactions of procedure article 105 paragraph 11 of the Civil Code10

7 Idem p2678 Para 3 of article 158 was modified by art 1 para 20 of the Law no 2022010 Previous to

this modification the text had the following content ldquoif the court declares its lack of

jurisdiction an appeal may be filed against the decision within 5 days from the rulingThe file shall be sent to the court with jurisdiction or as the case may be to another

organization with jurisdiction for legal activities as soon as the decision for declination ofjurisdiction becomes peremptoryrdquo9 I Les ldquoSanctiuni procedurale in materie civila Editia a III-a revizuitardquo [Proceduralsanctions in civil matter Third edition revised] opcit p10610 Para 1 of article 105 was modified by art I para 8 of the Law 2022010 Previous to thismodification the text had the following content bdquoThe procedural actions taken by a

judge with no jurisdiction are nullrdquo


233

stipulates ldquoThe actions of procedure performed by a judge with violationof the jurisdiction provisions of public or private nature shall be declarednull under the conditions provided for by the lawrdquo

In order to operate the nullity regulated by article 1 it is thereforenecessary to statute a court on its lack of jurisdiction in other words thelack of jurisdiction represents the cause of nullity of the proceduralactions For this situation the law does not condition the nullity with theexistence of injury the legislator most likely presumed the existence ofinjury since the judgment cannot be conceived without it being statuted bythe judges appointed by law Violation of the provisions on thejurisdiction of the courts of law brings prejudice to the normal process ofthe activities of the legal bodies and it also brings prejudice to the interestsof the litigant parties faced with the situation of not being trialed by theirregular judges11

The nullity regulated by article 105 paragraph 1 is not only anunconditional nullity but also a derivative nullity comprising mainly allthe acts drawn up in the court without jurisdiction The situation isdifferent in case of an act of intimation of the court Some of the effects ofthe request for prosecution are naturally produced in the court ofcommittal for trial According to article 1870 of the Civil Code the requestfor prosecution suspends the prescription event when it is addressed to acourt without jurisdiction even if it is null for lack of forms of actions Atthe same time the effect of delaying the debtor shall be admitted in case ofthe request for prosecution presented to a court without jurisdictionThese solutions are justified by the fact that what is essential inrecognizing the above-mentioned effects is the unequivocal will of theplaintiff to leave the inactivity state and to go to law for defending thesubjective rights12

As regards the evidence presented to a court without jurisdictionthe principle of preservation and usage of the evidence already presentedto this court applies and article 160 of the Civil Code stipulates that theevidence presented in the court with jurisdiction shall remain in favor ofthe trial The principle applies as a consequence to the fact that theevidence belongs to the case and its usage in the circumstances it waspresented to a court which later declined its jurisdiction may achieve abetter administration of justice by saving the time and the moneynecessary for repeating all the evidence13

11 O Ungureanu ldquoActele de procedura civila in procesul civil (la instanta de fond)rdquo

[Actions of civil procedure in the civil lawsuit (in the substantive court)] Casa de Editurasi Presa ldquoSansardquo ndash SRL Bucuresti 1994 p 27012 I Les ldquoTratat de drept procesual civil Editia a III-ardquo [Treaty of process civil law Thirdedition] opcit p27013 Idem p270


234

The final part of article 160 of the Civil Code stipulates that thecourt with jurisdiction has the possibility to order the restoration of theevidence previously presented only for well justified reasons Per acontrario with regard to the procedural actions there is no question of aright of appraisal of the competent courts as concerns their efficiencysince the declination of its jurisdiction was ordered 14

The nullity of the procedural actions taken by a court withoutjurisdiction operates in case the request is to be settled by an organizationwithout legal competence However in these cases the court cannot declineits jurisdiction and the solution that imposes is the rejection of the actionas inadmissible

The solution of declination of jurisdiction cannot be ordered even incase it is ascertained that the lawsuit belongs to the jurisdiction of aforeign court since a foreign court cannot order the committal for trial to acourt that does not belong to its legal system as the principle of the statesrsquosovereignty imposes the refrain from any interference as regards theprerogatives of the public authorities of another state15

The decision of declination of jurisdiction causes different effects asregards the dissoluteness of the court referred to and the investiture ofanother court or body with legal prerogatives Thus in case ofdissoluteness of a court the effects of the trialed cause shall be producedwhereas in case of investiture of another court these effects shall not beproduced

According to the modifications of the Civil Code the lack ofcompetence as well as the nullity of the procedure actions regulated byprovisions of a public nature may be claimed even by means of appeal16According to article 317 paragraph 2 of the Civil Code it is possible to filethe appeal for annulment ldquowhen the ruling is made by judges in violationof provisions of a public nature with regard to jurisdictionrdquo However theclaim for lack of jurisdiction by means of appeal for annulment representsa particular situation since article 317 paragraph 1 stipulates that ldquotheperemptory rulings may be contested by appeal for annulment for reasonsexpressly provided for in this article only if these reasons could not beclaimed by means of appeal or recourserdquo Nevertheless the appeal forannulment may be received if the absolute lack of jurisdiction was claimed

14 I Les ldquoSanctiuni procedurale in materie civila Editia a III-a revizuitardquo [Procedural

sanctions in civil matter Third edition revised] opcit p10715 I Les ldquoTratat de drept procesual civil Editia a III-ardquo [Treaty of process civil law Third

edition] opcit p16916 Art 304 para 3 when the ruling was made in violation of jurisdiction of public nature of

another court claimed in accordance with the law ndash presented as modified by art I para 29of the Law no 2022010 Previous to the modification the article had the following

content ldquowhen the ruling was made in violation of the jurisdiction of another courtrdquo


235

by ways of recourse but the court rejected it for further verifications or ifthe recourse was rejected without being trialed substantively This type ofcases occur in practice especially as a result of the annulment of a recourseas being unstamped or irregularly introduced17

Bibliography

I Les ldquoTratat de drept procesual civil Editia a III-ardquo [Treaty ofprocess civil law Third edition] Editura All Beck Bucuresti2008

I Les ldquoSanctiuni procedurale in materie civila Editia a III-arevizuitardquo [Procedural sanctions in civil matter Third editionrevised] Editura Hamangiu Bucuresti 2008

I Deleanu ldquoTratat de procedura civila Volumul Irdquo [ Treaty of civilprocedure Volume I] Editura All Beck Bucuresti 2005

O Ungureanu ldquoActele de procedura civila in procesul civil (lainstanta de fond)rdquo [Actions of civil procedure in the civillawsuit (in the substantive court)] Casa de Editura si PresaldquoSansardquo ndash SRL Bucuresti 1994


sanctions in civil matter Third edition revised] opcit p111


236


237

THEORETICAL CONSIDERATIONS ON THESUPERVISORY BOARD OF JOINT STOCK COMPANIES

Dragoş-Mihail DAGHIE

Resume








Therefore according to art 15313 of the Law of CommercialSocieties bdquoThe directors of joint stock companies in the unitary systemrespectively members of the management in the dual system are naturalpersons A legal person may also be appointed administrator or memberof the supervisory board of a joint-stock company but they are compelledto assign a natural person as a permanent representative The latter issubject to the same conditions and obligations and has got the same civiland criminal liability as an administrator or member in the supervisoryboard natural person acting on his own behalf without exonerating bythat the legal person they represent from liability or diminishing the jointliability of the latter Whenever the legal person revokes their

PhD Student Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea deJosrdquo University of Galati Romania Email dragosdaghiedaghiesiasociatiiro1 St D Cărpenaru Treaty of commercial law Ed Universul Juridic Bucureşti 2009 pag385 By modification of Law no 311990 by OUG nr 822007 the solution was adopted



238


Given that art 15313 is included within the III-rd section of Law no311990 under the heading ldquoJoint Dispositions for the unitary and thedual systemsrdquo in case of both systems of administering commercialcompanies a natural person may be appointed member The law becomeseven more specific in the case of supervisory boards and gives possibilityfor assignment of a legal person too in the position of a member which isnot applicable in the case of managers or management


Art 1538 of the law provides ldquoMembers of supervisory boardscannot be concomitantly members of management Also they cannotcumulate the capacity of a member in a supervisory board with the one ofemployee with the companyrdquo





239








240





According to art 15312 para (1) and (2) of Law no 311990 ldquoTheduration of administratorsrsquo mandate respectively mandate ofmanagementrsquos and supervisory boardrsquos members is established by deed ofpartnership and cannot exceed 4 year time They are re-eligible unlessotherwise disposed by the deed of partnership The duration of themandate for the first members of the board of directors respectively of thefirst members of the supervisory board cannot exceed 2 year timerdquo





241



The main attributions of the supervisory board are regulated by art1539 of Law no 311990 ldquoThe Supervisory Board has got the followingmain attributions

e exerts permanent control on the companyrsquos management by thedirectorate

f appoints and revokes the members of the directorateg checks compliance with the law with the deed of partnership


h at least once a year draws reports to the shareholdersrsquo generalassembly concerning the activity of the supervisory deployed





Based on art 1441 referred to by art 1538 of Law no 311990 asbeing applicable also in the case of supervisory boards ldquoMembers of theboard of directors will exert their mandate with caution and diligence of agood administrator The administrator shall not breach obligationprovided under para (1) if at the moment of making a business decisionshe is reasonably entitled to deem she acts in the companyrsquos interestand based on adequate information In respect of the present law abusiness decision is any decision to take or not to take any stepsconcerning the companyrsquos administration The members of the board ofdirectors will exert their mandate with loyalty and in the companyrsquos


242






The summoning is achieved under conditions of art 15311 para (1)(2) (3) and (4) of the law ldquo(hellip) The chairperson summons the supervisoryboard and presides the meeting The supervisory board may besummoned at any moment on demand by at least 2 of the board membersor the directorate The board shall meet in at most 15 days aftersummoning Should the chairperson not consider the demand ofsummoning by the board according to dispositions under para (2) thenthe authors of the demand may summon themselves the board byestablishing the daily agenda for the meeting The members of thedirectorate may be summoned for meetings of the supervisory boardThey have no right to vote in the boardrdquo





243






According to art 15310 of Law no 311990 ldquoThe supervisory boardmay create consulting committees composed of at least 2 members of theboard and in charge with investigations and preparation ofrecommendations for the board within fields like audit remuneration ofthe members of directorate and of supervisory board and of personnel ornomination of candidates for different positions in the management On aregular basis committees will submit reports on their activity to the boardregular The president of the directorate may be appointed member in thesupervisory board without acquiring thus the capacity of a member in theboard At least one member of each committee created based on para (1)shall be an independent member of the supervisory board At least one


244


Bibliography






Gh Piperea Drept comercial vol I Ed CH Beck Bucureşti 2008D Sitaru Dreptul comerţului internaţional Partea generală Ed

Lumina Lex BucureştiR Catană Obligaţia de diligenţă şi prudenţă a administratorilor icircn

contextul reformei dreptului societăţilor comerciale inPandectele Romacircne no 32006


245

EVOLUTION DE LA CRIMINALITE CONCERNANT LESINFRACTIONS CONTRE LE PATRIMOINE

Monica BUZEA

Resume

En Roumanie comme dans tous les autres eacutetats europeacuteens les infractions contrele patrimoine constituent une grande partie du pheacutenomegravene infractionnel et se situent surles premiegraveres places par rapport au nombre total des infractions commises

Lrsquoeacutevolution statistique des infractions par lesquelles on porte atteinte aupatrimoine deacutemontre que malgreacute le progregraves des conditions moyennes de vie elles ont desmotivations complexes du point de vue criminologique agrave partir des conditionseacuteconomiques et jusqursquoaux modifications culturelles et ideacuteologiques speacutecifiques auxpeacuteriodes de crise qui font que le patrimoine devient prioritaire mecircme compareacute aux droitsfondamentaux de la personne

En Roumanie comme dans tous les autres eacutetats europeacuteens lesinfractions contre le patrimoine constituent une partie importante dupheacutenomegravene infractionnel et se situent sur les premiegraveres places par rapportau nombre total des infractions commises Drsquoailleurs lrsquoargumentcriminologique de leur preacutepondeacuterance a justifieacute lrsquoattention accordeacutee lelong du temps agrave lrsquoeacutetude de leur eacutevolution et causaliteacute

De cette perspective une eacutetude statistique1 effectueacutee en Roumaniepour la peacuteriode 1989-2009 atteste le fait que le nombre des inculpeacutes pourles infractions de vol a diminueacute de 504 la mecircme diminution eacutetantenregistreacutee pour les infractions de dilapidation de 843 pour lesinfractions de gestion frauduleuse de 913 et pour lrsquoinfraction dedestruction de 632 On a enregistreacute une augmentation de lrsquoinfraction debrigandage cas ougrave le nombre des inculpeacutes a augmenteacute de 120

De maniegravere justifieacutee on se demande srsquoil srsquoagit drsquoune diminutionreacuteelle de la criminaliteacute ou seulement drsquoune apparence dans les conditionsougrave le nombre des cas solutionneacutes a augmenteacute de 3869 malgreacute ladiminution geacuteneacuterale des infractions contre le patrimoine de 406 ou parexemple la diminution pour lrsquoinfraction de vol de 504 correspond agrave uneaugmentation des cas solutionneacutes de 29552

PhD Student Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea de

Josrdquo University of Galati Romania procureur au Parquet pregraves de la Cour drsquoAppel deGalaţi Email monicabuzeayahoocom1 C Sima Directions de lrsquoeacutevolution de la criminaliteacute entre 1989-2009 Revue decriminalistique criminologie et peacutenologie no 12010 p 38-462 Idem


246

Ainsi la baisse du nombre drsquoinculpeacutes mis en jugement pour desinfractions contre le patrimoine ne reflegravete en fait pas une baisse delrsquoinfraction dans ce domaine car le nombre de tels cas progresseeacutevidemment En plus des faits pour lesquels on a donneacute une solution il ya des infractions apparentes dont les organes de justice sont informeacutesmais dont on nrsquoa pas reacuteussi agrave identifier lrsquoauteur de plus pour eacutetablir lacriminaliteacute reacuteelle donc des faits consommeacutes effectivement connus ou nonpar les autoriteacutes judiciaires on devrait aussi avoir en vue les situations depassiviteacute des victimes quand par exemple le preacutejudice enregistreacute estreacuteduit ou reacutecupeacutereacute

Un des arguments pour diminuer le nombre des inculpeacutes dans ledomaine des infractions contre le patrimoine trouve sa justification dansles solutions adopteacutees dans de telles causes on connaicirct bienlrsquoaugmentation progressive des justifications baseacutees sur lrsquoart 18 indice 1du Code peacutenal par lrsquoappreacuteciation du manque de degreacute de peacuteril socialenregistreacutee apregraves 1989

Drsquoailleurs les modifications apporteacutees par la Loi 2022010concernant certaines mesures pour acceacuteleacuterer la solution des procegraves ontpermis vu lrsquoart 230 du Code de proceacutedure peacutenale et lrsquoart 18 indice 1 duCode peacutenal la solution des causes qui ne preacutesentent pas le degreacute de peacuterilsocial drsquoune infraction avant de commencer la poursuite peacutenale mecircmepar la non-application drsquoune sanction

Bien que la deacutefinition de lrsquoinfraction soit reconsideacutereacutee en renonccedilantau peacuteril social comme trait geacuteneacuteral de lrsquoinfraction le nouveau Code peacutenalpermet que les situations qui sont agrave preacutesent solutionneacutees cf agrave lrsquoart181

Cpen trouvent la solution conformeacutement au principe de lrsquoopportuniteacute dela poursuite peacutenale

Concernant la causaliteacute de ces infractions dans les travaux reacutedigeacutesavant 1989 on soulignait que dans la conscience et le comportement deceux qui apportent des preacutejudices agrave la proprieacuteteacute collective il y avait desmanifestations drsquoaviditeacute drsquoenrichissement exageacutereacute drsquoeacutegoiumlsme exacerbeacutetout cela sur le fond drsquoun manque eacutevident drsquoeacuteducation civiquedrsquoignorance ou drsquoinculture3

De nos jours on remarque4 lrsquoeacutevolution de la thegravese consacreacutee agravelrsquoexistence dans ce secteur drsquoune criminaliteacute drsquoenrichissement originairedans les classes sociales inferieures le pheacutenomegravene devenant beaucoupplus complexe Ainsi dans la socieacuteteacute contemporaine se manifeste laquo ladeacutepersonnalisation du patrimoine raquo ce qui fait que lrsquoinfracteur agit sur

3 Aurel Dincu Criminologie Universiteacute de Bucarest Faculteacute dr droit 1984 p 284 en

Stancu4 G Fiandaca E Musco I delitti contro il patrimonio Volume II Zanchelli Editore

Bolognia 2008 p 1-2


247

une valeur abstraite sans venir en contact direct avec la victime diffeacuterents facteurs inhibiteurs disparaissent et aussi un laquo heacutedonisme deconsommation raquo qui privileacutegie la possession des biens mateacuteriels

Donc lrsquoeacutevolution statistique des infractions contre le patrimoinedeacutemontre leur multiplication malgreacute le progregraves des conditions moyennesde vie car leur apparition parfois par de nouvelles modaliteacutes est baseacuteesur des motivations complexes du point de vue criminologique agrave partirdes conditions eacuteconomiques et jusqursquoaux modifications culturelles etideacuteologiques speacutecifiques aux peacuteriodes de crise qui font que le patrimoinedevienne prioritaire mecircme avant les droits fondamentaux de la personne


248


249

QUELQUES CONSIDERATIONS SURLrsquoIRRESPONSABILITE ET LrsquoIVRESSE INVOLONTAIRE

CAUSES QUI ENLEVENT LE CARACTERE DECONTRAVENTION DE LrsquoACTE

Madalina-Elena MIHAILESCU

Resume

Notre bregraveve eacutetude se propose drsquoapprocher deux de ces causes ayant poseacute desquestions et mis les bases de quelques discussions inteacuteressantes autant dans le plan de ladoctrine roumaine que dans le plan de la doctrine europeacuteenne ou ameacutericaine et crsquoestjustement la raisons dont nous avons compris nous pencher sur elles avec une attentionplus grande ndash irresponsabiliteacute et lrsquoivresse involontaire

Lrsquoirresponsabiliteacute est une cause qui eacutecarte la culpabiliteacute gracircce au manque dediscernement de la personne qui au moment de lrsquoacte ne pouvait avoir le controcircle de sesfaits ou ne pouvait se repreacutesenter les conseacutequences de ses actes drsquoune maniegravere correcteLrsquoivresse involontaire est la cause qui exclut la culpabiliteacute ducirc agrave la circonstance ougravelrsquoauteur se trouvait au moment de lrsquoacte preacutevu par la loi contraventionnelle en eacutetatdrsquoivresse involontaire totale produite par lrsquoalcool ou drsquoautres substances

Comme premier eacuteleacutement de la culpabiliteacute la responsabiliteacute ndashparfois nommeacutee aussi capaciteacute de culpabiliteacute1 suppose lrsquoattitude du sujetdrsquoadopter une conduite conforme aux exigences de lrsquoordre juridique endrsquoautres termes la capaciteacute de comprendre la signification anti-juridiquede son acte et de se diriger sa conduite par conseacutequent Aussi lrsquoexistencede la responsabiliteacute suppose-t-elle un certain degreacute de maturation de lrsquoecirctrehumain mais aussi un eacutetat biopsychique de nature agrave permettre au sujet deconnaicirctre la signification de son acte et de diriger sa conduite par rapportagrave cette connaissance2

Le constat de la responsabiliteacute comme preacutemisse geacuteneacuterale de laculpabiliteacute ne peut se faire de maniegravere directe que par un examen neacutegatifen drsquoautres termes en constatant lrsquoinexistence de quelque cause quienlegraveverait cette preacutemisse 3

Le caractegravere conventionnel de lrsquoacte conformeacutement agrave lrsquoarticle 11alineacutea 1 de lrsquoOrdonnance du Gouvernement no 22001 relative au reacutegime


Josrdquo University of Galati Romania Email mihailescumadalinayahoocom1 Dans la doctrine plus ancienne de droit peacutenal on parlait drsquoimputabiliteacute2 Fl Streteanu Tratat de drept penal Partea generala vol I maison drsquoeacutedition C H BeckBucarest 2008 page 5503 Ibidem page 551


250

juridique des contraventions est enleveacute au cas de la leacutegitime deacutefense delrsquoeacutetat de neacutecessite de la contrainte physique ou morale du cas fortuit delrsquoirresponsabiliteacute de lrsquoivresse involontaire complegravete de lrsquoerreur de faitainsi que de lrsquoinfirmiteacute srsquoil est relieacute agrave lrsquoacte commis

Notre bregraveve eacutetude se propose drsquoapprocher deux de ces causes ayantposeacute des questions et mis les bases de quelques discussions inteacuteressantesautant dans le plan de la doctrine roumaine que dans le plan de ladoctrine europeacuteenne ou ameacutericaine et crsquoest justement la raisons dont nousavons compris nous pencher sur elles avec une attention plus grande ndashirresponsabiliteacute et lrsquoivresse involontaire

Irresponsabiliteacute

Lrsquoirresponsabiliteacute est une cause qui eacutecarte la culpabiliteacute gracircce aumanque de discernement de la personne qui au moment de lrsquoacte nepouvait avoir le controcircle de ses faits ou ne pouvait se repreacutesenter lesconseacutequences de ses actes drsquoune maniegravere correcte Les causes susceptiblesde geacuteneacuterer irresponsabiliteacute sont drsquohabitude les maladies de naturepsychique telle la deacutebilite mentale ou la psychopathie paranoiumlde mais lemanque de discernement peut aussi avoir drsquoautres causes tel lrsquoexemple leplus facile le sommeil

Les conditions de irresponsabiliteacute sont les suivantes lrsquoactant doitmanquer du facteur intellectif ou volitif le manque des deux facteurs doitexister pendant lrsquoexeacutecution de la contravention4 eacutetat irresponsabiliteacute nedoit pas ecirctre ducirc agrave lrsquoivresse agrave la minoriteacute ou agrave lrsquoerreur de fait lrsquoactecommis en eacutetat irresponsabiliteacute doit ecirctre preacutevu par la loicontraventionnelle

Nrsquoeacutetant pas consciente des conseacutequences de son acte une tellepersonne ne sera laquo reacuteceptive raquo ni aux sanctions contraventionnellesapplicables et ces sanctions nrsquoauront pas drsquoinfluence sur sa conduite agravelrsquoavenir irresponsabiliteacute comme nous en avons deacutejagrave fait preacutecision peutavoir pour causes la folie lrsquoidiotie le creacutetinisme les psychoses oulrsquoeacutevanouissement et peut se preacutesenter comme un eacutetat psychiquepermanent (incurable) ou temporaire (intermittent) 5 Par la suite il nesrsquoagit pas par exemple de contravention lrsquoacte de la personne ayant refuseacutede preacutesenter les piegraveces drsquoidentiteacute agrave la demande des organes de policerefus ducirc en fait agrave un malentendu de la part de la personne respectivemalentendu motiveacute par le handicape physique oligophreacutenie maladie

4 Lrsquoirresponsabiliteacute doit exister pendant lrsquoentiegravere peacuteriode drsquoexeacutecution de lrsquoeacuteleacutement

mateacuteriel de lrsquoaspect objectif du contenu constitutif5 M Preda Drept administrative Partea generala 4e eacutedition maison drsquoeacutedition Lumina

