The Knowledge-Based Organization

“NICOLAE BĂLCESCU” LAND FORCES ACADEMY

TTHHEE KKNNOOWWLLEEDDGGEE--BBAASSEEDD OORRGGAANNIIZZAATTIIOONN

THE 14TH INTERNATIONAL CONFERENCE

LAW AND PUBLIC ADMINISTRATION CONFERENCE PROCEEDINGS 6

27-29 NOVEMBER 2008

“NICOLAE BĂLCESCU” LAND FORCES ACADEMY PUBLISHING HOUSE SIBIU, 2008

Scientific advisors:

Prof. Vlad Barbu, PhD Prof. Ivanoff Ivan Vasile, PhD Assoc.Prof. Mocanu Livia, PhD Tarnu Lucian, PhD

“Nicolae Bălcescu” Land Forces Academy Address: 3-5 Revoluţiei Street, Sibiu Tel.: 0269/432990, Fax: 0269/215554 E-mail: [email protected] E-mail: [email protected] web: www.armyacademy.ro web: www.armyacademy.ro/editura

The authors take full responsibility of the content of their articles.

ISSN 1843 – 6722

LAW AND PUBLIC ADMINISTRATION

TABLE OF CONTENS

Public Administration The Regionalization. The Concept and It’s Evolution in the Member States of the European Union, Dobrea Antonel Marius, Academy of Sciences of the Republic of Moldova …………………………………………………………………………………….... 7 The County Councils Formation, Prof. Ivanoff Ivan Vasile, PhD, “Valahia” University, Târgovişte …………………………………………………………………………………… 19 Preventive and Reparatory Actions Instituted by the G.U.O. No. 68/2007 Regarding the Environmental Liability Related to Preventing and Repairing Damages against the Environment, Assoc.Prof. Mocanu Livia, PhD, “Valahia” University of Târgovişte ……... 26 Trends and Priorities of the Public Administration Management, Assoc.Prof. Moldovan Iosif, PhD, “Lucian Blaga” University, Sibiu ………………………………….. 32 Europeanization Challenges and Regional Development, Assoc.Prof. Nedelea Alexandru, PhD, Asst.Prof. Nedelea Marilena-Oana, PhD, “Ştefan cel Mare” University, Suceava ……………………………………………………………………………….…….. 43 Considerations on the Need and Desirability of Change of the Legal Framework Regarding the Protection and Promotion of the Rights of Children, Assoc.Prof. Nicola Iordan, PhD, “Lucian Blaga” University, Sibiu …………………………………..……….. 52 Combating Corruption and Promoting Ethics in the Public Service, Assoc.Prof. Voicu Adela, PhD, “Spiru Haret” University, Constanţa ………………………………………….. 61 Reviewing the Legality of Administrative Acts, Jurisdictional Mechanism for Meeting the Requirements of the Rule of Law, Asst.Prof. Ionescu Steluţa, PhD, “Valahia” University of Târgovişte …………………………………………………………………….………….. 69 Aspects Regarding the Right of Information as Settled by Art. 31 from Romanian Constitution and by Law No. 544 from 2001 Regarding Free Access of Any Information of Public Interest, Asst.Prof. Şaramet Oana, “Transilvania” University, Braşov …....……… 78 Restrictions Brought to the Right to Pension – as a Component of the Right to Decent Living, Asst.Prof. Şaramet Oana, TA Bianov Anamaria, “Transilvania” University, Braşov ………... 84 The Mayor’s Documents, TA Apostolache Mihai-Cristian, “Petroleum-Gas” University, Ploieşti …………………………………………………………..……………… 92 Arguments For and Against the Outsourcing of the Public Sector Services, TA Cîndea Diana Marieta, “Lucian Blaga” University, Sibiu ………………………………………… 97 Administrative Control Regulated by Law 554/2004 on Administrative Law within the European Structures, TA Dina Paulina, “Dimitrie Cantemir” Christian University, Constanţa ……………………………………………………………………………….…………….. 105 3 Grounds for Special Exemptions from Liability in Respect International Rail Transport of Goods, TA Neagu Emilian, Asst.Prof. Petria Licuţia, PhD “Constantin Brâncoveanu” University, Piteşti ……………………………………………………………..…………… 113 International Carriage of Goods by Rail Contract’s Enclosure, TA Neagu Emilian, “Constantin Brâncoveanu” University, Piteşti …………………………………………….. 119 Aspects Concerning the Urban Administration Evolution of Bacău County (1900-1918), TA Popa Alin, University of Bacău ……………………………………………..……….. 124 Parlamentary and Urban Ellections at the Beginning of the XX Century in Bacău County, TA Popa Alin, University of Bacău ………………………………………..……. 128 Institutional Framework regarding Public Oversight as Provide by the Government Emergency Ordinance No. 90/2008 on Statutory Audit of Annual Accounts and Consolidated Accounts, TA Popa Ionela, TA Pietraru Alina, “Constantin Brâncoveanu” University, Piteşti …………………………………………….………………………….…………….. 132 The Public Utility Cause in Case of Expropriation, TA Stoian Alexandru, “Nicolae Bălcescu” Land Forces Academy, Sibiu …………………………………………………... 139 The Comparative Analysis of Intercommunal Cooperation Communities from France and Romania, Cugleşan Natalia, “Babeş-Bolyai” University, Cluj-Napoca ……..……... 146 Payment According to the Fiscal Procedure Code, Postolache Rada, “Valahia” University, Târgovişte ……………………………………………………………………... 154 Aspects Regarding the Public Procurement System in Romania, Brat Viorel, Dragosin Lucian-Ilie, M.U. 01261 Piteşti …………..……………………………………………… 163

Juridical Sciences Comparison between Internal and European Regulation concerning ‘Employee Detaching’, Prof. Vlad Barbu, PhD, Asst.Prof. Cernat Cosmin, PhD, “Alexandru Ioan Cuza” Police Academy, Bucharest ..………………………………………………………. 169 Underground Economy – Research Object for Criminology, Assoc.Prof. David Mihail, PhD, “Spiru Haret” University, Constanţa …………………………………………..……. 176 The Ecological Criterion – a Factor Rendering Fight Means Illegal, Assoc.Prof. Dusca Anca Ileana, PhD, Asst.Prof. Popa Nistorescu Cristina, PhD, University of Craiova ……... 187 The Legal Age of Marriage, Assoc.Prof. Grădinaru Nicolae, PhD, “Constantin Brâncoveanu” University, Piteşti ………………………………………………………….. 194 A New Procedure to Prevent the Delay in Payment Duties Ensuing from Sales Contracts, Assoc.Prof. Grădinaru Nicolae, PhD, “Constantin Brâncoveanu” University, Piteşti ………………………………………………………………………………………. 200 Techniques for Harmonizing the Principles of Legal Interpretation in the Positive Legal Order, Asst.Prof. Andriţoi Claudia, Ec. Paulescu Ioan Anton, “Eftimie Murgu” University, Reşiţa ……………………………………………………………………………….……… 209 The Procedure of Cross-Border Mergers of Trade Companies, Asst.Prof. Cebuc Maria-Iuliana, PhD “Constantin Brâncoveanu” University, Piteşti …………………….. 219 Shares of the State in order to Adjust the Demand for Jobs with Job Vacancies in the Labour Market and Prevent Lack of Qualified, Asst.Prof. Cernat Cosmin, PhD, Dragomir Ion, “Alexandru Ioan Cuza” Police Academy, Bucharest ………………………………… 227 4 Holograph Will within the Romanian and French Civilian Law a Comparative View, Asst.Prof. Genoiu Ilioara, PhD, Asst.Prof. Mastacan Olivian, PhD, “Valahia” University, Târgovişte …………………………………………………………………………………. 233 A New Vision of the Issues of Criminal Law, Asst.Prof. Ivan Gheorghe, PhD, University “Dunărea de Jos”, Galaţi …………………………………………………..….. 252 International Organizations in the Fight Against Organized Crime, Asst.Prof. Magherescu Delia, PhD, “Constantin Brâncuşi” University, Târgu Jiu …………………. 260 Adnotation about the European Court of Human Rights, Asst.Prof. Otovescu-Frăsie Cristina, PhD, University of Craiova …………………………………………………….. 268 Feminine Criminality, Asst.Prof. Stănescu Amelia, PhD, “Spiru Haret” University, Constanţa ………………………………………………………………………………….. 275 Integration of International Humanitarian Law into Military Education, Asst.Prof. Bodescu Alin, “Carol I” National Defence University, Bucharest ……………………….. 282 Aspects Regarding the Legal Regime of the Assets from Private Field, Asst.Prof. Ghencea Flavia, TA Ţigănescu Ana-Maria, “Spiru Haret” University, Constanţa ………. 290 The Value of Testimonials Proof in Roumanian Criminal Proceedings, Asst.Prof. Pocora Monica, “Danubius” University, Galaţi …………………………………………. 300 Theoretical and Practical Considerations regarding the Delimitation of Property Boundaries, Asst.Prof. Stoian Anca-Iulia, “Spiru Haret” University, Constanţa ………... 309 Recognition of Foreign Foundations in Romania, Asst.Prof. Topor Drumea Roxana, “Spiru Haret” University, Constanţa ………………………………………………………. 319 Legal Aspects of the Obligation to Grant Access to Ships in Distress at Sea, TA Adăscăliţei Oana PhD, Maritime University of Constanţa ………………………………. 324 Security and Facilitation Issues Related to the Carriage of Closed Cargo Transport Units and of Freight Containers Aboard Ships, TA Adăscăliţei Oana PhD, Maritime University of Constanţa …………………………………………………………………… 332 Aspects of Applying Communitarian Law by the Parliaments of Member States of the European Union, TA Apostolache Mihaela-Adina, “Petroleum-Gas” University, Ploieşti … 340 The Treaty of Lisbon and Extending the Role of National Parliaments, TA Apostolache Mihaela-Adina, “Petroleum-Gas” University, Ploieşti …………………………………... 348 The Romanian Commercial Venture, under Circumstances of Performing Activities which Imply International Road Transportation, TA Dumitrescu Aida Diana, University of Craiova ……………………………………………………………………………………. 355 Juridical Theory and Practical Concerning White-Collar Crime by Restriction of Rights in Romania, TA Dumitrescu Aida Diana, University of Craiova ……………………….. 360 The French Reform of the Right Filiation, TA Guţan Sabin, “Nicolae Bălcescu” Land Forces Academy, Sibiu ………………………………………………………….………… 366 The Increasing Threat of Money Laudering, TA Ionaş Diana, Jr.TA Ionaş Cristina, “Transilvania” University, Braşov ………………………………………………………… 370 Prostitution Between Offer and Request, TA Ionaş Diana, “Transilvania” University, Braşov ……………………………………………………………………………………... 374

5 Issues Regarding Judicial Co-operation Among European Member States in the Matters of Civil and Commercial Evidence, TA Matei Cătălina, TA Bularca Roxana, “Transilvania” University, Braşov …………………………………………………………………..…….. 382 Discussion Regarding the Probatory Aspect within the Action for Declaration of Title to Land, TA Tudor Andreea-Violeta, “Eftimie Murgu” University, Reşiţa ……………….. 390 The Role of the Civil Democratic Control in a Good Function of the Rule of Law, Bahrin Dorel, PhD, “Hyperion” University, Bucharest ………………………………….. 402 The Right to Free Movement, as a Right Stipulated by the Constitution. The Aspects of the Right of Free Movement in Today’s International Conditions, Tarnu Lucian, PhD, Sibiu County Police Inspectorate ………………………………………………………………... 411 The Immigrations in Romania in the Context of Adhering to the European Union, Tarnu Lucian, PhD, Sibiu County Police Inspectorate …………………………………... 422 Real Estates Intabulation – Juridical, Administrative and Technical Aspects, Legal adviser Apostol Cristian, Eng. Popescu Horia, Properties and Infrastructure Direction, Bucharest …………………………………………………………………………………... 432 International Political and Military Organizations as Subject of International Law, Covatariu Cosmina, M.U. 01961 Otopeni ……………………………………………….. 438 Problems of Modern Criminology, Goşa Dumitru, Sibiu County Police Inspectorate ……………………………………………………………………….…………………….. 444 The Medico-legal Interpretation in Case of Violent Deaths, Goşa Dumitru, Sibiu County Police Inspectorate ………………………………………………………………... 452 The Necessity of Drawing up the Sketch after the Examination of the Scene, Crişan Constantin Mircea, Alba County Police Inspectorate …………………………………… 464 The Banking Deposit of Funds. Identity, Postolache Rada, “Valahia” University, Târgovişte …………………………………………………………………………………. 468 The International Criminal Court, Iraq and the Game of Power, Merfu Oana, M.U 01042, Curtea de Argeş ……………………………………………………………..…….. 476 Opinions Concerning the Importance of Penalty’s Individualization, Meche Mirel, Gorj Lawyer Bar ………………………………………………………………………….…….. 484 The Influence of the European Convention to Protect Human Fundamental Rights and Liberties on Romanian Constitution, Boca Vasile, Turceni Energetic Complex Ltd., Tg. Jiu ………………………………………………………………………………….………….. 494 Means of Compensating the Victim of an Offence, Boca Vasile, Turceni Energetic Complex Ltd., Tg. Jiu ……………………………………………………………………... 502 The Practicing of the Individual Appeal Right Before the European Court of Human Rights, Stoian Mirela Alexandra, The Law Court of Târgu Jiu ……………………..….. 510

6 Knowledge Based Organization 2008 International Conference

THE REGIONALIZATION. THE CONCEPT AND IT’S EVOLUTION IN THE MEMBER STATES OF THE EUROPEAN UNION

Dobrea Antonel Marius

Academy of Sciences of the Republic of Moldova

Abstract At the moment, regionalization seems to be more and more a common feature for the changes related to the territorial rearrangement of the European states. It is often spoken about an Europe of the region. The region functions as an indirect agent of public authority but is difficult to take it as a common feature for all the regions because at this time there are two different concepts which help us define them.

Keywords: regionalization, region, concept, model

The present situation, tendencies and views in the member states of the European Union and of the aspirant ones Nowadays, regionalization seems to be more and more a common feature of the changes in the territorial organization of the european states. It is more and more spoken about a Europe of the regions, in which these function as an intermediate level of public authority. They can be organised but the common denominator is represented by the structural communitary politics destinated to the authorities of the public local administration. Althought the concept of the region taken as a political and administrative entity is assertively promoted in different european institutions, most of the states continue to remain organic ones.

Knowledge Based Organization 2008 International Conference

Longtime, Italy was the only european country in which the regions were foreseed by the Constitution. In other cases, for a period, the regions existed as instruments of the governments to share economic purposes. (E.G. France, Great Britain). During 70`, the issue called regionalization was a subject of public debate being followed by reforms or attempts of reforms in countries like: Belgium, Spain, France, Portugal and so on. The promotion of the politics regarding the regional development, around middle of the 70`, in the member states of the European Union, having the aim of correction and prevention the irregular regional development was a new push for the increasement of the aim and of the importance of the regions, as one of the main way of deepen the european integration. The politics of regional development efectively contributed to the building of a new institutional regional level, especially in those countries which have substantially beneficiated of the European Regional Development Fund.: Ireland, Portugal, Greece, Finland. The same politics which profoundly influenced the regionalism in Scotland and Wales, where institutional reforms were made in 1998. Although a large tendency for regionalization is being manifested in Europe, it is difficult for a common concept, for all the regions, to be defined. This is why, more the concept of regionalization than that of the region must be put to debate. Because of this, in many cases, it can be talked about regionalization without being created the second level of government representative for the political power. (even Romania has such a system) Currently, there are two different concepts by means of which the regions can be defined: a. The first concept is based on a pure descriptive definition of the regions: „The region is an entity which can be found immediately below the level of the central cabinet, owning political power, being represented by a selected council or by an association or organism composed at regional level and consisted of representatives of local authorities.” (this definition can be found in the General meeting of the european regions` status ). It can be applied to a large diversity of regional institutions: german lands, nederlands, french regions and the

Knowledge Based Organization 2008 International Conference new integer councils from England. b. The alternative definition to the first one is standard, much more restrictive, which the member states of the European Union were encouraged to embrace. This second concept blocks out the region from the geografical and institutional point of view, similar to the present spanish model. This option was chosen by the European Parliament at the time of the anactment of Communitary Chart of Regionalism. A resolution of the European Parliament, at 18 november 1998, impulsed the member states of the European Union to the regionalization of the internal structures.

Debates concerning the issue of regionalization inside of The council of Europe and The congress of local and regional authorities of the Europe The issue called regionalization has been debated from the beginning of the 90` inside of The council of Europe and The congress of local and regional authorities of the Europe (C.P.L.R.E.), paneuropean structures consisted of representatives of governements and public local and regional authorities from 46 member countries. In 1997, the Congress of local and regional authorities of the Europe, put to question a project of a chart concerning the regional autonomy in Europe, document which, finally, was disagreed by the Council of Ministers of the Council of Europe, being considered too strict and it was recommended that the discutions related to the regional autonomy to be carried on inside the Director Commitee for Local and Regional Democracy of the Council of Europe and inside The Congress of the Local and Regional Powers. The further discussions in the frame of the Council of Europe lead to the ideea that, in order for a strong-fundamented and wide accepted decision in the field of regional autonomy to be taken, a comparative study upon the forms of the regional autonomy in Europe, which will identify a set of concepts, common priciples, including the present models, which must stay at the base of a possible european reglementation in this field, is necessary. The documents were analized with the ocassion of the session

Knowledge Based Organization 2008 International Conference from december 2001 of the Director Commitee for Local and Regional Democracy of the Council of Europe and were enacted with some amendments.

The presentation of the concepts, principles and models of regionalization which are to be found in Europe

A. Key concepts The regional authorities are territorial ones positioned between the central cabinet and the local authorities, without implying a hierarchical relation between the local authorities and the regional ones. The regional autonomy imply legal jurisdiction within the limits provided by the Constitution and by the laws in order to control and manage part from the public affairs, in the interest of the population of the region and accordingly with the principle of subsidy. Where the regional authorities exist, the principle of the regional autonomy must be part of the internal legislation and/or Constitution, according to the situation.

B. The main principle The main principle, according to C.D.R.L., in order to put on the paper a legislative instrument regarding the regional autonomy, is that none of the principles must be based on the concept that the member states must have or must obligatory establish a regional and territorial level and must admit that the regional structures aren’t fit for all the countries: The states are free to choose their own internal structures.

1. Regional jurisdiction The regional jurisdiction must be defined on the Constitution, through the statute of the regions or by means of national law. The regional authorities must have the power of decision and administrative ones in the field in which they have competences. For specific purposes and on the limits imposed by the laws, the competences can be instated to the regional authorities by other public ones. When the the regional authorities are invested, they must be

Knowledge Based Organization 2008 International Conference allowed the prudent adjustment to the regional conditions.

2. The relationship with the sub-national territorial authorities The relations between the regional authorities and other sub- national territorial ones must be lead by the the principles of the regional autonomy established in this document, by the principle of the local autonomy established in The European Chart of the Local Autonomy and by the subsidy principle. The regional authorities and other territorial ones, can defined their mutual relations and can collaborate with other authorities in the limits imposed by the law.

3. The involvement in the decisional process of the government The regional authorities must have the right to take part at the decisional process of the state which might affect their own jurisdiction and interests or the aim of the regional autonomy. The inference must be assured with the representation of the regional authorities and/or by consulting and discutions between the government and regional authorities. If the Constitution and the law allow, the regional authorites and their representatives must be consulted regarding the international transactions of the government and the implementation of the treaties in which the jurisdiction or the regional autonomy are in danger, through specific organisms and procedures.

4. The control of the government authorities upon the regional ones Any control of the central authorities upon the regional ones must keep to the law. Still, the controlling of the representatives may also include the evaluation of their eficiency. The administrative control of the regional authorities can be exerted only according to the procedures and only when it is assured by means of constitutional and legislative reglementations.

5. The protection of the regional autonomy The protection of the regional authorities is assured by means of the reglementation provided by the Constitution or law. The existance of the regions, once established, is quaranteed by the Constitution

Knowledge Based Organization 2008 International Conference and/or can be called off throuh the amendament of the Constitution and/or of the law which established them. The regional authorities must have the right to a legal action as a willing to assure the free exercise of the power and the keeping to the principles related to the regional autonomy protected by the internal law. The regional boundaries shouldn’t be modifed without the prior consultation of the regions who are invoved. The prior consultation may even include a referendum.

6. The right to partnership and other forms of collaboration The regional authorities are enabled to form associations and to raid inter-regional cooperative activities within the frame of their competences and with the keeping to the law.

7. The external relations If the internal law or the european one allows, the regional authorities must have the right to get involve or to be represented by established structures in the activities of the european institutions. The regional authorities can collaborate with the authorities from the other countries in the frame of their jurisdiction and accordingly to the law, only with the conformation to the international commitments and to the external politics of the country.

8. Self-organization of the regional authorities When the Constitution or/and the law assures the right of the regions to decide in the matters concerning their internal organization, including the statutes and institutions, this right will be widely defined.

9. The regional structures The regional authorities must have a representative congregation. The executive power, when isn’t directly exerted by representative structure, is a must of a person or of an assumed organism, accordingly to the conditions and procedures established by the law. Where the executive structure is directly designated by the population, it doesn’t have to answer for to the representative congregation but

Knowledge Based Organization 2008 International Conference must present activity reports. The regional congress must be directly elected by means of free and secret election, by universal suffrage or directly through representatives designated in the frame of the regional knitted authorities.

10. Administration The regional authorities must have their own assets, their own administration and staff. They must freely establish the internal structures of the administrative system, and also their organisms, in the frame allowed by the law. The conditions regarding the activity developed by the staff of the regional authorities must corespond to the general principles of the public services and to allow the recruitment of the high-qualified staff according to their value and competences.

11. The financial resources of the regional authorities The regional authorities must have commensurate resources, predictable ones, comparable with the competences and responsibility which allow them to efectively implement these competences. Regional authorities must be enabled to freely manage their resources by means of the materialization of the competences. For the implementation of the competences, the regional authorities must base on their own resources. The financial systems according to which the financial resources are becoming available for the regional authorities must be diversified enough.

12. Financial alignment and transfers The protection of the regional authorities which are less financial developed must be assured by means of procedures of financial alignment or equivalent measures which are conceived with the aim of correction the effects of the unequal distribution of the potential resources of finance. The financial transfers to the regional authorities must be governed by anterior established rules, based on onjective criteria in the field of regional competences. As it is permitted, the financial transfers to the regional authorities don’t have to aim the financing of a specific projects. The financial tranfers to the regional

Knowledge Based Organization 2008 International Conference authorities mustn’t limit the freedom of the regional authorities in exerting the politics of implementing the competences. For the borrowings of cash assets for investments, the regional authorities must have access to the capital market according to the law.

C. Models and concepts of regionalization The Council of Europe and The European Parliament have independly pursued, with two studies related to the types of regionalization which are to be found in Europe.

The Case of the European Parliament The study of the European Parliament was achieved by the professor Gerard Marcou, from Sorbona University, who concluded that in Europe five types of regionalization based on administrative and institutional structures can be found, and these are:

Administrative regionalization The state creates authorities subordinated to the government or institutions which activate under it’s control or in it’s name. Eg. : Greece, Portugal, England, Sweden, Bulgaria, Estonia, Hungary, Lithuania, Slovakia, Slovenia. In this case, the present local authorities gather also specific regional functions, by means of the extension of the initial responsibilities, or through the collaboration to a larger context. Eg. Germany, Danemark, Finland and Ireland; there are other countries in which the system is partially aplied: Portugal, Sweden and Holland.

Regional decentralization This system assumes the creation or the substitution of a new territorial authority to a level above that of the existant territorial authorities, which is considered to be a region. The tipical exemple for this model is France. In Eastern Europe, Poland and Czech, and new countries such as Slovakia, Bulgaria and Slovenia which have introduced a new system of regional decentralization.

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Political regionalization or regional autonomy (institutional regionalism) This type of regionalization is considered to be a model which aspire to the regional autonomy and which consists of legislative attributes granted by Constitution to this kind of regions. The system can be found in Spain, Italy and Belgium and functions in some areas in Portugal and Great Britain (Scotland, Wales).

Regionalism by means of federal authorities Federalism, generally speaking, isn’t a form of regionalization, although the institutions are affected by the tendency to regionalization. Also, regionalization is irregular. In some countries, can exist more types of regions. Exemples of federal states: Germany, and Belgium and, in a way, Russia.

The case of the Council of Europe The experts of the Council of Europe have done a study related to the types of regions which are to be found in Europe, a limited number of models which were considered as representative for the entire continent being involved in the study. They identified six types of regionalization, which cover the entire typology of the present regions. For the presentations of every type of region were taken into consideration the same types of information and these are: • The institutional position of the regions within the state. • The notion of regional authority • The competences of the regional authorities • The relations with the local authorities • The participation to the decisional process of the state • The control of the state upon the regional authorities • Changes in regional autonomy • The right to partnership and other form of collaboration between the regions. • External relations of the regions • The principle of the regional autonomy • Regional structures 15

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• The existence of a judicial system established by the region and regional judicial structures • The main principles of the system of finance of the regions • Own resources • The system of financial alignment for the regions

The six types of regions from Europe, identified in this study, are: Model 1 – regions enabled with the power of enacting the primar legislation, their existence being granted by Constitution or a federal law and can’t be questioned against their will. Model 2 – regions enabled with the power of enacting the primar legislation, of whose existence isn’t granted by the Constitution or any federal law Model 3 – regions enabled with the power of enacting laws, accordingly with the stipulations and general principles established by the national legislation of whose existence is granted by Constitution. Model 4 – enabled with the power of enacting laws or other regional normative acts, accordingly with the stipulations and general principles established by the national legislation of whose existence isn’t granted by Constitution. Model 5 – regions enabled with decisional power (without legislative power) and councils directly elected by the population Model 6 – regions enabled with decisional power (without legislative power) and councils elected by the local component ones.

The elaboration of a unique reglementation in the field of the regional autonomy As a generally valid fact, it must be said that the communitary acquis of the European Union does not cover the entire institutional architecture of the member states: in U.E., every country establisehd it’s own territorial administrative structure, which may include or may not, according to the situation, administrative regions. Sir Mivhel Barnier, the former european comisary for the regional politics and institutional reform, in his visit to Romania, has expressed his point of view: „The European Union does not interfere in the territorial- administrative organization of any state, even it is a member or a 16

Knowledge Based Organization 2008 International Conference candidate. We do not found ourselves in an european superstate and, this is why, the Bruxelles doesn’t ask to be involved in the debate regarding the territorial-administrative organization of Romania, this being an internal issue of the country. What do have interest for Bruxelles is the existance of the zone, large enough in order not to develop bureaucracy,, in which the programms (financed by U.E.) to take place.” With other words, the communitary acquis in the field of the territorial-administrative organization of the member states of U.E., does not exist, each country being free to determine it’s own territorial-administrative structure, which can include nor not, by case, administrative regions.

The Council of Europe The Council of Europe coerced the member states to adopt a certain kind of structure of regional type. The reunion of the ministers for public administration in Europe, taken in Budapest, in February 2005, concluded that nowadays an unique reglementation in the field of regional autonomy can’t be accepted due to the great diversity of the present administrative systems. Also, from the discussions which were in the past years in the Council of Europe, it was concluded that the regional system, where it does exist, must be backed including in the frame of the Council and the theme of regionalization must be debated in the future.

Conclusions Nowadays, reglementations of the Council of Europe to strictly impose an administrative regionalization of the 46 member states, including Romania, do not exist. The reglementations of the European Union do not impose to the member states a certain type of territorial- administrative organization, but it is asked that the countries must organize areas of developing large enough programmes (financed by U.E.) in order not to increase de bureaucracy and to spend with efficiency the community money. In this context, obviously, the question if Romania must develop in the future a system of administrative regions or must continue the

Knowledge Based Organization 2008 International Conference present process of administrative decentralization, based on the broadening and refinement of the local autonomy, arises. The discussions which were taken till present, concerning this theme, including in the frame of some seminaries organized in Romania by the Council of Europe, lead to the idea that a decision might be taken only when the public political debates, preceded by studies will offer to the authorities the best alternatives for the specific situation of our country. A decision without fundament and unanalysed by means of all the responsible factors, with the civil society, might lead to actions able to affect the implementation of the measures of administrative reform, perpetuating the dysfunctions revealed till now in the manner of managing the pre-adherence funds and producing some negative effects, hard to anticipate.

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THE COUNTY COUNCILS FORMATION

Prof. Ivanoff Ivan Vasile, PhD

“Valahia” University, Târgovişte

Abstract The present study reveals the original way toward establishing the county councils in the light of President uninominal vote and in the absence of the prefect participation at the formation meeting and the legal consequences thereof.

Keywords: county council, legislative framework, vote

This subject, in the absence of the actual legislative framework, would have been one devoid of relevance and interest because it would not be whipped discussions and interpretations but the recent normative acts, incidents in the above mentioned subject, develop a completely different perspective. The regulation that has radically changed the situation is Law no. 35/2008 on the introduction of uninominal vote, which, besides other laws, amend and supplement Law no. 215/2001 on local public administration. Thus, Article 3 (2) that lists the public authorities consider, together with the mayors, the local and county councils and the county councils presidents as public authorities. If we don’t have any comment concerning the pre-existent public authorities, regarding the new authority, the legislator does not define what kind of authority is this. If to the previous rules, we add also OUT no.66/2008 for amending the Law no. 215/2001 then results a multiplication of the issues’ diversity which could be approached on this issue. At present, it is necessary to analyze three new problems introduced

Knowledge Based Organization 2008 International Conference by the previous rules: §1 The legal nature of the county council president’s position; § 2 The legal nature of the administrative acts preceding the county council formation; § 3 The meeting legal responsibility for the formation of the county council. § 1 Regarding the first topic, in a recent study published by us1, we concluded that this position "if it would be considered executive authority, can not manage, vote and sign the decisions of the public county authorities”2. The introduction’s innovation of this new public authority is absolute, but the legal physiognomy it is not contoured by law. The question that is put: the president is part of the county council, as the deliberative authority? Our response is that he/she is not part of the deliberative authority because to this authority, by the distinct manner of election, it is given a specific juridical physiognomy. On the other hand, as an executive authority on the reasons above mentioned by us, within the respective study, it can not be because otherwise he/she could not lead the deliberative authority, could not vote along with other councillors and could not sign the decisions of the deliberative public authority. The approach’s relevance with our title of this topic we will analyze in the legal responsibility of the formation meeting. § 2. About the legal nature of administrative acts preceding the formation of the county council, will make several references because ignorance of the legal nature of these types of administrative acts, in practice, lead to very different and often even dangerous for the existence of the deliberative public authorities. This subject is, in our opinion, the same with the formation of local councils, so that the legal practice’s importance of the legal interpretation concerning the legal nature of acts preceding the formation of local and county councils is much higher. In the specialty doctrine of administrative law is known the classification of the administrative acts based on their legal nature as acts of administrative authority, administration and judicial, each of these categories being clearly defined, and the views of the specialty authors are

1 Ivanoff Ivan Vasile, The legal physiognomy of the county council president in light of the new regulations in force, In Interdisciplinary Perspectives within the university education, Publishing Land Forces Academy “Nicolae Bălcescu”, Sibiu, 2008, p. 47 and the following. 2 Idem, p. 53. 20

Knowledge Based Organization 2008 International Conference converging. We insist on defining the legal nature of the administrative acts prior to the establishment of the deliberative public authorities because this legal nature is interpreted by the prefect and by administrative courts in a different way. From the analysis of legal texts converging with our analysis it results expressly on the one hand the obligation of local public authorities to communicate to the prefect the administrative acts adopted or issued in order to exercise the control of legality, and on the other hand the prefect obligation “to verify the legality of the adopted administrative acts or issued by the authorities of the local and county public administration and local councils, with the exception of the acts of management” [art. 24, point f) of Law no. 340/2004]. The lapidary expressing of the legislator leaves at the interpretation of prefects and administrative courts the appreciation on what types of “administrative acts” it can be exercised the control. If art.24, point f of Law no.340/2004 exempt from this control the acts of management, on the contrary, other administrative acts are subject to the control of legality. After their legal nature, “the other administrative acts” can be acts of administrative authority and judicial administrative acts. If in respect of acts of administrative authority there is no doubt that form the subject of control of legality, with regard to administrative judicial acts, they have provided appeal ways remedies in a distinct manner according to regulations to support certain types of administrative jurisdiction conferred on the public administration. Returning to our analysis, it raises the question: what kind of administrative acts are the acts adopted in the constituent/formation meeting of local councils and county councils, respectively? Without any doubt they are not acts of administrative or judicial management. Are they acts of administrative authority? In the definition of acts of administrative authority, the first condition is that they be issued by a public authority under powers/competences established by law. Are they issued by a public authority based on this condition? Here is the sensitivity item of our analysis! The deliberative public authority, the local or county council respectively, operates on a mandate of four years beginning from the validation of mandates of the elected

Knowledge Based Organization 2008 International Conference persons, lodging oath by them and declaring as set up a local or county council respectively and till the declaration of being set up the new local council [of course after the validation of new mandates and submission vow by the elected ones]. Therefore, the formation meeting is the “preamble” birth of the new council, and it does not exist, under the law, until the newly elected councilors are not valid and have not sworn. Even if this “entity” in the course of formation has functions on the validation of mandates, that do not exist until there have been validated the mandates of at least 2 / 3 of the total number of councillors that form the council and make oath. On the other hand, the old council, which is still in operation, is a public authority but has no powers/competences to validate the mandates of the new elected. Where are we now that time? We are in an area where there is a public authority but has no legal powers and other authority that is born, but has no legal existence until the validation of new mandates and submission of their vows but which has competences in the matter. This area of temporal interference makes an old authority to coexiste, without powers and authority in the process of establishing an authority what has powers. The question that should be clarified is the following: what kind of administrative acts adopt the authority in the course of formation? Authority acts? We believe that there are no acts of administrative authority as not originating/issuing yet from a public authority. If they are not acts of administrative authority, why are they defined by the legislator as decisions? This is actually our discussion! The name of the administrative acts of local authorities, from the constitutive phase, produces the erroneous conclusion that this would be under the incidence of the prefect’s control. We believe this is a false and dangerous interpretation! False, because the legal nature of these administrative acts is not typical for the administrative act of authority but is typical for the formation administrative act, declarative respectively. The error of interpretation is even induced by legislator so that in Law 215/2001 and in OUT no.66/2008 use the following expression: “For the validation of mandates, the county councils elect by open vote, among their members, for the entire duration of the mandate, a commission of validation formed by 3-5 elected councilors.” [art.89-2-

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OUT point.2 of OUT66/2008]. The question that is: which county council chooses the validation commission, the old or the new one in the formation process? The answer is obvious, the new one in the process of formation. Then, a public authority, not existing yet, may take decisions as a public authority that still exists? Obviously not, and for this the name of “decision” at this stage is excessive and leads to serious distortions in practice. Then, later use by legislator of the term “decision” reinforces the confusion discussed previously [to see art. 89.3. – (1) The decision of validation or invalidation of the mandates may be contested by those interested in the administrative court within 5 days of the adoption or, for those absent from the meeting, since it’s communication" OUT 66/2008]. Using the expression of decision leads, in the interpretation of prefects, to the conclusion that these acts are already acts of authority under of a legal control, leading to dangerous situations in practice. More specifically it is known that the acts of the local public authorities attacked by the prefect within the administrative court are suspended by law, specifically their legal effects are suspended. What does that mean? It means that the decision on the election of the validation commission, and her concerning the mandates validation and the decision that found the formation of local councils, county councils respectively, are suspended by law which lead to blocking the activity of local public authorities. Courts of contentious don’t put any problem of shade on the issues of legal nature of these types of administrative acts, even if they meet certain exceptions to invoke posed by the new public authority under the constitution so that the establishment of public authorities is placed under question, the new entities do not work and the old boards are no longer being called by the newly elected mayors or the newly elected presidents not adopting any measures necessary to the respective community. If those said it adds the prefects’ political subjectivity [which is known to still respond to commands being appointed to political office not by contests but by attesting them on those positions politically or by political contests!], then we may have the mirror of administrative dysfunctions from the local level in the light of the above. If the name of the above mentioned “decisions” would not lead to the conclusion of the qualification of these administrative acts as acts of

Knowledge Based Organization 2008 International Conference authority, would not be any problem, but the name induces fallacy in this context in which, in our opinion these administrative acts are acts of formation/constitution prior to the establishment of the respective public authority and the establishment itself, shall be recorded as such by a “decision” which is an administrative act, typical declarative. According to art.37 (1) of Law nr.215/2001 the legislator uses the word "declare" which leads to the conclusion that this decision is declarative and only since this moment the public authority exists and may adopt any acts of authority censored by the court of contentious administrative action, by the prefect. Furthermore, according to art. 89. 3. (1) OUT 66/2001: “The decision of validation or invalidation of the mandates may be contested by those interested in the administrative court within 5 days since adoption or, in the case of those absent from the meeting, since the communication moment” This leads us to conclude that this decision is subject only for subjective contentious/administrative court and not for the objective one as it injures only subjective rights or legitimate interests of local or county councillors not being an administrative act of authority which is controlled by the prefect. The attack by the prefect of such a decision and acceptance by the administrative court of such an action we consider as inadmissible. § 3. As regards the legal responsibility of the county council formation meeting by the recent amendments to the Law no.215/2001 OUT nr.66/2008 it entirely belongs only to the county council president who calls the council, by his decision, substituting to the Prefect responsibility in the case of setting up meeting. Apparently, this substitution would not impietate with anything, the natural course of a formation meeting, but the legislator omitted that these moments are the most tense in terms of political, and the prefect responsibility would be led as possible, to treat this problem in a more objective way at that time. In light of new regulations, the prefect "may" at most to be invited to the meeting of formation but his/her presence is not compulsory, and on the other hand has no legal responsibility in the organization and conduct of the council organization meeting. The practical consequence of these changes is disastrous because the county council president, as distinct authority of the county council, is the

Knowledge Based Organization 2008 International Conference representative of a political party and the quality of “referee” that should have, invested with a legal responsibility of formation meeting, becomes "player" which leads to subjective attitudes followed by legal consequences contrary to public interests. This anomaly could be changed by the legislator if he/she would keep the competence of the administrative court regarding the validation of the councillors mandates. In practice, it have been met impossible situations, from legal point of view, not even by the contentious administrative courts. Such situations are those where the validation of the mandates is not feasible because of runoff voting, being known that the mandate of each councillor is done in alphabetical order, within councillors majority, or in case of runoff voting, is not a majority required by law and results a paralyzed validation mandate. In such a situation1, the contentious court made a “recommendation to “the council” that “can put in question the validation of the respective mandates without imposing a solution by force of a court decision. On the other hand, by weakening the status of the county secretary, this was demoted, by the law effect, from the senior officials category and made exclusively within administrative subordination of the county council president, who can do both direct pressure and subtle on him/she. Then, the legal powers of the county secretary do not have in view the formation meeting, signing for legality the draft decisions and contersigning for legality the council decisions [about the legal nature of the formation decisions we discussed above]. In this context it can only ensure the smooth progress of the meeting “from shadow”, having no powers expressly provided by law. In this context, the formation meeting is left solely to reach newly elected president who runs the meeting of formation and which may adversely affect such a meeting. Our proposal is to return to the previous model of county councils formation when the mandates validation was made by the courts and the leadership of the formation meeting was made by the prefect, as guarantor of respect for the law in this particularly tense phase of a public authority birth.

1 See Civil sentence no.853/15.07.2008, pronounced by the County Tribunal, Trade and Contentious/Administration Department in the case no.4013/120/2008. 25

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PREVENTIVE AND REPARATORY ACTIONS INSTITUTED BY THE G.U.O. NO. 68/2007 REGARDING THE ENVIRONMENTAL LIABILITY RELATED TO PREVENTING AND REPAIRING DAMAGES AGAINST THE ENVIRONMENT

Assoc.Prof. Mocanu Livia, PhD

“Valahia” University, Târgovişte

Abstract A new conception on the liability for the ecological damage shows it mainly as a most complete repair and less as a traditional liability. In the environmental law it led to instituting a liability regime with a public character, a specific liability, distinct from the classical civil liability. Directive 2004/35/CE transposed in the internal law by the G.U.O. no. 68/2007 opted in favor of such a system. References of the Romanian regulations are presented below in the field of preventing and repairing the environmental damage, emphasizing the preventive and reparatory actions.

Keywords: preventive measures, reparatory measures, operator, damage

1. Introduction The necessity of having a more complete and uniform communitarian regime in the field of preventing and repairing the ecological damage led to the elaboration of Directive 2004/35/CE on the environmental liability in order to prevent and repair the damage caused to the environment1. The juridical communitarian rule institutes a common frame for the environmental liability, governed

1 Published in JOUE no. L 143 of 30 April 2004. 26

Knowledge Based Organization 2008 International Conference by the principle ‘the polluter pays’, in order to prevent and repair the ecological damage at a reasonable cost. After becoming a member of the European Union, our country transposed the Directive of 21 April 2004, which was possible by the Government Urgent Order no. 68/2007 concerning the environmental liability related to preventing and repairing the damage caused to the environment1. At its turn, the internal normative document, aims at ensuring a uniform and distinct regulation of the environmental damage and a legal frame to force the operators to adopt measures and to apply practices to minimize the damage risks or to take the necessary reparatory measures in case of causing the damage. This regulation is marked by the principle ‘the polluter pays’2 based on the idea that the operator must bear both the costs of the preventing measures adopted by the public authorities to prevent causing any damage, and those of its repair, when it happened.

2. The nature of the liability instituted by the G.U.O. no. 68/2007 Accepting the conception of the communitarian Directive, the G.U.O. no. 68/2007 establishes a special liability regime, with public character, a liability which is mainly administrative, „of the environmental law“, distinct and different from the classical civil liability and the proper administrative liability.3 In this context, the environmental liability represents, rather a reparation (by supporting the costs of the preventive and reparatory actions), than a liability in the classical meaning of civil law, character expressed by the three rules afferent to its specific regime: the objective liability (for the activities stipulated in schedule no. 3 of the

1 Published in M.Of. no. 446 of 29 June 2007. 2 Already recognized as a fundamental principle of the internation law, the principle ’the polluter pays’ found a certain consecration specific both in the system of communitarian law and in the national law systems. For more details, see Mircea Duţu, Tratat de dreptul mediului, Edition 3, Published by C.H. Beck, Bucharest, 2007, pp. 229-274; Daniela Marinescu, Tratat de dreptul mediului, 2nd edition rewied and enlarged, Published by Universul Juridic, Bucharest, 2007, pp. 73-75; Michel Prieur, Droit de l'environnement, Dalloz, Paris, 2001, pp.171-181. 3 For more details, see Mircea Duţu, op.cit., pp. 501-502. 27

Knowledge Based Organization 2008 International Conference order), the passive solidarity among the operators, in certain conditions and financial warranties. G.U.O. no. 68/2007 has a special regulation character compared to the G.U.O. no. 195/2005 regarding the environment protection1, which represents the frame-regulation in the field. The regime instituted by the special regulation is of strict interpretation and applies to the damage caused to the environment that it mentions (taking into consideration the damage on the species and protected natural habitats on water and soil). The difference of application field related to the area of damages considered follows the rules imposed by art. 95 of the G.U.O. no. 195/20052.

3. The preventive and reparatory measures 3.1. Preliminaries The institution of preventive and reparatory measures takes into consideration some damages, namely the professional activities that can generate them. On this line, the normative document considers 11 categories of professional activities (Stipulated in Schedule no. 3) which represent the origins of the damages caused to the environment and distinguishes three categories of damages of the environment3 understanding by damage „a negative change able to be measured of a natural resource or a measurable deterioration of a service related to the natural resources which can occur directly or indirectly’. So, both direct damages and the mediate, indirect ones are considered. At the same time, the environmental liability instituted by the G.U.O. no. 68/2007 is directed towards the operator4 (exploiter) of the activity, thus, as far as the damages caused to the environment are the

1 Published in M.Of. no. 1.196 of 30 December 2005, G.U.O. no. 195/2005 was approved by Law no. 265/2006. 2 By the dispositions of art. 95 of the G.U.O. no. 195/2005 an adaptation of the delictual civil responsibility institution to the specific of the environment protection field takes place, in the sense of satisfaying the demands of the fundamental principles of precaution and „The polluter pays“. 3 Established in art. 2 pct. 13 of the order. 4 The order defines the operator as ’any phisical or juridical entity of public or private law which runs or has control of a professional activity or, in case the national legislation stipulates it, which was invested with decissive economical power on the technical functioning of such an activity, including the owner of a regulation act for such an activity or the person who registeres or notifies such an activity’. 28

Knowledge Based Organization 2008 International Conference result of professional activities, both the preventive measures and the reparatory measures, became the operator’s duty.

3.2. The preventive measures (actions) According to law, all operators have the obligation to avoid, by all possible and legitimate means, the generation of the environmental damage. Thus, in case of an imminent threat of such a damage, this one is bound to take immediate preventive and necessary action1 and to inform the competent authorities (the county agency for the environment protection and the county commissariat of the Environment Guard): 2 hours after acknowledging the threat occurrence; one hour after finishing the preventive measures, about the measures taken to prevent the damage and their efficiency and within 6 hours from the moment their inefficiency was observed, in case the threat continues (art. 10). Taking the necessary preventive measures can also be required by the county agency for environment protection, which can also give instructions (art. 11 lit. b). Also, the respective authority, at any time, can itself take the necessary preventive measures, not before the person who is in charge of the county agency for the environment protection had required it to the operator. As an exception of the rule, the agency can take the necessary preventive measures without the operator’s previous requirement, in case this one: failed to accomplish his duty of taking the preventive actions; – did not observe the instructions or, after the requirement, did not respond to it; – cannot be identified; – does not have the obligation to support the costs [(art. 12 line (2)].

3.3. Reparatory measures (actions) In case of producing a damage to the environment, beside informing „in maximum 2 hours from the damage production ‘the county agency for environment protection and the county commissariat of the Environment Guard, the operator is obligated ‘to

1 In the meaning of the order, the preventive measures are „any measure taken as a response to an event, an action or an omission which created an imminent threat by a damage to the environment, for the purpose of preventing or diminishing the damage“. 29

Knowledge Based Organization 2008 International Conference act immediately in order to control, isolate, eliminate or, in the opposite situation, to manage the respective pollutants and/or other contaminated factors, in order to limit and prevent the spread of the damage over the environment and the negative effects on the human health or worsen the services deterioration“ [art. 14 line (1) let. a)]. According to the law, the operator identifies the possible repairing measures „the most appropriate“ according to annex 2 from the order, and communicates them, in 15 days from the accident occurrence, to the county agency for environment protection for approval. According to the annex, we distinguish between the regime of choosing the most appropriate measures which will ensure the damage repair over the waters and species or protected natural habitats and, respectively, the damage repair over the soil. The order institutes two specific rules concerning the repair: – the right of the county agency for environment protection to decide which of the damages should be repaired with priority in several damages were produced over the environment and it is not possible to take, at the same time, the reparatory measures and; – in taking the decision, the county agency for environment protection takes into consideration, among others, both the nature, dimension and gravity of the different damages produced, as well as the possibility of natural regeneration, paying attention to the risks which the damage presents for human health.

3.4. Public authorities’ obligations In the O.U.G. no. 68/2007 concept the main role in preventing and repairing the damages caused to the environment is given to the public authorities, which are the only holders of the actions destined to avoid or to remedy the respective ecologic damages. Thus, the competent authority to establish and take the reparatory and preventive measures, as well as to evaluate the significant nature of the damage over the environment is the county agency for environment protection; a general consultative role has the county commissariats of the Environment National Guard and a specific one, depending on the environment factor possible affected, is established for: water ponds directions, scientific councils organized at the level

Knowledge Based Organization 2008 International Conference of the protected national areas, the county agrochemical and pedological study offices and forest and chase territorial inspectorates, as well as the National Agency for Environment Protection.

3.5. The interested third party intervention Even though the main role in preventing and repairing the environment damages is granted to the competent authority, the order stipulates also an „external control mechanism“ inside of which, in the virtue of „right to action“, any physical or juridical entity, including any nongovernmental organization „which promotes the environment protection and which fulfills the conditions required by the legislation in force“, affected or possible to be affected by a damage over the environment or which considers itself injured in one of its rights or legitimate interest, has the right to transmit to the county commissariat of the Environment National Guard any observation concerning the production of a damage over the environment or an imminent threat with such a damage, and on the other side, to ask the county agency for environment protection (written or by electronic means of communication) to take the measures to prevent and/or repair stipulated by law (art. 20).

References [1] Mircea Duţu, Tratat de dreptul mediului, 3 Edition, C.H. Beck Publishing house, Bucharest, 2007, pp. 229-274. [2] Daniela Marinescu, Tratat de dreptul mediului, II Edition revised and enlarged, Universul Juridic Publishing house, Bucharest, 2007, pp. 73-75. [3] Michel Prieur, Droit de l'environnement, Dalloz, Paris, 2001, pp. 171-181.

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TRENDS AND PRIORITIES OF THE PUBLIC ADMINISTRATION MANAGEMENT

Assoc.Prof. Moldovan Iosif, PhD

“Lucian Blaga” University, Sibiu

Abstract In the next period of time, the management applied at the level of the English local and central public administration will undergo a lot important changes in order to respond to the demands raised by the complex process of the pubic administration as well as to those requested by the effort of Romania's integration into the European Union. Taking into consideration the above statement, the study presents the previous actions, the important issues that, once correctly and thoroughly solved, will contribute to the achievement of this process.

Keywords: public administration, management, priorities

Current management challenges in public administration A recognized characteristic of the Romanian public administration reform after 1990 was the resistance to change at the level of the institutions involved. Firstly, it refers to the already established administrative institutions (the ministries) which manifest the tendency to avoid any measures that affect their size, structure and prerogatives. Secondly, the newly created institutions (agencies, authorities), which do not prove their institutional capability necessary for underlying decisions and implementing efficient actions and activities, represent a set-back. The constitutional competences of the public administration – to organize and apply the legal provisions – give meaning to the management in this domain. 32

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Starting from the complexity and the main functions of the public administration one can notice that it consists of a multitude of public authorities between which inter-functional rapports are established. The local public administration management, for example, was strongly influenced by the enforcement of Law 189/1998 on local public finances, which had a significant impact on the activity of the local public authorities. Ulterior regulations established by G. O. no. 45/1996 approved by Law no. 108/2003 and modified by Law 273/2006 and especially by the enforcement of Law no. 215/2000 on local public authorities with the modifications brought by it, have positively influenced the managerial process from the local public administration. Starting from the text of the incident laws, some management measures had to be taken by the local administrations, mainly organizational ones, so as to strengthen their capacity to fulfill their law-given prerogatives. In this context, the public administration manager had to design the necessary changes to achieve the following: – the proper modification of the organizational chart and of the functions charter for its own apparatus and for the subordinated public services. – the proper completion of the organizational and functional policy of the institution which should harmonize the modification produced in the organizational chart and the charter of functions. – the establishment of the prerogatives of the particular compartment and the creation of job descriptions for every newly created job. – the amendment, according to the modified Law no. 16/1996 [1] on the national archives and on the instructions regarding the archive activity, the document creators and holders. In addition to these compulsory actions, one must have in view the professional preparation of the people newly hired for these compartments, the modification of the circuit of the documents within the institution, etc. In general, the public administration management has been positively influenced in its modernization effort by Law no. 188/1999

Knowledge Based Organization 2008 International Conference on the status of the public servants, which was completed by other normative acts, which require the application of the principles underlying the public function, i. e. – the prompt and efficient provision, free from prejudice, corruption, power abuse and political pressure, of all public activities carried out by public servants; – the only selection criterion of the public servants being their competence; – equal opportunities for admission and promotion within the public servants corps; – the stability of public servants. The strengthening of the public administration organizational capacity is to be consolidated and developed according to the prerogatives of art. 21 of Law no. 188/1999, especially of those concerning: – the elaboration of the strategies and policies regarding the of public function and of public servants; – the development and approval of the proposed normative acts regarding the public function and the public servants; – the verification of the way in which the legislation on public functions and public servants in the public authorities and institutions; – the elaboration of regulations common to all authorities and public institutions on public jobs and on the grading and classification of positions; – the elaboration of proposals for the creation of a unified system of payment that can be applied to all public servants; – the establishing of criteria for the evaluation of public servants; – organizing the system of professional preparation of the public servants; – the elaboration and pursuit of the implementation of training and improvement programs of public servants; – the preparation of annual reports on the management of public functions and public servants which the government submits to the parliament for debate; – the coordination and monitorization of the implementation of the provisions of this law;

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– the supply of specialized assistance and methodological coordination of the human resources departments of the central and local public administration authorities and institutions; – the collaboration with international institutions and organizations in the field of human resources management. The process of stabilization and professionalization of the civil service has acquired new valences by the delimitation of new categories of personnel like: high public officials (politicians), personnel in positions of executive responsibility (managers) or by introducing an effective system of evaluation, in particular on sociological investigation, by modernizing the communication component and by assimilating new skills (foreign languages and computer science). In this legislative context, there is a transition from an empirical management to a scientific, which has in view the application of the forms and methods of modern administrative management. The practiced management and the quality of human resources have conditions to develop, within the public local administration organization components like: foresight, organization, command, control and coordination, the way the management functions are defined by specialized literature. [2]

Trends in the management of public administration Originally used in the Anglo-Saxon countries, the concept of “management” had a rapid development in all the fields of activity. In this context, we witness the development public administration management. By reforming the central and local administration, the executive power supports: – the separation of the pubic functions from the administrative ones; – the creation of a new public career service, professional and politically neutral; – the defining of the roles, responsibilities and relationships between institutions; – the transparency of the administrative and governance act;

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– the simplification of the normative procedures and acts; – the respect for the citizen; – local decisional autonomy; – the principle of subsidiarity. The conditions of the Romanian society require that the reform process should consist of four action plans: – strategic (which redefines the role of the state); – legal (one has in view a broader utilization of the framework laws, giving local and executive authorities greater action possibilities); – organizational (one has in view the simplification of the procedure of delegating execution of public duties); – cultural (one has in view the changing of the values and of the ways of acting).

The priorities of public administration management The transformation of Romania into a democratic de jure state based on pluripartitism and on the separation of powers, with an economy based on free enterprise and competitive spirit, integrated in the European Union, resulted in a radical change of conception in the filed of public administration and of its management too. During the next period the following priorities of public administration management will have to be established in direct connection with the three courses of action influenced by conditions Romania has to fulfill in order to have access to the European funds: 1. the reform of basic public services and public utilities of local interest; 2. completing the process of administrative and fiscal decentralization; 3. the strengthening of the institutional capacity of the local and central public administration structures.

I. The reform of basic public services and public utilities of local interest lies in: – the introduction of quality standards by the competent public authority on the basis of which a public service and the work of public

Knowledge Based Organization 2008 International Conference servants can be monitored and assessed; – the introduction of cost regulations for the quality standard of a public service, so that public expenditure would become justified, transparent and subject to financial control; – the continuation of the process of decentralization of basic public services: education, health, welfare and public order; – the achievement of an administrative and financial separation of the public services under the management of public town halls and those under the control of the county councils. In this respect, one should pay attention to the way of financing and to the management of the health care services, of the state pre-university education, and of sport and culture; – assigning a public service in the management of county councils in accordance with the managerial and fiscal capacity adequate to the provision of that service, the correlation between the geographical area of the administrative unit and the area of the public service beneficiaries; – the establishment of a strategic planning system for each authority of the central and local public administration system in relation to the public services they provide; – the setting of a monitoring and evaluation system of the performance in the execution of contracts for services and public utilities by regulatory autonomous public authorities; – the regulation of certain simple and transparent models for the privatization of public utilities, as well as the regulating of the outsourcing system for public services; – the clarification of the subsidies system for public utilities and the improvement of the taxation system; – the establishment of incentive / reward schemes for public servants in order to improve the quality of public services and to stimulate innovation; – the elaboration and implementation of the Charter of public services in which to publish quality standards for services and the methodology for their evaluation.

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II. The completion of the decentralization process The process of decentralization begun after 1989 will have in view the limitation of the scope of government intervention at the local level only for the cases in which certain public services, programs or projects can not be achieved with local resources and by the local authorities, in accordance with the principles of the European Charter [3] on local self-government. The process of decentralization will be carried out according to the principle of efficiency, thriftiness and quantification of results on three courses of action: • the strengthening of the autonomy of local public administration; • the administrative decentralization • the fiscal decentralization, to allow the evaluation of the efficacy of the decentralization measures introduced in such a manner.

A. The strengthening of the autonomy of the local public administration The following goals will be pursued from a legislative perspective: a.1. the delimitation of the competences and responsibilities by: – rethinking the system of election of the members of regional councils and the issuance of new regulations; – resizing the role of county councils as far as public services are concerned, in accordance with the requirements of the European Union; – focusing the activity of the work of county councils on the coordination of the development plans at county level, ensuring their correlation with the regional and national development plans; – limiting the role of the institution of the prefect to the control of legality; – restricting the scope of the deconcentrated services under the coordination of the institution of the prefect and the regulation of the transfer of these services to the authorities of the local public administration. They can manage them better, simultaneously with the

Knowledge Based Organization 2008 International Conference transfer of the necessary financial resources; a.2. the cooperation with the representatives of the local communities in the act of governance through: – the establishment of mechanisms of public participation in the elaboration of strategic planning regarding the development of the town, the public consultation for instituting quality standards for public services and their evaluation; – the expansion of public-private partnership system to the provision of public services, taking into consideration the modification of the legislation in the field. a.3. transparency, through: – the establishment of mechanisms of public participation in establishing local budgets; – the public announcement of all the winners auctions whose value exceeds the annual equivalent of 25.000 euros; B. Administrative Decentralization [4] From a legislative perspective, there will be interventions to: – legally establish the relations between management agencies designated for operational programs; – reanalyze the framework law on decentralization, to establish the necessary correlations with all the effective laws which regulate the local public administration, in accordance with the European legislation in the field; – codify the legislation regulating the organization and functioning of local public administration authorities, the status of those elected locally and the status of the prefect, to the extent of ensuring the stability of this legislation; – the codification of the legislation regulating the public utilities and services of local interest. C. Fiscal Decentralization Will be achieved through the following measures: c.1. income tax – the transfer of amounts deducted from certain incomes of the state budget in order to balance the local ones, by removing the county councils as intermediaries; – the recognition by law of the right of the local public

Knowledge Based Organization 2008 International Conference administration authorities to set the level of taxes and local impositions within a limit of + 50% starting from the legally regulated taxation basis; – full assurance from the state budget of the cash benefits in the field of social assistance through conditioned transfers, in order to guarantee the universality principle of the citizens’ rights. c.2. public services and utilities: – continuing the process of decentralization of basic public services: education, health, welfare and public order; – assessment of the costs of transfers of new responsibilities to the local public administration, so they can precisely identify their financing sources; – limiting the scope of deconcentrated public services by assessing the feasibility of transferring of the school inspectorates, of the county culture and health directorates, etc. to the county councils, at the same time providing the financial resources. – keeping the public services deconcentrated only to the extent that they operate on the basis of an integrated management system. c.3. financial management – elaborating a guide on the collection of local taxes and impositions in cooperation with the Ministry of Economy and Finance and the representative associations of the local public administration authorities; – elaborating a guide on capital investment plan as component part of the strategic planning for the development of localities. – regulating the compulsoriness for publication of the implementation of local budgets, at least once every 6 months, and in the case of issuance of bonds, at least once every 3 months; – developing a guide on risk management to be used to achieve strategic planning, investment and for the establishment of public services; – developing a guide on public internal audit in correlation with the regulations concerning public external audit; – amend the legislation on the public-private partnership contract to correctly define this mechanism of cooperation, to simplify the procedures for the selection of offers and to standardize them with

Knowledge Based Organization 2008 International Conference those on public acquisitions in order to ensure financial transparency and the selection of offers on competitive criteria; – the introduction of the urban audit manual of the European Union to evaluate the development stage and estimation of the investment needs, taking into account the assessment criteria of sustainable development. c.4. loans: – elaborating a guide on public debt management in cooperation with the Ministry of Economy and Finance and the local authorities; – regulating by law the establishment of guarantee funds for loans incurred by the local administration.

III. Institutional capacity The reform of public services, the completion of the process of decentralization, as well as the successful fulfillment of environmental and economic and social programs depend on the development of the technical and organizational capacity of the central and local public administration authorities. At the level of the central public administration authorities, the programs aimed at the institutional capacity will have to meet the following requirements: a) The establishment of ministries and agencies only to: – carry out the government program and the functions with which the government has been vested by the Constitution; – the implementation of foreground public policies according to the government program and to the commitments made to the European Union in the National Plan of Accession; – provide those public services that can not be provided by the private sector and for which the public sector has a comparative advantage. b) Clarify the juridical status of agencies in the law for the organization and functioning of government and the delimitation of the public autonomous authorities as regular and control public bodies under parliamentary control; c) The introduction of a mechanism for the elaboration and implementation of public policies in the work of ministries, agencies

Knowledge Based Organization 2008 International Conference and city halls, to ensure the consistency, predictability and transparency of their activities; d) Achieve an optimal interoperability between central public administration authorities. In the following period, the management of public administration will have to undergo essential quality and efficiency changes to meet the requirements of the period, resulting from the complexity of the public administration process. The presented lines of action will have to be pursued consistently and firmly to ensure the success of a generous approach, to ensure a balance in the Romanian society as a whole.

Bibliography: [1] Law no. 16/1996, of the National Archives, published in Monitorul Oficial al României no. 71, art.4, 04/09/96. [2] Petrescu, I. (coordinator), Elemente de management în administraţia publică din România şi Germania, Sibiu, Editura Casa de Presă and Editura Tribuna Sibiu, 2001, pp. 523-538. [3] Law no. 199/1997 for the ratification of the European Charter of local autonomy adopted at Strasbourg in 1985, published in Monitorul Oficial al României no. 331/1997, part I, p. 1. [4] The framework law on decentralization no. 339/2004, published in Monitorul Oficial al României no. 668/2004, part I, pp. 1-2.

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EUROPEANIZATION CHALLENGES AND REGIONAL DEVELOPMENT

Assoc.Prof. Nedelea Alexandru, PhD, Asst.Prof. Nedelea Marilena-Oana, PhD

“Ştefan cel Mare” University, Suceava [email protected]

Abstract “Europeanization” is a concept that can be described as an historical process (spread of European norms and traditions), as a matter of cultural diffusion, as a process of institutional adaptation (of the domestic institutions to common European institutional requirements), as the adaptation of policy and policy processes (synchronization of the domestic policy processes with the European ones). South-East Europe national Parliaments appear as an efficient tool to contribute to creation of the New South-Eastern Europe, aiming at a sustainable economic growth, promoting democracy and respect for human rights, transforming the South-East European Cooperation process into a forum for dialogue, for political and economic consultations on the common values and concerns of the region. Regional development policy is an ensemble of measures planned and promoted by the local and central public administration authorities, having as partners different actors (private, public, volunteers) in order to ensure a dynamic and lasting economic growth, through the effective use of the local and regional potential, in order to improve living conditions. With the process of EU integration at hand, cross-border cooperation has become a top priority in East-Central Europe.

