Fiat Iustitia

10-20

Authors: Marius Andreescu

A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state’s institutions. The legal behavior of the state’s institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen.The application and nonobservance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state’s functions assumes the discretionary powers with which the state’s authorities are invested, or otherwise said the ‘right of appreciation” of the authorities regarding the moment of adopting, the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the de jure state. In this study we propose to analyze the concept of discretionary power, respectively the power excess, having as a guidance the legislation, jurisprudence and doctrine in the matter.At the same time, we would like to identify the most important criteria that will allow the user, regardless that he is or not an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. Within this context, we appreciate that the principle of proportionality represents such a criteria. The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjusting the measures ordered by the state’s authorities to the situation in fact, respectively to the purpose for which they have been conceived. In our study we choose theoretical and jurisprudence arguments according to which the principle of proportionality can procedurally be determined and used to delimit the discretionary power and power abuse.

28-40

Authors: Mircea Criste

In public law, and specifically as far as constitutional law is concerned, the liability of those who hold a seat of power is incurred taking into account certain distinctive features derived from the interference with the political liability of those individuals. On the other hand, it should be noted that the regulation of this form of liability is concerned not so much with the conditions of accountability, but rather with the circumstances of nonaccountability. It is a form of liability closely linked to the mandate, which aims to protect a public authority or its representative from those actions likely to disrupt the proper exercise of a public service. The analysis will focus upon the conditions under which is incurred the liability of members of Parliament and ministers in the Romanian constitutional system, underlying the fact that its ultimate goal is protecting the exercise of a mandate and of a state function.

48-57

Authors: Anna Maria Cun (Neagoe)

A disability legislation based on human rights acts as a ”civilizing factor" in any society that respects diversity and aims to create a society that is really. The adoption and entry into force of the UN Convention on the Rights of Persons with Disabilities marks a profound change in the existing approaches on disability. In the preamble of the document is recognized that "disability is an evolving concept and that results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others" (lit. e). It thus advances legal reform on disability directly involving people with disabilities and using the human rights, the basic message being that people with disabilities should be regarded as "subject" that deserves equal respect and human rights. Public policies must take into account the obligations arising under the paradigm shift from the medical to the social approach based on human rights and the principles and general obligations, provided the CRPD.

65-77

Authors: Dragana Petrović, Gordana Gasmi

Misuse of narcotics is more and more our reality and its explicit tendency is increasingly destructive against the existing state of affairs. More precisely, negative consequences of use of narcotics as well as of crimes connected to them, and particularly the organized crime, are spreading around the globe assuming disastrous dimensions. In spite of the fact that international community has reacted to the situation with a determined strategy applying coordinated instruments in the struggle against the misuse of narcotics, the negative trend still continues. There is no doubt that states invest considerable efforts and enormous resources to put under control this negative social phenomenon. Approaches in that respect differ from country to country due to numerous and variable factors (economic, social, cultural…). The question is:repressive or liberal methods? Special attention in the present paper is paid to the explanation, i.e. monitoring and evaluation of appropriate modalities in preventing and suppressing that negative phenomenon. The optics used are, in a way, the September 2009 Law on amending the Criminal Law, and several more important concept innovations (or those implicitly based on a theoretical conception) as well as criticism of certain new incriminations specified in that Law.

85-100

Authors: Cristian Ionescu, Andreea Alexe

This study aims to analyze the political regime established by the Constitution from 1991, from constitutional and politological point of view. The authors state that there isnot only a single model of semi-presidential system – the one chosen by the Constituent Assembly in 1991 but each country that has experienced this type of regime has tried to adapt it to its traditions and to its political and social-economic background. The authors emphasize on the fundamental features of the semi-presidential regime, and considering this theoretical basis, they analyze the institutional relations between the Parliament, the President of Romania and the Government. The Constitution of 1991 set up these relationships, so that the president of the republic gains the role of balance between the Legislature and the Government, considering the fact that the Parliament is the sole legislative authority and the Government carries out domestic and foreign policy of the country. The authors show that despite the constitutional provisions, more than often the institutional relations between the Parliament, the President of Romania and the Government have deteriorated, turning the balance of power in favor of the Government. Due to this imbalance in exercising power, the semi-presidential regime lost the ability to ensure a democratic government. Therefore, after the parliamentary elections in 2012, a legislative procedure has been initiated for amending the Constitution, in order to reconfigure the constitutional relations between the Legislative and Executive. Throughout this study the authors analyze the legislative proposal to amend the Constitution, which was published in the Official Gazette no 100 from 10th February 2014, and contains provisions which are likely to diminish the constitutional powers of the President of Romania and strengthen the Parliament's prerogatives.