Lex Bucarest 2006 page 298-299


251

dont elle souffrait6 Ainsi a-t-il eacuteteacute annuleacute le procegraves-verbal decontravention par laquelle on avait donneacute une amende agrave une personnequi en motivant sa plainte a deacuteclareacute que le jour ougrave le procegraves-verbal avaiteacuteteacute dresseacute elle avait eacuteteacute mise dans lrsquoHocircpital Gheorghe Marinescu par unagent de police En analysant les piegraveces au dossier lrsquoinstance a constateacuteque le plaignant souffrait drsquoune maladie psychique il nrsquoavait donc pas larepreacutesentation objective des faits pour lesquels lrsquoamendecontraventionnelle lui avait eacuteteacute appliqueacutee 7

irresponsabiliteacute est reconnue aussi par les leacutegislations drsquoautres eacutetatscomme lrsquoune des causes de non responsabiliteacute un exemple eacutetant laleacutegislation franccedilaise 8 ougrave lrsquoon fait mention du fait que la personne qui a eacuteteacutediagnostiqueacutee agrave temps comme ayant un trouble psychique ouneuropsychique qui a laquo aboli raquo sa capaciteacute drsquoappreacuteciation ou le controcircle deses actions nrsquoest pas responsable du point de vue peacutenal (implicitement dupoint de vue contraventionnel non plus les contraventions eacutetant icipreacutevues par le texte du mecircme code)

La personne qui le jour des faits a eu un trouble psychique ouneuropsychique ayant deacutepreacutecieacute son discernement ou empecirccheacute le controcirclede ses actions reacutepondra peacutenalement ndash contraventionnellement maislrsquoinstance tiendra compte de cette circonstance lors de lrsquoeacutetablissement despeines et des reacutegimes drsquoexeacutecution

Dans le droit espagnol de lrsquoautre part on considegravere commeirresponsable celui qui lors de lrsquoacte illicite agrave cause de la deacutepreacuteciationmentale ou gracircce agrave toute maladie mentale ne peut comprendre les effetsneacutegatifs de ses actes Conformeacutement agrave la mecircme leacutegislation la folietemporaire ne constitue pas une cause qui exonegravere lrsquoactant de sa punitionsi elle a eacuteteacute produite pour le but de commettre lrsquoacte illicite 9

Lirresponsabiliteacute est reconnue comme une cause drsquoenlegravevement ducaractegravere illicite drsquoun acte ndash implicitement celui du caractegraverecontraventionnel ndash aussi par la leacutegislation britannique tant celle-ci que lesinstances judiciaire tenant compte des maladies mentales laquo reconnues raquo10Crsquoest dailleurs le cas R vs Chanfook 1994 dans le contexte du jugementdrsquoune cause qui avait agrave la base des coups simples de nature agrave ne pasproduire des leacutesions appliqueacutes agrave une personne Le cas en soi et du pointde vue conceptuel aussi de maladie mentale reconnue a eacuteteacute commenteacuteplus tard par Alec Buchannan et Graham Virgo dans leur article nommeacute

6 Idem7 La sentence civile no 98961994 Le tribunal civil du Secteur 1 de Bucarest8 Article 122-1 du Code penal franccedilais9 Article 20 alineacutea 1 de la loi no 101995 le Code penal espagnol modifieacute par la loi no

5201010 Catherine Elliot Frances Quinn Criminal Law 8th edition Longman England 2010

pages 366-367


252

Duress and mental abnormality11 publieacute dans Criminal Law Review121999

La folie est aussi invoqueacutee par Le code contraventionnel de laFeacutedeacuteration Russe comme une cause dont devrait souffrir une personnephysique au moment de lrsquoacte contraventionnel pour ne pas ecirctre tenueresponsable Conformeacutement agrave ce texte de loi la personne reacutepondra demaniegravere contraventionnel seulement si elle eacutetait malade mentalement et nepouvait comprendre la signification erroneacutee de ses actions ou inactionssuite agrave une maladie mentale chronique temporaire ou non ou agravelrsquoimbeacutecilliteacute ou toute autre maladie mentale au moment de lrsquoacte illicite

Lrsquoivresse involontaire complegravete (accidentelle)

Lrsquoivresse involontaire est la cause qui exclut la culpabiliteacute ducirc agrave lacirconstance ougrave lrsquoauteur se trouvait au moment de lrsquoacte preacutevu par la loicontraventionnelle en eacutetat drsquoivresse involontaire totale produite parlrsquoalcool ou drsquoautres substances Crsquoest la seule cause exoneacuteratoire deresponsabiliteacute qui se trouvait dans le code peacutenal mais qui manquait parmiles causes mentionneacutees par la Loi no 321968 lrsquoancien acte normatifrelatif au reacutegime juridique des contraventions en appreacuteciant qursquoilsrsquoagissait eacutevidemment drsquoune omission du leacutegislateur contraventionnel13 seretrouvant agrave preacutesent dans le texte de lrsquoacte normatif

Lrsquoivresse accidentelle est eacutetat ougrave une personne est arriveacutee demaniegravere indeacutependante de sa personne Par exemple une personnetravaille dans un milieu de vapeurs drsquoalcool et sans srsquoen rendre compteelle inhale de tels vapeurs et arrive agrave eacutetat drsquoivresse ou la personnerespective est contrainte physiquement ou psychiquement agrave consommerdes boissons alcooliques ou elle consomme des substances apparemmentinoffensives sans se rendre compte de leur effet et arrive agrave cet eacutetatLrsquoivresse complegravete est caracteacuteriseacutee par la paralysie presque complegravete delrsquoeacutenergie physique et lrsquoobscurcissement des faculteacutes psychiques Dans ceteacutetat la personne est incapable de comprendre le caractegravere de son action ouinaction et de se maicirctriser14 Pour ecirctre une cause drsquoenlegravevement ducaractegravere contraventionnel de lrsquoacte elle doit ecirctre accidentelle cest-agrave-direque lrsquoeacutenergie psychique de la personne doit ecirctre paralyseacutee totalementcest-agrave-dire qursquoelle existe au moment de la contravention 15

11 En traduction ldquoLa privation de liberteacute et lrsquoanomalie mentalerdquo12 La revue de droit penal13 A Iorgovan Tratat de drept administrative 4e eacutedition maison drsquoeacutedition C H Beck Bucarest

2005 page 39914 C Draghici C V Draghici A Iacob R Corches Drept contraventionalEdit TritonicBucarest 2008 page 5915 M A Hotca Regimul juridic al contraventiilor Comentarii si explicatii 4e eacutedition

maison drsquoeacutedition C H Beck Bucarest 2009 page 219 et suivantes


253

Selon le degreacute drsquointoxication lrsquoivresse peut ecirctre totale ou partiellelrsquoivresse totale pouvant ecirctre agrave son tour de trois faccedilons psychopathique ndashdelirium tremens eacutepileptiforme intoxication alcoolique latente maispersistante et complegravete respectivement la paralysie de eacutenergie musculaireaccompagneacutee par lrsquoeacuteteinte totale des faculteacutes psychiques Lrsquoivressecomplegravete nommeacutee aussi magna ebrietatis est la seule drsquoailleurs qui enlegravevele caractegravere contraventionnel de lrsquoacte commis16

Selon la maniegravere dont le sujet est arriveacute agrave cet eacutetat on peurdistinguer lrsquoivresse volontaire qui existe quand la consommation dessubstances lrsquoayant deacutetermineacute a eacuteteacute volontaire mecircme si le sujet nrsquoa pasdeacutesireacute drsquoarriver agrave eacutetat drsquoivresse et lrsquoivresse involontaire ndash accidentelle ndash aucas de laquelle le sujet est arriveacute agrave consommer les substances respectivesde maniegravere involontaire (par exemple il a eacuteteacute contraint de les consommerou en travaillant dans un milieu ougrave il y avait une forte concentration devapeurs drsquoalcool il est arriveacute agrave eacutetat drsquoivresse en les inhalant)

Il y aura aussi une ivresse involontaire au cas ougrave le sujet aconsomme volontairement les substances respectives mais il a eacuteteacute enerreur en ce qui concerne leur nature ou leurs effets quand par exemple ilprend des meacutedicaments sans savoir qursquoils sont susceptibles de produireun tel eacutetat 17

Dans la doctrine eacutetrangegravere on soutient parfois que irresponsabiliteacutedue agrave lrsquoivresse existe lagrave ougrave lrsquoalcooleacutemie deacutepasse 3000 pendant qursquounealcooleacutemie entre 2000 et 3000 est seulement en mesure drsquoatteacutenuer laresponsabiliteacute Conformeacutement agrave lrsquoune des opinions on considegravere que dansce cas impose aussi un examen in concreto de lrsquoeacutetat ougrave la personne encause se trouvait eacutetant donneacute que les effets de lrsquoalcool sur la capaciteacute decompreacutehension et volonteacute drsquoune personne sont deacutetermineacutes aussi pardrsquoautres facteurs que la simple concentration drsquoalcool dans le sang Leniveau de lrsquoalcooleacutemie peut ecirctre qursquoun indice relatif au caractegravere completou incomplet de lrsquoivresse qui doit ecirctre correacuteleacute avec drsquoautres eacuteleacutements 18

Dans le droit espagnol aussi il reacutesulte du texte du Code peacutenal19 que

16 M A Hotca Regimul juridic al contraventiilor maison drsquoeacutedition C H Beck Bucarest

2007 page 20417 Fl Streteanu op cit 2008 page 55518 Dans une solution de la jurisprudence allemande on nrsquoa pas constateacute une ivresse

complegravete pour une alcooleacutemie de 394000 apud Fl Streteanu op cit page 55619 Article 20 alineacutea 2 du Code penal espagnol fait mention du fait que la personne qui au

moment de lrsquoacte se trouve en eacutetat de pleine ivresse sous lrsquoinfluence de la droguetoxique des stupeacutefiants ou des substances psychotropes ou sous lrsquoinfluence drsquoautres

effets similaires si celles-ci nrsquoont pas eacuteteacute consommeacutees pour le but de commettre lrsquoacteillicite nrsquoest pas responsable de faccedilon peacutenale ndash contraventionnelle Ainsi la personne

ayant commis lrsquoacte agrave cause de sa deacutependance de telles substances qui lrsquoempecircche decomprendre les effets neacutegatifs de ses actes en alternant son discernement ne pourra

pas ecirctre responsable de faccedilon peacutenale ou contraventionnelle


254

pour ecirctre cause drsquoenlegravevement du caractegravere illicite drsquoun acte lrsquointoxicationdoit ecirctre laquo complegravete et non provoqueacutee raquo Cet eacutetat doit ecirctre preacutesent aumoment de lrsquoacte et perturber totalement la personne respective en luiproduisant laquo un eacutetat de totale anestheacutesie physique et morale raquo qui metteen peacuteril sa capaciteacute de compreacutehension et son discernement Dans laleacutegislation et dans la litteacuterature de speacutecialiteacute espagnole20 on parle drsquouneparallegravele entre eacutetat drsquointoxication et le syndrome drsquoabstinence produit par lerenoncement agrave une drogue celui-ci pouvant aussi produire dessymptocircmes similaires agrave lrsquointoxication volontaire ce qui peut conduireaussi agrave commettre une contravention dans de telles conditions Cesyndrome peut causer de graves deacuteseacutequilibres physiques et psychiques etpeut se manifeste en lrsquoabsence drsquoun traitement antidrogue adeacutequat au casde personnes deacutependantes de certaines drogues toxicomanes 21

De lege ferenda nous pouvons suggeacuterer nous aussi lrsquointroductiondans le texte de lrsquoacte normatif agrave cote des autres cause qui enlegravevent lecaractegravere contraventionnel (article 11 de lrsquoOrdonnance du Gouvernementno 22001) celle-ci aussi respectivement le deacuteseacutequilibre psychique produitpar la deacutependance aux drogues ou lrsquoabsence du traitement adeacutequat au cas detoxicomanes Il va de soi que dans de telles circonstances de tellespersonnes sont eacutevidemment deacutepourvues de discernement ou ont undiscernement troubleacute et par la suite elles ne se rendent pas compte desimplications de leurs actes et de leurs implications sociales De plus dansde telles conditions les actes sont clairement commis sans aucune formedrsquointention la consommation de drogues nrsquoeacutetant pas reacutealiseacutee en vue decommettre une infraction ou une contravention mais dans tout autre butqui nuise agrave la santeacute physique et surtout au discernement et au psychiquedu contrevenant

Bibligraphie

C Draghici C V Draghici A Iacob R Corches Dreptcontraventional Edit Tritonic Bucarest 2008

C Elliot FQuinn Criminal Law 8th edition Longman England2010

M A Hotca Regimul juridic al contraventiilor maison drsquoeacutedition CH Beck Bucarest 200

M A Hotca Regimul juridic al contraventiilor Comentarii siexplicatii 4e eacutedition maison drsquoeacutedition C H Beck Bucarest2009

20 Jose Nauel Maza Martin Circunstancias que excluyen o modifican la responsabilidadcriminal Wolters Kluwer Madrid Espagne 2007 page 3321 Ibidem page 34


255

A Iorgovan Tratat de drept administrative 4e eacutedition maisondrsquoeacutedition C H Beck Bucarest 2005

J N Maza Martin Circunstancias que excluyen o modifican laresponsabilidad criminal Wolters Kluwer Madrid Espagne2007

M Preda Drept administrative Partea generala 4e eacutedition maisondrsquoeacutedition Lumina Lex Bucarest 2006

Fl Streteanu Tratat de drept penal Partea generala vol I maisondrsquoeacutedition C H Beck Bucarest 2008

Code penal franccedilais Loi no 101995 le Code penal espagnol modifieacute par la loi no

52010


256


257

CONSIDERATIONS SUR LrsquoAPPLICATION DE LrsquoART 320INDICE 1 DU CODE DE PROCEDURE PENALE DANS LEJUGEMENT PENAL EN CAS DE RECONNAISSANCE DE

LA FAUTE

Monica BUZEA

Resume

La Loi 2022010 concernant plusieurs mesures pour acceacuteleacuterer la solution desprocegraves publieacutee dans le Moniteur Officiel no 714 du 26102010 apporte un eacuteleacutementnouveau par lrsquoarticle 320 indice 1 du Code de proceacutedure peacutenale concernant le jugementen cas de reconnaissance de la faute

La proceacutedure preacutevue par cet article est conditionneacutee par la deacuteclaration de lrsquoinculpeacutequi reconnaicirct avoir commis les faits retenus par lrsquoacte de saisissement et de sollicitationde son jugement baseacutes sur les preuves administreacutees pendant lrsquoeacutetape de poursuite peacutenaledeacuterouleacutee avant le deacutebut de la recherche judiciaire Les effets principaux consistent dans laceacuteleacuteriteacute de la solution de la cause et le beacuteneacutefice accordeacute agrave lrsquoinculpeacute la reacuteduction drsquoun tiersdes limites de punition en cas drsquoemprisonnement et la reacuteduction drsquoun quart des limites depunition en cas drsquoamende

Comme toute autre disposition leacutegislative nouvellement introduite lrsquoinstitutionanalyseacutee a deacutetermineacute dans la pratique judiciaire des discutions lieacutees au moment ougrave elledevient incidente et la modaliteacute drsquoapplication

Parmi les problegravemes lieacutes agrave lrsquoapplication pratique de lrsquoart 320 indice1 du Code de proceacutedure peacutenale - introduit par la Loi 2022010 concernantcertaines mesures pour acceacuteleacuterer la solution des processus publieacute dans leMoniteur Officiel no 714 du 26102010 ndash il est aussi difficile drsquoeacutetablirjusqursquoougrave cette proceacutedure peut devenir incidente

Conformeacutement agrave lrsquoart 320 indice 1 du Code de proceacutedure peacutenalelrsquoinculpeacute doit deacuteclarer sur lrsquohonneur ou par inscrit authentique jusqursquoaudeacutebut de la recherche judiciaire qursquoil reconnait avoir commis les faitsretenus par le reacutequisitoire et demande que le jugement soit faitconformeacutement aux preuves administreacutees pendant la poursuite peacutenalebeacuteneacuteficiant ainsi de la reacuteduction des limites de punition

Dans la situation ougrave lrsquoinstance de jugement est saisie parreacutequisitoire les mesures anteacuterieures agrave la seacuteance de jugement compleacuteteacuteespar celles du deacutebut visant des aspects organisateurs et des questions

PhD Student Assistant Faculty of Judicial Social and Political Sciences ldquoDunărea deJosrdquo University of Galati procureur au Parquet pregraves de la Cour drsquoAppel de Galaţi

Romania Email monicabuzeayahoocom


258

incidentes sont suivies par la veacuterification de la reacutegulariteacute de lrsquoacte desaisie conformeacutement agrave lrsquoart 300 du Code de proceacutedure peacutenale

En tant qursquoeacutetape ulteacuterieure la recherche judiciaire se deacutefinit commepartie du jugement ougrave on administre et on veacuterifie toutes les preuves de lacause peacutenale1

Cette eacutetape du processus peacutenal commence par la lecture de lrsquoacte desaisie activiteacute qui consiste par sa lecture par le greffier ou unepreacutesentation succincte de son contenu conformeacutement agrave lrsquoart 322 du Codede proceacutedure peacutenale

Dans la proceacutedure habituelle apregraves la lecture de lrsquoacte de saisie onexplique agrave lrsquoinculpeacute lrsquoaccusation on lui fait connaitre qursquoil a le droit de nerien deacuteclarer mais qursquoil peut poser des questions et offrir des explications

Si on interpregravete les preacutevoyances de lrsquoart 300 indice 1 du Code deproceacutedure peacutenale en proceacutedure simplifieacutee apregraves la veacuterification de lareacutegulariteacute de lrsquoacte de saisie mais avant sa lecture on prend unedeacuteclaration agrave lrsquoinculpeacute sur sa reconnaissance complegravete des faits retenusdans lrsquoacte de saisie mais on insiste sur le fait qursquoil ne peut pas solliciterlrsquoadministration de nouvelles preuves excepteacute les inscrits en circonstanceqursquoil peut administrer agrave ce terme-lagrave

Il y a eu des difficulteacutes en ce qui concerne la situation transitoire ougravela recherche judiciaire par la lecture de lrsquoacte de saisie et eacuteventuellementlrsquoadministration de preuves a eacuteteacute commenceacutee avant lrsquoentreacutee en vigueur dela Loi 2022010 et la sollicitation de lrsquoapplication de la proceacuteduresimplifieacutee a eacuteteacute faite ulteacuterieurement

En geacuteneacuteral dans la pratique judiciaire on a rejeteacute ces sollicitationsles causes eacutetant solutionneacutees conformeacutement agrave la proceacutedure habituellemais il y a eu aussi des instances judiciaires qui ont interrogeacute de nouveaules inculpeacutes apregraves lrsquoentreacutee en vigueur de la Loi 2022010 bien que larecherche judiciaire soit deacutejagrave commenceacutee et suite agrave leur sollicitation on aappliqueacute la proceacutedure simplifieacutee tenant compte aussi de lrsquoart 13 du Codepeacutenal2

Dans ce sens on peut constater que le texte de lrsquoarticle analyseacute aune nature mixte car il contient des dispositions de proceacutedure peacutenalelieacutees aux conditions drsquoapplication de la proceacutedure speacuteciale et aussi desdispositions de nature peacutenale avec reacutefeacuterence aux possibles conseacutequencessur la nature de la punition

Tenant compte du fait que ces conditions de droit processuel sontcelles qursquoon doit examiner au preacutealable car elles sont essentielles pour

1 N Volonciu Traiteacute de procedure penale vol II Ed Paideia Bucarest 1996 p 1912 Deacutepartement de Focşani Sentence peacutenale 18502010 def par D pen 2762011 de laCour drsquoAppel de Galaţi Deacutep de Tecuci S pen 6752010 def par D pen 3502011 de la

Cour drsquoAppel de Galaţi


259

lrsquoadmission de la demande la reacuteduction de la punition nrsquoeacutetant que laconseacutequence de leur ensemble et de leur validiteacute on constate qursquoil a uncaractegravere processuel peacutenal deacuteterminant

Le principe de lrsquoactiviteacute qui gouverne lrsquoapplication de la loiprocessuelle peacutenale eacutetablit qursquoelle produit ses effets agrave lrsquoavenir agrave partir dumoment ougrave elle entre en vigueur Dans ces conditions le principe delrsquoapplication de la loi plus favorable nrsquoest pas incident contrairement agravecelui de la non-reacutetroactiviteacute speacutecifique seulement agrave la loi peacutenale

Ainsi les normes de proceacutedure peacutenale srsquoappliquent degraves leur entreacuteeen vigueur et jusqursquoau moment ougrave elles srsquoarrecirctent conformeacutement audicton tempus regit actum3

La Loi 2022010 ne contient aucune mention sur lrsquoapplication drsquouneautre regravegle pour cette situation transitoire Drsquoailleurs comme on lrsquoamontreacute dans la doctrine la nouvelle reacuteglementation peut consacrer lrsquoultra-activiteacute de lrsquoancienne loi car la reacutetroactiviteacute de la nouvelle loi de proceacutedurepeacutenale nrsquoest pas permise par lrsquoart 15 alineacutea 2 de la Constitution4

3 G Theodoru Traiteacute de droit processuel peacutenal Editions Hamangiu Bucureşti 2007 p 544 Idem p 57


260


261

PRINCIPLES OF NOTARY ACTIVITY

George SCHINAngelica CHIRILĂ

AbstractGenerally the notion of principle designates a basic element an idea a basic law

on which a scientific theory a political legal system a conduct norm etc are establishedCorrelatively we appreciate that the principle of notary activity represents the basic ideasand value judgments that are checked in the entire legislative frame regulating thisactivity as a whole or in some constituent parts

The basic principles of the notary activity can be detached from the provisions ofthe first chapter of Law no 361995 Some of these principles derive from constitutionalnorms representing a particular application of them Other principles are of coursespecific to the notary activity

Keywords notary activity principles legality

Generally the notion of principle designates a basic element anidea a basic law on which a scientific theory a political legal system aconduct norm etc are established (Language 1996)

Correlatively we appreciate that the principle of notary activityrepresents the basic ideas and value judgments that are checked in theentire legislative frame regulating this activity as a whole or in someconstituent parts

The basic principles of the notary activity can be detached from theprovisions of the first chapter of Law no 361995 Some of theseprinciples derive even from constitutional norms representing aparticular application of them Other principles are of course specific tothe notary activity (Leş 2003)

Making an analysis of these principles we will retain the mostrelevant aspects

1 The principle of the legality of the notary activity

It is a principle that derives from the basic principle of theRomanian Law System and as a matter of fact from any other legalsystem of a state of law The principle was formulated for the first time in


Josrdquo University of Galati Romania Notary public Email schingeorgeyahoocom PhD Lecturer Danubius University Galati Lawyer Email

chirila_angelicaunivdanubiusro


262

the French Declaration of the Rights of Man and of the Citizen in 1789and reiterated in the Universal Declaration of Human Rights adopted bythe General Assembly of the United Nations on December 10 1948 andlater on in the International Covenant on Civil and Political Rightsadopted on December 16 1966 but also in the European Convention forthe Protection of Human Rights and Fundamental Freedoms in 1953

The principle of legality was written also in the Constitution ofRomania in art 72 letter h) and i) and is displayed in the entireRomanian system of law

In the domain of notary activity the principle has more aspectsthe settlement of notary offices is performed according to the lawcomplying with the competence rules is of high importance the activityis performed in compliance with the legal dispositions regarding theprocedure of issuing some documents because only this way thedocuments can have public authority

Also the entire notary activity is governed by the compulsorinessof complying with the legality principle circumstance that results fromsome texts included in Law no 361995 the frame law within thedomain

Accordingly article 6 of this normative act provides that notariespublic and other institutions that develop notary activity have theobligation to check that the documents they issue do not compriseclauses opposed to the law and to good morals to ask and giveclarification to the parties on the content of these documents in order tobe convinced that they understand their meaning and accept their effectsin order to prevent litigations

In case the document required is contrary to the law and to goodmorals the notary public is obliged to refuse to issue it