Keywords: Europeanization, European Union integration, regional development

I. Introduction The integration of the Central and East European countries into the European Union creates a radically and qualitatively new 43

Knowledge Based Organization 2008 International Conference geopolitical situation on the European continent that, in its turn, requires some thorough going and structural changes from the EU part as to development of international relations in their new form in the countries of the European Union and non-member states. In order to apply the regional development strategy, eight development regions were set up, spreading throughout the whole territory of Romania. With the process of EU integration at hand, cross-border cooperation has become a top priority in East-Central Europe [5]. Regional development policy is an ensemble of measures planned and promoted by the local and central public administration authorities, having as partners different actors (private, public, volunteers) in order to ensure a dynamic and lasting economic growth, through the effective use of the local and regional potential, in order to improve living conditions. With the process of EU integration at hand, cross-border cooperation has become a top priority in East-Central Europe. In fact, there is no viable alternative to integrated regional development. The main areas regarded by the regional policies are: development of enterprises, the labor market, attracting investments, development of the SMEs sector, improvement of infrastructure, the quality of the environment, rural development, health, education, culture [1]. The overview of the situation in Romania related to regional development revealed several aspects, which can lead to the conclusion that in the field of regional policy, there have been a lot of progress achieved during the last years, but there are still many things to be done in order to comply with the legal and institutional requests of the European Union cohesion policy [3].

II. Europeanization challenges The leaders of six European states signed the Treaty of Rome, creating the European Economic Community and launching the process of European integration. From that starting point evolved today's European Union (EU), the most successful example of institutionalized political cooperation in history. The EU now encompasses a much broader array of responsibilities than originally planned, its membership has widened to 27 countries, and its

Knowledge Based Organization 2008 International Conference legislation and jurisprudence has come to supersede national law. Contestation has accompanied success, however, and the intense debate in many European countries over the EU Constitution throughout the course of 2005 revealed deep divisions between and within European countries around issues such as EU institutions, the elusive European identity, a European economic malaise, and the role of the EU as a world power [7]. Was the constitutional crisis a turning point for European integration? The EU today may be at a crossroads--not because of the failed referenda but rather because of the unresolved tensions in European governance not banished with the referenda's defeat. The transfer of attributes from member states to community institutions is a long term process which confronted numerous set-backs and re-launches. The European Union's recent enlargements in 2004 and 2007 brought in the first plan the importance of the “Europeanization” concept that can be described, with certainty: • as an historical process (spread of European norms and traditions); • as a matter of cultural diffusion; • as a process of institutional adaptation (of the domestic institutions to common European institutional requirements); • as the adaptation of policy and policy processes (synchronization of the domestic policy processes with the European ones). The European integration prospective is one of the milestones that, unconditionally, guide to better standards all the countries that are striving to obtain the EU membership. In these conditions, we fully agree that the Parliaments of the countries play a triple role: to show to the EU that represented countries are willing and able to play a full part as member-states; to show to their domestic electorate that they are recognized by the EU as a full-fledged partner to legitimate their policy programme by reference to EU policies; to raise public awareness, providing public support on the EU integration process and explaining to the electorate the benefits of the Europeanization. Thus, the national Parliaments of the South-East Europe member- states have had to undergo deep changes during the EU integration process in making their countries more Euro-conform.

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So, this situation directs us to the importance of seeking answers for the following questions: how can national parliaments institutionally adjust themselves to Europeanization challenges? Under which conditions national parliaments may play an effective role during the EU integration process? Therefore, the identification of these explanatory conditions and factors of smooth and effective parliamentary involvement in the EU matters during the European integration process is of a crucial importance, in particular for South- East Europe countries that are actually striving for the EU membership. Domestic legislators have to react institutionally to Europeanization process, trying to cope with new challenges. It is a conventional wisdom that all enlargements have introduced different variations of institutional adaptations to Europeanization pressures and it is an open question whether South-East Europe countries on their way to Europe will or should imitate one of the incumbent's styles or develop a new pattern of their own in an enlarged Europe. None of previous cases of enlargement involved such a deep projection of the EU's political and economic power upon the applicant states. The Central and Eastern European states were and are effectively set a much higher threshold than had ever been set for prospective members. Moreover, in the current EU enlargement scenario “pre- accession” and “accession” policies play a much more dominant role than in previous enlargements of the European Union, as the requirements on accession-countries for adaptation and policy convergence are considerably greater than those on previous applicants, owing to the EU much more advanced state of policy development. Therefore, parliaments as national representative institutions will have to play more prominent role in any future EU enlargements because of the following “minimal” tasks: – detailed legal and political harmonization of national legislation with the “acquis communitaire”; – national parliaments have a decisive role in formulating national interests for the pre-accession, accession and post-accession periods;

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– a “communicative function”, since the parliaments are perceived as the windows to the EU for the populations able to provide active public support in the EU integration process; – “scrutiny function” of the national institutions in the EU accession process that can efficiently influence on the structural adjustment of the whole national administration system to the EU requirements. In economic, trade and monetary terms, the European Union has become a major world power. It has considerable influence within international organisations such as the World Trade Organisation (WTO), the specialist branches of the United Nations (UN) and at world summits on the environment and development. The EU as a unit has much more economic, social, technological, commercial and political “clout” than the individual efforts of its Member States, even when taken together. There is added value in acting as one and speaking with a single voice as the European Union. One of the basic objectives of the European Union is to promote economic and social progress which is balanced and sustainable, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, including a single currency. To achieve this objective, it is necessary to promote throughout the Community a harmonious and balanced development of economic activities, leading to a sustainable and non-inflationary growth which respects the environment. The Member States are to regard their economic policies as a matter of common concern and to conduct their economic policies with a view to the objectives of the Community. Therefore, Member States coordinate their economic policies within the Council. The internal market has allowed larger businesses to benefit from enormous economies of scale. Meanwhile, new export markets have been opened up to small and medium-sized businesses which previously would have been prevented from exporting by the cost and hassle. The EU external trade is based on a common EU policy. In other words, where trade, including WTO matters, are concerned, the EU

Knowledge Based Organization 2008 International Conference acts as one single actor, where the European Commission negotiates trade agreements and represents the European interests on behalf of the Union’s Member States [6]. The integration of the Central and East European countries (CEE) into the European Union creates a radically and qualitatively new geopolitical situation on the European continent that, in its turn, requires some thoroughgoing and structural changes from the EU part as to development of international relations in their new form in the countries of the European Union and non-member states.

III. Regional development in European Union and Romania Regional development is a new concept that aims at stimulating and diversifying economic activities, stimulating investments in the private sector, contributing to decreasing unemployment and, last but not least, a concept that would lead to an improvement in the living standards [4]. In order to apply the regional development strategy, eight development regions were set up, spreading throughout the whole territory of Romania. Each development region comprises several counties. Development regions are not territorial-administrative entities, do not have legal personality, being the result of an agreement between the county and the local boards. Rural development has a very distinct place within regional policies, and deals with the following aspects: removal/reduction of poverty in the rural areas; balancing of economic opportunities and social conditions between the urban and rural areas; stimulating local initiatives; safeguarding of the spiritual and cultural patrimony.The development region, constituted as a freewill association of neighbor counties represents the implementation and assessment framework of the regional development policy. The development region is not a territorial–administrative entity and does not have legal personality. The main objectives of the regional development policies are as follows: to reduce the existing regional disparities, especially by stimulating the well-balanced development and the revitalization of the disadvantaged areas (lagging behind in development) and by preventing the emergence of new imbalances; to prepare the institutional framework in order to comply with the integration criteria into the EU

Knowledge Based Organization 2008 International Conference structures and to ensure access to the financial assistance instruments (the Structural Funds and the Cohesion Fund of the EU); to correlate the governmental sector development policies and activities at the level of regions by stimulating the inter-regional, internal and international, cross-border cooperation which contributes to the economic development and is in accordance with the legal provisions and with the international agreements to which Romania is a party; The principles that the elaboration and the application of the development policies are based on are: decentralization of the decision making process, from the central/governmental level to the level of regional communities; partnership among all those involved in the area of regional development; planning – utilization process of resources (through programs and projects) in view of attaining the established objectives; co-financing – the financial contribution of the different actors involved in the accomplishment of the regional development programs and projects. The overview of the situation in Romania related to regional development revealed several aspects, which can lead to the conclusion that in the field of regional policy, there have been a lot of progress achieved during the last years, but there are still many things to be done in order to comply with the legal and institutional requests of the European Union cohesion policy [6]. In order to set up a consistent regional policy and to achieve social and economic cohesion, one major request is to get very detailed and scientifically assessments about the social and economic disparities of the territory. The research proved that: – There has been no profound analysis of regional disparities in Romania and yet is a growing official opinion that disparities are low and insignificant (at least compared to those existent within EU countries); – There is no sufficient attention given to the extremely high disparities between rural and urban areas and within urban areas, proved by numerous studies, which can be a specific feature for Romania among the other EU and CEE countries; – No sufficient attention is paid to rural poverty, although this has been also proved by numerous studies and is currently praised as being

Knowledge Based Organization 2008 International Conference of national importance; – There is not a significant group of aggregated indicators used by an official body at central and/ or regional level, to assess regional and intraregional disparities, for the moment.

IV. Conclusions In this context, we can presume that the national parliaments' active role as “promoters” of the European integration concept, depends on two different aspects of Europeanization: Institutional Europeanization with regard to the establishment of new rules and procedures as well as new institutional provisions in national parliaments to cope with the increasing impact of the European level; Behavioral Europeanization with regard to attitudes, self-definitions of roles and behavior of political actors, namely parliamentarians. In this framework, the South-East Europe national Parliaments appear as an efficient tool to contribute to creation of the New South-Eastern Europe, aiming at a sustainable economic growth, promoting democracy and respect for human rights, transforming the South-East European Cooperation process into a forum for dialogue, for political and economic consultations on the common values and concerns of the region. While the share of services in the economy is growing, industry makes an essential contribution to Europe’s prosperity. Industry is, moreover, increasingly enmeshed with services and contributes to their development. European industry is clearly making encouraging achievements and its progress in the environmental field and in some technological sectors is widely acknowledged. Nevertheless, it is now facing major challenges, some of which come from within (increasingly rapid technological development, skills gaps), while others are external (society’s expectations regarding consumer, environmental and health protection) and yet others international (the emergence of new global competitors).

References [1] Costariol, M., The Development of the SME Sector in Romania, CNA Veneto&Euro-In-Library, Venice, 2003. [2] Frateschi, C., The SME Factor in the Romanian Transition, in The Small and 50

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Medium-Sized Enterprises in the Transition Process. The Case of Romania, CNA Veneto&Euro-In-Library,Venice, 2003. [3] Goldenberg Vaida, V., Funding of Capital Investments in Romania, Open Society Institute, Budapest, 2004. [4] Nedelea, Al., Regionalization, Regional Development and Cooperation in Eastern Europe, Economy and Transition, Albanian Center of Economic Research, no. 3, Tirana, 2005. [5] Szilagyi, G., Harmonization of regional economic and social policies within the Romanian-Hungarian-Ukrainian border area, www.policy.hu [6] Lecat, J., Public Utilities Liberalization and Romanian Accession to the EU, Pre-accession Impact Studies, Institutul European din România, 2003. [7] http://www.europa.eu

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CONSIDERATIONS ON THE NEED AND DESIRABILITY OF CHANGE OF THE LEGAL FRAMEWORK REGARDING THE PROTECTION AND PROMOTION OF THE RIGHTS OF CHILDREN

Assoc.Prof. Nicola Iordan, PhD

“Lucian Blaga” University, Sibiu

Abstract The legal framework governing the observance, promotion and guarantee of the rights of the child consists of a multitude of regulations. Given the diversity and complexity of the rules established by the regulations above, our study will be focused mainly on Law no. 272/2004 on the protection of the rights of the child and subsidiarily, the provisions contained in other regulations, which are of interest for the cause.

Keywords: legal framework, rights of children, Family Code

I. General considerations The legal framework governing the observance, promotion and guarantee of the rights of the child consists of a multitude of regulations, which include: Law no. 272/2004 on the protection and promotion of rights of the child [1], Law no. 273/2004 concerning the legal adoption [2], Law no. 448/2006 on the protection and promotion of the rights of the persons with disabilities [3], The Family Code [4], HG No. 1437/2004 on the organization and methodology of operation of the Commission for the Protection of the Rights of the Child [5], etc. Given the diversity and complexity of the rules established by the regulations above, our study will be focused mainly on Law no. 272/2004 on the protection of the rights of the child and subsidiarily, the

Knowledge Based Organization 2008 International Conference provisions contained in other regulations, which are of interest for the cause. The analysis of Law no. 272/2004 enables us to identify a dual purpose of the regulation, namely: a) The institutional reorganization in the very important, complicated and sensitive domain of child protection; b) The creation of institutions, procedures and norms to ensure the protection of the rights and freedoms of the child, as established by the domestic and international legislations. Law no. 272/2004, commendable, no doubt, for the broad purpose it aims at, contains a number of objectionable provisions on which our analysis will be targeted, at the same time with the formulation of proposals “de lege ferenda”.

II. Conceptual and legislative technique clarifications In this chapter we focus on the inconsistency and superficiality with which our legislator operates. Basically, we refer to the fact that our legislator uses, in various acts, different terms and expressions which, however, have the same meaning. A first example is represented by the terms “child” and “minor”. As results from the very title of Law no. 272/2004, the protection and promotion of the rights of the children is subject to its regulations. In art. 4 para. 1. A of the above-quoted Law, “child” means “the person who has not reached the age of 18 and has not acquired the full capacity of exercise, according to the law.” On the other hand, The Family Code and other regulations operate with the term “minor”, Chapter I of Title III is entitled “The Child Protection”. To remove any doubt as to the meaning of two terms, “child” and “minor”, and in accordance with the rules of legislative technique, we believe that our legislator should use the express repeal use in the drafting of Law no. 272/2004 – on the protection and promotion of the rights of the children, with respect to the term “minor”. In this respect, art. 16 of Law no. 24/2000 on technical rules for the drafting of normative acts stipulates: “"In order to improve the active legislation in the process of preparing the projects of normative acts, one

Knowledge Based Organization 2008 International Conference will follow the express repeal of the legal provisions which lapsed or which present aspects contradictory to the stipulated regulation”. [6] In conclusion, we propose the revision de lege ferenda of The Family Code and the replacement of the term “minor” with the term “child”. On the other hand, we should point out the ambiguity with which the legislator uses the expression “guardianship authority” in various acts. The Family Code uses the phrase “guardianship authority” in several texts, relevant to our study being art. 158 and art. 159. According to The Family Code the phrase “guardianship authority” has a dual significance, namely: – the functional significance, with a plurality of prerogatives which were aimed at protecting the rights of juvenile and of the person placed under interdiction or of the person who, because of old age, disease or infirmity can not manage their assets; – an organic meaning which refers to certain public administration authorities. If the provisions of The Family Code may be considered lapsed and implicitly repealed by Law no. 272/2004, which uses the phrase “the protection of the rights of the child”, the use of “guardianship authority” in the organic law of public administration is bizarre, when establishing the powers of the mayor and of the chairman of the county council. Thus, art. 63. para.2 of Law no. 215/2001 – the law of public administration, republished [7], states that: “Under paragraph 1. “a”, the mayor shall perform the duties of registrar and of guardianship authority...”, art. 64, para. 1 states: “when exercising the powers of guardianship authority and registrar ... the mayor acts as state representative in the parish or town in which he was elected”. On the other hand, art. 104, para. 5, “a” of the republished Law of the Public Administration, confers the chairman of the county council the power to “guide methodologically, through the specialized apparatus of the county council the activity of registry and of guardianship authority carried out in parishes and towns”. The inconsistency and error of our legislator seem most evident in the analysis of other regulations governing the work of registry and that of guardianship authority. First, we must consider the fact that through G.O. no. 84 from 30th

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August 2001 on the establishment, organization and functioning of public services, the registry activity, the issuing of identity cards, of electoral lists, of driving licenses, of simple passports, of registration certificates of vehicles and license plates was reorganized according to the one-stop-office system. Thus, according to art. 4 of the Ordinance: “local community public services for the registration of local people shall be set up, under the control of local councils of the municipalities, towns and parishes, by reorganizing the departments of registry of the local councils’ apparatus and of the local registration offices of the population from the structure of the Ministry of Administration and Interior. These are still referred to as local community public services”. In other words, the specialized apparatus of the mayor no longer provides the registration work, but by this externalized public service and organized under the control of local councils. As a result, there appears the obvious lack of consistency of our legislation. Some provisions of the Law of public administration no. 215/2001 that, although modified in 2006, ignore, we believe, without any intention to modify explicitly, the provisions of another normative effective act, which has a substantially different content. Secondly, the use of “guardianship authority” in the quoted legal text seems bizarre and inconsistent with other regulations, which is why we consider that it needs to be clearly repealed. A first example can be found in Law no. 272/2004 on the protection and promotion of the rights of the child in Chapter VII, Section 2, entitled “Local Institutions and Services”. In this section one finds the regulated local institutional framework with responsibilities in the field of “child protection”. Thus, art. 102 stipulates that: “The local public administration authorities are obliged to guarantee and promote respect for the rights of children in the territorial-administrative units”. Article 105, para. 1 of the law states that: “The public service specialized in child protection subordinated to the county councils and to the local councils of the sectors of Bucharest as well as the public welfare service from the county and sectors of Bucharest are reorganized as general directorate of child welfare and protection”.

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Then, para. 2 of the same article stipulates that: “The general directorate of child welfare and protection is a public institution with legal personality, established under the control of the county council”. Developing the same ideas, art. 106 of the law stipulates that public welfare services are to be organized at the level of towns and municipalities. Essentially, we notice that in the contents of Law. 272/2004 on the protection and promotion of the rights of children the expression: “guardianship authority” is not used. A second example, “which leads us to the conclusion that we should renounce the use of “guardianship authority” is Law no. 47/2006 on the national welfare system. The purpose of the law results from art. 1, namely that of regulating the organization, operation and financing of the national welfare system in Romania. Next, the legislator defines the National Welfare system as “all the institutions and measures by means of which the state, through the central and local public administration authorities, the local collectivity and the civil society intervene in order to prevent, limit or eliminate the temporary or permanent effects of the situations which may generate the social exclusion or marginalization of the individual, of the family, of groups or communities”. [8] Then, in Chapter V entitled: “The Organization and Functioning of the National Welfare System”, Section 2 regulates the institutional organization in the field of welfare at the level of the local public administration. According to art. 31, para. 2 of Law no. 47/2006 on the national welfare: “The local public administration authorities are responsible for the creation, organization and provision of social services”. The social services “represent the complex assembly of measures and actions designed to respond to the social needs of individuals, families, groups or communities, in order to prevent and overcome difficult, vulnerability or dependency situations, to increase the quality of life and promote social cohesion ...” In other words, social services aim at the person in general, including the child, regardless of age, gender, nationality, religion, etc.

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In the content of the law, one does not encounter the phrase “guardianship authority” but another, more complex and closer to the service provided by the public administration, namely that of “welfare”, which we think should be generalized. From another perspective, we find that our legislature again proves its inconsistency, thus giving rise to uncertainties concerning the juridical status of the General Welfare Directorates. The texts in question are the following: a) Article 105, para. 2 of Law no. 272/2004 on the protection and promotion of the rights of children according to which: "The General Directorate for Child Welfare and Protection is a public institution with legal personality, established under the control of the local county councils or of the local councils of the sectors of Bucharest, which takes over, in an appropriate manner, the prerogatives of the county public welfare services and of the public welfare services of the sectors in the city of Bucharest”. b) Article 32 of Law no. 47/2006 on the national welfare according to which: “The county councils establish and organize, under their control, the public welfare service, at the level of general directorate, with the following main prerogatives...”; The comparative study of the two texts enables us to draw the following conclusions: 1. The fact that both texts regulate the same object, namely: the establishment of a public service, under the control of the county council, with the organizational structure of general directorate, is beyond any doubt; 2. A text categorizes the general directorate as “public institution” and the second text categorizes it as “public service”. In our opinion, it is the same thing, i.e. the “formal-organic” meaning or the material- functional meaning of the concept of public service. [9] 3. The name of the public institution (public service) is different; 4. Ministry of Labor, Social Solidarity and Family has not fulfilled the obligation stipulated by art. 51 of Law no. 47/2006 according to which it had “to elaborate appropriate amendments and additions to the effective normative acts in the field welfare”. [10] In this context, we make a proposition de lege ferenda that both

Knowledge Based Organization 2008 International Conference texts be modified, formulating them in the following way: “The county councils establish and organize, under their control, general welfare directorates, public services with legal personality, having the following prerogatives ...”. One can notice that we removed the words “child” and “protection” from the name of the general directorate stipulated in art. 105, para. 2 of Law no. 272/2004, in view of the powers conferred by law to the public service in question, aimed at both adults and children.

III. Aspects of material law 1. One aspect confusingly regulated, which is likely to create a non- unitary administrative practice, can be found in the establishment of guardianship, a thing regulated both by the Family Code and by Law no. 272/2004 on the protection and promotion of the rights of children. If in relation to the situations in which the establishment of guardianship is necessary there are no essential differences, the power to set up guardianship is given to the public administration authorities by the Family Code, while other normative act (Law no. 272/2004) gives it to the Courts. Thus, art. 40, para. 2 of Law no. 272/2004 on the protection and promotion of the rights of the child states that: “Guardianship is established according to the law (which law? s. n. [11]) by the judicial institution in whose territorial constituency the child lives or is found”. On the one hand, the drafting of the aforementioned text is confusing, likely to raise real questions about the normative act (law) on the basis of which guardianship is established, and, on the other hand, it raises questions about the authority which has the power to establish it, as long as art. 116 of the Family Code stipulates: “The appointment of the guardian is done by the “guardianship authority”, ex officio or after it has been notified by those mentioned in art. 115”. We believe that an urgent de lege ferenda clarification of this matter is necessary. In our opinion, the legislator should give an executive authority of the local public administration (mayor and / or county council chairman) the power to establish guardianship and not to the court. Our proposal aims at quickly solving the situations that require the establishment of

Knowledge Based Organization 2008 International Conference guardianship. 2. On the other hand, we must notice the fact that, while the Family Code uses the term guardian in the singular in the case of establishing guardianship, Law no. 272/2004 uses the plural or, more strangely, the term “family”. A most urgent elimination de lege ferenda of this manifestly illegal provision is necessary. 3. We believe that is absolutely essential to amend art. 65. para. 1 of Law no. 272/2004 which has the following wording: “In the case of a found child or of one abandoned by his mother in hospital, or of a child abused or neglected when there is opposition from representatives of corporate bodies and from the individuals who look after the child or ensure his protection, the urgent placement is established by the head of the general directorate of child welfare and protection from the territorial-administrative where the child is found”. Art. 64 para.3 of the same law states that: “Throughout the duration of urgent placement ... the rights and obligations concerning the assets of the child are exercised and fulfilled by the county council chairman”. This is a utopian provision because it is impossible, factually and legally, for the county council chairperson, to exercise these rights and obligations. This is why, we, propose the modification de lege ferenda of these texts. 4. We propose the modification de lege ferenda of the material competence regarding the establishment of special protection measures for children to respect the principle of “celerity” in taking any decision regarding the child. This is established by art. 6, “j” of Law no. 272/2004 on the protection and promotion of the rights of children. Concretely, we propose the establishment of “placement” and of “urgent placement” to be the responsibility of the public administration authorities and the establishment of “specialized supervision” to be established by the courts of justice. We believe that such a settlement of the issue would ensure greater efficiency in the establishment of special protection measures.

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V. Conclusions In this study, we tried to show some inconsistencies of the legislation that regulates the welfare activity and child protection. A number of rules, and here we have in view the Family Code, are certainly lapsed and, unfortunately, create problems and do not solve them as they are supposed to. On the other hand, Law no. 272/2004 on the protection and promotion of the rights of children contains a series of provisions that, in our opinion, should be modified and completed according to the pending legislation and the conditions of society.

References [1] Published in Monitorul Oficial al României, Part I, no. 557, 23 June 2004. [2] Published in Monitorul Oficial al României, Part I, no. 557, 23 June 2004. [3] Republished in Monitorul Oficial al României, Part I, no. 1, 3 January 2008. [4] Republicat in Monitorul Oficial al României, no.13 din 18 April 1956, based on art. VII of Law no.4/1956. [5] Published in Monitorul Oficial al României, Part I, no. 872, 24 September 2004. [6] Republished in Monitorul Oficial al României, Part I, no. 777, 25 August 2004, with the ulterior amendments and additions. [7] Republished in Monitorul Oficial al României, Part I, no. 123, 20 February 2007, with the ulterior amendments and additions. [8] See art. 2 of Law no. 47/2006 on the national welfare system. [9] Nicola, Drept administrativ, Sibiu, Editura Universităţii „Lucian Blaga”, 2007, p. 57; [10] Law no. 47/2006 on the national welfare system was published in Monitorul Oficial al României, Part I, no. 239, 16 March 2006 and became effective on 18 March 2006. [11] See art. 37 Law no. 24/2000.

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COMBATTING CORRUPTION AND PROMOTING ETHICS IN THE PUBLIC SERVICE

Assoc.Prof. Voicu Adela, PhD

“Spiru Haret” University, Constanţa

Abstract Fight against corruption begins with installing better systems and promoting competition, transparency and accountability in government. Changing assumptions about the role of government at the beginning of the twenty first century have brought about a parallel quest for reorientation in the role of the civil servants. While a professional civil service remains an essential requirement for effective government, a perceived lack of responsiveness to public concerns and globalization of many issues have made new demands for enhanced skills and attitudes of the public servants.

Keywords: corruption, ethics, public service, transparency, accountability

1.0. Democracies survive, in the long run, only if there is a sufficient level of confidence that government officials will act ethically. Recognizing that a position of trust imposes ethical obligations upon administrative assistants, office coordinators, executive secretaries and other types of administrative professionals to act for benefit of employers, clients, and the public, members of the International Association of Administrative Professionals (IAAP) established and promulgated four standards of professional conduct and resolve to be guided by them as embodying the ethical ideals of their profession [1]. 1.1. The development of a Code of Ethics demonstrates that the administrative support profession accepts the obligation to engage in 61

Knowledge Based Organization 2008 International Conference self-discipline and accepts the responsibility and trust earned by administrative professionals throughout past generations. Each administrative professional has a personal obligation to support and follow the Code, recognizing that the greatest penalty possible for its violation is loss of the respect of professional colleagues and the trust of employers, clients, and society. 1.2. Ethical behavior is encouraged by both the Code and the profession. An administrative professional's personal ethical behavior may often exceed the requirements of the Code, which do not demand less than the law, and often exceed those of the law. Persons found guilty of violating laws will be considered in prima facie violation of the Code and may be censured or otherwise penalized by the association or profession. 1.3. The administrative professional shall act as a trusted agent in professional relations, implementing responsibilities in the most competent manner and exercising knowledge and skill to promote the interests of the immediate and corporate employer [2]. 1.4. The immediate employer shall be considered to be the person or persons who, by an established and predetermined arrangement, receive directly the agreed upon services of the administrative professional. The corporate employer shall be considered the entity (company or organization) providing the administrative professional's compensation. In cases where the immediate employer does not provide compensation for the administrative professional, the administrative professional's principal obligation shall be to serve the corporate employer. In serving the immediate employer, however, the administrative professional shall not act contrary to interests of the corporate employer or to public safety and welfare or in such a way as to impair the dignity and status of the profession. 2.0. The administrative professional shall strive to avoid conflicts of interest with the immediate employer whenever possible, but if such conflicts cannot be avoided or resolved, the administrative professional shall fully disclose to the immediate employer and all interested parties the relevant reasons and circumstances. 2.1. Communications and information either given in confidence or such that confidentiality is required to serve the best interests of the

Knowledge Based Organization 2008 International Conference immediate employer shall not be revealed by an administrative professional unless permission to do so is granted by the immediate employer or continued confidentiality is harmful to the corporate employer, client, public, or profession. Testimony in a court of law regarding confidential matters should be given only under the immediate or corporate employer's authorization, under legal compulsion, or to protect the public from harm. 2.2. The administrative professional will assume responsibilities only when qualified by training and experience and shall inform the immediate or corporate employer concerning any lack of qualification which might harm the interests of the employer or impair the administrative professional's capacity to serve such interests. In acting as agent for an immediate employer, the administrative professional shall strive to accurately and honestly represent the views and interests of the immediate employer as well as the views and interests of those who seek to contact or influence the immediate employer, and shall not distort or misrepresent such views and interests, whether for personal advantage or to protect the employer from unwelcome information. The administrative professional shall respond to those seeking the immediate employer's professional attention with impartial courtesy and consistent good will, recognizing that by the administrative professional's demeanor the immediate employer will be judged [3]. 2.3. When entrusted with funds or material goods essential to serve the employer, an administrative professional shall never appropriate or use such funds or goods for personal or nonprofessional purposes, and an administrative professional shall never use the employer's facilities or time for the pursuit of such purposes without the express consent of the immediate employer. The administrative professional shall not accept outside employment or accept any form of compensation from outside sources which would impair the efficiency and effectiveness of the administrative professional or which would be in conflict with the employer's welfare. 2.4. The administrative professional shall strive to maintain and enhance the dignity, status, competence, and standards of the profession and its practitioners. The administrative professional, when

Knowledge Based Organization 2008 International Conference applying for or being listed for employment, shall not make exaggerated, misleading, or false claims concerning training or qualifications. When judging the qualifications of other persons, whether in providing references, assisting with assignments, or evaluating performances, the administrative professional shall strive to provide fair and objective appraisals and shall attempt to avoid any false, malicious, or indiscriminate injury to or criticism of the professional reputation or work of others. 2.5. The administrative professional will cooperate with other administrative professionals in extending public knowledge and appreciation of the profession and its achievements and will strive to protect it from misrepresentation and misunderstanding. The administrative professional shall insist that decisions upon continued employment, compensation, and promotion be based upon professional knowledge, ability, experience, and performance. 2.6. The administrative professional shall strive to improve working conditions and to ensure equal employment opportunities within the profession and throughout the organization by which employed. The administrative professional shall refuse to cooperate with or condone by silence the actions of coworkers or employers who misuse their positions for personal, nonprofessional advantage and shall resist, and if necessary report to the proper authorities, instances in the workplace of harassment for reasons of sex, creed, race, or age. The administrative professional shall inform the employer concerning any changes in conditions of employment, including fringe benefits, which encourage inefficiency or make difficult the proper performance of prescribed assignments. 2.7. The administrative professional must consider the promotion and preservation of the safety and welfare of the public to be the paramount duty. The administrative professional, in addition to sharing with all concerned citizens an obligation to promote the general welfare and safety, has a special obligation to cooperate with and promote the interests of other allied professions and to exercise particular concern for those directly affected by the actions of employers served [4]. 3.0. The Council of Europe became strongly interested in the

Knowledge Based Organization 2008 International Conference international fight against corruption because of the obvious threat corruption poses to the basic principles this organization stands for: the rule of law, the stability of democratic institutions, human rights and social and economic progress. The Committee of Ministers, at its 101st Session on 6 November 1997, adopted Resolution (97) 24 on the Guiding Principles for the fight against Corruption. Principle 10 specifically indicates that States should ensure that the rules relating to the rights and duties of public officials take into account the requirements of the fight against corruption and provide for appropriate and effective disciplinary measurements and to promote further specification of the behavior expected from public officials by appropriate means, such as codes of conduct. 3.1. In accordance with the Final Declaration and the Plan of Action adopted by the heads of states and government of the Council of Europe at their Second Summit, held in Strasbourg, on 10 and 11 October 1997, considering that public officials are the key element of a public administration, The Committee of Ministers of the Council of Europe by Recommendation No. R(2000)10, has recommended that the governments of member states promote, subject to national law and the principles of public administration, the adoption of national codes of conduct for public officials based on the European model code. 3.2. The European model code of conduct for public officials applies to all public officials-persons employed by a public authority but may also be applied to persons employed by private organizations performing public services. The purpose of the code is to specify the standards of integrity and conduct to be observed by public officials, to help them meet those standards and to inform the public of the conduct it is entitled to expect of public officials. 3.3. Romania has harmonized its administrative law system with the E.U. Directives by public administration reforms and strategies. There is a political consensus on creating a professional and neutral civil service in Romania. The Romanian Parliament, at its Ordinary Session on 18 February 2004 adopted the Law No.7 on the Code of conduct for the Romanian public officials and at the Ordinary Session on 10 May 2007 adopted the law on the National Agency for Integrity.

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The Romanian Government adopted other two important decisions: the Act No.231/2005 on National Strategy against Corruption and the Act No.1000/2006 on National Agency of Public Officials. All these normative acts were adopted to harmonize the Romanian administrative law system with the E.U. Directives in the field. 3.4. The Romanian Code of conduct for the public officials fills the gap between on the one hand often abstract legal regulations as to the principles of behavior and, on the other hand the requirement of guidance in numerous difficult situations of an employed person' s day-to-day life. It seeks to eliminate areas of uncertainty by offering either directly applicable instructions on how to cope with a given situation, or indications on where and how to receive such instructions. The code can offer specific guidance in situations where the employed person may feel that he has to deal with a conflict of interest. 3.5. Ethics reform is central to the survival of democratic governments because institutions based on sound ethical principles are necessary preconditions for stable democracies. Some authors suggest two sets of preconditions necessary for a stable democracy to exist: l. the situational preconditions; 2.the institutional preconditions. 1. The situational preconditions are: a. a medium of economic prosperity; b. general system stability and ethnic harmony; c. agreement of the rules of the game; d. the presence of valued and effective institutions; e. general popular contentment. 2. The institutional preconditions are: a. free elections for a popular mandate, with elected officials held responsible to the citizenry; b. the existence of an effective, independent judiciary; c. depoliticized bureaucracy functioning according to written rules; d. legal guarantees (usually of a constitutional nature) of basic rights; e. a free press. 3.6. Any democracy considering ethics reform should scan this list to determine which preconditions, by their absence, most imperil

Knowledge Based Organization 2008 International Conference success of both the democratic institutions and the ethics reform efforts. A second scan should determine which preconditions do exist that can be utilized in an ethics reform effort. Knowing the opportunities and the threats will allow the reform effort to be designed more effectively. For example, a strong free press can help hold elected officials responsible to the citizenry by publicizing their deeds and misdeeds. If a nation is experiencing instability and ethnic clashes, this might be countered and influenced by the enforcement of basic rights by an effective, independent judiciary. An effective ethics reform strategy should target the greatest threats to a nation's stability and utilize its strengths. 4.0. Public servants are subject to the rule of law, just as all citizens are subject to the laws and constitutions of a nation state. Respect for that legal framework and adherence to the rule of law are the most fundamental of all ethical precepts for public servants and serve as a minimum standard performance measurement is one form of holding officials accountable and accountability is a fundamental principle in public service ethics. Process re-engineering, another management reform strategy popular today, simplifies and publicizes processes that were once overly bureaucratic, time consuming or confusing. Process re-engineering can contribute to both the fairness and the transparency of government, as well as to its effectiveness. 4.1. When ethics is thought of as separate and apart from good management, then it is possible to create reforms that make it impossible to govern effectively. The goal should be to enhance ethical accountability, but to do so in a way that also enhances good management practice, or at least does little harm. For example, a system that allows individual public officials complete discretionary control over purchasing, with no accountability, invites ethical abuse and is fundamentally bad management. Reform of such a system can either be presented as a management reform effort or as an ethical reform effort, whichever would be most successful in the climate of the time. But that reform effort should not result in such a morass of complicated rules and procedures that the public official spends excessive resources in time and energy to purchase something in a procedurally correct manner, which could have been purchased more

Knowledge Based Organization 2008 International Conference easily at the corner store. 4.2. Since 2006, in Romania there is a specialized institution named the National Agency of Public Officials which main purpose is to coordinate the fight against corruption and to develop integrity, transparency and accountability in public administration. Some reports on corruption in Romania made on 2005-2007 by World Bank, Transparency International, Freedom House Washington Inc. underline the necessity of a national strategy against corruption in public administration, justice and police. In any discussion concerning corruption, the adoption and implementation of codes of conduct can be considered of crucial importance. A code of conduct for public officials could be of great benefit in the fight against corruption, in setting minimum standards in ethics, in the emerging democracies of Central and Eastern Europe, in general and in Romania, in particular.

References [1] Fukuyama, Fr., 2004, State-Building. Governance and World Order in the 21st century, Ithaca, N.Y., Cornell University Press, 2004, pp. 105-106. [2] Eriksen, E.O., 2005, Making the European Polity. Reflexive Integration in the UE. London: Routledge, 2005, pp.93-94. [3] Jean, R., Jean, W., 2000, Droit administrative, 18-eme edition, Precis, Dalloz, 2000, pp. 112-114. [4] Simon, H.A., Thomson, V.A., Smithburg, D.W., 2003, Administratia publicd, Editura Cartier, Bucuresti, 2003, pp.181-182. [5] Peters, B.G. and Pierre J., (eds,), Handbook of Public Administration, London: Sage, 2003, pp. 181-183.

Legea nr.188/1999 privind Statutul funcţionarilor publici. Legea nr. 215/2001 privind Administraţia publică locală. Legea nr.7/2004 privind Codul de conduită a funcţionarilor publici. Legea nr.251/2006 pentru modificarea şi completarea Legii nr.188/1999 privind statutul funcţionarilor publici. Hotărârea de Guvern nr. 231/2005 privind aprobarea strategiei naţionale anticorupţie pe perioada 2005-2007 şi a Planului de acţiune pentru implementarea Strategiei naţionale anticorupţie pe perioada 2005-2007. Hotărârea de Guvern nr. 1000/2006 privind organizarea şi funcţionarea Agenţiei Naţionale a Funcţionarilor Publici.

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REVIEWING THE LEGALITY OF ADMINISTRATIVE ACTS, JURISDICTIONAL MECHANISM FOR MEETING THE REQUIREMENTS OF THE RULE OF LAW

Asst.Prof. Steluţa Ionescu, Ph.D.

“Valahia” University, Târgovişte [email protected]

Abstract The relation between the rule of law and the supremacy of the law is easy to establish, the former being conceived exactly as the state in which the law governs. Thus, faced with influences that could generate imbalances, the Romanian law system makes use of entities and mechanisms that are meant to oversee the manner in which the provisions of the law are enforced. One of these is aimed at the intervention of justice pursuing the identification and correction of the imperfections of enforcing the law by the executive authority, issue known as the review of the legality of administrative acts or the jurisdictional review of the acts of the executive power.

Keywords: rule of law, administrative contentious, jurisdictional review, legality, non-legality.

1. General Considerations From a purely institutional perspective, the constitutional system represents “a coherent and harmoniously structured ensemble of political institutions and juridical norms through which the governance mechanisms stipulated by the Constitution are objectivated” [1]. Such coherence is reached only by operating a mechanism that continuously ensures the system’s self-regulation and adapting to an always new social reality, and this is only possible 69

Knowledge Based Organization 2008 International Conference through the creation of such necessary mechanisms [2]. This issue is even more pregnant since one of the premises of the rule of law is the constitutional supremacy, principle with unarguable value, in absence of which the Constitution retains only a purely symbolic importance. This is not something to be desired, if we take into account that fulfilling this requirement implies in fact “the assurance of social stability and juridical order in the state” [3]. Thus, the state is in possession of regulatory mechanisms, some with jurisdictional character. On the one hand, it is instituted a mean for reviewing the constitutionality of laws [4], either integrated with the judiciary authority [5], or of special character [6]. On the other hand, equally important, it operates a mechanism that envisions the imperfections of enforcing the law by the executive authority, one that requires a review by the jurisdiction, known as the review of the legality of administrative acts.

2. Jurisdictional Review of the Legality of Administrative Acts 2.1. Preliminary Aspects The relation between the powers of the state, especially in a state of the law, can only be one based on separation and balance – as invoked by our Constitution. The review of the legality of administrative acts by the judiciary power [7] is precisely the expression of a concrete case in which the activities of bodies that perform the tasks of a state power are reviewed by the bodies of a different state power. The theorists of processual law qualify this reviewing process as being judicial or jurisdictional, when placed against another, called judiciary [8]. In different terms, this represents the administrative contentious [9], juridical institution of great relevance, defined by professor Prisăcaru – specialist in the matter – as the juridical form of defense of human rights against potential abuses by the bodies of the public administration and the public servants that operate them [10].

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2.2. Elements of Comparative Law A brief comparative look reveals that the institution of administrative contentious does not adopt the same configuration in all law systems of the world. We will exemplify by taking into consideration a few European law systems. Thus, France excels through a particular configuration of the administrative contentious institution and its associated jurisdiction. Here, the administrative contentious allows the instances to summon or to remove the misbehavior and the deviances the authorities allow themselves to admit. As the supreme administrative instance, the State Council (Conseil d’Etat) decides sovereignty, its solutions being unattackable. Maintained even today, a dualist system of judgment functions within the French system, with two coexistent orders of jurisdiction, a judiciary one (of common law) and an administrative one. In France, the State Council judges in first instance, certain matters; at the same time, it also functions as an instance of appeal against certain administrative jurisdictions, and as an instance of cassation for all decisions issued by administrative tribunals. In Finland, the superior instance of administrative contentious is represented by the Supreme Administrative Court (Korkein hallinto- oikeus) that oversees the provincial administrative tribunals and judges all their decisions as an instance of recourse. It also judges the recourses against the decisions issued by the Council of Ministers, Ministries, central committees, as well as the recourses against solutions issued by other specialized tribunals. The judges of administrative contentious instances, including those of the Supreme Administrative Court, are not full-fledged judges, but administrative servants with jurisdictional attributions. Greece’s State Council (ΣυμβούλιοτηςΕπικρατείας) judges: recourses to annulment (for excess of power) of administrative acts, both individual and regulatory (normative), being, from this perspective, a judge in annulment of common law; the recourses in cassation against decisions issued by administrative tribunals; the recourses of full jurisdiction placed in its competence by a special provision of the Constitution.

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In Belgium, the State Council, represented by the administrative contentious section, has competence for examining the excess of power litigations. The object of contentious for excess of power is made of individual or normative administrative acts that are mandatorily issued by an administrative authority. Given the lack of administrative tribunals as first instance courts, the State Council judges in first instance and decides on the definitive solution. The Dutch State Council (Raad van State), through its Jurisdictional Section, judges several categories of recourses against administrative acts issued by a municipal or provincial organ, or by a Ministry.

2.3. The Romanian Administrative Contentious The administrative jurisdiction made its appearance in the Romanian juridical environment in the year 1864, this year being acknowledged as the moment of the effective formation of administrative contentious [11], when the State Council was established by law, as a consultative organ along the Government. Since 1864, there have been different forms of administrative contentious. In 1866, the State Council is dissolved, and in 1948, the juridical institution of administrative contentious disappears also. Then, in 1990, by adopting the Law no. 29/1990 of December 8, 1990 [12], Romania experiences the transformation of the traditional system in the matter. A crucial step in the evolution of the regulation of administrative contentious as an institution was taken with the revision of the Constitution, in October 2003, occasion with which it is showed that this jurisdictional review of the legality of administrative acts is perhaps the most efficient form of control over their legality, since it is exercised from outside the system of state administration organs. The modifications brought forth by the revision of the fundamental law also marked, among other things, the drawing of some notable dimensions for the administrative contentious. Thus, the plaintiff is now able to base its action not only on a subjective right, but also on a legitimate interest, and the state will be accountable patrimonially for any judiciary errors. What was subjected to revision was in fact a return to the traditional solution, the text of the Constitution having express

Knowledge Based Organization 2008 International Conference provisions concerning the acts exempted from control [13]; thus, it is wished to prevent any tendencies that are abusive and dictated by political interests of extending the scope of exemptions. Added to these is the preoccupation of the constitutional legislator for the express regulation of the competence of administrative contentious instances to decide on the requests of damaged parties by means of ordinances or provisions from ordinances declared unconstitutional. This is an aspect of major importance and of undisputable opportunity in a society in which the increased appetite of the executive power for legiferation [14] is still manifesting itself. The current regulation of the Romanian administrative contentious is represented by the Law no. 554/2004 [15], a welcome presence in the current normative landscape. The text of the law promptly starts by defining the notion of administrative contentious, as being the activity of solutioning, by instances of administrative contentious competent under the law, of litigations in which at least one party is a public authority, and the conflict was born either from the issuing or, depending on the case, the concluding of an administrative act, under the provisions of this law, or from the lack of a solution within the legal time frame or from the unjustified refusal to solve a request related to a right or a legitimate interest [16]. Starting from the sense given by the law, a recent study advances a more concise definition [17] for the administrative contentious, as the judicial review of legality of public authority activities, exercised by specialized instances, through a procedure regulated, in principle, by the norms of public law. Thus, there are two ways of exercising it: the way of direct action [18] and the way of indirect action [19], the latter being known as exception of non-legality, regulated for the first time in our legal system. Very important and worth keeping in mind is that, among the innovative aspects brought forth by the new regulation is the consideration shown by the legislator toward legitimate interest, both personal (in the case of subjective contentious), and in general (in the case of the objective contentious). Thus, through the objective contentious it is intended to reestablish the general legality, while through the subjective contentious, it is envisioned to reestablish a personal situation not recognized by the public authorities [20]. An element brought by the new

Knowledge Based Organization 2008 International Conference law in the matter is also the right to notify the administrative contentious instance, belonging to multiple subjects [21], called “sezina” subjects. Relevant for the objectives of this theme is bringing to attention a few aspects related to the competence of judging instances and the juridical nature of the solutions pronounced by them. Thus, in relation to the competence, all actions in administrative contentious, regardless of the category they fall into, are in the competence of judging instances [22]. Concerning the solutions issued in administrative contentious, a few clarifications are in order. In the case of direct actions, the following solutions – stipulates Law no. 554/2004 – are available to be issued: the annulment of an administrative act, the obligation for a public authority to issue such an act, to conclude an administrative contract or to execute an obligation stemming from such a contract. In the case of the exception for non-legality, the instance pronounces only a solution to take notice of the illegality of an administrative act of authority and its removal from the solutioning of a litigation currently debated in a court of justice [23]. The jurisdictional act pronounced in the administrative contentious action has a different juridical nature, depending on its form. Thus, the solutions issued in subjective contentious and those on the exception of non-legality have individual character and inter partes effect, their nature being one of veritable jurisdictional acts. Contrarily, the decisions issued in objective contentious actions, through which normative administrative acts have been annulled, have erga omnes character, as the text of the law stipulates [24]. Thus, it can be said that, under the requirements of the rule of law, in the jurisdictional reviewing process, the active subject is placed – as in any other process – on equal footing with the administrative authority, while the instance – neutral in relation to the parties – pronounces the law, as in any other cause its intervention is invoked.

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References [1] Cristian Ionescu, Tratat de drept constituţional contemporan, Bucureşti, ALL Beck, 2003, p. 374. [2] Our approach targets only those mechanisms of jurisdictional nature. Thus, the sphere of regulatory systems in the rule of law is much larger. For a point of view on this matter, Ion Deleanu, Instituţii şi proceduri constituţionale, Bucureşti, Editura C.H. Beck, 2006, p. 84 and following. [3] Ibidem, p. 182. Or, in other terms, the Constitution would represent the law “that sits at the foundation of state organization, […] being the juridical base for the whole legislation” – for details, Ioan Muraru, Simina Tănăsescu, Drept constituţional şi instituţii politice, Bucureşti, Editura C.H. Beck, 2006, p. 56 and following. [4] This constitutes the object of one important regulatory system in the rule of law, along with: the political control over the executive power exercised by the Parliament, the administrative reviewing, the jurisdictional reviewing of the legality of administrative acts, the conciliation procedure, the organization of the judging activity in multiple degrees of jurisdiction – in detail, Ion Deleanu, op.cit., p. 84 and following. [5] Specific to the American system. [6] Specific to the European model. [7] The present approach focuses only on the reviewing exercised by the courts of justice on the acts issued by the public administration; thus, lato sensu, the review of legality is shared between the hierarchical administrative organ, that conducts the preliminary procedure of the contentious, and, depending on the case, the court of justice or the jurisdictional organ – for details, Cezar Corneliu Manda, Controlul administrativ în spaţiul juridic european, Bucureşti, Editura Lumina Lex, 2005, p. 270 and following. [8] This is the review exercised by a court of justice on the legality and reliability of acts issued by a different instance of the judiciary system, placed on an inferior hierarchical level. [9] Etymologically, the notion of contentious is derived from the Latin contenciosus (squabbling) and contentio (conflict, dispute, confrontation). Juridically, the term defines both the activity of reviewing the legality of administrative acts, and the organ in charge with issuing an adequate solution – for a generous etymological examination of the term, Dana Apostol Tofan, Drept administrativ, Vol. II, Tematica prelegerilor, repere bibliografice, Bucureşti, Editura All Beck, 2004, p. 281 and following. [10] Valentin Prisăcaru, Tratat de drept administrativ roman, Partea generală, Bucureşti, Editura ALL, 1996, p. 286. [11] Ibidem, p. 283.

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[12] Of interest are the critical observations and conclusions formulated shortly after the adoption of Law no. 29/1990, some of these finding remedy only today, in the light of the new law in the matter – for details, Sofia Popescu; Dana Apostol, Le contentieux administratif en tant qu'instrument de protection du citoyen, Revue internationale de droit comparé, nr. 2/1993, p. 366 and following. [13] Art. 126 places in this category: the acts concerning the relations with the Parliament and the military command acts. [14] Making possible “the hope for a correct practice of governing through Government ordinances” – Mihai Constantinescu, Antonie Iorgovan, Ioan Muraru, Elena Simina Tănăsescu, Constituţia României revizuită.Comentarii şi explicaţii, Editura All Beck, 2004, p. 270. [15] The Law of administrative contentious no. 554/2004 was published in Monitorul Oficial al României, Part I, no. 1154 of December 7th, 2004. The text was subsequently modified, the most important change being that brought forth by the Law no. 262 of July 19th, 2007, published in Monitorul Oficial al României no. 510 of July 30th, 2007. [16] Provisions of Art. 2 Paragraph 1 Letter e from the Law no. 554/2004. [17] Anton Trăilescu, Studiu comparativ asupra formelor contenciosului administrativ, Dreptul nr. 3/2006, p. 110. [18] The most frequent, that implies the annulment of the illegal act or the obligation for the public authorities to adopt a conduct prescribed by the law. [19] Having as purpose only the removal of an unilateral administrative act from the solutioning of a judicial litigation. [20] Virginia Vedinaş, Unele consideraţii teoretice şi implicaţii practice privind noua lege a contenciosului administrativ nr. 554/2004, Dreptul nr. 5/2005, p.10. [21] As such, there are: any physical or juridical person damaged in a subjective right or legitimate interest, the Ombudsman, the Public Ministry, the issuing public authority, the National Agency of Civil Servants, the Prefect. For details in this matter, Antonie Iorgovan, Noua lege a contenciosului administrativ. Geneză, explicaţii, Editura Roata, Bucureşti, 2004, p. 267 and following; Ivan Vasile Ivanoff, Subiecţii de sezină, Analele Facultăţii de Ştiinţe Juridice, Anul III, nr. 1, Târgovişte, Editura Bibliotheca, ianuarie 2006, pp. 46-52. [22] According to the provisions of art. 10 of the Law no. 554/2004, the competence is distributed between the fiscal-administrative tribunals and the courts of appeal, depending on the value of the object involved. [23] The instance in front of which the exception of non-legality is invoked issues a motivated closure through which will either notify the instance of administrative contentious, or reject, for being without interest, the request

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to notify the specialized instance and will then continue the judgment – for details, Anton Trăilescu, work cited, p. 117 and following. [24] Art. 23 of Law no. 554/2004. The modification brought to this law in 2007 also institutes the obligation to print them. The text stipulates that: “The definitive and irrevocable judicial decisions through which an administrative act with normative character was partially or totally annulled (…) are to be mandatorily published after motivation, in Monitorul Oficial al României, Part I, or, according to case, in the official monitors of Bucharest or administrative districts, being exempted from publishing fees”.

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ASPECTS REGARDING THE RIGHT TO INFORMATION AS SETTLED BY ART. 31 FROM ROMANIAN CONSTITUTION AND BY LAW NO. 544 FROM 2001 REGARDING FREE ACCESS OF ANY INFORMATION OF PUBLIC INTEREST

Asst.Prof. Şaramet Oana

“Transilvania” University, Brasov, [email protected]

Abstract The paper objectively examines the right to information circumscribed to the domain of human rights and public liberties. In Romania, on the basis of the constitutional provisions from 1991, revised in 2003, the Parliament passed a new law for our legislation, regarding the free access to any information of public interest –Law No. 544 from 2001 that was modified and amended later. We have to specify that the Constitution of Romania was revised in 2003 by means of Law No. 544/2001. Art. 31 of the Constitution and art. 1 paragraph 1 of Law no. 544/2001 settled that the public authorities, according to their competence, shall be bound to provide the correct information of the citizens in public affairs and matters of personal interest. But the public authorities tried and still try to delay or to refuse or even to restrict the exercise of the right of information. In such case, the citizens can address a complaint to the Institution of the Advocate of the People or its Territorial Offices which, using its legal procedure, defend the citizens’ rights and freedoms in their relationships with the public authorities.

Keywords: right, information, public, authorities, complaint

In its first session in 1946, the General Assembly of United Nations Organization (UNO), by means of the Resolution 3I/I from 9th

Knowledge Based Organization 2008 International Conference of February 1946, declared freedom of opinion and of speech as fundamental human rights and as the basis of all the liberties consecrated by the United Nations, still the organization couldn’t define “the right to information”, although it adopted three projects of instruments in this matter [1]. Although, the states members preferred a distinct settlement of these fundamental rights by means of their constitutions, admitting and protecting thus he freedom of expression, the freedom of conscience, the freedom of opinion or the right to information, by means of Article 19 from the Universal Declaration of Human Rights, proclaimed by the General Assembly of UNO on 10th of December 1948, it was preferred the identification of a single freedom, namely freedom of opinion and speech. Due to this article, any person has the right to freedom of opinion and speech that implies also the right to search, to receive, to spread, without borders considerations, information and ideas by any modality of expression. By means of Article 19 of the International Covenant regarding the Civil and Political Rights, adopted and ratified by the General Assembly of UNO by means of Resolution 2200/A.XXI from 16th of December 1966, these principle settlements were developed in the sense that freedom of expression contained also freedom of searching, receiving, spreading information and ideas in any modality, no matter the borders of the states, in any form, be it oral, written, printed or artistic, or by any other support at persons’ choice. But since this freedom is not an absolute one, it was settled in Art.19, paragraph 3, that the freedom had to be submitted to some restrictions that had to be settled expressly by means of law. These restrictions must be necessary in a democratic society, and among them we can enumerate: the respect to the others’ rights and reputation and the defense of national security, public order, health and public morality. These restrictions were also settled in Art.20 from the Covenant and they regard the fact that it is forbidden to any state to promote the war and any other incitement to national, racial, religious hatred, fact that represents discrimination and incitement to hostility and violence. Although, in 1949, the General Assembly of UNO adopted a project of convention referring to the international transmission of information and to the right of rectification, not even now a document

Knowledge Based Organization 2008 International Conference with the value of a fundamental right with regard to right to information couldn’t be adopted. Still the General Assembly of UNO, by means of specialized organisms or commissions, adopted numerous documents and resolutions that settled different aspects regarding this freedom. Even, if at an international level a unitary settlement regarding the right to information wasn’t adopted, at the regional level, the European Convention of Human Rights, adopted at Rome on 4th of November 1940 and ratified by Romania by means of Law No. 30/1994, settled the content of this right within the article regarding freedom of expression. Thus, Article 10 paragraph 1 settles that this right contains also the liberty of receiving and communicating information or ideas without the involvement of the public authorities and without taking into consideration the borders of the states. By means of this settlement, there is no impeachment upon the states to authorize the companies of broadcasting, or cinematography. According to the international provisions, paragraph 2 of the same article settles that the exercise if this right can be submitted to a regime of restrictions established by the law, in case any restriction is required in a democratic society. We also appreciate that these restrictions involve also the right to information, even if the Convention doesn’t use expressis verbis this term and includes the realities it expresses in the Article 10. Thus, the restrictions brought to the right to the information involve the national security, territorial integrity or public safety, the defense of public order and preventing offences, the protection of public health and morality, the protection of people’s rights and reputation. They also involve the interdiction to spread confidential information and the guaranty of the judicial power authority and impartiality [2]. In the spirit of these international and regional settlements, the Romanian constitutional legislator consecrated in 1991 by means of Article 31 the right to information as a fundamental right of the Romanian citizens. In Article 31 it is settled that the right of the person to access any information of public interest cannot be limited. More than that, the public authorities, due to their competences, are obliged to ensure the right to information of citizens upon the public

Knowledge Based Organization 2008 International Conference affaires and upon the problems of personal interest. With regard to the means of mass, public and private information, it was settled that they are obliged to ensure the correct information of public opinion. The public companies of broadcasting are autonomous and develop their activity under the control of the Parliament as settled in their organic law. By means of the constitutional revision in 2003 this right was limited in the sense that it cannot prejudice the protection measures for the youth and the national security. But from the systematic interpretation of Art. 31 and Art. 53, we can observe that the constitutional legislator settled the conditions and the limits of the restrain of the exercise of some rights and freedoms. Thus, the exercise of some rights and freedoms can be restrained only by means of law and only in case of: defending the public order, health or moral; developing penal instruction; preventing the consequences of natural calamities or disasters. This restrain can be imposed only if it is necessary in a democratic society, and if the measure adopted is proportional with the situation that determined it. It must be applied without any discrimination and without infringing upon the existence of the right and liberty [3]. The constitutional provisions were developed in many normative acts, such as Law No. 544/2001 regarding the free access to information of public interest. In Article 1 of the above mentioned law it is settled that the free access of the person to information of public interest, as defined by the law, represents one of the fundamental principles of the relations established between persons and authorities, taking into the consideration the Romanian Constitution and the documents ratified by the Romanian Parliament [4]. Even now, the Romanian authorities don’t respect these provisions and they try to elude them. So, for example, if a person addressed to the City Hall of Brasov a petition in April 2006 in order to receive, based upon the provisions of Law No. 544/2001 with regard to the free access to the information of public interest, “a Xerox copy after the scheme of the route of the boarder road that shall be build in the proximity of Brasov”, the Economical Department – the Service of Investments from the City Hall of Brasov informed him that according to a Decision of Local Council from 2005 with regard

Knowledge Based Organization 2008 International Conference to a special charge required in case of issuing documents of urbanism he must pay 500 RON in order to receive a copy after the PUG (General Urbanism Plan), but also that it can only issue the copy of this document in digital format. But according to Art. 7 paragraph 3 and Art.6 paragraph 2 from Law No. 544/2001, the public authorities and institutions are obliged to ensure to all the persons at their request the information of public interest requested orally or in written. The information required may be offered, if all the technical conditions are fulfilled, in electronic format, but not necessary in this format. More than that, the normative act invoked by the Economical Department – that decision from 2005 – is an administrative act and not a law, so it must be conformed with the provisions of article 9, paragraph 1 from Law No. 544/2001 that settle that any information of public interest required must be issued in copy, the solicitant being obliged to pay the cost of the copy, therefore the tax instituted by the Decision is legal, but the technical support cannot be limited only to the digital format. In conclusion, we considera that departing from the fundamental principle of juridical interpretation applied in Romanian law ubi lex non distinguit, nec nos distinguere debemus (if the legislator doesn’t make any distinctions, neither we can), the authorities of public administration, and all the authorities implied in the process of applying the law, have no right to interpret and apply a law, prejudicing the persons the law addresses to. And this situation is definitely unacceptable if it has as a result the restrain of the exercise of some rights and freedoms. In our opinion, it is also necessary that the public authorities must understand that the right of public information shall be respected in any situation. Therefore, we consider that it is the duty of the public authorities to inform citizens about this right and about the conditions, the procedure and the ways that must be followed in order to obtain the public information requested or, even, for oblige the authorities by a judicial decision to make a reply to any petition with this object. Therefor, we appreciate that by mass-media, even the public authorities, not just the non-governmental organizations; have to inform Romanian citizens about the provisions of Law no. 544/2001, with all the modifications and amendments adopted. It is also

Knowledge Based Organization 2008 International Conference necessary that, by their appropriate acts, the public authorities shall not restrict or forbid, the exercise of some rights infringing upon the article 53 from Romanian Constitution with regard the conditions and the limits of the restrain of the exercise of some rights and freedoms. In the case above-mentioned restriction are not respected any petitioner is entitled to address to court of law to protect its right of information.

References [1] I. Closcă, I. Suceavă, Tratat de drepturile omului, Lugoj, Publishing House Europa Nova, 1995, pp. 202-214. [2] C. Bârsan, Convenţia europeană a drepturilor omului. Comentariu pe articole, Bucureşti, Publishing C.H. Beck, 2005, vol. I Drepturi şi libertăţi, pp. 740-763. [3] I. Muraru, S.E. Tănăsescu, Drept constituţional şi instituţii politice, Bucureşti, Publishing House All Beck, 2003, vol. I, pp. 214-216. [4] M. Constantinescu, A. Iorgovan, I. Muraru, S.E. Tănăsescu, Constituţia României revizuită – comentarii şi explicaţii, Bucureşti, Publishing House All Beck, 2003, pp. 64-66.

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RESTRICTIONS BROUGHT TO THE RIGHT TO PENSION – AS A COMPONENT OF THE RIGHT TO DECENT LIVING

Asst.Prof. Şaramet Oana, TA Bianov Anamaria

“Transilvania” University, Brasov [email protected], [email protected]

Abstract The present essay wants to emphasize a procedural aspect settled by Law no. 19/2000 that in our opinion brings an infringement upon the right to a decent living standard and especially one of its components, the right to pension. The fact that the persons who, are obliged by the law to address a request to change the type of pension, after accomplishing the standard conditions for pension is actually commonly understand as a restriction to a fundamental rights.