105-119

Authors: Irina Moroianu Zlătescu, Monna-Lisa Magdo Belu

The Constitution of 1991 legislated one fundamental value, legally protected at international and national levels: human personality. The Constitution adopted in 1991 under national referendum solemnly provided that Romania was a democratic and social state governed by the rule of law, where, among other things, the "free development of human personality" was a supreme value, guaranteed by the state. The constitutional statement had a double significance: it provided Romanian citizens with a broad sphere of action to develop their personalities, taken in a complex sense: from cultural, professional, linguistic aspects down to social economic,political, religious, etc. ones. At the same time, it imposed on the country's governing system – Parliament, Government, Head of State, legal courts, public administration authorities – the obligation to provide the structural and functional framework for a genuine development of each individual's personality. Under the Act for the Revision of the Constitution, adopted in 2003, human personality has been reconstitutionalized being referred to the spirit of the Romanian people's democratic traditions and of the Revolution of 1989. While constitutionally reconfiguring human personality, the derived Constituent Assembly has linked the juridical contents of human personality to the Romanian constitutional traditions. It is not a mere institutional undertaking, but also, and primarily so, a theoretical applicative one, if we are to also take into account the fact that the new Civil Code has attached particular importance to the personality related rights, seen as civil rights. The new constitutional statement, to be found under article 1 paragraph (3) of the Fundamental Act, has acquired the value of a constitutional principle, legitimated by a long constitutional tradition. This was also the intention of the constituent law maker of 1991, reconfirmed in 2003. In consonance with that, the Headnote of the new Civil Code stipulates that the purpose of provisions laid down in Book I ("On persons") is to acknowledge, protect and defend, equally and effectively, the civil rights and freedoms of natural persons, in consonance with public order and public morals. In this paper, the author attempts to analyze, from a theoretical point of view, the constitutional significance of the free development of human personality.

127-135

Authors: Ancuţa Gianina Opre

The importance of the right to personal data protection at European level, as a fundamental right, is recognized by the Art. 16 of the Treaty on the Functioning of the European Union and of the Art. 8 of the Charter of Fundamental Rights of the European Union, following the entry into force of the Lisbon Treaty. The Convention adopted by the Council of Europe in 1981 for the protection of individuals with regard to automatic processing of personal data, considered as the first legal instrument on the protection of personal data, establishes a number of specific guarantees concerning the rights which are recognized in this context to the individuals whose personal details are being processed. Thereafter, the provisions of this international instrument have been adopted and developed at national level and at EU level, with the passing of Directive no. 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Thus, the right to information, the right to access, the right to rectification, the right not to be subjected to an automatic individual decision, the right to object and the right to file a complaint to the national supervisory authorities became legally binding rights. The right to information translates into the correlative obligation of the controller to provide the subject with details related to the processing of his/her personal data, including the aspect of how to exercise other individual rights. All these rights contribute to the transparency required to perform the processing of personal data and thus to guarantee the right to privacy and the right to personal data protection. In order to ensure effective implementation of these rights in Romania was established, according to the European model, the National Supervisory Authority for Personal Data Processing, with the role of defender of the right to privacy of individuals who may be affected by improper processing of personal data. This paper will analyze on the one hand, the general legal regime of the rights of data subjects, and on the other hand, the way in which the supervisory authority contributes to ensuring transparency of the personal data processing, by virtue of the exercise of its statutory powers, related to control and public awareness competencies.

142-150

Authors: Liana Iulia Paul, Mariana Crişan

In this paper we have highlighted the main aspects of illegal act as a condition of tort liability, both from the new regulation’s and the old Civil Code’s perspective. We have also exposed practical relevant aspects concerning the need of paying the court costs and also the difference which surpasses the limit imposed to the insurer by law. From this point of view we may notice the possibility of having an insurance of court costs. Even if it isn’t a sensu stricto insurance it is important because of its connection to the third parties’ liability. This is a new type of insurance. Business entities are subjects of different risks which hinds the normal achievement of their objectives.The protection against damages produced by those risks represents the subject of the risk’s management inside a company, going from prevention to limitation of the risk’s consequences which have already been produced.

159-165

Authors: Oana Racolţa

This survey intends to analyse the meaning of “public function” notion, as well as of assimilate concepts or concepts legally related to this notion, considering the legislative evolution lately occurred in Romania, both in penal law field, where the setting of the New Penal Code resulted in major amendments, and in administrative law field, where this notion is particularly and differently featured. I also put forward the membership of Romanian legal professions to the “public function” field, which is, from the legal liability point of view, important for penal data providing this quality of active or even passive subject, representing in the same time are quisite for legal liability. The difference between previous regulations and the New Penal Code is obvious, currently the regulation norm being more complex than formerly. The survey also presents the overview of European law on the “public function” notion, as well as the comparative review between this law and the Romanian internal regulations.