In case the document presented has an ambiguous content and thenotary public cannot refuse issuing the document she will drawattention of the parties on the legal consequences to which they areexposed and will make a specific mention within the document

If a party opposes to inserting the mention the notary public willrefuse to issue the document

Complying with the legality and the active role of the notarypublic this one has the role to fulfill the preventive function of thenotary activity (Leş 2003)

2 The principle of equality of treatment before the notary public

Generally the principle of equality before the law is a basicprinciple of the Romanian law system being recorded in article 16 of theConstitution of Romania ldquoCitizens are equal before the law and public


263

authorities without any privilege and discrimination No one is abovethe lawrdquo

In the domain of notary activity the principle is speciallyindicated through article 7 of Law no 361995 which stipulates ldquothenotary activity is equally performed for all persons without distinctionof race nationality ethnic origin language religion sex opinionpolitical affiliation fortune or social originrdquo

According to this principle unless the legality principle analyzedbefore is breached the notary public cannot refuse to issue a documentin connection to which she was solicited due to the reasons shown inarticle 7 of Law no 361995

3 Notary activity as monopole of notaries public

The principle is expressly stated in article 2 of Law no 361995which stipulates ldquoThe notary activity is performed by notaries publicthrough notary documents and notary juridical consultations under thepresent lawrdquo

In most western countries the notary activity is performed by thenotaries public offices and the notaries execute the wide majority ofdocuments with notary character The situation is similar in the systemof our legislation

The principle according to which the notary activity constitutesnotaries public monopole deals with some important exceptionsAccordingly in article 5 it is stipulated that ldquoNotary documents can beperformed also by diplomatic missions and consular offices of Romaniaas well as by other institutions under conditions and limits provided bythe lawrdquo Article 12 acknowledges also the exception according to whichldquoThe secretaries of parishes and townsrsquo local councils where no notariespublic offices operate will execute on partiesrsquo request the followingnotary documents a) legalization of the signatures on the documentspresented by the parties b) legalization of copies of documents exceptfor documents with private signaturerdquo

With all these exceptions the principle of notariesrsquo monopole on thenotary activity is reinforced by article 10 of Law no 361995 whichestablishes the general competence regarding their notary activity

4 The principle of keeping the professional secret

Through the particularity of the profession which she carries outthe notary public may know about certain facts or circumstances whichthe parties do not want to make public Due to this reason article 36 ofLaw no 361995 stipulates that ldquoNotaries publichellip have the obligation


264

to keep the professional secret regarding the documents and deedswhich they have acknowledged during their activity even after ceasingtheir activity under the respective positionrdquo

Also the notary public is bound to comply with the confidentialityof the papers issued and to not disclose the data or information entrustedto herhim

Given the importance granted to protecting the particular interestof the parties as it can be observed the obligation persists even afterceasing the activity by the notary and it is extended also on the auxiliarypersonnel from notary public offices The regulation of putting topractice the Law of notaries public and notary activity establishes thisobligation in article 29 According to this text the obligation to keep theprofessional secret imposes to the notaries public ldquothe restraint to giveinformation as well as to allow the access to the notary publicdocuments aside from the parties heirs and their representatives aswell as the persons who justify a right or legitimate interestrdquo

The legal dispositions comprised in article 29 paragraph (1) of theRegulation have an extremely restrictive character but are totallyjustified A third party cannot justify in principle a right or legitimateinterest to know the content of the documents issued by the parties

The archive of notary public can be inspected only by a magistrateand based on the delegation issued to this purpose by the competentlegal authority If the notary documents are inspected for forgery theycan be taken and remain in the file of the case if they are declared falsewith the obligation to communicate the prosecutorrsquos decision orordinance on contrary the documents must be returned (article 29paragraph (4) of the Regulation) (Leş 2008)

Also exceptions to this principle are accepted in cases when thelaw or the parties concerned free the notaries from this obligation Notcomplying with this principle can lead to criminal responsibility even ofthe notary public for committing the crime of disclosing the professionalsecret provided by article 196 Penal Code

5 The principle of performing a public interest service

The principle is acknowledged by article 3 of Law no 361995which establishes that ldquothe notary public is invested to fulfill a service ofpublic interest and she has the statute of an autonomous functionrdquoThrough notaries public the persons concerned (physical or juridical)can satisfy some necessities determined by the inevitability to participatein the legal life Therefore the notary public activity is organized inorder to satisfy some private interests


265

The order of law cannot be indifferent against the way to performthe notary public legal operations The law confers to the notarydocument probative force and the character of a ldquopublic authorityrdquodocument The establishment of this principle is justified by theimportance of the activity developed by the notary public activity whichhas as purpose the ascertainment of civil legal or commercialundisputable reports of physical or juridical persons

6 The principle of developing the notary activities only onrequest of persons concerned

This principle is also expressly acknowledged by Law no 361995Through dispositions of article 43 paragraph (1) this normativedocument provides that ldquoAll notary documents are issued on requestrdquoIt was considered that this principle has incidence on the entire notaryactivity the claim representing a premise of any operation even in thecase of performing other operations than notary documents including onthe occasion of giving juridical consultations (Leş 2008)

Bibliography

Language E D (1996) Bucharest Univers Enciclopedic PressLeş I (2003) Special civil procedures Bucharest All Beck PressLeş I (2008) Notary law Workbook Bucharest CH Beck Press


266


267

NATIONAL MARGIN OF APPRECIATION OR MULTIPLESTANDARDS IN THE ECHR CASE-LAW CONCERNING

THE FREEDOM OF EXPRESSION

Carmen MOLDOVAN

AbstractThe concept of national margin of appreciation varies from case to case and from

a moment to another as a result of the living instrumentrdquo quality of the EuropeanConvention on Human Rights which is subject of an autonomous interpretation from theStrasbourg Court The national restrictions applied to the freedom of expression (art 10of the ECHR) are subject of a restrictive interpretation The extent of the discretion forthe state authorities is determined by the character of the measure adopted the nature ofthe activities the legitimate objective pursued By application of these elements there arecases of inexistence of a margin of appreciation and cases of an extensive nationaldiscretion Participation in politics or in general interest debates press activity have anindispensable role for the democratic society and are the beneficiaries of a special statuswhich determines a limited maneuver space for states

This paper will emphasize the variable character of the national margin ofappreciation and interpretations of the Court that contradict the general principlesestablished previously

Keywords fundamental rights restraints diversity proportionalityinterpretation

1 The Concept of margin of appreciation

The national margin of appreciation doctrine is known in theEuropean system of protection of human rights jurisprudence due to itsconstruction by the European Court of Human Rights which hasimplemented a thorough analysis methodology of decisions done at thenational level (by governments courts or other national actors)

The name of the doctrine comes from the French term margedrsquoappreciation used in the jurisprudence of the Council of State (ConseildrsquoEtat) not only on the administrative law but also on the influence ofadministrative law in the civil jurisdictions and it designates the extent ofdiscretion that could be recognized to the administrative authorities1 The

PhD Student Preparator Faculty of Law Al I Cuzardquo University of Iaşi Emailcarmenmoldovanuaicro1 Herbert Rubasha Accommodating diversity Is the doctrine of margin of appreciation asapplied in the European Court of Human Rights relevant in the African human rights system

LLM Thesis 2010 pp 7-8


268

most complex development of the administrative discretion doctrine wasdeveloped in Germany (Ermessensspielraum)2 but it is more restrictive thanthe theory used by the Strasbourg Court and the Communitarian law

Due to the diversity of cultural and legal traditions embraced byeach State identifying and imposing uniform standards of Europeanhuman rights was a difficult process in which the European Conventionon Human Rights3 was considered a common denominator The aim ofusing the national margin of appreciation doctrine is to determine whethera state interference in the exercise of a fundamental right guaranteed bythe European Convention has a necessary character to achieve a particularlegitimate interest or purpose Such justification is possible in connectionwith several guaranteed rights the right to privacy family home andcorrespondence (art 8 para 2) the right to freedom of religion (art 9 para2) the right to freedom of association (art 9 para 2) the right to freedomof expression (art 10 para 2) the right to life under the conditionsprescribed by art 2 para 3

The International Court of Justice of the UN has an uneveninterpretation of the concept of national discretion The prestigiousinternational court adopted contradictory positions in some cases it hasbeen recognized the existence and extent of a national margin ofdiscretion while others do not accept this notion4

The controversy is developed around two possibilities theapplication of a non-intrusive standard analysis in close relationship withthe principle of subsidiarity of international law or whether to adopt acentralized analysis method of the rules adopted in an internationalorganization5

2 George Nolte General Principles of German and European Administrative Law ndash AComparison in Historical Perspective Modern Law Review Limited Blackwell Publishing

Oxford 1994 p 673The Convention for the protection of rights and fundamental freedoms was adopted by

the Council of Europe at Rome on 4 November 1950 and entered into force on 3September1953 Romania ratified the Convention on 20 June 1994 by Law no 301994

published in the Monitorul Oficial Part I no 135 of 31 May 19944ICJ Oil Platforms (Iran c US) [2003] ICJ Reports 90 - the International Court of Justice

repelled the doctrine of margin of appreciation ICJ Avena (Mexico c U S) [2004] ICJ

Reports-International Court of Justice took a more permissive attitude on the margin ofappreciation doctrine ICJ Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory Opinion of 9 July 2004 [2004] ICJ Reports 43 LM - the InternationalCourt of Justice rejected again the national margin of appreciation doctrine5 Freacutedeacuteric Sudre Jean-Pierre Margueacutenaud Joeumll Andriantsimbazovina AdelineGouttenoire Michel Levinet Les grands arrecircts de la Cour europeacuteenne des Droits de l`Homme

3e eacutedition Presses Universitaires de France Paris 2005 p 79 Yuval Shany Toward aGeneral Margin of Appreciation Doctrine in International Law inThe European Journal of

International Law Vol 165 2005 p 908


269

2 Definition and characteristics of the doctrine of margin ofappreciation

The concept of national discretion of states is very difficult todefine because it exists only through jurisprudence and it has variablefeatures However despite the criticisms made about the application ofthe doctrine of national margin of discretion there is consensus in thespecialized literature that it is a means of ensuring the protection offundamental rights while preserving the autonomy of national authoritiesthat have sovereign powers to regulate the conduct prohibited and contentof rights respecting the minimum requirements imposed by internationalagreements

The doctrine that has seen significant development in thejurisprudence of the European Court can be defined as ldquoThe degree ofdeference or error allowed to national executive legislativeadministrative or judicial bodies before declaring a national derogation or

restriction of a right guaranteed by the Convention to constitute a materialbreach of the Convention guarantees It can be considered as a limit whichshould allow international supervision of a Member Statersquos power toadopt and enforce its lawsrdquo6

As a consequence of this regulatory model we can be in a situationin which in the process of implementation of an international rulenational authorities from different countries may use different measuresbut all compatible with the conventional safeguards assumed7

The European Court of Human Rights case law highlights theabsence of a uniform European conception of various concepts as well asthe diversity national legislation in space and time of eg in its ruling inthe Handyside Case the Court stressed that it cannot be identified auniform concept of moral8 in the national law

The national margin of discretion is not unlimited but it is subjectof review by the European Court of Human Rights by examining theprinciples and criteria established in its judgments The discretionarypower of the state has not the same amplitude for all limitations to therights guaranteed but it is governed by the principle of proportionality ofthe interference with the legitimate aim pursued and the observance of afair balance between public interest and individual interests9

6 Howard Charles Yourow The Margin of Appreciation Doctrine in the Dynamics of Europe

on Human Rights Jurisprudence Kluwer Academic Publishers 1996 p 137 Freacutedeacuteric Sudre Jean-Pierre Margueacutenaud Joeumll Andriantsimbazovina Adeline

Gouttenoire Michel Levinet op cit p 758 ECHR Handyside v United Kingdom sect 48

9 The principle of proportionality similar to the concept of national margin ofappreciation is not expressly regulated by the Convention and it began to be used and

developed by the Court in its case law of the 90s Jean-Franccedilois Renucci Traiteacute de droit


270

One way to understand the general steps for developing a doctrineof national discretion may be the fact that courts must interpretinternational standards as involving a minimum of constraints on theconduct of states10 Such construction of the legal rule to be applied allowsto member states parties a considerable ldquozone of legalityrdquo11 Reducing thelegality limits of the measures taken by national authorities as a result ofrestrictive interpretation of the rules that guarantee fundamental rightscould produce the effect of interference from the international communityin the conduct of states and promoting the idea of subsidiarity ininternational relations12

Despite generally positive assessments on the development ofmargin of appreciation doctrine there was criticism mainly focused on theimplications of the erosion occurred on the level of prescribing theconduct to be adopted by states As an example it was stated that thisdoctrine encourages relative or subjective application of the internationallaw norms producing attenuation on its quality to regulate the conduct ofthe recipients (the States) and a subversion of their authority andperception of fairness of the adopted conduct (expectation of similartreatment of cases with similar objects)13

It was stated that the use of this doctrine contributes to the abolitionof the legality limits and that it can strengthen the perception ofinternational law as an inefficient system of legal rules a weak system ofunenforceable ineffective principles which contains very few realconstraints over state powers to regulate restraints on rights In fewwords the concept was presented as a subtle method which allows topowerful states to circumvent the objective rules of international law14 andas a sophisticated method to reintroduce the term State in the internationalcontext15

On the other hand the arguments in favor of the national margin ofappreciation doctrine went forward to support the existence of an

europeacuteen des droits de l`homme Librairie Geacuteneacuterale de Droit et de Jurisprudence Paris 2007p 802 ECHR Branningan and Mc Bride v United Kingdom sect 3210 Yuval Shany op cit p 91211The idea is well illustrated in the Lotus case decided by the International Permanent

Court of Justice in the sense that whatever is not prohibited by legal rules is allowed

PCJI Lotus (France cTurkey) [1927]12 Yuval Shany op cit p 912 ECHR Use of Languages in Belgium (the Belgian Linguistics

Case) 1968 sect 281-28213 ECHR Certian Aspects of the Laws on the Use of Languages in Belgium (No2) (Merits) 1967

sect 353 Partially dissenting Opinion of Judge Wold14 Cora S Feingold The Doctrine of Margin of Appreciation and the European Convention on

Human Rights in Notre Dame Law Review 53 1977 p 9515 Paolo C Carozza Subsidiarity as a Structural Principle of International Human Rights Law

in The American Journal of International Law Vol 97 38 2003 p 72


271

independent energy in the legal pluralism of the international law(particularly human rights rules)16

3 Variation of elements defining the national margin ofappreciation

A comprehensive development in the field of free speechprotection was made by the Court in Handyside Case17 where it analyzedthe legality of the ban of British officials to the distribution of a book toteenagers on claims that it affected public morality The Court upheld thegovernmentrsquos argument on the legitimacy of measures taken to restrictfree speech and established the major coordinates of the national marginof appreciation doctrine

ldquoArticle 10 para 2 leaves to the Contracting States a margin ofappreciation This margin is given both to the domestic legislator(ldquoprescribed by lawrdquo) and to the bodies judicial amongst others that are

called upon to interpret and apply the laws in force () NeverthelessArticle 10 para 2 does not give the Contracting States an unlimited powerof appreciation The Court which with the Commission is responsible forensuring the observance of those Statesrsquo engagements () is empoweredto give the final ruling on whether a ldquorestrictionrdquo or ldquopenaltyrdquo isreconcilable with freedom of expression as protected by Article 10rdquo18

The subsequent jurisprudence of the Court indicates that themanner of application of the national margin of discretion doctrinedepends on a variety of factors that determine the scope of power grantedto national authorities From the whole set of factors three have aparticular importance 1) the comparative advantages of local authorities - theanalysis of the basic rules is better assessed by national authorities andallow a wider margin compared with the objective rules which the Courtmay independently evaluate19 2) the existence of an applicable standard -the greater the consensus on the existence of a European standard thenarrower the margin of appreciation for the Member State20 3) the nature ofinterests involved - the importance of national interests concerned should bebrought into balance with the nature of the individual right compromisedby the analyzed restriction The extent of national margin of appreciation

16 Michael J Perry Are Human Rights Universal The Relativist Challenge and Related

Matters in Human Rights Quarterly 1997 pp 498-50917 ECHR Handyside v United Kingdom18 ECHR Handyside vUnited Kingdom sectsect 48-4919 ECHR Sunday Times v United Kingdom 1980 sect 5920 ECHR Rees v United Kingdom 1987 sect 67


272

enjoyed by states must reflect this balance formula21 by proportionalityprinciple requirements

The Court examines the circumstances of the case and a number offactors22 the specific quality that the author has (politician journalistlawyer military civil servant judge member of a banned organization)the type of speech (artistic religious political commercial) the possibilityfor the author to use other forms of expression23 where the speech tookplace the target audience of the expressed message the means by whichthe message was broadcasted (television newspapers public exhibitions)

As a general rule the Court appears to recognize for some domainsa more extensive power of discretion to national authorities to assess onthe necessity for measures to achieve an objective This is the case forexample where the Court identifies a similar practice in member states asituation known as the common denominator or common standardapplicable law

Thus in the Sunday Times case the Court treated the antithesisbetween the exception of protection of morals and the more objective notionof judicial authority

ldquoThe view taken by the Contracting States of the ldquorequirements ofmoralsrdquo observed the Court ldquovaries from time to time and from place toplace especially in our erardquo and ldquoState authorities are in principle in abetter position than the international judge to give an opinion on the exactcontent of these requirementsrdquo Precisely the same cannot be said of the farmore objective notion of the ldquoauthorityrdquo of the judiciary The domestic lawand practice of the Contracting States reveal a fairly substantial measure ofcommon ground in this area This is reflected in a number of provisions ofthe Convention including Article 6 which have no equivalent as far asldquomoralsrdquo are concerned Accordingly here a more extensive Europeansupervision corresponds to a less discretionary power of appreciation24

The consequence arising from the Sunday Times case is that thenational margin of appreciation has not the same amount for each of thegoals listed by the state through the adoption of measures constituting aninterference with the normal exercise of freedom of expression being

21 ECHR Leander v Sweden 1987 sect 59 ECHR Ccedilakici v Turquie 2001 sect 191-192 ECHR The

Observer v United Kingdom 1992 sect 218 (Partially dissenting Opinion of Judge Morneilla)

Yuval Shany op cit p 92722 Adrian Tudorică Dragoş Bogdan Articolul 10 Dreptul la libertatea de exprimare icircn coord

Dragoş Bogdan Mihai Selegean Drepturi şi libertăţi fundamentale icircn jurisprudenţa CurţiiEuropene a Drepturilor Omului Editura All Beck Bucureşti 2005 pp 495-49623The question of the applicants contribution to public debate on the union problem byexpressing criticism regarding the independence of trade-unions and the functioning of

the judicial system could have been performed outside the terms of use -embezzlers(delapidatori) ECHR Constantinescu v Romania 200024 ECHR Sunday Times v United Kingdom sect 59


273

extended when it concerns the protection of public morals (a concept thathas no objective definition) while it is more difficult to prove thelegitimacy of an the interference in the respect of private25

In some of its rulings the Court emphasized that a democraticsociety is characterized by ldquotolerance and respect for the dignity ofpersonsrdquo so in some instances it may be considered necessary to punish orprevent all forms of expression which spread incite promote or justifyhatred based on intolerance including religious intolerance From thisstatement it results that states have on this aspect a great discretion butfrom the entire case law clearly emerges the idea that the European Courtin such matters exercises a very strict control of national interference andin the case that the speech in question is described as one that promoteshate (hate speech) the national margin of appreciation is restrictedHowever the identification of firm elements which serve to establishlimits for the national margin of discretion is a very difficult operation26

Due to the considerable number of member states to the EuropeanConvention on Human Rights it is very possible to find a variety ofinterpretations and permissive appreciations in the national legal systemson specific issues This fact is not likely to draw a rigid framework inassessing the margin of appreciation but it is only the raw material in itsdelineation27 The European Court may not give great importance to thefact that in other states there is a greater tolerance of certain publicationsas it corresponds to the need of moral attitude variations in differentsocieties28

Generally the existence of a constant attitude in regulation or lackof regulation of a particular domain in other member states may affect theextent of the national discretion by the European Court29 Such acomparison is reasonable when the main question is to determine whethercertain restrictions on the exercise of guaranteed rights are necessary ornot in a democratic society The general use by the members of theCouncil of Europe of such restrictions may constitute an indication of the

25 Geacuterard Cohen-Jonathan La Convention europeacuteenne des droits de l`homme Edition

Economica Paris Presses Universitaires D` Aix -Marseille Aix-en-Provence 1989 p 47226 Anne Weber The Case-Law of the European Court of Human Rights on Article 10 ECHRRelevant for Combating Racism and Intolerance in Council of Europe Expert Seminar

Combating Racism 2007 p 100 Mark W Janis Richard S Kay Anthony W BradleyEuropean Human Rights Law Text and materials Third Edition Oxford University Press

OxfordNew York 2008 p 24327 Mark W Janis Richard S Kay Anthony W Bradley op cit p 24328 ECHR Handyside v United Kingdom29 ECHR Dudgeon v United Kingdom Mark W Janis Richard S Kay Anthony W

Bradley op cit p 243


274

necessary character of the measure while its absence may be an indicationof failure to fulfill the requirement of necessity30

The analysis of the European Court over the justification of theinterferences in the exercise of rights guaranteed by the conventionalprovisions depends on the relative effectiveness of measures adopted bynational authorities and is one with a strong practical character

The variation of the content of national margin of discretiondoctrine is fully illustrated in the Guardian vs United Kingdom case31 Theobject of the Courtrsquos analysis consisted in evaluating the conformity withthe European Convention guarantees of the prohibition for the applicantto publish newspaper excerpts from Spycatcher a memoir of a formerofficer of the British Secret Service (MI-5) in which were recountednumerous illegal actions undertaken by the Service This restriction wasupheld by the House of Lords until October 1988 Until the onset of internalprocedures some of the information had already been published in otherbooks or broadcasted on TV During the course of proceedingsinformation has appeared in many articles published in the UK USA andAustralia and the book was published in full in the United States ofAmerica and many copies were brought to UK

The European Court of Human Rights found that in this case therestriction was justified until 30 July 1987 but it lost this status after thatdate At this time much of the information contained in the book wasalready public and in these circumstances the Court considered that anyattempt to maintain their confidentiality was an approach more or lessvain32

Some of the separate opinions to the decision expressed the doubtthat there was a difference between the two periods considered by mostjudges In part the decision was based on an estimate of the informationthat was already known when issuing the prohibition orders and on thepossibility that the plaintiffs had access to new and differentinformation33

Moreover other opinion supported the inevitability of spreadingmaterials that the government wanted to keep secret even from thebeginning Judge Pettitti stressed that taking into account moderntechnology the territorial division of thoughts and expression isimpossible34

30 ECHR Fretteacute v France Mark W Janis Richard S Kay Anthony W Bradley op cit p24331 ECHR Guardian v United Kingdom 199132 ECHR Guardian v United Kingdom 199133 Dissenting Opinion of Judge Walsh Mark W Janis Richard S Kay Anthony WBradley op cit p 24434 Partially dissenting Opinion of Judge Pettitti


275

It follows that the essential element is the effectiveness of theattempt to suppress information In this case the publication ban was notnecessary to prevent damage to national security because the informationwould become public and almost certainly damage would have occurredregardless of interference and a futile measure should not be considerednecessary35

4 The distinction between value judgments and statements offact

Another criticism that can be made on the interpretation of theEuropean Court in the recognition of national discretion is that it makesno clear distinction between the statements of fact and value judgments onthe basis of objective elements The distinction is relevant because asshown in its case-law for a statement of fact to be regarded as affecting apersonrsquos reputation it involves a demonstration of its veracity while thevalue judgments must have a factual basis that can vary depending on itsnature and severity36