Keywords: right, pension, infringement, law, request

The Universal Declaration of Human Rights settled in 1948 some provisions related to the right to a decent living standard, within the settlements regarding the right to health and we quote: „Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection”. 20 years after this moment, the International Covenant on Economical, Social and Cultural Rights preserved the 84

Knowledge Based Organization 2008 International Conference same modality of settlement, therefore the right to a decent or sufficient living standard wasn’t expressly settled, but we can find its reference in Art.11. The consecration of the decent or sufficient living standard in the international documents and in the constitutions of the states determines the state members and the national states to appreciate this right as one of their priorities. Romania must be regarded as one of the states that confirm what we have already stated. Unfortunately, the social and economical conditions of the last 17 years determined some of the Romanian citizens to go to hunger strike, to fire themselves, even to commit public suicide in order to draw attention upon their desperate situation. The most desperate cases were the result of collective dismissals and of the juridical effects of Law No.10/2001 with regard to the juridical regime of the real states abusively taken between 6th of March 1945 and 22nd of December 1989. Due to this law and its current modifications, the old and the poor persons who lived in nationalized buildings were forced to abandon them, without the possibility of finding another residence. Nor the state or the international community by their reliable bodies could offer a solution in this case. We must acknowledge the poor condition of these people, and we should not forget that poverty endangers people’s life since the lack of living conditions influences their life [1]. Still, the Romanian constitutional legislator settled in the Constitution adopted in 1991, at Art.43, called „living standard”, that the state shall be bound to take measures of economic development and social protection, of a nature to ensure a decent living standard for its citizens. The Romanian citizens have the right to pensions, paid maternity leave, medical care in public health establishments, unemployment benefits, and other forms of social care, as provided by law. After the revision of Romanian Constitution, this right is settled in Art.47, but the internal provisions didn’t change: „the State shall be bound to take measures of economic development and social protection, of a nature to ensure a decent living standard for its citizens. Citizens have the right to pensions, paid maternity leave, medical care in public health centers, unemployment benefits, and other forms of public or private social securities, as stipulated by the

Knowledge Based Organization 2008 International Conference law. Citizens have the right to social assistance, according to the law”. We must notice that the legislator refers also to the private social securities, not only to the public ones. In this way, “social security is institutionalized as a modern dimension of the measures required to ensure a decent living” [2]. Thirst of all, we must notice that our constitutional legislator chose to settle expressly this right in the fundamental law of the state, avoiding thus to refer to the aspects related to this issue within the provisions of another fundamental right, as practiced in other constitutions. So, for example, The Portugal Constitution does not settle expressly the right to a decent living standard, but in Art.65 we can find some aspects related to this aspect. Thus, everyone has the right for himself and his family to a dwelling of adequate size satisfying the standards of hygiene and comfort and preserving the personal and family privacy. In order to safeguard the right to housing, it is the duty of the State to: draw up and put into effect a housing policy that is a part of the general regional planning and it is based on urban planning that secures the existence of an adequate network of transport and social facilities; the encourage and support the initiatives of local authorities and communities that aim to solve their housing problems and promote the establishment of housing cooperatives as well as individual building; to promote private building subject to the public interest, as well as to access the private owned dwelling. In Art.66 called Environment and Quality of Life, the legislator settled that everyone has the right to a healthy and ecologically balanced human environment and the duty to defend it. Still, it is the duty of the State, acting through appropriate bodies and having recourse to or taking support on popular initiatives, to promote the rational use of natural resources, safeguarding their capacity for renewal and ecological stability. The Constitution of Italy guaranties in Art.32 the health as a fundamental human right. Thus, the Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. Art.38 settles that every citizen unable to work and without the resources necessary to live has a right to social maintenance and assistance.

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Workers have the right to be provided with and ensured with adequate means for their needs and necessities in cases of accidents, illness, disability and old age, and involuntary unemployment. Disabled and handicapped persons have the right to education and vocational training. The Romanian constitutional legislator preferred to guaranty the right to a decent living standard, and not to a sufficient living standard, in this way approaching the settlement conferred by Art.25 from the Universal Declaration of Human Rights. We consider that the term “decent” has a wider significance than the term “sufficient”, since a sufficient living standard can be approached by means of a minimum social protection, while a decent living standard requires a living standard that cannot infringe upon the personality and the dignity of the individual. The option elected by the Romanian state is quite honorable but hard to be accomplished, especially “under the historical conditions of a convulsive and transient economy – since this aspiration can only be achieved progressively, by means of economical development and social protection” [3]. The Romanian doctrine [4] emphasized two components of social security, with regard to this issue namely: social assurances, and we can include here the pension, paid maternity leave, medical care in public health establishments, unemployment benefits, and social assistance, and we refer here to family allowances, the minimum wage, and the protection of disabled persons and the services of social assistance. In present day the right to pension, to allowance in case of death, to social assurances is settled by Law No. 19/2000 regarding the public system of pension and other social assurances rights. Even if the Romanian legislator tried to identify and to consecrate the most adequate legal frame of the right to a decent living standard with regard to the current resources and possibilities of the Romanian state, the public authorities reliable to organize the execution of law in this matter did not make all the efforts in applying the provisions of these laws. In such cases, the persons who suffered infringements upon their rights to social protection were obliged to address to some authorities such as the Constitutional Court of Romania, the Advocate of the People (the Romanian Ombudsman) or to legal courts in order

Knowledge Based Organization 2008 International Conference to protect their rights and especially to protect their right to a decent living standard settled in the Constitution of Romania. In this matter, several exceptions regarding the unconstitutionality of laws and statutory orders were brought to the courts of law. So, for example, in a case, the object of exception of unconstitutionality brought ex officio in front of the Court of Justice from Mures – the Civil Section, was represented by the provisions of Art.95 from Law No. 19/2000 with regard to the public system of pensions and other rights of social assurances, with all its modifications and amendments. According to this article, only the persons who benefit of pension for age limit can ask for a new calculation of the pension and only after they realize a stage of paying the financial taxes and duties of minimum 12 months. The Constitutional Court pronounced upon the exception of the unconstitutionality of Art. 95 paragraph 1 from Law No. 19/2000 with regard to the public system of pensions and other rights of social assurances in the Decision No. 264/20th of March 2007. Thus, the Court admitted the exception of unconstitutionality and proclaimed that such a possibility admitted to the person retired for the age limit to ask for a new calculation of the pension and only after they realize a stage of paying the financial taxes and duties of minimum12 months is against any principle of equality between citizens, since it implies a discrimination between citizens of same condition. The Court also admitted that this article infringe upon the provisions of Art. 47 paragraph 2 from the Constitution of Romania, according to which, even if the conditions and criteria of retiring differ from case to case, the modality of calculating the pension must be the same and establish by law. Thus, the legislator cannot establish a different juridical treatment for equal juridical situations. As a result of the control exert according to the legal and constitutional settlements – we refer to Art.58-60 from the Constitution of Romania, republished, as well as by the provisions of Law No.35/1997 with regard to the organization and functioning of the Romanian Ombudsman –, the Romanian Ombudsman, through its Territorial Office form Brasov, identified other possible aspects of unconstitutionality regarding the right to pension. Thus, according to

Knowledge Based Organization 2008 International Conference the conditions settled in Law No.19/2000, in the cases the conditions regarding the standard age to retire, and the minimum period of labor due in the public system of pensions are accomplished, any assured person can retire for age limit. In the case some conditions settled expressly in Art. 49, Art. 50 and Art. 51 from the above mentioned normative act are accomplished, a person can take benefit of anticipated pension or partial anticipated pension up to the moment of accomplishing all the conditions for the pension for age limit. In its prior form, the Law No. 19/2000 settled in Art. 49 paragraph 4, respectively in Art. 52 that the passing from the anticipated pension or the partial anticipated pension towards the pension for age limit is made automatically at the date the person accomplished the standard age for retiring. But, due to the revisions brought by Law No. 250/2007, starting with 22nd of July, the persons who are in the situation described above are entitled to take benefit of the pension for age limit only if they issue a request by means of which they ask for receiving pension for age limit, these person are entitled to their right only from the moment the request was issued and sent to the official bodies, the moment being subsequent to the date the person accomplished the age required for the pension for age limit. Surely, according to Art. 1 paragraph 5 from the Constitution of Romania, republished, the respect to law is mandatory, this respect to law imposing in our opinion the acknowledgement of the laws provisions, therefore the Romanian citizen must know all the settlements of the laws. But the absolutism of this constitutional principle is, from our point of view, an exaggeration since nowadays the legislation is submitted to frequent and essential revisions and amendments, and the “objective popularization” of the normative acts is in an incipient phase. For example, the access to internet is imperfect in some area, especially in the rural ones, and old persons are not able to use internet. We must also mention that the inappropriate attitude of the public authorities involved in the process of applying the legislation in the field of pensions is a factor of infringing upon the possibility of acknowledging all the provisions of law. We must also specify that no campaigns of information are developed so the persons entitled to their rights to actually take benefit

Knowledge Based Organization 2008 International Conference of them. It is necessary to underline the fact that when a person impound the documentation for retiring, the person authorized from the pension offices are obliged to specify the date and the age when a person can benefit of the pension for age limit, accomplishing thus the cumulative conditions required by the legislation. In this particular case we think that the provisions of Law No. 250/2007 are unconstitutional since they restrain the exert of the right to pension – a fundamental component of the right to living standard – infringing upon Art.53 from the Constitution of Romania regarding the restrain of the exercise of some rights and freedoms, since the authority the person address to already knows the information indicated and required by the same authority. More than that, the recording of the request before the date the person accomplish the age for the pension for age limit will infringe upon the right to retire of a person and upon the pecuniary benefits. Therefore we appreciate that a revision upon the provisions of the law regarding the retirement and the right to pension, the Law No. 19/2000 is absolutely mandatory, no matter the juridical solution, the repealing of the provisions or the declaring of the unconstitutionality of the mentioned provisions by the Constitutional Court of Romania, for the Romanian legislator to accomplish its obligations settled by Art. 147 paragraph 1 from the Constitution. Taking into consideration the provisions of Art. 22 from the Universal Declaration of Human Rights, the person who is entitled to the right of social security should obtain the fulfillment of the economical, social and cultural rights that are absolutely necessary in accomplishing the individual dignity and the free development of one’s personality. By national and international effort, every human being must enjoy a decent or a sufficient living standard, with all the significances of the two terms. It is true that it is not easy to identify at the international level the content of the right to sufficient living standard, no matter if the attempt is coordinated by the United Nations Organization or by other structures subordinated to this organization. It is almost an ideal to believe that the international community shall find a unanimous content of this right, for in this way the human being shall be positioned above any interest of economical, social and

Knowledge Based Organization 2008 International Conference political nature, no matter the interest belongs to a group, to an individual, to a community, to a state, or to a region. Still, the social credo of the Romania [5], proclaimed by Art.1 paragraph 3 from the Constitution of Romania, oblige the state, as well in present time or in the future, to assure the equality of chances to every citizens. Therefore, the state must insure, in our opinion, the equality in exerting the right to a decent living standard, including its component – the right of pension.

References [1] J.G. Speth, Inegalitate globală 358 miliardari la 2,3 miliarde de oameni, quoted by D. Mazilu, Drepturile omului. Concept, exigenţe şi realităţi contemporane, Bucureşti, Publishing House Lumina Lex, 2000, pp. 397. [2] I. Muraru, S.E. Tănăsescu, Drept constituţional şi instituţii politice, Bucureşti, Publishing House All Beck, 2003, vol. I, pp. 206. [3] I. Deleanu, Instituţii şi proceduri constituţionale – în dreptul comparat şi dreptul roman. Tratat, Arad, Publishing House Servo-Sat, 2003, pp. 449. [4] I. Deleanu, Instituţii şi proceduri constituţionale – în dreptul comparat şi dreptul roman. Tratat, Arad, Publishing House Servo-Sat, 2003, pp. 450. [5] M. Constantinescu, A. Iorgovan, I. Muraru, S.E. Tănăsescu, Constituţia României revizuită – comentarii şi explicaţii, Bucureşti, Publishing House All Beck, 2003, pp. 2.

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THE MAYOR’S DOCUMENTS

TA Apostolache Mihai-Cristian

“Petroleum-Gas” University, Ploiesti [email protected]

Abstract The mayor, as an sole executive autonomous administrative authority trough the competences stated by law, trough it’s quality of elected of the collectivity, of representative of the commune or city, but also of representative of the state, has a specific statute, prominent between the local public administration authorities at the level of the commune or the city that gives him the right to act trough different material facts, technical- material operations, but especially trough the documents he emits. The documents of public authority are unilateral manifest of will and can create norms with general character, objective and impersonal, also individual juridical norms, subjective.

Keywords: authority, executive authority, dispositions administrative document

In exerting his attributions the mayor emits, according to art 68, par 1 from Law no.215/2001, modified and completed, dispositions with normative or individual character, that become executive after they are brought to public knowledge or after they have been communicated to interested persons. Being emitted by an authority of the local public administration, and at the same time, being unilateral manifests of will, the mayor’s dispositions represent documents of administrative authority. The dispositions emitted by the mayor are juridical documents that express a will manifested unilateral and that produce directly juridical effect, have a character of actuality and are mandatory on the

Knowledge Based Organization 2008 International Conference whole territory of the commune or town (city), their execution being ensured by exerting public force by the state authorities. The dispositions must be emitted only in the competence sphere of the executive authorities and in their activity domains: city-house holding, social, cultural, administrative, public order protection and resolving citizen interests. The dispositions become executive after they are brought to the knowledge of the interested people. As in the case of other administrative documents, the mayor’s dispositions must fulfill the form and shape, so they must be emitted in the frame of his material and territorial competence, in the base and conditions of the law, corresponding to it’s purpose. Meanwhile, they must have a clear content, with a simple and non ambiguous form, that makes a correct understanding and application. The normative character dispositions emitted by the mayor have a small area and are emitted only by the cases stipulated by the law. These settle the social relations in the content of the executive activity on a local plan and produce juridical effects only after they are brought to public knowledge. Amongst the normative dispositions emitted by the mayor are the ones regarding preventing fires and the ones emitted in exceptional situations: floods, earthquakes or other natural catastrophes, epidemics, epizootics, clearing the snow. In general, these dispositions have a normative character and have limited juridical effects in the time frame in which the events happen or their effect (during floods, during the winter for clearing the snow). The individual character dispositions have the widest area inside the administrative documents emitted by the mayor and resolve one or more concrete cases of local interest, but also general interest, for which they are created, modified, respectively eliminated some right and obligations or it is disposed the banning of an activity from the domains that are in it’s competence according to the law. The dispositions produce effects only form the moment that they are brought to the knowledge of interested persons – by publishing or communicating by case. Bringing to public knowledge of the normative character dispositions is done in the term of 5 days form the official date communicated by the prefect. As in the case of decisions

Knowledge Based Organization 2008 International Conference adopted by the local council, the law stipulated that also the mayor’s dispositions must be recorded by the secretary of the commune or town for legality. The disposition will not be recorded if it is illegal or if it over the legal competence of the mayor. The mayor, as a subject of administrative law, also as a representative of the juridical civil person of the administrative- territorial unit, fulfils his attributions and manages his activity trough juridical documents and material facts or material technical operations. In public law, respectively in administrative law, the public authority documents are unilateral manifests of will and can create general character norms, objective and impersonal, also individual subjective juridical norms. Because the mayor has the quality of organ of the juridical person, it is presumed that he do civil contracts, in the wide meaning of the term, respectively administrative contracts. [1] The executive authority, managing in the name of the administrative territorial unit the patrimony and representing the juridical civil person, does patrimonial documents or bilateral documents. The authority documents done by the mayor have the shape of unilateral documents with individual character; the documents done by him as manager of good from the patrimony of the commune or city, are patrimonial, contractual, of managing, having bilateral form (as two manifests of will being necessary to produce the effects followed by the parts, as the contracts). Besides them, the mayor does his activity trough material documents or operations with material technical character, characterized by not producing trough them juridical effects. These are acts of service, material activities, and acts preparing administrative documents, as: notices reports, approvals, verbal- process and other documents of execution of the administrative documents. The preparing documents, although they don’t produce juridical effects trough them, without realizing them the corresponding administrative documents could not be adopted by the competent mechanisms. Thus, if the mayor does not do the project of the local budget and the count of closing the budgetary exercise and

Knowledge Based Organization 2008 International Conference does not send them under approval of the local council, the local council could not fulfill it’s own attribution. According to article 63, par 5 letter g from Law no.215/2001, modified and completed, the mayor emits notices, agreements and authorizations in his competence trough law and other normative documents. Notices are procedural forms precedent to adopting the administrative document, that doesn’t produce juridical effect through them. The law solicits obtaining a notice every time it is necessary to know an position from a specialty organ (mechanism) regarding a certain problem that can constitute a stipulation object. Notices are of many categories like facultative, consultative or conformations. An important consequence of notices, as a procedural form before adopting the administrative document, not producing juridical effects, is that it can’t be attacked in instances of disputed client office on reasons of illegality only with the administrative document, the document being the producer of a juridical effect. Authorizations are administrative documents that settle the exercise of these activities. The most frequent authorizations emitted by the mayor appear in the domains of constructions, economical activities realized by physical independent people and family associations, public markets organization and functioning. The agreement expresses the approval of another administrative organism given for emitting a document by another mechanism. The secretary of the city or commune has the obligation to present the mayor his motivated opinion and communicate to the prefect the disposition in cause, in the term of 5 working days from it’s singing, for the prefect to exert the legality check over these administrative documents, in the basis of stipulations of article 123 par.5 from the constitution and art 115 par 7 of Law no.215/2001 modified and completed. As a consequence of exerting control over the legality of administrative documents emitted by the mayor, the prefect, can attack in instance of disputed client office these documents, if he considers them illegal, excepting those of current management. The attacked document is suspended. If the mayor is empowered by the law to emit dispositions

Knowledge Based Organization 2008 International Conference regarding the exertion of his attributions, the vice-mayor does not have this competence recognized, as he does not have the attributions of the mayor, but only delegated attributions. Thus, the documents emitted by the vice-mayor in exerting his delegated attributions are emitted in the name of the mayor, whose competence he exerts, and not in his name.

References [1] Iorgovan, Antonie, Treaty of Administrative Law, vol. I, Bucharest, All Beck Publishing House, 2001, p. 507. [2] Vedinas, Verginia, Administrative Law, Bucharest, Juridical Universe Publishing House, 2008. [3] Vedinas, Verginia, The professional ethics of public life, Bucharest, Juridical Universe Publishing House, 2007.

Knowledge Based Organization 2008 International Conference

ARGUMENTS FOR AND AGAINST THE OUTSOURCING OF THE PUBLIC SECTOR SERVICES

TA Cîndea Diana Marieta

“Lucian Blaga” University, Sibiu [email protected]

Abstract The question of outsourcing is a controversial one and is frequently debated, maybe because outsourcing is often confused with privatisation. But between these concepts is an important difference.The decision to transfer asset ownership from public to private hands is defined as privatization.The transfer of service provision from the public to an external organisation which is typically in the private sector is defined as a public sector outsourcing. Proponents of public services outsourcing propose that the expertise and best practice knowledge of managers from the competitive world of private business can be succesfully transferred to the public sector in order to improve the quality and efficiency of public services. Some specialists sustain the idea that public services should always be owned by the state because the state can offer a greater stability, make services more financial stable as they are not influenced in a major way by the fluctuations of the free market.

Keywords: outsourcing, efficiency, public services

1. Some considerations about outsourcing The public sector includes those services that are considered to be essential to all citizens, and are made available by the governement, in a free manner or at greater subsidised prices, with the costs being made up by the money from taxes. Outsourcing involves the transfer of the management of an entire

Knowledge Based Organization 2008 International Conference business function to an external service provider. The client organization and the supplier enter into a contractual agreement that defines the transferred services. Under the agreement the supplier acquires the means of production in the form of a people transfer, assets and other resources from the client. The client agrees to procure the services from the supplier for the term of the contract. The empirical evidence suggests that transfering production to an external source leads to reduction in public expenditure. Proponents of public services outsourcing propose that the expertise and best practice knowledge of managers from the competitive world of private business can be succesfully transferred to the public sector in order to improve the quality and efficiency of public services [5]. The idea of outsourcing the public services is sustained by the advantages of this method. First, it is about the direct acces to highly specialiyed skills and knowledge reguired for a specific industry level. In this way the quality can be improved, achieve a step change in quality through contracting out the service with a new service level agreement. The private organization can offer quality services to client at a much lower rate than the public sector would do. Other important benefits from outsourcing are: cost savings because of the reduce and control of operating costs, free internal resouces for other purposes, share and reduce the risk. The process of outsourcing generally encompasses four stages [6]: 1. strategic thinking, establishing the role of outsourcing in its activities. 2. evaluation and selection ,to decide on the appropriate outsourcing projects and potential location for the work to be done and service providers to do it. 3. contract development, to work out the legal , pricing and service level agreement (SLA) terms. 4. outsourcing management or governance, to refine the ongoing working relationship between the client and outsourcing service providers. In all cases, outsourcing success depends on three factors: executive-level support in the client organization for the outsourcing mission; ample communications to affected employees; and the

Knowledge Based Organization 2008 International Conference client's abbility to manage its service providers. The outsourcing professionals in charge of the work on both the client and provider sides need a combination of skills in such area as negotiation, communication, project management, the ability to understand the terms and conditions of the contracts and service level agreements, and above all, the willingness to be flexible in order to follow the changes in needs.

2. Outsourcing versus privatization The question of outsourcing is a controversial one and is frequently debated, maybe because outsourcing is often confused with privatisation. But between these concepts is an important difference. The decision to transfer asset ownership from public to private hands is defined as privatization. The transfer of service provision from the public to an external organisation which is typically in the private sector is defined as a public sector outsourcing [8]. For reasons of probity and accountability, this transfer is usually done by way of a competitive tender. Importantly, outsourcing enables the government to retain control over the specification of the service, the management of the contract, and the evaluation of the service provider's performance. Privatisation is the public sector exiting from the business line and often selling its assets. Once a segment or unit is privatized the government no longer has responsibility or control of the work or the goods to be delivered. Outsourcing is when the government buys a product or service from the private sector. Although privatization and outsoucing have many common characteristics, there are a couple of important differences between the two. First, the arrangements for provision of outsourced goods and services are not forever, the contract has a maturity. Privatization is a definitive sale of the state assets and the government retains no control. Secondly, outsourcing does not necessarly involve the transfer of any physical assets, whereas privatization does [3]. One common feature of both outsourcing and privatization ist hat their rational hinges on the differences in incentives between the public and private sector. The objective of the private firm is to

Knowledge Based Organization 2008 International Conference maximise profit, which can be measured relatively easily and can be tied to a manager's performance. Public sector organisations have a more complex set of objectives that involve the maximisation of social welfare. These objectives are hard to measure and that's why the power of the incentives is lower in the publis sector. Moreover, workers in the public sector are often intrinsically motivated to provide optimal effort, thereby dimishing the need for high-powered incentives. High-powered incentive schemes may also be muted in the public sector because managers are not the beneficiaries of increases in asset value. As a result, public managers have little incentive to invest in activities that will either increase asset value because they are not able to capture any of that increase [3]. However, this paper does not universally support the view that public sector organisations are intrinsically less efficient.

3. Opponents of the outsourcing Some specialists sustain the idea that public services should always be owned by the state because the state can offer a greater stability, make services more fiancial stable as they are not influenced in a major way by the fluctuations of the free market [4]. On the other hand there some sustainers of the idea that government ownership can be inefficient, expensive and unprofitable and that management within public sector lacks thoroughness and understanding which may be gained from working in competitive industries. The accountability and regulation of government bodies has been called into question with critics claiming that the government may deliberately over staff the public sector in order to reduce unemployment. Critics of outsourcing claim that it has not consistently delivered on the promosed high quality, low cost services. Some argue that outsourcing leads to the exploatation of the workers, that any savings achieved by outsourcing are not real savings, but there are a transfer of economic rent from workers to managers, and because of these outsourcing may lead to a reduction in the quality of the services [3]. The reduction of the expenditure are achieved through a reduction in worker's wages. In many cases the companies are obtaining non real productivity because they are not investing in technology in order to

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Knowledge Based Organization 2008 International Conference increase productivity in a favourable way, but they are hiring locally people at lower wages that appear to be more productive just because they are paid less.One pitfall of outsourcing is losing an element of direct control. Others negative aspects may be: service delivery falling below expectation;confidentiality not being respected;the outsourcing contract proving too rigid to accommodate change;management changes at the outsourcing company leading to friction;the outsourcing company going out of bussiness. It's been estimated that as many as 50 per cent of outsourcing deals end badly. But this is not e reason to reject outsourcing, but proves how important it is to choose very carefully how and with whom you enter an outsourcing relationship. Proponents of outsourcing in public field contend that it shoul result in a more efficient allocation of resources, and thereby reduce fiscal presure on the government and taxpayers. Unfortunately, the case for outsourcing on the grounds of efficincy –enhancement is not easy to measure. Much of the difficulty can be attributed to the fact that efficiency is difficult to measure in the public sector because the lack of data on operating costs and outputs [1]. This is partly a result that unlike the private sector, cost minimisation has not been until recently a priority in the public sector. But it can also be attributed to the fact that cost allocation techniques are difficult to apply in the public sector because many outputs are joint products. This has changed in recent times with the introduction of activity –based- costing, but the underlying problem is still pervasive. Comparisons of total factor productivity, especially when a small service within a large organization has been outsource, are often not possible. There are also difficulties in imputing taxes and determining the appropriate cost of capital for public sector organisations.

4. The situation of the outsourcing in Romania The outsourcing activity of the companies present on the Romanian market is continuously increased, more and more companies preferring the firms specialized in outsourcing to externalize their connected activities [7]. Thus the companies allow

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Knowledge Based Organization 2008 International Conference themselves more time to focus on the development of their business rather than on activities of support. The main customers of these firms are the multinational companies, as the Romanian companies are still reserved as far as outsourcing is concerned. In Romania there is no such culture of this type of activity, the level of confidence in the specialized firms being itself very low. One of the main reasons for the failure of outsourcing is the faulty collaboration between the customer and the supplier. Many multinational companies now outsource many of their non- strategic activities or more complex tasks to get acces to industry best practice and cutting-edge technology. This enables the business to benefit from the outsourcing company’s economies of scale and investment in highly-trained staff while it concentrate son its core business activities. The processes that are often outsourced by the companies are: • IT functions such as website development and data warehousing. • Business processes and HR, outsourcing activities such as recruitment, payroll and secretarial services gives the acces to specialist skills and you only pay when you need to use them. • Finance: the companies outsources auditing, bookkeeping. • Sales and marketing: many organizations use a consultant or an agency to handle marketing communications-smaller business can also outsource sales to specialist agencies. • Health and safety – there are consultants in health and safety compliance tasks.They may be able to ensure you meet all the requirements. • Cleaning services The outsourcing of the public services in Romania is at an incipient stage. There are very few instances resorting to this method of making the public services more efficient without invoking the privatization. A recent example through which appeal has been made to outsourcing is the outsourcing of the dialysis services from the public medical centers. At present most of the centers for dialysis are overcrowded, they have outdated equipment which rarely corresponds 102

Knowledge Based Organization 2008 International Conference to the basic standards. In order to improve the performance and to reader the medical services more efficient, the public medical centers which have in their organizational structure centers for dialysis are being authorized to organize the outsourcing of the latter. At the end of the outsourcing procedure the wining firm concludes with medical center a four-year agreement which can later on be extended for four more years provided that the firm founds a new center for dialysis in the first year. The Ministry of Public Health will be the one to coordinate and monitor the hospitals in their process of outsourcing in order to ensure the efficiency of the latter. The payment for the dialysis services provided by the wining supplier will be made by the public medical center according to the volume of the services supplied and the level of the established price list. The decision regarding the outsourcing of the dialysis services from Romania was made in February 2008 and only the future will show us the efficiency of this measure taken by the Ministry of Public Health and will represent the point of departure in the development of this measure for the other compatible public services from Romania.

5. Conclusions The outsourcing market is maturing and the way organisations use outsourcing is becoming more sophisticated. Despite its importance as a public policy issue, the determinants of successful public sector outsourcing are still largely unknown.Traditional analises have focused on issues relating to competition and ownership as the key of the success.However, recent developments have seen a move away from these issues towards issues relates to standard theories of contracts[3]. Contract design play an important role in determing the success of outsourcing arrangements.When a government decides to outsorce provision of a service it must determine ex ante how risk should be allocated between parties to the contract. Standard contract theory distinguishes three types of contracts: fixed-price, cost-plus and incentive contracts. Each of these have advantage and disadvantages that have to be known by the parties. In conclusion, outsourcing does generate reduction in government

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Knowledge Based Organization 2008 International Conference expenditure, but there are a couple of caveats to this conclusion.The first is that the qualiy of service may suffer in certain circumstances as a result of outsourcing and that workers may be worse off; the second ist hat savigs may be transitory and the third caveat is that some activities may need to remain in the hands of the state.

References [1] Boarman, A., Greenberg D., Vining A. & Weimer D., Cost-benefit Analysis: Theory and Practice, Chişinău, Arc Publishing House, 2007. [2] Hart, M. Latest trends in public sector outsourcing, 2007, available at: http://www.publicservice.co.uk/feature_story.asp?id=7731&topic=Managem ent%20and%20HR [3] Jensen, J. & Stonecash, R.E., The Efficiency of Public Sector Outsourcing Contracts: A Literature Review, Melbourne Institute Working Paper, 29/04, 2004. [4] Stiglitz, J.E. &. Walsh, C.E., Economy, Bucharest, The Economical Publishing House, 2005. [5] Singleton, A., Outsourcing of Finance Function, available at http://www.know-how.com/StrategicPlanning-article143249 [6] www.businesslink.gov.uk/bdotg [7] www.gandul.info/economia [8] www.sourcingmag.com/what_is_outsourcing.asp?act

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Knowledge Based Organization 2008 International Conference

ADMINISTRATIVE CONTROL REGULATED BY LAW 554/2004 ON ADMINISTRATIVE LAW WITHIN THE EUROPEAN STRUCTURES

TA Dina Paulina

“Dimitrie Cantemir” Christian University, Constanţa

Abstract The control represents the instrument that must compulsorily be used for the verification, measurement, assessment and diagnosing viability, reliableness, legitimacy, efficiency, compliance and regularity of the activity of the central and local components of public administration. Correct appliance of the law in the activity of the public administration authorities, ensuring conformity of their activities with the exigencies established by the political forums, leads concomitantly to the necessity of setting up a vast and complex control over the public administration activities. This control is made only through the Administrative Law. The role of controlling the public administration activity ensures the purpose and action unity in the whole public administration system in applying the law.

Keywords: administrative law, public administration, public services, jurisprudence, administrative authorities.

The importance and the role of control of the public administration activity The scientific, managerial approach of leading the public administration has determined the definition of the content of the notion of control, estimating that, under the conditions of the current society, the conformity control is replaced by an efficiency control much more sinuous, that intervenes in the action itself to correct it. The control appears as a “sine qua non” condition of the activity of the

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Knowledge Based Organization 2008 International Conference public administration authorities. Taking as a starting point the special importance of public administration in solving multiple socio- economical problems, performance of the administrative decision, its execution as per the quality and quantity criteria presents a special importance that gives efficiency to the administration action and fulfillment of the proposed purpose. In order to know the concrete modality of materializing the administrative decision, performance of control over its execution is imposed. In a conception regarding the “art of leading”, an extremely important role is played by the control over the execution, which is called to measure the results in comparison with the estimations, to reward people according to their performances, to reschedule the activity, by operating the necessary corrections. With the help of control, an intense development of activities is performed, to ensure completion of established programs, a reverse connection with the purposes, functions and factors within the general administration process is ensured. The reason of the existence of control is firstly its active presence in the development of events and due correction of deviations that might occur.” The control activity ends only when the result shows in its objectivity, the norm, the essence of the control function not being the acknowledgement, but the reestablishment of the parameters of the followed process, within its normal preset limits or of those determined or improved. A modern public administration must be oriented towards satisfying the needs of citizens, ensuring better information for the latter, cooperating with those to whom it is addressed and to strengthen public control over the administration. Within the rule of law, it is necessary for the person to know that legal relationships, legally closed, are intangible. Both the activities of individuals as well as that of the administration are characterized by the possibility to scan the future when performing their estimations. The provision is guaranteed only if the individuals and the administration have the safety of the durability of the legal relationships that they have set and oriented the activities upon. All these are observed by the existence of the administrative law that requires the application of two principles: the principle of the observance of legally acquired rights and the principle of compulsoriness regarding execution of judicial decisions by the State.

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The State Administration has the task to ensure application of all laws, to edit legislative acts with the purpose of law execution, to ensure public services functioning, to take measures for the execution of administrative contracts, to protect the rights of individuals and satisfy their requirements, to maintain public order. If sometimes, when fulfilling these tasks, the Administration will endanger the rights or interests of people, they can submit a claim, a juridical contestation, administratively solved by competent institutions. The control represents the instrument that must be compulsorily used to verify measure, assess and diagnose feasibility, viability, legitimacy and efficacy, conformity and regularity of the activity of central and local components of Public Administration. The correct application of the law in the activity of the public administration authority, ensuring conformity of these activities with the exigencies established by the political forums, leads concomitantly to the necessity of setting up a vast and complex control on the public administration activity. The activity developed by the public administration authorities in order to accomplish the executive power, includes all domains and sectors of the economical and social life, at all levels. Therefore, the developed activity requires submission to multiple forms of control. The State and each of its powers and structures, is directly interested to control if the decision is correctly applied, if it has the expected efficiency, if it corresponds to the real and concrete requirements or whether it should be intervened upon for correction. The control indicates the way in which the one which is called to apply the decision, the degree in which the decision corresponds to the purpose for which it has been issued. The role of control of the public administration activity ensures the purpose and action unit within the entire system of the public administration and exact execution of the law. The control represents an important aspect of the public administration activity having as purpose the measurement of the administrative action result in the application of political decisions and to reschedule activities, making necessary corrections. The control must determine an increase of the performance of administrative actions in order to ensure fulfillment of the public administration functions. The control of the public administration authorities is made in various ways. An important role is

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Knowledge Based Organization 2008 International Conference played by the parliamentary and judiciary control which is made by the principle of separation of powers within the state. Also, the control is disposed within the public administration by means of autonomous or hierarchically superior institutions.

The Branches of the Administrative Law The Administrative Law is made of four branches: the fully judicial administrative law, the annulment administrative law, the interpretation administrative law, the repression administrative law. This partition has become classical due to the jurisprudence of the State Council of France, which has been adopted by many European states, although it doesn’t fully correspond to the system established in these states. There is: ● a judicial administrative law – when the situation of the administrative case is determined by a judicial law issue ● a subjective administrative law – when the case is represented by the existence and extension of certain subjective rights of the plaintiff The quality of plaintiff is owned, as per Art. 1, line (1) of Law no. 554/2004: “any person which considers that one of his/her rights or legitimate interests have been damaged by a public authority, by means of a legislative act or by not solving a request within the legal deadline can address the competent administrative court, in order to annul the act, recognition of the claimed right or the legitimate interest as well as the recovery of the caused damage. The administrative court can also by addressed by a person whose legitimate interest has been damaged by an administrative act, with individual character, addressed to another person. In the case of the annulment administrative law, the court of law passes the annulment of the illegal administrative act, in the case in which it notices the noncompliance of the administrative act with the law. If the illegal administrative act has caused any damages, they can be solicited to another court of law and sometimes by means of other procedures, the court establishing, in depth, both from the point of the view of the right as well as of the deeds. The fully judicial administrative law, the competence of judges is higher, and their

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Knowledge Based Organization 2008 International Conference decision doesn’t limit only to the annulment of an illegal act, therefore they can pass other measures such as: recognition of subjective rights, restitutions, reintegration, reimbursements, and the modification of an administrative document. This wider competence of judges is recognized when they are called to solve a subjective right issue and when reaching their conclusions, the plaintiff is given the recognition of such right. In this way, from the point of view of the finding, the subjective administrative law is generally also a fully judicial administrative law from the point of view of the decision. We consider that the regulation performed by means of the administrative Law no. 554/2004 is not in compliance with the present requirements regarding the realistic and efficient guarantee of the human rights and freedom defense, removal of the arbitrary and potential abuse of the Administration. Under this aspect, even reported to the administrative law dated December 23rd, 1925, that had a lot of weak points and gaps, subsequently solved by the contribution of the doctrine and jurisprudence, some of the provisions of Law 29/1990, appear as a regress. For instance, the enumeration of the administrative acts that cannot be brought to justice is amplified in comparison with the 1995 law, and at the same time, there still is an objectionable distinction between the authority administrative documents and the management administrative documents. Also, by means of Law 554/2004, it has been established that the judging of administrative laws cases, is made by the court of law or by the Appellate Court, but “made by a panel of two judges, instead of three judges, as per the regulation stipulated by art. 9 of law 1925. As a result, in compliance with the legislative body in 1990, the administrative law acts are not as important as the other cases (civil or criminal etc.) that the courts judge using a panel of three judges, and therefore a panel of two judges is established. But the judicial practice between the two wars has displayed the similar importance of the administrative law cases reported to the other cases judged by the Appellate Courts of that time. The fact that within the Romanian legal system, only one level of jurisdiction has been organized, in the courts, or the appellate courts, with appeal to the Supreme Court of Justice, represents an extra argument to guarantee a trial, at the administrative law sections, at least

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Knowledge Based Organization 2008 International Conference as important as that of the other sections. Consistent with this discriminatory concept of the administrative law actions towards the other judiciary actions, in Law no. 554/2004, such a decision of the jurisdictional court is called a “sentence”, and just like in the case of judges, the notion of sentence is used for the decisions of the court and the appellate court, to replace the term of “decision”, as defined in art. 11 of the administrative law dated 1925, in compliance with the juridical nature of the administrative acts that are decisions.

The Management and Authority Administrative Documents The necessity to research the problematic of the control of the local public administration bodies’ activities and exercising of this control by the state with the observance of the local autonomy and decentralization principles that govern the existence and actions of these local public administration authorities. The multitude of regulations that have been adopted lately, in the constitutional and administrative fields, together with all sorts of amendments, modifications and annulments make the cognition and their correct application more difficult. Given the fact that it is wrongly considered that the state has a double legal personality: a public law personality based on which it can own public power rights and a private law personality which allows it to use the patrimonial rights, similar to the personality that natural persons have in the doctrine, the documents issued by the State while exercising its public power characteristic have been defined as authority documents. The management documents have been defined as juristic documents with a contractual character, or prepared to reclaim certain contractual rights, issued by the State as legal person, for the administration of its patrimony. This distinction between the authority and the management documents, also adopted by Law no. 29 is wrong, because in reality the State represents a unique political and territorial legal person. Whereas, from the essence of the concept of political and territorial legal person of the State, results the fact that the State represents only one legal person, being the same one when contracting with a private person or when issuing administrative documents. Indeed, the State has a sole and indivisible political and territorial legal personality and can close all categories of legal

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Knowledge Based Organization 2008 International Conference documents, of public or private law. The admissibility conditions for the administrative law actions are represented by those measures that have to be fulfilled by the trials, based on the normative documents, so that the notified court can proceed to the judging of the depth of the litigation. They can refer to four categories of requirements: conditions referring to the status of the plaintiff, nature of the administrative document brought to justice, forms and terms, lack of certain causes of refusal that might lead from the beginning, to the rejection of the case. Research of these conditions foreruns the in-depth judging, because the judges must first check if the plaintiff has the proper status to stand before the court, if the court is competent to judge the litigation, and to decide upon the concerned administrative document, if the action has been filed by observing the forms and terms imposed by the law, if the law hasn’t set any rejection causes in certain cases when the administrative documents cannot be brought to justice, and only after all these have been completed to proceed to the judging of the reasons that the plaintiff bases its action upon. When one of these admissibility conditions is missing, the action is to be overruled without proceeding to the judging of the in-depth reasons.

Conditions referring to the status of the plaintiff These conditions refer to: the status of the plaintiff to stand before the court, and the evidence that one of the plaintiff’s rights has been damaged. Law no. 554/2004 determines the fact that there are two categories of people have the status to stand before the court: ● natural persons and moral or legal persons, regardless of the fact that these legal persons are public or private law persons. Public clerks are included in the category of natural persons. Law no. 554/2004, requires the person to prove that one of its legally recognized rights has been damaged in order to be able to address a competent court of law in order to cancel, recognize the claimed right and recovery of the caused damage. Thus, from the point of view of the plaintiff’s status, the Romanian administrative law is a subjective law, because the plaintiff can stand before the court only if the administrative documents and operations generate any damages to its subjective rights.

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Conditions referring to the nature of the administrative document The actions of the person whose rights were damaged cannot have as a target but two categories of documents: against the administrative documents and the unjustified refusal of an administrative authority to solve the request referring to a certain right recognized by the law. In the first case, the action is directed against a positive document of the Administration. In the second case, the action is directed against the abstention or refusal of the Administration to solve the request regarding a certain right, assimilating the abstention with the unjustified refusal to solve the request regarding a certain right. The administrative documents are legal documents that are issued by the administrative authorities. Thus, the dominating criterion regarding characterization of the legal documents is not represented by the material criterion, but by the organic one, formed, as per the nature of the institution issuing it, regardless of their subject. Thus, the documents with a legislative character are excluded from the competence of the administrative law courts, even if they weren’t laws, but administrative documents formed as a law.

References [1] Antonie Iorgovan, Tratat de drept administrativ, Vol. I Edition IV, Bucharest, All Beck Publishing House, 2005. [2] Eugen Popa, Autonomia locală în România, Bucharest, All Beck Publishing House, 2005. [3] Draganu Tudor, Actele de drept administrativ, Bucharest, Stiintifica Publishing House, 1959. [4] Valentin Prisacariu, Contenciosul administrativ Roman, Bucharest, National Publishing House, 2003. [5] Vida Ioan, Puterea executivă şi administraţia publică, Volume I, Bucharest, Tipografia Monitorul Oficial, 1994. [6] Dacian Cosmin Dragos, Recursul administrativ şi contenciosul administrativ, Bucharest, All Beck Publishing House, 2005.

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Knowledge Based Organization 2008 International Conference

GROUNDS FOR SPECIAL EXEMPTIONS FROM LIABILITY IN RESPECT INTERNATIONAL RAIL TRANSPORT OF GOODS

TA Neagu Emilian, Asst.Prof. Petria Licuţa, PhD

“Constantin Brâncoveanu” University, Piteşti [email protected]

Abstract Causes relieved of responsibility have a mechanism for proper functioning, in the sense that regardless of the particular risk invoked, the presumption disclaimer operate only for damages resulting from loss or damage of goods, not if the delay causes the situation in general. The carrier has to prove that the damage could be the consequence of one or more of the circumstances of the express and limited set of uniform rules text CIM. Given the relatively presumption should the party concerned will be able to manage contrary evidence from which the carrier's fault for the damage produced.

Keywords: CIM uniform rules, rail carriers, shipper, special cases exempted from liability.

1. Introduction. The originality of the system is relieved of responsibility conferred by the training of special cases which will eliminate the liability and to compile a specific legal framework in which the carrier may invoke in its effect relieved of certain circumstances and expressly stipulated by the restrictive text of the Convention on international rail transport COTIF1, ultimately modified by the Protocol of Vilnius in 19922.

1 Known as Convention sur l` Organisation des Transports Internationaux Ferroviaires. 2 Ratified by Romania through O.G. nr. 69/2001, published in M.Of. nr.538/1.09.2001. 113

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Known in legal literature [1] as “privileged causes of disclaimer” and the etymology uniform rules entitled “particular risks”, the carrier is sufficient to prove the existence of any circumstances in order to benefit from the effect exonerated. In conclusion, the presumption established by Art.36 of uniform rules CIM1, is to alleviate the carrier liability regime, acting against the recipient's doubts [2]. Further, we will submit the analysis, particular aspects of special clauses exempted from liability.

2. Special clauses exempted from liability. 2.1. Transport made through the use of discovered vehicles is characterized by a higher incidence of being exposed to damage from expeditions in closed vehicles. Disclaimer presumption of the operator of rail transport their produce effects if the movement has been achieved in such conditions due to the explicit understanding between the sender and the carrier.The effect occurs only released if the loss or damage is the consequence because of the fact that the goods were transported in vehicles discovered, not when the damage would be produced and if it were moved within the means of transport covered, for example in case of a theft [3].Disclaimer benefit will be raised by the carrier who agreed with the sender transport of proprietary private cars and fire caused by fire falling from a glowing object destroyed merchandise, or the assumption of steel pipe corrosion due to chemicals installed on the coaches cities2. Even if goods, by its very nature, could not be carried only by the use of means of transport discovered, the railways remains to invoke the defense in particular risk to consider. A special issue, addressed in different ways to practice judge, a rise in transportation goods vehicles covered with tarpaulins (according to the rules there are four ways uniform travel: expeditions transported in closed vehicles, open carriages specially equipped cars and covered with tarpaulins ), in the sense that they can not be treated as vehicles closed? Making application of the provisions of the

1 Apendix 4 to the Convention- Uniform rules regarding the international carriage of goods by rail contract. 2 C.A. Paris, 19 march 1982, in B.T. 1982, p. 322. 114

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Uniform Rules, art.36 CIM in 1980, reproduced and Article 23 point 3. Uniform rules of CIM in 1999 appreciate that interpretation can not be but that is assimilated covered wagons vehicles discovered, so the wearer can invoke the effect exonerated1.

2.2. Lack or packaging defect in the case of goods which by their nature, are subject to loss or damage. To the extent that the packaging defect is not the subject of reservations recorded in the letter tour with taking in receipt of the dispatch is presumed that the irregularities were no packing station in the expedition, as a consequence event occurred during the movement. However, an unseen defectiveness is likely to determine the bearer exemption even if it has not proceeded to insert reserves in the transport document. In case the package could be broken matter to the carrier on a usual, the responsibility will be engaged in consequence, the case of a car whose weight and height while requiring them to fix appropriate not to proceed in consequence, the railways have the opportunity objective insufficient to establish modalities for the presentation of goods to transport [4].Practice was mentioned in the sense that the exemption from liability of transport can take place only if the pack is the only impairment due to production damage, not when the fault suspected transport operator has contributed to the consequences of the event2.

2.3. The operations of loading and unloading of goods were made by the sender or recipient. Circumstances that a parcel of a parcel shipping of the grouping was lost due to errors of classification, under the responsibility of handling operations was assumed by the recipient rail the available merchandise, will remove the liability of rail carrier [5] . Conversely, the arson of a car carrying plate after making available to the recipient could not be regarded as a particular risk as long as the cause could not be determined.

1 C.A. Rouen, 14 march 1972, in B.T. 1972, p.209. 2 C.A. Paris, 16 march 1985, in B.T.I. 1985, p.101. 115

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2.4. Loading of defective merchandise. By applying the provisions of Art.36 point 3 point. d of uniform rules CIM, the carrier may invoke the benefit of innocence for damages which are the consequence of a faulty boot to the extent that liability for the conduct of these operations handling was assumed by the sender. However, the carrier must provide explanations relevant, accurate and undoubtedly the causes which led to the loss of merchandise, because if irregularities practiced during loading could be observed with reasonable diligence, rail carrier, the less in the case of the point of departure from a station of the railways, is not entitled to invoke it special relief [6]. In another decision of the case to note that the effect is relieved not to produce effects for as long as the minutes concluded by the carrier is contradicted by the findings of the survey report according to which "even if the load would have been executed by the rules of professional conduct, shock violence which has undergone wagon during transport could cause damage found on arrival at destination. Finally, whereas in fact, the carrier can participate in the performance of loading operations, is not excluded by the convention parties that control operations and return to sender and the carrier, thus applicable rules of the common fault. If the sender and has assumed responsibility for the performance, then the only answer is to him.

2.5. Private nature of goods may be subject to depreciation by the mere fact of transport. Due to award certain specific goods are exposed during the movement to loss or damage by "leakage, rust, deterioration in internal and spontaneous, drying, flow, or loss of normal action by insects or rodents.

2.6. The particular nature of carried goods. In considering a fair assessment given that there are goods that usually lose weight during transport was regulated natural admitted percentages, known as “perish” or “special risks inherent” in the limit to which the carrier is not held to answer: 2% of the mass of liquid for goods and goods returned to transport wet state respectively lunch

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Knowledge Based Organization 2008 International Conference from 1% to transport goods returned to dry (Article 31 point 1 of uniform rules CIM 1999). To eliminate the liability is not sufficient to prove that the carrier status in physics who was taught the stuff, but it is necessary to prove that losing weight is the consequence because of the nature of the goods together with the operation of transport [7]. At the same time art. 41 pct. 2 of CIM uniform rules, the presumption will operate if disclaimer, depending on the circumstances of fact, the carrier will make the dough proof necessary measures on selection, use and maintenance of facilities and instructions that have data was “to protect the goods against changes in temperature, moisture, heat, etc.”

2.7. Risk resulting from the name of rugged, inaccurate or incomplete goods. It is excluded from the goods transport or admitted to special transport. Dispositions under Article 23 point 3 letters in 1999 wariness CIM uniform rules especially in goods prohibited or permitted to transport under the terms of RID, which prescribes conditions packing and loading of dangerous goods.

2.8. The risk resulted from transportation of live animals to the extent that the carrier has taken all reasonable measures required by the specifics of these trips (existing deposits ventilation, ensuring food hygiene and animal). Bearer of responsibility for training is sufficient to prove that the damage is due to causes other than risk excluded [8].

2.9. Completion of the customs or administrative formalities. The cause of relief was regulated by CIM uniform rules 1980, as we found in the cases covered by the latest version of CIM uniform rules 1999, but we can circumscribe the case in general deed thirds. Cases exempt from liability have a proper mechanism of functioning in the sense that regardless of the risk particular invoked, the presumption disclaimer operate only for damages resulting from loss or damage of goods, not if the delay causes the situation in general [9].The carrier has to prove that the damage could be the consequence of one or more circumstances of the express and limited

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Knowledge Based Organization 2008 International Conference text provided by CIM uniform rules. Given the relative presumption will be able to manage contrary evidence from which the carrier's fault for the damage produced. Thus, in a decision to harass, was removed disclaimer recognized the benefit of the railways for initial fire goods transported in open wagons, proving that the damage is the consequence of acts attributable to the bearer rail: inadequate regulation of the locomotive, poor placement of wagons found in the vicinity of the locomotive. In the absence of proof to the contrary given by the consignor, the railway operator has not been held to answer for damages caused as a result of train derailments, as long as you consider that damage is the consequence of a failure to close a trailer loaded in the car likely to impede proper fixing during the movement.

References [1] Gheorghe Stancu, Transport law, Bucharest,Lumina Lex Publishing House, 2005, p. 338. [2] Dragoş-Alexandru Sitaru, Şerban Stănescu, The international transport of goods contract, Bucharest, Lumina Lex Publishing House, 2007, p. 16. [3] Gina Orga-Dumitriu, Liabilities in the contract commercial transport of goods, Bucharest, C.H. Beck Publishing House, 2008, p. 184. [4] B. Kerguellen-Neyrolles, ş.a., Commission de transport. Mer, fer, air. Commerce exterieur, Ed. Lamy S.A., Rueil-Malmaison, 2007, p. 603. [5] Gina Orga-Dumitriu, op.cit., p. 186. [6] Ibidem, op.cit., p. 187. [7] Paulin Ch., Droit des transports, Ed. Litec, Paris, 2005, p. 506. [8] Dragoş-Alexandru Sitaru, Şerban Stănescu, op.cit. p. 34. [9] Gheorghe Stancu, op.cit. p. 341.

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INTERNATIONAL CARRIAGE OF GOODS BY RAIL CONTRACT’S ENCLOSURE

TA Neagu Emilian

“Constantin Brâncoveanu” University, Piteşti [email protected]

Abstract Through the international rail transport of goods, the carrier undertakes to carry goods using the railways, for consideration at the destination and a return address. The contract for international rail transport of goods has to be found in a letter measure, according to a uniform rule. Lack, inaccuracies or loss way bill do not affect the existence or validity of the contract which remains subject to CIM uniform rules.

Keywords: CIM uniform rules, way bill, carrier, circumstantial mentions.

1) Conception. Legal character According to Article 6, paragraph 1 of CIM uniform rules, the contract of carriage, the carrier undertakes to carry goods, for consideration at the destination and a return destinatarului. It is of course understood that the carrier undertakes to carry goods on the railways. Regarding the characters legal contract international transport goods by rail features of any legal contract of carriage [1]. Some clarifications are still needed in terms of real or consensual nature of the contract. Thus, in accordance with the provisions of Article 11 in its initial version “contract of carriage is concluded when the railway teaching received from freight forwarders, accompanied by expressions of carriage”. For this story shows clearly that the teaching 119

Knowledge Based Organization 2008 International Conference of goods was a condition for the conclusion of the contract, here's the result of the international rail freight. Unlike this provision, Article 6, as adopted by the Vilnius Protocol, ratified by Romania O.G. nr. 69/20011, approved by Law nr. 43/20022 no longer contains provisions relating to the teaching of goods, retaining only obligation for the parties to ascertain through a letter of termination of contract carriage. Written form is required so probationem ad, by a change in the meaning of optical changing nature of the legal contract which this becomes a consensual contract and no real [2]. In this respect, Article 6, paragraph 4 indicates the obligation of carriers to mention the duplicate waybill making the receipt of goods (which may take place after concluding the contract). Also in support of consensual nature of the contract comes and Article 7, which, together brings indications that should contain expressions of carriage, mentioned in the letter a) place and date of preparation of his, and the d), taking place and date the receipt of goods. Resulting in obviously they may be distinct. Consequently a consensual nature is that when concluding the contract is the agreement of the will, teaching merchandise representing an obligation that rests with the sender under the contract of carriage concluded (so an effect of the contract, and not a condition for the birth) [3].

2) Type of contract The old regulation of Article 11 quoted above was conditioning the conclusion of the handover of goods and prepare the letter of carriage. Also, as we have shown already, under Article 6, paragraph 2 of this regulation the international rail transport of goods should be found in a letter to the carriage, according to a uniform rule. According to the same text, but lack, inaccuracies or loss waybill do not affect the existence or validity of the contract which remains subject to these uniform rules. Quoted the letter as a clear result of the tour is not in any way necessary for the birth of a valid contract. But it is only found the entry thereof (instrumentum). Moreover according to Article 12 way bill proof, only evidence

1 Published in M.Of. nr. 538/1.09.2001. 2 Published in M.Of. nr. 45/22.01.2002. 120

Knowledge Based Organization 2008 International Conference contrary to the conclusion of the contract, conditions of contract of carriage and taking receipt of goods. The fact that the letter of proof tour taking in receipt of goods by the carrier should not be interpreted in the sense of rem nature of the contract, because as we showed above, when takeover goods, the carrier is obliged to make a separate mention the duplicate letter the tour which had already been drawn. However, even the text talks about the evidence made up evidence to the contrary (it is therefore a rebuttable presumption of making the receipt of goods). In addition to those shown, the way bill is making prove to the contrary, the state goods and packaging indicated in the way bill, and in the absence of such terms, an apparent good conditions when taking- over by the carrier and the accuracy of statements waybill on the amount of quotas, trademarks and their numbers, as well as the gross mass or quantity indicated otherwise. In case load has not been completed by the carrier, but the sender, the way bill proof of the items up evidence to the contrary, just in case the carrier has verified and submitted the letter of the carriage result properly this assessment [4]. The way bill is not a proof when contains a reserve motivated for example the carrier has no adequate means to verify compliance with the dispatch way bill. The way bill is signed by the carriage of freight forwarder and transport. Shipper be remitted by the carrier on its duplicate is made mention of taking the receipt of goods. The duplicate permit in case the sender or recipient to dispose of the goods and to require its delivery. Neither the letter nor the carriage and duplicate titles but is not representative of the goods [5]. Consequently it does not incorporate a proprietary right over the goods transported, as that could be alienated by transmitting way bill (which otherwise remains the carrier), or duplicate it. Provide the right merchandise has only the sender or the recipient in case the extent that they want the merchandise is delivered to a third party,mechanism provided by uniform rules is not a duplicate divide, but in the right mood on goods (unilateral modification of the contract) by changing the recipient [6].

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3) Content waybill. The responsibility for the score According to Article 7 of the Uniform Rules CIM, the consignment note contains 3 categories of entries: mandatory, mental and circumstantial optional. The compulsory must be included in the way bill contract with any international rail freight and refer to the following aspects: – names and addresses of the parties (sender and the wearer) and a recipient; – date and place of its compilation, as well as those of taking the receipt of goods; – place of delivery; – the identification of goods: the name and nature of goods, quantity, the packaging and in case the number of packages (in the case of the parcel), the number of wagons (transport wagons in full), or the number of rail vehicle that runs on wheels if you own it is handed over to transport the merchandise; – attachments to the letter of carriage or held at the carrier; – transport-related charges (the price of transport, tariffs accessories, tariffs and other charges incurred when concluding the contract and delivery time), if they are to be borne by the recipient; – transport is an indication that the subject matter of any clause contrary, CIM uniform rules. Circumstantial endorsements are also required to complete the way bill, but not with any transport contract, but only when held assumptions on which such statement refers to: – the carrier who must deliver the goods, in case of successive carriers; – charges the contract of carriage the sender take in its task; – refund of the amount charged on delivery. This amount of the relationship between seller and buyer-sender- recipient, not the relationship arising from transport. However, as has been mentioned in a letter to the tour with this title, the carrier will not deliver the goods the buyer and recipient without taking refund, or being responsible for any damage of goods and the amount representing special interest in the issue;

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– term delivery and the agreed itinerary; – number and description of seals. Optional endorsements can be inserted in the consignment note to the extent that the parties believe that they are useful. Indicated by way of example: that the merchandise be returned to sender in case of preventing the delivery, that the recipient has no right to unilaterally change the contract of carriage, etc. The responsibility for the registration of mentions incorrect, inaccurate or incomplete, or in other sections than those provided by the uniform for the question lies in principle sender, because it completes the form way bill. Moreover, even if the carrier included in the way bill mentions the tour, it is presumed, until evidence to the contrary, that acted on behalf of the sender. When omissions consist in the absence of mentions stipulated by the Regulation on International Transport of dangerous goods by rail, (RID), the carrier has more right to unload cargo at any time or to destroy or neutralize it, except when he was aware of the dangerous goods when taking delivery. But the carrier responsible for any costs or damages incurred by the law in the case of omission indication that the carriage is subject to uniform rules CIM, regardless of any clause to the contrary.

References [1] Octavian Căpăţînă, Brânduşa Ştefănescu, Treaty of international commerce law, volume II, Bucharest, Academy of R.S.R. Publishing House, 1987, p. 192. [2]Brânduşa Ştefănescu, Ion Rucăreanu, International commerce law, Bucharest, Didactic and Pedagogical Publishing House, 1987, p. 263. [3]Octavian Căpăţînă, Gheorghe Stancu, Transport law. Volume I, Bucharest, Lumina Lex Publishing House, 2001, p. 53. [4] Dragoş-Alexandru Sitaru, Şerban Stănescu, The international carriage of goods contract, Bucharest, Lumina Lex Publishing House, 2007, p. 16. [5] Octavian Căpăţînă, Brânduşa Ştefănescu, op. cit., p. 195. [6] Dragoş-Alexandru Sitaru, Şerban Stănescu, op. cit., p. 18.

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ASPECTS CONCERNING THE URBAN ADMINISTRATION EVOLUTION OF BACĂU COUNTY (1900-1918)

TA Popa Alin

University of Bacău [email protected]

Abstract The article brings to attention some important administrative and organizational aspects of the mayoral administration between 1900-1918: the structure of the town administration, the duties of the mayor and city council, the structure of the town’s budget etc.

Keywords: town hall, Bacau, town budget

From 1864, when the first urban organisation law has appeared till nowadays, the urban Romanian life has been linked to the City Hall Institution. Thus, the urban administrative development projects, the cultural and educational plan, as well as the medical, social and financial-economic project have been lead by the city council. Obviously, this apparent local decentralization was heavily legislatively restricted by ministerial authorization. In conformity with national administrative-territorial law (1864, 1908, 1913), between 1864-1918 Bacau has functioned as county borough named as “urban commune” (comuna urbana) [1]. Till 1925 the local administration has functioned according to the “Law of urban commune organization” from 13 July 1894. This law stipulated that the communes were under the strict supervision of the government. As a result, the ministry of home affairs was entitled to

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Knowledge Based Organization 2008 International Conference modify the structure of the city council and to name a five members’ Temporary Commission instead. This Commission was allowed to manage the city’s affairs till the validation of the electoral elections [2]. The mayor, as the chief of local administration, had the following tasks: to supervise the legality of the decisions taken by the city council, to lead the city council meetings, to operate the laws and general instructions, to see to the city’s welfare [3]. The structure of the City Hall of Bacau was the following: a mayor, a vice mayor, a secretary, an archivist, a currier, a cashier, and several curators [4]. The city council members were elected by vote in the electoral College system. A mandate lasted four years. After the validation of the city elections results, during the first local council meeting, were charged with administrative tasks: population record department, auction department, financial department etc. [5]. The city council resolutions were brought to the public attention through Decrees and Publications (Ordonante si Publicatiuni). During 1900-1918 those documents were published at “Gutenberg” typography. Within the city hall were functioning the Departments (Serviciile). Their main aim was to harmonize the local socio- economic realities with the national administrative law. The activity domains covered by these departments were the following: Measurement Department (Serviciul Verificării Măsurilor), Technical Department (Serviciul Tehnic comunal), Firestation Department (Serviciul de Pază contra Focului) and the Sanitary Department (Serviciul Sanitar). Starting with 1902, when the law of the pensions was altered, other departments were established: Retiring Pension Department (Serviciul Casei Pensiilor), Electric illumination Department (Serviciul Public de Iluminat), Architecture Department, Veterinarian and Zoo technical Department etc. The project of the city annual budget was formed in conformity with the 1894 urban law. This budget supplies came from “direct sources” such as taxes and “indirect sources” such as fines, rents, other taxes etc. [6]. 125

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The most substantial earnings for the town budget were the indirect ones. For example, for 1899-1900 town budget, from a total of 514.947 lei, more than half was provided from drinking taxes (Taxe pe bauturi, 175.000 lei) and food taxes (Taxe pe comestibile, 106.000 lei) [7]. These yearly incomes were seen by the maximum Law of Prices from 1893 [8]. This Law was applied in Bacau starting with 1st of April 1894, during the period of time when G. C. Raileanu was the mayor of Bacau. Another source of indirect income were the following taxes: Show Taxes (taxa pentru spectacole), Theatre Taxes, Public Balls (baluri publice), Circus, Concerts and Juggling Taxes (Taxe pe circ, concerte si jonglerii). The income form renting the “city goods” (bunuri comunale)- the Public Garden Buffet, Butcher Shop House (hala de victualii) [9], counters in the Local Market, places in the Local Cemetery. Another source of income was from renting the local estate that were managed by the city hall. Some other taxes helped the local budget to “flourish” such as the taxes on human activities. For example, for picking twigs and logs from the woods administrated by the city council of Bacau. These activities were preceded by the signing a special kind of “wood conventions” (învoieli la uscături) [10].

References [1] D. Zaharia, Emilia Chiriacescu, Îndrumător în Arhivele Statului. Judeţul Bacău, Bucureşti, Întreprinderea Poligrafică „13 Decembrie 1918”, 1979, pp. 17-22. [2] Costache Radu, Bacăul de la 1850 la 1900, Ediţie îngrijită de Lucian Şerban, Bacău, Editura Grafit, 2005; Grigore Grigorovici, Bacăul din trecut şi de azi, Bacău, Tipografia Primăriei Municipiului Bacău, 1933 [3] D. Zaharia, Emilia Chiriacescu, op. cit., p. 59. [4] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria Bacău, dosar 16/1894, f. 1, 13. [5] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria Bacău, dosar 13/1911, f. 2. [6] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria 126

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Bacău, dosar 39/1899, f. 71-89. [7] Ibidem, dosar 39/1899, f. 77. [8] Ibidem, 28/1902, f. 11-15. [9] Ibidem, dosar 12/1903-1904, f. 2 [10] Ibidem, dosar 52/1901-1902, f. 20-21.

Bibliography Grigorovici, Grigore, Bacăul din trecut şi de azi, Bacău, Tipografia Primăriei Municipiului Bacău, 1933. Radu, Costache, Bacăul de la 1850 la 1900, Ediţia a II-a îngrijită de Lucian Şerban, Bacău, Editura Grafit, 2005. Zaharia, Dumitru, Chiriacescu, Emilia, Îndrumător în Arhivele Statului. Judeţul Bacău, Bucureşti, Întreprinderea Poligrafică „13 Decembrie 1918”, 1979.

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PARLAMENTARY AND URBAN ELLECTIONS AT THE BEGINIG OF THE XX CENTURY IN BACĂU COUNTY

TA Popa Alin

University of Bacău [email protected]

Abstract It is well known that the Romanian electoral system of the XXth century has been based on the “census vote”. Through the study of the documents from the Romanian National Archives, the present paper presents the ways in which the parliamentary and urban elections took place in Bacau county, the structure of the local electorate and the Electoral Colleges.