175-189

Authors: Ion Rusu

The criticism on establishing a unicameral parliament that the Constitutional Court has accepted is based on the historical tradition of a bicameral parliament, on the operation of the principle of balance of powers in a constitutional state which is stipulated in art. 1 paragraph 4 of the Constitution and on the functioning of the bicameralism in the comparative law. The addition brought by art. 85 which states: "The proposal of the Prime Minister on the revocation and appointment of members of the Government can be done only after prior consultation with the President" is unconstitutional as the Prime Minister reports only to the Parliament that gave him its vote of confidence. If he reported to the President, it would be necessary to consult him first. The Court in its jurisprudence affirms the need to respect the principle of separation and balance of powers, by declaring the constitutionality of the amendment, reverses this balance, giving the President strong powers and does not take note of the art. 80 paragraph 2 on the President’s function of mediation between the state powers as well as between the state and society. The amendment of art. 95 which reads: "For having committed serious acts infringing the Constitution, the President of Romania may be suspended from office by the Parliament, by a majority vote of its members, after obtaining the mandatory approval of the Constitutional Court on the seriousness of the offenses and the violation of the Constitution" is unconstitutional because: it prejudices the principle of separation and balance of powers between the Parliament and the President if the Parliament is restricted in its right of suspension by the opinionof the Court; instead of ensuring the supremacy of the Constitution, the Court stands above the Parliament through its opinion, although even after the proposed revision The Parliament still remains the supreme representative body of the Romanian people andthe sole legislative authority of the country (article 61 paragraph 1); it is inadmissible that an authority appointed by the Parliament and the President,which has indirect representativeness, may be able to censor the political activity of the Parliament and thus has the political responsibility of the President blocked.

222-228

Authors: Isabela Stancea

In the Romanian constitutional system, the President of Romania belongs to the executive power, along with the Government, institutionalizing thus the dualist model of organizing the executive power. Therefore, it results that the two state authorities that are responsible, according to the Constitution, for the executive power in a balanced manner, are the President of Romania and the Government. However, unlike the government, the President’s executive role is more attenuated, the other dimensions of its constitutional status being more important. In our scientific approach, we have analyzed only the institution of the head of the State as part of the executive power and we have emphasized the need to adopt a law that would give more freedom of action and several prerogatives to the President, even the right of legislative initiative. In this normative document, we consider that we should change the conditions that must be fulfilled by a candidate for the position of President of Romania, meaning the introduction of the condition that he should have a degree in law, taking into consideration that, by virtue of his prerogatives, he participates in the legislative process through the promulgation of the laws received from the Parliament. We have analyzed the institution of the President of Romania, highlighting its dependence on the Prime Minister, but also that in all he undertakes, the President is supervised or collaborates with other institutions.

240-243

Authors: Dan Top, Lavinia Savu

In Romania the standard retirement age for women will increase from 63 years, as it is now, at the age of 65, according to the intention of amending Law no. 263/2010 on the unitary pension system. Such an extent, consequence ofthe recommendation of the European Commission is considered to be able to provide adequate and sustainable pensions in the long term through active participation in the labor market of women and men throughout life. The entry into force of these provisions will gradually equalize the retirement age for women and men at 65, beginning with 2033, these provisions will be applicable to women born in the years 1969 and 1979, who will retire at the age 64, and since 2035 for women born in 1971, who will retire at age 65. Such a perspective naturally raises the question whether it is right for women to retire at the same age as men. Arguments in favor of or against such a solution should be analyzed not only in terms of economic or legal but also socially, which is what this study aims.

250-257

Authors: Alexandru Virgil Voicu, Eugen Gheorghe Crişan

In contemporary society sport is considered a notable socio-economic,but also a normative phenomenon. However, the fulfilment of the rule of law in a constitutional state requires legal order – „namely the unity of law, effectively applied in the life of a community. In order for a legal system to work properly, it is necessary that all citizens obey the legal norms, and that all public officials regard these as the official standards of behaviour, following them rigorously” 1.It is well known that not all social phenomena are also juridical in nature – however, the legal regulation of Sport already coexists with other norms and institutions of Law and, of course, it is an object of the subsystem of the science of Sport (seen as a branch of the educational system and of scientific research). Our assertions are supported by the following: the criterion upon which we categorise this notable social phenomenon as juridical is its own legality, which is obviously reflected at the legislative level. This paper presents recent developments in the phenomenon of criminality in Romanian football – sanctioned by Romanian Law Courts – a real step forward in the application of Law in the field of Sport.