Although from the analysis of the entire case-law of the EuropeanCourt of Human Rights it appears the preference for freedom ofexpression when it conflicts with other fundamental rights by the rulingin 2007 in the Lindon and Otchakovsky July-Laurens v France37 case thisrelationship been called into question38

The facts of the case are relevant to highlight the deviations fromthe usual interpretation of the European Court The applicant hadpublished a novel entitled The Trial of Jean-Marie Le Pen (Le process de Jean-Marie Le Pen) in which the author has imagined a National Front militantaccused of killing a young Maghreb claiming racist nature of the act Themain character of the novel the attorney of the accused raises the questionof responsibility of Jean-Marie Le Pen for this act The author and thepublisher of the novel have been charged with defamation by the NationalFront and Jean-Marie Le Pen on the basis of six passages in the novel andsentenced by the national courts

One of the issues raised by this case refers to the existence offreedom of speech in the case of a novel It is emphasized that most of theEuropean Court case law on the freedom of press has covered articles

35 Mark W Janis Richard S Kay Anthony W Bradley op cit p 24436 Patrick Wachsmann Vers un affaiblissement de la protection de la liberteacute d`expression par laCour Europeacuteenne des Droits de l`Homme in Revue trimestrielle des droits de l`homme

No 78 2009 pp 500-50137 ECHR Lindon Otchakovsky-Laurens and July v France 200738 Patrick Wachsmann op cit pp 491-511


276

published in journals periodicals and only in rare cases it have beenbrought into question books or radio broadcasts39

The first question is whether the works of fiction may be subject tosimilar requirements imposed by rules governing freedom of expressionbearing in mind the Courtrsquos view expressed in the Muumlller case on pictorialart that those who create interpret disseminate or exhibit a work of artcontribute to exchange ideas and opinions essential to a democratic society40

Clearly there is a discrepancy between this vision of the EuropeanCourt and the new interpretation particularly because of the lack oflandmarks to place works of art in relation to the rules that apply tofreedom of expression Such a process is difficult due to art features forwhich there cannot be conceived a clear and precise definition the authorhaving a great freedom to create in many cases based on facts or realpeople and this aspect cannot be subject to any form of an outside control

In contrast the effect it produces over the people who determinedthe creation of the characters can be analyzed The French courtsrsquoreasoning consisted in removing the fiction and asking from the author aminimum prior verification on certain aspects contained in the novelwhich contradicts the authorrsquos creative freedom

Although the Court observes that the novel in question is a part of adebate of general interest and is a form of the political and militantexpression an element for which Article 10 of the Convention provides ahigh degree of protection and the national margin of the authority todecide on the need for sanction applied to applicants is limitedsurprisingly the final conclusion was the absence of a breach of Article 10The contradiction between the general terms of the Courtrsquos jurisprudenceregarding freedom of expression and this conclusion is obvious

The complaint against the interpretation of the domestic courtsdoes not refer to independence issues or more stringent treatment for theapplicants but the fact that they did not take into consideration theparticular features of the work concerned that distinguish this case fromthe ones that the Court usually settled In this case the object of analysis isa novel a work of creative fiction sufficient element to remove the issue ofveracity of the facts alleged from the legal debate Instead it supportsrather the possibility of analysis of good faith of the applicants for thereader there is no need to proof the accuracy of the facts alleged in a noveleven though they relate to real people because reading a novel is notaimed at finding accurate information41

39 Patrick Wachsmann op cit p 49240 ECHR Muumlller v Switzerland 1988 Patrick Wachsmann op cit pp 493-49441 Patrick Wachsmann op cit p 501


277

Although it is not excluded that the content of a novel through itscontent to damage the reputation of individuals however the damagedoes not occur as in the case of a report publication and the novels are notin any case cited to attest a certain reality being a creation that combinesrealistic elements with elements of fiction so it may not be subject to theburden of proof42

Regarding the Courtrsquos attention to the context of the case there isanother contradiction in its reasoning Thus the Court found no violationof Article 10 of the Convention although the situation concerning Jean-Marie Le Pen was exposed in a way that would logically lead to theopposite conclusion The Court notes that he is a politician known for thevirulence of his speeches and for taking extreme positions that resulted incriminal convictions for incitement to racial hatred apology for warcrimes slander and defamatory statements to public persons43

In general in the case of incitement to violence against anindividual a public person or a group of persons the European Court hasrecognized to member states a very broad discretion in assessing the needfor interference from the national authorities in the freedom of expressionThey have powers to determine the cases that undermine the public orderand to regulate the repressive measures including penal sanctions44

In this case the perspective of the European Court attached to theidea of protection of the freedom of expression contradicts the principleswell established in its case-law for decades and is situated in adiametrically opposite position from the interpretation of the UnitedStates Supreme Court on the First Amendment characterized by absolutismto the scope of protection of freedom of speech to such an extent that it isestimated that the American society should tolerate offensive speech togrant the development of rights set in the First Amendment45

Another criticism is that the Court defeated its own principlesstated in previous cases regarding the protection of different ways ofexpression having recognized for the author the free choice of how toexpress ideas and opinions without influence from national or Europeanauthorities46

The hope is that the restrictive interpretation of this judgment willnot have continuity and the Court will return to the principles set outpreviously

42 Idem p 50243 ECHR Lindon Otchakovsky-Laurens and July v France sect 5644 Luzius Wildhaber The European Court of Human Rights - 1998-2006 HistoryAchievements Reform NP Engel Publisher 2006 p 22345 Terminiello c Chicago 337 US 1 (1949) Cohen c California 403 U S 15 (1971) HustlerMagazine c Falwell 485 US 46 (1988)46 Patrick Wachsmann op cit p 505


278

Conclusions

The concept of national margin of appreciation places on oppositepositions the member states (committed by their free consent to carry outcertain international obligations) and the international courts (withpowers to examine the compatibility of acts or omissions of the memberstates and the international treaties)

An in-depth study of this concept reveals both gaps orshortcomings and disadvantages represented by the following aspects theexcessive flexibility of the legal concepts may lead to unstable content andlimits an unpredictable evolution and exaggerated powers recognized tointernational bodies that do not set clear and predictable landmarks inshowing clearly the distinction between permissible and impermissibleactions of states

REFERENCES

Austin A Lester M Fisher T Article 10 Freedom of Expression in(gen ed) Jessica Simor Human Rights Practice ThomsonSweet amp Maxwell London 2008

Carozza P C Subsidiarity as a Structural Principle of InternationalHuman Rights Law in the American Journal of InternationalLaw Vol 9738 2003

Cohen-Jonathan G La Convention europeacuteenne des droits de l`hommeEdition Economica Paris Presses Universitaires D` Aix -Marseille Aix-en-Provence 1989

Feingold C S The Doctrine of Margin of Appreciation and theEuropean Convention on Human Rights in Notre Dame LawReview Vol 53 1977

Janis M W S Kay R S Bradley A W European Human RightsLaw Text and materials Third Edition Oxford UniversityPress OxfordNew York 2008

Nolte G General Principles of German and European AdministrativeLaw ndash A Comparison in Historical Perspective Modern LawReview Limited Blackwell Publishing Oxford 1994

Perry M J Are Human Rights Universal The Relativist Challenge andRelated Matters in Human Rights Quarterly 1997

Renucci J-F Traiteacute de droit europeacuteen des droits de l`homme LibrairieGeacuteneacuterale de Droit et de Jurisprudence Paris 2007

Rubasha H Accommodating diversity Is the doctrine of margin ofappreciation as applied in the European Court of Human Rightsrelevant in the African human rights system LLM Thesis 2006


279

Shany Y Toward a General Margin of Appreciation Doctrine inInternational Law in The European Journal of InternationalLaw Vol 165 2005

Sudre F Margueacutenaud J-P Andriantsimbazovina J GouttenoireA Levinet M Les grands arrecircts de la Cour europeacuteenne desDroits de l`Homme 3e eacutedition Presses Universitaires deFrance Paris 2005

Tudorică A Bogdan D Articolul 10 Dreptul la libertatea deexprimare in coord Dragoş Bogdan Mihai Selegean Drepturişi libertăţi fundamentale icircn jurisprudenţa Curţii Europene aDrepturilor Omului Editura All Beck Bucureşti 2005

Wachsmann P Vers un affaiblissement de la protection de la liberteacuted`expression par la Cour Europeacuteenne des Droits de l`Homme inRevue trimestrielle des droits de l`homme No 78 2009

Weber A The Case-Law of the European Court of Human Rights onArticle 10 ECHR Relevant for Combating Racism and Intoleranceicircn Council of Europe Expert Seminar Combating Racism 2007

Wildhaber L The European Court of Human Rights - 1998-2006History Achievements Reform NP Engel Publisher 2006

Yourow H C The Margin of Appreciation Doctrine in the Dynamics ofEurope on Human Rights Jurisprudence Kluwer AcademicPublishers 1996


280


281

THE OFFENCE OF DECEIT IN CONVENTIONS AND THESALE OF GOODS OWNED BY OTHER PERSONS

WITHOUT THE ABILITY TO PASS TITLE

Mirela Carmen DOBRILĂ

AbstractIn the sales contract the seller must be the owner of the right which is alienated

because the property is conveyed to the buyer only if the seller is the true owner of theproperty sold Due to the lack of regulation in this field in the Romanian civil law thesale of goods owned by other people remains a controversial issue taking intoconsideration other legal systems where the sale without the ability to pass the title isregulated the New Romanian Civil Code includes provisions concerning this problem

In the matter of sales contract when the seller does not have the title it issometimes difficult to separate penal responsibility from civil liability as the sale ofascertained goods owned by other people can match the offence of deceit in conventionsregulated by article 215 of the Romanian Criminal Code because the seller can deceive ormaintain the deceit of the buyer by presenting him in a misleading way as the trueowner of the sold goods in order to obtain unjust material benefits causing damage tothe buyer the legal framing of the sale by a non-owner as deceit should be solved on acase-by-case basis

Keywords the offence of deceit sales contract transfer of ownership sale by anon-owner lack of title

JEL Classification K11 K12 K14

The issue of selling goods owned by another person is raised whenindividual goods owned by someone are alienated by someone else who isnot their owner and solutions given in literature and judicial practicediffer when the situation is not regulated by the legislator As the salescontract is a contract whereby the seller transfers the property in goods tothe buyer for a money consideration called price the seller must be theowner of the right which is alienated because he or she cannot otherwisetransfer the right constituting the object of the agreement

Beyond a civil law-based analysis of the situation occurring whenascertained goods are alienated by a person who is not the owner ananalysis of the context in which selling goods owned by other people iscircumscribed to the text incriminating deceit in conventions (article 215para 3 of the Criminal Code) appears as necessary

PhD Student Preparator Faculty of Law Al I Cuzardquo University of Iaşi Email

mireladobrilauaicro


282

According to article 215 para 1 of the Romanian Criminal Codethe offence of deceit is defined as the act of deceiving a person bypresenting a false fact as being true or a true fact as being false in order toobtain unjust material benefit for oneself or for another and if damage wascaused The Romanian Criminal Code defines deceit in convention inarticle 215 para 3 as the act of deceiving or maintaining the deceit of aperson when concluding or executing a contract if without this deceit theperson would not have concluded or executed the contract in theconditions stipulated

Sometimes analysed in Romanian legal writings under the name offraudulent sale (Urs 2006 45) the sale of goods owned by other personsmay be encountered in legal practice either when both contracting partiesconcerned are informed about the lack of ownership of the seller or whenboth sides or only one of them knows that the property sold belongs tosomeone else From a criminal law perspective the action of selling goodsowned by other people is made relevant by the offence of deceit inconventions when the seller without the ability to pass title is deceivingthe buyer in order to conclude a contract by presenting himsef as beingthe true owner of the sold good in order to obtain unjust material benefitfor himself or for another with the immediate consequence of causingprejudice for the buyer and if without this deceit the buyer would nothave concluded or executed the contract in the conditions stipulated

Within the Romanian legal system the sales contract has atranslative character of rights because it involves the transfer ofownership from the seller to the buyer1 The conveyancing effect of thesales contract involves as a prerequisite that the property belongs to theseller (Sanilevici and Macovei 1975 33)

The problem of potential consequences of selling goods by a non-owner as person who does not have ownership over them ie sellinggoods owned by another person has only been formulated in modern lawin the system within which the sale implicitly transfers the ownership(unlike the situation in the Roman law where the sale did not havetranslative character of property and it was possible to sell goods thatwere not owned by the seller) (Sanilevici and Macovei 1975 34) TheFrench Civil Code specifically establishes the nullity of selling goodsowned by other people (article 1599) but the Romanian Civil Code of 1864did not import this solution even though the sales contract has translative

1 According to article 1295 of the Civil Code the sales contract is legally concluded andthe ownership of property is transferred to the buyer once the contractual parties have

agreed on the goods and the price According to article 971 of the Civil Code in the caseof contracts related to the conveyance of property or other real rights the property or the

right is transmitted through the consent of the parties


283

character of property both in our legal system and in the French CivilCode

Article 1599 of the French Civil Code clearly stipulates that sellinggoods owned by other people is considered void or null as no person cansell goods that do not belong to him or her since this could result inprejudice being caused when the buyer was not aware that the propertysold actually belonged to someone else than the person selling it thusliability for damages may be established if the buyer did not know that theproperty belonged to the true owner Despite the fact that in the Romanlaw selling goods owned by other people was possible in the sense thatthe seller promised to transfer the vacua possesio (undisturbed possession)to the buyer and if the former did not ensure this transfer they wereforced to provide reparations to the latter the editors of the French CivilCode considered that selling goods owned by other people could notcoexist with the new principle of instantaneous transfer of ownershipeven though there are cases in which the act of selling does not allow forit thus the interdiction is now considered rather cumbersome than usefuland in legal practice efforts are made to limit it (Malaurie et al 2009 24)For instance when the sale has as object future goods as in goods that areto be manufactured or goods unascertained at the time of the contract theownership is not transfered at the moment the contract is concluded butat a subsequent moment in which case the requirement of title is nolonger justified

After the Romanian Civil Code was adopted influenced by theRoman law and the provisions of article 1599 of the French Civil Code theRomanian doctrine in its majority leaned towards sanctioning such atransaction with absolute nullity the acknowledged differences of opiniononly referring to the grounds for finding nullity (Codrea 1998 28)

In order to ensure the validity of the sales contract the ascertainedgoods at the time of the contract must be under the ownership of theseller a condition which is derivative from the translative character ofproperty of the sale-purchase contract being an application of the ruleaccording to which no one can transfer to another person more than he orshe owns (nemo plus iuris ad alium transferre potest quam ipse habet)(Macovei 2006 40)

The solutions adopted in legal doctrine for the controversialproblem of selling property owned by a third party differ according to theextent to which both of the contracting parties or at least one of themwere afflicted by error or on the contrary to whether the contract wasconcluded in full knowledge (Deak 2001 56) Thus if the buyer wasafflicted by error and misled into believing that the seller is the true ownerof the property sold the sales contract is sanctioned with relative nullitydue to the vitiation of consent by error relating to the esential quality of


284

the seller (error in personam) considered by the buyer to be the owner ofthe property If both parties have concluded the sales contract with fullknowledge that the property belongs to the true owner the contract isrendered absolutely null for illicit cause (fraus omnia corrumpit)

In a different opinion it is emphasized that in this specific case thegrounds for the annulment of the sales contract must be initially providedby deception because the buyer acting in good faith was misled by theseller acting in bad faith about the quality of owner possessed by thelatter another opinion expressed was that this is the case of deception byreticence the fault in this case consisting in the infringement of theobligation of mutual information (Stănciulescu 2008 37)

In Decision no 5801 of October 21 2004 the High Court ofCassation and Justice ruled that selling goods owned by other people doesnot justify the request to establish absolute nullity for illicit cause sincecivil laws neither prohibits it nor considers it in contravention with lawand order bdquoThis does not mean that the true owner is at the mercy ofpeople who want to acquire his or her property Having his own goodssold by a non-owner in a fraudulent way the true owner does not lose histitle but in case the property is in the possession of some other party thetrue owner may claim it before usucapion intervenes If he or she has thefull possesion over the property they may oppose the title against thebuyer who is claiming title under the contract concluded with a personwho is not the ownerrdquo

It has been considered that the illicit cause could be retained as afundament for nullity only in the cases where the sold goods wereacquired by the seller by committing a criminal offence such as fraud ortheft (Sanilevici and Macovei 1975 37)

Based on the fact that the current Romanian Civil Code does notregulate selling goods owned by other people and due to the absence of asolution provided by the legislator both in judicial doctrine as well as inlegal practice several opinions and controversies have emerged about itsvalidity the New Civil Code sought to correct these faults ensuringbased on the model of the Italian Civil Code (articles 1478-1480)2 a specificregulation of the issue of selling goods owned by other people

Thus with regard to this regulation of the institution of sellinggoods owned by other people in the New Civil Code3 it must be notedthat article 1683 removed the controversies in the matter by introducingthe sellerrsquos obligation to convey the property according to para 1 if on

2 Article 1478 of the Italian Civil Code Se al momento del contratto la cosa venduta non era diproprietagrave del venditore questi egrave obbligato a procurarne lacquisto al compratore Il compratorediventa proprietario nel momento in cui il venditore acquista la proprietagrave dal titolare di essa3 Law no 2872009 Official Gazette No 51124 July 2009


285

the date the contract was concluded on ascertained goods these goods areunder the ownership of a third party the contract is legally valid and theseller is required to ensure the transfer of ownership from the rightfulowner to the purchaser Thus in a sales agreement the seller must havethe right to sell at the time the property is to shift

As for the dispositions in the New Civil Code regarding sellinggoods owned by other people it is generally agreed that article 1683marks the end of an era one during which the matter of selling goodsowned by other people constituted fertile ground for doctrine discussionsas well as various and innovative legal practice solutions (Moţiu 2010113)

The obligation of the seller is considered as executed either by theacquiring by him or her of the goods in question or by the ratification ofthe sale by the owner or by any other means direct or indirect whichconfer the buyer ownership over the goods these dispositions have therole of listing without limiting the ways in which the seller can ensure thepassing of ownership If the law does not state otherwise or the intentionsof the parties are not contrary the property is rightfully conveyed to theseller from the moment of his or her acquiring the goods or of theratification of the contract by the owner

The boundary between penal and civil responsibility is not yetperfectly delineated and it is difficult to separate penal responsibilityfrom civil liability when obviously the situation implies a tort liabilityand this is reflected in legal practice where a convincing and well-arguedsolution has not always been found (Pătulea 2003 119)

It has been argued that the phrase goods owned by other peoplerequires some clarifications as for instance as the Italian Criminal Codeenvisions it this phrase is used to refer to goods under the ownership of otherpeople unlike the Italian Criminal Code the current Romanian CriminalCode allows for a much broader meaning of the phrase goods owned byother people in the sense that the goods are considered to belong tosomeone else every time the victim has a right of any kind over the goods(Guiu 2004 186)

In Romanian legal writings it is shown that when the purchaserpays the price of the goods and is not granted ownership because theobject of the sales contract did not belong to the seller he or she ismaterially prejudiced and the misleading action of the seller can becharged as a completed offence of deceit regulated by article 215 para 3 ofthe Criminal Code (Bogdan 1999 115 Ciucă 1990 29)

It is considered that alongside other ways of taking action the bonafide purchaser who has been determined through fraud or deceptiveinfluence to acquire goods from a non-owner may also claim for receivingreparations (Codrea 1998 35) under the conditions of tort liability when


286

after the annulment of the document the victim is still suffering prejudiceof any sort Deceiving the buyer by the seller who is not the true ownercan acquire a criminal nature by making the latter account in terms ofcriminal liability under the offence of deceit in convention

The person who purchases goods from people who have no titleover it not even apparent ones will be able to claim to his defence theprinciple of good-faith which contradicts other Civil law principlesnemodat quod non habet or nemo plus juris ad alium transfere potest quam ipsehabet (Codrea 1998 28)

In the attempt to see whether selling goods owned by other peopleis circumscribed to the legal text incriminating deceit in conventions legalscholarship (Bocşan and Bogdan 1999 50) has noted that should the sellersubversively state that he or she is the rightful owner of the goods to bealienated we will be in the situation of misleading action even if the selleronly used a simple lie as Criminal law does not condition the offence ofdeceit in conventions to any additional material activity and it suffices forthe victim of the deceit ndash the purchaser ndash to have been misled about thecircumstances of the sale at the moment the contract was concluded

As to the criminal law significance of lying to the offence of deceitin conventions it is held that a lie even a poorly told lie can be a means tocommit the offence of deceit as the law only requires the presence of adelusion (Bogdan 1999 113) irrespective of any means through which itwould occur

With regard to incriminating legal text the simple fact ofpresenting a false act as being true or a true fact as being false does notrepresent the action of misleading in the sense written in the law if it isnot accompanied by external facts which reveal with great certainty theintention to deceive and give this statement the semblance of truth(Mateuţ 1999 361) which is why we can only consider that there is anerror when the altered representation of reality in the mind of the afflictedparty is correlated with external elements

The simple act of lying as well as simple reticence or ommissionmay be means of deluding when they occur in correlation withcircumstances or actions which give them the semblance of plausibility(Dongoroz et al 2003 497) so that they are meant to make the victimbelieve them to be in agreement with reality The dishonest action of theseller to introduce himself or herself as the true owner is an instance ofdeceptive activity being however insufficient for the seller to make thedishonest statement in order for deceit to occur which implies usingexternal means capable of giving this statement the semblance of truth

Thus in legal practice it has been noted that the conditionsimposed by the incriminating text of deceit in conventions have been metin the eventuality that the accused alienated stacks of hay belonging to


287

some agricultural co-operatives to a bona fide purchaser who after payingthe price of the hay went and picked up the respective stacks from thefield on which they had been raised (Diaconescu 1990 28) The purchasershaving been misled on an essential element of the sale-purchase contractthe objective side of the offence of deceit in conventions is realised andthe completion of the deceit takes place when the damage occurred whichis to say when the seller took the money from the buyers (Ciucă 1990 29)

According to article 953 of the Civil Code consent is invalid whenit is granted by mistake obtained through violence and fraud An errorrefers to a situation when a person has an erroneous representation ofreality considering that what is false is true or that what is true is false(Stănciulescu 2008 37)

Deceptive manoeuvres specific to the vitiation of the consent of thepurchaser through fraud (due to the fraudulent and subversive behaviourof the seller) are conferred criminal law dimensions as the criminal normprotects not only the strict interests of people and legal persons but alsothe general interest of society By consequence selling goods owned byother people done by people who act in bad faith also implies damagingthe patrimony of the purchaser the deed meeting the criteria forconstituting the offence under article 215 para 3 of the Criminal Code(Herlea 1990 35) As for the completion of the offence of deceit it is heldthat the prejudice consists of the commonly agreed upon price regardlessof whether it has or has not been paid the payment being relevant only interms of the participation of the purchaser in the criminal trial

We cannot agree to this opinion as far as the last aspect isconcerned as the existence of the prejudice is an essential element for thecompletion of the objective side of the offence of deceit in conventions sothat when the price was paid by the bona fide purchaser for the goodswhich did not belong to the seller this will constitute completed deceit inconventions When the purchaser although he or she has been misled orhas been maintained in error by the seller will not pay the price becausefor instance he or she has discovered the deceptive manoeuvres used bythe seller this will constitute the offence under article 215 para 3 of theCriminal Code as punishable attempt

Deceptive manoeuvres as objective elements of the fraud as vice ofconsent may occur in various forms actions performed to create a falserepresentation of reality simple lies or reticence (Codrea 1998 31)

In the event that the seller does not inform the purchaser on his orher not being the owner of the alienated goods he or she will becommitting the offence under article 215 para 3 of the Criminal Code bymaintaining the deceit of the buyer as the bona fide purchaser is in errorabout the seller having the quality of owner an error which is notsuperposable to the similar notion in Civil law the error in criminal legal