Keywords: census vote, Bacau, Electoral Colleges, elections

It is well known that till the end of the World War I, the Romanian election process has been based on the “census vote”. As a result, the election lists were distributed according to the “urban territorial income” (venitul funciar urban) or the “direct yearly taxes” quantum (cuantumul dărilor anuale directe) paid to the national budget. According to legal stipulations, at that time, only the men had the right to vote. From this point of view, the law excessively restricted the body politic. Actually, there was a double exclusion. On one hand, the women were excluded, on the other hand, the men who didn’t pay the cense. The statistical data show negative electoral realities. In the first decade of the XXth century, from the total of approximately 7,3 million inhabitants [1], only 90.000 were allowed to vote directly [2]. 128

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Most of these voters were living in towns. The political, economical and social national realities allow us to make a distinction of two “types of Romania”: an “urban Romania” and a rural one. The great majority of the rural citizens didn’t have the right to vote and they lived a life that resembled the Middle Ages. Before the actual elections to take place – national or local election – a process of amending the electoral lists. These frequent am endings were due to: the death of some voters, the changing of address, the refusal to pay the cense, naturalisation etc. Once revised, these lists were published on the most populated places in town: city hall, prefecture, local tribunal, primary schools (for boys and for girls), Vasiliu and Voitonovici sweetshop, Royal Casino, Löbel Café, Gheorghiade and Vasiliu restaurants and on many streets of Bacau [3]. During 1900-1918, the national elections were led in conformity with the 1884 Election Law. At the end of this process, Bacau county sent to Romanian Parliament eight deputies and four senators [4]. National elections were taking place in the electoral College System. These Colleges were summoned only in these legal situations: government change, parliamentary reorganisation (death of parliamentary, deputies, senators etc.) At the beginning of XXth century, in Bacau county lived around 200.000. At the same time, the number of direct voters was 2.169, that represented only 1% of the inhabitants [5]. According to the data from the electoral final Bacau county list, in 1902, the number of eligible persons for Romanian Senate was 41 [6]. On this list were doctors, engineers, lawyers, teachers and estate owners (D. Ghica-Comăneşti, Eugen Ghica, Gh. Ghica). These persons were the county elite. The estate owners paid the greatest taxes to the national Budget. For example, in 1902 D. Ghica- Comăneşti paid a 7.586 lei cense [7]. Between the World War I and World War II, the election campaigns lasted four or five weeks. The voters were visited by the candidates who promised all kind of things [8]. The first local elections of the XXth century in Bacau county took place after the following schedule: 5 April 1901 – the election of six 129

Knowledge Based Organization 2008 International Conference council members from the First College; 7 April 1901 - the election of five council members from the Second College [9]. These elections took place as a result of new goverment nominee, government led by D. A. Sturdza, the chief of the National Liberal Party. In 1901 in Bacau lived 16.378 persons [10]. From this number, only 1.022 were allowed to vote, that meant only 6%. According to article 33 from the Urban Electoral Law, he elections begun at 9 a.m. and finished at 5 p.m. At the beginning of the election day were settled the structure of the Electoral Committee: a president, two secretaries and two watchmen (scrutători). The committee president was chosen by and from the judges ilk. The final results of the elections from 5 April were the following: the number of the voters from the list – 366; the number of the actual voters – 191; annulated votes – 10; the majority of votes was obtained by Leon Sakellary’s List – 181. The new City Council was formed by the following members: Leon Sakellary, Elie Racoviţă, Constantin Vlaicu, Lascăr Veniamin, Constantin Borş, Constantin Paloşanu, Gheorghe Manoliu, Vasile Iamandi, Mihail Hovsepian, Ion Stratulativ and Ion N. Zissu [11]. After the actual elections the validation procedures followed: the election “folder” was sent to the Intern Minister; from here it was offered for parliamentary debate. Legally, the new city council was able to manage the city affairs, once The Royal Decree was published by the Official Monitor. The first meeting of the new city council was led by elder members. During this meeting the new mayor was elected. The vote was secret and the mayor was elected with half plus one of the total votes.

References [1] Rezultatele definitive ale Recensământului general al populaţiei României din 19 decembrie 1912, Bucureşti, Imprimeriile Statului, 1914. [2] L. Colescu, Statistica electorală. Alegerile generale pentru Corpurile legiuitoare în 1907 şi 1911, Bucureşti, Stabilimentul Grafic „Albert Baer”, 1913, p. 52. 130

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[3] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria Bacău, dosar 28/1904, f. 6. [4] L. Colescu, Statistica electorală. Alegerile generale ..., pp. 72-73. [5] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria Bacău, dosar 81/1901-1902, f. 53-62. [6] Ibidem, f. 52. [7] Ibidem. [8] C. Argetoianu, Memorii. Pentru cei de mâine. Amintiri din vremea celor de ieri, vol. II, Ediţie şi indice adnotat de Stelian Neagoe, Bucureşti, Editura Humanitas, 1991, pp. 73-74. [9] Arhivele Naţionale ale României, Direcţia Judeţeană Bacău, fond Primăria Bacău, dosar 28/1901, f. 1. [10] L. Colescu, Analiza rezultatelor Recensământului general al populaţiei României din 1 [11] Decembrie 1899, Bucureşti, Institutul Central de Statistică, 1944, p. 33. [11] Ibidem, dosar 29/1901, f. 31.

Bibliography Argetoianu, C., Memorii. Pentru cei de mâine. Amintiri din vremea celor de ieri, vol. II, Ediţie şi indice adnotat de Stelian Neagoe, Bucureşti, Editura Humanitas, 1991. Colescu, Leonida, Analiza rezultatelor Recensământului general al populaţiei României din 1 Decembrie 1899, Bucureşti, Institutul Central de Statistică, 1944. Colescu, Leonida, Statistica electorală. Alegerile generale pentru Corpurile legiuitoare în 1907 şi 1911, Bucureşti, Stabilimentul Grafic „Albert Baer”, 1913.

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INSTITUTIONAL FRAMEWORK REGARDING PUBLIC OVERSIGHT AS PROVIDED BY THE GOVERNMENT EMERGENCY ORDINANCE NO. 90/2008 ON STATUTORY AUDIT OF ANNUAL ACCOUNTS AND CONSOLIDATED ACCOUNTS

TA Popa Ionela, TA Pietraru Alina

“Constantin Brâncoveanu” University, Piteşti

Abstract Government Emergency Ordinance No.90/2008 on statutory audit of annual accounts and consolidated accounts has been published in Monitorul Oficial, Part I, no. 481 of June 30th, 2008 The reason behind this audit regulation is the accession of Romania to the European Community which, as a Member State, has to implement and transpose into national law EU policies, in order to ensure uniform application for statutory audit at Community level and also to ensure a full compliance of statutory audit in Romania with the provisions of European Directives, by constantly renewing the regulation and by organizing an effective system of public oversight for statutory auditors and audit firms based on European principles. A comparative examination of the provisions within the 8th Directives and national rules reveals the fact that Romania has made good progress overall on the legal and practice level in implementing the provisions regarding audit of financial statements. Our study underlines the importance of the public oversight authority that should assume the ultimate responsibility for increasing public confidence in annual accounts, in the context of major financial scandals that largely shocked the public trust in auditors’ practices.

Keywords: ordinance, statutory audit, harmonization

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1. Introduction At the starting point of this project, we will focus on the harmonization of the legal system, process that allows the legislation of the member states and other candidate states to achieve compliance with the European regulation, and then we will fix our attention upon the institutional reform in Romania. The legislative harmonization is necessary for the welfare of the Common Market, EU policies, the European economy, in order to put into practice democracy principles and the rule of law at the European level. Regarding Romania, the harmonization of the legislation with the EU regulation is realized by transposing the acquis communautaire. The article no.53 “Transposition” of Directive 2006/43/EC of European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC, states that the member states ought to adopt and publish the provisions necessary to comply with the Directive before 29 June 2008. Also, the member states have to communicate to the Commission the texts of the main provisions of national law. The Government of the Member States is held responsible for applying such provisions in practice. Having established the main objective for achieving a high degree of harmonization of the principles regarding statutory auditors and audit firms, the Directive 2006/43/EC aims to: – independence of the auditors when carrying out statutory audits; – public control – ethical standards – fines and sanctions applied – audit standards – conditions for granting and withdrawing the authorizations – quality ensuring systems

2. Premise regarding the organization of the system of public oversight for statutory auditors As the process of adaptation and publication of the new extended

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European Union 8-th Directive, known as the Directive on Statutory Audits of annual accounts and consolidated accounts, being finished, it was necessary to established the steps to follow in order to obtain an effective system of public oversight for statutory auditors and audit, so that the dead line, set out by the Directive, should be met. The public oversight is a key aspect, which is central to enhancing the credibility of the audit profession, consists in: – a system organized by each Member State – a quality ensuring system, a control that shall take place at least every six years, according to the Commission recommendation (December 2000) – a system governed by nonpractitioners, but Member States may allow a minority of practitioners to be involved with the acceptance of the Commission – the oversight will regard the following aspects: the approval and registration of statutory auditors, the adoption of standards on professional ethics, internal quality control of audit firms and auditing and continuing education, quality and disciplinary assurance (investigations and penalties) – a transparent funding system – an effective cooperation at Community level, ensured by another Member State Member States shall organize an effective system of public oversight for statutory auditors and audit firms. The oversight shall be governed in majority by nonpractitioners, coordinated at Community level.

3. Legal framework on institutional system on public oversight in Romania The Ministry of Economy and Finance web page, section Decisional Transparency, published, in the first half of the year, the law project regarding the statutory audit and the Council for Public Supervision of the Statutory Audit Activity. This legislative initiative materialized in the Government Emergency Ordinance No.90/2008 on statutory audit of annual accounts and consolidated accounts published in Official Gazette of

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Romania, Part I, No. 481/30.06.2008 Concerning an institutional legal framework on public oversight, the Government Emergency Ordinance establishes the Council for Public Supervision of the Statutory Audit Activity and the Romanian Chamber of Financial Auditors, created by the Government Emergency Ordinance No. 75/1999, republished in the form including all amendments to date, as regulatory and oversight bodies for statutory auditors or audit firms. Regarding the Council for Public Supervision of the Statutory Audit Activity, Title II of the referred Ordinance, establishes provisions concerning its main objectives, attributes, responsibilities, management and administrative structure, activity and funding system. The Council will be subordinated to the Ministry of Economy and Finance until December 31 2008 and started with January 1 2009 will be subordinated to the Prime Minister Chancellery. The Council is an autonomous public institution with judicial personality, established in order to ensure public oversight, according to Directive 2006/43/EC of European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts. The members of the Council are appointed by public institution as regulation bodies in accounting field such as Ministry of Economy and Finance, Romanian National Bank, National Securities Commission, Insurance Supervisory Commission, Private Pension Supervision Commission, Ministry of Justice, other professional bodies and representative of uniformitarian and business field. The Council for Public Supervision of the Statutory Audit Activity is managed by a president appointed by the representatives of the regulatory bodies (Ministry of Economy and Finance, Romanian National Bank, National Securities Commission, Insurance Supervisory Commission, Private Pension Supervision Commission). The presidency of the Council shall be held for one year by each regulatory body on a rotational basis.

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4. Objectives and Attributes of Council for Public Supervision of the Statutory Audit Activity The Council will be responsible mainly for the following tasks: a) public oversight of the statutory audit activity, according to the communitarian provisions; b) to establish a strategic plan for the public oversight of the statutory audit activity; c) to coordinate and supervise the process of transposing International Audit Standards and Code of Ethics; d) to promote and supervise the process necessary to build on a solid ground, the identity and the public recognition of the statutory audits of annual accounts and consolidated accounts; e) to establish effective cooperation and coordination at European level among competent authorities regarding ISA, statutory audit and public oversight and among other authorities involved in the process of legislate and apply specific standards regarding statutory audit and to create a proper setting in order to satisfy any demands; f) to represent Romania among professional bodies, international organization regarding ISA, statutory audit and public oversight, through its representative; g) to make and elaborate legislative proposals regarding amendments to the law in force; h) to inform and response to the European Commission demands regarding statutory audit and public oversight at the national level. The Council, through its departments established by the law in force, has the following main attributes: a) To supervise, according to the annual schedule, the quality control regarding statutory audit; b) To follow up the way in which the Romanian legal framework transpose the European regulation regarding the independence of statutory audits; c) To inform the Government and other authorities regarding public oversight and the way the International Standards of Audit are adopted and transposed in Romania;

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d) To constantly improve the general framework, to approve the procedure concerning periodical investigations and to ensure the proper implementation by the Romanian Chamber of Financial Auditors; e) To ensure and supervise the investigation and its results; f) To supervise the activity of the Romanian Chamber of Financial Auditors regarding the approval and registration of statutory auditors and audit firms in the Public Register; g) To supervise the provisions elaborated by the Romanian Chamber of Financial Auditors regarding statutory audit; h) To prepare and publish, according to the law in force, its own standards related to the public oversight of the statutory audit; i) To supervise the programmes of continuing education of the statutory auditors; j) To conduct its own investigation regarding statutory auditors and to take proper action; k) To analyze the annual report send by the Romanian Chamber of Financial Auditors regarding the quality control activity and, if necessary, to force the Chamber to take proper action. The Council gets its necessary founding such as: 40% out of entire expenses from the General Budget and 60% are obtained from the regulatory bodies (Ministry of Economy and Finance, Romanian National Bank, National Securities Commission, Insurance Supervisory Commission, Private Pension Supervision Commission, Body of Expert and Licensed Accountants of Romania).

5. Conclusions The comparative analysis of the provisions of 8-th Directives and national regulation regarding financial audit has proven that both national legislation and practice transposes the Community Law with a high degree of professional selfishness demonstrated by the fact that all the concessions established by the Directives, such as experience and recognizing equivalent exams, were not transposed by the Romanian law. Besides, the experience criteria can not be transposed into national legislation because the financial audit is a new craft in our

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Knowledge Based Organization 2008 International Conference country. The analysis also proven that the public oversight is a matter of great importance in areas such as the confidence of public audience in financial audit, the importance of the public oversight authority that should assume the ultimate responsibility for increasing public confidence in annual accounts, in the context of major financial scandals that largely shocked the public trust in auditors’ practices. In this context, it was imperative to create EU Committee on Auditing which would develop further action in close co-operation between the accounting profession and member states.

References 1. Directive 2006/43/EC of European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC. 2. Government Emergency Ordinance No.90/2008 on statutory audit of annual accounts and consolidated accounts published in Monitorul Oficial, Part I, no. 481 of June 30th, 2008. 3. Notes to Government Emergency Ordinance No.90/2008 on statutory audit of annual accounts and consolidated accounts published in Monitorul Oficial, Part I, no. 481 of June 30th, 2. 4. www.mefromania.ro

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THE PUBLIC UTILITY CAUSE IN CASE OF EXPROPRIATION

TA Stoian Alexandru

“Nicolae Bălcescu” Land Forces Academy, Sibiu

Abstract The expropriation represents the constrained transference of certain privately owned immovables to public property with a just and precursory indemnification for the public utility cause. Due to its extremely restrictive nature, expropriation is the strongest prejudice that can affect the private property right, being an exception from its infrangible character. Art. 1 from the First Additional Protocol to the Convention for the defense of human rights and fundamental liberties, transacted in Paris on March 20th, 1952, stipulates that any individual or artificial person has the right to have their assets respected and that no one can have his property taken unless for the public utility cause and under the conditions stipulated by law and by the general principles of the international humanitarian law.

Keywords: expropriation, public property, public utility, private property

In a synthetic definition, the expropriation represents the transference of a privately owned asset to public property, for a public utility cause, with a just and precursory indemnification. The evolution of the institution of expropriation is closely connected to the determination and the right circumscribing of the concept of public utility in the context of the right to property restrictions. The legislator also considered this connection necessary and in most of the formulations, along time, he felt the need to expressly associate the expropriation with public utility, because,

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Knowledge Based Organization 2008 International Conference without the latter, regarded as a sine qua non condition, the expropriation would not have kept its existence in a society increasingly orientated toward the conferring of protections and guarantees to the titularies of the right to private property. Regulating the expropriation in Romania meant recognizing the imperative of the existence of the public utility cause from the moment of elaborating and adopting the first law regarding expropriation: The Expropriation Law for the Public Utility Cause, on 20th October 1864. The Civil Code, which became effective on 1st December 1865, stipulated in art. 481 Civil Code that no one can be forced to give up his property, except only for the public utility cause and receiving a right and precursory indemnification, stipulation that has been reiterated in numerous ulterior normative acts, some of them having a constitutional value. Art. 19 from the Romanian Constitution from 1866 affirmed: no one can be expropriated except for the public utility cause, after this cause has been legally ascertained and after a just and precursory indemnification. A similar regulation can be found in the Romanian Constitution from 1923, art. 17, para. 3: no one can be expropriated except for the public utility cause established by law. With reference to the public utility, art. 19 from the Constitution of 1866 determined the cases when the public utility could be declared. The public utility cause, the text of the fundamental law affirmed, means only the public communication and salubrity and the works for the defense of the country. The existing laws regarding the widening of streets in townships, as well as on the banks of the rivers that flow through, or by them, remain effective. Except these stipulated cases, public utility could not be declared, no matter how powerful the juridical force of the normative act that could have appeared was, the express limitations being of a constitutional nature. The social, economic and political evolution has created the premises of a much broader approach of the declaration of the public utility as a condition for expropriation, a fact that materialized by the increase in the number of situations for which expropriation could be declared, in parallel with their regulation in a much more flexible

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Knowledge Based Organization 2008 International Conference system, by law, not by Constitution, the latter having only the role of enunciating the expropriation and its conditions at a general level. In our juridical literature from the period between the two world wars, a special case was analyzed, a case that was the result of the social-economic conditions of the agrarian reform achieved by the law from 14th July 1921. An agrarian expropriation was mentioned (1), because, according to the legal stipulations that could be applied during that period, the expropriated owners received, as pay for the expropriated land, an annuity from the state, that brought them a 5% interest. This aspect was an argument for the affirmation of the main conformity of the agrarian reform with the expropriation proper. As far as the existence of a compensation was concerned, the state expropriated the great owners, paying them the value of their land by means of an annuity. That land was to be resold to the peasants. The main difference was that the pay of the compensation was not precursory. The exceptional character of expropriation regarding the existence of a public utility cause is also emphasized by Law no. 33/1994 which stipulates that the public utility is declared for works of national or local interest. Public utility is declared for works of national or local interest, by law, by the legislating authority, or by acts of the central authorities, for work of national interest, or by acts of the deliberating district authorities for works of local interest. According to Law no.33/1994 regarding the expropriation for the public utility cause, public utility is declared for works of national or local interest. Thus, according to art. 6 of the mentioned normative act, the following works are considered to be of public utility: – the geological testing and prospecting; the mining and processing of the useful mineral substances; – the installations for producing electricity; – the communication ways, the building, aligning and widening of streets; – the energy supply system, the telecommunication system, the gas delivery system, the heat supply system, the water delivery system, the canalization; the installations for environment protection;

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Knowledge Based Organization 2008 International Conference the bankings and river regularization, the reservoirs for water sources or for reducing the effects of floods; – the deviations of water flows for water delivery and for deviating floods; – the seismic and hydrometeorological stations, systems for warning and prevention against dangerous natural phenomena or for alerting the population, the drain and irrigation engineering; – the works to combat deep erosion; the buildings and the terrains necessary for the construction of social dwellings or to other social education, health, culture, sport, protection and social assistance objectives, as well as for the public administration and legal authorities; – the salvation, protection and valorization of historical monuments, assemblies and sites, of national parks, natural reservations and natural monuments; – the prevention and elimination of the consequences of natural disasters – earthquakes, floods, landslides; – the defense of the country, the public order and the national security. For these cases stipulated by law, the public utility will be declared by the Government of Romania or by the district councils, according to the nature of the expropriation interest. Except these situations enumerated by law, the public utility can be declared for other works too, but only by law, for each particular case. It has been affirmed that the legislator, using the formulation for each particular case, meant that a distinct law would declare the public utility every time there appears the intention to start a determined public interest work that cannot be included among any of the generic cases enumerated by art. 6 of Law no. 33/1994 (2). It has been noticed that in the Constitution and in Law no. 33/1994 reference is made to the public utility cause; the expression public utility works is always used in the special laws in which different causes of public utility are mentioned. The sphere of the notion of the public utility cause, as it was mentioned earlier, is limited by the legislator, for the time being, to the public utility works. If the circumstances that should impose the necessity of such works

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Knowledge Based Organization 2008 International Conference do not exist, then one cannot invoke and declare another public utility cause, the only exception being the case when the public utility cause is declared by the organic law itself. (3) A stipulation with character of exception is the one in art. 7 of Law no. 33/1994 which establishes the declaration of public utility “by law, too” in the case when – no matter the nature of the works – religious buildings, monuments, assemblies and historical sites, cemeteries and other places of exceptional national value or whole rural or urban habitations are subjected to expropriation. Other regulations also contain references to public utility and public utility works. They usually have a character derogatory from the general stipulations of Law no. 33/1994. According to art. 2, para. 3 of Law no. 84 from 12th July 1996, the Law of landed improvements, the arrangements of landed improvements, which refer to the drain, and irrigation engineering, the works for combating erosion, for improving the terrains affected by landslides and shifting sands, the bankings, and the deviations of water flows, or for establishing protective forest screens and anti- erosion plantations, financed by the state budget or, in some cases, from other sources can represent, under legal conditions, national or local interest public utility causes. These stipulations have been abolished by Law no. 138/2004 regarding the landed improvements which, without reiterating the stipulations of the previous normative act, established, in art. 32 that the arrangements of landed improvements, the drain, and irrigation engineering and works of defense against floods or to combat the soil erosion can become of public utility, under the conditions of art. 37, para. 3, of the same normative act which leaves the establishment of the criteria to the Government. After this, an arrangement of landed improvements is declared of public utility. Another normative act which comprises stipulations that can be regarded as being in connection with those of Law no. 33/1994 regarding expropriation, is Law no. 134/1995, the oil law, which in art. 7 stipulates that oil operations (represented by the assembly of activities regarding the prospecting, development and exploitation of an oil source) carried out within the limits of the exploitation

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Knowledge Based Organization 2008 International Conference perimeter represent public utility works, as well as the necessary terrains for these operations. The constructions situated in these areas can also become the subject of expropriation for the public utility cause, under the conditions stipulated by law. Law no. 238/2004, which abolished Law no. 135/1995, no longer expressly stipulates that certain oil operations can become public utility works, but it maintains the association of the concept of public utility with that of oil prospecting/exploitation, mentioning, in art. 6 that the right to use the necessary terrains for the oil operations can be achieved under legal conditions and by expropriation for the public utility cause. Referring to one of the rights derived from the right to private property, in art. 7, it also affirms that a right of legal servitude can be given to the titulary, for terrains, others than those declared of public utility, necessary for the access to the prospecting and exploitation perimeters and to the terrains necessary for any activities they involve, others than those declared of public utility. Important specifications concerning the public utility works are made by Law no.198/2004. These refer to some measures precursory to the construction of national roads and highways, which, referring to the specific situation of highway and national road construction in Romania, declares all the highway and national road constructions as being of public utility. The law specifies that the constructions of highways and national roads means the construction, the reparations, the development, the modernization or the expansion of the national roads and highways. These stipulations exclude the necessity of declaring public utility by an administrative act, in the case of national highway and road construction, the declaration being generically stipulated by law. According to Law no. 407/2005 regarding some measure precursory to the works of repairing and expanding the public railroad infrastructure all the works of repairing and expanding the public railroad infrastructure: works of construction, development, modernization, reparation and, where it is necessary, of expanding the elements of the public railroad infrastructure are declared as being of public utility. The enumeration of these normative acts, with a special character

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Knowledge Based Organization 2008 International Conference in relation to the general stipulations of Law no. 33/1994, does not limit the cases when the public utility for expropriation can be legally declared. At the same time, the existence of certain normative acts that stipulate derogations from the general regime of expropriation, established by Law no. 33/1994, does not diminish and does not dissipate the force of the effective regulations.

Bibliography Chelaru, E., Drept civil. Drepturile reale principale, Bucureşti, Editura C.H. Beck, 2006, p. 45. Hamangiu, C., Rosetti-Bălănescu, I., Băicoianu, Al., Tratat de drept civil român, vol. II, Bucureşti, Editura All Beck, 2002, p. 39. Stoica, V., Drept civil. Drepturile reale principale, Bucureşti, Editura Humanitas, 2004, p. 365.

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THE COMPARATIVE ANALYSIS OF INTERCOMMUNAL COOPERATION COMMUNITIES FROM FRANCE AND ROMANIA

Cugleşan Natalia

“Babeş-Bolyai” University, Cluj-Napoca

Abstract The administrative decentralization process in the unitary states involves the transfer of competences towards the local, county and commune, in the case of Romania and the transfer towards the department, commune and intercommunal cooperation communities, in the case of France. The paper presents in a comparative manner, the competences exercised by the intercommunal cooperation communities from France and Romania. The Chevènement laws defines intercommunality as different cooperation forms between the communities that associated in Public Intercommunal Cooperation Instititutions: Établissement Public de Coopération Intercommunale with the aim of assuring specific services, like the collecting of waste, land reclamation, urban transport, etc. Law 195/2006 anticipated the association of the communes from Romania with the aim of performing projects of common interest. The paper points out the importance of communal association in France and Romania and their relations with the central authorities.

Keywords: administrative decentralization, intercommunal cooperation communities, local public authorities, local autonomy, exclusive competences.

1. Introduction The strategy of the French state regarding the local and regional governance was implemented through the promotion of laws that interconnected with the national and local policies within a complex

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Knowledge Based Organization 2008 International Conference program on medium and long term. These laws confirmed the continuing of the decentralization process, with the mention of its harmonization with the unitary state, the respect of the principle of indivisibility of the republic. The preoccupation of the state for territorial and development planning in order to coordinate the local policies on national and local plan was demonstrated through the adoption of Law 115/4 from February 1995 [1]. This law referred to the set up of national territorial planning schemes and to regional territorial planning and territorial development schemes. A new concept was introduced, the pays, that defined a territory characterized through geographic, economic, cultural and social cohesion1. In Romania it was promoted the association and cooperation between the communes, cities and municipalities for performing projects of common interest. The local public authorities have the competence to decide the cooperation and association for the set up intercommunal associations wih juridical personality. The created associations have the quality of legal enteties of public utility of private law. The association or the cooperation is settled as a right of the local authorities from county, city and commune level and it is obvious that the association is performed with authorities situated at the same territial level, regardless if they are national or transnational authorities [2].

2. The competences of the intercommunal cooperation communities from France The cooperation at local level, foreseen through the adoption of the Voynet law [3] promoted the public-private partnership and was consolidated through a new settlement: Law 586/12 July 1999(published in JORF/13 July 1999) that reinforced and simplified the intercommunal cooperation [4]. The law defined two types of competences: binding and optional, associated for stimulating the financial solidarity development between the participant communes

1 The Pasqua law, as Law 115/1995 is known, doesn't grant to the pays a significance of a territorial collectivity, but this is important for the stimulation of one or more communes to mobilize different public and private actors from the respective territory, in order to action together. 147

Knowledge Based Organization 2008 International Conference and the establishment of common funds emerged from the collection of professional taxes. Through intercommunality, the Chevènement law defined different copperation forms between the communes that associated in Établissement Public de Coopération Intercommunale with the aim of assuring certain services like waste collection, field drain, urban transport, etc or for the elaboration of economic development projects, territorial planning and urbanism. Through the association in EPCI, the communes trasnferred certain competences to these intercommunal structures. Function to the transferred competences, the EPCI were of two types: a) with own fiscality, characterized through the existence of binding competences. This type was specific to the agglomeration communities, urban communities and commune communities; b) without own fiscality, being financed through the contribution of the communes and corresponded to the following structures: (SIVU: Syndicats des Commmunes à Vocation Unique), (SIVOM: Syndicats des Commmunes à Vocation Multiple) and mixt syndicates. As we have mentioned previously, through law 586/1999, the communities of cities and pays were eliminated. The Chevènement law has introduced three new forms of communities with own fiscality and their competences depended on the size of the population: ¾ Agglomeration communites, for urban areas with less than 50.000 inhabitants; ¾ Urban communities, reserved to agglomeration up to 500.000 inhabitants; ¾ Communities of communes, made of two or more communes, regardless of their size. The binding competences granted through law to the agglomeration communities aims at economic development, territorial planning, social stability and housing, urban policy. The optional competences granted to the agglomeration, urban and communities of the communes referred to the assurance of public services very important for the life standards of the communes that formed the intercommunal cooperation community: the set up and maintainance of roads, water supply, environmental protection being the most important.

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The binding competences of the urban communities referr to economic development and territorial planning and social activities. Important domains are the ones reffering to development and economic, social and cultural planning of the community space: establishment, planning, maintainance and administration of the zones with industrial, commercial, handicraft, touristical, port and airport activity. The intercommunal cooperation process advanced in 2002, 3400 communes associated in communes with own fiscality. At the end of 2002, 3 communes out of 4 were part of communities with own fiscality, while at the end of 2006, the share of the associated communes reached 90%.

3. The competences of the intercommunal cooperation associations from Romania According to art. 11(2) of the local public administration law [5], the aim of setting up the intercommunal development associations consists in performing common projects regarding the regional development or for the supply of public services. We can observe the settlement after the French model of communes association (including their name: intercommunal communities, urban agglomeration, metropolitan zones) that were very successful in France. The establishment of the intercommunal cooperation associations doesn’t affect the competences of the component unities. The local councils and their executives maintained their local autonomy settled through law. The Romanian law maker determined that the intercommunal development associations will be financed by the component administrative units as well as from other sources. The contribution of each local authority, member of the association is determined by common agreement between the participants. Taking in consideration the competences granted to the local public authorities through law 195/2006 [6], [7], we consider that the associations receive exclusive and shared competences(with regard to water supply, waste management etc). Table 1 and 2 present some of these associations, created after the adoption of Law 286/2006. Waste management, environmental protection and reabilitation of water

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Table 1 The intercommunal associations at county level Name of the Number of Aimed Individual intercommunal County Source partners domains contribution associations

1.000 RON / http://www.apulum.ro 79 Infrastructure patrimony + 1 (AIDA) Alba 159/2007 Decision of CLM (CC + LC) development RON / inhab / Alba Iulia year

500 lei / CC + LC Waste patrimony + ECONEAMT Neamţ http://www.ngo.ro/aa/images from county management 200 lei / month 45 Integrated Obiectiv Vocea Brăilei Eco Dunărea Brăila (CC* + 43 waste 500 lei Newspaper LC**) management 01.10.2008

41 Waste Eco Sibiu Sibiu n.a Tribuna / 29.10.2008 (CC + LC) management

23 Waste 41 RON for Constanţa Constanţa (cities + Telegraf 15.02/2007 management patrimony communes)

Reabilitation 22 300 lei for Apa Sibiu Sibiu of water http://www.stirilocale.ro/sibiu (CC + LC) patrimony networks Note: * CC = County Council; ** LC = Local Council.

An important initiative represents the founding of the intercommunal development associations between the component counties of the regional development regions (Table 2). Through these associations at regional level, it is foreseen the aquisition of equipments for emergency situations.The Ministry of Economy and Finance established the transfer procedures of the financial funds from the local public authorities to the intercommunal development associations, in order to avoid the disfunctionalities. It is interesting to analyse the manner in which the intercommunal development associations function and how the objectives are established, seen through the angle of cooperation between the County 150

Knowledge Based Organization 2008 International Conference council and local councils of the cities and communes. Is it through the aggregation of all interests or through constraint by the County council?

Table 2 Intercommunal associations at regional development regions

Name of Number of Aimed Individual Region Source association partners domains contribution

20.000 lei / Centrul Equipment Unirea (AB) 7 Center 6 counties patrimony + Transilvaniei aquisitions 28.09.2007 1500 lei / year 1 Equipment Euronest 6 counties 216.904 lei http://www.cjneamt.ro North-Est aquisitions 6 10.000 lei / Transilvania de Equipment Ziua de Cluj, Nord- 6 counties patrimony + Nord aquisitions 01.11.2007 West 5.000 lei / year Sud-Vest 4 South- Equipment 2.000 lei / 5 counties http://www.cjolt.ro Oltenia West acquisitions patrimony

According to art. 3 of community services law [8], the administration of the public utilities services can be performed directly by the authorities of the local public administration and by the intercommunal development associations or a trading company of intercommunal interest can be founded and its capital should be holded by the local councils of the administrative units that participate in the association. The performance of urban equipments of common interest for more mayoralties (water supply, sewerage networks or waste waters plants) was possible even before the promotion of laws 195/2006 and 286/2006 through public-private partnership[9] between the county, municipal and commune authorities and specialized firms in the respective fields.

4. Discussion and Conclusions The intercommunal cooperation French communities clasify in two categories, based on the founding principles: communities that exercise exclusively the competences granted by the communes that form the communities(the principle of specialization) and communities that exercise certain competences that can not be exercised by the communes(exclusivity principle). The competences exercised by the intercommunal cooperation communities from France refer to a broad register of issues, from the 151

Knowledge Based Organization 2008 International Conference creation, planning, maintainance and administration of the zones with industrial, commercial, handicraft, touristical, port and airport activity to local programs for dwelling of community interests, social dwellings, activities in the support of disatvantaged persons, actions that aim at improving the living conditions, reabilitation of unwholesome houses. Other competences of the intercommunal cooperation communities include the elaboration and performance of urban development, local development and economic and social inssertion contracts, delinquency prevention. At 2008 year level, there are 2.500 agglomeration communities, urban communities and communities of communes, of which 2.393 represent communities of the communes and 14 are urban communities(the most important with more than 500.000 inhabitants being Lyon, Lille, Marsilia, Bordeaux si Nantes). The financial resources of the intercommunal cooperation communities are made of taxes on dwellings, taxes on land and professional taxes. For the agglomeration communities, the main financial resources is represented by the professional tax.In contrast to the communities from France, in Romania, intercommunal development associations were created and they include in great majority almost all communes and cities from a county. An other characteristic of the intercommunal development associations is the strict specialization on problems of environmental management, water supply. The main resources for fulfilling the objective are represented by the Structural Funds, patrimony but the annual contributions of the local councils are modest.In return, the associations established at regional level, together with the participation of all counties from one region represents a viable alternative.

References [1] Loi n° 95-115 du 4 février 1995, Loi d'orientation pour l'aménagement et le développement du territoire, JORF du 5 février 1995 [2] Legea administraţiei publice locale, nr. 215/2001, Monitorul Oficial nr. [3] Loi no 99-533 du 25 juin 1999 d'orientation pour l'aménagement et le développement durable du territoire et portant modification de la loi no 95- 152

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115 du 4 février 1995 d'orientation pour l'aménagement et le développement du territoire (1), JO n° 148 du 29 juin 1999. [4] La loi n° 99-586 du 12 juillet 1999 relative au renforcement et à la simplification de la coopération intercommunale, JO/13 juillet 1999. [5] Legea nr. 286/2006 pentru modificarea şi completarea Legii administraţiei publice locale nr. 215/2001, Monitorul Oficial nr. 621 din 18 iulie 2006. [6] Legea cadru a descentralizării, nr.195/2006, Monitorul Oficial, nr. 453/25.05.2006. [7] Natalia Cugleşan, Local governance in Romania in the light of the recent laws on decentralization and local public finances, 15 p., The 16th NISPAcee Annual Conference “Public Policy and Administration: challenges and synergies”, May 15-17, 2008, Bratislava, Slovak Republic, CD-ROM, ISBN 978-80-89013-38-8. [8] Legea nr. 51/2006, Legea serviciilor comunitare de utilităţi publice, Monitorul Oficial, nr. 254 din 21/03/2006. [9] Natalia Cugleşan, Improving quality of urban governance in region West, North-West and Center from Romania, 16p, The 4th International Conference on Private Urban Governance, Paris, 5-8 June 2007, CD-ROM, available also on http://www.staff.uni- mainz.de/glasze/Abstract_Papers_Paris_2007/Cuglesan.pdf.

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PAYMENT ACCORDING TO THE FISCAL PROCEDURE CODE

Postolache Rada

“Valahia” University, Târgovişte [email protected]

Abstract Fiscal payment is basically regulated by the Fiscal Procedure Code, just like compensation, refund, the prescription of the right of demanding compulsory execution, compulsory execution, insolvency, opening the insolvency procedure and remittal. From a juridical point of view, payment means that subjects of judicial relations willingly carry out the obligations taken upon themselves. In the fiscal field, payment stands for the main way of collecting taxes, triggering a rapid cashing of fiscal revenues. Compulsory specific regulations at the basis of payment set the latter apart from common law, through, at least, the following aspects: the group of persons having the duty to pay, a particular place being held by those persons who are jointly accountable; terms of payment provided by the law, which debtors cannot avoid; the order in which fiscal debts are extinguished, by going back to the traditional criterion which is the age of payment obligation; monitoring payment through the electronic system; the forms of juridical accountability when it comes to non-payment, particularly the payment of penalties for late payment. The non-payment leads to the other ways of tax collection, including compulsory execution, which fiscal entities generally avoid.

Keywords: fiscal payment; fiscal debtor; penalties for late payment; orders of extinguishing a fiscal debt.

1. General aspects Payment represents “the willing fulfillment of his obligation by the debtor, irrespective of the obligation’s object” [1]. In the fiscal

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Knowledge Based Organization 2008 International Conference field, payment stands for the main way of collecting taxes, triggering a rapid cashing of these. The specific juridical ground of fiscal payment is the Fiscal Procedure Code – Government Ordinance No. 92/2003, completed with the common law provisions, Civil Code, art. 1092-1127 (republished, Off. Gaz., Part I, No. 863 of September 26th 2006, which is still called the Fiscal Procedure Code or the Fisc. Proc. Code). In order to determine the juridical character of payment, it is necessary to analyze: the group of fiscal debtors, the terms of payment, the order in which fiscal debts are extinguished and juridical accountability in the form of penalties for late payment.

2. Debtors according to the Fiscal Procedure Code Stricto sensu, fiscal debtors are “those persons who, according to the law, have the correlative obligation of paying fiscal debt rights” [art. 25, align. (2), Fisc. Proc. Code]. The passive subject of a juridical fiscal payment relation may be someone different from the debtor stricto sensu. In other words, the subjects of the juridical fiscal relation are: the creditor, as active subject and the fiscal debtor, as passive subject, the latter expressing his will by fulfilling his obligation of bearing or paying fiscal revenues, depending on the case. [2]. According to the Fiscal Procedure Code, the persons having the duty to pay are: a. first of all, the debtor – that person who, according to the law, has the correlative obligation of paying fiscal debt rights; b. if the payment obligation has not been carried out by the debtor, then, according to the law, the next debtors will be: – the successor who agreed to the respective debtor’s succession; debtor’s successors are exempt from the duty to pay amounts of money resulting from fines given, according to the law, to the debtor as physical person (art. 29, Fisc. Proc. Code); – the person who takes over, totally or partly, the rights and the duties of the debtor who goes through a process of division, merger, or judicial reorganization, according to the case; – the person whose accountability has been decided according to legal provisions regarding bankruptcy;

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– the person who, according to the law, has taken upon himself the payment obligation, by means of a payment commitment or other document closed in authentic form; this person has the duty to offer a real guarantee at the level of payment obligation. In these circumstances, there are applied the provisions of the art. 1093, Civ. Code – “the obligation can be fulfilled by any person who is interested in it and even by one who is not”, the ground of payment being the mandate contract, the business administration, various donations etc; – the juridical person - for fiscal obligation of his branch offices – other persons, according to the law; c. the formal payer – the person who, in the name of the debtor and according to the law, has the obligation to pay or to withhold and pay, depending on the case, taxes, contributions, fines and other amounts of money owed to the general consolidated budget; examples: an employer paying the tax on salaries, a person paying the added value tax. The payment in the name of the debtor represents a personal juridical obligation, accordingly regulated; d. persons jointly accountable with the fiscal debtor declared insolvent, according to the law, accountable for the debtor’s fiscal debts: – physical or juridical persons who, during the three years before insolvency is declared have obtained, in bad faith and irrespective of the way, assets from debtors who thus cause their own insolvency to happen; – managers, associates, shareholders and any other person who brought about the insolvency of the juridical person in debt, by transferring or hiding in bad faith and in any kind movable and fixed assets belonging to the debtor’s property. It is considered [3] that the effects of joint accountability provided by the Fiscal Procedure Code [art. 28, align. (1), letter b)] do not apply for associates and shareholders of commercial societies in debt; the accountability of these persons will be decided in accordance to the Law No. 31/1990 regarding commercial societies, taking into account the latter’s organization form. The juridical person is jointly accountable with the debtor

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Knowledge Based Organization 2008 International Conference declared insolvent according to the law, if directly or indirectly controls, is controlled or is under common control1 with the debtor, if performs exactly the same activity or activities as the debtor and if at least one of the following conditions is met: a. the juridical person obtains with any title the property right on some material assets from the debtor; the bookkeeping value of this assets must account at least for half of the net bookkeeping value of all material assets of the one who receives them; b. the juridical person has commercial relations stipulated by contract with customers and/or other suppliers than those of utilities who, at least half of them, had or still have contractual relations with the debtor; c. the juridical person has labour relations or civil relations of service supply with at least half of the debtor’s employees or service suppliers. The juridical person’s accountability is considered “a passive joint accountability for fiscal duties” [4]. The fiscal body can refuse the payment made by another person than the debtor. Irrespective of the payer, the one exempt from the obligation is the debtor, so that any subsequent juridical relation will be between the latter and the one who made the payment. Joint accountability will be established through decision which is included in the category of administrative fiscal documents; the latter represent executory titles, have a regulated content, and also comprise elements regarding the main debtor (according to the art. 28, Fisc. Proc. Code).

3. Object and terms of payment A creditor cannot accept something else than the amount of money expressed by the fiscal debenture. Transferring the debtor’s fixed assets to the state public property is only an application of payment assignment, an exception, applicable under the provisions of

1 Control – ”the majority of voting rights within the associates general assemble of a commercial society, association or foundation, within the management board of a commercial society or within the executive board of an association or foundation”; indirect control – “the activity through which a person exerts control over one or several persons” [art. 27 align. (3), Fisc. Proc. Code]. 157

Knowledge Based Organization 2008 International Conference the art. 175, Fisc. Proc. Code. Payment made on behalf of another fiscal body represents an amount of money not owed and determines juridical relations of repayment. Common law provisions regarding payment made on behalf of a third person do not apply. (art. 1096 and art. 1097, Civ. Code). Payment must be done at maturity – when terms provided by the Fiscal Code and other laws regulating taxes end. Payment exceptions are provided by art. 111 of the Fisc. Proc. Code. According to common law [5], participants cannot decide or modify the terms of payment. The anticipated payment does not have the same meaning as within common law; it is allowed for taxes owed on an annual basis, payable in installments, for instance local taxes, and taxpayers can benefit from incentives such as “discounts”. The payment infringing the maturity term is sanctioned by means of penalties for late payment. A debtor can ask for fiscal payment facilities – postponements, spreading out payments, exemptions, discounts, according to art. 125. Fisc. Proc. Code.

4. The moment and the proof of payment A fiscal obligation is considered fulfilled: – at the date written on the payment document released by the competent fiscal authorities, in the case of cash payments; – at the post office date written on the postal order, in the case of payments made by postal order; – at the date when the payer’s account is debited, in the case of payments made through banks, the proof of the date being the debtor’s statement of account [art. 114, align. (3), Fisc. Proc. Code]. If banks do not transfer the amounts of money to the general consolidated budget, the debtor is not exempt from the payment obligation of the respective amounts; he remains accountable both for the amounts which did not go to the required budgetary account and for their required penalties for late payment, after the first three working days since his account was debited. Yet, the fiscal debtor will

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Knowledge Based Organization 2008 International Conference have the chance to recover the prejudice caused by the bank by means of a common law action; in these circumstances, the statement of account can no longer prove anything; – at the date when documents or acts for which required stamps were handed in and annulled, according to the law, were registered at the competent authority, in the case of obligations which are extinguished by annulling mobile revenue stamps; – at the date when the debtor’s account is debited, in the case of obligations declared at customs. If errors within payment documents drafted by the fiscal debtor are corrected, payment will be considered valid from the moment of correction made by the competent fiscal body; in these circumstances, payment is valid if banks transfer the funds to the general consolidated budget. According to the means of payment used, regulated by law, payment can be proved by: – payment instruments resorted at, confirmed by the bank with signature and stamp, the certification standing for debiting the payer’s account; – the receipt released by the collecting body – treasury, fiscal agent, in the case of direct cash payment; – the stamp applied on the drafted document. The proof of fulfilling the fiscal obligation will be accepted only trough certificate, including here the stamp applied on a document and then annulled.

5. The order in which debts are extinguished The order in which fiscal debts are extinguished becomes of interest when the debtor has to pay taxes or other contributions and his financial resources are insufficient for a complete payment; in this case, there will be extinguished the debts corresponding to that type of main fiscal debt which taxpayer establishes or which is distributed, according to the provisions of art. 114, Fisc. Proc. Code, by the competent fiscal body, according to the case, so that the extinguishment will be performed, by right, in the following order: a. the amounts of money postponed or spread out at payment and

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Knowledge Based Organization 2008 International Conference the corresponding penalties for late payment, reaching maturity in the respective month, according to the pay scheme; b. main fiscal obligations or penalties for late payment, in the order of their age. Extinguishing penalties for late payment primarily is illegal, since the main obligation, unpaid and diminished with this amount of money, brings about new penalties and implicitly the continuation of the fiscal debt. Collecting penalties for late payment from amounts of money subsequently paid must not be simultaneous anymore with collecting the main debt (High Court of Cassation and Justice, legal administrative department, decision no. 584 of February 12th 2004, establishing the illegality of the Order No. 620/1997 released by the Finance Ministry, according to which penalties for late payment were extinguished primarily in relation to the main obligation) [6]; c. the amounts of money postponed or spread out at payment and the corresponding penalties for late payment, owed for the next installments included in the pay scheme of the fiscal obligation postponed or spread out; d. obligations with future maturity terms, at the taxpeyer’s request. The age of payment fiscal obligations is thus established: a. according to maturity, for main fiscal obligations; b. according to the notification date, for the amounts of money established by fiscal bodies as payment differences which are the debtor’s duty; c. according to the date when corrected fiscal statements are handed in at the fiscal body, for the amounts of money established by fiscal bodies as payment differences – main fiscal obligations . The instituted order is compulsory, so that a fiscal creditor has to observe it accordingly. Regulations abide by the payment distribution rules, provided by art. 1110, Civ. Code, where the first applied criterion is the age of obligation.

6. Juridical accountability as penalties for late payment Breaching the maturity of fiscal payment triggers penalties for late payment. Their juridical nature has been differently interpreted by various authors: pecuniary administrative sanctions [7]; typical public law sanctions [8], since the ground of their application resides in breaking

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Knowledge Based Organization 2008 International Conference a constitutional duty, taxes being regulated by the Romanian Constitution as fundamental duties, in the form of financial contributions [art. 56, align. (1)]; specific sanctions [9] for administrative-financial transgressions within financial law; sanctions for non-payment at the due term and also partial reimbursement of the state for collecting its rights with delay [10] – sanctions with a mixed nature. Penalties for late payment represent sanctions regulated for recovering the prejudice caused to the general consolidated budget by a delay in collecting the amounts of money owed as taxes or contributions; they can be ascribed to the pattern which defines juridical accountability – “the obligation (here fiscal) of bearing the consequences for not abiding by some behavioral rules”. Currently, penalties for late payment are regulated by art. 119-123 of the Fiscal Procedure Code and have the following characteristics: – start to be applied by right exactly the next day after fiscal obligation reaches maturity, until the owed amount of money is extinguished, not being necessary for the debtor to be warned; the absence of financial means for insuring the financing of production cannot be a reason for removing the fiscal obligation (Supreme Court of Justice, legal administrative department, decision no. 1093 of March 18th 2003) [11]; – are legally evaluated and the parts of the juridical relation have no right to determine their percentage or amount, as in the case of common law, through penal clause; – are owed for any fiscal obligation not paid at the maturity term, comprised the differences established by fiscal bodies in exerting their control attributes, except for: any kind of fine, penalties for late payment established according to the law, expenses for forced execution, judicial expenses, confiscated amounts of money, amounts of money representing the equivalent in RON of the goods and amounts confiscated which cannot be found at the crime scene; specific circumstances are regulated by art. 120-124, Fisc. Proc. Code; – can be subject to some facilities – postponements, spreading out payments, exemptions, discounts, according to fiscal legislation; – are owed also during the period with postponements and spread outs regarding the payment of main fiscal obligations.

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Conclusions Payment is more than just a simple operation of collecting particular amounts of money. Payment stands for the main way of collecting fiscal debts, together with compensation and forced execution. The interest in an efficient collection of taxes has caused the group of debtors to expand, the joint accountability to be clearly regulated, terms of payment to be compulsory and penalties for late tax payment to be instituted. All this elements make from fiscal payment a type of voluntary execution, with a well defined content and juridical character. The current approach is based on specialized literature, juridical norms, jurisprudence and the practice of authorized institutions, attempting to add new elements to the already existing analyzes within the field.

References [1] Constantin Stătescu, Corneliu Bîrsan, Drept civil. Teoria generală a obligaţiilor, Bucharest, ALL Publishing House, 1992, pp. 283-284. [2] Constantin Topciu, Fiscalitate, Vol. 1, Bucureşti, Editura Academiei de Studii Economice, 1993, p. 10. [3] Dumitru A.P. Florescu et al., Fiscalitatea în România, Bucharest, ALL Beck Publishing House, 2005, pp. 401-402. [4] Ibidem. [5] Constantin Stătescu, Corneliu Bîrsan, Drept civil. Teoria generală a obligaţiilor, Edition 3, Bucharest, ALL BECK Publishing House, 2000, p. 303, for the date when payment can be required according to common law. [6] http://www.just.ro [7] Antonie Iorgovan, Tratat de drept administrativ, Vol. 2, Bucharest, Nemira Publishing House, 1996, p. 230. [8] M. Constantinescu et al., Constituţia României, comentată şi adnotată, Bucharest, “Monitorul Oficial – Regie Autonomă” Publishing House, 1992, p. 180. [9] Emil Bălan, Drept financiar, Bucharest, All Publishing House, 1999, p. 180. [10] Cristina Oneţ, Accesoriile creanţelor bugetare în lumina Ordonanţei no. 61/2002, The Commercial Law Magazine (Revista de drept commercial), no. 5/2002, pp. 88-95. [11] http://www.just.ro.

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ASPECTS REGARDING THE PUBLIC PROCUREMENT SYSTEM IN ROMANIA

Brat Viorel, Dragosin Lucian-Ilie

M.U. 01261, Piteşti [email protected]

Abstract This document presents the fundamentals of the public procurement system in Romania and explains shortly the main concepts of Government Emergency Ordinance no. 34/2006 regarding the public procurement, public works concession and services concession contracts, updated until now.

Keywords: public procurement system, public works concession, services concession contracts

1. Introduction With Romania’s Accession to the European Union on the 1st of January 2007, the customs borders with other Member States were removed. Consequently, the movement of community goods between Romania and these States is no longer subject to customs control. In the context of complying with the engagements assumed by Romania in the process of the accession to the E.U., The National Authority for Regulating and Monitoring Public Procurement (N.A.R.M.P.P.) is a public institution, subordinated to the Government and in the direct co-ordination of the Prime – Minister, having it’s headquarters in Bucharest and was founded by the Government’s Emergency Ordinance no. 74/2005 approved with modifications by Law no. 111/2006. Romanian law provides for several types of instruments through

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Knowledge Based Organization 2008 International Conference which State or local authorities entrust undertaking of works, supplying of goods or services to private investors, namely by means of public procurement, public works concessions and services concessions contracts. The relevant legal framework was dramatically modified during last years, following European Commission’s recommendations and with a view to comply with Romania’s engagements in the field of ensuring free movement of goods in the context of Romania’s accession to the EU. The legal base governing public procurement, public works concession and services concession contracts is Government Emergency Ordinance no. 34/2006 (GEO no. 34/2006), entered into force on June 30, 2006. GEO no. 34/2006 has as purpose harmonization of the relevant romanian legislation with the provisions of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, of Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, of Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and of Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. Contracts falling under the scope of GEO no. 34/2006 are: – public procurement contracts; – public works concession contracts; – services concession contracts.

2. Types of Public Procurement Contracts 2.1. Works contract is the public procurement contract having as object: – either undertaking works related to certain specified activities or undertaking a construction;

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– both designing and undertaking works related to certain specified activities or both designing and undertaking a construction; – undertaking, by any means, of a construction complying with the contracting authority’s requirements and objectives.

2.2. Supply contract is the public procurement contract having as object supply of one or several goods, by means of purchase, including payment by installments, renting or leasing, with or without the option to purchase. The contract having as main object supply of goods and, accessorily, operations/works of installing and setting up for working conditions falls under the scope of the supply contract.

2.3. Services contract is the public procurement contract having as object supply of one or several certain specified services.

2.4. Sectorial contract is the public procurement contract granted for the purpose of undertaking a relevant activity in the public utility sectors of water, energy, transport and post. Relevant activities in the above mentioned sectors are considered to be the following: Water: making available or exploiting fixed networks destined to ensure, to the public’s benefit, services of production, transport or distribution of drinking water, or supplying drinking water to networks such as the above; also, projects of hydraulic technology, irrigations or soil amelioration as well as evacuation and treatment of used water are also subject to similar procedures. Energy: making available or exploiting fixed networks destined to ensure, to the public’s benefit, services of production, transport or distribution of gaseous combustibles, thermo energy or electricity, or supplying gaseous combustibles, thermo energy or electricity through networks such as the above. Transport: making available or exploiting networks destined to ensure, to the public’s benefit, railway transportation services and passengers’ terrestrial transportation services, based on timetables, such as public transportation by buses, tramways, subway, trolleybuses or cable transportation. Post: postal services, management of courier services, electronic

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Knowledge Based Organization 2008 International Conference mail, financial postal services, philately services and logistics services related to postal services. Other relevant activities: activities which imply exploring a geographic area with the view of prospecting or extracting crude oil, natural gas, coals or other solid combustibles or making available to transporters operating air, maritime or fluvial lines airports, maritime/fluvial ports or other transportation network terminals. The public procurement contract is granted either based on the criterion of the most advantageous offer form an economic point of view or, exclusively based on the lowest price criterion. With respect to public works and services concessions, GEO no. 34/2006 establishes the general framework for granting such contracts, while the specific stipulations regarding the substantiation of the decision to undertake the project, the method of transfer and recovery of the object of the concession, the method of preparation of the granting documentation and application of procedures are regulated through Government Decision no. 925/2006 and Government Decision no. 71/2007.

3. The Parties of the Public Procurement Contract 3.1. Contracting authorities: ● any State body – public authority or public institution – acting at central, regional or local level; ● any other body governed by public law, having legal personality, set up for satisfying general - interest needs, without commercial or industrial character, mainly financed or subordinated, controlled or managed or supervised by a contracting authority as defined above or other body governed by public law; ● any association made up of one or more contracting authorities, mentioned above; ● any public enterprise performing one or several activities relevant in the public utility sectors: water, energy, transport and post, when it grants public procurement contracts or concludes framework - agreements destined to the performance of the respective activities; ● any entity, other than those mentioned above, performing one or several activities relevant in the public utility sectors: water,

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Knowledge Based Organization 2008 International Conference energy, transport and post, based on a special or exclusive right granted by a competent authority, when it grants public procurement contracts or concludes framework – agreements destined to the performance of the respective activities.

3.2. Economic operator Any individual or legal entity, State or privately owned, or a group of such entities, lawfully, supplying goods, services or undertaking works and complying with specific criteria related to personal status, economic and financial status, capacity to exercise its professional activity, technical and/or professional capacity, compliance with quality insurance standards and with environment protection standards.

4. Procedures for Granting Public Procurement Contract Open tender: any interested economic operator has the right to submit an/the offer; Restricted tender: any economic operator has the right to candidate and, only selected candidates will have the right to submit the offer; Competitive dialogue: any economic operator has the right to candidate and the contracting authority conducts a dialogue with the admitted candidates for the purpose of identifying one or several solutions that would satisfy its needs and, on the basis of the respective solution/s the selected candidates would elaborate the final offer; Negotiation: procedure through which the contracting authority consults with one or several of the selected candidates and negotiates contractual clauses, including the price, with one or more of them, with or without prior publishing of a participation announcement; Request of offers: simplified procedure through which the contracting authority requests offers from several economic operators; Design contest: a special procedure through which the contracting authority acquires, specifically in the field of urban planning, architecture or data processing, a plan or a project by having it selected, on competition bases, by a jury, with or without prize

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5. Special Methods of Granting the Public Procurement Contract Framework agreement: written agreement concluded between one or several contracting authorities and one or several economic operators with a view of establishing the essential elements/conditions that will govern the public procurement contracts to be granted within a given period of time, specifically as regards the price thereof and, as the case may be, the quantities considered. As a rule, framework agreements are mandatory concluded by applying open or restricted tender procedures. Dynamic purchasing system: the entirely electronic process, limited in time and open throughout its duration to any economic operator fulfilling qualification and selection criteria and who has presented an initial offer compliant with the requirements of the tender book; such a system can be used only for acquiring current use goods, having characteristics generally available on the market that satisfy the contracting authority’s needs. Electronic auction: repetitive process, undertaken after a first complete appraisal of offers, whereby offerors have the possibility, exclusively by electronic means, to reduce the offered prices and/or improve other elements of the offer; the final appraisal must be necessarily undertaken by the electronic means used. The contracting authority is entitled to use electronic auction as a final stage of the open tender, or the restricted tender, of the negotiation with prior publishing of a participation announcement, when resuming the competition between the economic operators that have signed a framework agreement or when submitting the firm offers with the view of granting a public procurement contracts by a dynamic acquisition system. However, electronic tender may not be used when acquiring services and works contracts, implying provisions of intellectual services, such as consultancy, design or others similar.

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COMPARISON BETWEEN INTERN AND EUROPEAN REGULATIONS CONCERNING “EMPLOYEE DETACHING”

Prof. Vlad Barbu, PhD Asst.Prof. Cernat Cosmin, PhD

“Alexandru Ioan Cuza” Police Academy, Bucharest

Abstract Employee detaching is a disposal act of the employer, which provides that the employee must work for another employer, for a fixed period of time stated by the law. This alteration of working conditions and of individual labour contract must be done under the strict provisions of the law, assuring this way a strong protection for the employee.

Keywords: employee detaching, intern regulation, European regulation

Detaching employees abroad in the area of rendering services is stated by the European Parliament and European Counsel Directive nr. 96/71 concerning Employee detaching in the area of rendering services1, which is based on articles 49 and 50 from the CE Treaty on free rendering of services. The Directive states that in the area of rendering services it is necessary to eliminate all constraints regarding citizenship and residency conditions, which are forbidden in the CE Treaty, in order to achieve one of the CE’s objectives, to remove all obstacles in persons and services freedom of movement. According to paragraph 1, art. 1 of Directive nr. 96/71, its

1 Published in the Official Journal of the European Community L. 18 January 21st 1997. 169

Knowledge Based Organization 2008 International Conference provisions apply to companies established in a member state which, in the course of an international rendering of services, detach employees on the territory of another member state. The employee’s detachment can occur in the following situations: a) on the purpose of rendering services on the basis of a contract between the detaching company and the receiver of the service from another member state, if there is a working relation between the detaching company and the employee at the time of detachment; in such a situation, the detachment takes place in the interest and under the supervision of the detaching company; b) on the purpose of performing an activity on the territory of a member state, in a company belonging to the same group as the detaching company, if there is a working relation between the detaching company and the employee at the time of detachment; c) in the case of a temporary working company or a company that normally detaches workers, that having a working relation with the employee detaches him to a company that runs in another member state, on the condition that working relations between the detaching company and the employee should be kept during detachment.

Some conclusions result from the Directive’s provisions: 1. Directive provisions apply only when the employee is detached to a member state, not when he is detached to a third-party state. 2. Employee detaching can be the object of activity of the detaching company (as in the case of temporary labor contract), but it can also an accessory rendering of services1 (as in the case of detaching an employee to a foreign country to supervise the mounting of a sold device). 3. The working relation between the detaching company and the employee is maintained during detachment, even if the employee performs in the interest of the receiving company. Unlike the provisions in the Romanian Labor Code2, where during detachment

1 Bernard Teyssie, Droit du travail: relations collectives, Editeur Litec – Editions de Juris Classeur, Paris, 2005, p. 149. 2 Art 45 Labor Code: “Detachment is the act that that sets the temporary change of working place, according to the will of the employer, to another employer, with the purpose of performing in the latter’s interest”. 170

Knowledge Based Organization 2008 International Conference the labor contract is suspended, its effects being yield to the receiving company1, the detachment as set in the European Directive nr. 96/71 doesn’t suspend the labor contract. The detached employee doesn’t sign a new labor contract with the receiving company. 4. The Directive doesn’t establish a maximum time limit of detachment, stating only that its provisions regarding the employee’s consideration may not be applied if the detachment is shorter than a month and if it’s done to a company belonging to the same group. According to the Directive a detached employee is the employee that for a limited period of time performs his activity in other member state than the one he usually works in. 5. The Directive’s provisions do not apply to sailing personnel from commercial marine companies. The European Community Justice Court ruled, in several cases, regarding employee detaching in another member state, before Directive 96/71 was adopted. Thus, in a prejudicial matter2, it showed that the term of service, as referred to in art 50 of the CE Treaty, comprises also the detachment of workers. In the same ruling, the Court held that a member state can oblige a company from another member state, which detaches employees to a national company, to fulfill certain conditions in order to be able to render services on its territory, even if that company has all necessary authorization from the country where it has its headquarters. Yet, those obligations must not be enforced on the basis of state nationality and the authorities of the receiving state must consider the guarantees that the company has already presented to its home country3. On a different occasion, the Court held that the provisions of the CE Treaty on rendering of services by foreign citizens state that this activity must be done under the same conditions that the receiving state assures for his own citizens, all discrimination based on the worker’s citizenship are inadmissible4.

1 Ion Traian Ştefănescu, Tratat de dreptul muncii, vol I, Bucureşti, Editura Lumina Lex, 2003, p. 462; Alexandru Ţiclea, Dreptul muncii, Bucureşti, Editura Rosetti, 2004, p. 466. 2 Decision from December 17th 1981 in case 279/80, Rec., p 3305. 3 Bernard Teyssie, Droit du travail: relations collectives, Paris, Editeur Litec – Editions de Juris Classeur, 2005, p 149. 4 Decision from February 3rd 1982 in case 62-63/81, Rec., p 223. 171

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On what concerns the employee’s status, the Directive sets an obligation for member states to see that, regardless to intern regulations applicable to labor contracts, detaching companies assure for their employees the same working conditions, in both the detaching and the receiving states, through administrative provisions, regulations, collective bargaining or arbitral ruling of general applicability. The working conditions the Directive refers to are: a) maximum working hours and minimum resting hours; b) the minimum duration of annual paid holiday; c) the minimum wage, including bonuses for extra working hours; d) the cases in which they can be sent to work for another unit; e) health, safety and hygiene conditions; f) protection measures applicable to pregnant women, women that recently gave birth, children and young people; g) equal treatment for women and men and other provisions concerning discrimination. On what concerns the minimum wage, the Directive sets that it is established by the regulations of the receiving state. The ones that benefit from these guarantees are the detached employees that have a working relation with the detaching company. Both the employee hired for a determined period of time and the one hired for an undetermined period can be detached, according to the Directive1. The Directive also sets some provisions regarding the applicability of more favorable regulations for the employee: – when the duration of detachment is shorter that 8 days, the provisions regarding the annual holiday duration and the minimum wage level do not apply to workers that perform activities of mounting essential for the functioning of the device2; – member states, after consulting with social partners, may not apply to detached employees the provisions regarding the minimum wage level if the duration of detachment is shorter that a month3;

1 Bernard Teyssie, Droit du travail: relations collectives, Paris, Editeur Litec – Editions de Juris Classeur, 2005, p. 155. 2 For certain activities set in the Directive’s annex, this exception does not apply. 3 Art 3, par 3 of Directive 96/71. 172

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– member states may not apply provisions regarding maximum working hours and minimum resting hours, and also the ones regarding minimum wage level, if they consider that the activities performed are not extensive; the member states must define the markers that suggest that a certain activity is not extensive; the 3rd article of the Directive sets that the duration of detachment is calculated at a reference period of 1 year; – the relocation allowances are considered to be part of the minimum wage, if they are not paid with reimbursement title for expenses caused by the detachment. According to the Directive’s provisions, collective bargains and arbitral rulings are to be respected by all companies that belong to a certain area. Therefore, the Directive’s provisions have the purpose of assuring more favorable working conditions for the employee detached into another member state. Thus, the provisions set by the Convention regarding contract obligations, from June 19th 1980, have general applicability, giving the parties to an individual labor contract the opportunity to choose the regulation applicable to their contract or, if they failed to do so, to apply the law of the country where the employee usually works, even if he is temporarily detached. The Rome Convention from 1980 sets in art 6 that in the case that the employee doesn’t perform his job in only one country, the law applicable to the labor contract is the law of the country where the employer has its headquarters, except for the situation in which the employee developed a stronger working relation with another country. Referring to the 1980 Convention, the 96/71 Directive sets that the provisions it contains must be applied by member states regardless to the law applicable to working relation. This is explained by the fact that based on the principle of priority of European Law, the Rome Convention doesn’t affect the applicability of certain provisions that concern conflicts of laws in the area of contract obligations and that are emitted by the CE. Judging by the provisions that the 96/71 Directive contains, it has been shown that it has altered the case law of the CE Justice Court into an obligation, so it can be said that the objective of the Directive

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Knowledge Based Organization 2008 International Conference is to impose on member states the appliance of some imperative regulations for minimal protection. In art 1, the Directive sets that a third-party state may not get more favorable treatment than a member state. The Labor Code, in art 18, sets that if the employee is to perform his activity abroad, the employer must inform him in advance about his rights and about the provisions of art 17, regarding the essential elements of the labor contract. Also, the employer must inform its employee about: a) the period of time he will be performing his activity abroad; b) the currency and the means by which he will be paid; c) consideration in money and/or products related to his detachment; d) the climate conditions; e) the most important regulations that govern labor law in the receiving country; f) the local customs that if disrespected might be a risk for his life, freedom or personal safety; g) repatriation conditions. As it can be seen, these provisions refer to the obligation of informing the employee, not to the obligation of guaranteeing more favorable working conditions, if those existed in the receiving country. According to art 93, Labor Code, the temporary labor contract must contain, aside from the elements listed in art 17 and 18, the conditions under which the mission must take place, its duration, and means of paying the wage. Art 95 from the same code also contains an important provision: the wage received by the detached employee must not be lower than the one received by an employee of the receiving company, for the same work, done in the same conditions. Also, art 14 from Government Resolution nr. 938/2004 regarding setting up, functioning and authorization of the temporary labor agent1, sets that the temporary labor contract must contain necessary information regarding possible detaching conditions, according to Labor Code. As follows, the obligation to inform the employee is kept, but not the one about ensuring the applicability of more favorable conditions. Yet, the 2nd article of the Labor Code sets that the Code’s provisions apply to Romanian citizens appointed with individual labor contract that perform their activity abroad, except for

1 Published in the Romanian Of.M. nr. 589 on July 1st 2004. 174

Knowledge Based Organization 2008 International Conference the case in which the law of the receiving state contains more favorable provisions. The provisions set by Directive 96/71 have been applied in national law through bill nr. 344/20061 regarding employee detaching in the area of international rendering of services. The bill applies if one of the following international measures is taken: a) the detaching of a Romanian employee, on behalf an under the supervision of his employer, as part of a contract between the company that performs the detaching and the receiver that performs his activity in Romania, if it exists a working relation between the employee and the employer at the moment of detaching; b) the detaching of an employee at a unit situated in Romania or at a company belonging to the same group of companies from Romania, if it exists a working relation between the employee and the employer at the moment of detaching; c) the temporary assignment of an employee, by a temporary labor company or a placement agent, at a receiving company that performs its activity in Romania, if it exists a working relation between the employee and the employer at the moment of detaching.

1 Published in the Romanian Of.M. nr. 600 on July 11th 2006. 175

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UNDERGROUND ECONOMY – RESEARCH OBJECT FOR CRIMINOLOGY

Assoc.Prof. David Mihail, PhD

“Spiru Haret” University, Constanţa [email protected]

Abstract Under ground economy represents the object of judicial and economic research, determined not as much by theoretical necessities but by practical ones, necessities of delimiting the area of its activities, of knowledge and identification of the domains with which it interferes. Up until now specialists have not clearly elaborated the criteria which determine the interpretation of the concept of under ground economy, instead using in order to define it different epithets like: illegal, underground, criminal, dark, black, informal, parallel, dual, destructive, to which are added terms like: underground economy, underground world, underground sector, underground operations, underground business.

Keywords: underground economy, criminology, underground world

In the new era of globalisation, the borders have opened, the commercial and financial barriers have been eliminated and information flows rather rapidly. The business of crossnational companies is increasing more and more, as it does the one of crossborder criminal organizations. Large fortunes are often the result of traffic with drugs and guns, contraband, prostitution, money laundry, all under the corruption’s umbrella. Their opportunities for exploiting the system have never been bigger, as the world market was liberalized before the creation of the global institutions necessary for control and surveillance. It is not in vain

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Knowledge Based Organization 2008 International Conference that it is said that what is good for the free trade it is also good for criminals. Crossborder organized crime is considered by experts as the economic branch with the fastest expansion in the world, providing an annual income of about 500 dollars [1]. Simultaneously, the borders between what is legal and what is illegal is business is fading away. Banks and transnational companies are often controlled by international crime organizations which take advantage of the elimination of legal coercions for the economy. No matter how strict may be the laws against money laundry, the infiltration in the legal sectors of the illegal investors can not be blocked. In the same time, globalization of economic activities and of financial markets has had various positive influences over the global economy, but the prices imposed by this phenomenon become more and more obvious. One of these prices is the easiness with which money can be laundered nowadays both at national and international level. Although there are no exact estimations, experts presume that somewhere between 300 and 500 billion dollars enter each year on the capital market [2]. These sums of money come from illegal activities, which absorb directly the resources that could be assigned for legal usage. Furthermore, through money laundry, “dirty” money is invested all over the world, not as much on the basis of expected profit networks but on the basis of the easiness with which national controls can be avoided. Thus, dirty money tends to flow towards the areas where controls are not that harsh. Eventually, global money investment is distorted, first of all by criminal activities and secondly by the way in which the dirty money is invested: corruption, illicit trading with guns, drugs, human beings, luxury objects, etc. The integration of economy at a global scale is not determined by natural laws which appear suddenly, without any other choice. First of all, it is the result of governmental politics, promoted by industrialized western countries. In their turn, the conflicts that accompany globalization are nothing else but a battle as old as the capitalism itself it is for the distribution of what it produces. Looking at it in this way, crossborder criminality gets frightening magnitude, generating the risk of producing at a certain moment a global economic decrease. In the World Bank’s report on the topic of world wide corruption,

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Knowledge Based Organization 2008 International Conference over 150 persons from high social classes, from about 60 developed countries, have catalogued corruption as the biggest impediment in their development and economic growth. Corrupt practices lead to the “the drainage” of the state budget, to the ravaging of the free trade and to the driving away of foreign investors. World Bank stresses that, in the present, corruption can affect in a negative way the annual rate of economic growth of a country with 0,51%. On the other hand, a study of IMF (International Monetary Fund) estimates that in corrupt countries, direct foreign investments are approximately 5% lower than in countries where corruption is relatively reduced. Standard Poor’s rating agency gives to investors between 50 and 100% chances of loosing the invested capital in a period of 5 years according to the level of corruption of the country. These estimations classify the countries into different groups with risk for long term investments, with positive and respectively negative consequences on the process of reinvigoration of their economies [3]. Illicit trading with precious stones and fabrics, poaching, illegal distilleries remain famous activities until nowadays; they are followed by complementary trade, border traffic with consumer goods which were absent from the organized market in the socialist system and the big businesses, like the traffic with guns, human beings, drugs, tobacco, alcohol, each one with its characteristics, have accompanied underground economy over the time, adapting to the immediate reality in each historical period [4]. Referring to the state’s reaction in the domain of protecting its interests, it can be observed the coexistence over the time of two extremes attitudes: indifference and excessive repressive actions based on authority and coercion. Only after the years 1970 of the last century took place the orientation of positions and the adoption of a responsible attitude, when radical changes occurred in the commercial relations between developed countries and some of the former colonies. Western investors had to face the lack of strong laws, corruption and unfair competition which existed in the concerned areas [5]. This represented a serious reason for reconsidering the state’s own internal problems and, along with judicial coercion remedies, they have

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Knowledge Based Organization 2008 International Conference started to make place to economic approaches based on specific methods of analysis, evaluation, prevention and combating. In its turn, the concept of “underground economy” has marked the discourse of judicial and social specialists before being analyzed from an economical point of view. The concept itself is a very meaningful translation and has gained supremacy over other close expressions, their common element being the delimitation in the domain of economics between legal and illegal activity, in the end, between right and wrong in economy. The phenomenon of underground economy has drawn the specialists’ attention since the 1930’s, but extended research on this phenomenon started only threefour decades ago. Consequently, one of the first scientific works dedicated to this phenomenon appears in 1977 in USA. Its author, P. Gutmann, finds that statistically unregistered economic activity represents a quantity which can no longer be neglected [6]. As new as this field is, as important is its analysis, because of the numerous interferences between the official and the unofficial sectors, both at the level of goods and of the persons obtaining income from one of them and using them in the other. The reason for a closer research was not accidental; anxieties generated in the economists’ world lead to it. Among these anxieties: – perception in the official statistics of errors difficult to explain; – gaps in governmental politics due to erroneous perception of reality; unrealistic conclusions of selective research regarding the population’s households unperceived by the users of data and, consequently, contortion of reality; – dysfunctions in the tax system, etc. The attempts of defining the underground economy represent a preoccupation for judicial and economic research, determined not as much by theoretical necessities but by practical ones, necessities of delimiting the area of its activities, of knowledge and identification of the domains with which it interferes. Definitions given to underground economy are almost as various as the activities performed in its sphere. Therefore, a large number of classifications and definitions exists, expressing especially the opposition

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Knowledge Based Organization 2008 International Conference between the underground economy and the dominant production mode (official economy), the legality or the respect towards the existing legal regulations. Currently, specialists of the field have not clearly elaborated the criteria which permit the interpretation of the notion of underground economy, using instead for its definition different epithets like: illegal, underground, criminal, dark, black, informal, parallel, dual, destructive, cash, etc, to which are added a series of terms like: “underground economy, underground world, underground sector, underground operations, underground business” etc [7]. This abundance of terms and notions shows that the problem in cause is insufficiently studied. In this context, we plead for referring to the investigated phenomenon as “underground economy”, as according to different explanatory sources, including the Explanatory Romanian Dictionary, the term “underground”, besides all its meanings, means also illegal [8], which represents in its turn the respective collocation. In the same time, many foreign authors prefer to include in the definition of underground economy the main activities constituting the essence of this phenomenon [9]. Continuing the search for the criteria which would make possible a more accurate definition of the underground economy, specialists in the field keep in mind the criteria of legality and cash payment, which are obviously not sufficient. The Romanian economist Nicolae Craiu considers that the most suitable criteria are not the ones related to size, to the commercial or noncommercial nature of goods and services or to the legal aspect, but its main feature is that it escapes the state’s observation, which means more than just not being listed into the national accounting of those activities[10]. In this context, the author expresses his regrets that “classic economic science deals only with the visible wealth, the area of its preoccupation being the official economy, private or public. It does not observe trade and production unless they included in the two special forms of socializing, the state and the market” [11]. A concise revision of some of the criteria which make up the concept of underground economy, distinguishes the following elements: – legal or illegal;

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– payment; – listing into the national accounting system; – location related to public regulations. The mentioned criteria more or less accepted by specialists, indicate the difficulty of defining the vast, instable and relatively blurry sphere of the phenomenon represented by underground economy. And as the underground character of an economy cannot be defined universally, but only taking into consideration the exact situation of each country, the search for new criteria, capable of better including the total of its activity, remains among the preoccupations of specialists interested in revealing both the general and the particular features and their specific manifestation. Actually, it is obvious that the claim of finding an exhaustive, unique definition of underground economy cannot be easily done, considering the complexity of the phenomenon; it is practically impossible to cover the entire specific variety of its manifestations. Underground economy is separated from surface economy by a thin, artificial, slippery layer, made up of regulations and restrictions, like the author N. HoanŃă remarks [12]. What at a certain moment represents underground economy, it can become surface economy later on. For example, fabrication and selling of alcohol between 1920 and 1933 during the prohibition period in the United States represented a classic case of underground economy which, when the ban ceased, it became a common, legal activity. The Romanian professor Mircea Coea defines underground economy as the totality of economic activities which avoids, partially or totally, the legal control and statistic accounting [13]. It is very interesting to consider the opinion of Russian scientists regarding the defining of the concept of underground economy. They have two concept approaches: judicial and economical. The judicial approach of the underground economy concept was initiated in the second half of the 1980’s by A. Sergheev [14], A. Iacovlev [15], T. Coreaghina [16], A. ohin [17] and others. According to this approach, the main criterion on the basis of which underground economy’s phenomena are considered is the attitude towards the legal system which regulates the respective rapports. In other words, it is all

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Knowledge Based Organization 2008 International Conference about the evasion from the official registering of the economic activity and its illegal character of this type of activity. Thus, D. Macarov [18] and V. Esipov [19], for example, indicate as a distinct characteristic feature the unrestrained character of underground economy. V. Ispravnicov and V. Culicov [20] use as criteria the illegal character (from a judicial point of view) and the evasion from the official registering of the economic activity in order to classify economic phenomena into the category of the underground. We can conclude that it is obvious that the illegal character is at the heart of the definition of the concept of underground economy. From this point of view, underground economy represents the diversified totality of economic activities accomplished outside the legal regulations. The judicial concept on the underground economy dominates in several cases up to now, being presented in manuals, monographic studies and researches with applicative character [21]. Even so, defining underground economy only through the judicial aspect reflects only some of the secondary characteristics. As a consequence, it is not the legal acts which determine everyday life but the society in its evolution is the one which ensures the legal regulations of newly created social relations. Therefore, we sustain that law is a secondary aspect in opposition with economy, and even partial in many ways. Researching the underground economy though the economic approach reveals that, starting from the obvious economic goal of underground activity, respectively income maximisation, regardless of means and methods used in order to achieve it, and the heterogeneous character of the activities gathered under the concept, the following definition of underground economy can be accepted: “ the total of organized activities, involving breaking the social and legal laws, in the purpose of obtaining revenues that can not be controlled by the state” [22]. From this definition we can determine that the immergence of underground economy coincides with the creation of the state and the imposing of rules, regulations, laws, and the development of the phenomenon is related to the historic stages of the development of society.

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Therefore, underground economy represents the economic activity which is unregistered in the official statistics [23]. In the opinion of the followers of this approach, unregistered economy include three types of activities: latent (hidden), informal and criminal (illegal): – latent economy is characterized by activities tolerated at a legal level but which it is not officially reflected in the accounting books or the incomes are held back in order to avoid paying taxes or other obligations; – informal economy is known as incorporate and it belongs to domestic economy, which takes place on legal grounds and it is oriented towards the manufacturing of merchandise and providing services; – criminal economic activity is illegal, which means it includes all types of services and manufacturing that are directly forbidden by effective law. Today, in this category are included illegal traffic with guns, drugs, prostitution, illegal imports, and other criminal activities punishable in accordance with the effective penal law. All this information, the analysis and the generalization of the approaches and interpretations regarding underground economy, allow us to define this phenomenon as the totality of illegal economic activities (including criminal), unregistered and fictive, oriented towards gaining and increasing revenues, activities which have usually the purpose of obtaining a profit. In what concerns participants to underground economic activities, we can identify two categories of persons: the ones who work and gain revenues exclusively from underground economy and the second category, where we include the persons who have both legally obtained and underground revenues. A special category, characterized by the social menace they generate, is represented by those who organize and actively participate in criminal economic activities. The states which pass though a transition period from a central based economic system to the market economy have to deal with the phenomenon of underground economy in very different forms of manifestation. Even if the planned system followed theoretically very closely all economic operations, and the punishing system is drastic, the natural human urge toward enrichment and, not ultimately toward a varied

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Knowledge Based Organization 2008 International Conference consumption, has created in this system also a parallel market which worked clearly on the supply and demand concept, a perfect chance for manifestations of underground economy. The year 1990 represents practically the renouncement to planned economy for all exsocialist countries. The populations of these countries were in very different stages of perceiving the doctrine of market economy and, as a consequence, the reaction was proportional. Thus, entire sectors from the former state economy oriented its activity toward clearly defined targets: – accepting the rules of market economy and, in consequence, redimensioning and remodelling the activity in order to deal with these situations; – identifying the immediate conveniences, on the edge or outside the legal system, involving in unspecified transactions, unjustified abandoning of patrimony in exchange of immediate, false benefices. A considerable number of some of those who considered such an approach, correlating it with the representatives of the parallel market from the period of planned economy, have shortly succeeded to recreate the structure of underground economy in countries going through a period of transition. Among the elements constituting the underground economy, the most commonly used were the unregistered activities, tax evasion and moonlighting. On the other hand, by reducing the area of the concept of underground economy only to these three elements, a danger appearsof not considering the dangerous signals showing other underground economic activities which appeared already in the socially and economical space of Romania and The Republic of Moldavia. Thus, everything that gets away from the regulations of public powers can be labelled as “underground economic activity”; very different practices can be included in this category: tax fraud, illicit working, drug selling, illegal gun trading, prostitution, but also gardening, chores, etc. In essence, regardless of the labels, structure, area of coverage mainly used by one or other author, the position of the underground phenomenon in the complex system of economy, as well as the

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Knowledge Based Organization 2008 International Conference constitutive elements, continue to be presented in an attempt to unite the dots which made up the opinion of the majority of specialists. In order to completely elucidate the essence of the phenomenon of underground economy we will continue with the analysis of its structural matrix.

References [1] Raportul ONU privind starea mondială a crimei organizate// The Magazine Sinteze documentare, no. 3/1999, Ministry of Administration and Interior from Romania, Bucharest, 1999, p. 24. [2] Bari, Ioan, Probleme globale contemporane, Bucureşti, Economica Publishing House, 2003, p. 383. [3] Bari, Ioan, op. cit., p. 383. [4] Popa, Ştefan, Cucu, Adrian, Economia subterană şi spălarea banilor, Bucharest, Expert Publishing House, 2000, p. 9. [5] Popa, Ştefan, Cucu, Adrian, op. cit., p. 910. [6] ГУТМАН П. M., Подпольная экономика, Перевод с английского, Москва, Издво Экономика, 1977, стр. 242. [7] Факторы, структура и методы измерения теневой экономики: региональные аспекты // Международная конференция «Регионы и глобализация», 2022 июня 2002 г.: Тезисы докладов, СПб, Издво СПбГУЭФ, 2002, стр. 83114 nd [8] Coteanu I., Seche L., Seche M., Dicţionarul explicativ al limbii române, 2 edition, Bucharest, Univers enciclopedic Publishing House, 1998, p. 1035. [9] Липпе Петер фон, Экономическая статистика: В 2 т. / ФСУ Германии, Висбаден, 1995, Т 1, стр. 628; Arvay I., Vertes A., The share of the private sector and hidden economy in Hungary (1980-1992), Budapest, 234 p.; Dallago B., Measuring and monitoring the informal sector: content of the lectures Venue, 1993, p. 20; Dilnot A., Morris C., What do we now about the Black Economy? // Fiscal studies, 1981, no. 2.; Guidebook to statistic on the hidden economy, NewYork, 1992, p. 378. [10] Craiu, Nicolae, Economia subterană între „Da” şi „Nu”, Bucharest, Economica Publishing House, 2004, p. 20. [11] Ibidem. [12] Hoanţă N., Dincolo de frontierele legalităţii: economia subterană – evaziunea fiscală – corupţie // The Magazine Tribuna economică, no. 29/1998, p. 70-72. [13] Coea, Mircea, România subterană, Economica Publishing House, Bucharest, 2004, p. 102 185

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[14] Сергеевв А.А., Нетрудовые доходы: экономическая природа, структура, пути ликвидации // Вопросы экономики, 1987, №6, стр. 8694. [15] Яковлев А.М., Социология экономической преступности, Москва, 1988, стр. 12. [16] Корягина Т.И., План и рынок в советской экономике // Совершенно секретно, 1989, №1, стр. 4; КОРЯГИНА Т.И., Теневая экономика в СССР // Вопросы экономики, 1990, №3, стр. 3242; Корягина Т.И., Услуги теневые и легальные // ЭКО, Экономика и организация экономического производства, 1989, №2, стр. 6068. [17] Шохин А.Н., Социальные проблемы перестройки, Москва, Издво Экономика, 1989, стр. 214. [18] Макаров Д.Г., Основания и пределы криминализации общественно опасных деяний, составляющих теневую экономику (по материалам федеральных органов налоговой полиции), Автореферат дисс. … канд. юрид. наук, Москва, Московский институт МВД России, 2002, стр. 24; Макаров Д.Г., Экономические и правовые аспекты теневой экономики в России // Вопросы экономики, 1998, №3, стр. 14 [19] Есипов В.М., Криминализация экономики и пути ее преодоления, Москва, Московский институт МВД России, 1995, стр. 6. [20] Исправников О.В., Куликов В.В., Теневая экономика в России: иной путь и третья сила // Российский экономический журнал, Фонд за экономическую грамотность, 1997, стр. 1620. [21] Catan, Victor, Criminalitatea organizată şi economia tenebroasă în Republica Moldova – flagele destabilizatoare ale statalităţii // Scientific and th practical republican conference, February 26 1999 with subject: „Criminalitatea organizată şi economia tenebroasă în Republica Moldova”, ARC Publishing House, Chiinău, 1999, p. 610; Голубев А.Н., Шконда И.В., Ростов К.Т., Методические основы по определению масштабов теневой экономики на региональном уровне, Ч. 1, СПб, 1996, 72 стр.; Гуров М.П., Чеботарев С.С., Теневая экономика и экономическая преступность в системе рыночного хозяйства, Учебное пособие, СПб, 1997, 172 стр.; Экономика, Учебник / Под ред. Буланова А.С., Москва, 1994, 320 стр [22] Tanzi V., The underground Economy in the United States, NewYork, 1984, p. 32 [23] Пономаренко А., Подходы к определению параметров теневой экономики // Вопросы статистики, 1997, №4, стр. 3844.

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THE ECOLOGICAL CRITERION – A FACTOR RENDERING FIGHT MEANS ILLEGAL

Assoc.Prof. Dusca Anca Ileana, Assist.Prof. Popa Nistorescu Cristina, PhD

University of Craiova [email protected]

Abstract The ecological criterion, as a way of rendering fight means illegal, has been explicitly used by the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (adopted by the U.N. General Assembly on 10 December 1976). Just like any normative act (either internal or international), this Convention has its advantages and disadvantages. Thus, although in the Preamble it is stated that the domain of disarmament must improve by the development of new domains, including that of environment (the U.N. Conference on the Human Environment, signed at Stockholm on 16 June, 1972 is mentioned), the use of environmental modification means is prohibited for military or hostile purposes only.

Keywords: ecological criterion, environment, environmental modification techniques

The ecological criterion, as a way of rendering fight means illegal, has been explicitly used by the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (adopted by the U.N. General Assembly on 10 December 1976). By the syntagm “environmental modification techniques”, the Convention makes reference to any technique meant to change – by deliberate manipulation of natural processes – the dynamics or structure of the Earth including the biosphere, the lithosphere, the hydrosphere, and

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Knowledge Based Organization 2008 International Conference the atmosphere or the outer space. Starting from this definition, the following techniques were considered as belonging to the category of “environmental modification techniques”, having such effects as: producing and dispersing fog and clouds, producing, modifying the electrical properties of the atmosphere, causing storms, introducing electromagnetic fields in the atmosphere, causing rain and snow, lightning, modifications of the climate, of the ozone layer, changing the electrical, physical and chemical parameters of the seas, introducing radioactive material concentrates in the planetary ocean, causing typhoons and cyclones, earthquakes, setting fire to vegetation on large surfaces, causing avalanches and landslips, deviating watercourses1. Just like any normative act (either internal or international), this Convention has its advantages and disadvantages. Thus, although in the Preamble it is stated that the domain of disarmament must improve by the development of new domains, including that of environment (the U.N. Conference on the Human Environment, signed at Stockholm on 16 June, 1972 is mentioned), the use of environmental modification means is prohibited for military or hostile purposes only. More than that, art. 3 of the Convention stipulates that: ”The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles and applicable rules of international law concerning such use.” This disposition probably has as an explanation the fact that in the Preamble it is mentioned that: “the use of environmental modification techniques for peaceful purposes could improve the interrelationship of man and nature and contribute to the preservation and improvement of the environment for the benefit of present and future generations”. In this respect, the states parties to the Convention commit themselves “to facilitate, and have the right to participate in the fullest possible exchange of scientific and technological information on the use of environmental modification techniques for peaceful purposes.” (art. 3, par. 2). From the above-mentioned information, one can infer that the purpose (peaceful or military-hostile) makes the distinction between the

1 I. Cloşcă; I. Suceavă, Dreptul internaţional umanitar, Bucureşti, Casa de Editură şi Presă “Şansa” SRL, 1992, p.122. 188

Knowledge Based Organization 2008 International Conference prohibited environmental modification techniques and those which are allowed. Either peaceful or military, these techniques introduce into the environment different types of radiations (e.g. electromagnetic, infrared, ultraviolet, Roentgen X-rays, ELF, infrasounds, ultrasounds, laser wanes, nuclear waves, electromagnetic impulse, neutrino waves) or chemicals1. In the spring of 2000, the launching in the atmosphere of radiations with argentic iodide, in a droughty area, for the purpose of causing rain, by Chinese researchers, was a peaceful technique. But the consequence was not rain, but heavy snow, since they did not take into account all the environmental factors of that area2. The average costs of the techniques (as compared to the effects), the difficult (if not impossible) proof of the aggression and its author, the taking of the enemy by surprise and the traumatizing shock equally suffered by the enemy and the population, the impossibility of counteracting the effects of these means –labeled ecological or geophysical weapons – constitute the main advantages of the geophysical war accompanied by several and not totally known side effects (e.g. the danger of losing control of such techniques – radiations, techniques of genetic manipulation, which could have as a result the disappearance of some ecosystems, some species of flora or fauna, or even life on Terra)3. The use of the environmental modification means is unlawful since it contradicts all the fundamental principles of the international humanitarian law: – the principle of necessity (which should be better called the principle of proportionality) is translated by the fact that the belligerent parties do not have the right to make use of force beyond the limits necessary to reach the purpose aimed at (namely the victory over the enemy, not its destruction) (e.g. the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles, St. Petersburg, 11 December, 1868, stipulating that: “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”);

1 E. Străinu, Războiul geodezic. Tehnici de modificare a mediului înconjurător în scopuri militare, from Maxus Magazine, Year I, no.3, (October-November), 2005, p. 1. 2 Idem, p. 2. 3 That is why it is necessary - at international level - to establish precise responsibilities by special regulations. Idem, p. 4. 189

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– the principle of humanity consists of the fact that the belligerents must not be allowed to use those forms of violence which are not necessary to obtain victory, this because the war represents a relation between states, not between individuals1; – the parties to an armed conflict do not have an unlimited right to adopt the war means and methods (it appears as a development, a specification of the principle of necessity; art. 22, the Hague Convention IV, Regulations, 1907); – the use of war means and methods must differ in accordance with the military or non-military objectives of the enemy, the attacks being directed against the former (not against the population, persons or civil goods). This principle appears as a consecration of the idea that the only reason for war is to weaken the armed forces of the enemy (as resulting from the St. Petersburg Declaration, 11 December, 1868); – the limitation of the sufferings endured by the belligerents and of the proportion of the destructions. As a matter of fact, the environment was also taken into account before the Convention of 1976. Thus, the Resolution 2603 A (XXIV) of 1969 of U.N. General Assembly declared as contrary to international law rules consecrated in the Protocol of Geneva of 1925, the use of any climatic, gaseous, liquid or solid agents which have toxic effects on animals, nourishment and plants.2 Protocol I additional to the four Conventions of Geneva of 12 August 1949 (the first concerns “the amelioration of the wounded, and sick in armed forces and field”; the second concerns “the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea”; the third is “relative to the treatment of prisoners of war”; the fourth is “relative to the protection of civilian persons in time of war”) concerns the illegality of the environmental modification means. In this respect, art. 55 entitled “Protection of the natural environment” specifies: 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection

1 M.A. Marin, The Evolution and Present Status of the Laws of war ”Recueil des cours”, 1957. II, vol. 92, p. 639. 2 E.Stein, Impact of New Weapons technology in international law. Selected aspects, “Recueil des cours”, 1971, II, vol. 133, pp. 303-305, quoted by Gr. Geamănu, Drept internaţional public, vol. II, Bucureşti, Editura Didactică şi Pedagogică, 1983, p. 468. 190

Knowledge Based Organization 2008 International Conference includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited. At the same time, this Protocol prohibits, besides the fight methods stipulated in the Hague Regulations (1907), new methods. The methods stipulated and prohibited by the Hague Regulations of 1907 are: to employ poison or poisoned weapons; to kill or wound treacherously individuals belonging to the hostile nation or army; to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion; to declare that no quarter will be given; to make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention; to force the nationals of the hostile party to take part in the operations of war directed against their own country. Protocol I of Geneva (1977) refers to both the above-mentioned methods and new methods which appeared thanks to the evolution of warfare techniques. Thus, art. 35, after resuming two fundamental principles of humanitarian law in the first paragraphs (par. 1: “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited “; par. 2: “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”), stipulates in par. 3: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Consequently, it is about the new techniques, meant to cause changes for military purposes, intervening in the structure and dynamics of the environment, by causing earthquakes, avalanches, landslips, the reversal of the ecological balance, change in weather, atmospheric conditions, climate, state of the ozone layer, or ionosphere, ocean currents1.

1 Gr. Geamănu, op. cit., p. 469; S. Scăunaş, Drept internaţional public, Bucureşti, Editura All Beck, 2002, pp. 257-258. 191

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Further on, art. 36 stipulates that: “In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.” We notice that this obligation completes the two obligations stipulated under art. 1 of the Convention concerning the prohibition of the use for military or other hostile purposes of the environmental modification techniques (paragraph 1:”Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long- lasting or severe effects as the means of destruction, damage or injury to any other State Party.”; par. 2: ”Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article.”) Protocol I of Geneva (1977) also reveals its importance through the fact that it clarifies the difficult issue of war perfidy, thus consecrating the general rule of prohibiting the killing of gypsies or capturing enemies by making use of perfidy. It is called perfidy any acts which, by resort to perfidy, invite “the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence (…)1. The following acts are examples of perfidy: (a) the feigning of an intent to negotiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-combatant status; and (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.”

1 The concept of perfidy in international humanitarian law aims at the acts committed in case of armed conflict and which are contrary to the principles of loyalty and chivalry as stipulated in the Hague Conventions (1899 and 1907) and the first Geneva Convention of 1949 for the amelioration of the wounded and sick in armed forces and field. I. Cloşcă; I. Suceavă, op. cit., p. 125; I. Cloşcă; I. Suceavă, Tratat de drepturile omului, Editura Europa Nova, 1995, p. 135. 192

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Unlike perfidy, which is prohibited, the warfare ruses and stratagems do not fall within the category of perfidy acts and consequently are not prohibited. In this respect, art. 25 of the Regulations of the Hague Convention IV is explicit:” Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.” Although the expression “obtaining information about the enemy” is confusing, the Hague Convention manages to suggest that ruses of war are based on perspicacity, ingenuity, so it is about acts for the purpose of misleading the enemy by making him be imprudent, but these are not violations of public international law. In order to complete and clarify (the confusion1 between ruses and procurement of information) Protocol I of Geneva (1977) stipulated under art. 37 par. 2 that: ”Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.” It is obvious that damages to the environment can be also caused by nuclear, chemical, bacteriological, fire arms – which have their own interdiction norms – but an explicit provision of the interdiction of the use of the environmental modification means can be noticed in the above- mentioned acts only.2

1 I. Cloşcă et al., Dicţionar de drept internaţional public, Bucureşti, Editura Ştiinţifică şi Enciclopedică, 1982, p. 29. 2 C. Istrate, Dreptul dezarmării. Acorduri multilaterale, Bucureşti, Editura All Beck, 2005, pp. 9-43; e: Decaux, Droit international public, 2e edition, Dalloz, 1999, pp. 198-200. 193

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THE LEGAL AGE FOR MARRIAGE

Assoc.Prof. Grădinaru Nicolae, Ph.D.

“Constantin Brâncoveanu” University, Piteşti [email protected]

Abstract The marriage takes place with the purpose to create a family. The marriage is a family basis and it is protected by the law. The proper age to get married is a basic requirement that has to be met when marriage ceremonies take place. According to Article 4 of the Unchanged Code, a man was allowed to get married only if he had turned the minimum age of 18 and a woman only if she had turned 16. Law no.288/2007 amended Article 4 of the Family Code stating that the minimum marriage age is 18 both for women and men.

Keywords: marriage, legal age, consent, the General Agency for Social Assistance and Children Protection.

The family has proved the oldest and most certain form of human community, ensuring the continuation of species and the progress of life. The family is a developing social phenomenon that is changing along with the society. The family has a historic feature and every time period is characterized by a certain organization of family relationships [1]. The marriage takes place with the purpose to create a family. The marriage is a family basis and it is protected by the law. The proper age to get married is a basic requirement that has to be met when marriage ceremonies take place [2]. Until the Revolution in France and also in article 70 of Calimach’s Code, the legal marriage age was 12 years old for girls 194

Knowledge Based Organization 2008 International Conference and 14 for boys and engagements took place only after 7 years of age. Youngsters’ marriages were up to parents’ or tutors’ will. According to chapter 15 of Caragea set of laws: 1. The wedding is man’s commitment to a woman in order to have children; 2. Marriages are forbidden: – between free people and people having slaves – between Christians and people of other beliefs; 3. The young are forbidden to get married without their parents’ and tutors’ will and still youngsters must not be forced to marry by their parents or tutors.1 4. Mature people that have parents must benefit from their consent in order to get married; and when their parents do not agree at the former’s third begging, then parents will be excluded from mastering. Article 127 of the Civil Code adopted in 1864 stated that girls’ minimum marriage age was 15 years old and boys’ was 18. According to Article 128 of the Civil Code, the King could grant age exemption for serious reasons that is authorizing marriages between people that had already turned the legal age. The serious reasons were mostly related to pregnancy, therefore marriages could be approved since wives were able to deliver babies. According to Article 131 of the Civil Code, a boy who was not yet 25 years old and a girl who was not yet 21 were not allowed to get married without their mothers’ or fathers’ consent. In case of conflicts between mothers and fathers, the consent of the latter was just enough. The difference was removed by the 1906 amendment and the age of 21 was settled for both genders in order to facilitate marriages and diminish the number of illegitimate unions. Thus, the legal age for marriage was different from the coming of full age in common law [3].

1 Article 1 of Caragea Code’s third chapter: ”Mature people are both the men and women older than 25 and the young are those under that age”. Tutors are the trustees of minors under tutelage. When parents’ consent was missing, the groom would elope with his bride which has lasted until recently and has been presented in folk poetry and novels. 195

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According to Article 4 of the Unchanged1 Code, a man was allowed to get married only if he had turned the minimum age of 18 and a woman only if she had turned 162. There was an exception for a woman who had not turned 16 yet and who was permitted to marry for real reasons and having an age exemption granted by the President of the County Council or the General Mayor of Bucharest where she lived provided she met certain conditions: – she was already 15 years old; – she had real reasons to be granted the exemption such as pregnancy; – there was an official medical approval. Law no. 288/2007 amended Article 4 of the Family Code3 stating that the minimum marriage age is 18 both for women and men. If there are real reasons, a minor who is already 16 may get married on the basis of a medical approval, at their parents’ or tutors’ (if any) consent and according to the agreement of the General Agency for Social Assistance and Children Protection in whose region they live. A marriage disobeying the provisions of Article 4 of the Family Code as regards the legal marriage age4 is absolutely cancelled although Article 20 of the Family Code provides exceptions such as: ”A marriage disobeying age requirements shall not be cancelled if the minor spouse has meanwhile turned the legal age or the wife has had a baby or is already pregnant”. The requirements for a 16-year old minor to get married are: a) Actual grounds such as are pregnancy or baby births. Legislators have also allowed young men to marry at 16 years old in order to make up a family. The old legislation disconsidered a man’s ability to have a family at that age, having to wait until 18 years old,

1 Family Code, Law no.4/1953 re-issued in B.Of.no.13/18.04.1956, was amended by Law no.288/2007, issued in M.Of.no.749/05.11.2007. 2 Art.8(3) of Decree no.31/1954 issued in B.Of.no.8/30.01.1954, amended by Law no.4/1956, issued in B.Of.no.11/04.04.1954 ”A marrying minor thereby aquires full exertion rights”. 3 Law no.288/2007 for the amendment of Art.4 of the Family Code received the approval of the Magistrature Superior Council by Decision no.381/17.05.2007. 4 Law no.119/1996 regarding marital status documents, art. 27-33. 196

Knowledge Based Organization 2008 International Conference and only a woman was allowed an early marriage, which meant a positive discrimination. b) In order to get married, a 16-year old minor must have their family doctors’ medical agreement which is different from the medical certificate of both future spouses stating their health.1 c) Along with the actual grounds, there must be the consent of the 16-year old marrying minor’s parents or tutors. Approving of the minor’s marriage is necessary as those between 14 and 18 years of age have limited abilities and can conclude certain juridical papers on their own behalf, some at their parents’ or tutors’ agreement and some dispositional documents can be concluded with a double approval, the parents’ or tutors’ and the trusting authority’s.2 Law givers state that minors should be given the marriage consent by their parents or tutors, depending on the circumstances. If both future spouses are minors, either must be given the consent of their own parents or tutors. If either parent is dead or unable to show their will, the other one’s consent is enough. If there are neither parents nor tutors to approve of the marriage, it is necessary that the person or authority entitled to parental rights should give their consent.

1 Art.10 in the Family Code – ”A marriage shall not be authorized if future spouses do not reciprocally state their health. If by a special law the marriage of ill people is forbidden, the provisions of the law shall be applied. 2 Decree no.31/1954 regarding individuals and businesses issued in B.Of.no.8/30.01.1954. Art.8. Full exertion rights start when a person comes into full age. A person comes into full age at 18 years old. A marrying minor thereby aquires full exertion rights. Art.10 A 16-year old minor may conclude a labour contract or join a collective agricultural unit or any other cooperation organization without their parents’ or tutors’ consent. If a minor between 14 and 16 years old concludes a labour contract or joins a collective agricultural unit or any other cooperation organization, they will additionally need a medical approval along with their parents’ or tutors’ consent. A minor that can be included in the above statements exerts their rights and accomplishes their duties on their own behalf as a result of their labour contract or membership in a collective agricultural unit or any other cooperation organization, and personally uses the money they have earned by their own work. A limited ability minor has the right without their parents’ or tutors’ consent to make and enjoy deposits in public saving institutions according to their regulations. 197

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In case parents are divorced, the consent can be given by both parents or by the parent entitled to raise the future spouse by an irrevocable final legal decision, and the minor shall then be given the juridical papers to be concluded. The consent can be given by an authentic or oral notification. The General Agency for Social Assistance and Children Protection in whose region the 16-year old minor lives is the one to authorize a marriage. If both spouses are minors and live in different counties, the authorization shall be given by the General Agency for Social Assistance and Children Protection of the county the marriage ceremony takes place in. The authorization must include the consent given by the Agency for the marriage to be made legal after a social analysis of the Social Assistance Public Service on the actual reasons allowing the future spouses to get married, along with a medical approval all together presenting their view to the Agency. The following requests must be met in order to authorize a marriage: – the minor must already be 16 years old; – the family doctor must provide a medical agreement stating that the minors’ health allows them to get married; – the actual grounds stated by the future spouses in order to marry each other; – the consent of the minor’s parents or tutors if the former gets married at the age of 16. The problem arising is whether a marriage can be authorized or not if a minor willing to marry meets all requirements but cannot have their parents’ or tutors’ consent. Refusing the consent must be justified and it is analyzed by the General Agency for Social Assistance and Children Protection along with the other prerequisites of marriage. If the consent refusal has no solid grounds, the General Agency for Social Assistance and Children Protection may authorize the marriage taking account of the future or current baby’s major interests, having in view that a marriage real ground is pregnancy or baby birth.

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The General Agency for Social Assistance and Children Protection shall authorize or reject a marriage request after certain checking procedures. People dissatisfied with the decision made can complain in court according to the provisions of Law no. 554/2004 regarding administrative law department. According to the provisions of Article 8 of Decree no. 31/1954, a marrying minor shall thereby acquire full rights. The Romanian legislation does not refer to the maximum age of a marriage to take place.

References [1] Nicolae Grădinaru, Family law treaty, Craiova, Aius Publishing House, 2007, p. 24. [2] Nicolae Grădinaru, op.cit., p. 25 [3] Ibidem, op. cit., p.2 6.

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A NEW PROCEDURE TO PREVENT THE DELAY IN PAYMENT DUTIES ENSUING FROM SALES CONTRACTS

Assoc.Prof. Grădinaru Nicolae, Ph.D.

“Constantin Brâncoveanu” University, Piteşti [email protected]

Abstract Along with the procedures provided by ordinary law, there occurs a new emergency judgement procedure of commercial law suits which transposes into the Romanian law Guideline 2000/35/CE of the European Parliament and Council regarding the prevention of payment delays in commercial transactions. The simplified procedure applies to real, liquid and claimable debentures that mean payment duties ensuing from sales contracts.

Keywords: payment delays, debentures, contracting authority, sales contracts.

1. General Information Along with the procedures of ordinary law provided by the Civil Procedure Code or with the payment formal notice provided by OG no.5/2001, by OUG no.119/20071 there occurs a new emergency judgement procedure of commercial law suits which transposes into the Romanian law Guideline 2000/35/CE of the European Parliament and Council regarding the prevention of payment delays in commercial transactions2.

1 OUG no.119/2007 regarding the steps taken to prevent delays in payment duties ensuing from sales contracts issued in M.Of.no.738/31.10.2007. 2 Guideline 2000/35/CE regarding the prevention of payment delays in commercial transactions issued in European Communities’ Official Journal no. L 200 of 8 August 2000. 200

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The simplified procedure applies to real, liquid and claimable debentures that mean payment duties ensuing from sales contracts. A sales contract is one concluded between traders or between traders and a contracting authority whose object are the goods supply or service rendering against a certain price represented by an amount of money. A contracting authority is: a) any public authority of the Romanian state or a European Union member state acting centrally, regionally or locally; b) any public law body different from the ones in section a) that has a juridical status and which has been set up to meet general interest needs, has no commercial features and finds itself in at least one of the following circumstances: – is mainly financed by a contracting authority as it is defined in section a); – is subordinated or subject to a contracting authority’s control as it is defined in section a); – more than half of the members in the Leading or, if any, Monitoring Board and in management are appointed by a contracting authority as it is defined in section a); c) any association formed by one or several contracting authorities of those provided in sections a) or b). Thus, one can notice that besides the procedures of ordinary law to be found in the guidelines of article 7201 – in the Civil Procedure Code, the payment formal notice regulated by OG no.5/20011, creditors now benefit from a better way to prevent delays in payment duties ensuing from sales contracts. The new procedure does not exclude the one in ordinary law nor the one provided by OG no.5/2001, and the provisions apply to the creditors that cannot resort to the one stated by OUG no.119/2007. Thus, the procedure of payment formal notice applies at creditors’ request in order to willingly or mandatorily pay real, liquid and claimable debentures that mean duties to pay back amounts of money

1 O.G. No.5/2001, issued in M.Of. no.422/30.07.2001 was approved by Law no.295/2002, issued in M.Of. no.380/5.06.2002 and amended by O.U.G. no.142/2002, issued in M.Of. no.804/5.11.2002, amended by Law no.195/2004 issued in M.Of.no.470/26.05.2004. 201

Knowledge Based Organization 2008 International Conference assumed by contract, settled in writing or according to a status or regulation or to any written agreement signed by parties or approved in any legal way, stating rights and obligations to perform certain services, work, or any other activities1. The procedure excludes: a) the debentures settled within an insolvency procedure2; b) the contracts concluded between traders and consumers.

2. The interest applied to payment duties ensued from sales contracts. According to the provisions of article 3 of OUG no.119/2007, a debenture meaning price payment produces interests as follows: 1. in contracts concluded between traders, according to article 43 of the Commercial Code. Article 43 states that ”Liquid commercial debts that can be paid in money produce interests starting on the day they become claimable”; 2. in contracts concluded between traders and a contracting authority without delaying debtors: a) if the contrat stipulates a term of payment, then interests start on the day following it; b) if there is no date or term of payment stipulated by the contract, that is by ommission, the following periods are set up when a debenture may produce interests: – after 30 days from the date the debtor has received the invoice or any other payment request; – if the date of invoice or equivalent payment request is not sure, then interests start after 30 days from merchandise reception or service performance; – if the payment request has been sent out before receiving the goods or services, interests start in the end of 30 days from merchandise reception or service performance; – if the law or contract stipulates an acceptance or control procedure allowing the authorization of merchandise or service compliance, and the debtor has received the invoice or payment

1 Constitutional Court Decision no.188/2002, issued in M.Of. no. 535/2002. 2 Law no. 85/2006 regarding insolvency procedure issued in M.Of.no. 359/21.04.2006. 202

Knowledge Based Organization 2008 International Conference request on or before control date, interests start after 30 days from the latter date. A null convention is the one whereby contracting parties set up a delay duty to operate interests or a term when debentures start producing interests which is longer than the above-mentioned one. A creditor may claim additional damages and interests for all the expenses they have made in order to get their money back as a result of debtors’ duty accomplishment failure. Parties are free to set up interest rates when there is a delay in price payment. When interest rate is not stipulated by contract, the interest reference rate established by Romania’s National Bank shall be applied. The reference rate in force on the first term calendar day is applied within the following six months.1

3. Procedures Court procedures shall not exceed 90 days from the date of

1 The legal interest is set up according to O.G. no.9/2000 issued in M.Of. no.26 of 25.01.2000 aapproved by Law no.356/2002, issued in M.Of. no.425/18.06.2002. The level of reference interest of Romania’s National Bank according to which the legal interest is set up is the one on the first work day of the year for the legal interest of current year first term and the one of the first work day in July for the legal interest of the second term. The reference interest of Romania’s National Bank is calculated as the transaction average between the interest of deposits in Romania’s National Bank and the security reversible sales it has made during the month prior to the announcement. The reference interest of Romania’s National Bank is issued in the Official Journal (Monitorul Oficial). The interest/year is 6% in foreign trade and other economic international relations when it is applied in the Romanian law and when payment is stipulated in foreign currency. Starting from the idea that as far as interests are concerned the principle of convention freedom involves parties’ ability to set up interest rates, the date of their beginning and end etc. with a single restraint which is for interests not to turn into usury. In this respect, O.G. includes the guidelines of article 5 (section 1) – “The interest in civil relations must not exceed the legal level by over 50%/year” – and the stipulations meant to remove some creditors’ trend to illegally increase interests by adding amounts called everything but interests which are actually interests – article 6 – ” An interest not only means the amount of money bearing that title but also any other performance of any title or category which debtors bind themselves to pay in exchange of capital usage”, as well as the provisions meant to ensure interest ”transparency” meaning an obligatory written document to show interest level and conditions – article 5, section 2 – “An interest must be set up by a written document. When such a document is missing, only the legal interest is taken into account”. 203

Knowledge Based Organization 2008 International Conference creditors’ requests and the period does not include the delayed time for which creditors are to blame. By OG no.5/2001 regarding the procedure of payment formal notice, an emergency procedure is put in place yet the adjustment period is hard to estimate. OUG no.119/2007 sets up for the first time a specific adjustment period of creditors’ requests. The request related to price debenture payment must be submitted to the competent law court to firstly judge the cause background, meaning that according to articles 1 and 2 of the Civil Procedure Code, the law court for debenture payment up to 100,000 Lei and the one for debentures higher than that. As well as in the procedure of payment formal notice and the procedure established by OUG no.119/2007 regarding litigations on payment duties1 ensuing from sales contracts, it is necessary that one should firstly approach the direct conciliation stage stipulated by article 7201 of the Civil Procedure Code according to which in suits and requests on commercial matters valued in money, the claimant shall try a direct litigation conciliation to the defendant2 before legally suing. Suing requests must include: a) name and address or, if necessary, name and siege of creditor; b) name and address of individual debtor and name and siege of business debtor as well as their number of registration certificate in the Commercial Register, fiscal code and bank account; c) the amount as object of debt, actual reasons of payment duties, the period they refer to, the term of initial payment and any element necessary in setting up a debt; d) the creditor’s signature. The request must be accompanied by the documents stating the total amounts of debts and any other to prove them. Copies of requests and attached documents must be submitted in an equal number to the number of parties involved and one for the

1 Payment delay is the extension of contract or legal term set up to fulfil price payment duty. 2 Article 7201 of the Civil Procedure Code provides that in commercial requests and trials that can be valued in money, the claimer must try to settle the litigation by direct conciliation to the other party before the court summoning. 204

Knowledge Based Organization 2008 International Conference judges. Requests for issuing payment orders must be stamped according to the guidelines of article 3 section o1) of Law no. 146/1997 regarding judicial stamp fees which are 39 Lei. The creditor may claim additional interest and damage compensations for all their expenses during the attempt to get their money back as a result of the debtor’s payment duty failure in due course.

3.1. Summoning the parties In order to settle complaints, the judge summons the parties in court according to the rules of the Civil Procedure Code regarding urgent cases, explanation requirements and requests for debtors’ debenture payment or reaching an agreement between parties as far as payment methods are concerned. The summoning must be sent to the respective party three days before law suit date. When creditors prove they have done their utmost to find out defendants’ address or siege, the magistrates’ president shall summon the latter by advertising ways. Issuing and publishing the summoning in Romania’s Official Journal (Monitorul Oficial al României), Part III or in a widely circulating newspaper must take place five days before suit date. Debtors’ summoning must be accompanied by copies of creditors’ requests and documents previously submitted to prove their claims. The summoning must specify that the suit date is the last when debtors must be present in court otherwise they shall be exonerated from the rights to bring proofs and arguments except those in public order.

3.2. Meeting a summoning request Debtors can contradict a debenture under the sanction of rights withdrawal. Their missing reply brings about the withdrawal from their rights to ask for proofs and exceptions but those of public order. According to article 7 indentation 4 in OUG no.119/2007, when

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Knowledge Based Organization 2008 International Conference there is no debtors’ legal contest, the law court may take it as an acceptance of creditors’ claims. It means that debtors are obliged to meet creditors’ requests, on the contrary the law court shall consider it as a recognition of creditors’ claims. Both ordinary law and OG no.5/2001 regarding payment formal notice regulate debtors’ obligations to meet it and by the procedure established by OUG no.119/2007 the sanction of falling to meet it has a more powerful feature as the court can withdraw debtors’ rights to ask for proofs and exceptions and therefore they accept creditors’ claims. If debtors meet a debenture and contest it, the court checks to see if that has solid grounds. If the law court thinks debtors’ legal contest has grounds, it shall reject creditors’ requests by an irrevocable conclusion and the latter shall have to subsequently submit a suing request according to ordinary law or to OG no.5/2001 regarding payment formal notices.

3.3. Settling cases conveniently If creditors state they have received debt payment, the law court approves it by an irreveocable conclusion. If the creditor and the debtor reach an agreement on payment, the law court approves it by making a decision according to article 271 in the Civil Procedure Code1 which is irrevocable2 by exception from article 273. The court decision is an executory title. An executory title is the decision made by a law court or the payment decision made by another competent authority which either requests immediate payment or payment in instalments allowing creditors to get their debts back by obligatory fulfilment.

1 Article 271 of the Civil Procedure Code. Parties can go to court at any time during trial judgement even without having been summoned in order to require their agreement be approved. If parties go to court on judgement trial day, the court will be able to accept their decision request even by a single judge, the final decision being due during magistrates’ meeting. If parties go to court on another day, magistrates will make the decision within council. 2 Artice 273 of the Civil Procedure Code The decision approving parties’ agreement is made without an appeal right. 206

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3.4.Warrant for payment Judgement shall be done according to the procedure of Civil Proceeding Code regarding urgent matters within 90 days from request submission and the term does not include the delay for which creditors are to blame. If after having examined a request and its documents, parties’ declarations and other proofs the law court thinks the request has solid grounds, a warrant for payment is issued stating the payment amount and term. The term of payment must not be shorter than 10 days and longer than 30 days from the date of payment warrant issuing. The judge shall not be able to set another term unless the parties reach an agreement in this respect. If debtors admit some of creditors’ claims, the law court issues a partial payment warrant for the amount corresponding to the uncontested part of a debt also setting the term of payment. After an analysis of case proofs, the law court may issue a warrant for partial payment only for a part of the claimed debt and the creditor can make a law suit request in order to oblige the debtor to entirely pay the outstanding amount according to ordinary law. The warrant for payment must be made known to either party at once according to the provisions of the Civil Procedure Code. The payment warrant issued by the law court can be immediately fulfilled although the debtor has submitted a request to cancel it.

3.5. The legal contest of payment warrants Debtors benefit from two ways to oppose a payment warrant. Firstly, a debtor may submit a cancellation request of the payment warrant. Cancellation requests are adjusted by the law court that has issued the respective warrant for payment. Cancellation requests do not cancel fulfilment. However, such a request can lead to cancelling warrant fulfilment if it is approved by the law court at debtors’ request only by giving a bail in the amount set up by the court.

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If the entitled law court accepts the cancellation request, it shall cancel the warrant for payment by an irrevocable decision. Afterwards creditors can submit a law suit summoning according to ordinary law or OG no. 5/2001 regarding payment formal notices. If a law court rejects the debtor’s cancellation request against the obligatory fulfilment of payment warrant, the debtor can make a legal fulfilment contest according to ordinary law. The legal contest can only present aspects related to the fulfilment procedure. The decision to reject a cancellation request is irrevocable. A payment warrant now turned into an irrevocable warrant as a result of cancellation request rejection is an executory title. An executory title is the decision of a law court or the payment decision of another competent authority that stipulates either immediate or instalment payment allowing creditors to get their debentures back from debtors by obligatory fulfilment.

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TECHNIQUES FOR HARMONISING THE PRINCIPLES OF LEGAL INTERPRETATION IN THE POSITIVE LEGAL ORDER

Asst.Prof. Andriţoi Claudia, Ec. Paulescu Ioan Anton

“Eftimie Murgu” University, Reşiţa

Abstract The interpretation of law represents at the same time the knowledge and evaluation of the normative significance of the legal text and of the human deeds or non-actions in the light of the law, considering that in the legality field, as well as in the other spheres of social life, knowledge does not represent a neutral description, but an investigation based on assessment and attitude involvement. As regards the interpretation issues, to the extent of its being one of the life of law, of its elaboration and application, it will have an impact on the matter of the juridical scientific knowledge, without which the very practical effort of law achievement lacks the necessary epistemic clarifications. Harmonising the principles of legal interpretation in the positive legal order may be obtained only around a central idea, embracing all the particular ideas, ideas serving as core for the legal construction.