288

terms refers to the altered representation of reality in the mind of thedeceived and must refer to the representation of a false fact as true or of atrue fact as false (Bocşan and Bogdan 1999 51)

The fact that in legal practice there are difficulties in separatingcriminal from civil responsibility is illustrated by ruling no 3399 of June27 2001 given by the High Court of Cassation and Justice concerning thematter of selling goods owned by other people (Pătulea 2003 119) In factafter as the administrator of a company the defendant sold to the victim acertain quantity of sunflower seeds with an invoice for the entire quantityof seeds that were being sold and a reception report that acknowledgedthat the goods would remain under the custody of the seller available tothe purchaser who was going to collect them in several shippings thedefendant resold most of the seeds in his custody to another purchaserwho offered a greater price Although the seller was charged forcommitting the offence of deceit in conventions article 215 para 3 of theCriminal Code committed upon the conclusion of the sale-purchasecontract the High Court of Cassation and Justice ruled his acquittal on thebasis that the deed committed by the defendant did not meet all theconstitutive elements of the offence of deceit the subjective side beingabsent ie the intention to deceive so that this was not a case of criminalliability for an offence but of a non-fulfillment of a contractual obligation(Pătulea 2003 120)

It must be emphasized that it cannot be a situation of selling goodsowned by other people except in the case of specific goods ascertained atthe time of the contract as if the sale has as object future goods in goodsthat are to be manufactured or unascertained goods the conveyance ofproperty occurs at an ulterior date at the moment of the production of thegoods or at the moment of individualization (Macovei 2006 41) Wherethere is a contract for the sale of unascertained goods no property of thegoods is transferred to the buyer unless and until the goods areascertained

In the case of selling goods owned by other people the good faithof parties or of the purchaser only cannot in itself produce legal effectstranslative of property and therefore it cannot alone constitute a conditionthat can lead to the acquisition of the title of property but only togetherwith other legal principles The purchaser and the seller (the apparent orself-declared owner) are of good faith in the situation in which the formersigns the contract believing he or she has purchased from a person owningthe goods which are sold to him or her so that he or she has made a legalpurchase As for the latter the position of good faith is between erroneousbelief (ignorance) in a certain state of things a belief which is strongenough to be convincing for both parties or at least for one of them andthe deceitful appearance which also sincerely persuades everyone or


289

almost everyone but the foundation of good faith cannot be indifferenceindolence or lack of action to check whether what is said and what is areone and the same (Cotea 2007 425-426)

The intention to mislead is appreciated with regard to the momentof the transaction as no relevance is given to the circumstances which mayhave subsequently intervened or the facts depending on suspensiveconditions (Medeanu 2006 191) A notable example is the offence ofdeceit in conventions in the deed committed by a tenant who sold theapartment he had rented stating in the sale-purchase contract that he wasthe owner of that dwelling (Hotca 2007 1163 SCJ Decision no34852001) Unlike the possible consequences under the civil law therecan be no relevance nor can it constitute an impediment for the retainingof the offence of deceit in conventions the existence of the possibility ofthe defendant to subsequently purchase the property over the goods onaccount of the legal dispositions giving tenants priority in purchasing thegoods

As for the situation of the purchaser who pays the price for goodsand does not receive ownership as the object of the sale contract did notbelong to the seller it has been argued that no prejudice had been causedto the purchaser in case that the owner had not claimed the goods thathad been alienated by the seller acting in bad faith and thus the materialprejudice as essential element for the offence of deceit in conventions wasmissing (Pătulea 1989 61) Thus it is held that there is only a possibilityto prejudice the purchaser by dispossessing him or her after the ownerclaims the respective goods and for the existence of deceit in conventionsthe legal text of article 215 para 3 of the Criminal Code requires a certainand not virtual prejudice (Paicu 1989 60) considering that because theowner did not claim his or her goods and the legal court did not rule forthe goods to be restored the purchaser was not prejudiced in any way

This opinion cannot be shared as whether the true owner does ordoes not claim his or her goods has no significance in the context ofretaining the offence of deceit by the seller and the solving of the civilcause in the criminal trial is a moment ulterior to when the deed wascommitted so that the condition of prejudice is met And the fact that theprejudice caused in this way can be repaired by returning the price or byany other means has no bearing on the existence of the offence of deceit inconventions (Bogdan 1999 115)

It may be said (Bocşan and Bogdan 1999 56) that selling goodsowned by other people in the event that the purchaser has been misled orhas been maintained in error on the existence of the property within thepatrimony of the seller meets the conditions required by the incriminatinglegal text of deceit in conventions the alienating party being guilty offraud by acting in bad faith and using deceptive means when he or she


290

hides (either by action or omission) to his or her contractual partner thereal situation of the goods which falls upon article 215 para 3 of theCriminal Code

Further according to article 215 para 2 of the Criminal Codedeceit committed by using untruthful names or capacities or otherfraudulent means constitutes an aggravated form both for deceit regulatedby article 215 para 1 and for deceit in conventions regulated by article 215para 3 A means is considered fraudulent when it has the appearance of atruthful way that inspires confidence but in reality is dishonest (Dongorozet al 2003 500) The difference between the means of deceit of article 215para 1 and the fraudulent means of para 2 is rather quantitative andmostly about intensity and a means should be considered fraudulentwhen it is likely to ensure the success of the action of the offender (Toader2008 201) Thus when a misleading of the purchaser by the sellerdeclaring himself or herself to be the owner of the goods occurs a qualityhe or she does not actually have it becomes a question of whether sellinggoods owned by other people realised by the seller subversively anddishonestly claiming to be owner of the goods can be considered deceit inconventions in the aggravated form of article 215 para 2 of the CriminalCode when all the requirements of the incriminating legal text are met

In all cases when qualified legal bodies are faced with legalsituations comparable to the above-mentioned ones they will be forced toproceed to a rigorous analysis of the facts and of the qualification of thedeed committed by the defendant according to the legal texts in order toexactly clarify whether the deed is a criminal offence and whether theconstitutive elements are or are not met for any offence in order to do thishowever a survey of the provisions of civil law will also be necessary inorder to establish whether they are dealing with contract liability or withcriminal liability and if in this latter case it is or not a criminal offence(Pătulea 2003 126)

The Constitutional Court rejected the plea of unconstitutionality onarticle 215 para 3 of the Criminal Code through decision no 58 of March23 2000 published in the Official Gazette no 228 of May 23 2000considering that through this regulation the expression of valid consentof the contractual party is defended with criminal legal means (T Toaderet al 2007 358-359) In decision no 58 of February 6 2003 of theConstitutional Court published in the Official Gazette no 194 of 26 March2003 that rejected the plea for unconstitutionality on art 215 para 3 of theCriminal Code it is shown that this legal text sanctions the fraud practicedwhen concluding or executing a contract as an attempt against thepersonrsquos assets by delusion an offence regulated in all criminal laws

The offence of deceit consists in the act of willfuly making falsestatements with the intent that the contractual party shall act relying on


291

them and with the result that he or she does so and suffers harm inconsequence (Garner 2004 435) just as the fraud or deceit of the seller asa non-owner consists in misrepresentation of the truth or a concealmentof the lack of title in order to obtain benefits by inducing the buyer to actin his detriment Thus article 215 of the Criminal Code gives anexpression to the principle of good faith in contractual relations bycriminally sanctioning precisely those acts by a non-owner who is sellinggoods owned by other people by deceitful manoeuvres in a way thatviolates the principle mentioned above

Suitable as it might be through the logical sequencing of argumentspresented in the legal practice there might be encountered real difficultiesin qualifying the sale of another persons goods as deceit in convention

When the buyer considered a bona fide purchaser is fraudulentlytold that the property of the sold good belongs to the seller thequalification of selling of a third partyrsquos property as deceit is based on thefalse representation induced by the seller with knowledge of its falsity andwith intent to induce reliance on it and if the buyer justifiably relies on thedeception to his injury The sale of goods owned by other people withoutthe ability to pass title may be qualified as the offence of deceit inconvention when the seller presents a false fact as being true byfraudulently representing to the buyer that he has good title of the goodshe or she sold pretending to be the rightful owner and in this way he orshe is deceiving or maintaining the deceit of the buyer when concludingor executing the sales contract and if without this deceit the purchaserwould not have concluded or executed the contract in the conditionsstipulated as a consequence the buyer is a victim of fraudulentmisrepresentation due to the sellerrsquos actions and he or she is cheated bythe buyer as the non-owner does not have the ability to pass title

REFERENCES

Bogdan S 1999 Icircnşelăciune icircn convenţii Latura Obiectivă Revista deDrept Penal (Romanian Penal Law Review) no 3 p 110-116

Bocşan M D Bogdan S 1999 Consideraţii civile şi penale aupravacircnzării lucrului altuia Revista Dreptul (Law Journal) no 6 p46-56

Ciucă V 1990 Implicaţii de natură penală icircn cazul vacircnzării lucruluialtuia Revista Dreptul (Law Journal) no 5 p 28-31

Codrea Ruxandra 1998 Consecinţele vacircnzării lucrului altuia icircnsituaţia icircn care cel puţin cumpărătorul ignoră că vacircnzătorul nueste proprietarul lucrului vacircndut Revista Dreptul (LawJournal) no 9 p 28-37


292

Cotea F S 2007 Buna-credinţă Implicaţii privind dreptul de proprietateHamangiu Publishing House Bucharest

CSJ decizia penală nr 3845 din 18 septembrie 2001 icircn Revista dedrept penal nr 12003 p 173 (The Supreme Court of JusticeDecision No 3485 of 18 September 2001 in Romanian PenalLaw Review no 12003 p 173)

Deak F 2001 Tratat de drept civil Contracte speciale (Civil LawTreaty Special contracts) Universul Juridic Publishing HouseBucharest

Diaconescu H 1990 Implicaţii de natură penală icircn cazul vacircnzăriilucrului altuia Revista Dreptul (Law Journal) no 5 p 25-28

Dongoroz V Kahane S Oancea I Stănoiu Rodica FodorIIliescu Nicoleta Bulai C Roşca V 2003 Explicaţii teoreticeale codului penal romacircn Partea specială ediţia a II-a vol III Academiei Romacircne Publishing House All Beck PublishingHouse Bucharest

Garner B A 2004 Blackrsquos Law Dictionary Eight Edition WestPublishing House

Guiu Ketty 2004 Infracțiunile contra patrimoniului Consideraţiigenerale Revista Dreptul (Law Journal) no 3 p 172-205

Herlea C 1990 Implicaţii de natură penală icircn cazul vacircnzării lucruluialtuia Revista Dreptul (Law Journal) no 5 p 31-35

Hotca M A 2007 Codul penal Comentarii şi explicaţii CH BeckPublishing House Bucharest

ICCJ secţia civilă şi de proprietate intelectuală decizia nr 5801din 21 octombrie 2004 Revista Dreptul nr 102005 p 224-

225 disponibilă și la wwwscjro (The High Court ofCassation and Justice Civil and Intellectual PropertyDepartment Decision No 5801 of 21 October 2004 publishedin Law Journal no 102005) p 224-225 available also atwwwscjro

Macovei C 2006 Contracte civile (Civil contracts) Hamangiu

Publishing House Bucharest

Malaurie P Aynegraves L Yves-Gautier P trad de Diana Dănișor2009 Drept civil Contractele speciale (Civil Law Special

Contracts) Traducere a ediției a 3-a din limba franceză(Translation of 3rd edition in French) Wolters KluwerPublishing House Bucharest

Mateuţ Gh 1999 Unele aspecte teoretice şi practice prvind infracţiuneade icircnşelăciune Revista Studii de drept romacircnesc (RomanianLaw Studies Review) no 3-4 p 355-392

Medeanu T 2006 Dreptul penal al afacerilor Lumina Lex PublishingHouse Bucharest


293

Moţiu F 2010 Contractele speciale icircn noul Cod civil (Special Contractsin the New Civil Code) Wolters Kluwer Publishing HouseBucharest

Paicu A 1989 Notă la sentința penală nr 16451986 a JudecătorieiBaia Mare (Opinion on penal sentence no 16451986 TheLaw Court Baia Mare) Revista Romacircnă de Drept (RomanianJournal of Law) no 6 p 60

Pătulea V 1989 Notă la sentința penală nr 16451986 aJudecătoriei Baia Mare (Opinion on penal sentence no16451986 The Law Court Baia Mare) Revista Romacircnă deDrept (Romanian Journal of Law) no 6 p 61

Pătulea V 2003 Vacircnzarea lucrului altuia Criterii de determinare anaturii răspunderii juridice icircn astfel de cazuri Revista Dreptul(Law Journal) no 10 p 119-126

Sanilevici R Macovei I 1975 Consecinţele vacircnzării lucrului altuia icircnlumina soluţiilor practicii juridicare Revista Romacircnă de Drept(Romanian Journal of Law) no 2 p 33-40

Stănciulescu Camelia 2008 Theoretical and practical aspects regardingconsent as validity condition on the civil act Lex ET ScientiaInternational Journal - Juridical Series Nr XV Vol 12008ldquoStudentrsquos Bookrdquo Publishing House available athttplexetscientiaunivntroarchive p 37-43

Toader T 2008 Drept penal romacircn Partea specială 3-rd editionRevised and amended Hamangiu Publishing HouseBucharest

Toader T Stoica Andreea Cristuş Nicoleta 2007 Codul penal şilegile speciale doctrină jurisprudenţă decizii ale CurţiiConstituţionale hotăracircri CEDO Hamangiu Publishing HouseBucharest

Urs I 2006 Remarks concerning the bdquofraudulentrdquo sale in the RomanianLaw Revista de Derecho de la Pontificia UniversidadCatolica de Valparaiso XXVII Semestre I p 45-50 availableathttpwwwrderechoequipuclindexphprderechoarticleview612577


294


295

COMPUTER SEARCH IN THE NEW CODE OF CRIMINALPROCEDURE

Bogdan BUNECI

AbstractThe evidence and the means of evidence are fundamental institutions that ensure

finding the truth in criminal trials and they are separate legal categories which can betheoretically explained in a conjugate way because the evidence is factual (realities eventsor circumstances) and serves finding the truth while the means that help observing thesefacts that can serve as evidence in criminal proceedings are named means of evidence

The pieces of evidence are extra procedural fact entities that concern the subject ofthe trial and by the administration of which they gain procedural character the means ofevidence are also extra procedural realities that gain legal procedure character by beingused in criminal proceedings

In this context the computer search and the access to informatic systemsregulated by the new Code of Criminal Procedure gain a special valence alongside othermeans of evidence inserted in the law because they contribute to the understanding of theresearch process and to discovering and identifying those pieces of evidence stored in acomputer system or a computer data storage

Keywords evidence means of evidence computer system computer searchstorage media informatics data

The Criminal Procedure Code adopted in 1968 defined the scientificmeaning of the concepts of evidence and means of evidence stating in art63 para 1 that the notion of evidence means those facts that serve todeclare the existence or nonexistence of an offense under criminal law toidentify the person or persons who committed it and know thecircumstances necessary for a just settlement of the case These factelements are facts and circumstances meant to determine whether or notthe facts and circumstances exist and are obtained by determining theactivity of probation1

The means of evidence are those means provided by law that notethe factual account that is evidence in art 64 of the Criminal ProcedureCode they are listed as follows the statements of the accused ordefendant the civil party and civilly responsible party witnessstatements documents audio or video recordings technical scientificforensic and expert findings

PhD Student Assistant Faculty of Law and Administrative Sciences EcologicalUniversity of Bucharest Romania Email cabinetbunecigmailcom1 Grigore Theodoru Criminal Procedure Law Treaty Hamangiu Publishing 2007


296

The means containing samples can be obtained by judicialauthorities through various processes of probation for example taking apersonal written statement by the accused a victim or witness theirhearing by a criminal prosecution body or by judges their confrontationetc

Between the evidence and the means of evidence there is anintrinsic connection because the evidence can be used only if it is obtainedby means of evidence provided by law sometimes there may be cause forconfusion between the two

The judicial activity that uses the evidentiary procedures in order toobtain means of evidence which then shows the samples to ascertain thefacts and circumstances leading to the case is called probation This is alltrial and procedural provisions of law by judicial authorities needed toestablish the factual knowledge of facts making up the case

Referring to the work of probation as defined above we mentionthat it is primarily in the facts and circumstances whose existence must befound and we think the subject of probation the second refers to ofevidence to prove the existing facts and circumstances and finally refersto the assessment of evidence which should lead to the belief that the actwas committed by the person prosecuted In this respect art 62 of theCriminal Procedure Code is relevant in the sense that ldquoin order to find thetruth the prosecution and the court is obliged to settle the case in allrespects based on evidencerdquo

Knowing that in the Criminal Procedure Code the principle of thepresumption of innocence is working both the prosecution and the courthave an obligation to conduct an intense evidentiary activity because theprosecutor cannot prosecute the defendant until samples were collected toestablish guilt nor the court can convict the defendant if there is nocertainty that the act exists and that it was committed

In turn the appellate court has an obligation to check if the issuewas given all the evidence necessary to ascertain the truth if it has beenproperly appreciated and because of the devolutive effect of the call it hasthe ability to manage any other evidence deemed necessary (art 378 of theCriminal Procedure Code)

Also the court of appeal is required to determine whether there hasbeen any failure on the essential evidence in solving the case or if a seriouserror of fact has not been committed within the meaning of art 3859section 18 of the Criminal Procedure Code

As noted above art 64 of the Criminal Procedure Code lists themeans of evidence that may lead to proof of facts or circumstances exceptthat our system is based on free samples probation meaning that theprosecution or the court are not obliged to use some evidence for proof of


297

actually having a choice of all the evidence the one that it deems mostappropriate2

Chapter II of Title III of the Criminal Procedure Code listsabsolutely all the evidence statements from the accused or the defendantto conduct surveys

Noticing that the time elapsed since the adoption of the Code ofCriminal Procedure in 1968 to the present offenses occurred in Novemberthe field diversifying the activities in which criminals attempt to damagepublic property or private the new Criminal Procedure Code adopted byLaw no 1352010 introduced in Chapter evidence making the searchmore precise a new evidence called ldquosearch and access to a computersystemrdquo (art 168 of the Criminal Procedure Code)

Thus the search of a computer system or computer data storagemeans the process of research discovery identification and gathering ofevidence stored in a computer system or computer data storage achievedthrough technical means and procedures such as to ensure the integrity ofthe information contained therein

The judge of rights and freedoms may order on the prosecutorrsquosrequest the performance of a computer search when the discovery andcollection of evidence is necessary to investigate a computer system orcomputer data storage

The prosecutor submits the application requesting approval of thesearch case file information to the judge of rights and freedoms and this isdealt with in closed session without summoning the parties withobligatory participation of the prosecutor

If the request is based the judge orders by conclusion hisadmission accepts the information searches and issues the searchmandate on condition that the conclusion should include the followingname of the court date time and place of issue name and status of theperson who issued the mandate the period for which the warrant isissued and the work to be performed is ordered the purpose for which itwas issued name of the suspect or accused if known the judgersquossignature and the seal of the court

The final conclusion of the rights and freedoms which the judgedecides on the application for declaration of the search for information isnot subject to appeal

If during the search of a computer system or computer datastorage it appears that the computer data sought are contained in anothercomputer system or computer data storage and are accessible from systemor media initially the prosecutor has immediately preservation copying

2 Petre Buneci Criminal Procedure Law ndash General Part Universitary Publishing 2008 p

250


298

computer data identified and will require urgent completion of the initialauthorization

In the execution of the ordered search in order to ensure theintegrity of computer data stored on high objects the prosecutor ordersmaking copies

If lifting objects containing computer data would seriously affectthe activity of persons holding these objects the prosecutor may ordercopies that serve as evidence Copies are made by technical means andappropriate procedures such as to ensure the integrity of the informationcontained therein

Necessarily the search in a computer system or computer datastorage is performed in the presence of the suspect or the accused ifpossible a representative thereof or a witness

The suspect or defendant may request that the search in a computersystem or computer data storage to also be performed in their absence thepresence of a witness in this case is mandatory

Searching in a computer system or computer data storage is carriedout by the prosecution as showed by the court prosecutor in theapplication submitted

After the search in a computer system or computer data storage aminutes of the computer search is drawn including name of thecomputer system which was built or data storage or the name of theperson whose system was accessed the name of the person whoconducted the search the names of the persons present during the searchthe description of the information systems or computer data storage forwhich the search was ordered the description and listing of activities thedescription and data information discovered during the search thesignature or stamp of the person who carried out searches the signatureof those present during the search A very important thing is that theprosecution has an obligation to take measures so that the computersearch will not affect the personal lives of the person where the search isperformed and the recorded data will not become unduly public Ifwithin the informatics search secret data are found they shall be keptsecret under the law

Clearly this new evidence makes a significant contribution to thework of gathering the necessary evidence for the discovery of serious factsand persons involved in criminal activity causing significant materialdamage to public property or private expense

REFERENCES

Romanian Constitution published in Official Gazette Part I no767 from 31102003


299

Romanian Code of Criminal Procedure published in OfficialGazette Part I no 79 from 30041997 modified versionthrough Law 2022010 regarding some acceleratingmeasures of case solving

Romanian New Code of Criminal Procedure adopted by Law no1352010 published in Official Gazette no 486 from15072010

Grigore Theodoru Criminal Procedure Law Treaty HamangiuPublishing 2007

Petre Buneci Criminal Procedure Law ndash General Part UniversitaryPublishing 2008


300


301

COMPANY MANAGEMENT BY THE DIRECTORS

Ramona Mihaela OPREA

AbstractThe company may be administered by one or more administrators who may be

associates or not and who are appointed by the memorandum of associates or by theGeneral Meeting of Associates The companyrsquos administrators may depute the

management of the company to one or more managers one of which will be bdquothe generalmanagerrdquo

The managers may be executive administrators of the company (in which casethey are not part of the Board of Associates) in this particular case they can be appointed

as bdquoDelegate AdministratorsrdquoRegarding the object of the delegation as the commercial mandate the judicial

form of the delegation is included in the category of a third personrsquos substitutionThe managers will conclude a contract mandate with the company stipulating

that the managers are the companyrsquos mandataries and they act in the name of and for theBoard of Associates

Keywords administrator director Board mandate contract juridical report

The social will of any company is accomplished by the executingacts of the persons who administer the companies1

In a narrow sense (only regarding joint-stock companies) Law no311990 regulates the administration of the companies by the directors

According to art 137 para1 of the Law once the associates choosethe unitary system the company is managed by one or moreadministrators the number of which is always odd In the first case he isbdquosingle managerrdquo and in the latter case the plurality is established by thelaw and it is organized as a collegial body called the bdquoboardrdquo2 Accordingto article 1431 of the Law the board may delegate the management of thecompany to one or more directors by appointing one bdquogeneral managerrdquo

PhD Student Preparator Faculty of Judicial Social and Political Sciences ldquoDunărea deJosrdquo University of Galati Romania Email ramonam_opreayahooes1 St D Cărpenaru Comentariu - the art 70 - in bdquoThe Company Law ndash Comments onarticlesrdquo Ediţia 4 de St D Cărpenaru S David C Predoiu Gh Piperea Publishing

House Beck Bucureşti 2009 p 2742 St D Cărpenaru Romanian CommercialLaw Treaty Juridical Universe Publishing House

Bucharest 2009 p 253According to the article 137 para 3 Law no311990The provisions of the Law

regarding the Board and it did not regard the plurality of the administrators


302

bdquoDirectors may be appointed from the directors of the companyand in this case they are executive directors or from outside the board andin this case they may be reffered to as the delegated administratorsConsequently a person may be at the same time shareholderadministrator and director of a company However unlike theadministrator the directors must necessarily be natural personsrdquo (art15313

para1)3 ldquoIn order to have an efficient control of the directors ndash executiveadministrators ndash the majority of the members of the collegial body must beformed by non-executive administratorsrdquo (art 1381)

The term ldquodirectorrdquo4 synonymous with the term ldquomanagerrdquoincludes both the directors and the members of the directorate Indeedregarding the administration of the joint-stock companies of the dualsystem5 Law no 311990 also refers to the members of the board6 theunique general managers (the only members of such a body)

Regarding these persons it is stipulated that they are not directors7

in the narrow sense according to the provisions of article 1431 of the LawMoreover besides the solution in para 5 of the same article the lawmakes this distinction and lists in several provisions the directors and themembers of the board simultaneously

Also the functions of the directorate are not issued by thecontractual mechanism of the delegation like in the case of the directors ofthe unitary system but they have their source in the Law the separationof powers between the Supervisory Board and the directorate resultingfrom the law and it can be rectified only by the dual system with changesin the memorandum of associates

On the other hand it points out that the directors of the companiesorganized on the model of the unitary system cannot be confused withtheir directors-employees referred to in art 294 of the Labour Code ldquoTothe purpose of this code employees with management attributes means

3 Alexandru Ţiclea Tiberiu Ţiclea The peculiarities of the mandate commercial contract

of the joint-stock companiesrsquodirectors bdquoLawrdquo Review no82010 page 1444 Gh Piperea Commercial Law vol I CH Beck Publishing House Bucharest 2008 p 200

p 205 In the dual system according to the article 153 alin1 of the Law the company is

administered by a directorate and a Supervisory Board6 The directorate has exclusivelly the management and the legal representation of thejoin-stock company in the dual system (The company is represented by the Supervisory

Council in the relationship with the DirectorateFor further details the articles 153-158 ofthe Law 3119907 Alexandru Ţiclea Tiberiu Ţiclea The Peculiarities of the Mandate Commercial Contractof the Joint-Stock CompaniesrsquoDirectors cit supra p 142

For the same opinion Ion Traian Ştefănescu Şerban Beligrădeanu The Legal Relationshipbetween the companies and its administrators or directors in bdquoLawrdquo no 82008 the note 17 p

52


303

managers-employees including the chairperson of the Board if she is anemployee the general directors and the directors deputy directors andgeneral deputy directors the heads of labor-divisions departmentsdivisions workshops offices ndash and the other similar categories establishedby the law or by the collective agreements or where appropriate by therules and regulationsrdquo

Nothing prevents the fact that the departments may be led by thesenior officials of the company

These persons practically the heads of those departments are infact those who we identify as ldquoprofessional managersrdquo for example thehead of legal chief financial officer IT director

The distinction8 between the first mentioned called ldquosocialdirectors-mandatariesrdquo and ldquoproffesional managersrdquo (employees) muststart from the provisions of article 1435 of Law 311990 which states ldquoTothe purpose of this law the head of the joint-stock company is only theperson to whom the powers of the management of the company have beendelegated in accordance with para 1 Any other person regardless of thetechnical name of the function occupied in the company is excluded fromthe rules of this law regarding the directors of the joint-stock companyrdquo

The Director is a manager who has the management of the entirecompany enterprise or department thereof In this sense he has thefreedom of iniative which entails a certain combination of risk so that theinterests of the compayshareholders are the same with the directorrsquos

In the case of professional directors there are no management tasksand the freedom of initiative is no longer necessary bdquoAlso there is noassociation with risk as shown in the case of the social directors-mandatariesrdquo

ldquoThe essential criterion must necesarily relate to the above criteriaand it identifies the primacy of the social will In other words the actualaccomplishment of the distinction between social directors-mandatariesand the professional directors of a company The social will has a decisiveimportance whose content will be investigated with priority to check if thedetails regarding the delegation of the management of the company fromthe Board to the directors are stipulated

As such the decision of the Board who determines for examplethat bdquothe management of the company will be delegated to the followingthe general economic trade human resources technical directorsrdquo etcwill be the essential action in mentioning that these directors are socialmandataries Any other function whose name contains the term bdquodirectorrdquo

8 For both provisions regarding this distinction Alexandru Ţiclea Tiberiu Ţiclea Thepeculiarities of the commercial mandate contract of the joint-stock companiesrsquodirectors

cit supra p 151-159


304

could be considered in the purpose of article 1431 only if the jobdescription should include the management responsabilities for thecompany which would undoubtedly involve the delegation mechanismprovided by the text of the law Otherwise we are in the presence of aprofessional managerrdquo9

Legal Relationship between the Directors and the Board

This report according to the majority opinion is a commercialmandate10 regardless of the name used by the parties in the contractdocument

ldquoHowever this legal relationship is not a common commercialmandate Its content is not only contractually determined by the partiesbut a legal one including the necessary rights and obligations set by theprovisions of the company law On the one hand to emphasize the dualnature (contractual and legal) of the relationship between the directorsand the Board of directors and to distinguish the mandate of thecommercial director on the other hand it is appropriate to consider thatwe are in the presence of a legal relationship of a social mandaterdquo11

This category with a similar meaning but with the difference that itnecessarily includes representation is a usual one in the French Law

bdquoThe name is not coincidental The qualifier ‛socialrsquo highlights that the mandate regards the accomplishment of the social will of thecompany which in the case of directors is made by the mechanism of thepower delegation It should be noted however that the idea of the socialmandate sends narrowly only to the mandate relations having as subjectson the one hand the company itself as mandatory and on the other handthe natural and legal person (for administrators)rdquo12

By analogy the directors are the social mandataries in the broadestsense This conclusion is based on two arguments13

1 all relationships mentioned above have a similar physionomygoverned by the provisions relating the mandate and the companylaw

2 the relationship between directors and the company is a social sub-mandate report containing the appropriate qualifications So

9 Ibidem p 15610 St D Cărpenaru Romanian Commercial Law cit supra p 261 Magda Volonciu The

Companiesrsquo Functioning icircn ldquoCommercial Lawrdquo de S Angheni Magda Volonciu C StoicaEdiţia 4 CH Beck Publishing House Bucharest 2008 p 16111 Alexandru Ţiclea Tiberiu Ţiclea The peculiarities of the commercial mandate contractof the joint-stock companiesrsquodirectors cit supra p 145-14612 Alexandru Ţiclea Tiberiu Ţiclea The peculiarities of the commercial mandate contractof the joint-stock companiesrsquodirectors cit supra p 14613 Ibidem


305

strictly speaking the Law regards the directors as social sub-mandatariesThe concept of bdquosocial mandaterdquo has utility in our law in two

respects it has the role to simplify (as terminology) and the role ofclarification (in theory) so we identify a social mandate as a type ofcommercial mandate

Delegation of attributes of the management of the company to itsdirectors

The legal relationship between the company directors and the joint-stock company presents controversial issues especially with regard to itsnature Accordind to an opinion this report is one of commercial sub-mandate the Board delegating the management tasks of the company tothe director Since the delegated object is the commercial mandate thelegal operation of delegation is part of the category of a third partyrsquossubstitution

Likewise it further recognizes that bdquothe legal nature of thedelegated management of the company finds a basis in the substitution ofa legal right sui generis with specific effects which are grafted on the legalmandate between the company and the Board of directors

According to another opinion bdquothe leadership transmision powersof the General Meeting of the shareholders to the Board of directors andfrom the Board of directors to the directors () cannot be described asmandate and submandate because the Board of directors may send to theexecutives only part of their prerogatives and not the prerogativessubmitted by the General Meeting of shareholdersrdquo

It is also considered that bdquoin addition to the delegation the directorsconcluded with the company a mandate contract where it is described thatthe directors are mandataries of the company acting in the name and forthe companyrdquo

We concur with the first opinion14 with the mention of bdquothe socialnaturerdquo of the submandate because of the legal relationship between thecompany and its directors The company presents most of the features of asubmandate while the important features of a real mandate are not foundThus

a) It is the essence of the unitary system that the joint-stock companyis managed by a single administrator or by a Board with the responsibilityfor performance of all the acts necessary and appropriate to achieve theobjetcs of the company In this respect the managers appointed at theauthorization of the company by the memorandum of associates (if

14 Alexandru Ţiclea Tiberiu Ţiclea The peculiarities of the commercial mandate contract

of the joint-stock companiesrsquodirectors cit supra p 149 -151


306

applicable by the Constituent Meeting) or subsequently by the GeneralMeeting concluded with the company a social contract receiving thesepowers

According to the common law the mandate contract may providethe right to a mandatary to substitute a third person transferring all therights or part of them The power of delegation is precisely the operationby which the administrators pass some of the rights to the directors

But the right of substitution of the administrator has the source inthe law and it is not necessarily stipulated in the memorandum ofassociates15 Its exercise is performed by a decision adopted by the Boardand it is both the instrument of appointing the director and the instrumentof delegation

b) The power to revoke the companyrsquos directors belogs exclusively tothe Board The General Meeting of shareholders the supreme body of theCompany cannot dismiss them directly it can constrain the managers todo so

If the administrator is at the same time director the Generalmeeting decides to dismiss him Altghough the loss of confidence in thatperson as an administrator would lead to the conclusion that the companyhas lost confidence in his capacirty as director and paradoxically the lawdoes not allow the direct revocation of that person from the office ofdirector The conclusion that the General meeting has a relative weaknessin this regard is justified

However there is another course of action available to the GeneralMeeting and other action to the shareholders we will further analyse

c) The law gives the company a direct action for damages against thedirectors (art155) which presents some peculiarities which moderates thelack of power of the General Meeting of shareholders If the latter decidesby majority required for adoption by the General Meeting to take actionfor damages against the directors as they are suspended from office untilthe decision remains irrevocable

In the absence of introducing this measure and when the GeneralMeeting proposal does not comply with one or more shareholdersrsquoproposal to initiate it the shareholders representing individually orjointly at least 5 of the share capital are intitled to introduce an action

15 The article 15312 alin 3 excepts the directors from the express and written appointmentunlike the case of the social manadataries because the latter 9 the administrators the

members of the directorate the members of the Supervisory Board) are in a directrelation with the company an implied accept could not be allowed because of the social

interest protection A special situation is found when a director receives the legalrepresentation this act must be mentioned at the Trade Register by a pecimen signature


307

for damages against the directors in their own name but on behalf of thecompany (art1551 para1)

For the identity reason using the argument a fortiori art 1551 par 4applied in both cases the General Meeting has the right to revoke a certaindirector Thus after a final court decision on the admission of any of thosetwo actions the General meeting of shareholders may decide the end of adirectorrsquos term of office

The doctrine states that an action for directorsrsquo liability would referonly to the directors who are not part of the Board and who in theunitary system are delegated the powers according to art 143 Thereforethe directors ndash executive administrators would have the same legal regimeapplicable to the action for damages as well as the other administratorsBut the statement is not strictly correct since if the General Meetingdecides to act it will only cease their mandate as administrator not thedirector mandate In addition no irrevocable court decision will cease thedirector mandate the General Meeting has the right to decide in thissituation

Of course in terms of article 731 the natural person has not the rightto be part of a company if he was included in some acts that determine theprohibition of founding a company the natural consequence being thecesation of the mandate considering that bdquohe was deprived of rightsrdquo

d) The administrators are responsible to the company for the damagecaused by the acts of the directors since the damage would not haveoccured if they had exercised their duties imposed by their office ( article1442 para 2)

In theory it is considered that this is a guarantee of theadministrationrsquos responsibility to the company like the general liabilityfor the otherrsquos action

e) we have to emphasize the distinction regarding the directors whoseappointment was established by the memorandum of associates

Also unlike the case of the directors appointed by the Board thedirectors appointed by the General Meeting are directly responsible to it

Bibliography

Gh Piperea Commercial Law vol I CH Beck Publishing HouseBucharest 2008

Alexandru Ţiclea Tiberiu Ţiclea The Peculiarities of the CommercialMandate Contract of the Joint-Stock CompaniesrsquoDirectors bdquoLawrdquoReview no 82010

St D Cărpenaru Romanian Commercial Law Juridical UniversePublishing House Bucharest 2009

The Law 311990 republished regarding companies


308


309

THE PROTECTION OF HUMAN DIGNITY IN ALBANIAAND ROMANIA

Prence MIRGEN

AbstractThe article presents an analysis of the crime againts dignity in the Albanian

criminal law insult and defamation We examined certain judgments of courts inAlbania and the solutions given by those courts that violate the right to freedom ofexpression protecting the dignity of misuse and abuse protection With all the pressure ofthe Albanian civil society and of the world on the decriminalization of insult and libel thestudy tries to argue that there is compatibility between the existence of such offense andthe European Convention on Human Rights The solution is not decriminalization ofthose and unlimited freedom of speech but protection of both principles dignity andfreedom of expression because they are equally protected by the European Convention onHuman Rights

Actually the protection of human dignity in Romania is analyzed in terms ofConstitutional Court Decision and the Decision of the High Court of Cassation andJustice We shall present an analysis of the decision of the Constitutional Court ofRomania nr 622007 and of the effects it produced We shall examine the appeal in theinterest of law made by the General Prosecutor of Romania although I prefer to analyzeDecision nr 82010 (yet unpublished in the Official Gazette of Romania) of the HighCourt of Cassation and Justice that upheld the interest of law We shall also present thearguments that allowed this appeal and the implications of the decision to produse will beasked wether the Constitutional Court under article 146 letter is due to the legal conflictbetween the legislative authority of Parliament and High court of Cassation and justiceas judicial authority

Keywords insult defamation human dignity freedom of expression

1 The principle of protection of dignity in Albania

The importance of the price to be paid for the protection of dignityhas been acknowledged since the time in which modern states are layingthe ground work Since the Code of Leke Dukagjini dignity is givenspecial protection The first Albanian Penal Code in 1928 paid specialattention to the protection of honor given that the Code was practically aninnovation at that time and was drafted largely on the Italian CriminalCode but borrowing standards from the French Code

Human dignity is protected by law In different places and differenttimes the rules vary dignity Where the population is heterogeneous the

PhD Candidate Faculty of Law Al I Cuzardquo University of Iaşi


310

concept of ldquodignityrdquo has several variations Dignity is something abstractbut decisions are taken in the name of concrete In antiquity Aristotelconceived the idea of ldquouniversality of human naturerdquo Pope John Paul II agreat personality who has fought for human rights considered awarenessa ‟feature that determines human dignityrdquo When using the fair groundsthe man expresses his intellectual capacity and therefore creates the morallaw logic (Gjoka and Gjoka 2007 7-8)

In Albaniarsquos constitutional history the current Constitutionadopted in 1998 is the first that explicitly sanctioned human dignity as afundamental constitutional principle According to art 3 of theConstitution ldquohuman dignity fundamental rights and freedoms of theState is bound to respect and protect themrdquo In the preamble to theConstitution the protection of human dignity and personality isformulated as an obligation of the people We conclude that this principleis linked through the Constitution and the rights and fundamentalfreedoms Observing the dignity serves as a basic interpretation withoutwhich the other principles may apply To protect human dignity isprovided in the Constitution required for the functions of state bodiesrespect for human rights and fundamental freedoms Parliament can notenact laws to contain interference to conflict with human dignityConstitutional did not give a clear definition of the principle of dignity

In Albania we have not to date a definition given by theConstitutional Court The Constitution of Albania unlike otherconstitutions is an important principle of dignity between constitutionalprinciples He serves as a basic principle for interpreting all the articles ofthe Constitution and the respect are the foundation of the legal system(Anastasi Omari 2008 pp68-69)

Moral values are protected in a comprehensive way in a democraticcounty ehere individual role is in the foreground (Elezi 1998 p25)

In art1b Penal Code stipulates that criminal legislation of theRepublic of Albania is required to protect the territorial independence ofthe state human dignity rights and freedoms constitutional propertyenvironment coexistence and understanding of national minorities andAlbanians living together religious norms through criminal and crimeprevention (Alusala 2008 p5 ) Given the importance and value of theprinciple of protecting the dignity the previous article (art1b CriminalCode) governs the protection of dignity immediately after independenceteritoriality

Safeguard the dignity of the Albanian Penal Code regulating crimeswhich affect the principle provided that such crimes insult (art119Criminal Code) racist or xenophobicreasons insult via computer (art119bPenal Code) defamation (art120 Criminal Code) insult against a foreignstate representative (art 227 Criminal Code) insult to the civil service (art


311

239 Criminal Code) defamation (art 240 Criminal Code) defamation ofthe President of the Republic (art241 Criminal Code) the humiliation ofthe Republic and its symbols (art268 Criminal Code) Insult of the judge(art318 Criminal Code)

The Albanian Penal Code divides offense in crimes and delicts Art1 of Criminal Code divides offense in crimes and delicts The differencebetween them is determined for each case in the special provisions of thisCode Although not expressly provided for in the Code the basic criterionof this division is the material criterion the seriousness of the offenceActs with a higher degree of hazard is included in the category of crimesthe facts instead of a lower degree of danger in the delict category (Muci2007 p101 )

According to article 32 of Criminal Code Punishment for crimes isset for 5 days to 25 years Punishment for delicts is punishable by 5 days to2 years Among the offenses of libel and slander are only two crimesinsult against a foreign state representative (art227 Criminal Code) whichis punishable by fine or imprisonment up to 3 years defamation of thePresident of the President of the Republic (art241 Criminal Code) whichis punishable by fine or prison sentence up to 3 years

11 Insult

Insulting a personrsquos purpose is crime and punishable by fine orimprisonment up to six months (art 119 Criminal Code) Paragraph 2provides that the act committed in public against several persons morethan once is punishable by fine or imprisonment up to one year

Criminal Code does not define the offense of insult the samesituation is found in art 185 German Criminal Code (Bohlander 2008p139) but this one is criminal doctrine

By means harm to insult the honor of the person using offensivelanguage or gestures By insulting prejudice self-esteem (Elezi 1982p1982) Of particular importance is the expression of words If the termsare contrary to human behavior social rules of living together and affectthe personrsquos sense of honor will be in the presence of the offence to insultIf expressions or gestures are offensive or not this is a case to be analyzedeffectively as appropriate The terms rdquocrazyrdquo rdquobastardrdquo etc for a certainperson may be considered as an insult when they affect fis honor andanother person are not considered an insult

The legal object of the offence is the social relations that relate tohonor the person

In theory there is legal doctrine protecting old sense of honor of theperson aware of this value insulting and denigrating to understand thecharacter of the expressions addressed Based on this theory could not


312

accept the insult to the dignity of people who do not realize this valueinsulting words addressed not perceive their ex mentally ill personsdead people who sleep etc (Elezi 1974 p301)

It protects the dignity of the person whether it is perceived as moralor not because there are no people without dignity it can be found invery man merely to exist as a human being

Material object Offences against the dignity no material objectThe offender need not meet any special quality we infer that the

active subject can be any person In accordance with article 12 of theCriminal Code the person committing an offense of criminal responsibilityfor his action when he reached the age of sixteen

The crime of insult can be committed by one person the authorwhich is only active subject directly or more persons which intentionallyco-authors that contribute to the activity that constitutes the materialelement of the crime of insult

In the event that multiple perpetrators with offensive wordsaddressed to the same person each of them directly commits the crimethey commit separate acts of insult in this case there will be noparticipation but many independent offenses of insult and an equalnumber of subjects the immediate active (authors)

A victim can be any person or entity In some cases passive subjecthas some special quality As in the case of insult against a foreign staterepresentative (art227 of Criminal Code) to be in the presence of thisoffense the person insulted should be representative of a foreign state interms of insult because of the civil service (Art 239 C pen) passive subjectmust be official

It can also be accomplished through writing physical gesturesoffensive gestures spitting or other gestures by bringing dignity PeoplesCourt of Tirana Case no 683 dt03061965 condemn HB for libelcommitted by gestures because shaved wife to insult Insult physicalgesture is distinguished from other crimes such as injury to the subjectactively seeks not causing physical suffering but harm to honor victims(Elezi 1972 p303)

Paragraph 1 of art 119 does not specify the ways they can commitcrime The crime can be committed by offensive expressions attributingthe oral written drawings etc Insult generally requires the presence ofthe person insulted this person whom it is addressed words offensive butis likely to commit crime in the absence of the person the author believesthat the facts will become known to the person If the words are offensiveor not whether or not the honor and dignity it is an issue that is resolvedby the court the only legal authority in a position to decide for them


313

Aggravating circumstances are provided in paragraph 2 andachieved by committing the act in public against more people and morethan once

The Albanian Criminal Code does not explain the concept ofpublic This legal vacuum is settled case-law Determining criterion toclarify this concept is not the place to consume the act but the presence ofseveral persons

Decision no2 dt 01061957 of the High Court accepted theconsideration that the notion of public is when it was committed in thepresence of an assembly consisting of more than 8-10 people (Elezi 1974pp303-304)

This delict is committed in public through publications that areaccessible by many people Publications may include caricature drawingpainting etc Also it can be committed in various works of art exhibited inpublic

By art32 of Law no8733 dt 24012001 were introduced twoaggravating circumstancerdquoagainst several personsrdquo and rdquomore than oncerdquothese variants aggravating offence were provided from in the CriminalCode of 1977

The alternative aggravating against several persons while weunderstand the offense committed against several persons When the actwas committed by example against three persons and only one personmakes a complaint or all three makes complaints two people withdrawtheir complaints the offense will be considered in its simplest version notaccording to that aggravating forms

By circumstance several times we mean the act repeated severaltimes but not at short intervals and not in the same criminal intention If aperson assigned to offensive language at short intervals of time the legalclassification of the offense will be under paragraph 1 simple form andmust not be used variant aggravating

Offensive action must relate to a person indifferent of its moralityBeing an inherent attribute one can not be considered wholly lacking indignity Moreover the Criminal Code considered as offence against claimsthat violate the dignity of this value The crime exists even when theperson against whom the action had place has no discernment necessaryto tell him that the offensive

Immediate consequence is a violation of the honor and dignity Thisresult occurs even when committing the offending action and it ispresumed in that case so there needs not to be proved by the offendedperson

Causal link between the offender and follow the action must besocially dangerous resulting from committing crime Penal Code


314

considers crimes against the dignity and offensive statements orallegations concerning factual or true

Its not important if the person against whom the offender ismoving has or not has the necessary discernment to realize that offendhim A crime can be committed against the dignity of a minorirresponsible or against a person suffering from mental alienation Theexistence of an offense against the dignity however is excluded if it isdirected offensive action against anyone who commits even as humandignity is protected by criminal law as a social value and not in relation tothe importance attached to it by single individual

Guilt In the Special Part of the Criminal Code are not coveredoffenses committed with intent to direct and indirect intention or bothThis formulation is solved taking into account the reasons and purpose itis understood that the offense is committed with direct intention (KacupiHaxhia Elezi 2009 p114) The end goal is understood by the defendanthad in mind by committing the criminal act According to the CriminalCode purpose is part of the material element of the crime of insult art 119Criminal Code even in the offenses are provided insulting the personwith the purpose according to legal classification made by thelegislature it is understood that persons committing the act intended toharm the persons honor In the current wording of the provision theoffense is committed only by direct intention

The doctrine was expressed that if you can not prove they are trueor not insulting expressions we have competition between the in dubiopro reo principle and the protection of dignity (Stojani2007 p56)European Court of Human Rights has called repeatedly not face criminalcharge to the journalists if they do not know the exact veracity in thiscase journalists ECHR accepted that the presumption of good faith

12 Calumny

According to art 120 Criminal Code with the purpose ofassignment expressions and any other information that is known to befalse and affect honor and dignity is crime and punishable by fine orimprisonment up to one year Paragraph 2 provides that the commissionact in public against several persons and more than once and punishableby fine or imprisonment up to two years (Kaftili Pernoca 2009 p78)