Keywords: normative significance, axio-teleo-praxiologic valences, fundament of law, articulated entity, methodological configuration

Legal interpretation should be not only logical, necessarily structured according to the system of the principles of logic, but should also stay under the sign of juridicity, through which it acquires the specific difference in relation with the interpretation of law and is expressed as moment of its application. Moreover, it achieves its reason to exist only if it operates systemically, if it places the norm subjected

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Knowledge Based Organization 2008 International Conference to interpretation within the integrating field of law and at the same time if it relates its prescriptive significance to the co-ordinates of the actual situation. This is the reason why the method principles should be placed under the integrating sign of their interactive conditioning, beyond which they remain mere requirements accepted as “practical wisdom” inherently spontaneous, and not as rigorous technical requirements. Dworkin considered that these “linguistic” issues are often sterile, as the philosophy of law does not aim at developing the theories on the multiple meanings of the principles of law, but it should reveal the characteristics of law as social phenomenon. “It is easy to ruin the structure of a well-.established city, but it is difficult to bring order to a badly organised city”1 – this assertion highlights the fact that, since ancient times, any human community has felt the need of a certain rule or discipline which would have made living together easier and more profitable for all. H. Kelsen, the Austrian jurist, mentioned that the legal order is not a system of legal norms situated all at the same level, but a multi- storeyed building, a pyramid, or in other words a hierarchy made of a certain number of levels or layers of juridical norms. Its cohesion results form the elements resulting from the fact that the validity of a norm appropriately connected to another is founded on the latter, that its creation in its turn was conditioned by others, which in their turn constitute the fundament of its validity.2 According to Kelsen the norms of a legal order settle the human conduct, which is apparently valid only in civilised societies, as in primitive societies also the behaviour of animals, plants etc is subjected to regulation by the legal order like in the case of humans.3 The interpretation of law represents at the same time the knowledge and evaluation of the normative significance of the legal

1 Theogenis, Sent.845 sq. 2 Hans Kelsen, The pure doctrine of law, Bucharest, Humanitas Publishing House, 2000, pp. 49-54. 3 In ancient times there was in Athens a special court where one could sue a rock or a spear of another object with which a man had been killed. Probably unintentionally – see Demostene, Speech against Aristocrate, Plato, The Laws and Aristotle, The Constitutions of Athenians, chapter 57. 210

Knowledge Based Organization 2008 International Conference text and of the human deeds or non-actions in the light of the law, considering that in the legality field, as well as in the other spheres of social life, knowledge does not represent a neutral description, but an investigation based on assessment and attitude involvement. As regards the interpretation issues, to the extent of its being one of the life of law, of its elaboration and application, it will have an impact on the matter of the juridical scientific knowledge, without which the very practical effort of law achievement lacks the necessary epistemic clarifications. But before pointing out the inherently assessing nature of interpretation in law and its controversial implications, we should first reopen the debate on the status of systematic legal knowledge, required to found, in its legal order, the effort of interpretation in law. Knowing that the legal phenomenon triggers both the philosophic direction and the proper scientific one, considering their relation and the fact that the legal interpretation is called to uncover the light of the spirit of the law, going from the level of technical condition to the horizon of the valuing force, through which it succeeds in fulfilling its superior finality.1 The principles of the legal interpretation represents a domain of interdisciplinary interest whose axio- teleo - praxiologic valences involve approaches from the perspective of law and philosophy of law, especially. The research on the essence and fundament of law nevertheless supposes approaching the maximum generality ideas of law from the perspective of the general theory of law. The principles of law interpretation are permanent features of law, and thus they represent constant preoccupations of doctrine-setters, the axis around which the legislator gravitates and the major goal of the law applicant. Under the conditions of globalisation of positive law, along with the impressive multiplication of its systemic components: norms, institutions, branches, the law beneficiaries risk to lose their orientation in the legal-normative space. Consequently, the path of the law beneficiaries, irrespective of their position, i.e. legislator, applicant, or ordinary beneficiary of positive law, is lighted by the principles of interpretation. Thus we shall analyse from the scientific viewpoint the legal

1 Ioan Humă, Knowledge and interpretation in law, Bucharest, The Romanian Academy’s Publishing House, 2005, p. 9. 211

Knowledge Based Organization 2008 International Conference norms comprising the positive legal order and particularly the significance of the principles of the legal interpretation, which grant immutability to law, irrespective of time and space, outside the expansionist trends of the positive law. The principles of the legal interpretation trigger the existence of the material legal reality in their capacity of premises of the positive legal order. The principles of the legal interpretation represent the summary of the multiple elements constituting the proper reality of law, based on which the law scientist attempts to continue building legal constructions. The systematic units created around a common idea take the name of legal constructions. It is obvious for Mircea Djuvara that a fixed demarcation between principles and constructions cannot be done, but generally the principle is something elementary, whereas the construction, taking the principle as material, is much more complex and systematic. M. Djuvara shows the evolution of the legal construction:“… the legal conscience … gradually rises from acts of persons, appreciated as just or unjust, to general notions … crystallised then through the legal elaboration, first into principles and then into what we called legal constructions. By doing this the legal thinking rises towards abstractions starting first from different viewpoints about one and the same deed and bringing then together the knowledge elements thus obtained, in order to identify general notions thorough abstraction..” The legal order constituted a research object for the classics of the legal doctrine, such as: J.J. Rousseau, Ch. Montesquieu, C. Cadoux, J. Rivero, G. Vedel s.a. The juridical norms are the product of an elaboration based on certain organised procedures. The law-based order is based also on juridical laws, results of deliberate thinking, consciously expressed by special bodies, that express the preponderant will of a community.1 Admitting that the law is the rational expression of law or the solemn utterance of law, we reach the conclusion that the law is the main means of fulfilment and maintenance of social order, of protection of citizens’ rights and liberties. It follows that, in the ensemble of the social order, the juridical sanctions and the social

1 N. Bujdoiu, Juridical Sociology. Knowledge and Interpretation. Applications in the juridical sociology, Lugoj, Dacia Europa Nova Publishing House, 1996, p. 174. 212

Knowledge Based Organization 2008 International Conference sanctions play an important part. Consequently the principles of interpretation are not a dogmatically constituted given, but manifest themselves as an articulated entity, under continuos methodological configuration, in accordance with the dynamic requirements of systematic knowledge and of the practice of law application. People live together in a state, and do not co-exist1, and living together in co-operation and collaboration triggers rules to settle them, but what makes all positive law a true law is precisely a set, a “bundle” of constants. Correlative to these constants there are contraries which have entered a positive law as a result of the action of political and ideological doctrines on legislation stuck in ubiquity and temporality.2 Thus, the originally subjective rights of two states, although recognised as such in the Constitution, are settled by each according to the laws in vigour, different from one state to another. As the law knowledge and jurisprudence challenges keep increasing, one may detect other requirements with the rank of principles, like some of the existing one may nuance their meaning and importance to evanescence. Considered in this context, the principles of legal interpretation poignantly affirm their presence within the actional – juridical framework, in the very process of the elaboration and achievement of positive law or bring their contribution to the completion of the lacunary positive law. The analysis of the principles of interpretation powerfully imposes itself considering the level of the legal value of principles of law, and the thesis will prove the necessity of a thorough study of these interpretation principles. The reflection and attention of jurisprudence granted to the issues regarding the principles of interpretation have become constant in the juridical science, since one became aware that the principles are not entities coming from pure reason or from a social reality taken as a transcendent related to norms, the principles in cause do not have an inherent history, autonomous in relation with that of legal norms, thy come themselves from norms, representing a challenge for the latter

1 Gheorghe Mihai, Fundaments of Law I-II, Bucharest, All Beck Publishing House, 2003, pp. 163-164. 2 Gheorghe Mihai, Fundaments of Law I-II, Bucharest, All Beck Publishing House, 2003, p. 161. 213

Knowledge Based Organization 2008 International Conference reflecting the social reality in a mediated manner, through norms. The very fact that their theoretical approach falls within the field of the science of law which has as object the research of legal norms and not the research of social relations or values, proves the real trajectory of the genesis and presence of the principles of interpretation in the world of law. Man collaborates, lives together1, consensualises and dissensualises, co-operates, performing different operations together with others, which directly implies the social mental, whereas the coexistence conduct is settled genetically. In all these realities there is the risk of failure, if the states, through the role they assume, having a fundamental responsibility in the observance of the internal and international legal order, do not choose the solution of strengthening this legal order through the consolidation of the post-war founding principles and the creation of certain mechanisms, including sanctions, able to guarantee the observance of the internal and international law. Harmonising the principles of legal interpretation in the positive legal order may be obtained only around a central idea, embracing all the particular ideas, ideas serving as core for the legal construction. I. Dogaru, D. Dănişor and Gh. Dănişor define the notion of legal construction as the ensemble of methods used by the doctrine and jurisprudence in order to elaborate certain doctrinal or jurisprudential theories or systems. The juridical construction of principles represents the ultimate expression of refined abstraction. The juridical constructions – juridical macro-entities – are difficult to build, with temporal extension and require concentration, logical systematisation of the correspondent legal facts and principles. Grace to them one finds solutions to the legal situations ignored by law, or one unites under a guiding idea particular solutions comprised in it. The procedure of juridical technique (juridical constructions) is a general trend to complete the strictly legal law, in view of a better co-ordination between law and social reality, to overcome the positivistic

1 Man lives together and does not co-exist, in Professor Mihai Gheorghe’s opinion. Co- existence is typical for herds and flocks, for packs and hoards, but it does not intersect with living together. 214

Knowledge Based Organization 2008 International Conference understanding of law, tendency that makes law be more understood than legal law1. The legal constructions fulfil the function of consolidation of legal concepts, providing them with a coherent framework of existence. And through legal concepts, the legal constructions facilitate the logical operations with legal norms, contributing to the economy of thought. The creative function of juridical constructions consists in establishing the concrete legal norms around the same ideas. The juridical constructions are able to systematise the creative activity of law by means of jurisprudence. To conclude, the principles of law are antecedents, premises of legal constructions. The unity of principles and legal constructions appears in the relation of the part to the whole. The juridical construction represents a superior step compared to the principles of law in view of the ascent of thought and legal abstraction. But also a landmark for the investigation of the concrete, the social fact that will climb the thorny slope of systematisation and crystallisation of positive law. The notions of principles of law and legal construction are comparable, they have, under the aspect of their spheres, an order relation (superordination and subordination). The notion of juridical construction is superordinate, whereas the integrally comprised notion – “principle of law” is subordinate. In the language of formal logic, the superordinate notion (juridical construction) is called genre, while the subordinate notion (the principle of law) is called species. The genre and species are complementary dual notions2  As regards the delimitation of juridical principles from legal norms, we must implicitly clarify the notions of positive law and legal norm. By positive law we understand the system of legal norms effectively shaping and settling the life of a people at a certain historical moment. The positive law, thus, is made of those legal norms that are effectively imposed and effectively come in vigour3. As the primary structural element of the positive legal order, the legal norm is

1 Dogaru, I.; Dănişor, D.C.; Dănişor, Gh., General theory of law, Bucharest, The Scientific Publishing House, 1999, p. 234. 2Mohorea, E., Introduction to logic. Manual for the law students and juridical specialisations, Bălţi, Bălţi University Press, 2000, p. 76. 3 Giorgio Del Vecchio. Lessons of juridical philosophy, Bucharest, Europa nova Publishing House, 1993, pp. 225-226. 215

Knowledge Based Organization 2008 International Conference defined from the perspective of the whole by I. Dogaru as follows: “the legal norm is a public rule of conduct, general and impersonal, focused on the intersubjective exteriorisation of the particular conscience raised to its universality, attempting to create a typical conduct of individuals, in accordance with the social model aimed at, mandatory in the ground of its legitimisation at the level o collective conscience and which , if need be, may be put into practice by constraint”1 Gh. Mihai, R. Motica, N. Popa consider that the legal norms are related to the principles of law at least in two senses: 1) the legal norms contain, describe, institute, i.e. give determined life to most principles of law; 2) the principles of law achieve their content, become functional through the practical application of the conduct prescribed by norms.2 Beside these meanings, the principles of legal interpretation represent the ideatic and deontic source of the legislator in process of norming / settling the social relations and are requirements exceeding the boundaries of legal norms in the process of justice enforcement. Or, according to M. Djuvara, “…the interpretation of the positive law should be dominated first of all by the imperatives of justice. The judge, who in the name of the positive law, limits himself to a narrow logic, extracted only from texts and ignoring their supreme reason of being, i.e. justice, commits a mistake which means a crime against law itself”3. The explanatory value of the principles of law consists in the revealing of the founding reasons of social values, they contain the fundaments of existence, evolution and transformation of law. Unlike principles, the teleological-explanatory value of legal norms is totally secondary, their goal being the preservation and guarantee of social values, beyond the explanation of the reason of their existence. The legal norms are the specific feature, the “clothing” of the principles of law, although they do not have the force and absolute scope of principles. Consequently, we may appreciate the principles of law with priority and superiority compared to the texts of law, the proper legal

1 Dogaru, I.; Dănişor, D.C.; Dănişor, Gh. op.cit., p. 239. 2 Popa, N. General theory of law, Bucharest, Actami Publishing House, 1996, p. 116 and foll. 3 Djuvara, M. Essays of philosophy of law, Bucharest, TREI Publishing House, 1997, p. 96. 216

Knowledge Based Organization 2008 International Conference regulations. The positive law is always founded on superior principle when it issues its commandments, which can be understood and clarified only through these principles”.1 In order to distinguish the general principle of law from the other rules of law, L. Barac suggests the criterion of generality. “Obviously, any legal rule is by its very definition a general rule, but the generality of the legal rule should not be mistaken for the generality of a principle”,2 – idea generated and deepened by Jean Louis Bergel, to whom the author refers. A rule is general because it is destined to an undetermined number of acts or facts, but it can also be special, when it governs certain facts or acts corresponding to the objet. A principle is general because it supposes and allows an indefinite series of applications. Consequently, principles govern over the positive law, while the rules of law are only applications or exceptions of such3. “Consequently, principles unify rules and confer them rational ground, without them the rules do not acquire meaning, and the principle which lacks rules remains without application”4. Gh. Mihai categorically affirms that principles are not norms as they do not have a legislative source nor sanctions attached to them; “…if a principle is mandatory, then it loses its characteristic of ground. In exchange, a rule, even compulsory, if called principle, fulfils the role of what is a rule” 5

Bibliography A. Alexe, International legal order at the beginning of the 21st century, Review of army legal advisors, issue 1/2004. Barac, L., Elements of theory of law, Bucharest, All Beck Publishing House, 2001. D. Banciu, Legal sociology, Bucharest, Hyperion Publishing House XXI, 1995. H. Bull, The anarchic society – study on order in the world politics, Ştiinţa Publishing House, 1998. N. Bujdoiu, Juridical sociology, Knowledge and Interpretation. Applications in juridical sociology. Lugoj, Dacia Europa Nova Publishing House, 1996.

1 Djuvara, M., op.cit. p. 97 and foll. 2 Barac, L. Elements of theory of law. Bucharest, All Beck Publishing House, 2001, p. 254 3 idem 4 Mihai, Gh. Fundaments of law: argumentation and interpretation in law, Bucharest, Lumina Lex Publishing House, 2000, p. 160. 5 Mihai, Gh.,op.cit., p. 212. 217

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N. Bujdoiu, Philosophy of law, Bucharest, Europa Nova Publishing House, 1998. Carpinschi Anton, Contemporary political doctrines. Typologies, dynamics, prospects, Iaşi, Moldova Publishing House, 1992. M. Djuvara, Essays of philosophy of law., Bucharest, TREI Publishing House, 1997. I. Deleanu, M.Enache, Premises and mechanisms of the law-based state, Dreptul Review, issue 12/1993 Dogaru, I.; Dănişor, D.C.; Dănişor, Gh. General theory of law, Bucharest, The Scientific Publishing House, 1999. Ronald Dworkin, La theory du droit comme interpretation, Droit et Societe 1- 1985, Traduit de l’anglais par Francois Michaut, CNRS. A. Fuerea, European Community Law. The General Part, Bucharest, All Beck Publishing House, 2003. I. Ghica, General theory of law, Bucharest, All Beck Publishing House, 1999. Giorgio Del Vecchio, Lessons of juridical philosophy, Bucharest, Europa nova Publishing House, 1993. Hans Kelsen, The pure doctrine of law, Bucharest, Humanitas Publishing House, 2000. Gheorghe Mihai, Fundaments of law I-II, Bucharest, All Beck Publishing House, 2003 Gh. Mihai, Fundaments of law: argumentation and interpretation in law, Bucharest, Lumina Lex Publishing House, 2000. Mohorea E. Introduction to logic. Manual for the law students and juridical specialisations. Bălţi, Bălţi University Press, 2000. Justin Morris and Hilaire Mc.Coubrey, Law, Politics and the Use of Force, in Strategy in the Contemporary World, coord. John Baylis, James Wirtz, Eliot Cohen, Colin S. Gray, Oxford University Press. D. Mazilu, General theory of law, Bucharest, All Beck Publishing House, 1999. P. Miculescu, The law-based state, Bucharest, Lumina Lex Publishing House, 1998. N. Popa, M.C. Eremia, S. Cristea, General theory of law, Bucharest, All Beck Publishing House, 2005. J.J. Rousseau, The social contract, Bucharest, Scientific Publishing House, The Philosophy Library, 1957. Theogenis, Sent.845 sq. T. Toader, Constitutional aspects of the achievement of legal order in the law- based state, Manuscript, Chişinău, 2005 Constantin Vlad, Contemporary political-diplomatic international relations, Bucharest, The Publishing House of the România de Mâine Foundation, 2001.

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THE PROCEDURE OF CROSS-BORDER MERGERS OF TRADE COMPANIES

Asst.Prof. Cebuc Maria-Iuliana, PhD

“Constantin Brâncoveanu” University, Piteşti [email protected]

Abstract The economic environment of trade companies at European level has significantly changed over the last decades along with economies’ globalization and radical technological progress. The juridical framework has also evolved along with the adoption of new community norms and the development of European Communities’ Court jurisprudence that has contributed in clarifying the implementation of the Treaty fundamental rights opening the way towards increased mobility of enterprises within the European Union. OG. 52/2008 for the amendment and improvement of Law no.31/1990 regarding trade companies and for the improvement of Law no.26/1990 regarding commercial register aims at applying Guideline 2005/56/CE regarding trade companies’ cross-border merging in the Romanian legislation and it is a community regulatory act with a view to complying the national legal framework in this respect and consequently to facilitating and promoting economic agents’ cooperation endeavours.

Keywords: cross-border mergers, joint stock companies, limited partnership joint stock companies, European companies,

Until the occurrence of Emergence Order (Ro. O.G.) no.52/2008 for the amendment and improvement of Law no.31/1990 regarding trade companies and for the improvement of Law no.26/1990 regarding commercial register1, the Romanian legislation did not

1 O.G 52/2008 amending and supplementing the Law. 31/1990 on trading companies and Law no. 26/1990 on the trade register, was published in the M.Of., Part I, no. 333 of 30 April 2008 219

Knowledge Based Organization 2008 International Conference contain any law regulating trade companies’ cross-border mergers. The only related reference were the provisions of Article 46 of Law no. 105/1992 regarding the relationships in private international law1 according to which ”the merging of different nationality businesses can be done if they entirely meet the requirements provided by the two national laws applicable to their organic status”. The Emergence Order transposes European Parliament Council Guideline 2005/56/CE2 regarding trade companies’ cross-border mergers that facilitates capital companies’ cross-border mergers subject to the different legislations of member states and presents a new chapter of Law 31/1990, that is the third chapter called ”Cross-Border Mergers” in the sixth title ”Trade Companies’ Dissolution, Merging and Division”. Thus, according to Article 251² indentation 1 of amended Law 31/19903, joint stock companies, limited partnership joint stock companies, limited liability companies – Romanian businesses – and the European companies having their social headquarters in Romania can merge with trade companies having their social headquarters or, if necessary, central management or principal siege in other European Union member states or in states belonging to the European Economic Area operating under one of the equalling juridical forms provided by Article 1 of Council Guideline 68/151/CEE of 9 March, 1968, in order to coordinate warranties imposed to companies in member states in the context of Article 58, second paragraph of European Communities’ Foundation Treaty for the protection of associates’ or third parties’ interests, issued in European Communities’ Official Journal no. L065 of 14 March 1968, with subsequent amendments, or with European companies whose siege is in other member states. The above company juridical forms can merge with trade companies having their social siege, central management or principal headquarters in other member states and enjoying juridical status without complying with the entity types provided by indentation 1 and also possess their own patrimony which is the only source

1 Published in the M.Of., Part I, no. 245 din 1 /10/92. 2 Directive 2005/56/EC published in the JO no. L 310/2005. 3 Law 31/1990 on commercial companies, published in M.Of Partea I, nr. 1066 din 17 noiembrie 2004. 220

Knowledge Based Organization 2008 International Conference guaranteeing social duties, obeying similar advertising formalities as those provided by Council Guideline 68/151/CEE, if the law of the respective member state allows such mergers. Indentation 3 of the same Article states that an exception from applying the regulations are the transferable securities’ collective placement bodies and the closed investment funds regulated by Law no. 297/2004 regarding capital market with subsequent amendment and addition, as well as any other entities whose scope is the collective placement of public resources and which operate through risk distribution and whose securities can be directly or indirectly repurchased from the respective entity’s assets at holders’ request. As regards the Romanian trade company businesses and the European companies whose social siege is in Romania having the property right of a field on the Romanian territory, OUG no. 52/2008 provides they can be part of a cross-border merger where the absorbing or newly-set up company is a business having the nationality of another member state only after five years from Romania’s EU accession. If the respective field is agricultural, the period is seven years from Romania’s EU accession. The law in Article 2514 defines cross-border merging as the operation by which: a) one or several companies of which at least two are governed by the legislations of two different member states are dissolved without being liquidated and transfer their entire patrimony to another company in exchange of the distribution of the absorbing company’s shares/participating shares to the absorbed company’s/companies’ shareholders/associates and, if necessary, the cash payment of maximum 10% of shares’/participating shares’ nominal value distributed as such; or b) several companies of which at least two are governed by the legislations of two different member states are dissolved without being liquidated and transfer their entire patrimony to a newly-set up company in exchange of the distribution of the latter company’s stocks/participating shares to their stockholders/associates and, if necessary, the cash payment of maximum 10% of the face value of the stocks/participating shares distributed as such; c) a company is dissolved without being liquidated and transfers its entire patrimony to another company holding most of

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Knowledge Based Organization 2008 International Conference its stocks/participating shares or other securities ensuring voting rights in general meetings. Merging is done either by a company taking another one over, either by the union of two or several companies that cease to exist in order to set up a new one. Therefore, merging can be done by absorption (take-over) or union. Merging by absorption means that subsequent to dissolution without liquidation one or several companies transfer their entire patrimonial securities and assets to another one, the absorbed companies’ stockholders or associates being due to receive stocks or participating shares and perhaps a cash payment that must not exceed 10% of their face value or, if missing, of their book value. Merging by union and the setting up of a new company mean that several companies unify in order to transfer to a newly-set up company their entire patrimonial securities and assets after their dissolution and cancellation in exchange of granting stocks and participating shares or even a compensation that must not exceed 10% of their face value or, if missing, of their book value. Merging can take place only if there are patrimonial assets in the absorbing company in exchange of the transferred patrimony. A trade company subsidiary is not allowed in a merger. The procedure of cross-border mergers is generally similar to the merger among Romanian trade companies as businesses. The procedure supposes several stages: setting up a mutual merger project, typical reports, assessing the project by one or several independent experts, approving the decision by all participating companies, accomplishing the advertising formalities regarding the merger project and decision, cancelling the absorbed companies. In order to achieve a merger, the managers or members in the leaderships of merging companies make up a mutual merger project which must include at least: the form, name and social siege of all the merging companies; b) the form, name and social siege of the newly- emerged company, if any; c) the conditions to allocate stocks/participating shares to the absorbing or newly-emerged company; d) the exchange rate of stocks/participating shares and the amount of potential cash payments; e) the date from which the

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Knowledge Based Organization 2008 International Conference stocks/participating shares provided within c) give holders the right to enjoy benefits and all special conditions affecting that right; f) the rights granted by the absorbing or newly-emerged company to stockholders also giving special rights to those holding transferable securities except stocks, or the steps taken in this respect; g) any special advantage granted to the experts assessing the merger project or to the administration or control bodies’ members of the companies involved in merging; h) information on the assessment of the patrimony transferred to the absorbing or newly-set up company; i) the date from which the absorbed company’s transactions are considered from the accounting perspective as belonging to the absorbing or newly-set up one; j) the merger’s effects upon the participating companies’ work places; k) the date of the participating companies’ financial status used in order to establish merger conditions; l) if necessary, information on employees’ involvement in defining their rights to be part of the absorbing or newly-set up company’s activities. The mutual merger project signed by merging companies’ representatives is handed in at the Commercial Register Office where merging Romanian and/or European trade companies hosted by Romania are registered as businesses. The mutual merger project approved by a delegated judge is issued entirely or partially in Romania’s Official Journal (Monitorul Oficial al României), part 4, at the parties’ expense according to the delegated judge’s or parties’ requirements at least 30 days before the dates of the general meetings meant to decide upon merging. The competence to check a merger’s lawfulness within the procedure followed by merging companies – Romanian businesses or European companies socially hosted by Romania – or, if necessary, by the newly-set up company – Romanian business or European company socially hosted by Romania – belongs to the judge delegated by the Commercial Register Office where they register the merging Romanian business companies or European companies having their social siege in Romania, including the absorbing or newly-set up company. The delegated judge shall appoint an expert to examine the mutual merger project and set up a written report to stockholders. The

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Knowledge Based Organization 2008 International Conference expert shall act on behalf of the Romanian merging company but he/she shall be independent from the latter. In addition, the managers or leadership members in the merging companies must set up a written report to explain the merger project and state its juridical and economic basis. The managers’ or leadership members’ reports shall be made known to associates and employees or their representatives at the company headquarters at least 30 days before the general meeting decision on merging. If the company has a web site, the report shall be presented there, too. According to Article 251, the company creditors have the right to proper protection complying with their interests. Thus, they can oppose the merger within the provisions of Article 62 of Law no. 31/1990, if there are any debentures prior to the merger project issuing that do not fall due on the issuing date. Their opposition shall delay the merger until the date the court decision becomes irrevocable except the circumstances when the debtor company proves having paid the debts, grants warranties accepted by creditors or concludes a debt payment agreement with the latter. Regulating cross-border mergers brings a novelty in our country’s legislation namely the concept of employees’ involvement in decision- making. Until now employees’ interest has been possible only in a European trade company. Thus, according to Article 25110, when the absorbing or newly- set up company is a European company socially hosted by Romania, the managers of the merging companies must ensure the observance of employees’ involvement in the European company’s activities under the circumstances provided by Government Decision no.187/2007 regarding employees’ informing, consulting and involving in any way in the European company’s activities. If one or several of the merging companies governed by the legislation of another member state already has/have a way to involve the employees in company activities, then the absorbing or newly-set up company – Romanian business – is compelled to find such a way. When in a Romanian business company ensuing from a cross- border merger there is an involvement way of employees, its

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Knowledge Based Organization 2008 International Conference managers or leadership members are obliged to ensure the protection of employees’ rights resulted from that way in the case of a subsequent internal merger during three years from the date the cross- border merger showed its effects. Article 25112 of amended Law 31/ 1990 gives the right to renounce to the stockholders or associates who do not vote in favour of the general meeting decision to agree with the merger, therefore they have the right to leave the company and request their stocks/participating shares be purchased by the company within 30 days from the date of the general meeting decision approval, if two conditions are met: a) the legislation of member states as mother- countries of merging companies provides a similar associates’ protection system; b) the merging companies governed by the legislation of a member state that does not give associates the right to renounce have deliberately accepted that company associates use that right and have settled it during the general meeting decision to approve of the merger. Stockholders shall give the company their stocks or stockholder certificates along with their quitting statement in writing. Merging has the following consequences: a) involves the transfer to the absorbing or newly-set up company of all the absorbed company’s assets and securities both in the relationships among the merging companies and in the relationships with third parties; b) the absorbed/merging company’s stockholders or associates become the stockholders, respectively associates of the absorbing or merged one according to the distribution rules set up in the merger project; c) the absorbed company, respectively the companies making up the new one by merging cease to exist. The effects occur in a different way, according to the merger type as follows: a) when a company is set up, starting from the date of its registration in the Commercial Register; b) when there is merging by absorption starting from the date of registering the foundation act amendment in the Commercial Register

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Knowledge Based Organization 2008 International Conference except situations when it is stipulated and agreed with by the parties that the operation shall produce effects later on; c) when a European company is set up by merging from the date of its registration. Applying in our country’s legislation the community guidelines regarding cross-border mergers among various types of trade companies in the EU member states contributes in facilitating and promoting economic agents’ cooperation endeavours. Those norms ensure minimum protection for the stockholders, creditors and employees of trade capital companies complying with the one set up at European level.

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SHARES OF THE STATE IN ORDER TO ADJUST THE DEMAND FOR JOBS WITH JOB VACANCIES IN THE LABOR MARKET AND PREVENT LACK OF QUALIFIED

Asst.Prof. Cernat Cosmin, PhD Dragomir Ion

“Alexandru Ioan Cuza” Police Academy, Bucharest

Abstract Labor market in Romania is characterized by an imbalance, the demand for labor is considerably lower than the bid. The legislation provides that the announced job vacancies, which were recorded and disseminated through the media and display media. Violating this provision by some operators make transparency job vacancies are not at the desired level.

Keywords: jobs, labor market, unemployment

In Romania, state institution that specializes in providing public services employment is at the national level National Agency for Employment; local agencies operate 41 County Employment Agency and Municipal Employment Bucharest. Network services employment is well developed, each county agency operate with local agencies and points of the localities in which the needs of the labor market so require1. Staff working in this network is generally well prepared, with the sufficient experience and expertise to provide specialist services. Labor market in Romania is characterized by an imbalance, the demand for labor is considerably lower than the bid. The legislation

1 Currently there are 88 agencies and 156 local points of qualifying. 227

Knowledge Based Organization 2008 International Conference provides that the announced job vacancies, which were recorded and disseminated through the media and display media. Violating this provision by some operators make transparency job vacancies are not at the desired level. The state in the process of matching demand with supply of labor is considering the development of regional programs of socio- economic bill, so our country has been divided into areas of development for better implementation of concrete strategies. Thus, the only region Bucharest-Ilfov, the rate of employment of the year 2005 was 59.4% (national average was 57.7%). Sex, the rate of employment of women was 53.4% (national average – 51.5%). concrete. Demand for qualified labor force was higher for the Bucharest- Ilfov, so that correlated with the opportunities offered by capital – the level of urban life and prestige – occupied population (which predominates in the capital's population) are higher training and qualification. Unemployment rate in 2005 is low (2.4%, the national average is 5.9%) and the possibility of finding a job is real. Long-term unemployment is very intense, and the young (under 25 years) has a high percentage – 21.2%, worth close to the national average of 21.0% and work (especially in the tertiary sector) is widespread (data from 2004). Most registered is characterized by low levels of education, which means that the Bucharest-Ilfov region is faced with a demand of qualified. In this regard to stimulate the process of matching demand and supply of labor for employment activities are largely computerized (2 computers from 3 employees), is currently in progress for the creation of network of NAE and Councils agencies/local. To meet the transformations that occur in the labor market, the National Agency for Employment organize training courses aimed on the one hand providing skilled labor, adapted to the needs of the labor market and on the other Party increased chances of people in search of a job to integrate the professional point of view. Training for the unemployed is carried out according to plans

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Knowledge Based Organization 2008 International Conference annual training developed on the basis of studies on short-term needs of labor for certain sectors / occupations. In establishing the necessary social partners are involved at the local level. Regarding the initial training, a problem due to lack of a functional, efficient, to study and forecast of the needs of the labor market, the dimensioning of initial training, is a poor correlation between educational offer and the requirements of the labor market in certain areas, although the Ministry of Education and Research, through the reform of vocational and technical, has undertaken a series of measures aimed at adapting nomenclatures preparation of pre-university education, changing school curricula, the introduction of social partnership, implementation of programs for training of teaching staff . In Romania, as a result of the transition to a market economy and development of new sectors of activity occurred in November occupations for which there are no qualified personnel. On the other hand, vocational occupations and traditional skills are needed as a result of competition and market liberalization. In this regard, in order to achieve a balance between supply and demand of labor was signed in 2001, a protocol between the National Agency for Employment and the Ministry of Education and Research, which provides education plan adaptation to the requirements of real labor market on the basis of studies and projections on the requirements of the labor market perspective. Protocols concluded at the local level, as specified Regulation framework for the organization and functioning of the Committees of Local Development Social Partnership in vocational education and technical stated in the adaptation of primary school plans to meet local requirements of the labor market; analysis structure of the labor market information will be essential for drawing up the plan for schooling, referencing the offer vocational and technical requirements of the labor market and the interest of prospective students. In this respect has followed the creation of classes to meet the need for labor in the fields and trades in November occurred in the labor market or in trades with local tradition, but also increase the number of seats in vocational education (apprenticeship schools) in

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Knowledge Based Organization 2008 International Conference order to reduce the drop school. Due to new requirements on labor market measures envisaged have sought to ensure a greater number of places in vocational education for the demand on the local market of labor cooperation for the development of entrepreneurship education to students dentist, initiating programs to provide information and advice professional students dentist who include: the presentation of the notions of the labor market strategies search for a job, information on the most requested trades on the local labor force, employment in November occurred in the labor supply current Jobs, training areas for which there is demand from industry who want to organize courses to ensure employment, etc. In the last time you had in mind improving the allocation of financial resources for the initial training, development and effective use of them. An action of the state in this issue must be supported by a communication campaign by exchanging relevant information on the labor market, business opportunities for local development, diversification of relations of partnership-business-school community. Another segment of action of the state was targeting training of education to labor market requirements, develop training in support of the business community, and the institutionalization of social dialogue standing for active employment in accordance with the requirements of the labor market, the identification of strategies employment and training. Correlation measures the institutions involved in training, support activities agreed under the Local Development Social Partnership in training and partnership in ensuring the organization of active measures for employment of graduates objective is to be considered in the action of the state. During 2008, the NAE has organized several national scholarships of jobs among which counted and the gypsies. The state through its organs are the protection of ethnic minorities in accordance with the European principles of equality and nondiscrimination. For a better match between supply and demand of labor, at each county agencies and some local agencies (depending on the existing

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Knowledge Based Organization 2008 International Conference spaces), have set up 136 centers for advice and information on career where people in search of job can get information on trends in the labor market may be self assessment from the professional and are informed of the measures still active and that may have access. In order to adjust demand with supply in the labor market and shortened the time allotted to these activities by employment services, was created and made available to interested parties for free via the Internet, Electronic Service Mediation Labor (SEMM), available at www.semm.ro address, where operators can advertise job vacancies, and those who want to engage can consult the list of offers available. This service was introduced in response to the need for diversifying the range of services offered by the NAE impact on employment and relationships on the job market, modernization and efficiency of public services and employment to reduce the volume of work routine professional advisers, the development of solutions for each client. SEMM was launched in August 2000 in nine counties (Argeş, Bihor, Braşov, Buzău, Cluj, Constanţa, Hunedoara, Neamţ, Quebec). The results obtained in these counties have shown that this system enjoys large audience, especially among young and professional categories with science education. In 2001 generalized use SEMM at the country level. Mediation is an electronic service that aims to reduce unemployment, increase mobility in the labor market and reducing time to react to the emergence of tenders. For a better implementation of policies relating to the correlation of demand with supply in the labor market and prevent lack of qualified, Law no. 76/20021 on the unemployment insurance system and stimulate employment comes with a series of new items which aims boost the labor market and increase employment of labor. One of the measures provided for active new law is to stimulate labor mobility by providing financial incentives aimed at encouraging employment in remote and change of domicile. By monitoring the performance indicators set annually for the

1 On the unemployment insurance system and stimulate employment, published in the Official Gazette of Romania, Part I, number 103 of February 6 2002 231

Knowledge Based Organization 2008 International Conference services offered, NAE identifies and analyzes the difficulties in the labor market and take appropriate measures as necessary. Objectives to be achieved to reduce the discrepancies found between the demand for jobs refers to several courses of action, such as improving services offered to mediate in finding a job, offer educational adapt to the requirements of the local labor market , To stimulate labor mobility, to remove the existing imbalance in the labor market between supply and demand of labor force, broadening the base of indicators that characterize the job vacancies, and in particular those who characterize the potential for employment through development and modernization of the whole information system of labor market and improvement of databases on job vacancies existing in the labor market, through computerization.

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HOLOGRAPH WILL WITHIN THE ROMANIAN AND FRENCH CIVIL LAW A COMPARATIVE LOOK

Asst.Prof. Genoiu Ilioara, PhD, Asst.Prof. Mastacan Olivian, PhD

“Valahia” University, Târgovişte, [email protected], [email protected]

Abstract The utility of the holograph will, as a common testamentary form, is undeniable as, on the one hand, the Romanian law regulations gave it a substantial extension in the current Civil Code, and, on the other hand, The Civil Code Project (2004) retains it, continuously, as a testamentary form. Moreover, even the French legislation in use – the eternal source of inspiration of the Romanian law – substantially reformed in 2001 and 2006, retains the holograph will among the regulated testamentary forms. Although it presents some inconvenient, the holograph will has also some advantages which qualify it as a frequently used testamentary form.

Keywords: holograph will, testator, solemn act

1. Introduction 1.1. The notion and legal regulation of a will According to the provisions of article 802 of the Romanian Civil Code, “A will represents a revocable document by which a testator disposes of his fortune partly or completely in case of death”. According to French specialized literature1, a will is the document by which a testator expresses his last wishes, which are to be fulfilled after his death.

1 See as example Ph. Malaurie, L. Aynès, Droit civil. Les successions. Les libéralités, 3rd edition, Defrénois Publ. House, 2008, p. 249. 233

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Therefore, both definitions stress the character mortis causa of the will. Yet, there can be noticed a more complete definition of the will provided by the national legislation, which also underlines its essentially revocable character. Albeit more complete, the definition given by the Romanian Civil Code may be criticized1 for being unsatisfactory, as it reduces the content of the will only to legacy. Apart from legacy (that testamentary clause by which a testator disposes of his assets in case of death), a will may also include other clauses concerning the testator’s last wishes, such as acknowledging a child outside matrimony, revoking a previous will, disinheritances, appointing a testamentary executor, duties imposed to legatees, burial and funeral arrangements, etc. Moreover, it is not necessary for a will to say anything about legacy, by including only other last requests of the deceased person (such as acknowledging a child outside matrimony or burial and funeral arrangements). In their attempt to define the will, Romanian law makers have defined only legacy, which is indeed the main testamentary provision, but not identical to the notion of testament. In these circumstances, specialized literature2 has defined the will as a pattern, as a form comprising several independent juridical documents, with a different juridical regime. The idea that all several juridical documents which may have the same form as the will do not have the same juridical regime as the latter, by having a different juridical character, is also upheld by the provisions of the Family Code (article 48 alignment 3 and article 57 alignment 3), establishing that the acknowledgement by will of the

1 See M. Eliescu, Moştenirea şi devoluţiunea ei în dreptul R.S.R., Bucharest, Editura Academiei, 1966, p. 199-205; St. Cărpenaru, Dreptul de moştenire, in Fr. Deak, St. Cărpenaru, Drept civil. Contracte Speciale. Dreptul de autor. Dreptul de moştenire. Bucharest University, 1983, pp. 427-428; Fr. Deak, Tratat de drept succesoral, 2nd edition brought up to date and completed, Universul Juridic Publ. House, 2002, pp. 158-161 2 See C. Hamangiu et al, Tratat de drept civil român, Bucharest, 1929, p. 826; M. Eliescu, quoted works, p. 199-205; C. Stătescu, Drept civil. Contractul de transport. Drepturile de creaţie intelectuală. Succesiunile, Bucharest, Editura Didactică şi Pedagogică, 1967, pp. 156- 158; D. Macovei, Drept civil. Succesiuni, Iaşi, “Chemarea” Publ. House, 1993, pp. 69-70. In fact, specialized literature uses the same terms unanimously. 234

Knowledge Based Organization 2008 International Conference paternity of a child outside matrimony is irrevocable, producing effects immediately and not from the testator’s death on, in the circumstances in which a will is an essentially revocable document. We are therefore confronted not with an exception from the principle of the will revocability, but with the demonstration that a will can include several independent1 documents. From the idea that a will may comprise several independent juridical documents also emerges the consequence that the validity of these documents is analyzed separately, so that the invalidity of one does not trigger the invalidity of others. But on the other hand, the flaws affecting the form of one single testamentary clause trigger the absolute invalidity of the will, as the testamentary form is common. The definition of will provided by the French specialized literature cannot be criticized as the one given by Romanian law makers which resumes the content of the testator’s last will only to legacy. The French definition adds to the content of the will other last requests expressed by the testator which do not regard his patrimony. Taking everything into account, we define the will as a juridical, solemn, unilateral document, essentially personal and irrevocable, by which a testator expresses his last wishes, which are to be fulfilled after his death.

1.2. The juridical character of a will Both in the national legislation and the French one, a will has the same juridical character. Specialized literature, Romanian and French, is unanimous when establishing the following characteristics of a will: a) a will is a juridical unilateral document Judging by the way it is drafted, a will is a juridical unilateral document, expressing only the testator’s will. For a will to be drafted, it is not necessary for the legatee to accept the testamentary clause. A testament has juridical effects only through the testator’s exclusive will, the legacy being transmitted to the legatee when the inheritance is opened, on the condition that the legatee does not reject the will.

1 See E. Poenaru, Recunoaşterea prin testament a copilului din afara căsătoriei, in ”New Justice”, no. 3/1956, p. 463 and the following. 235

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Acepting the legacy stands for another unilateral document (of the option for inheritance), different from the will, causing particular juridical effects. Thus, accepting the legacy must not be confounded with the consent which has to be given when closing a contract (bilateral juridical act). b) a will is a juridical document, essentially personal, so that it cannot be drawn up through representation or through the consent of the legal tutor; The personal character of a will is not removed when the testator requests and receives specialized advice regarding how his last will should be drawn up, if the will expresses, of course, his author’s personal intents. From the personal character (as well as from the unilateral and irrevocable one) also derives the individual character of a will, the law1 particularly forbidding the conjunctive will (by which two or more persons leave a testament through one and the same document). c) a will is a solemn juridical document, so that in order to be valid it must abide by the form requested by law, under the sanction of absolute invalidity; A testator has the opportunity of choosing one of the forms provided by law. Therefore, a testator’s freedom is limited by law makers. d) a will is a juridical document mortis causa, as it has effect only after the testator’s death; Therefore, the legatee receives no right while the testator is alive, the latter having the right to dispose of the assets which represent the object of the will. Although the will has effect when the testator’s inheritance is opened, its validity is determined according to the moment when it was drafted. e) a will is a juridical document, essentially revocable. A testator can revoke or modify the testamentary clauses trough his unilateral will, at any time until his death and in an absolute manner. A testator cannot give up at his right of revoking the will, as this is synonymous to a pact regarding a future succession, which is

1 Article 857, Civil Code 5. 236

Knowledge Based Organization 2008 International Conference strictly forbidden by law.1 Judging by its juridical character, a will therefore represents an exception from common law, being governed by particular rules regarding its form and content.

1.3. Testamentary forms provided by the Romanian and French legislation According to the provisions of the Romanian Civil Code, a testator has the opportunity of choosing between the following testamentary forms: a) ordinary wills: holograph will, authentic will and mystic will; b) privileged wills: the will of the military, the will in case of contagious disease and the will drafted at sea; c) other testamentary forms: legacies having as object amounts of money and testamentary provisions of Romanian citizens from abroad. There is no juridical difference between these testamentary forms, but only of proving power. At any rate, after the existence and the content of the will are proved, the effects of its clauses are identical, irrespective of its form. All these testamentary forms must abide both by the general conditions of form and some particular ones. French legislation, less generous than the Romanian one, provides the following testamentary forms: – the holograph will; – the authentic will; – the mystic will; – the will in international form. There can be therefore noticed that, de lege lata2, the Romanian testator has access to a greater variety of testamentary forms. Besides ordinary wills and the will drawn up in an international form, which are all regulated in a similar manner, even identical, by the Romanian and French Civil Code, the Romanian testator can resort to the

1 Article 965, Civil Code. 2 At the same time, the Romanian Civil Code Project (2004) reminds, in principle, the same testamentary forms. De lege ferenda, it is suggested to abolish the mystic will, which represents a testamentary from too little used in Romania. 237

Knowledge Based Organization 2008 International Conference privileged testamentary forms and at the CEC (Romanian Saving Bank) clause.

2. The holograph will within the Romanian Civil Law 2.1. The notion and legal regulation of a holograph will According to the provisions of article 859 of the Civil Code, “A holograph will is valid only if it is entirely handwritten, dated and signed by the testator”. Thus, a holograph will is the testator’s exclusive and personal creation. In order to produce juridical effects, a holograph will – which is after all a certificate under private signature – must totally meet three conditions of form which qualify it as a solemn act. Here they are: – the will must be entirely handwritten by the testator; – the will must be dated by the testator; – the will must be signed by the testator. The absence of one of these conditions triggers the absolute invalidity of the last will. For instance, the allograph will (written by another person or by the testator, but with mechanical devices, and signed before the witnesses) is not valid as a holograph will. If, by any case, the allograph will meets the conditions of an authentic will, then it can be considered valid under this form.

2.2. The advantages and disadvantages of a holograph will A holograph will has both advantages and disadvantages1. Specialized literature agrees in a voice that a holograph will has the following advantages: a) it can be drawn up by anyone who can write; b) its fulfillment does not involve any expense; c) it can be drawn up wherever, whenever and only by the testator, without another’s person help and without being necessary for a witness to be present; d) guarantees the full secrecy of the last will provisions; e) it can be easily revoked by the testator, by willingly destroying it. Yet, a holograph will has also disadvantages, such as:

1 See Fr. Deak, quoted work, pp. 184-185. 238

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a) it can be easily hidden or destroyed after the testator’s death or even during his life, but without him knowing; b) it can be easily falsified; c) the testator’s will can be easily influenced by a misleading person; d) it can be questioned more easily than other testamentary forms; e) it may contain clauses drawn up incoherently, thus raising interpretation issues. Some of the disadvantages of the holograph will can be removed by drafting it in several copies or by entrusting it to a reliable person or to a notary public. By simply entrusting the will – handwritten, signed and dated by the testator – to a notary public, it does not become an authentic will.

2.3. The special conditions regarding the form of a holograph will In order to speak about a holograph will, there must be met, under the sanction of absolute invalidity, the following conditions of solemnity, requested ad validitatem and not ad probationem: a) the will must be entirely handwritten by the testator; If the document is written by a third person or by the testator using mechanical devices, we cannot speak about a holograph will, even if it is dated and signed by the testator. The testator can write the holograph will in any language that he knows (even in Latin, which is an out of use language), on any material (paper, canvas, wood, rock, glass, plastic material etc), with any instrument (pencil, ball pen, pen, chalk, color, coal etc) and with any type of writing (manual or typographical letters, characters written in shorthand or the special alphabet of blind persons). A holograph will is valid even written on several material supports (for instance, several sheets of paper), if there is a material or at least intellectual connection between all these and is also valid even when written in several stages. The validity of a holograph will is not conditioned by the use of some formulae requested by law. At the same time, the validity of this type of will is not affected, in principle, by adjustments, addings, erasures or insertions made by the testator when drafting it or

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Knowledge Based Organization 2008 International Conference afterwards, if all these represent simple corrections or interpretations, even if they are not dated and signed separately. On the contrary, if the testator’s intervention brings something new to the initial testamentary clauses, abolishes or modifies the initial content of the will, then it will produce juridical effects, standing for a new will (called, in practice, codicil), only if the testamentary clauses were written, dated and signed by the testator1. When drawing up the holograph will, the testator can be assisted, but exclusively from a technical point of view, by a third person (lawyer, friend, relative, etc.). The role of the third person must be exclusively that of offering a model of will or of contributing to the clear expression of the testator’s last will provisions2. This type of will has juridical effects only if his author’s will is absolutely free. If the will comprises an unknown writing, there must be distinguished two hypotheses: – the unknown writing has no connection to the provisions of the will, so that the testator’s last will is valid, no matter if he knew or not about it and irrespective of the moment when it was done. – the unknown writing is connected to the provisions of the will and the testator knew about it, so that the document mortis causa is null; if the testator had no idea about the unknown writing which is connected to the testamentary provisions, then his last will is valid, in the way he designed it. b) the will must be dated by the testator; According to the date when a holograph will was drafted, there can be established elements of a major importance for its validity. Thus, the date of a holograph will is important under the following aspects: – according to the date, there can be established if the testator had or not the capacity to leave a will; – in the case of several successive wills, with contrary or incompatible clauses, there can be established which was the testator’s last will, which revokes all those before it; – according to the date, there can be established the circumstances

1 See M. Eliescu, quoted work., p. 209; C. Hamangiu, et al, quoted work., pp. 836-837. 2 See M. Eliescu, quoted work., p. 208; Fr. Deak, quoted work., p. 186. 240

Knowledge Based Organization 2008 International Conference in which the will was drafted, which can trigger its invalidity (for instance, the possibility for the testator’s consent to have been altered). The date can be placed anywhere, at the beginning, within or at the end of the will, and it is important to emerge that it refers to the entire document. At the same time, it is necessary for the date to be handwritten by the testator. Dating can be made by indicating with numbers or letters the day, the month or the year when the will was drafted or by indicating an event (for example the Romanian feast of Sfantul Vasile, 2008). For a holograph will to be valid, it is not necessary to specify at what hour and in what place was drafted. According to the law, the absence of the date triggers the absolute invalidity of the will. Yet, by considering that the date does not have the same importance as the handwriting and signature within a holograph will, specialized literature1 and jurisprudence have considerably diminished the sanction applied for the lack of this element by approving, according to the case, for the date to be established, completed or modified, with the help of some internal or external elements of the document mortis causa. Consequently, there are some distinct hypotheses: a) if the date is missing (totally or partly) or if it is not precise as a result of an involuntary mistake made by the testator, then the interested person (legatee or legal heir who would be entitled to the inheritance after the disinheritance by class and rank of the initially designed person) is allowed to prove, by means of some internal or external elements of the will, the date when the latter was drawn up, thus saving its validity; b) if the date is false and this has been deliberately done by the testator, then his last will is absolutely null, even if falsifying the date had no intent of breaching the law; c) if the will is dated, then the respective date is relatively presumed to be the real one. But if the date is incomplete or imprecise, then one of its elements (day, month, or year) can be completed or changed, without affecting the other elements, as they are divisible.

1 See M.B. Cantacuzino, Elementele dreptului civil, Bucharest, All Educational Publ. House, 1998, p. 365. 241

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c) the will must be signed by the testator. A holograph will must be signed in the testator’s own hand. By signing the testament, the testator certifies that his requirements represent his own will. The signature “hand made” by the testator must allow the latter’s identification. The testator’s stamp, seal, or finger prints are not considered to be a signature. In all these cases, the will is null. The signature must not include the testator’s first and last name. It is enough the signature usually used by the testator, which makes it possible for him to be identified. Just like the date, the signature can be placed anywhere, at the beginning, within or at the end of the will. In order for the signature and implicitly for the will to be valid, it is necessary to emerge that, by his signature, the testator has taken upon himself the content of the entire document. Even if the will is written on several sheets of papers, it is enough for the testator to sign at the end. Yet, when it comes to the signature applied on the envelope containing the will, there are various opinions within specialized literature. According to one of these, the signature on the envelope is not valid, since the interested persons may put into the envelope a simple will draft, which the testator did not complete1. There has also been stated a contrary opinion according to which the signature on the envelope is valid2. And finally, there has also been expressed an intermediary opinion3 that we agree with, according to which the signature on the envelope can be considered valid only if there can be established an indestructible bound between this one and the content of the envelope, being excluded the possibility for the content of the envelope to have been replaced by another one which does not illustrate the testator’s last and definite will. The absence of the signature triggers the absolute invalidity of the will. When it comes to the signature of the holograph will, there has not been allowed the diminishment of this sanction, so that is not

1 See M. Eliescu, quoted work., p. 212; D. Macovei, quoted work., p. 78; D. Chirică, Drept civil. Succesiuni, Bucharest, Lumina Lex Publ. House, 1996, pp. 100-101. 2 See C. Hamangiu et al, quoted work, pp. 841-842. 3 See Fr. Deak, quoted work., p. 190; I. Adam, A. Rusu, Drept civil. Succesiuni, Bucharest, All Beck Publ. House, 2003, p. 196. 242

Knowledge Based Organization 2008 International Conference allowed for the signature to be established, completed or modified, under the conditions which apply to date.

2.4. The proving force of the holograph will A holograph will, albeit a solemn document, has the form of a certificate under private signature, so that the interested persons can question it. Yet, there must be made a distinction between the proving force of the writing and signature and the proving force of the date. a) the proving force of the writing and signature; The writing and the signature have a proving force only if they are acknowledged, expressly or tacitly, by the challengers of the will. If the latter question the signature, then the notary public suspends the notarial procedure (article 78 of the Law no. 36/1995), and the law court has to settle the disagreements between heirs. The person having the task to prove the authenticity of the writing and the signature is not the one who questions them, but, on the contrary, the one who invokes the holograph testament1. In order to prove the writing and the signature, the law court orders for the document to be verified de scripte (art. 1178, Civ. Code). In this case, the writing and the signature within the will are being compared with other documents written by the testator and acknowledged by the challengers. In case of doubt, an expertise is ordered, since the proof by witnesses is not admitted unless the holograph will cannot be presented because of the force majeure. b) the proving force of the date. When it comes to the date of the will, there is a relative presumption regarding its authenticity, if the writing and signature were declared real by the interested persons or at the end the expertise de scripte. In the holograph will field, the provisions of article 1182 of the Civil Code regarding the certain date do not necessarily apply; thus, holograph will is opposable in front of other persons. Therefore, the date is presumed to be real until the contrary evidence. The task of proving that the evidence is not exact or true belongs to the one who challenges it. The contrary evidence can be offered by the internal elements of the will, as the external ones can be

1 Supreme Court, civ. col., Dec. no. 292/1952, in C.D. 1952-1954, 1st volume, p. 113-115. 243

Knowledge Based Organization 2008 International Conference taken into account only if they are connected to the first ones. In order to prove that the date was falsified with criminal intentions (the case when the absolute invalidity of the will applies), it is allowed to bring any sort of evidence.

2.5. Formalities after testator’s death According to the article 892 of the Civil Code, before its execution, the holograph (and mystic) will must be presented to a notary public office in the same territory where the inheritance was opened. The notary public will acknowledge, by an official report, the opening of the will and the form in which was found, and then will keep it among the office archives. The non fulfillment of this formality is not sanctioned by the Civil Code. Consequently, a will can be presented straight to the law court, within the litigation which regards it, having a full efficiency. Yet, the law no. 36/1995 (through article 71, alignment 5) provides that only the will (irrespective of its type) found when inventorying the hereditary assets is approved without the possibility of being changed and kept in the archives of the notary public office, and not also the one presented by the interested part. Furthermore, the will (presented or inventoried) is opened only by notarial procedure (and not before), while the official report acknowledging the material state must be closed only in the case of the holograph or mystic will. Thus, the provisions of the article 892 of the Civil Code, implicitly modified by the subsequent provisions of the Law no. 36/1995, lack the practicability1.

3. The holograph will within the French law2 3.1. The advantages and disadvantages of the will In France, just like in Romania, the testamentary form to which law subjects frequently resort is the holograph will. This choice is motivated by the obvious advantages that the holograph will has. Thus, for someone who can write and read, a holograph will

1 See Fr. Deak, quoted work., p. 191. 2 To find more about this testamentary form, see Ph. Malaurie, L. Aynès, quoted work., pp. 254-261. 244

Knowledge Based Organization 2008 International Conference represents a testamentary form described by the specialized literature1 as “extremely simple”. Resorting to such a testamentary form, a testator turns to good account the advantages that it has, as it follows: – the secret regarding the testator’s last will is fully guaranteed; – expressing and rendering by certificate the testator’s last will does not involve any expense or time; – the testator has the opportunity to easily modify or revoke the clauses of his last will – in the form of a holograph one. It is obvious that a holograph will also has disadvantages2 within the French law, just like within the Romanian one, as it follows: – if a holograph will does not meet all requirements, then it becomes null; – a holograph will can become ambiguous as a result of the testator’s expression manner. Both French specialized literature and the national one advise the law subjects that resort to the holograph will to consult with a notary public before drawing up their last will, so as to remove or diminish the inconvenient that this form of will brings about and to maintain its advantages. By resorting to the specialized advice offered by the notary public, the testator does not modify the juridical nature of his last will from a holograph one (solemn document, but under private signature) into an authentic will (solemn document as well, but not certified by a competent public functionary). With such a procedure, the risk for the holograph will to generate ambiguity is considerably diminished or even removed. – given the fact that the holograph will is kept by the testator, it can be easily falsified, lost or destroyed. In order to escape this inconvenient, French specialized literature advises law subjects to entrust the holograph will, drawn up according to the law requirements, to a notary public.

1 See Ph. Malaurie, L. Aynès, op. cit., p. 254. 2 Ibidem. 245

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3.2. The solemnity of a holograph will A holograph will, albeit a document under private signature, is a genuine solemn document, with a validity which has to meet all the following conditions: – it must be handwritten by the testator; – it must be signed by the testator; – it must be dated by the testator; – the testator must have the intention of leaving a will (animus testandi). Therefore, the first three conditions represent the formal requirements of a holograph will, while the last one concerns its essence.

3.2.1. The will must be handwritten by the testator According to French legislation, a holograph will must be handwritten by the testator. At the opposite side, the typed will is null (just like within the Romanian law). This is the only requirement to which French jurisprudence gives a capital importance. When it comes to the other aspects, such as the language, the letters used (small or capitals), using or not a model1, the instrument or the material bearing the testator’s last will, juridical forces have allowed full freedom2. French jurisprudence acknowledges the validity of a will written by a guided hand, only if the following two conditions are met: – the condition regarding the content: the testator has expressed his own will and has benefited only from a pure material assistance; – the condition regarding the form: the testator’s writing is recognizable.

3.2.2. The will must be dated by the testator The date of a holograph will is required by the French legislation for the following reasons:

1 French jurisprudence allows the testator to use a model, but this type of will must be based on its author’s real will. On the contrary, the exact copy of another will is null. 2 Ibidem, p. 255. 246

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– according to this date it can be verified the testator’s capacity; – the date of a holograph will allows to identify the subsequent wills and to establish the person that, in this case, produces juridical effects1; – according to the date of the will it can be verified the existence of animus testandi; – the date of the will allows to establish the circumstances in which it was written, a fact which can be useful for its interpretation; Therefore, mentioning the date within a holograph will is a sort of “authenticity certificate”2. In principle, a holograph will not dated by the testator himself or bearing an incomplete or inexact date is null. Yet, this principle is diminished by jurisprudence and juridical doctrine. Thus, according to the doctrine, a dead person’s will must always be respected, if it was rational, came from a sound of mind testator and was not revoked. But if the date is imprecise, false or missing, jurisprudence asks for the date of the will to be established, with the help of the internal and external elements of the document. The date of a holograph will is presumed to be the real one. French legislation, just like the Romanian one, did not considered necessary for the date to be the object of a special mention. It is enough for the holograph will to contain the date. The latter is considered valid even when written on the envelope containing the holograph will, but only if the envelope and its content represent a whole.

3.2.3. The will must be signed by the testator The holograph will must be signed by the testator, a fact which guarantees that it comes from the person appointed as testator and also the testator’s will of leaving a testament. (animus testandi). According to French specialized literature3, the testator’s signature represents the essential condition for the holograph will to be valid. Yet, specialized literature has reported a partial disrespect of the holograph will, in

1 Just like within the Romanian law, the will which has juridical effects in the case of several testaments of the same testator is the last one. 2 See Ph. Malaurie, L. Aynès, quoted work., p. 256. 3 Ibidem, p. 258 247

Knowledge Based Organization 2008 International Conference what concerns the signatory’s name, the graphic and the place of the signature. Jurisprudence has been constantly allowing the testator to sign only with his first name, even if he usually does not sign in this way. Moreover, it is not necessary for the testator’s signature to be the one he usually uses. According to jurisprudence, it is necessary for the signature to offer the certainty of the testator’s identity and will. The testator’s signature is generally placed at the end of testamentary clauses, this being the variant admitted by the recent jurisprudence. Yet, jurisprudence has had hesitations in time and has frequently admitted that the testator’s signature can be placed anywhere inside the will and even outside it, that is on the envelope containing the last will. According to the French specialized literature, a case of breaching the rules of a holograph will occurs when the testator does not sign and date the latter, the signature and the date appearing on the envelope containing the last will.

3.2.4. The intention of leaving a will The French Civil Code adds to three conditions regarding the form another one concerning the content – the intention of leaving a will. This element makes the will to be more than just a simple project of leaving a testament.

3.3. The preservation of a holograph will Although the French Civil Code establishes a few measures for preserving a holograph will, specialized literature describes them as late and useless. They cannot remove or diminish the risk of a holograph will being lost, falsified or destroyed, since they apply only after the testator’s death and only after the will is discovered. The person who discovers a holograph will is bound to consign it to a notary public who has as well some duties provided by the Civil Code. Thus, the notary public has to open the envelope, drafting an official report about this, to deposit the will and within a month to send a copy to the law court in the territory where the inheritance was opened.

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3.4. The proving force of a holograph will A holograph will is a document under private signature, so that the relative presumption regarding the authenticity of its writing, signature and date becomes invalid, if at least one of the heirs questions one of the three elements. The judge himself has the possibility to assess the authenticity of the questioned elements or to order a de scripte expertise (a checking of the writing). The one who has the task to prove that the will is authentic is in principle the legatee. By exception, the universal legatee who obtained the possession or got into the immediate possession of the inheriting assets benefits from the relative presumption regarding the will authenticity. This presumption does not apply if the will proves at a certain point to have a suspect character.

4. Holograph will within the Romanian Civil Code Project (2004) The Civil Code Project regards holograph will as a type of ordinary will, together with the authentic one. Thus, it can be noticed that the mystic will has been left aside de lege ferenda, as a result of being one of the least used testamentary forms in Romania. Under the sanction of absolute invalidity, a holograph will must be exclusively written, dated and signed in the testator’s hand. Therefore, the Civil Code Project, just like the current regulation within the field, acknowledges the validity of a holograph will only if it is handwritten, signed and dated by the testator. Just like within the lege lata, the sanction for not abiding by these formalities is the absolute invalidity of the testator’s last will. Before its execution, a holograph will must be presented to the notary public office in the territory where the inheritance was opened. The notary public will acknowledge immediately the opening of the will and its form, by an official report, and then will deposit the will within the hereditary file. Everyone entitled can receive a legalized copy of the holograph will. At the end of the hereditary procedure, the original will is handed in to the legatees, in the way they have agreed. After analyzing the provisions of the Civil Code Project, it can be

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Knowledge Based Organization 2008 International Conference noticed that there isn’t anything new in the holograph will field. Yet, we consider that, de lege ferenda, the will in general and the holograph one in particular, should be more thoroughly regulated, so that law makers can provide solutions to a larger diversity of practical circumstances and the freedom of jurisprudence and juridical doctrine is limited as much as possible, since they have provided unsuited solutions in various concrete situations. We are aware that law makers will never be able to regulate a juridical institution in an exhaustive manner, and yet, we believe that the brief regulations at the basis of a juridical institution so frequently resorted to by law subjects (the will) are not fit.

5. Conclusions As a result of its countless advantages, the holograph will represents the most frequent testamentary form, both in Romania and France. Moreover, the juridical doctrine has come up with solutions for diminishing and even removing the disadvantages that such a testamentary form has. Therefore, the testator interested in drawing up his last will in the form of a certificate under private signature can request advice from a notary public, so that he diminishes and even eliminates the risk of some ambiguous clauses which may need to be interpreted. Another risk is that the holograph will could be falsified, lost or destroyed. This inconvenient can be put aside if the testator entrusts the holograph will, after drafting it, to a notary public. The fact of resorting to the notary public’s services does not abolish the character of document under private signature of the will, which does not become an authentic document. Both in the Romanian law and the French one, a holograph will has to completely meet all the three conditions of form in order to exist (it must be written, signed and dated in the testator’s hand); we can therefore speak about an identical regulation of the subject debated in the two countries. Yet, it can be noticed that the national juridical doctrine and jurisprudence are more involved than the French ones in finding

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Knowledge Based Organization 2008 International Conference suitable solutions for a great diversity of practical circumstances for which there is no express regulation. In Romania, the regulations de lege lata within the field of holograph will are actually the same within the Civil Code Project (2004). Our reproach made to the current legislation and the authors of the Civil Code Project is that they have not offered more thorough regulations regarding the character of the holograph will – so frequently resorted to – so as to eliminate the contradictory solutions that jurisprudence and doctrine have provided in various circumstances. We are aware that the field in question cannot be exhaustively regulated, but we hope that, at least de lege ferenda, it will benefit from more complex regulations in the future.

References [1] Adam I., Rusu A., Drept civil. Succesiuni, Bucharest, All Beck Publ. House, 2003. [2] Bacaci Al., Comăniţă Gh., Drept civil. Succesiunile, Bucharest, C.H. Beck Publ. House, 2006. [3] Cantacuzino M.B., Elementele dreptului civil, Bucharest, All Educational Publ. House, 1998. [4] Cărpenaru St., Dreptul de moştenire, in Fr. Deak, St. Cărpenaru, Drept civil. Contracte speciale. Dreptul de autor. Dreptul de moştenire, Bucharest University, 1983. [5] Chirică D., Drept civil. Succesiuni, Bucharest, Lumina Lex Publ. House, 1996. [6] Deak Fr., Tratat de drept succesoral, edition 2, brought up to date and completed, Bucharest,Universul Juridic Publ. House, 2002. [7] Eliescu M., Moştenirea şi devoluţiunea ei în dreptul R.S.R., Ed. Academiei Publ. House, 1966. [8] Hamangiu C. et al, Tratat de drept civil român, Bucharest, 1929. [9] Macovei D., Drept civil. Succesiuni, Iaşi, “Chemarea” Publ. House, 1993. [10] Malaurie Ph., Aynès L., Droit civil. Les successions. Les libéralités, edition 3, Lefrénois Publ. House, 2008. [11] Safta-Romano E., Dreptul de moştenire, Iaşi, Grafix Publ. House, 1995. [12] Stătescu C., Drept civil. Contractul de transport. Drepturile de creaţie intelectuală. Succesiunile, Bucharest, Editura Didactică şi Pedagogică, 1967.

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A NEW VISION ON THE ISSUES OF CRIMINAL LAW

Asst.Prof. Ivan Gheorghe, PhD

“Dunărea de Jos” University, Galaţi [email protected]

Abstract By the force the community acts impose themselves to the member states of the European Union (E.U.), they represent real direct issues of law, including national criminal law. Therefore, it is required a new revision of the point of view – still in the majority – according to which the national Constitutions are by their nature superior to other judicial norms, and the assertion of the idea that on top of the pyramid of national law issues, other judicial norms appeared: community norms (written or unwritten – the principles). This geometric scheme would be incomplete if it wouldn’t be admitted that also the community jurisprudence represents an essential law issue, being superior to the other national law issues, even if we would depart from the national rule according to which “the judge does not create the law but applies the law”.

Keywords: community legislation, priority principle, issues of criminal law, issues of community law, community judicial norm.

1. Problems Since 1st of January 2007, the date of Romania’s adhesion to the European Union, a new problem has raised in judicial thinking, that of the penal implications of the integration in the European Union. For the beginning, the following problem is raised: does the community legislation represent a direct issue of criminal law or does legislation represent a direct issue of criminal law or does it represent only an indirect one, meaning that on the grounds and execution of the obligations, our state has to adopt its own criminal law norms.

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Although at the first sight, we are tempted to seek the answer in the dispositions of Art. 73, paragraph (3), letter h) from the Constitution of Romania, according to which by organic law, “offences, punishments and their regime of execution” is regularized, the situation is not so simple.

2. Community legislation As it is well known, the community legislation contains two normative acts: original legislation or primary legislation and derived legislation or secondary legislation. Original legislation includes the treaties of the Community with all subsequently modifications and amendments and represents a real constitutional corpus juris. Derived legislation includes all acts adopted by community institutions: regulation, directives, decisions, orders and recommendations.

3. Romanian constitutional dispositions In our analysis, we also have to take into consideration the dispositions of Art. 148, paragraph (2) from the Constitution of Romania, that states: “as a consequence of adhesion, provisions of the constitutive treaties of E.U., as well as the other mandatory community regulations have priority to the contrary dispositions from internal rules, respecting provisions of the adhesion act”. Thus, in vision of the constitutional legislator, the community acts are prior, but only to the contrary acts from the internal laws. On these terms, we could talk about a limitation of the European integration, certainly with the condition of making a distinction between the regime of the primary community law and the derived one.

4. Priority principle From the interpretation of The Court of Justice of the European Community (C.J.E.C.) – that is the authentic interpretation of community law, according to Art. 234 from the Treaty establishing the European Community, consolidated version of the Treaty establishing

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Knowledge Based Organization 2008 International Conference the European Community (T.E.C.)1 – it results that the treaties set up their own judicial order that is integrated in the judicial systems of the member states and that impose to the jurisdictional bodies of internal law.2 This interpretation was the basis of proclaiming the supremacy (priority) of the community law on national law. This principle was settled by C.J.E.C. in two basic decisions.3 Thus, it is about one of the three fundamental principles of the community law: priority of the community norms,4 notion that is to be subsequently developed by C.J.E.C., firmly stating that the national judge in-charged to apply, within its competence, the dispositions of community law, has the right to ensure fulfillment of full effect of these norms, leaving unapplied any contrary disposition of the national legislation, even subsequently, in need and on its own responsibility, without requiring or waiting for its previous elimination by legislative way or any other constitutional procedure.5 Principle of priority refers to all issues of community law (treaty,

1 Published in “Journal Officiel des Communautes Europeennes” C 321E from 29th of December 2006. 2 C.J.E.C., Decision from 15th of July 1964, Flaminio Costa against E.N.E.L., cause C-6/64 in “Recueil …”, French edition, p.01141; C.J.E.C., Decision from 13th of November 1964, Commission de la Communaute economique europeene against Grand-Duche de Luxemburg et Royaume de Belgique, reunited causes C-90/63 and C-91/63, in “Recueil …”, French edition, p.01217. 3 Decision from 15th of July 1964, Flaminio Costa against E.N.E.L., cause C-6/64, supra quoted; C.J.E.C., Decision from 5th of February 1963, NV Algemene Transport – en Expeditie Onderneming van Gend&Loos against Administration fiscale neerlandaise, cause C-26/62, in “Recueil …”, French edition, p.00003. 4 The other two are immediate applicability and direct effect. Regarding these, we have to mention that the disposition from para.(2), Art. 148 from Constitution of Romania does not mention anything but the priority of community law against Romanian internal law, under the conditions resulted from the adhesion act, without emphasizing its direct and immediate applicability; we think that this omission from the constitutional legislator represents his wish not to yield too easily to the super-state community structure. But, as the authors of constitutional law declared, it is hard to imagine that due to the express mentioning, in the revised Constitution, only of the priority of community law against internal law, the other special effects of community law (direct and immediate application) would not be acknowledged in the Romanian law (M. Constantinescu, A. Iorgovan, I. Muraru, E. S. Tanasescu, Revised Constitution of Romania. Commentaries and explanations, Bucharest, All Beck Publishing House, 2004, p.333). 5 C.J.E.C., Decision from 9th of March 1978, Administration des financees de l’Etat against Societe anonyme Simmenthal, cause C-106/77, in “Recueil…”, 1978, p.00629. 254

Knowledge Based Organization 2008 International Conference regulation, directive, decision, recommendation, order), thus, they have a judicial force superior to the national norms. Internal law of all member states must be in full compliance with community law, irrespective of internal hierarchy of the norms. Priority (prevalence) of community law must be applied even on the constitutional or penal national provisions.1

5. Contrary dispositions from internal laws In our law, it hasn’t been raised such problems and neither has they tried to define the notion of “contrary dispositions from internal laws”, to appreciate when the provisions of the E.U. constitutive treaties are prior, as well as the other mandatory community regulations, according to Art. 148, para (2) from the Constitution of Romania. It seems that the constitutional dispositions are prior to E.U. law, either primary or derived.2 We have reserves towards this because community law is prior in all its elements, no matter if the constitutional dispositions refer to them or not.3

6. Community acts – direct issues of criminal law Undoubtedly, we can state that all community acts represent direct issues of criminal law – substantial and procedural – on the grounds of priority principle, without being necessary adoption of national norms. Studying of this problem is at the beginning, the Romanian doctrine not pronouncing yet for this aspect,4 with one exception where it has

1 O. Manolache, Community law, Bucharest, 4th edition, Publishing House All Beck, 2003, p.67; A. Fuerea, Guidebook of European Union, 3rd edition, Bucharest, Judicial Universe Publishing House, 2006, p.173. 2 J. Tricot, L’integration europeene et le droit penal francais, in “L’integration penale indirecte”, Sous la direction de G. Giudicelli – Delage et St. Manacorda, Coordination de J. Tricot, Societe de legislation compare, Paris, 2005, p. 281. 3 For the future, it must be revised the majority point of view according to which the Constitution is, by its nature, superior to other judicial norms for which it establishes their nature. 4 C. Bulai, B. N. Bulai, Guidebook of criminal law. General part. Bucharest, Publishing House: Judicial Universe, 2007, p.75-84 (the authors emphasize that the treaties and conventions by which the Romanian state pledged itself to stop some certain dangerous acts for the entire humanity (the so called delicta juris gentium) represent indirectly issues of criminal law, meaning that on the basis and execution of international obligations assumed by them, our state adopts its own norms of criminal law, for stopping the respective acts; however, the treaties, conventions regarding international judicial assistance of criminal 255

Knowledge Based Organization 2008 International Conference been expressed that community regulations represent direct issues of law.1 Though, it could be sustained now that community legislation cannot include norms of incrimination, because the principle of legality (provided in Art. 15 para(2) from the Constitution of Romania2) objects, or the principle of legality of incrimination and punishment provided in Art. 2 from the Romanian Penal Code3 (Art. 2 from the New Penal Code4 and Art. 2 from the project of Penal Code of Ministry of Justice5), where it is established that only “state” law creates the penal illicit; nevertheless, it can contribute, as any other indirect normative issue, to description of the incriminated deed (fattispecie), by a mention provided in the national law.6 Thus, a direct influence can be noticed when community legislation interferes with criminal law regarding the way of description of the

matter represent direct issues of criminal law concerning conditions for requiring such assistance); C. Bulai, Guidebook of criminal law. General part. Bucharest, Publishing House: Judicial Universe, 2007, pp. 67-72; C. Mitrache, Cr. Mitrache, Romanian criminal law. General part. Bucharest, Publishing House: Judicial Universe, 2007, pp. 48-56 (the authors add to the direct issues of Romanian criminal law the international treaties regarding human rights, ratified by Romania, because they have priority of application to internal laws, excepting when the Constitution or internal laws contain more favorable dispositions, as it is mentioned in dispositions of Art. 20 from the Constitution of Romania); N. Giurgiu, General criminal law: doctrine, legislation, jurisprudence, Iasi, CDRMO Publishing House, 2005, p.20; F. Streteanu, Criminal law. General part, Bucharest, Rosetti Publishing House, 2003, pp. 115-117 (the author shows that nowadays, international issues do never have the form of some norms of incrimination, but the situation can be changed in the near future, when within E.U. it is possible to be developed a community criminal law characterized by some proper texts of incrimination, beside the norms of assistance in criminal matter); I. Neagu, Criminal procedural law. General part, Treaty, vol.I, Bucharest, Global Lex Publishing House, 2006, pp. 50-53). 1 Gh. Ivan, Criminal Law. General part, Bucharest, C.H.Beck, 2008, p. 13; Gh. Ivan, Community law as issue of criminal law, Magazine of criminal law, No. 2, Bucharest 2008, p. 93. 2 Paragraph (2) of Art. 15 stipulates: “Law decides only for future, excepting more favorable criminal or contraventional law”. 3 Art. 2 disposes: “Law provides which acts are offences, the punishments that are applied to offenders and measures that can be taken if they occur”. 4 “Official Journal of Romania”, Part I, No. 575 from 29th of June 2004. The Code is coming into force on 1st of September 2009, certainly if there would not be other postponements of its entrance into force and if it is not abrogated as they intend to, at present. 5 Offered to the public on 2nd of March 2007, by internet, the site of Ministry of Justice, http://www.just.ro. 6 In this respect, G. Fiandaca, E. Musco, Diritto penale. Parte Generale, Bologna, Zanichelli editore, 2001, pp. 61-62. 256

Knowledge Based Organization 2008 International Conference forbidden act by law, the norm from community law becoming a technical norm and contributing to clarification of the respective incrimination. For example, community dispositions regarding the competition, inevitably will serve as technical norms for clarification of the notion of disloyal competition, even if the national criminal law does not explicitly send to the community provisions. Likewise, it was admitted that exercising of a right acknowledged by community legislation can represent a justified cause meant to eliminate the offence provided in internal law1; we take into consideration, for example, dispositions of Art. 52 and 57 from the Treaty establishing the European Economic Community (T.E.E.C) and of Art.7 from Directive No. 2004/38/EC from 29th of April 2004 regarding freedom of establishment2, that removes incidence of Art. 281 from the Romanian Criminal Code (regarding infringement of exercising a profession with no right), if our internal law requires to an E.U. citizen to get an authorization for exercising his profession or another activity.

7. Principles of Community Law General principles of community law are precious direct issues of criminal law, initiated and formulated by C.J.E.C. in its decisions. Having the same rank as the treaties from the hierarchy of community law issues, they are mandatory both for community institutions and for the member states of E.U. Among these, we mention: principle of immediate applicability; principle of supremacy (priority) of the community law; principle of the direct effect; principle of legalizing the punishments; principle of proper interpretation in criminal matter; principle of proportionality; principle of retroactive application of a lighter punishment; principle of life protection; “non bis in idem” principle; principle of obeying the right of defense; guiltlessness presumption, principle of the right to an equitable process; “nulla poena sine culpa” principle; usage of native language.

1 G. Fiandaca, E. Musco, quoted work, pp. 61-62; G. Stefani, G.Levasseur, B.Bouloc, Droit penal general, Dalloz, Paris, 1997, pp. 98-103; the authors emphasize that community regulations are mandatory and have priority to internal criminal regulations, being able to stop the application of the latter ones. 2 Published in “Journal official des Communitautes Europeenes”, L 158 from 30th of April 2004. 257

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8. Community Jurisprudence As an exception from the rule according to which “the judge does not create the law but applies the law”, jurisprudence of C.J.E.C. constitutes a real issue of community law, including the national criminal law. Step by step, C.J.E.C. has formed a coherent jurisprudence succeeding to impose de facto both to its own subsequent decisions and to solutions of national magistrates. It is considered that community instance has a quasi-normative position and its jurisprudence is an essential issue of law because in different problems, C.J.E.C. completes and specifies dispositions of legislation in force, simultaneously with insurance of their oobservance.1. In this respect, C.J.E.C. stated that “in absence of some dispositions from the Treaty that regulate expressly and precisely the consequences of infringing community law by the member states, the Court has the right to ensure observance of the law to interpretation and application of the Treaty, according to exercising of the mission it has been bound by Art. 164 from the Treaty, to decide on such problems according to the generally accepted methods of interpretation, especially appealing to the fundamental principles of community judicial system, and if it is the case, to the general principles commune to the judicial systems from the member states”.2

9. Community Agreements We cannot finish this subject without emphasizing that legislation, principles and community jurisprudence exhaust the direct issues of national criminal law. Thus, according to Art. 300 paragraph 7, T.E.E.C., agreements concluded by European Communities with one or more third states or with international organizations “connect the community institutions with member states”. This normative disposition implies the fact that community agreements interfere in the judicial community order and constitutes issues of community law. In this respect, C.J.E.C. stated that

1 L. Cartou, Communautes Europeennes, dalloz, 1991, p. 120. 2 C.J.E.C., Decision from 5th of March 1996, Brasserie du pecheur SA against Bundesrepublik Deutchland et The Queen against Secretary of State for Transport, ex parte: Factortame Ltd. E.a., reunited causes C-46/93 and C-48/93 on our site: www.eur-lex.europa.eu. 258

Knowledge Based Organization 2008 International Conference dispositions of an agreement are integral part, starting with its entering into force, from the judicial community order.1 Thus, in contrast to the other international treaties, the community agreements constitute issues of internal law, even if they were not ratified by the Parliament of Romania, thus derogating from the dispositions of Constitution that stipulates that only “the treaties ratified by the Parliament, according to law, belong to internal law” [Art. 11, paragraph (2)]. Community agreements have direct effect and can offer to natural and judicial persons the right to them in justice. Sometime, C.J.E.C. mentioned the fact that “a disposition of an agreement concluded between the Community and third states must be considered directly applicable, taking into consideration conditions, object and nature of the agreement, if the agreement contains a clear and precise obligation that is not subordinated, for its execution or effects to intervention of any subsequent act”2 in other words, it is conferred to the citizens of member states of E.U. the right to invoke provisions of community agreements before the national instances. Agreements concluded by the European Community occupies in judicial community law an inferior place to the constitutive treaties, but superior to the derived law.3 The regime applicable to the agreements concluded by the European Community is the same for the acts adopted by the bodies created by these agreements. Several agreements concluded by the Community and especially European agreements of association or cooperation institute bodies to whom they offer a power of decision.4

1 C.J.E.C., Decision from 30th of April 1974, R. & V. Haegeman against Etat belge, cause C- 181/73, in “Recueil …”, 1974, p. 00449. 2 C.J.E.C., Decision from 30th of September 1987, Meryem Demirel against Ville de Schwabisch Gmund, cause C-12/86, in “Recueil …”, 1987, p.03719 (it is about dispositions of Agreement of Association between European Economic Community and Turkey regarding free movement of workers). 3 A. Fuerea, quoted work, p. 156. 4 ibidem, p. 157. 259

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INTERNATIONAL ORGANIZATIONS IN THE FIGHT AGAINST ORGANIZED CRIME

Asst.Prof. Magherescu Delia, PhD

“Constantin Brâncuşi” University, Tirgu-Jiu [email protected]

Abstract In this paper, having as topic fighting against organized crime, as transnational phenomenon, I would like to present the most important international organizations which have made huge efforts in order to combat it. There are many organizations that contribute to the juridical order in whole the world and also to respect, in particular, the international society and its values. Well-known organizations such as the Organization of United Nations, Council of Europe, North Atlantic Treaty Organization, Organization for Security and Cooperation in Europe, European Union and G 8 give an overview of the diverse conventions and treaties related to organized crime. These conventions aim to control various forms of serious crimes by coordinated international action. Also, these provide comprehensive measures against drug trafficking, to which the provisions against money laundering and also the trafficking in human beings, illicit trade in small arms and light weapons can be added. As well as, it is very important how these organizations cooperate in order to implement all of the adopted rules. Moreover, international cooperation in criminal matter, including the international cooperation in preventing and combating trafficking in persons and other forms is relevant relating to the activities of organizations.

Keywords: international organizations, organized crime, cooperation in criminal matter, serious crime.

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General regards Although it is a matter of topicality, organized crime has concerned international organisms for a long time. The more and more intense development of anti-social relations with the object of serious crimes in the category of organized crime, has concerned more and more the juridical and political environments at national and regional (European) level, in increasing the “Action plan” for decreasing and fighting the phenomenon as much as possible. It is well known that, the intensification of the fight against organized crime has appeared on the more pregnant background of the extension of these bodies collaboration. The European Union extension towards East and South-East has caused juridical effects regarding the increase of the antisocial actions development danger, which influences the European construction, be it known that in the Eastern part of the continent, an unfortunate increase of this phenomenon has occurred. Moreover, an intense collaboration between European authorities and national ones, both in member states and in neighbouring countries, non-member of the European Union, is justified. These are in general, the main directions for developing the proposed subject.

International bodies responsible for fighting against organized crime Legal framework The occurrence and development of organized crime, at the international level, has been a successive and perpetual process. We cannot say for sure which is the source or the spring of the phenomenon birth, but, we can say for sure the fact that they are uniform, nor from the point of view of constitutive elements neither from the point of view of territoriality. This is why, the number one priority of international forums has been dealing mainly with those “hot areas” in the matter of organized crime. To put it in other words, these bodies have focused their attention mainly on the regions with the highest risk from the point of view of organized crime development danger intensity. At the same time, other regions of the world, less affected by the

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Knowledge Based Organization 2008 International Conference phenomenon of organized crime, have not been neglected either. This is why, for example, if the at level of Europe, the highest danger is in the Balkan Peninsula, and at the same time in the East of Europe, the Western Europe has also been protected against organized crime and has enjoyed the concern of European authorities to create some mechanisms for protecting the society, in general, of the unwanted effects of serious crimes. This happens because, from the danger point of view, strategies have brought a substantial insurance for the European Union financial interests, for example. Social transformations occurred lately (the end of the 20th century up to now) clearly indicate that new mechanisms are necessary, for intensifying the fight against organized crime. A tighter cooperation between international forums and national authorities has also been required. More than that, a need of collaboration in many fields of activity has also been very necessary, especially regarding the penal justice, internal affairs and juridical cooperation in penal matter. The juridical framework established hereof, has indicated that this desiderate has become reality. Not just the intense efforts of international partnership have made it possible, but the ideological struggle as well. Not less than six international institutions and organisms or established at European level have worked together for reducing the risk of social transformation, in the negative sense, due to the intensification and development of organized crime. Institutions like: UN, EUROPE COUNCIL, NATO, OSCE, European Union and G8 have dedicated part of their activity to the fight against this plague. This is the purpose of this study, namely highlighting the main field of activity of these organisms, with a special look upon strategies, organized anti-criminality. The United Nations Office for Drugs and Crimes (UNDC), within UN, gives us an overview on the various conventions and treaties regarding organized crime [1]. But the attention of UN has not focused just upon the actual phenomenon, but upon the most sensitive sides of serious crimes, like corruption and terrorism, and even, in detail, on categories of organized crime offences (drugs and people trade, smuggling, and money laundry), all of them under transnational aspect [2].

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The conclusion of the Protocol against illicit manufacturing and fire guns trade in 2001 appeared on the more and more pregnant background of the development of these types of serious crimes. According to the United Nations, Europe and Interpol statistics, the market of drugs trade holds the 2nd spot in the world, after the guns trade. Beyond the studies carried upon the most serious forms of organized crime offences, is the interest upon the control of this criminal activity field, materialized in configuring the legal framework for fighting it. For example, in 2000, the United Nations Convention was signed against transnational organized crime, followed by several protocols [3]. At the same time, the Protocol against smuggling and migration on the land, sea and in the air was also signed. The activity of the Safety Council is remarkable. This has not been based just on adopting documents in matter of organized crime, reason why there are no resolutions of this body, especially in the matter of organized crime. As a new element, there is the activity of the General Meeting which, in 2006, increased international cooperation against the matter of drugs in the world [4] based on the results of the 11th Congress of United Nations for preventing criminality and criminal justice, as well as the impact of illicit production impact, transfer and circulation of small and light weapons and their excessive accumulation. Concerns for preventing and fighting against serious types of crimes existed long before the conclusion of these conventions and protocols, but I thought to discuss only actual ones reported to social changes they have causes in a positive meaning, of course. These have been the main considerations, making the relevant authorities of all states make great efforts for fighting against this phenomenon, with serious effects and causing deep social transformations, especially among young people. The organization has focused its attention on women and young women trade and upon preventing criminality and penal justice, as an answer to violence against women and young people [5] based on the principles and guide upon human rights and human trade – recommendations provided in United Nations High Commissioner for Human Rights (E/RES/2002/68/Add.1/20 May 2002).

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European specificity If at the international level, things are less peremptory, in my opinion, they are different in what the European safety in matter of organized crime is concerned. The extended activity of the European Council offers a comprehensive documentation of the notions and elements connected to the fight against organized crime (corruption, cybercrime, organized crime, money laundry, human trade). Beyond the nexus legal affairs – legal cooperation – economic crimes relation, in subsidiary, the publications of this organism are recommended. Among these, we shall discuss one of the latest and valuable documents, especially referring to organized crime. It is the „Cooperation against Crime: the Conventions of the Council of Europe and Combating Organized Crime – Best Practice Surveys of the Council of Europe”. The convention vocation on money laundry issues and confiscation of goods coming from crimes and for financing terrorism is really remarkable. That is why, the European Council has decided to update the Convention concluded in 1990, considering the fact that not just terrorism could be financed through criminal activities of money laundry, but through legal activities as well. Therefore, the new convention signed in 2005 is, in fact, the first international treaty, covering both the prevention, and the fight against money laundry and terrorism funds. Its text deepens the belief upon the fact that, the access to financial information or addressed information has been held by criminal organizations including terrorist groups, is the key of success for preventive and repressive measures and last, the best way to stop them. The Convention includes a proper mechanism, a prompt strategy of implementation by the parties of its provisions [6]. The long list of adopted normative acts continued with the execution, on 16th of May 2005, of the Convention regarding the action against human beings trade, which has proved to be a comprehensive approach, mainly based on protecting trade victims and complying with their rights. It has also been focused on trade prevention, as well as on investigating traders. This applies to all forms of trade, both at national and transnational level, even if it is related or not to organized crime. At

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Knowledge Based Organization 2008 International Conference the same time, the main target is represented by victims: women and children, with their exploitation forms: sexual exploitation, forced work, services etc. Moreover, this convention seeks to achieve an independent monitor mechanism for the parties’ guarantee in compliance with its provisions [7]. A special part in strengthening the legal framework favourable to organized crime fight is held by the execution on 23rd of November 2001, of the Convention on electronic crimes, with the main purpose of harmonizing the substantial penal elements of national crimes and related provisions in the field of economic criminality, as well as the national penal procedural law competence necessary for investigating and penal research of crimes from this category, as well as other crimes committed by systems of computers or proofs in electronic format in a rapid status and international. On the same side of the juridical framework configuration of fighting organized crime, is the no. 8 Recommendation of the Ministers of Member States, regarding The Aid of Criminality Victims (14 June 2006) [8]. Learned by all member states and adopted by the majority of non- member states in Europe, the recommendation has had a great impact on the legal framework favourable to the fight, initiated at European level, against trans-frontier criminality. At the same time, the Parliamentary Meeting of the European Council adopted the Resolution no. 1494 for stopping women trade signed on 12th of April 2006 and the Resolution no. 1492 regarding the fight against corruption (10th of April 2006) [9]. At the same time, Local and regional authorities Congress, as a consultative body, issues, among its official documents, recommendations and resolutions – acts with vocation in the field we are referring to [10]. We should mention that, among the reference documents in matter of organized crime, a special part is held by The Declaration regarding the fight against human beings trade signed on 8th of June 2006. This occurred on the more and more obvious background of the danger of developing serious crimes, like human beings trade, especially with women and children. It is well known that, besides these known forms of organized crime,

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Knowledge Based Organization 2008 International Conference some of them are included by these forms that have a high degree of social danger. Many times, relevant international organisms in their fight against organized crime, provided, in the content of adopted legislative documents, sanctioning juridical regulations for many of their forms (like for example organized crime and terrorism or organized crime and corruption), for fluidizing the make efficient the solving procedure of penal causes sent to trial, with the object of such crimes. And, not last, we take into consideration the harmonization of discovery and investigation procedures of organized crimes. Examples could go on in this direction, still, we have not proposed to detail normative acts with a content focusing on substantial aspects of the organized crime phenomenon, or to detail the notions referring to its approach way, at the institutional level. Moreover, we think that, from the doctrine point of view, experts’ views regarding organized crime, as a transnational phenomenon, are divided, and there is no agreement of opinions heading towards the legislative size of the matter. I think that these points of view tend to deepen even more the vocation of all international institutions and their competence in fighting against this plague. This because, not all the political forces, both international and regional, have shared a common point of view in cooperating in the fight against organized crime. This has other connotations, reason why we think that new fighting and control strategies are required in all the structures responsible in this matter.

Conclusions Regarding the aforementioned matters in this paper, I think that the most important thing is an efficient cooperation between responsible authorities, both at macro- (international), and micro- (national) level, because only in a well determined and implemented juridical framework, one could reach a positive result for both sides. It is true that results are more and more visible and promising, which supposes that we have often considered as being more advantageous for those these documents address to with international vocation, to promptly answer all daily challenges and make a contribution in compliance to current antisocial acts, that prove to be more and more subtle infiltrated in the civil society and hard to be discovered, unfortunately. Still, besides

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Knowledge Based Organization 2008 International Conference these objective appreciations, we have to notice the permanent efforts of these organisms.

References [1] Additional, it is recommended to see UN Multilateral Treaty Framework: An Invitation to Universal Participation – Focus 2003: Treaties against Transnational Organized Crime and Terrorism, UN, USA, 2003, available online: http://untreaty.un.org/English/TreatyEvent2003/index/htm [2] Delia Magherescu, New Aggravated Forms of Social Aggression – Dangers and Threats in „Challenges of the Knowledge Society”, Bucharest, 2008. [3] Protocol to Prevent, Suppress and Punish Trafficking in persons, especially women and children, Supplementing the UN Convention against Transnational Organized Crime, on Web site: http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf [4] Document no. A/RES/60/178 of 22 March 2006. [5] Resolution E/RES/2006/29/27 July 2006. [6] http://conventions.coe.int/Treaty/EN/Summaries/Html/198.htm [7] Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005. Available online at: http://conventions.coe.int/Treaty/EN/Summaries/Html/197.htm [8] The Declaration of Warsaw had the same aim with the Action plan, both signed on 17 May 2005, Recommendation – named „Special investigation techniques” concerned with the serious crimes including the acts of terrorism (20 April 2005); Recommendation no. 9 on the witnesses protection and the Justice cooperators (20 April 2005); Recommendation no. 10 on the special investigation of serious crimes including the acts of terrorism (20 April 2005); Recommendation no. 16 upon the protection of children against sexual exploitation (31 October 2001); Recommendation no. 11 on the principles – frame of fight against organized crime (19 September 2001). [9] Recommendation of Parliamentary Assembly no. 1695 on the Draft of Convention of the Council of Europe on the action against the trafficking in human beings (18 March 2005), Recommendation of Parliamentary Assembly no. 1610 on the illegal migration, trafficking of women and prostitution (25 iunie 2003), Recommendation of Parliamentary Assembly no. 1307 on the sexual exploitation of children: zero tolerance (27 September 2002), Recommendation of Parliamentary Assembly no. 1545 regarding the fight against trafficking of women (20 January 2002). [10] www.coe.int/t/congress

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ADNOTATIONS ABOUT THE EUROPEAN COURT OF HUMAN RIGHTS

Asst.Prof. Otovescu-Frăsie Cristina, PhD

University of Craiova

Abstract In this article, I presented informations about The European Court of Human Rights. For this purpose, I discussed about the procedure before the Court, the procedure of examination of admissibility, the procedure of examination of admissibility, the content examination procedure, the decisions.

Keywords: European Courts, human rights, Council of Europe

In present times, the protection and the promotion of human rights and of its fundamental liberties represent an important preoccupation for all the world’s states. The international protection of human rights, well-known as one of the objectives of the international law, was the object of the international juridical rules, since the forming of the humans’ right. But the whole assembly of those rules was regrouped in recent period, in an autonomic branch of international law. This one is also called “international human rights law”, but the name which is the most used, at least in French, is “the international protection of human rights” (“la protection internationale des droits de l'homme”), being understood that this protection may be exerced by juridical ways, by the international law institutions1. The Council of Europe was instituted on the 5th May 1949 by a

1 Thomas Buergenthal, Alexandre Kiss, La protection internationale des droits de l'homme, Editions N.P. Engel·Kehl·Strasbourg·Arlington, p.1 268

Knowledge Based Organization 2008 International Conference group of states, which considered that the edification of peace, when it is based upon justice and international cooperation, has a great importance in preserving human society and the values of civilization. These states were: Belgium, Denmark, France, Ireland, Italy, Luxemburg, Netherlands, Norway, Sweden and Great Britain. Any European state can become a member of Council of Europe conditioned by the acceptance of the principle of the supremacy of law and to guarantee the human rights and fundamental liberties for all the persons under its jurisdiction. The seat of the organization is in Strasbourg (France) and it has the following objectives: – the protection of human rights, the protection of pluralist democracy and of the supremacy of law; – promoting and encouraging the development of the identity and cultural diversity in Europe; – searching for solutions to the problems of the European societies (minorities discrimination, xenophobia, intolerance, environment protection, human cloning, A.I.D.S., drugs, organized crime etc.) – the development of the democratic stability in Europe by sustaining the political, legislative and constitutional reforms.1 The main purpose of the Council of Europe is to realize a greater unity between its members, by concluding agreements and adopting mutual actions (in the economic, social, cultural, scientifically, judicial and administrative domains) and by preserving the evolution of human rights and fundamental liberties.2 Although it is an organism for promotion of human rights and fundamental liberties and of democratic values generally, the Council of Europe also represents the institutional framework of intergovernmental cooperation in all domains of major interest in the European society: judicial cooperation, in the mass-media, education, culture, patrimony, youth problems and sport, social and economical problems, regional and local power and natural environment protection.

1 Cf. www.coe.int. 2 art. 1, The Statute of The Council of Europe. 269

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The Council of Europe has improved the mechanisms of control of the fundamental liberties respect, among which the European Convention of Human Rights. After the fall of communist regimes in Eastern Europe, the Council of Europe has had an important role in the process of reinforcing the new democracies from Central and Oriental Europe. Starting with 1990 they were lanced programs for help and assistance: Demosthenes, Themis, Lode, Demo-law. Their purpose is to give to the states from Central and Oriental Europe assistance and an expertise for adopting the internal reforms (elaboration of a new Constitution, the reform of the penal law, adaptation of the national legislation to the exigencies of the European Convention of human rights) and for preparing an adhesion to the Council of Europe.1 The official languages of the Council of Europe are English and French, but the Parliamentary Assembly uses also the German, Italian and Russian, as working languages. By the activity of the Council of Europe, European conventions and accords which represent the basis of the modifications and of the legislative harmonization in the state-members are elaborated. Romania became a member of the Council of Europe on the 28th September 1993. The Council of Europe organizes periodically conferences for the ministers specializing in different domains: justice, education, health, environment culture, youth, sport etc. Within these conferences, the major sector problems are analyzed and permanent contacts between the profile ministries and the state- members are facilitated. They develop cooperation projects and propose activities for the working program of the Council of Europe. The European Convention on Human Rights was founded 4 November 1950, and it was applied at 3 September 1953. It includes different rights and liberties, such as: the right to life; the right not to be tortured, punished or inhumanely treated; the right to freedom and to security of the person; the right to a fair trial; the right to respect for private life and family life, of the residence and of the mail; the right to the freedom of mind, of conscience and of religion; the right to the

1 H. W. Renout, Institutions Européennes, Centre de Publications Universitaires, Paris, 2000, pp. 80-81. 270

Knowledge Based Organization 2008 International Conference freedom of expression; the right to education; the right to marriage etc. Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12** and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. Protocol No. 11 restructured the enforcement machinery (see below). The remaining Protocols concerned the organisation of and procedure before the Convention institutions. From 1980 onwards, the steady growth in the number of cases brought before the Convention institutions made it increasingly difficult to keep the length of proceedings within acceptable limits. The problem was aggravated by the accession of new Contracting States from 1990. The number of applications registered annually with the Commission increased from 404 in 1981 to 4,750 in 1997. By that year, the number of unregistered or provisional files opened each year in the Commission had risen to over 12,000. The Court’s statistics reflected a similar story, with the number of cases referred annually rising from 7 in 1981 to 119 in 1997. The increasing case-load prompted a lengthy debate on the necessity for a reform of the Convention supervisory machinery, resulting in the adoption of Protocol No. 11 to the Convention. The aim was to simplify the structure with a view to shortening the length of proceedings while strengthening the judicial character of the system by making it fully compulsory and abolishing the Committee of Ministers’ adjudicative role. Protocol No. 11, which came into force on 1 November 1998, replaced the existing, part-time Court and Commission by a single, full-time Court. For a transitional period of one year (until 31 October 1999) the Commission continued to deal with the cases which it had previously declared admissible1. The European Court of Human Rights is the mechanism for application of the stipulations from the European Convention on Human Rights. The Court is formed by a number of judges, equal to the number of participant states in the Convention, and it must resolve

1 www.echr.coe.int 271

Knowledge Based Organization 2008 International Conference the addressed complaints. The judges are elected every six years by the Parliamentary meeting of The Council of Europe, and acts individually, without representing any state. The Court elects, in its plenum, the President and two vice-presidents for a period of three years. According to its Regulation, the Court is formed by 4 sections, whose membership (established for 3 years) must be equal, both from geographical point of view, and regarding the number of men and women, taking into consideration the different judicial systems of the states. Each section is chaired by a president, two of the section presidents being, at the same time, vice-presidents of the Court. The section presidents are helped, and if needed, replaced by the vice- presidents of the section. – The Court is formed by the following bodies: – The Plenary meeting of the Court: – The Court’s Committees; – The Court’s Chambers; – The Great Chamber. The committees are formed by three judges who belong to the same section, for a period of 12 months, by rotation of the members of every section, other than the president. Each committee is chaired by the member who has the highest rank within the section. The Chambers (formed by seven judges) are constituted in every section, based on the rotation system, the president of the section and the judge, elected on behalf of the interested state, rightfully participating. If the elected judge on behalf of the interested state is not a member of the section, he participates as a rightful member of the Chamber. The members of the section who are not members with full rights in the Chamber, participate as alternate members. The Great Chamber is formed by 17 judges and 3 alternate judges elected for 3 years. In the Great Chamber are included the president and the vice-president of the Court, as well as the presidents of the sections. To complete the Great Chamber, the Court, reunited in plenum, assigns all the other judges in two groups, according to the proposal of the president, this one alternating every 9 months. The judges and the alternate judges, called to meet all the causes sent to

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Knowledge Based Organization 2008 International Conference the Great Chamber during each 9 months, are elected by rotation within every group, being members until the end of the procedure, even though their warrant as judge stops.

The procedure before the Court Every contracting state (state request) or private person who thinks he is the victim of a violation of the Convention (individual request) can directly address to the Court from Strasbourg a demand, invoking the violation by a contracting state of one of the rights guaranteed by the Convention. The procedure before the European Court of Human Rights is adversarial and public. The hearings are public unless the Chamber decides otherwise for some exceptional circumstances, either by itself, or at demand on the part of any interested person. The memoirs and other documents sent at the Court clerk’s office by the parties are available to the public. The official languages of the Court are French and English, but the requests can be written in one of the official languages of the parties, in case they are not written in one of the official languages of the Court.

The procedure of examination of admissibility The conditions of admissibility of the requests sent to the European Court of Human Rights are mentioned in the Convention. Therefore, there are general conditions (regarding the individual demands as well as the state demands), and special conditions (regarding only the individual demands). The Court can be informed through a request by any person, any non-governmental organization or any group of private persons who consider themselves victims of a violation of the rights recognized by the Convention or by its Protocols. Every individual demand is assigned to a section, whose president names a protractor. After the preliminary examination of the case, the protractor decides if it needs examination either by a 3 member committee or by a Chamber. The Court can only be notified when all the other internal recourse options are eliminated and within a 6

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Knowledge Based Organization 2008 International Conference month term, starting with the date of the final internal decision. The individual demand is not taken into consideration by the Court in cases where it is anonymous, or it has been previously examined by the Court, or submitted to a new international investigation or settlement institution, and if it doesn’t contain new evidence. The Court declares the individual request rejected if it is not compatible with the decisions of the Convention or its Protocols, and if it doesn’t have a solid base or is abusive.

The content examination procedure After the Chamber decides to admit the request, the involved parties are called to add supplementary evidence and written observations. According to the Convention, after a request has been declared admissible, the Court continues the contradictory examination of the cause with the representatives of the involved parties and, if necessary, an investigation is requested for whose efficiency the involved states must provide all the necessary facilities.

The decisions The Chambers make decisions by majority of votes. Each judge who participated in the examination of a certain case can attach to the decision either his separate opinion or a declaration of disapproval. The decision of the Chamber becomes permanent when the 3 month period ends, or before it, if the parties declare that they don’t have the intention to form an appeal at the Great Chamber or if the 5 judges college rejected such a request. All the permanent decisions of the European Court of Human Rights are compulsory for the involved states.

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FEMININE CRIMINALITY

Asst.Prof. Stănescu Amelia, PhD

“Spiru Haret” University, Constanţa

Abstract The present work proposes to present some aspects characteristic to feminine criminality referring directly to the real cases from Romania, analysed by the ex-Chief Police Inspector, Traian Tandin. The causes of the feminine criminality in Romania indicate a personal fingerprint of the geographic space and a manner of doing the act which verges on absurdity and hilarity. Within the actual Romanian social-cultural context, approximately a world à rebours, the existent criminal cases do not surprise anybody. Maybe only a harsh fight with this dirty world could reduce the criminality rate and would change the people’s opinion about justice.

Keywords: feminine criminality, victims, social problems

In modern world, especially in the last decades, it has been found out a growth in feminine criminality every year, with 10-15%. A statistics published by the World Health Organization, concerning the feminine criminality at global level, shows shocking data. Although the phenomenon spreads all over the countries, it seems that American women are considered “the most criminal in the world” [1]. The Swedish psychologist Oskar Wije-Anderson, from Upsala University, revealed, following the made researches, that in the last decade of the 20th century the feminine criminality rate grew with 63% towards the last decade (1980-1990). The main cause of this recrudescence is explained by Oskar Wije-Anderson as follows: “Everything begins from the education received by the children. From the intellectual point of view, there are no differences between men

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Knowledge Based Organization 2008 International Conference and women, but the physical differences are big enough. The cinema, in its impetuous enthusiasm, presents many times the women with a physical condition at least equal to that of man, but having an ability in fighting which in most of the cases is superior to that of their partners. In fact, these aspects have the mission to influence in a negative way the specific feminine behaviour. Unfortunately, because of their bigger confidence in themselves, many women become delinquents or, which is a sadder thing, they become victims of their own actions.” [2] Traian Tandin, ex-Judicial Police Commissary and author of more than 60 volumes about famous penal cases, adds to the cause mentioned above the personality disorders, psychic labilities, psychopaties, alcoholism, drug consumption, menstrual period, egocentric tendencies, sexual deficiencies, family violence, greed, dromomania, kleptomania, justiciary “aura”, jealousy, lack of education [3] and all those bad things which are on the watch and endanger the human being in its complexity and which, uncontrolled, exacerbated, can never be prevented. It is also thought that the transition itself would emphasize this fact, emancipation, accelerated modernization. Scarcity of money, poverty, unemployment, the repeated beatings which women get at home determine some of them to revenge themselves in the most possible violent way: to kill that person considered guilty in cold blood. It is true that the absence of a certain level of civilization, culture and minimum education made the victims of domestic violence and repeated infidelities to avoid help from Police Organs which would interfere in time and thus would avoid blamable actions. The mentality of most of the women, and here I refer to Romanian women, especially coming from the countryside, is a rudimentary one. And do not forget the old saying which I literally assimilate: what is man doing with his hand is the best for him... Primitive are also the revengeful methods to which they resort [4]: the crime tool is in most of the cases the axe. At other times, are used the knife, the pitch fork, the adze. The incineration of the body in the courtyard or in the stove “successfully” close the settlement of the problem. Post factum “justifications” of delinquents seem to be a part of a fiction literature

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Knowledge Based Organization 2008 International Conference which verges on absurdity: “she killed her ex-husband because he drank her bottle of vodka” and [5], she killed him because he called her a “cow” [6], “she killed her husband because he refused to come to eat” [7], “she killed her daughter because she didn’t want to prostitute herself” [8] a.s.o.

How and why the victims take the law into their own hands thus becoming delinquents For criminal women the dictum “Nobody is above the law” seem not to function. It is true that most of them come from the victims (constantly domestic victims). They prefer to revenge themselves. Why? J. Pinatel, in La société criminogène asserts that: “American research showed that in 58% of the cases the victims did not inform the Police because they estimated that the latter would be helpless, or did not want to bother it, or the tracking down of the criminal would not have been successful”. [9] How they revenge and what are the causes which determine them to come to action? “She murdered three drug dealers because her son have died of an drug overdose.” [10] – the case of LinMarie Grasee of 42 years old, from Beaumont (Texas, USA), who, within five months killed three drug dealers, shooting them in the head; “she broke her husband’s head because caught him pissing in the ... stove; [11] – the case of Margareta Ilie, 71 years old, from Caracal, Olt county, kills her husband (Marin Ilie, 78 years old) caught “in the act”, by hitting him many times in the head with the chair; she killed her husband – with whom she had “a happy marriage” – because she caught him in bed with another man [12] – the case Florina Florescu, 26 years old, from Bucharest, a graduate from the Faculty of Mathematics. On November 18, 1992, coming back home sooner, from a lesson which didn’t take place, Florina Florescu surprises Mihai making love with a man. She takes a big knife from the kitchen, pounces upon them and begins to hit at random ... Such examples are numerous. We will appeal to the issues which criminal aetiology tries to solve and we will try to notice why some women commit murders and other not, which would be the causes or the activating factors, where do we have to search for. The criminal

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Knowledge Based Organization 2008 International Conference behaviour may be looked as a response of personality towards a determined situation. We can place the aetiology of crime either in the delinquent’s personality, in pre-criminal situation or in the joint of the two elements. [13] We could also interpret this passing to the act of the criminal woman through the so called “neutralization technique” which consist in “sacrificing general social needs in exchange for those of a restraint social group”. [14] Thus, the fact of moving away from the rule is not made through rejecting it, but through the “priority given to the respect for other norms, which are considered more stressing or seem to ask for a superior level of loyalty”. [15] In the American sociologist’s interpretation, Howard S. Becker (it is about “the theory of engagement”), the individual commits a penal fact either because it is not sufficiently social integrated or he finds some “justifications” for his illegal acts. Another neutralization technique is represented by the situation in which the delinquent considers that the assault and battery he makes is right: aggressions against homosexuals, attacks against minorities, vandalism conceiveds as a revenge against the teacher or against the representative of the school administration who has not been “fair” etc. [16] Quetelet – Lambert Adolphe Jaques Quetelet (1796-1874), doctor in mathematics, the director of the Astronomic Observer from Bruxelles, was preoccupied with social problems and implicitly with those related to the criminal phenomenon – asserts the opinion according to which it is not the poverty that causes criminality, but rather “the discrepancy between material possibilities and the people’s needs, aspirations – germinal elements of the anomy theory , and then outlined by Durkheim and formulated later on by Merton. [17] As Quetelet, Guerry – Andre-Michel Guerry (1802-1866), jurist, the director of the department of penal statistics from the Ministry of Justice in France – finds that neither poverty nor school instruction have a direct influence upon criminality dynamics. [18] According to the theory of the French criminologist Gabriel Tarde (1843-1904) – founder of the Interpsychology School, that who laid

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Knowledge Based Organization 2008 International Conference the foundations of the French psycho-sociology and criminology –, human relationships are governed by a fundamental social fact: imitation. Thus, each individual “acts according to the common laws accepted by his environment” and, consequently, the criminal behaviour is also a copied behaviour. [19] We can explain in this way the reaction of many actual criminals. In the contemporary media outburst, the televisions and newspapers seem to compete in reproducing in detail the criminal examples which are watched by population with a wide interest. Dependant to rating, the televisions are justifying themselves artificially with the argument “we offer what is needed”, and not taking into consideration the abuse they are doing and that offer “examples” easy for all. To try a conclusion which didn’t propose to be conclusive or optimistic, I take into consideration two ideas: one of J. Pinatel: “criminality must be understood and analyzed not through itself, but always related to a culture determined in time and space” and another idea of Alexandre Lacassagne (1843-1924) – professor of legal medicine at the University of Lyon, the main exponent of the lyonnais School: “The Societies have the criminals they deserve”. Thus, analysing for these lines especially the real cases offered by Traian Tandin in his books, particularly in „Criminal women in Romania”, we conclude that our country too has its crimes and criminals which creates, feeds but not the last that which...deserves.

References [1] see Traian Tandin’s, Criminal women in Romania, real cases, Bucharest, Publishing House Meditaţii, 2008, p. 7. [2] apud Traian Tandin, Criminal women in Romania, real cases, Bucharest, Publishing House Meditaţii, 2008, p. 8. [3] The criminologist expert dr. Tudorel-Severin B. Butoi admits that, although many authors consider that the intellectual level has not a contribution in the determinism of the suicidal act, the level of culture plays an important role and reminds the study made by dr. Bogdan V. Delavrancea where is found that 57% of self-murderers have elementary studies, 37% have medium studies or equivalent and only 6% have university education; see Butoi, Tudorel-Severin B., Murderer women – Psycho-analysis of crime, Bucharest, Publishing House Phobos, 2003, p. 90. 279

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[4] in the above mentioned book. [5] case presented by Traian Tandin in Criminal women in Romania, pp. 279, 280 (is about Alexandrina Orţan of 39 years old from Bucharest – killed her ex-husband with whom she continued to live and with whom she had two children: “Monday, October 18, 1993, in the evening, the children came from a trip and their mother waited for them at the motor coach. Although she was already drunk, she kept thinking at the bottle with vodka which she was to drink with her husband. When she got home, Sandu had already drunk a fourth of the bottle. Becoming mad, Alexandrina pulled out the bottle and sent her husband to bed. She swallowed in a breath the remaining vodka, then took the knife from the kitchen and, in cold blood, stabbed the man in the left calf of the leg, cutting off the femoral artery. The wave of blood which gushed from his leg didn’t impress her at all. Much more than this, that incited her to stab him in other places of the body. Calming down, she took the children and went to bed”. [6] see Traian Tandin, op.cit., pp. 291, 292 – “How not to kill him, if he called me a cow?”, the stupid mobile of the crime commited by Iancu Luminiţa, 42 years old, residing in the village of Lăpuşeşti-Gorj. In the evening, on March 11, 1994, Iancu Luminiţa live her children home alone and goes to get corn flour for polenta. She stops at the pub and spends the money on three beers and a half of brandy, forgetting completely about her hungry children. Here comes at the pub Lică Anghel, drunk too, and proposes to Luminiţa Iancu 5.000 lei to go with him in the abandoned barn on the hill. The need of money determines her to accept, but the man does not give her the money before, as she wanted, lunches a verbal attack and says: “Calm down crazy woman, I will give you the money after you’ll stay like the cow when couples...” These were his last words, because the woman rushed upon him with the fists, legs, with a heavy stick ... [7] see Traian Tandin, op.cit., pp. 269, 270. [8] see Traian Tandin, op.cit., pp. 233-235. [9] apud Valerian Cioclei, Manual of Criminology, Bucharest, Publishing House C.H. Beck, 2007, p. 27. [10] see Traian Tandin, Foolish delinquents – real cases, Bucharest, Publishing House Meditaţii, 2008, pp. 89, 90. [11] see ibidem, p. 202. Criminal women in Romania, real cases, Bucharest, Publishing House Meditaţii, 2008, pp. 247-249. [13] according to R. Gassin, apud Valerian Cioclei, Manual of Criminology, Bucharest, Publishing House C.H. Beck, 2007, p. 69. [14] see Valerian Cioclei, op.cit., p. 137. [15] see H. Becker, apud Valerian Cioclei, op cit., p. 137. [16] see Valerian Cioclei, op.cit., p. 137.

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[17] seeValerian Cioclei, op.cit., pp. 85-86. [18] see ibidem, p. 86. [19] see ibidem, p. 92.

Bibliography Butoi, Tudorel-Severin B., Self-murderers women – Psycho-analysis of crime (Femei ucigaşe – Psihanaliza crimei), Bucharest, Publishing House Phobos, 2003. Cioclei, Valerian, Manual of Criminology, (Manual de Criminologie) Bucharest, Publishing House C.H. Beck, 2007. Freud, Sigmund, Beyond the principle of pleasure (Dincolo de principiul plăcerii), Publishing House Trei, 1996. Tandin, Traian, Criminal women in Romania – real cases (Femei criminale în România – cazuri reale), Bucharest, Publishing House Meditaţii, 2008. Tandin, Traian, Foolish Delinquents – real cases (Delincvenţi nătăfleţi – cazuri reale), Bucharest, Publishing House Meditaţii, 2008.

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INTEGRATION OF INTERNATIONAL HUMANITARIAN LAW INTO MILITARY EDUCATION

Asst.Prof. Bodescu Alin

“Carol I” National Defence University, Bucharest [email protected]

Abstract This paper seeks to identify the role of military education in the process of compliance with the International Humanitarian Law in military operations. In reaching the aim of this attempt, several natural questions may arise. Who should comply with the provisions of International Humanitarian Law? Who are the subjects of this law relationship? To whom education should direct its efforts? The answers to these questions should provide us with the understanding of the categories targeted by the education on International Humanitarian Law.

Keywords: International Humanitarian Law, Military Education

1. Introduction Due to its universal character, International Humanitarian Law (IHL) is written for a broad segment of personnel. This requires that the education should discriminatorily select the most appropriate portion of law for each of the categories subjects of the relationships generated by IHL. General education would be responsible for shaping the humanist spirit. Higher military education would address the segment of high command appointments, whereas rank and file and tactical commanders would be a target more for training than for education, although they may come with some background gained in 282

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2. Integration of IHL into military education Monitoring the law in action, International Committee of the Red Cross (ICRC), as the guarantor of IHL, noticed in 1977 that dissemination in itself with its accompanying activities had not been offering the foreseen results, and that additional measures were necessary. In that context, while efforts were made to ensure the IHL was being disseminated, a conclusion capable of discouraging that endeavour was arising: violation of law was still a problem. Several factors1 were determined as contributing to these conclusions, inadequate knowledge or understanding of the law representing the most relevant for our topic. Concrete measures were required to translate the abstract of the rules into practical applications. Consequently, ICRC launched a new concept, that of integration of law into education, training, doctrine and sanctions system. This comprehensive concept asked for a behavioural development of armed forces whose outcome would have been the integration of IHL spirit in their lives, guaranteeing that the operations would be conducted in compliance with International Humanitarian Law. None of those four sectors, depicted in figure 1 [1], is an end in itself but each of them, equally and complementary, should contribute to a common end: full compliance with the International Humanitarian Law.

Figure 1 – Integration of International Humanitarian Law (ICRC)

1 insufficient skills, faulty attitudes, wrongful behavior, lack of adequate equipment, lack of will Integrating the law, http://www.icrc.org 283

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Both dissemination and integration have been aiming the same end-state: a better compliance with the IHL in military operations. But, if dissemination was concerned more with understanding the letter of the law, integration gave weight to the perception of the IHL in a modern manner, by identifying and working with the concrete mechanisms and methods for the armed forces to access the spirit of International Humanitarian Law. Education is the main vector to carry out the implementation of IHL because it is omnipresent in our lives, from the childhood up to venerable ages. First contact in the education process is made with general education (up to and including high school) whose role is to crystallise a civilized, civic-minded, humanist formation and behaviour of the future citizen. Getting used with the principles of humanity is never too early. Although most of the effort to implement IHL is directed towards armed forces, it is too often neglected that armed forces are provided by the nation itself; that citizens before becoming soldiers are behaviourally almost defined and they join military after having received their basic education from family, school, and society as a whole. The integration of democratic values into one’s behaviour, like respect for human beings regardless of race, ethnicity, religion or sex or tolerance for that different to you, is a prerequisite of respect for International Humanitarian Law. There is no guarantee that, for instance, an expert in law would comply with IHL unless he/ she proves qualities of a tolerant, humanist character. The early 90’s conflicts in former Yugoslavia express best the above assertion, when high ranking commanders, very well trained and cognizant with the provisions of IHL deliberately broke its basic rules due to their intolerance and hatred against innocents whose only fault was that they were different to the more powerful. Who was then responsible for those atrocities? Was it basic education, family or a national- directed ideology? No clear cut delineation of responsibilities can be drawn, but one thing is certain: a better coordinated education is required from the early stage of life. Unfortunately, it took massacres like My Lai in Vietnam or Srebrenica in Yugoslavia to give vigour to the public opinion and create that collective behaviour against war and

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Knowledge Based Organization 2008 International Conference warlike attitudes. Such a collective behaviour, repulsing war, is more likely to be developed in civilized societies like democratic ones. In this respect, professor Ion Dragoman remarked “International humanitarian law is applied and respected by those convinced by the power of this law and disobeyed by those defying the international legal order [2].” Shaping minds for the conduct of military operations is the overall aim of the military education, focusing on teaching people how to think; the why to do is also addressed at this level of formation. Training, whose objective is teaching people how to do, would benefit from the educational outcomes. Before training people, for example, how to treat the captured enemy combatants, they should arrive at the training session with the knowledge of why that category should be spared. The concurrent effects of education and training would provide soldiers with the necessary cognitive background, remaining for their commanders to tell them what to do on operations. Once on the battlefield, they would have acquired, by education and training, the necessary Why and how to do certain actions.

INTEGRATION OF INTERNATIONAL HUMANITARIAN LAW INTO MILITARY EDUCATION

Lead Sectors Objectives Goals End state organization Military Education

Min of Edu Mil Acad Def Univ Def Univ Military Basic military High level Specialists Personnel IHL education IHL education education Know the IHL Coordinated Integr of IHL Mil edu programes into curriculla General Compliance Def Univ National education Min of Def Commision Mil Acad With On IHL IHL In Mil ops Doctrine Training & equipment Sanctions

Figure 2 – Strategic context

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In the overall strategic context of implementation process (figure 2), one of the sectors is the education with its subdivision, military education, contributing along with the other lines of operation toward the common end state: compliance of all military personnel with IHL during military operations. To reach that end state, the military education process should seek to accomplish the following strategic goal: all military personnel know the principles and rules of IHL; the extent of their knowledge will be commensurate with their duties and responsibilities.

3. Military education objectives On the path to the end state, several actors should develop specific programs, having military education objectives as an expression of their accomplishment. These programs, although not exhaustive, concur in the achievement of the strategic goal: a) IHL foundation through Basic military education; b) Well trained commanders and staff officers able to plan and advise commanders in full compliance with the provisions of IHL; c) Specialists formation and d) High level IHL teachers.

3.1. International Humanitarian Law foundation through basic military education Military academies and staff colleges are places where the future commanders receive initial knowledge for making decisions and issuing operational orders. It is here where the basic military behaviour of future officers takes shape. The high educational profile of an officer who, on various levels of his/ her career, may share his/ her experience and train an important number of soldiers on how to comply with IHL was remarked by David Lloyd Roberts in one of his studies for ICRC. He also concluded that: It is a brave commandant who insists on maintaining a module on the “Law of Armed Conflict” and include elements of the law in the curricula as they include elements of tactics so that they become second nature for the young officers [3]. These institutions should develop curricula, plans, policies, and procedures to provide appropriate instruction to students on the IHL as part of their basic educational requirements, commensurate with each category of individual’s field of interests. The higher the level the more

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Knowledge Based Organization 2008 International Conference subtle, analytical, and specialized must be the instruction. At this level, IHL should be a compulsory discipline in the curriculum, focusing on broader issues aimed to consolidate the basics. The amount of dedicated teaching hours should be established based on the realist assessment of the time needed to reach the educational objective: IHL foundation. Care should be taken that all theory to be transgressed into field and model room exercises. Military history, as a discipline, could be an appropriate vector of pointing out the evolution of law in campaigns and wars.

3.2. Well trained commanders and staff officers able to plan and advise commanders in full compliance with the provisions of International Humanitarian Law Defence University is the highest military academic body that could offer a series of education activities, with the emphasis that IHL would put on joint environment at strategic and operational levels, such as: postgraduate courses on IHL and optional courses on IHL for Master programme in defence and strategic studies, War college courses for high command appointments or Joint operations courses for staff officers. At this level the goal is to define commanders and staff officers with a good insight into IHL issues. The focus should be on commanders’ responsibilities and implications for the planning of operations and campaigns from the IHL perspective. Lessons learned from recent operations should be available and the experience of the students who participated in various operations should be exploited by debating various case studies with legal implications [4].

3.3. Specialists formation and high level IHL teachers Apart from the large mass of military personnel who requires a general education on IHL, there is a distinct category of so called specialists who, as professionals, need an additional amount of knowledge and who have a distinct responsibility in ensuring respect for IHL. Legal advisers (military lawyers), medical personnel and chaplains are the most obvious categories, but attention need also the personnel with responsibilities for cultural property and various employees of

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Knowledge Based Organization 2008 International Conference hospitals, prisons, camps, international organizations or Non- Governmental Organizations. Article 82 of the Protocol I to Geneva Conventions asks states to ensure that commanders are assisted in their acts by legal adviser who would make sure that 1949 Geneva Conventions are properly applied during operations and would give recommendations what training should armed forces receive on this matter. This determines a double obligation. Firstly is to educate commanders to accept, whenever applicable, a legal advise and secondly is to educate lawyers with a sound military and operationally background. Main effort is to educate the soft skills of the legal adviser’s behaviour as to make themselves heard in the chain of command and to improve the skills of influence regarding respect for international humanitarian law during armed conflict [5]. This could be achieved through courses or master of law programs organized at Defence University level. Article 47 of 1949 Geneva Convention I, strengthened by the article 6 of Protocol I to the Geneva Convention, specifically brings up two classes of persons, other than combatants, who require special instruction: medical personnel and chaplains. These categories do not only benefit from the protection of special rights but have also related responsibilities imposed by the above mentioned convention. The implied qualification should be gained during peace time, and the leading role could be assumed again by the Defence University through specific courses for high level medical officers and chaplains. The military education objectives discussed in this paper would suffer for insufficient attention if the competence of those called to impart knowledge were not appropriate. The IHL teachers from all levels should maintain contact with the evolution and operational requirements of this body of law. The law evolves, doctrine changes, so even the teachers must be updated to the latest innovations in the field.

4. Conclusions The configuration of war has changed dramatically from the time Geneva Conventions and its Additional Protocols were thought and designed. The spectrum of military actions has increasingly and diversely grown and, as a consequence, IHL might not longer

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Knowledge Based Organization 2008 International Conference specifically address all current aspects of them. Terrorism with its peculiar nuances for certain categories in war and their regime (combatants, prisoners of war) has brought up to the specialists’ attention new challenges. In a today's battlefield, a soldier can shift rapidly from a conventional posture in which he/ she participates in an attack with a high degree of freedom in using force to a riot control posture in a close proximity of civilian population. Moreover, he is a high value target for the most efficient weapon: media. The enemy is no longer a common opponent with weapons at sight but it is more likely to take the appearance of a militant, insurgent or a member of transnational terrorist organizations. The issue of detainees at Abu Ghraib has triggered in the United States a large scale scrutiny on doctrine, training, execution, and leadership aspects of detention and interrogation procedures. All these characteristics of the new conflict environment may create confusion and offer room for interpretations, aspects that should be mastered by IHL teachers [6]. Looking over the horizon, to anticipate the future implications of this spectrum on the IHL is a challenge not only for researchers but also for the academic environment of IHL teachers.

References [1] Armed Forces: Integration of International Humanitarian Law, http://www.icrc.org [2] Ion Dragoman, Mircea R. Radu, Modernitate in problemele fundamentale de drept international umanitar, editura Zedax, Focsani, 2005, p. 195, ISBN 973-7825-00-4 [3] David Lloyd Roberts, Training the armed forces to respect international humanitarian law: The perspective of the ICRC Delegate to the Armed and Security Forces of South Asia, International Review of the Red Cross no 319, p.433-446, 1997, http://www.icrc.org [4] ibidem [5] Improving Compliance with International Humanitarian Law, ICRC Expert Seminars, Report prepared by the International Committee of the Red Cross Geneva, October 2003, p.14 http://www.icrc.org [6] Geoffrey S. Corn. Developing Warrior Lawyers: Why it’s time to create a Joint Services Law of War Academy, Military Review, May-June 2006.

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ASPECTS REGARDING THE LEGAL REGIME OF THE ASSETS FROM THE PRIVATE DOMAIN

Asst.Prof. Flavia Ghencea, TA Ţigănescu AnaMaria

“Spiru Haret” University, Constanţa

Abstract The public administrative collectivities possess assets that form the private domain, next to assets of the public domain and others, submitted to the ordinary property, of same nature with the private property that belongs to private individuals. The legal regime that applies to the private domain has a series of rules not with standing the legal provisions of the common law and that aren’t a simple application of the civil law. This research identifies the main elements of the legal regime that differentiates the assets of the private domain from the similar ones belonging to private individuals, others than the patentees of the administrative field. The research doesn’t insist on the common features that are under the incidence of the civil law.