Criminal Code gives the definition of calumny as an expression orassignment information that is known not to be true and affecting dignity

Albanian criminal law knows no concept of defamation when itawarded expressions are true information as provided in other legislationex French Romanian etc Expressions of calumny award events that havehappened in the past or present If expression refers to actions that will


315

occur in the future the act will not be considered calumny but in specificcircumstances can consitui crime of insult

Under the doctrine in connection with the insult and calumny isprotected person honor the living and dead person does not have honorbecause personal honor can not continue after the moment of death buttheres that social aspect of honor relatives and people who knew him(Elezi 2002 p131) solutions opposite are provided in other legislation exthe German Penal Code Article 188 which criminalized defamation of thememory is deceased 175 Swiss Penal Code provides for defaming thememory of the deceased and missing persons

Material object As the offence of insult calomny has no materialobject

Perpetrator of the offense may be any person In accordance witharticle 12 of the Criminal Code the person committing an offense iscriminal responsibility for his action when he reached the age of sixteenagainst persons responsible for crimes which starts at fourteen years Thelegislator increased age of criminal responsibility to persons who commitcrimes because they have a certain psychological development of thepeople to know the criminal nature of the facts and legislator held thatintellectual development begins by the age of sixteen in people whocommit crimes

The crime of calumny may be committed by one person theperpetrator who is the only active subject directly or more persons whichintentionally co-perpetrators that contribute to the activity that constitutesthe material element of the crime of calumny

In the event that multiple perpetrators addressed defamatorywords to the same person each of them commits the crime directly butparticipate in the development of separate acts of calumny in this casethere will be no complicity but many crimes of calumny

An eloquent example is the Decision nr 221 dt21061999 HighCourt left unchanged decisions of Tirana First Instance Court Decisionno679 dt 16071998 and the Tirana Court of Appeals Decision no 111dt 04141999 which is condemned for libel and slander FB to pay thefine of 100000 (one hundred thousand) leke The offense has beencommitted by him in writing in public The convict has shown in hisdefense that he is the director of the newspaper were published writtenagainst the victim but he is not the author of these writings Theinformation came by fax individual criminal responsibility in thesecircumstances can not be held criminally liable for acts that are notcommitted by him These arguments were not taken into account by thecourt (High Court Decision no 221 dt21061999)


316

The way in which the delict of calumny is regulated in the AlbanianCriminal Code violates the freedom of expression because it excludesgood faith

De lege ferenda we propose the inclusion of bad faith in offense ofcalumny (thought it was real and made reasonable checks even if it turnsout that the information is not true) Criminal Code article 120 paragraph1 should have the legal meaning allocating with purpose and in bad faithexpressions and any other information that is known to be false and affecthonor and dignity is delict and punishable by fine or imprisonment up toone year This formulation is compatible with the ECHR in this case thepersons good faith is presumed

In Albania there is no press law nor a law providing for theobligations of the editor- in- chief editor and president of newspaperhowever some courts have sentenced the editor and president of thenewspaper with the author of writings De lege ferenda util the adopt ofpress law propose to introduce a general article in the Criminal Codereads as follows Where a delict is committed through publication in asocial communication and is consumed as a result of publication Only theauthor will be punished outside the following exceptions

1 If the author can not be identified it is criminal liability in theabsence of the editor and the person responsible for publication

2 If the publication took place without the knowledge or againstthe author will be punished as a crime author and the editor in his absencethe person responsible for publication

3 Any person responsible under the preceding paragraphsmeaning not prevented the crime is punishable with a sentence of up totwo years or a fine If the person responsible has committed negligence thepenalty is a fine offense A somewhat similar provision is provided byarticle 28 of Swiss Penal Code

A victim can be any person In some cases it may be classified ashaving a particular official If the crime of libel because of the civil serviceservants (art240 of Criminal Code) passive subject must be a publicofficial The tort of defamation of the President of the Republic (art241 ofCriminal Code) must be of the passive subject of the President of theRepublic of Albania

According to article 120 of Criminal Code that the tort ofdefamation should have met these conditions

1) assignment expressions or information2) expressions or information to be false3) be concrete expressions or be concrete information4) concrete expressions or concrete information to be derogatory to

the dignity


317

5) attributed concrete expressions or concrete information whichare false and derogatory to the dignity are known by the author of crimethat affect the dignity of the individual

1) assignment expressions means to communicate display supportto describe an act to tell others about someone else

They can be committed through various means and ways asfollows in words - oral (lectures speeches shouting threats songsspoken directly or indirectly by means of audio recordings videotelevision broadcast) writing (letters posters documents Books articles)or graphics (drawings cartoons) These means can be employed singly orcombined associated

Gestures can be a means to achieve the objective side of the materialelement of the crime of libel only if they like a pantomime it canreproduce a work attributed to a person

2) By assigning expressions or information are false thoseexpressions or information that is not true True information orexpressions must be made in accordance with the rules of social life If theaward of this information is not needed and then we will bring somethingon dignity and will be insult offence

3) Another condition to be met for there to be libel award ofexpression or information is specific and not general College of HighCourt in Decision no 654 dt 10061985 pronounced in relation to ShBdefendant rdquoexpressed doubts that LB have found some documentsrdquoThis expression does not meet the elements of defamation Art 186Criminal Code means assigning concrete expressions that are false and areknown to affect someone elses honor In the particular case to expressdoubt that the injured party would be lost documents isnt a specificinformation Libel differs from critics addressed to a person thedetermining criterion is the purpose of the author If the author by criticsattribute information that is known to be false and affect honor to willhave a delict of libel (Zenko Elezi 1989 pp458-459) Tirana Court withthe decision no467 dt29061978 among others focused on attributingnegative qualities in the form of criticism in a meeting of professionalorganization this does not meet the material element of the delict of libel

4) Albanian criminal law knows no concept of defamation inRomanian and French criminal law is punishable assigning expressionsthat bring true dignity the Albanian criminal law is punishable falseattribution expressions affecting dignity Expressions of libel refers toevents that occurred in the past or present If the expressions refer toevents that will occur in the future the act may qualify insult Theexpressions used are not only false but also defamatory to the personDerogatory expressions are those of the person who assigns grades whichin accordance with the rules of social life not worthy of the man If you are


318

denigrating expressions that are matters to be considered by the court foreach case

5) The last condition refers to the subjective side of committing thecrime of libel assigned expressions that are false and derogatory to thedignity of the concrete are known author of crime that affect the dignity ofpersons

The author aims to insult offensive language award affecting dignityand thus discretiteze him humiliate him The libel award means ofexpression that are known to be false and are done with the view ofinfringement dignity By assigning false expressions means making peopleaware of their contents To distinguish the crime of libel at the insult wemust consider the following features

a) the crime of defamatory libel we have concrete facts instead toinsult the facts may be general or specific but the author does not knowthat they are false he is convinced that the facts are real

b) Slander is consumed as a crime by assigning expressions falseinformation without having anything to do with taking or not aware ofthese facts to the person injured To insult the deed is consumed when theinjured party learns of offensive expressions or gestures (Elezi 1982 p91)

In paragraph 2 are under aggravating circumstances the crimecommitted in public against several persons and more than once Theaggravating circumstances are similar to the offence of insult

Attempted crime is not possible for verbal offenses it will existwhen the offender chooses to commit one way possible action withongoing time The attempt is punished The attempt is punished to themost serious offenses (Cerkini 2009 p43) Legal effects of the attempt areprovided by art 23 paragraph 1 Penal Code which penalizes onlyresponsible for the crime The court depending on the proximity of theconsequences and effects to produce the result and the cause for which nocrime was committed reduce the penalty and the penalty can be reducedto the minimum required by law or may provide another easy penalty(Kacupi Haxhia Elezi 2009 p168) Legiutorul exclude criminal liabilityfor attempted crimes because art 23 Criminal Code predeve attempting tomurder Criminal liability is not punishable if the crime because of lowsocial threat

To speak of the existence of the crime of libel the activity that formsthe material element of the crime must be committed with guilt Theperpetrator commits the crime of direct intent form is provided for aparticular purpose assignment expressions or information For theexistence of libel is necessary to meet the intentional element amongothers meaning that the author was aware that the fact stated is not true

The offender is aware of the untruth of the statement he acts withthe intent of compromising the offended


319

2 Offences against the digity and the compatibility with theECHR

Neither the European Court of Human Rights does not stipulatethat the offenses that protect the dignity (libel and slander) withoutprejudice to freedom of expression The Court will analyze each case todetermine whether a violation of Article 10 of the ECHR but so far nodecision has ruled that the rules expressly provide for criminal defamationand insult affecting freedom of expression should be repealed

The right to freedom of expression is not an absolute right heknows that some interference is necessary in a democratic society one ofwhich is protection of individual reputation by criminalizing the offenseof insult and libel Article 10 1 CEDO provides that any person has theright to freedom of expression This right includes freedom to holdopinions and to receive and impart information and ideas withoutinterference by public authority and regardless of frontiers This Article

shall not prevent States from requiring broadcasters film and televisionlicensing regime and paragraph 2 states that freedom may be subject tosuch formalities conditions restrictions or penalties with the followingconditions

1) to be prescribed by law2) constitute a necessary for a democratic society3) interference relate to national security territorial integrity or

public safety prevention of disorder or crime health morals reputationor rights of others for preventing the disclosure of confidentialinformation or for maintaining the authority and impartiality of thejudiciary

On the first requirement provided that insult and defamation arecrimes which affect freedom of expression are also different crimes rangefrom those crimes These crimes vary depending on the active subject andpassive subject

The second condition is the need to measure in a democratic society(proportionality) this means that none of the following rights no right toprotect the dignity and the right to freedom of expression should not beprioritized against each other for that are protected as the EuropeanConvention on Human Rights but each case must be examined to seewhich of these values (human dignity or freedom of expression) is moreimportant in practical situation if it is abuse of freedom of expressionpreference is given to protection of dignity for the abuses and sanctionsare set out in the Criminal Code With freedom of expression may beinjured dignity if damage is done to protect the human dignity of alegitimate interest provided for in Article 10 paragraph 2 of the


320

Convention the author will be exempted from criminal liability for libeland slander (Stojani 2009 p9 )

Currently there is no press law in Albania and Romania but forbetter conduct of the business press is appropriate to adopt a law Byadopting the law does not create an interference in the work of the pressbut are better identified rights and obligations of the press and othercategories of persons who have contact with the media

The last condition requires that the interference must relate to theprotection of reputation Protection of reputation is protected by civil andcriminal means Insult libel is interference which defend the reputation ofthe person

It is the obligation of judges to examine each case and to interpret ifthe laws that restrict freedom of expression are included in the scope ofinterference under article 10 paragraph 2 of the ECHR or exceed the scopeof such interference Also its all a matter for the judge to considerwhether a publication or film exceeds or not limitations to the scope offreedom of expression (Loloci Traja 1995 p10)

There should be a balance between protecting the dignity of theinsult libel and freedom of expression This balance can not exist by therepeal of insult and slander at the expense of freedom of expressionmeaning that the dignity and reputation of other people who have beeninsulted would remain without any legal proceedings

As is admitted in a legal-philosophical concepts of democraticstates ldquofreedom of individual ends where the other person beginsrdquoMaking a parallel with the famous maximum freedom of expressionshould be restricted when harm the dignity of the person or in otherwords there must be a balance established by protecting both rights Thisbalance can not exist by decriminalization of insult and calumny but onlyby applying the civil law for breach of dignity

3 Dignity in Romania

The abrogation of the dispositions of Articles 205 206 207 by law2782006 regarding the change of Criminal Code was well received by thepress and even some lawyers but criticized by others on the grounds thatit abandons the defence by means of criminal law of one of the mostfundamental values related to human personality (Basarab PaşcaMateut Medeanu Butiuc Badila Bodea Dungan Mirisan MancasMihes 2008 p328)

Consistently the Constitutional Court rejected as unfounded theexceptions of unconstitutionality of dispositions of Articles 205 206 207 ofCriminal Code ruling that the legislature incriminates and punishes actsof insult and calumny as infringements of the law against the dignity of


321

the person an essential value stipulated in Article 1 paragraph (3) of theConstitution acts which demonstrate lack of respect for the humandignity (Toader 2009 p144)

Constitutional Court by Decision no 622007 declaredunconstitutional Article 1 pt 57 from Law no 2782006 for the change andcompletion of the Criminal Code which abrogated Articles no 205 206207 Criminal Code considering that by declaring unconstitutional the lawof abrogation the dispositions of articles no 205 206 207 come back intoeffect If finding unconstitutional some legal dispositions of abrogationthey shall cease their legal effects under the conditions of Article no 147al (1) from the Constitution (the provisions of laws and ordinances inforce and also those of regulations declared unconstitutional cease theirlegal effects 45 days after publication of the Constitutional Courtrsquosdecision if in the meantime the Parliament or the Govern as appropriatedonrsquot agree the unconstitutional provisions with the disposions of theConstitution) During this period the dispositions found to beunconstitutional are suspended and the legal provisions that formed thesubject of the abrogation remain in effect (Toader 2009p144) Regardinthe Constitutional Court Decision two views have emerged in legalliterature

A first opinion expressed in the media was that the repealedprovisions can not be brought into force by declaring unconstitutional arule repealing these provisions without the Parliament or theGovernment as appropriate to adopt a new regulation aimed at the fieldThis solution is based on art 62 para 3 of Law No 242000 on the rulesfor the legal drafting republished the repeal of a provision or normativeact is final Repealing the abrogation is not put into force of the initialThe only exception allowed by law refers to the Orders of the Governmentproviding for repealing rules that are rejected by Parliament by law It isthus considered to repeal can not return either directly or indirectly via adecision of unconstitutionality (Popescu Cioară 2007 p52)

The revised Constitution has provided that all decisions of theCourt given in the resolution of any objections and exceptions ofunconstitutionality which found unconstitutional a law or ordinancedetermines that the parliament or government to agree to theunconstitutional provisions of the Constitution By carrying out thisobligation the law found unconstitutional shall remain in force butsuspended After 45 days of its publication in the Official Gazette of thedecision of unconstitutionality by the Constitutional Court if theobligation was not performed those laws and ordinances shall lapse(Moraru Tănăsescu 2009 p274)

A second opinion said that the publication of the decisionestablishing the unconstitutionality of provisions abrogatoare the


322

provisions of the Criminal Code relating to insult slander and burden ofproof is in force causing her full legal effect (Bulai Filipaş MitracheBulai Mitrache 2008 p395) We join the second opinion that theprovisions of article 62 paragraph 3 of Law 242000 on the rules for thelegal drafting which is not allowed according to the repeal of a repealingact put in force prior to the enactment initial refers to activity regulationFreedom of expression is inviolable but exercise can not be prejudicial tothe dignity honor privacy of the person and the right to own imageEstablishing limits to the exercise of any right or freedom may be made bythe legislature in compliance with Article 53 paragraph1 of theConstitution in order to protect the rights and freedoms of citizenswithout being considered a means of censorship (Basarab Paşca MateutMedeanu Butiuc Badila Bodea Dungan Mirisan Mancas Mihes 2008p328 )

Allowing the plea of unconstitutionality the Constitutional Courtdid not exercise the powers of a positive legislator either directly orindirectly because the provisions of articles 205 206 207 of the CriminalCode in force in its original form without any change during exercisecontrol of constitutionality by the Constitutional Court

Shown in different ways and purposes the possibility of limitingfreedom of expression is enshrined in art 10 para 2 of the EuropeanConvention on Human Rights provisions under which ldquothe exercise ofthese freedoms since it carries with it duties and responsibilities may besubject to such formalities conditions restrictions or penalties as areprescribed they are necessary in a democratic society for the protection ofthe reputation or rights of othersrdquo (Toader2009 145)

High Court of Cassation and Justice Decision No 8 of 18 October2010 upheld the prosecutor generals office decided that the crime ofinsult slander and burden of proof is not in force

Decision of the High Court of Cassation and Justice is controversialdividing it into two categories legal world The first category includesthose who agree with this solution are granted by the High Court ofCassation and Justice and those who have some objections to thatdecision We join the second category for the following reasons

Attorney Generals argument that Article 62 paragraph 3 of Law no242000 on the legislative technique provides that the repeal of aprovision or a final bill is always and is not admitted by the repeal of arepealing act in force prior to the enactment initial call

We believe that this statutory provision relates to the business ofregulation and does not apply to the Constitutional Court decision that theConstitutional Court does not exercise the legislative powers

The Constitutional Court has not amended or supplemented theprovisions of art 205 206 207 Criminal Code It is the first time the


323

constitutional court ruled on disputes relating to provisions repealing exDecision nr2020001 Contentious constitutional court consisted of severaldecisions that the provisions of art 205 206 207 of the Penal Code are inaccordance with the Basic Law as an example we mention a No Decision511999 Decision nr1342000 Decision nr3082001

Another argument of the general prosecutor of the High Court ofCassation and Justice was that since the provisions of art I section 56 ofLaw no 2782006 have been found to be contrary to the Constitution hadto make their repeal as provided under Art 62 para 1 of Law no242000 the repeal was followed by reincrimination facts provided by art205 and art 206 of the Criminal Code The Constitutional Court has theauthority to repeal acts and regulations so that its decisions can also havethis effect

The Constitutional Court has outlined the way forward followingthe occurrence of a constitutional legal conflict between Parliament andthe High Court of Cassation and Justice holding that in exercising thefunctions set out in art 126 par 3 of the Constitution Supreme Court ofCassation and Justice is obliged to ensure uniform interpretation andapplication of the law by all courts with the underlying principle ofseparation of powers provided for in art 1 paragraph 4 of theConstitution High Court of Cassation and Justice has no constitutionalpower to establish amend or repeal the legal rules laid down by law or toperform their constitutionality2

We assume that the rules of legislative technique is applicable todecisions of the Constitutional Court Article 62 pargraph 1 of Law no242000 sanctioned that the provisions contained in a legislative actcontrary to a new regulation on the same level or higher should berepealed May be total or partial repeal Upon a finding by theConstitutional Court so far has not found the repeal (Repeal would havecome from the legislature) nor reincrimination Is the decision by theHigh Court of Cassation and Justice found that the offenses mentioned inart 205 206 207 of the Penal Code is not equal to a repeal of Article 62under par 1 nr242000 law Does the supreme court did not exceed theconstitutional jurisdiction creating a constitutional legal conflict betweenParliament and the High Court of Cassation and Justice

These questions will be answered if the Constitutional Court shallbe notified according to art Lette 146 of the Constitution by the Presidentof Romania and if one of the presidents of both houses of Parliament thePrime Minister or President of the Superior Council of Magistrates will

1 httpwwwccrrodecisionspdfro2000D020_00pdf last accessed in 230320112 Decizia Curţii Constituţionale nr 8382009 httpwwwccrrodecisionspdfro2009

D0838_09pdf last accessed in 26032011


324

consider that it is a legal conflict between public authority [although inthis case we are in the presence of a legal conflict between the parliament(legislative authority) and the High Court of Cassation and Justice (legalauthority) because under Article 73 paragraph 1 of the ConstitutionParliament passes constitutional organic laws and ordinary laws andaccording to art 73 para 3 letter h) the organic law governing the crimepunishment and the execution of the sentence and according to art 126paragraph three High Court of Cassation and Justice shall ensure uniforminterpretation and application of the law by other courts under itsjurisdiction]

Court may resolve any constitutional legal conflict arising betweenpublic authorities and any conflicting legal situations whose birth liesdirectly in the text of the Constitution and not only conflicts ofjurisdiction (whether positive or negative) born between3

The delivery of this Decision the High Court of Cassation andJustice has acted as a legislative authority being affected the fundamentalprinciple of rule of law namely the principle of separation of legislativeexecutive and judiciary governed by art 1 paragraph 4 of the Basic Law

References

Aurela Anastasi Luan Omari E drejta kushtetuese ShtepiaBotuese ABC Tirane 2008

Ardita Alsula Kodi Penal i Republikes se Shqiperise i perditesuardhe me praktike gjyqesore Shtepia Botuese Alb Juris Tirane2008

Ali Zenko Ismet Elezi E drejta penale e Republikes PopulloreSocialiste te Shqiperise Pjesa e Posacme Shtepia Botuese eLibrit Universitar Tirane 1989

Burim Cerkini Tentativa si faze e kryerjes se vepres penaleJusticia nr12009

Costică Bulai Avram Filipaş Constantin Mitrache BogdanNicolae Bulai Cristian Mitrache Instituţii de drept penalCurs selectiv pentru examenul de licenţă 2008-2009 cu ultimelemodificări ale Codului penal Editura Trei Bucureşti2008Instituţii de drept penal Curs selectiv pentru examenul delicenţă 2008-2009 Editura Trei Bucureşti 2008

Eleonora Gjoka Kosta Gjoka Dinjiteti human Shtepia BotueseElko New York 2007

Ismet Elezi Mbrojtja juridike-penale e moralit dhe e dinjitetit te njeriutTe drejtat e njeriut nr21998

3Official Gazette of Romania Part I No317 12 may 2003

httpwwwccrrodecisionspdfen2003D148_03pdf last accessed in 26032011


325

Ioan Moraru Elena Simina Tănăsescu Drept constituţional şiinstituţii politice vol II Editura CHBeck Bucureşti 2009

Ismet Elezi E drejta penale e RPSH Shtypshkronja Revista-Dispenca Tirane 1974

Ismet Elezi Hotăracircrea Plenului Icircnaltei Curţi nr1 dt19011982Drejtesia Popullore nr31982

Ismet Elezi E drejta penale e Republikes se Shqiperise Shtepia BotueseAlbin Tirane 1999

Ismet Elezi E drejta penale Pjesa e Posacme Shtepia Botuese ShbluTirane 2002

Krenar Loloci Kristaq Traja E drejta Kushtetuese Shtepia BotueserdquoAt Gjergj Fishtardquo Tirane 1995

Lorenc Stojani Liria e shprehjes apo dinjiteti i njeriut Reflektime mbinismen legjislative per depenalizimin e fyerjes per gazetaretRevista shqiptare per studime ligjore nr12008

Lorenc Stojani Argumentime qe i kundervihen depenalizimit te vepresse fyerjes Jeta Juridike nr22007

Matei Basarab Viorel Paşco Gheorghiţă Mateuţ TiberiuMedeanu Constantin Butiuc Mircea Badilă Radu BodeaPetre Dungan Valentin Mirisan Ramiro Mancas CristianMihes Codul penal comentat volIIPartea specială EdituraHamangiu Bucureşti 2008

Michael Bohlander The German Criminal Code Hart PublishingOxford 2008

Shefqet Muci E drejta penale Pjesa e pergjithshme Shtepia BotueseDudaj Tirane 2007

Skender Kacupi Maksim Haxhia Ismet EleziKomentar i KoditPenal te Republikes se Shqiperise Shtepia Botuese West PrintTirane 2009

Sorin Popescu Cătălin Cioară Implicaţii care rezultă ca urmare adeclarării neconstituţionalităţii unei dispoziţii avacircnd caracterabrogatoricircn lumina Deciziei nr 622007 a Curţii Constituţionaleicircn revista Dreptul nr42007

Tudorel Toader Drept penal romacircnPartea specialăEdituraHamangiu Bucureşti2009

Valjeta Kaftili Aferdita Pernoca Kodi penal i Republikes seshqiperise Qendra e publikimeve zyrtare Tirane 2009

httpwwwccrrodecisionspdfro2000D020_00pdf lastaccessed in 23032011


httpwwwccrrodecisionspdfen2003D148_03pdf lastaccessed in 26032011


326


327

CONSTITUTIONAL FUNCTIONS OF THE JURIDICALAUTHORITY

Marin POPESCU

AbstractThe coherent construction of the juridical system and an effective justice act are

the main factors contributing to the formation of a state based on the rule of lawNevertheless history proves that the reconstruction of the juridical system is sloweddown when faced with continuous political confrontations and unfavorable social-economic environment In order for reforms to be successfully carried out in any domaina favorable context leading to the implementation of the reforms is required together withscientifically-based strategies The process of getting over any critical situation requiresboth the citizensrsquo consent and the reformation will expressed by the politicians of thetransitioning countries

The juridical system of the Republic of Moldova considered fromboth the legal support and the manner in which laws are applied isthreatened by several negative factors signaled by both concernedorganizations and the population of the country One of the main factorspreventing an actual reformation of Moldovarsquos juridical system iscorruption Many sociologic polls point to the fact that the populationrsquostrust in the bodies responsible for carrying out the justice act is extremelylow The same situation yet at a smaller scale can be observed in Romaniatoo

For the aforementioned reasons the specialists are worried aboutthe situation that currently describes the justice act More and morestudies are aimed at problems referring to justice and the justice act andthe protection of human rights

The worst part is that after so many years the issue regarding thejudicial powerrsquos independence has not been solved yet and people arebeginning to wonder why the judicial power is so dependant on theexecutive power The severity of the situation has evolved to such anextent that even the viability of the separation of powers principle hasstarted to be questioned

In this context a more and more fervent question arises ndash what wasthe true purpose of the juridical systemrsquos reformation From a theoreticalpoint of view the answers may be several yet reality shows that in order

Head of Department County Police Department Galati Email

popescumarinanayahoocom


328

to reach the goals of certain political or legal documents favorableconditions for the justice act must be created Such conditions areensuring the financial independence of the juridical system increasing thenumber of judges creating an effective mechanism of selectingmagistrates solving the problem brought by the lack of court spaces etcMoreover creating effective instruments for trials becomes an essentialcondition if justice is to become truly effective and independent

The favorable conditions for an independent justice act refer firstand foremost to the persons carrying out the justice act and justiceinstruments must be aimed at increasing the populationrsquos trust in thejuridical system

Of all the powers in a state the judicial power can be considered tobe the weakest as it is not supported by the population and their votesand it also lacks the coercive system the executive power has However inprofoundly democratic states the power of the juridical authorities is notbased on the extent to which the citizens obey the law and its institutionsIt represents an authority and authority can only be obtained by rightfullyenforcing the law and by the equity of the decisions issued by the juridicalauthorities doubled by a strong decision enforcing system Thereforeenforcing the verdicts and court decisions is one of the main problemsRomania and the Republic of Moldova are confronted with

All aforementioned facts have been included in the paper as toremind people that a weak act of justice is an act of justice not successfullycarried out

Reality shows that justice is only served when all its functions arecarried out Therefore the affirmation1 stating that the juridical power isthe instrument by which law influences social relations has not been madewithout a purpose Consequently whenever the juridical power fails tocarry out its functions it endangers the very existence of law

In general the functions of the juridical authority refer to theactivities through which the bodies forming the juridical authority carryout their duties2

Ever since the beginnings of human civilization serving justice wasconsidered to be one of the main attributions of a state as the verdictswere always reached and announced in the name of the state powerbearer

In modern times only the law holds the monopole over thejuridical system This means that no institution except the juridical bodieshas the right to reach verdicts or sentences which are to be executed

1 Конституционное право зарубежных стран icircn red Б Страшуна Moscova 1997 pag 2292 M Ciaroev Functions of the Judicial AuthorityRossiysky Sudya 37 2002


329

The most important achievements of the juridical system take placein democracies In the centrally planned economies this function is takenby the executive power while the juridical power is hollowed This realityis even more accurate if one takes into account the fact that the mostimportant juridical reforms have been carried out at times when thedictatorships were harshly criticized

In democracies the juridical power is independent from theinfluence exerted by the legislative and executive powers and is alsogranted a well-defined constitutional frame From a general point of viewthe act of law as one of the statersquos functions is considered to be theenforcement of the law aimed at regaining the equity of juridical reports

The main purpose of the aforementioned actions is the substitutionof the concept of violence with the concept of law as to establish a juridicalwall between the executive and its power3 By carrying out the act of lawthe juridical power borders state power as per the limits determined bythe science of law A state governed by the rule of law is a place where noone can judge his or her own cause as the personal interests mightinfluence the final decision and will eventually lead to compromising theresult From the very same reason not even groups of people can have thesame function ndash judge and plaintiff in a trial

Justice will never be able to serve its purpose rightfully when itidentifies with one of the two powers not knowing what are the purposesthat must be served at first From this very reason judges must not beinfluenced under any circumstances by the other powers Therefore thejuridical power will aim at serving either the executive power or thelegislative power against the best interests of justice in order to gaincertain advantages For this reason the legislative and executive powersmust not be limited when deciding issues able to influence the decisions ofthe juridical bodies Consequently the power to decide on the amount ofmoney the judges are paid represents a disturbing factor which induces astate of dependence and therefore poses a threat to the separation ofpowers In the same way the power of deciding on several favors formagistrates can influence court rulings especially when conflicts involvethe state

The legislative and executive powers are the base of the juridicalpower yet after it is formed the juridical power detaches itself andbecomes self-sufficient However one must understand the fact that thejuridical power does not take any of the statersquos powers as this woulddamage the essential element of the justice act ndash contributing to thesolving conflicts even those caused by the executive and legislativepower

3 A Tocvil Democracy in America America Moscova 1992 pag 120


330

Unlike the activity carried out by the legislative and executivepowers whose purpose orbits around the planning of the statersquos politicalprocess the purpose of the juridical activities is a precise one that isidentifying misdemeanors and sanctioning them

In the present context the role of the juridical system has expandedconsiderably It therefore represents the last hope for every institution orperson that was not able to solve a conflict in any other way In anydemocracy justice acts as a protector for the juridical order and for thestatersquos fundamental rights and liberties To this regard the courts nomatter the level meet two general functions protecting human rights andensuring public order These two functions cannot be ensured by anyother organ of the state because the verdicts of the judges are to berespected by everybody and whenever needed their execution is ensuredby the coercive power of the state

The juridical solving of conflicts stands as one of the eldestfunctions of the state The need to defend oneself and onersquos property aroselong before the norms that later became customs and eventually rules andlaws

Ancient history proves that justice was made either by magicalforms or in an arbitrary way Once states were created justice became anessential prerogative of suzerainty For example in ancient Egypt theholder of suzerainty was the Farrow and justice was made in his name

An essential role in the development of the concept of justice wasplayed by the ancient Greek civilization Historical documents prove thefact that justice was an issue of great concern of the ancient worldAccording to the ancient Romans justice strengthens the suzerain powerof the state and therefore it must be entirely free as there is nothing morefrightful than a corrupted justice act justice must be complete as it cannever stop halfway to pursuing its goal justice must be fast becauseslowing it down can be considered to be a form of refusal

In ancient Greece and ancient Rome justice was both public andprivate Public justice served as a defender of the collectivities whileprivate justice defended the interests of private entities Until the creationof the first republics the juridical power lay in the hands of the king thenit was transferred to ambassadors and it eventually became theprerogative of praetors The magistracy began to evolve with the creationof written law

During the period states were organized in republics the juridicalpower was divided between magistrates and people councils This waythe Romans and the Greeks were invested with the power to determinethe circumstances of the events brought to trial as well as to prosecute thefelons


331

The medieval times outline a juridical system dominated by therules of the inquisition The inquisition demanded the trials to be keptsecret and formal evidence to be used during trials as well as evidenceobtained through torture The deeds were interpreted according to thecanonical law The judges obtained the confession of the felon by everypossible means as a confession was believed to be the most importanttype of evidence

In the despotic states void of any laws the judge is both the creatorand interpreter of laws and equity

Montesquieu was one of the French Renaissance exponents whostood against the juridical methods of the inquisition According to himthe justice of the inquisition contradicts the juridical order as in amonarchy it only creates traitors in a republic it only erases the honestyof people and in a despotic state it is just as destructive as the state itself

Regarding the evolution of justice as one of the functions of thestate Montesquieu stated that in a despotic state the king is able to trialmisdemeanors on his own yet he cannot act as a judge in a monarchy In atrue monarchy the king is on the side of the prosecutors Were he to actalone he would be both a judge and a part of the trial

The concept regarding the independence of the juridical powerbecame viable after the French revolution in 1789 The documents issuedafter the revolution mentioned the prerogatives of the juridical powerprerogatives that were later included in most of the democratic statesrsquoconstitutions

According to Montesquieu justice must be able to dispose of threeinseparable elements being granted power from the state beingindependent from political views and being professional At the sametime Montesquieu also states that judges must be vested with the sameamount of power as the parties of the trial so that the parties might notfeel dominated

Although Montesquieursquos theory on the separation of the juridicalpower from the other powers of the state meets several practical obstaclesso far there have not been found any better alternatives This would be thereason why all the constitutions follow the idea of this theory and anycontradiction of Montesquieursquos theory does nothing else than confirm it

While acting in the populationrsquos best interest the state must ensurethe fact that same activities are carried out effectively and repeatedly byspecialized bodies respecting strict well-established norms and methodsThese activities are grouped by several functions of the state whoseanalysis can only be made through two specific criteria the formal and thematerial ones

The material criterion concerns the contents and nature of theactivity regarded as the substance of the statersquos function Although highly


332

criticized it is a criterion of great interest In order to meet the generalneeds certain goals are established as well as the necessary means ofreaching them The effectiveness criteria require the grouping of severalactivities in certain functions These activities consist of juridical rights andobligations present a certain degree of specificity and regard certaincharacteristics require a certain organization degree of effectivenessspecial procedure special enforcement organs etc

Therefore the legislative activity requires a specific content andnature the activity of elaborating laws having to follow certain rules andregulations

Another content and another nature is given by the organizingactivity of enforcing the provisions of the law by the bodies of the publicadministration The very same thing can be mentioned by the juridicalactivity whose specificity lies in the principles of civil commercialadministrative fiscal and labor disputes as well as in the application ofthe criminal dispositions From the very same point of view the externaleconomic and other activities of the state can be distinguished

According to some authors the state is supposed to have threefunctions a) the legislative function b) the executive or administrativefunction and c) the jurisdictional function According to others the statehas four functions legislative executive or governmental administrativeand juridical No matter which of the two hypotheses may be correct theonly function of concern in this matter is the jurisdictional or juridical one

A state governed by the rule of law cannot exist without thejurisdictional function as the lack of true justice only leads to injustice4 Ifa normal social life must take place as per the provisions of theConstitution and enforceable laws there must also be a function andenforcement bodies meant to apply the necessary corrections and restorethe true nature of law and order

This jurisdictional function of the state is entrusted to severalimpartial and independent authorities such as the Constitutional Courtsand regular courts The act of justice can only be carried out by a neutralthird party as nobody should seek his or her justice because in such caseonly the strongest people would be right in the causes they fight for Thisis the reason why justice must be made by neutral bodies and be grantedto the same extent to both the weak and the strong

Conceived as a function which is to be carried out impartially andindependently justice managed to impose itself as a reality people havefaith in and trust it will protect them wherever their rights and legitimate

4 I Muraru Constitutional Right and Political Institutions Actami Publishing House

Bucharest 1997 p 459


333

interests are5 Fiat justitia pereat mundus (justice is to follow its course evenif not everybody benefits from it) is the favorite motto of the juridical fieldIts significance resembles to a certain extent the divine and absolutepower of God revealing itself in any conditions even in the eventuality ofmaterial loss and in the same way the judge assigned to solve a certaindispute or case must carry out his duties in the best possible way in spiteof every obstacle6

The jurisdictions generally regard the conflicts between moralentities between moral entities and civil legal entities or between moralentities and public authorities The disputes are solved during trialsfollowing certain rules and laws The judge seeking to find the truth mustfight for the right cause in order to identify the situation where the lawwas broken the victims the causality the responsibility and the personsresponsible In order for justice to be able to carry out its mission it mustfollow a certain organization and certain principles The organization ofjustice is made on jurisdiction degrees allowing for a better error controlThese jurisdiction degrees allow ensure the frame for trials and appeals asa possibility of righting the wrong re-assessing verdicts and re-examiningthe evidence

All in all the necessity of an independent juridical power is crucialfor every state and this is the result of many past confrontations Thestatersquos function through which justice is exerted can be considered to bethe result of a long-lasting battle and abandoning it would also meanabandoning a fight where victory has paid a far greater price than itprobably should have

5 I Muraru op cit p 4586 Ioan Muraru Simina Tănăsescu opcit pag 586

The Scientific CommitteeHonorary Chairmen

PhD Professor Viorel MIcircNZURector of the ldquoDunărea de Josrdquo University of Galaţi

PhD Professor Stefano PIVATORector of the University of Urbino ldquoCarlo Bordquo Italy

PhD Professor Andrei POPARector of the University ldquoBogdan Petriceicu Hasdeurdquo Cahul Moldavia

PhD Professor Jerzy Marian KopaniaRector of the Stanislaw Staszic College of Public administration in Białystok Poland

MembersPhD George ANTONIU (Romania)PhD Massimo CIAMBOTTI (Italy)PhD Luminiţa Daniela CONSTANTIN (Romania)PhD Piotr SITNIEWSKI (Poland)PhD Nicolaie VOLONCIU (Romania)PhD Giorgio CALCAGNINI (Italy)PhD Alexandru BOROI (Romania)PhD Andreas P CORNETT (Denmark)PhD Dana TOFAN (Romania)PhD Robert SZCZEPANKOWSKI (Poland)PhD Luca IAMANDI (Romania)PhD Agnieszka BITKOWSKA (Poland)PhD Alexandru ŢICLEA (Romania)PhD Pierre CHABAL (France)PhD Nicolae DURĂ (Romania)PhD Irena SZAROWSKA (Czech Republic)PhD Petre BUNECI (Romania)PhD Giorgios CHRISTONAKIS (Greece)PhD Silvia Lucia CRISTEA (Romania)PhD Fabio Musso (Italy)PhD Dan DROSU-ŞAGUNA (Romania)PhD Valentina CORNEA (Republic of Moldavia)PhD Eleftherios THALASSINOS (Greece)PhD Sergiu CORNEA (Republic of Moldavia)PhD Emilian STANCU (Romania)PhD Claude BROUDO (France)PhD Tonino PENCARELLI (Italy)PhD Dan LUPAŞCU (Romania)PhD Daniel BUDA (Romania)PhD Nicoleta DIACONU (Romania)PhD Răducan OPREA (Romania)PhD Romeo Victor IONESCU (Romania)PhD Violeta PUŞCAŞU (Romania)PhD Florin TUDOR (Romania)

Organizing CommitteePhD Răducan OPREA (Romania)PhD Romeo Victor IONESCU (Romania)PhD Ioan APOSTU (Romania)PhD Violeta PUŞCAŞU (Romania)PhD Florin TUDOR (Romania)PhD Neculina CHEBAC (Romania)PhD Liviu Bogdan CIUCĂ (Romania)

Volume coordinatorPhD Florin Tudor


SUMMARY

LAW SECTION



LAW

SECTION


9


Răducan OPREA














10












11










Form of acceptance





12


Date of acceptance






Refusal to accept






13


References



note


14


15


Petre BUNECI












16












17





















18









19












20












21








22










23















24


References












25


Nicolae DURĂ










26













27











28














29















30







31








32












33








34











35







36









37








1990 p 55


38







45 Ibidem


39








XXXIV n 6


40













41












42










43












Banat I (1990) no 3-4 p 58-79


44











45













46











47














48










49


Ioan APOSTU

Resume





Fiducia






50






Subiectele fiduciei






51













52













53










54


55


ECONOMIQUE

Silvia CRISTEA

Resume








avril 2008


56















57










58















59













60











61










62












63






Conclusions






64









65







66


67


Gheorghe IVAN










68










69















70







status






71










72







73
















74














75













76










77








78

Conclusions





Bibliography








79


Romulus MOREGA














80











81





82








83







84





85




References







86


87












88













89














90












91








92


CURRENT LEGISLATION






difference in price


93









94












95










96



CONCLUSIONS





97


Claudia ANDRIŢOI






1 INTRODUCTION





98










99















100








101











102









103





CONCLUSIONS




104






REFERENCES





105















106


107



Oana GĂLĂŢEANU











108












109








110










The Parliament has


111








112






113




Conclusions



114





References





115















116









117














118













119








120



REFERENCES










3 Opcit pp 248-249


121


Nadia Elena DODESCU











122







and organized crime


123






124









125








126












127










128








129














130









131










132






Bibliography





133





134


135


Patrik LAZĂR













Asian state


136











137









138

























139












140








p467


141









1 Definition










142

















143




a Negotiation













144


b Arbitration













145



c Expertise


d Transaction













146





f Conciliation





Code


147














148









149


BIBLIOGRAPHY











150


151














152












153












154











155





Finland Russia 1340

Germany Poland 454




Austria Hungary 356


Italy Slovenia 232

Total 4095 km



Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161




Poland Belarus 418


156

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136

Hungary Romania 448

Hungary Serbia 174

Hungary Croatia 344


Total 6220 km




Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161

Latvia Belarus 651



Poland Belarus 418

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136


649

Romania Moldova 681


157

Bulgaria Turkey 259

Greece Turkey 215

Greece Albania 282



Bulgaria Serbia 341

Romania Serbia 546

Total 7958 km









158





France 4720

Slovenia 48

Italy 7600



Cyprus 293

Total 34109






159











160












March 2009


161











162






REFERENCES






163


















164










165














263


166












167












168










55 1997 p 309


169












170











171









172









March 2010


173










174











175












176





REFERENCES






177

















178









179


Alexandru BLEOANCĂ












Romanian law


180










181












httpwwwmcsiro


182

A Negotiation















183









par1 letter a)


184



D Litigation







185










186


187


Adriana TUDORACHE

Abstract













188














189












190










191











192












193



Bibliografie

Autori romacircni








1996

Autori străini


Internet


httpwwwascldorg



194




195













196












197









198









199










200










201


Conclusions





202


203


CONVENTION

Gina IGNAT












204










205









206











207











208











2001


209











210










211










24330091992


212










213












214




Bibliography








215








216


217














218











219









220






221


Nora Andreea DAGHIE

Resume













222









223








224










225














226











227








228


Bibliography










229














230










231









edition] opcit p267


232














233








234












235


Bibliography








236


237



Resume












238









239








240










241














242











243








244


Bibliography










245


Monica BUZEA

Resume









246










Bolognia 2008 p 1-2


247




248


249




Resume









250











251








pages 366-367


252










253














254



Bibligraphie







255






52010


256


257


LA FAUTE

Monica BUZEA

Resume










258













259







260


261

















262













263












264










265




Bibliography



266


267



Carmen MOLDOVAN











268















269














270













271










272













273











274









275










276









277









278

Conclusions



REFERENCES











279









280


281












mireladobrilauaicro


282









283







284









285









286









287








288






289







290







291




REFERENCES






292



















293











294


295


Bogdan BUNECI










296










297











250


298









REFERENCES



299






300


301



















302














52


303










cit supra p 151-159


304













305













306













307









Bibliography






308


309


Prence MIRGEN










310








311




11 Insult







312











313












314





12 Calumny





315









316










the dignity


317









318











319










320











321







322










323









324




References











325




















326


327


Marin POPESCU










328











329








330









331











332











333






SUMMARY

LAW SECTION



LAW

SECTION


9


Răducan OPREA














10












11










Form of acceptance





12


Date of acceptance






Refusal to accept






13


References



note


14


15


Petre BUNECI












16












17





















18









19












20












21








22










23















24


References












25


Nicolae DURĂ










26













27











28














29















30







31








32












33








34











35







36









37








1990 p 55


38







45 Ibidem


39








XXXIV n 6


40













41












42










43












Banat I (1990) no 3-4 p 58-79


44











45













46











47














48










49


Ioan APOSTU

Resume





Fiducia






50






Subiectele fiduciei






51













52













53










54


55


ECONOMIQUE

Silvia CRISTEA

Resume








avril 2008


56















57










58















59













60











61










62












63






Conclusions






64









65







66


67


Gheorghe IVAN










68










69















70







status






71










72







73
















74














75













76










77








78

Conclusions





Bibliography








79


Romulus MOREGA














80











81





82








83







84





85




References







86


87












88













89














90












91








92


CURRENT LEGISLATION






difference in price


93









94












95










96



CONCLUSIONS





97


Claudia ANDRIŢOI






1 INTRODUCTION





98










99















100








101











102









103





CONCLUSIONS




104






REFERENCES





105















106


107



Oana GĂLĂŢEANU











108












109








110










The Parliament has


111








112






113




Conclusions



114





References





115















116









117














118













119








120



REFERENCES










3 Opcit pp 248-249


121


Nadia Elena DODESCU











122







and organized crime


123






124









125








126












127










128








129














130









131










132






Bibliography





133





134


135


Patrik LAZĂR













Asian state


136











137









138

























139












140








p467


141









1 Definition










142

















143




a Negotiation













144


b Arbitration













145



c Expertise


d Transaction













146





f Conciliation





Code


147














148









149


BIBLIOGRAPHY











150


151














152












153












154











155





Finland Russia 1340

Germany Poland 454




Austria Hungary 356


Italy Slovenia 232

Total 4095 km



Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161




Poland Belarus 418


156

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136

Hungary Romania 448

Hungary Serbia 174

Hungary Croatia 344


Total 6220 km




Finland Russia 1340

Estonia Russia 455

Latvia Russia 276

Latvia Belarus 161

Latvia Belarus 651



Poland Belarus 418

Poland Ukraine 535

Slovakia Ukraine 98

Hungary Ukraine 136


649

Romania Moldova 681


157

Bulgaria Turkey 259

Greece Turkey 215

Greece Albania 282



Bulgaria Serbia 341

Romania Serbia 546

Total 7958 km









158





France 4720

Slovenia 48

Italy 7600



Cyprus 293

Total 34109






159











160












March 2009


161











162






REFERENCES






163


















164










165














263


166












167












168










55 1997 p 309


169












170











171









172









March 2010


173










174











175












176





REFERENCES






177

















178









179


Alexandru BLEOANCĂ












Romanian law


180










181












httpwwwmcsiro


182

A Negotiation















183









par1 letter a)


184



D Litigation







185










186


187


Adriana TUDORACHE

Abstract













188














189












190










191











192












193



Bibliografie

Autori romacircni








1996

Autori străini


Internet


httpwwwascldorg



194




195













196












197









198









199










200










201


Conclusions





202


203


CONVENTION

Gina IGNAT












204










205









206











207











208











2001


209











210










211










24330091992


212










213












214




Bibliography








215








216


217














218











219









220






221


Nora Andreea DAGHIE

Resume













222









223








224










225














226











227








228


Bibliography










229














230










231









edition] opcit p267


232














233








234












235


Bibliography








236


237



Resume












238









239








240










241














242











243








244


Bibliography










245


Monica BUZEA

Resume









246










Bolognia 2008 p 1-2


247




248


249




Resume









250











251








pages 366-367


252










253














254



Bibligraphie







255






52010


256


257


LA FAUTE

Monica BUZEA

Resume










258













259







260


261

















262













263












264










265




Bibliography



266


267



Carmen MOLDOVAN











268















269














270













271










272













273











274









275










276









277









278

Conclusions



REFERENCES











279









280


281












mireladobrilauaicro


282









283







284









285









286









287








288






289







290







291




REFERENCES






292



















293











294


295


Bogdan BUNECI










296










297











250


298









REFERENCES



299






300


301



















302














52


303










cit supra p 151-159


304













305













306













307









Bibliography






308


309


Prence MIRGEN










310








311




11 Insult







312











313












314





12 Calumny





315









316










the dignity


317









318











319










320











321







322










323









324




References











325




















326


327


Marin POPESCU










328











329








330









331











332











333





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