Keywords: legal regime, private domain, public domain

Any company that reached a certain level of development and of organization implicates, as a compulsory element of recognition, besides every individual’s assets, a category of assets that belongs to the collectivity. In time, these assets have been divided in two categories. The first category refers to assets similar to the ones possessed by individuals and upon which the public authority exercises the same rights as the individuals; this creates the private domain. The second category consisting of assets of a special importance for the social interests and submitted to some restrictions in order to prevent their embezzlement from the purposes they were serving, forms the public

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Knowledge Based Organization 2008 International Conference domain. The current Romanian Constitution doesn’t use the terms “public domain” or “private domain”. It uses the term property, with its two acceptations, public property, and respectively private property [1]. There are, though, legal dispositions that define the two terms. So according to article 5, the second paragraph from the Law no. 213/1998: “The right to private property of the state or of the territorial and the administrative divisions on the assets from the private domain is submitted to the legal regime of the common law, unless the law stipulates differently.” [2] According to article 1845 from the Civil Code: “The State, the public and the common establishments, regarding the private domain, are submitted to the same prescriptions as the private individuals, and as much as them, they can oppose them.” On the grounds of article 4 from the Law 213/1998: “The private domain of the State or of the territorial and the administrative divisions consists of assets that are in their property and that don’t belong to the public domain. The State or the territorial and the administrative divisions have the right to private property upon these assets. Also, the article 123 from the Law 215/2001 [3] regarding the public local administration, stipulates: “The private domain of the territorial and the administrative divisions consists of personal and real estate (…) entered upon them by legal methods” and the second paragraph stipulates: “The assets that belong to the private domain are submitted to the dispositions of the common law unless the law stipulates differently”. The fixing of the legal regime that applies to the assets of the private domain supposes the identification of those elements that regard the content aspects and the form aspects. Thanks to these aspects, they acquire a fixed identity. In order to approach this problem, it is necessary to start from the categories of assets that form the private domain. Thus, if the assets of the public property form the public domain of the State and of the territorial and the administrative divisions, the other assets, belonging to the same holders are their private property and they form the private domain of the State, respectively of the local communities. The sphere

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Knowledge Based Organization 2008 International Conference of the private property, unlike the one of the public property, isn’t limited. It can include any assets, excepting the public ones and those mentioned in the Constitution to the article 136, third paragraph because they are the exclusive object of the public property. [4] In the juridical literature from the interwar period, [5] was, rightfully underlined the fact that the private domain of the State consists, generally, of assets that the State owns like any other private owner and that implicates the use of the assets, their capacity of producing incomes and the possibility of alienating them. These assets aren’t given to the public use; they differentiate from the private assets by the fact that their holder is the State, the district or the commune, instead of a private person. Regarding the fact that the assets from the private domain are different from the ones of the private persons, only by their holder, we must make some statements. First of all, the legal regime that applies to the assets of the private domain has a series of rules notwithstanding the legal provisions of the common law and that aren’t just a simple application of the civil law. The fact that the property holder of assets from the private domain is the State or a territorial and an administrative division implicates a series of specific features that differentiate the legal regime of the assets from the private domain, from the typical regime of the public domain and from the regime of the similar assets belonging to a private person. These differences refer to the possibilities of acquirement, of acquisition or of alienation [6]. As for the acquirement of the assets from the private domain, we must mention that there are some special rules that make the difference between the holders of the administrative domain and the private persons. In essence, the administration can acquire assets for its private domain, following the procedures of the common law, by salepurchase or with free title. So, if the assets from the public domain are governed by the inalienability principle, the assets from the private domain can be alienated. According to the law no. 215/2001 that concerns the public local administration, the local and the county councils decide whether some assets from the private domain and of local or of county interest,

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Knowledge Based Organization 2008 International Conference should be bought or sold, under the conditions of the law. Before the auction, the assets are being evaluated, through an expertise that is later reported to the local or to the county council. If, in the case of the public domain, the expropriation for cause of public utility was seen as an extraordinary way of assets’ acquisition, it isn’t the same thing that happens in the case of the assets from the private domain because they are susceptible of being expropriated for cause of public utility. It is the case of the assets from the private domain of the territorial and the administrative divisions that can be expropriated by the State. A special situation is the act of free title, the donations or the devises that must be accepted by the general administrator of the domain. He will verify the compatibility between the goods donated and the general assignments of the State, district, city or commune, the opportunity of acceptance, the onerous character of the assignments etc. An example to this matter is the G.R, no. 1458/2004 [7] for the authorization of the Prime Minister’s Office in order to accept a donation in favour of the Romanian State. The Romanian Government accepted the donation offered by the Hariri Foundation from Lebanon, in favour of the Romanian State. The donation consists of 3000 computers offered to the schools from our country. The contract will be signed by the head of the Prime Minister’s Office. The Office acquires the quality of administrator for the donated assets and it is in charge for their administration with the diligence of a good holder. The assets received will become private property of the State and will be sent to be freely used, to the schools established by the Prime Minister’s Office, in collaboration with the Ministry of Education and Research [8], at the orders of the head of the Prime Minister’s Office. The assets of the public domain can also be gained, on a natural way or by their transfer from the public domain, by administrative act. According to the Law no. 213/1998 “the transfer from the public domain into the private domain is accomplished, by the decision of the Government, of the County Council and respectively of the General County of Bucharest or of the local Council, if the Constitution or the law doesn’t stipulate otherwise.” (art. 10, paragraph 2). This decision can become the object of a justice control measuring the legality, on

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Knowledge Based Organization 2008 International Conference grounds of an action that can be presented in front of the contentious administrative court that functions on the territory where the asset is. We can take as an example from the administrative practice, The Government’s Resolution, no. 1142, from September 18, 2007 [9] that stipulated the transfer of a building administrated by the Regional SelfGovernment “The Patrimony Administration of the State Protocol”, from the public domain of The State into its private domain. A second example to this matter is The Government’s Decision, no. 690, from June 28, 2007 [10] that stipulated the transfer from the public domain of the State into its private domain of some fixed means from the Railway Station Jiul Vechi, that were administrated by the National Company of Railway “C.F.R” – Share Company. Another example is The Government’s Decision, no. 1809, from December 13th, 2006 concerning the transfer of some buildings administrated by the National Pensions and Social Security House from Dolj, from the public domain of the State into its private domain in order to exchange them with some real estate that represented the property of a Private Company “Macplast”Limited Liability Company (LLC), Craiova [11]. From the moment that these assets are transferred into the private property of the State, their holders have the obligation of declaring them to the General Directorate of Public Finance, from the district or from Bucharest or to the General Directorate of Public Finance from the sector subordinated to the General Directorate of Public Finance from Bucharest, within 10 days from the delivery of the document that represents the property title of the State upon them, excepting the assets that don’t fulfill the marketing conditions. They have, also, the obligation of stocktaking the assets and of taking the right preservation measures. Assets belonging to the private domain can also be obtained by confiscation. More exactly, we refer to assets used or obtained as a result of committing some deeds that are contraventions or infractions. A special situation refers to the holders’ possibility of buying, with priority, a personal or a real estate, from the ones stipulated by law, when the holder has decided to alienate it, by sale. We are talking about the right to option. An eloquent example to this matter is given to us by Professor Emil

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Balan. Therefore, according to the stipulations of article 4 from the Law no. 422/2001 concerning the preservation of historical monuments, republished [12], the historical monuments belonging to natural or to legal persons of private law can be sold only under the conditions of exercising the right to option of the Romanian State, The Ministry of Culture and Cults or the territorial and the administrative divisions, according to the law, under the nullity sanction of the sale. The persons that intend to sell historical monuments will warn, in writing, The Culture and the Cult Directorate, The National, the county and Bucharest Patrimony Directorate. These institutions are obligated to warn the minister about the sale, within three days from its reception. The period of exercising the right to option of the State is of maximum, 30 days from the registration date to the Culture and Cults Ministry. The beneficial owners of this right must stipulate in the personal budget, the necessary sums destined to the exercising of the right. The acquisition value will be negotiated with the buyer. If the Culture and Cults Ministry doesn’t exercise its right to option, within the legal period, this right will be transferred to the local and public authorities who can exercise it in maximum 15 days. The assets of the public domain of the State or of the local collectivities are imperceptible, which means that they can’t be pursued on the path of the foreclosure for the debts that The State has towards the private persons. The Constitution stipulates at the article 44, paragraph 1: “The right to property as well as the receivables on The State are guaranteed”. By this constitutional regulation, The State and the territorial and the administrative divisions are subjects of law, always solvable. So, the assets of the private domain can’t become guaranties for the repayment of the public debt. The Public Finance Law no. 500/2002 [13], as well as the Law no. 273/2006 [14] concerning the public local finances, stipulates that the public debts (financial obligations) that are meant to be paid to the private persons will be mentioned in the budget for the next year. There are also a series of typical features regarding the exercise of the right to property on the assets belonging to the private domain. According to article 1, paragraph 5 from the Law no. 90/2001 [15], The Government, as a state authority, has, among others, the administration

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Knowledge Based Organization 2008 International Conference function upon the property of the State that assures the administration of public and private property of the State”. And according to the 11th article, letter m, from the same regulation, among the obligations of The Executive, is also, the one of “assuring the administration of the public and private property of the State”. The articles 38 and 104 from the Law 215/2001 give to the Local Councils of the communes, cities and towns as well as to the County Councils, the possibility of exercising tasks concerning the administration of the public and private domain of the commune, city or town, or the administration of the district’s patrimony, in the case of the County Council. Therefore, these subjects of law work exclusively as public authorities, as subjects invested with prerogatives of public law, with administrative competence, in the field of the general administration of the assets belonging to the private domain. Their decisions are juridical, unilateral and administrative acts which, sometimes can be followed by acts of common law. The right to administration has an absolute character, being opposed to erga omnes, less to the owner’s right to property created because of the juridical administrative reports between the parts. These reports of public power that exist between the owner of the property and the beneficiary of the right to administration prevent the destruction of the right to property. The administration tax beneficiaries will be subjects of law qualified as structures of public administration, public institutions or autonomous administrations, entities that establish judicial administrative reports with the right to property owners and not with simple private persons. They will be able to draw acts for the use, the fitting out, the exploitation, the capitalizing of the assets, the rental. The incomes gained will be acquired in administration. That is why, within the limit of their foundation purpose, the beneficiaries of the assets from the private domain, with the right to property can exercise a material disposition on the assets (the execution of some works, the cut of the trees etc.), as well as a judicial disposition (the right of use to the public subordinated institutions ). The judicial acts that give administration right on the assets of the

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Knowledge Based Organization 2008 International Conference private domain are administrative acts, submitted to the legal regime of public law. In case of possible litigations concerning the constitution or the withdrawal of this right, these acts could be the object of a contentious administrative action. Another aspect referring to the exercise of the right to property on the assets from the private domain concerns their concession[16]. The concession of the assets from the private domain represents a way of using them with the purpose of producing incomes for the public budget, by the onerous character that it supposes. The concessionaire will be always a subject of private law, a private person and not a subject of public law. The autonomous administrations and the public institutions can obtain the use of some assets or the contracting out. The concession of the assets from the private domain is done on grounds of a contract signed, regularly, with the winner of a public auction. The concessionaire right is a real right, deriving from the right to private property that it cancels [17]. A right of this kind, created on a long period of time, that can be prolonged, can stop, at the end of the period for witch it had been created, by resolution or because of an act of God or of major necessity. As for the concessionaire right, we must mention that he benefits from the right of user and from the right of collecting the results typical for the concession. The possible litigations caused by the concession of the assets from the private domain are solved by the court of common law. As we can notice, the legal regime that governs the assets of the private domain of the State or of the territorial and administrative divisions is a special one. This regime distinguishes itself from the regime that governs the assets of the public domain and of the one that governs the assets, private property, of the private persons. André de Laubadière [18] noticed that the legislation that applies to the private domain has a number of typical rules that are different from the ones that apply to the public domain. They make together a plurality of exceptional derogations from the common law.

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References [1] In the Romanian Constitution, two articles (136, 44) are dedicated to the term of property; they describe, on one hand the institution of property, and on the other hand “the right to property”, seen as the binder between the property and an individualized subject of law, but also as a relation, a report between persons. [2] Law no. 213/1998 regarding public property and his legal conditions, published in the Official Gazette of Romania, First Part, no. 448/24 November 1998, modified and completed after that. [3] Law no 215/2001 regarding the public local administration published in the Official Gazette of Romania, First Part, no 204/23 April 2001, modified and completed after that through Law no 286/2006, published in the Official Gazette of Romania, First Part, no. 621/18 July 2006. [4] The resources of public interest, of the subsoil, of the sky space, the waters with valuable energetic potential, of national interest, the beaches, the territorial sea, the natural resources of the economic area and of the continental plateau, as well as other goods established by the organic law are representing the exclusive object of the public property. [5] C. Hamangiu, I. Rosetti Bălănescu, Al. Băicoianu, Tratat de drept civil, vol. I, Bucharest, 1928, p. 918. [6] Ioan Alexandru, Drept administrativ, Bucharest, Lumina Lex Publishing House, 2005, p.432. [7] Governmental Decision no. 1458/2004 published in the Official Gazette of Romania, First Part, no 842/14 September 2004. [8] Emil Bălan, Dreptul administrativ al bunurilor, Bucharest, C.H. Beck Publishing House, 2007, p. 130. [9] Governmental Decision no. 1142/18 September 2007 for Annex’s modification to Governmental Decision 60/2005 regarding organization and working of RAPPS which disposes passing of some immovable from state’s private domain into state’s public domain, published in the Official Gazette of Romania, First Part, no 654/25 September 2007. [10] Governmental Decision no. 690/ 28 June 2007 published in the Official Gazette of Romania, First Part, no 480/18 July 2007. [11] Governmental Decision no. 1809/13 December 2006 regarding passing from state’s public domain into state’s private domain of some building in administration of County House of Pensions Dolj, for making un exchange with some building property of Corporation “Macplast” from Craiova, published in the Official Gazette of Romania, First Part, no 215/29 March 2007. [12] Law no. 422/2001 regarding historical monument’s protection, republished in the Official Gazette of Romania, First Part, no 938/20 November 2006.

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[13] Law regarding public finance no 500/2002, published in the Official Gazette of Romania, First Part, no 597/13 August 2002. [14] Law no 273/2006 regarding local public finance, published in the Official Gazette of Romania, First Part, no 627/ 20 July 2006. [15] Law 90/2001 regarding organization and working of Romanian Government and Departments, published in the Official Gazette of Romania, First Part, no 164/ 2 April 2001, modified and completed after that. [16] The legal regime of the concession contract was settled, until September 30, 2006, by the Law no. 219/1998 concerning the legal regime of the concessions. In the same period was settled the new regulation OUG no. 34/19 April 2006 concerning the awarding of the public acquisition contracts, the work concession contracts and the service concession contracts, approved with amendments by the law no. 337/2006. The last normative act abrogated, besides the law no. 219/1998, also OUG no. 60/2001 concerning the public acquisitions so that it represents now the framework regulation that applies to this matter. Later OUG. no. 34/2006 was adopted OUG no. 54/2006 concerning the regime of the concession contracts on the assets of private property. Now, there are two regulations concerning the concession contracts, one that concerns the concession of the public services and of the public works, and other that concerns the concession of the assets of public property. [17] Emil Bălan, op.cit., p. 142. [18] A. De Laubadière, Traité de Droit Administratif, Tome 2, L.G.D.J., Paris, 1995, in Emil Bălan, op.cit., p. 36.

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THE VALUE OF TESTIMONIALS PROOF IN ROUMANIAN CRIMINAL PROCEEDINGS

Asst.Prof. Pocora Monica

“Danubius” University, Galaţi

Abstract The evidences contribute to the establishment of the elements forming the object material of the crime, the elucidation of all the circumstances of the resulting guilt or innocence accused or defendant, to determine the consequences of crime, both to ensure the legal proper facts, and for determining damages will be granted to the person injured. The evidence and the means of those, represents the essence of criminal procedure, proper implementation of the criminal justice system depends on decisive evidence and means of evidence. Among the evidence that is given in criminal proceedings, an important place it occupies by the witnesses testimony. Testimonial evidence, which is called also, the evidence with witnesses, meaning in essence, how shared information which the court made sound right, to be named after the famous phrase of Bentham, “ the eyes and ears of justice "1. The witness, presenting is such that the main character in criminal proceedings, I considered necessary to highlight its importance.

Keywords: evidence, criminal proceedings, testimony, witness

From gnosiological point of view, probation is an instrument of knowledge through the judiciary knew the truth. The evidence is the sum of the reasons leading to certainty (R. Garraud, op.cit., p. 476). From etymological point of view, the notion “of evidence” comes

1 Ioan Doltu, Declaraţiile martorilor mijloc de probă în procesul penal, Constanţa, Editura Dobrogea, 1998, p. 9. 300

Knowledge Based Organization 2008 International Conference from Latin “probare”1, and means the work of verify, to prove or to show something. The witness statements represents the means of proof, used in increasing frequency in many cases because there are no traces materials which permitted to use other means of proof. These testimonies are available in any criminal case, unlike other evidence, that may be used only where the specifics of the case allows. Although evidence is usual with a very high frequency work in probative, the testimonial evidence should be assessed and evaluated, generally, by all means conjunction with the evidence file on the case. If under the principles of free assessment of evidence (art. 63 C. proc. pen.), for the existence or absence of guilt, the accused or defendant statements, the injured party, part civil and part responsible for civil, by themselves, are not making the proof, must be corroborated by other evidence, testimony of one witness can be the basis of judicial organs convictions regarding of existence or absence of a fact, provided they are given with all caution. Oral testimony is the story made by a person in court with respect to acts committed in the past, who has personal knowledge. Confession is the recognition by an act of a person or fact that another person has founded a claim and is likely to produce effects against its author. In terms of civil law, confession is a legal act, and in terms of civil procedural law is an means of evidence. Confession as a legal act is irrevocable, so can not be revoked by its author, “except for evidence that you made an error of fact”, (art. 1206 Civil Code). Witness statements can be obtained through listening or confrontation, or by tape recording. The object of proof is composed of what must be proved in the process, namely the facts and circumstances of the people and proved in criminal proceedings, so all the realities of the legal significance of knowing which depends on finding the truth and just resolution of the criminal law in conflict criminal proceedings.

1 Dumitru I. Hâncu, ,Dicţionar Şcolar, Bucureşti, Editura Didactică şi Pedagogică, 1976, p, 437. 301

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In another opinion1 and the proposal to invoke the evidence, admission and administration is a bunch of procedural documents bearing the name of probative. This is the fundamental element that leads to finding the truth in the criminal case and the process solving. According to art. 78 C. proc. pen., the notion of a witness is defined as being “the person who is aware of any deed or any circumstance likely to serve in finding the truth in criminal proceedings "only such a person can be heard as a witness, according to the law . From the definition of the Code, shall require that person “to be aware of any facts or circumstances cause” the law does not require such knowledge to come from a personal perception of the event, but can be heard as witnesses also the people who know the event from others. Thus can be heard as a witness, the person who knows the facts and circumstances in a criminal case through another witness's story, his showing being as well as mediated evidence or derivative2. The strict sense of the concept of a witness statement, request that his story be made before the judicial bodies, as provided by law, any statement gave before the other bodies or persons, not have in criminal proceedings a statement of the witness. The witness is not in itself an means of evidence, only his statesment may have this nature, in measure of competing to solving the case3. In principle, any physical person may be called as a witness in criminal proceedings, regardless of his physical condition (blind, deaf, mute), or psychological, judicials may give the opportunity to assess which of these people are able to provide the information necessary to resolve criminal cases. Some people may not have the quality of witnesses due to concrete situations related to respective case (those required to maintain professional secrecy, lawyers, doctors, notaries public, can not be heard as a witness in criminal proceedings injured or civil

1 Nicolae Volonciu, Tratat de Procedură Penală, Bucureşti, Editura Paideia, 1999, p. 341. 2 Ioan Doltu, Declaraţiile martorilor mijloc de probă în procesul penal, Constanţa, Editura Dobrogea, 1998, p. 70. 3 Nicolae Volonciu, Tratat de Procedură Penală, Bucureşti, Editura Paideia, 1999, p. 364. 302

Knowledge Based Organization 2008 International Conference party (art. 82), as well as husband or close relatives of the accused or the defendant1. In relation to international law can not be heard as witnesses members of the diplomatic corps (due to quality function, being based on reciprocity). Professor Vintila Dongoroz2 show that, although witness statements represent “a very weak evidence”, however, in criminal proceedings, testimonial evidence showing the usual proof, by common law, normally and in the same time, essential for the purpose of criminal proceedings. Very interesting is that, in criminal proceedings the statements of witnesses means usually, and in the civil means exception. The natural question that occurs is why the criminal legislature like the proof with witnesses, and in civil matters the evidence with witnesses is unlikely the Civil Code has not admitted, only with some precautions as a test of exception? In theory3 it is recognized that the institution of liar testimony is growing in roumanian criminal proceedings, where the probation matter of proof testimonials is the most sensitive. Witness statements of good - faith are more genuine, as they are obtained propriis sensibus and as nearby of the committed time offender4. Among the obligations of witnesses, we may included to present when he is called (the groundless lack can be punished with a fine legal) the obligation to submit (not entitled to refuse entry declaration only when the law allows it), the obligation of truth story (the lack of sincerity witnesses in statements represents the crime of giving false testimony punished by art. 260 Penal Code). The law gives to witness the obligation to tell all he knows, about the essential circumstances on which it was asked5. The witness not has the obligation of informing the judicial organ

1 Ion Neagu, Tratat de Procedură Penală, Bucureşti, Editura Global Lex, 2002, p. 356. 2 V. Dongoroz, Curs de Procedură Penală, Bucureşti, Ediţia Cursurilor Litografice, 1942, p. 227. 3 Traian Pop, Drept Procesual Penal, Tipografia Naţională Cluj,1947, p. 247. 4 Iulian Poenaru, Problemele Legislaţiei Penale, Bucureşti, Editura Lumina Lex, 1999, p. 103. 5 Nicolae Volonciu, Tratat de Procedură Penală, Bucureşti, Editura Paideia, 1999, p. 365. 303

Knowledge Based Organization 2008 International Conference of their own. People who have knowledge about committing a crime, not taking quality as witnesses as long as aren’t called and heard by judicial organs in accordance with the procedure specified by law. The witnesses rights is manifested by reference to protect against any violence, threats, physical or psychological (art. 68 C. proc. pen.), refusal to answer of questions which exceed the legal framework of his hearing, also, the most rights witnesses are of real concern and are regarding of costs (the witness will receive all the costs spent by transport, maintenance, accommodation). Also, in the field of traffic of influence with the full theme, was decided in case law that no legal provision does not prohibit the hearing as a witness the person who gave the defendant sent to court for trafficking in influence, material benefits claimed him as the price of influence that to prevail, as long as that person is not responsible for the criminal deed was, also, no legal provision does not eliminate and not reduced the probative value of his statements1. In the old Germanic law, the system of probation sanction on preferential ranking the defendant oath, but relatives attending on this oath gradually become real witnesses, thus accelerating the revocation process and the gradual disappearance of ordeals, the oath of defendant and the dual judiciary as a means of proof. In the old French law, the members of accused or the defendant families, were not made a testimony itself, but only mentained the case of defendant by their oath, as an earlier deal with weapons in hand, therefore, in reality, they came in help the defendant (where became the name of jurors, by the old Norman). In French criminal procedure is an act of behavior of people who are in touch with one of the circumstances of a criminal, are called for saying to justice what they knew and how they found those things. In French procedural law, in accordance with theory2 in the interest of establishing the truth, is wide open path to witness, except some denied persons because exists some doubts. In France, children under the age of 16 years, crazy and sentenced

1 Ioan Doltu, Declaraţiile martorilor mijloc de probă în procesul penal, Constanţa, Editura Dobrogea, 998, p. 89. 2 I. Doltu, op.cit.; Robert Vonin, Droit penal et procedure penale, Paris, 1959, p. 244. 304

Knowledge Based Organization 2008 International Conference to civic degradation are unable to be witnesses. On the other hand, is not allowed to be in the same time, part in the process and witness. In the service of truth, any witness should provide oath to testify truthfully say what he knows, may be punished with a penal fine if not were before the judge of instruction (art. 62, 109, 143, 326, 436 of the Code of Criminal Procedure French) . In acceptance of the Code of Criminal Procedure of the Republic of Moldova, are evidence in criminal proceedings any concrete data on which the criminal investigation, criminal investigator and the court finds in the manner prescribed by law, whether or not committed to a socially dangerous act, found guilty the person who committed this deed and other circumstances of the matter for just settlement of the case. Code of Criminal Procedure of the Republic of Moldova, art. 59 regulates the obligations and rights of witnesses. In this case, the witness is required to be present by the person carrying out investigation of criminal investigator, the prosecutor, the court and make right statements to communicate everything he know about case and to answer as regards questions that addresses. If the witness is not presented, with no reasonable justifications, the person performing the criminal investigation, criminal investigator, prosecutor and court may order his bringing. The court has also the right to apply to witness a fine worth up to two minimum salary. Can not serve as evidence the facts, communicated by witnesses if he can not show the source of his information. No matter how much confidence would be inspired witnesses honor in front of judge, a witness may have no value if those are not stated in accordance with circumstances of committed crime. Very old principle “testis unus testis nulus, always remained in force in the old law as being shared by biggest personalities of the time1. Beccaria, although lover of the scientific evidence is opinated that the proof of a fact, it is necessary to have a highest number of witnesses. He argues that “it takes more than one witness because as long as one says and one denies there is nothing and should be sure

1 I. Tanoviceanu, Tratat de procedură penală, partea I, p. 643. 305

Knowledge Based Organization 2008 International Conference that every law it has to be reckoned innocent.”1 In such situation, it is imperative to limited errors by lies, fidelity by sincerity even when informations are provided by witnesses of good faith. The process of reproduction facts before the court could be influenced by many distortions, misrepresentations as a breakdown, a deviation from the original form of information2. These distortions entail changes in the sequence of real facts, changes of the place, by some details of time and space. W. Stern is first synthesized the idea of relativities statements of witnesses as a known sentence: “a fully faithful testimony is the exception and not the rule.” Thus, the operation of appreciation of the testimonials proof, is the most difficult, due to many factors which must be carried out observation. In theory3 it concluded that is essential that an appreciation of confess it has to be based on two fundamental principles, namely of sincerity, and fidelity perception and reproduction accuracy of data as regards as offender and circumstances surrounding the crime. In literature there have been numerous attempts list of the main causes which may determine the testimony of bad faith. Aurel Ciopraga, remarkable criminologist, has made a synthesis of them, as follows: – witness hide certain circumstances essential to convince the judiciary of his unnecessary call; – witness hide certain circumstances or distort the essential occasions favorable to the defendant or accused because of resentment before it, because feelings of hatred, the envy that often manifests itself in the form of revenge; – witness don’t says he knows all the facts or presenting distorted because if he make sincerely statements, could be involved as accused or defendant in question;

1 Ioan Doltu, op.cit.; Cezare Beccaria, Despre infracţiuni şi pedepse, Bucureşti, Editura Ştiinţifică, 1965, p. 22. 2 V. Dongoroz, Explicaţii Teoretice ale C.P.Pen. 3 Tudorel Butoi, Nicolae Mitrofan, ş.a., Psihologie Judiciară, Bucureşti, Casa de Presă şi Editură Şansa S.R.L., 1994. p. 141. 306

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– tend to make liar statements is determined by certain feelings of enmity the by witness against judiciary, based on previous relationships with it; – start to lodge a liar is determined also the feeling of awe inspired to witness due to pressures, threats exercised against him or his family; – the witness is interested in material or moral outcome of the case because of relationships in which the defendant or the accused or with one of the parties1. In addition to those listed above may be relevant and other reasons that can lead to untruthful statements: false testimony due to the feeling of sympathy to the victim or the offender, the material feeling of witness because his corruption, incitement to false testimony, etc. Serious forms of manifestation of the phenomenon of crime such as organized crime and terrorism, have reconsidered importance in the process of witness statements, together with attempts of the circles concerned to prevent testify before the prosecution or the court hearing. Incrimination of the crime of participation obstruction in the process by introducing in Criminal Code of art. 261¹ aimed precisely to prevent and punish such acts directed against the way the commission of justice. Thus, was set up special ways of listening to witnesses via audio- visual networks, with the distorted image of the person to not be recognized or other means that would enable him to be physically present in the courtroom. As a last idea, should be noted that in the future in Romanian law should be sanctioned more severely those who have this quality and distorts more clearly and intended effects, regardless of the reason behind this.

1 Aurel Ciopraga, Tratat de Tactică Criminalistică, Iaşi, Editura Gama, 1996, pp. 227-228. 307

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References 1. Butoi Tudorel, Mitrofan Nicolae, ş.a., Psihologie Judiciară, Bucureşti, Casa de Presă şi Editură Şansa S.R.L., 1994. 2. Ciopraga Aurel, Tratat de Tactică Criminalistică, Iaşi, Editura Gama, 1996. 3. Doltu Ioan, Declaraţiile martorilor mijloc de probă în procesul penal, Constanţa, Editura Dobrogea, 1998. 4. Doltu Ioan, op.cit.; Cezare Beccaria, Despre infracţiuni şi pedepse, Bucureşti, Editura Ştiinţifică, 1965. 5. Doltu Ioan, op.cit.; Robert Vonin, Droit penal et procedure penale, Paris, 1959. 6. Dongoroz V., Curs de Procedură Penală, Ediţia Cursurilor Litografice, Bucureşti, 1942. 7. Dongoroz V., Explicaţii Teoretice ale C.P.Pen. 8. Hâncu Dumitru I., Dicţionar Şcolar, Bucureşti, Editura Didactică şi Pedagogică, 1976. 9. Neagu Ion, Tratat de Procedură Penală, Bucureşti, Editura Global Lex, 2002. 10. Poenaru Iulian, Problemele Legislaţiei Penale, Bucureşti, Editura Lumina Lex, 1999. 11. Pop Traian, Drept Procesual Penal, Tipografia Naţională Cluj, 1947. 12. Tanoviceanu I., Tratat de procedură penală, partea I. 13. Volonciu Nicolae, Tratat de Procedură Penală Bucureşti, Editura Paideia, 1999.

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THEORETICAL AND PRACTICAL CONSIDERATIONS REGARDING THE DELIMITATION OF PROPERTY BOUNDARIES

Asst.Prof. Anca-IuliaStoian

“Spiru Haret” University, Constanţa

Abstract The existence of two adjacent properties imposes the marking of their limits through external signs. Their owner scan agree to an understanding regarding the delimitation. Special problems appear when they don’t agree how to establish the landmarks or when the properties have not visible marks. In this case, the judiciary instances take the task of verifying the situation in fact and in law of those properties and to dispose how to put straight the landmarks between limitrophe parcels. So, the judiciary instances must analyze the form of the property right, the complainers’ position, the existence of some previous landmarks, as well as other servitudes that result from the admission of the seactions.

Keywords: boundaries, delimitation of property, judiciary instances

The article 584 from the Romanian Civil Code stipulates that any owner can “accommodate his neighbor at the delimitation of the property next to his”. Both parties will bear, equally, the costs caused by this operation. Although The Civil Code debates the delimitation of property boundaries in its second Book, Title IV, regarding the servitudes, it is unanimously recognized that the responsibility of establishing the landmark between two properties is a real obligation of taking action (propter rem) of any landowner and it is, at the same time, a 309

Knowledge Based Organization 2008 International Conference consequence of the unequivocal and opposable character of the right to property. Every landowner can resort to the material operation with the purpose of delimitation between two adjacent properties anytime the two parts agree, mutually, how to establish the external and the visible landmarks of delimitation, as well as how to bear the costs caused by this operation. The landowners can resort to this operation no matter if there were or weren’t previous delimitation landmarks and also in the case where the previous boundaries were the result of another agreement. If the owners don’t come to an agreement regarding the delimitation way of the limitrophe parcels, by exterior and visible landmarks, then the solution offered by the legal dispositions is the delimitation of property boundaries. This action was defined in the specialized doctrine [1] as an action where the complainer claims, opposed to the defendant, that the court of justice should establish, through exterior landmarks the area of the two adjacent properties. The delimitation of property boundaries distinguishes itself from the action for recovery of property, by the complainer’s claims. In the case of the delimitation of property boundaries, the court of justice receives a petition that has the purpose of establishing a real delimitation between two adjacent properties with no ulterior appeals regarding the area of the two properties. The evidence necessary for establishing the boundaries should be brought by both parties. On the contrary, in the case of the action for recovery of property, an appeal is filed to the court of justice against the defendant’s right to property. This appeal also claims that the defendant must transfer the fixture into the possession of the complainer that doesn’t possess anything [2]. The difference between the delimitation of property boundaries and the action for recovery of property is subtle because the delimitation of property boundaries is, mostly, about the claims of a side upon a parcel, denied by the other side. An action like this is admissible, but in these cases, the complainer files the delimitation of property boundaries petition together with the recovery petition. Therefore, he presents to the court a complex action. On one hand, he claims the full possession of the fixture, that is his property which it has

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Knowledge Based Organization 2008 International Conference been under the illegal possession of the defendant and, subsidiarily the delimitation of his property from the one of the defendant’s, by exterior and visible signs. Establishing the boundaries between two properties and recovering a fixture has nothing to do with the fact whether the parties checked or not at the Land Register, when buying the fixture, if it was or wasn’t encumbered with charges. [3] Although the Civil Code classifies the delimitation of the property boundaries as a natural servitude, the claim for delimitation of property boundaries is different from the petitory action. Through the petitory action, a real and affirmative action, the beneficial owner of a real right, dismemberment of the right to property, forces the court of justice to compel the defendant to allow him the unhindered exercise of his right. In this case, we aren’t talking about establishing the exterior delimitation landmarks because they exist and they aren’t questionable. Though, the owner of the dismemberments isn’t allow to exercise his right to use, usufruct, servitude, superficies or his homestead rights. The claim for delimitation of property boundaries doesn’t have, as an effect, the constitution of a servitude serving a fund that is subject to an easement. Therefore, the existence of a right of way doesn’t reduce the right of the owner who has a fund that is subject to an easement of the frontage land. There will be applied the dispositions from article 616, from the Civil Code [4] and the delimitation line will be established without giving in, the frontage surface, to the one in favor of whom was assigned this right [5]. If the existence of a dismemberment of a right to property is denied, we have to deal with a denying action. Thus, if the owner of a real right denies his right to usufruct, servitude, superficies or the homestead rights of another person on his estate, he has at hand the denying action. The claim for delimitation of property boundaries is available only if the parties don’t come to an agreement regarding the boundaries. The action for recovery of property must be differentiated from the claims for possessions because the one who demands the delimitation of the property boundaries must vindicate his property by the presumption of law and the courts of justice don’t discuss the existence

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Knowledge Based Organization 2008 International Conference and the extension of the parties’ right to property. The claims for possession represent the procedural way through which the possessor and the precarious holder, in some cases, claims to the court of justice to compel the defendant to stop any disturbing actions or to give back the assets from which he had been deprived illicitly. Well known are two types of claims for possession: in complaint and in restoration. Both are destined to protect the possession of the real estate and the rights to real estate susceptible of being acquired, by acquisitive prescription. In order to introduce these actions, it is required that, at least a year would pass from the disturbance or from the dispossession; the complainer must prove that, before that, he possessed the asset, at least one year; the possession fulfills the conditions requested by the articles 1846 and 1847 from the Civil Code: it is continuous, undisturbed, public and with proof of ownership. Therefore, the claim for possession belongs to the one that possesses the asset in his own interest, on grounds of a contract signed by the owner with right to property. The court’s resolution, delivered as a result of a claim for possession, doesn’t have the same authority with something that was judged in an action of real right (petitory). Starting from these considerations, we notice that the claim for delimitation of property boundaries is the expression of a prerogative of a real right (property or dismemberment), while the claim for possession is based on the defense of an issue in fact which, most of the time is in accordance with the issue in law. The importance of keeping the boundaries as they had been established by the parties’ convention or by the resolution of the competent authority, determined the criminal legislator to incriminate the action of damaging the boundary or the delimitation landmarks, as a crime, the crime of disturbing the possession, in an aggravating manner (article 220 from the Criminal Code). Sometimes, in practice, in order to avoid the rigors concerning the judicial taxes or the initiation of the estate proceedings, the party unsatisfied of the change or of the removal of the landmarks, by the neighbor’s or a third person’s deed, files a penal complain for disturbance of the possession, demanding the punishment of the person who is guilty. There isn’t really a prosecution, but it can change the

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Knowledge Based Organization 2008 International Conference neighbor’s attitude. This action is necessary especially when the neighbor occupies a part of the other one’s estate. A civil action can be, simultaneously, filed if the purpose is that the neighbor pays half of the delimitation costs. The civil action can have two petitions: the estate recovery and the delimitation of property boundaries. Every petition is charged separately. The right conditions in order to file a claim for delimitation of property boundaries concern the parties’ judicial quality, the object and the role of the proof. As far as the first condition goes, any person who, besides the general judicial qualities, is the holder of a real right on the land, that means that he is the owner or the beneficial of the usufruct, of the use [6] can be a complainer. More, the legal practice sets this action at the possessor’s disposal because the complainer doesn’t have the obligation of proving the right to property for the land for whom he claims the delimitation of property boundaries [7].The owner of a limitrophe parcel, the holder of a real right (usufruct, superficies, and right to use) as well as the lessee or the tenant can have the passive judicial quality in the claim for delimitation of property boundaries, with the condition that the owner is admitted in the proceedings. [8] The claim for delimitation of property boundaries can’t be filed against a joint owner against the other. In this case, the only possible solution is the annulment of the joint tenancy. The action of a joint owner against the others is premature. Also, if the land, for whom they want the delimitation, is a common asset of the married couple, they must file the claim together. [9] According to the legal practice [10], the claim for delimitation of property boundaries is at hand, also for other holders of real rights, not only for the owners that registered their rights in the Land Register, inclusively for the extra tabular owners of a right to superficies. The parents’ rights can be acquired through the transmission of legal rights or through the testament. The concrete claim of the complainer, the request for delimitation of two limitrophe parcels, belonging to different owners, represent the subject of the claim for delimitation of property boundaries. This action endorses only the lands for constructions. The delimitation through

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Knowledge Based Organization 2008 International Conference exterior landmarks can be claimed only through the action in division if the construction can be easily divided in lots, in nature. Although the doctrine mentions the possibility of filing the claim for delimitation of property boundaries even when its object endorses the delimitation of two buildings, if between the limitrophe buildings is a free space which is uncertain regarding the boundaries, we consider that, in this case, we can’t talk about the delimitation of the buildings, but of the delimitation of the lands where the buildings are situated. The landmarks are meant to separate the lands; they are signs that indicate their boundaries. They are established according to an agreement between the persons who have neighboring lands or through the disposition of a competent entity (the commission that assigns the property titles, the city hall, and the court of justice). The marks can be walls, fences, stones or landmarks, trees, surfaces that weren’t ploughed etc. Destroying the marks represents an annihilation action meant to make disappear, in any way possible (burning, breaking, ripping, and removing) the objects that represent, serve or symbolize the landmarks. The proof must be brought by both parties because they are interested in coming with proofs in order to establish the boundaries that will be marked through exterior signs. In this situation, we can say that both parties, as far as the proof finding goes, have a divalent quality, of complainer and defendant. [11] Since we are talking about proving a factual situationthe reconstruction of the previous boundary lineany kind of proof is accepted. The material containing the evidence that will be used, will allow the identification of the oldest landmarks. To this matter, maps of any kind or plans realized previously by both parties or by experts can be used and also witnesses’ testimonies, the analyze of the actual landmarks, generally, any information concerning the preservation, the change or the destruction of the landmarks, also aspects from the topography situation realized by both parties or by experts, the hearing of both parties and of the witnesses, an expertise and the research at place which is an indispensable proof in the delimitation process. Besides the material proof, the parties can prove the existence of the oldest landmarks, through documents. That is why the court can

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Knowledge Based Organization 2008 International Conference analyze the situation starting from the property titles brought by both parties. These titles are, in fact, the measurements registered when buying the lands. The maps drawn when registering the right to property in the Land Register have a relative value. This means that the court doesn’t reach a verdict according to these documents; it can always request an expertise in order to find out the real boundary. [12] The court will be compelled, though to take into consideration the boundaries established by both parties with the occasion of the allotment of an asset which is a common property. [13] The claim for delimitation of property boundaries is a real estate, petitory and imprescriptible action. The delimitation of property boundaries is a real action because it is based on the right to property on a land, or on another real right which derives from the right to property. [14] The limitrophe character of the lands, the fact that they are separated neither by constant natural marks, nor by human made marks, do these aspects belong to the delimitation field [15]. If the natural or human boundaries allow the change, the claim for delimitation of property boundaries can be filed. The claim for delimitation of property boundaries is a petitory action because it aims at the delimitation of adjacent properties, it is the expression of an attribute of the right to property or of another real right and it implicates the valorization of a correlative obligation of these rights (in our case the obligation propter rem about the delimitation of limitrophe lands). Though, the delimitation of property boundaries doesn’t compel the complainer to prove his right to property on the parcels where the boundary should be established. If, during the delimitation process, the complainer claims for a specific parcel from the land, claiming that his neighbor possesses it with no right upon it, the claim for delimitation implicates a revendication which means that both parties must prove their right to property. [16] The imprescriptibility of the claim for delimitation of property boundaries is based on the continuous character of the right to property because it isn’t annulled if it is not used. Therefore a landowner can use this attribute of the right to property which allows him to claim the fixation of the exterior landmarks between the adjacent properties.

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Proceeding to the settlement of the claim for delimitation, the judge can’t give parts from the two parcels or dispose a forced change in order to avoid a noneconomic and uncomfortable process. It is said that the judge has no translative powers within this action. [17] Accepting the claim for delimitation of property boundaries has as a result the settlement of a right declarative judicial resolution because the judge doesn’t establish a new boundary, he reconstructs the initial and real boundary of the limitrophe properties. The costs caused by the claim for delimitation and by the fitting out of the dividing boundary are beard, equally by both parties, under the condition that these costs shouldn’t be too much of a burden for one of the neighbors. The exception is when the other one agrees to do these expenses. This resolution has its effects only regarding the delimitation of the adjacent lands and the parties that took part at the legal process. A new claim for delimitation can be filed only if the landmarks disappear. If the delimitation through landmarks was established with the agreement of the parties and they contest it, their claims can be turned to account by the annulment of the convention. [18] The existence of a resolution given as a result of a claim for delimitation doesn’t stop a possible revendication action, in the future, between both parties, upon the lands with no owner because the first legal action didn’t offer the right to property to any of the litigant party. More, the legal practice [19] established that once solved the claim for delimitation of property boundarywith petitory character that regards the defense of the right to propertywhich had as a purpose the delimitation of adjacent properties couldn’t be analyzed again in the frame of a revendication action. Here intervene the positive effects of a judged claim and the indirect efficiency of the previous jurisdictional act prevails. This means that those limits can’t be changed anymore for causes that were previous to the settlement of the first resolution.

References [1] C. Bîrsan, Drept civil. Drepturile reale principale, Bucharest, ALL Beck Publishing House, 2001, p. 232. [2] The Supreme Court has shown, repeatedly that the natural subject of the 316

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delimitation of property boundaries concerns, exclusively, the shape of the land that establishes the complainer’s right to property and not the existence of this right. In the case of this action, the courts can’t decide the right to property on the lands that make the subject of the delimitation of property boundaries. [3] The Court of Appeal Bucharest, The Civil Section, decision no. 1719/4 Octomber 2006, published in Culegere de practică judiciară în materie civilă. 2006, Wolters Kluwer Publishing House, Bucharest, 2007, pp. 36-40. [4] The article 616 from the Civil Code stipulates: “The owner whose land is isolated, that has no exit to the street, can claim to cross his neighbor’s property or to exploit the fund, being obliged, though to compensate him proportionally with the potential damages”. [5] N. Puca, Drept civil. Drepturile reale principale, Bucharest, Universul Juridic Publishing House, 2001, p. 306 and the decision there quoted. [6] L. Pop, Dreptul de proprietate şi dezmembrămintele sale, Bucharest,Lumina Lex Publishing House, 2001, p. 251. [7] Therefore, The Supreme Court decided that within this type of action, the judge doesn’t have to deliver a sentence concerning the existence and the extension of the right to property, but, concerning the shape of the land, that is the subject of the litigation and whose delimitation is marked, decisively through visible landmarks. [8] High Court of Cassation and Justice, The Civil Section and intellectual property, decision no 2153/18 March 2005, published in Journal Dreptul no. 8/2006, pp. 213-214. [9] C. Bîrsan, op.cit., p. 233. [10] High Court of Cassation and Justice, The Civil Section and intellectual property, decision no 123/13 January 2005, taking from www.scj.ro [11] I. Adam, Drept civil. Drepturile reale principale, Bucureşti,ALL Beck Publishing House, 2005, p. 232. [12] C. Perju, Jurisprudenţa civilă comentată a Înaltei Curţi de Casaţie şi Justiţie şi a altor instanţe judecătoreşti, Bucharest, CH Beck Publishing House, 2007, p. 95 şi urm. [13] To this matter, study the High Court’s of Cassation and Justice resolution no. 1213 from February 17, 2005, The Civil Division and the division of intellectual property, published in the magazine The Right, no. 5/2006, pp. 263264 [14] I. Dogaru, S. Cercel, Drept civil. Teoria generală a drepturilor reale, Bucharest, ALL Beck Publishing House, 2003, p. 189. [15] For instance, a natural delimitation of two lands can be considered the course of water, the existence of a hill, a mountain etc. and a human made delimitation can be considered the existence of a public road.

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[16] O. Ungureanu, C. Munteanu, Drept civil. Drepturile reale, Bucharest, Rosetti Publishing House, 2005, p. 267. [17] O. Ungureanu, C. Munteanu, op. cit., p. 267. [18] C. Bîrsan, op. cit., p. 236. [19] The Court of Appeal Bucharest, The Civil Section, decision no. 484/7 September 2006, published in op. cit., pp. 33.

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RECOGNITION OF FOREIGN FOUNDATIONS IN ROMANIA

Asst.Prof. Topor Drumea Roxana

“Spiru Haret” University, Constanţa [email protected]

Abstract In the Romanian society, under sever process of transition and different social issues, the foundations have performed the role of formation and developing of social services, the ones that the state could not provide. The foreign foundations can be recognized in Romania, under the reciprocity clause, under a governmental approbation, by registration in the Foundations and Associations Register hold by the Bucharest Tribunal Clark under the following conditions: they are legally recognized in the state of which nationality they are; their statutory goals do not disregard the public order rules of Romania.

Keywords: foreign foundation, Romanian legal system

The foundations answer the needs of associations being auto conductive and autonomic regarding the public authorities, contribute to both crystallization and affirmation of the civil society, and offer several possibilities of providing services laying on the public wealth to territorial and professional communities. The Romanian society, due to transition process, reflects the apparition and development of juridical entities such as foundations and “non governmental organizations”. In the Romanian society, under sever process of transition and different social issues, the foundations have performed the role of formation and developing of social services, the ones that the state

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Knowledge Based Organization 2008 International Conference could not provide. Thus, social services that respond to some high quality standards and staff that is able to provide such services were developed. Domains of activity of Romanian foundations, under the Association and Foundation Catalogue, issued by the Foundation for Civil Society Development1, are: social services, health, culture, sports, environment, business, human rights, education, philanthropy, international cooperation, and religion. Under the art. 76 and art. 81 din Ordinance no. 26/2000 and art. 43-46 from Law no. 105/1992 regarding the international law juridical rapports regulation, foreign foundations may be recognized in Romania, under the reciprocity clause, under a governmental approbation, by registration in the Foundations and Associations Register hold by the Bucharest Tribunal Clark under the following conditions: they are legally recognized in the state of which nationality they are; their statutory goals do not disregard the public order rules of Romania. Analyzing the text, one can deduce that only association and foundations, no other associative structure without patrimonial goal legally constituted in the state of origin are subject to the recognition procedure of foreign juridical entities without patrimonial goal, as long as they are registered in the Association and Foundation Register, the category being the only criteria. From a restrictive interpretation of the legal text results that recognition procedure of the Romanian legal entity on the Romanian territory is coordinated by its functionality idea in Romania, creating representative and representative registration. But the question is that, once the jurisdictional procedure took place, under the competence aspect, exclusively in front of the Bucharest Tribunal, considering the articles 8 to 12, texts that stipulate the obtaining of the juridical personality as a special outcome of a legal entity registration in the special Register, should one consider that, through the recognition, the foreign association or foundation give birth to a representative in Romania, and thus, the registration lead to acquiring juridical personality.

1 Association and Foundation Catalogue, Foundation for Civil Society Development Print, Bucharest 2007, p. 18 320

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The recognition effect, is not therefore, the setting up of a legal person, of Romanian nationality, the outcome is the lengthening of the civil capacity in Romania. Only the modality of civil manifestation of the foreign legal entity intervenes through representation, which has a functional autonomy, without having the civil identity separately regarding the constituent legal entity. The legal text presents as well a derogatory peculiarity both from the settling procedure of ordinance and from the old regulation of Association and Foundations Register organization, federation Register and national Register of juridical entities without patrimonial goal, meaning that the Bucharest Tribunal when applies this regulation, opens the special Register of foreign associations and foundations recognized in Romania, along with the Register of federation. The recognition procedure of foreign legal entity presents two steps: 1. The first step implies exclusively the will of the foreign legal entity to be recognized on the Romania territory; 2. The second is based on formalities of recognition through state authority intervention. Considering that the foreign legal entity without patrimonial goal is legally settled in the state of which nationality it has, its will, showed with the purpose of its recognition by the Romanian state, through its representation, means: 1. the foreign association/foundation stuff decision that demands the recognition, decision that must be conformed with its statutory acts; 2. the elaboration of the further representation of the legal entity. The recognition formalities in corroboration with Romanian authority must follow two distinctive stages: pre-judiciary and judiciary. In the pre-judiciary stage, we distinguish the governmental preliminary approval obtaining necessity, as a governmental decision, by the art. 76 paragraph (2) letter e) ruling, ordinance no 26 from 2000. Within the judiciary phase, this enquiry shall be enclosed by:

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1. The constituency act of the foreign legal entity in the state of which nationality it has, in authenticated and certified copies; 2. The statute of the foreign legal entity, in authenticated and certified copies; 3. The chief committee decision that attests the will of the foreign legal entity to be recognized in Romania, in authenticated and certified copies; 4. The internal regulation of the further representative in Romania, including elements of business address, the juridical capacity and legal representatives of the foreign legal entity, in authenticated and certified copies; 5. The Romanian Government Decision of approval of the recognition enquiry of the foreign solicitant legal entity in Romania. The registration formalities imply the intervention of the court, the Bucharest Tribunal, in all cases, no matter where the business address of the foreign legal entity representatives is settled. The court shall analyze the cumulative conditions of reciprocity and apply the required procedure, by the articles 8-12 of the ordinance, common to the registration of Romanian associations and foundations. The article 81 of the Ordinance, regarding the associations and foundations that have the quality of a foreign legal entity and remains enforceable the following regulations: art. 43 and next from the law no. 105/1992, regarding the regulation of juridical international private law statements. Thus, the recognition decision is published in the Romanian Official Journal and is liable to appeal within 60 days, from the last date of publication; for making the appeal is entitled any person interested, invoking the disrespect of any conditions. The recognized foreign foundation in Romania benefit by all the rights to which it is entitled due its organic internal regulation, excepting those rights that the state denies it, for they are unlawful. It results that the recognition may be done with reserves, by the convention made between states at this respect. The foundation, as well, is subject to the Romanian law, in regard with its economic, social, cultural activities. The fusion of some legal entities of different nationalities may be

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Knowledge Based Organization 2008 International Conference carried out under the condition of fulfillment of cumulative conditions regulated by its internal organic statute. Though the fusion domain of the legal entity without any patrimonial goal is not subject to the Ordinance no. 26 from 2000, an inadmissibility conclusion cannot be drawn. In absence of any other specific regulations, the Decree no. 31 from 1954 shall be applied. The regulations stipulated in the article 77 paragraph (1) of the Ordinance state that the foundation and association, settled as Romanian legal entities, may be entitled of the property right or other real rights on land in Romania, independently from the origin of the founders. It is to be underlined that the regulation does not derogate from the particular rulings of the landed property legislation, which institutes specials interdictions on acquiring land property for legal entity that do not have Romanian nationality. Corroborated with these regulations, in cases of dissolution or liquidation, the burden of selling those lands only to persons that have the capacity of acquiring real estates rights lies with the liquidators within 1 year, after the decision remained definitive and irrevocable. In regards with the associations and foundations that are foreign legal entities the enforceable regulations are the 43 and the following from the Law no. 105/1992, regarding the regulation of juridical international private law statements.

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LEGAL ASPECTS OF THE OBLIGATION TO GRANT ACCESS TO SHIPS IN DISTRESS AT SEA

TA Adăscăliţei Oana, PhD

Maritime University of Constanţa [email protected]

Abstract The need for specific legal arrangements governing ships in distress and places of refuge is one of the most topical problems in both public and private maritime law. Quite apart from the headline-grabbing shipping disasters involving the loss of the Erika (1999) and the Prestige (2002), several other incidents, such as those involving the Castor in the Mediterranean (2000) and the Vicky off the Belgian coast (2003), also attracted the attention of the IMO, the CMI, the Bonn Agreement for cooperation in dealing with pollution of the North Sea, the European Union, the national maritime authorities, the maritime industry in general – comprising ship owners and operators, P & I Clubs, port authorities, vessel traffic services, rescue services, pilots and salvors – and environmentalists. This article aims at examining provisions stipulated by a series of international conventions, the main legal theories and the solutions adopted by IMO in this respect.

Keywords: ships, distress, refuge, IMO, authorities;

The legal status of places of refuge for ships in distress is one of the most argued issues of public and private maritime law. This sad topicality is mainly owed to maritime disasters which resulted in pollution, such as the Erika (1999), the Castor (2000), the Prestige (2002) and Vicky (2003). In this context, the dominant issue on the agenda of the International Maritime Organization (IMO), United Nations and of the International Maritime Committee, the Bonn Agreement on Pollution Prevention in the North Sea, of EU, the 324

Knowledge Based Organization 2008 International Conference national maritime authorities, the maritime industry in general- comprising ship owners and operators, P & I Clubs, port authorities, vessel traffic services, rescue services, pilots and salvors-and environmentalists. The key to the problem resides in the question whether a ship in distress has the right to enter a port of refuge, or, whether a coastal state and/or a port authority has the right to refuse a ship in distress. The answer is both in the legal theories and in the adopted solutions. Thus, CMI established the International Subcommittee on Places of Refuge, and IMO approved Resolution A 949(23) Guidelines on Places of Refuge for Ships in need of assistance (2003) and Resolution A 950(23) Maritime Assistance Services (MAS) (2005). In 2003 most of the EU Member States designated places of refuge by applying the EU Traffic Monitoring Directive 2002/59/CE. Member States like UK and Ireland responded differently to the publicity of places of refuge for fear they might attract maritime lepers from everywhere. The regional solution offered by the Directive posed the necessity of creating a specific legal framework by adopting an international maritime convention. An international convention on places of refuge for ships in distress should take into account the principles to follow with respect to the decision-making structure and criteria, the liability of authorities, especially port authorities and harbour masters’ offices, the reimbursement of costs and compensation of damage incurred. Last but not least it is necessary to create a motivation in order to encourage states to allow access of ships in distress to their ports. This can be achieved granting ports which play a vital role in almost every salvage operation an assistance reward1. Practical solutions adopted currently by international legal instruments are based on the four legal theories regarding the right of access of ships in distress to ports or places of refuge: the absolute right of access of ships in danger; the absolute right of the states to deny access to ships in distress; balance of interests - states should establish according to every case what are the risks they may take and grant access accordingly; a good management on the basis of the right of access.

1 Eric van Hooydonk Les lieux de refuge pour les navires en detresse, Droit maritime français, 2004, p. 8010–811; 325

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The first legal theory – the absolute right of access of ships in distress – is based on various international, European and national legal regulations as well as on the texts of various international Conventions. The obligation to grant access to ships in distress may be regarded as a corollary to these specific treaty obligations: the SAR Convention which obliges coastal states to organize efficient rescue services, OPRC Convention which establishes a national system for responding promptly and effectively to oil pollution incidents, the UN Law of the Sea Convention, 1982, obliges states to protect and preserve the marine environment. The Geneva Convention on Territorial Sea and the Contiguous Zone, 1958, in its French version, recognized the right to “relâche forcée”, i.e. calling at a port of refuge. Moreover, the Convention on the International Regime of Maritime Ports, 1923, contains no specific provisions regarding the right of access, as the parties to the convention considered it as being self- evident and absolute, so its specification in the above mentioned Convention was not made at all. The Institute of International Law, without much preliminary discussion, in itself an indication of the self-evident nature of this point of view, confirmed the right of access to ports of refuge in resolutions dating from 1898, 1928 and 1957. The criticism of this theory resides in the fact that it does not observe the modern practice of states perfectly, as ships in distress are frequently denied entry and, moreover, the theory of the absolute right of entry ignores the environmental risks that the entry of a damaged ship might entail1. The second legal theory – the absolute right of refusal of access for the ships in distress – is supported by a part of international law specialists who argue that coastal states or port authorities have a clear-cut right to refuse ships in distress and that in consequence there is no right of access whatsoever. The assertion is based on the sovereignty right which is not restricted by any express treaty provision, on the basic right of self-protection of states under international law and to the law of necessity, on the International

1 Eric van Hooydonk, The obligation to offer a place of refuge to a ship in distress. A plea for granting a salvage reward to ports and an international convention on ports of refuge, CMI Year Book 2003 Vancouver I, Antwerp, Comité Maritime International, 2004, p. 414; 326

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Statute of Maritime Ports that allows deviations from the Statute when the safety or vital interests of the state are imperilled. Another argument in favour of this theory is the fact that the right to refuse ships in distress is recognized in the London Intervention Convention, the London Salvage Convention 1989, the European Directives on Port State Control and Traffic Monitoring, the Bonn Agreement Counter Pollution Manual and the recent IMO Guidelines on Places of Refuge. An extra argument is derived from the contemporary attitude of states to the effect that the international custom of guaranteeing access no longer exists. This is because the repeated refusals mean that the general practice of states (usus) has changed and the conviction that there is a legal duty to grant access (opinio juris) has been abandoned by states. Nowadays, the enormous pollution risks that did not have to be considered in the last century do not allow an absolute right of access to ships in distress to ports and places of refuge. The criticism toward this theory is about the fact that the right of denial ignores the unanimous legal doctrine of customary international law as well as the recent treaties and considerations. Consequently, an objection to this on the basis of the mere sovereignty of the state over its internal and territorial waters cannot be sufficient grounds for refusal of access. A thorough analysis of the above mentioned legal instruments: the London Intervention Convention, the London Salvage Convention 1989, the European Directives on Port State Control and Traffic Monitoring, the Bonn Agreement Counter Pollution Manual and the recent IMO Guidelines on Places of Refuge reveals that they do not question the customary right of access, but omit or deny the designation of places of refuge1. The change in state practice might not simply indicate the disappearance of a rule of the customary international law, but could or perhaps it should be regarded as a breach of this rule. The fact that under some circumstances the state may deny access does not necessarily imply that this right of access does not exist, but may also depend on the relative nature of the right. Recent state practice does in fact include

Knowledge Based Organization 2008 International Conference various examples of the reaffirmation of the right of access. A final objection to the theory of the absolute right of refusal is political rather than legal in nature and argues that the theory of an absolute right to refuse ships in distress leads to what can be termed a “not in my backyard syndrome”, with states all too easily driving ships in distress away, without having adequate regard for the interests of neighbouring states and coasts. The third legal theory – a balance of interests. According to this theory states should pursue a balance between the interests, rights, and/or risks concerned, another followed by an ad hoc decision regarding the accept or refusal. When the interests or rights of the coastal state or the risks to which it is exposed are greater than those of the ship, access may be refused. This view has been applied in various recent judicial decisions (e.g. the Long Lin and the Toledo) and is supported by some legal writers (e.g. L.M.Hydeman and W.H.Berman). The legal basis is to be found in the Intervention Convention, in the IMO Guidelines on Places of Refuge and in Article 20 of the European Traffic Monitoring Directive. The criticism to this theory refers to the fact that the coastal state can hardly be regarded as being neutral in assessing the rights, interests and risks. The lack of a neutral decision-making body, may lead to a great temptation to allow the distressed ship to drift on. Moreover, there is a real danger that the decision maker will lack the necessary nautical expertise, be subject to political pressure, fail to give grounds for his decision and neglect to take account of regional and international interests1. The Fourth theory – Good management on the basis of the right of access. This is actually the third theory with the addition of the following components: the assumption that access exists and the principles of good decision-making. According to this principle, access must be the norm, and refusal the exception based on the following grounds: recognition of the right of access is the best way to prevent pollution; it encourages effective salvage operations and has

Knowledge Based Organization 2008 International Conference never been viably contradicted by its opponents. Last but not least refusal would be the last remedy and the state may invoke necessity only under certain circumstances. According to the aforesaid principles, authorities should be able to refuse a request for access when it has been shown that there are insuperable objections. Here the burden of proof must be borne by the authorities themselves, so that the right of every ship to access may be presumed, as per several treaties (art. 9 of the Agreement on Waterway Transportation signed in Hanoi on 13 December 1998 by Cambodia and Vietnam, and art. 18 of the Agreement on Commercial Navigation on Lancang-Mekong River signed in Tachileik (Myanmar) on 20 April 2000 by China, Lao PDR, Myanmar and Thailand). This principle favours the idea of a single decision-maker having the power and ultimate responsibility for deciding on the reception of ships in distress. In addition, the decision- maker must be a neutral person, have the necessary expertise and obtain neutral expert advice, consult with port authorities, salvors, vessel traffic services, rescue services, ship repairers and pilots. He must make his decision on the basis of a specific contingency plan, and take regional and international interests into consideration (not just local interests). The international interests may be based on the international legal principle of good neighbourliness (bon voisinage) and the principle of international solidarity1. The decision-maker must also always state the reasons for his decision. An interesting example in terms of decision-making factors is the British model of SOSREP where a sole independent entity, made up of technical experts, takes. on behalf of the British government, all the necessary decisions regarding ships in distress. This is how all administrative disagreements and conflict decisions are avoided and a coherent and efficient decision is provided. The SOSREP structure is based on the Merchant Shipping Act 1995. The organisation of the decision- making process is similar to USA, South Africa and France. This fourth solution is obviously the best one confirmed by the IMO Guidelines on Places of Refuge for Ships in need of assistance, the

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European Traffic Monitoring Directive and the SOSREP British structure1. As a result of doctrine debates, in 2003 IMO adopted Resolution A 949(23) Guidelines on Places of Refuge for Ships in need of assistance. Resolution A.949 (23) Guidelines on places of refuge for ships in need of assistance are intended for use when a ship is in need of assistance but the safety of life is not involved. Where the safety of life is involved, the provisions of the SAR Convention should continue to be followed. The guidelines recognize that, when a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration is to transfer its cargo and bunkers, and to repair the casualty. Such an operation is best carried out in a place of refuge. However, to bring such a ship into a place of refuge near a coast may endanger the coastal State, both economically and from the environmental point of view, and local authorities and populations may strongly object to the operation. Therefore, granting access to a place of refuge could involve a political decision which can only be taken on a case-by-case basis. In so doing, consideration would need to be given to balancing the interests of the affected ship with those of the environment2. A second resolution, A.950(23) Maritime Assistance Services (MAS), recommends that all coastal States should establish a maritime assistance service (MAS). The principal purposes would be to receive the various reports, consultations and notifications required in a number of IMO instruments; monitoring a ship's situation if such a report indicates that an incident may give rise to a situation whereby the ship may be in need of assistance; serving as the point of contact if the ship's situation is not a distress situation but nevertheless requires exchanges of information between the ship and the coastal State3.

1 Eric van Hooydonk Les lieux de refuge pour les navires en detresse, Droit maritime français, 2004, p.811; 2 IMO Resolution A 949(23) Guidelines on Places of Refuge for Ships in need of assistance(2003); 3 IMO Resolution A 950(23) Maritime Assistance Services (MAS) (2005); 330

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Conclusions The European Traffic Monitoring Directive 2002/59/CE and IMO Resolution A 949(23) Guidelines on Places of Refuge for Ships in need of assistance had a dramatic contribution to the improvement of the legal framework regarding access of ships in distress to ports of refuge. Nevertheless, there still are several defects because of the lack of an international maritime convention in this field: lack of a firm answer regarding the right of access; lack of uniformity of rules regarding liability of coastal and port states; inexistence of incentives for ports to accept ships in distress.

References [1] Eric van Hooydonk, The obligation to offer a place of refuge to a ship in distress. A plea for granting a salvage reward to ports and an international convention on ports of refuge, CMI Year Book 2003 Vancouver I, Antwerp, Comité Maritime International, 2004, p. 403–445, abridged in Lloyd's Maritime and Commercial Law Quarterly, 2004, pp. 347–374; [2] Eric van Hooydonk Les lieux de refuge pour les navires en detresse, Droit maritime français, 2004, pp. 808–815; [3] www.imo.org IMO Resolution A 949(23) Guidelines on Places of Refuge for Ships in need of assistance (2003); [4] www.IMO.org IMO Resolution A 950(23) Maritime Assistance Services (MAS) (2005);

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SECURITY AND FACILITATION ISSUES RELATED TO THE CARRIAGE OF CLOSED CARGO TRANSPORT UNITS AND OF FREIGHT CONTAINERS ABOARD SHIPS

TA Adăscăliţei Oana, PhD

Maritime University of Constanţa [email protected]

Abstract The Maritime Safety Committee (MSC), its 82nd session from 29 November to 8 December 2006, and the Facilitation Committee, established a Joint MSC/FAL Working Group which met during the MSC session and began work on container and supply chain security, with a view to ensuring that the right balance is struck between enhanced security and the facilitation of maritime traffic. The Group, in its work, took into account the SAFE Framework of Standards to secure and facilitate global trade (the SAFE Framework of Standards) and the Authorized Economic Operator Guidelines, adopted by the World Customs Organization (WCO) in June 2005 and June 2006, respectively. The SAFE Framework of Standards was developed by WCO in response to a request from the 2002 SOLAS Conference which adopted SOLAS chapter XI-2 and the ISPS Code. This article aims at highlighting the role of IMO in ensuring security and facilitation of cargo carrier units and of freight containers on board ships by the development of the relevant international instruments - SOLAS Convention, FAL Convention, ISPS Code.

Keywords: ships, security, maritime traffic, IMO;

The devastating terrorist attacks on September 11, 2001 in the USA accelerated the development and adopting of IMO security maritime procedures and gave shape to terrorist organizations which use ships as weapons or as propulsion systems for world mass 332

Knowledge Based Organization 2008 International Conference destruction weapons (WMD). In this context, the security systems and procedures for the containerized cargo should not concentrate only on the prevention of the terrorist attacks. They should prevent pilferage loss, smuggling illicit medicine, weapon trafficking, illegal emigration and immigration and men, women and children traffic; illegal traffic with nuclear materials on board the ship. Lives of the sailors as well as ships are lost and the environment is polluted by carrying undeclared dangerous merchandize improperly described and transported. The reaction concerning the attacks on September 11 on an international level was rapid and impressive. The cooperation between IMO and CWO have widened the spectrum over the maritime security for cargo and containers1. As a result of a consultative process involving WCO member Customs administrations and representatives of the private sector, the WCO Council adopted in June 2005 the Framework of Standards to Secure and Facilitate Global Trade (Framework of Standards). In June 2006 the WCO Council adopted Authorized Economic Operator Guidelines (AEO Guidelines) which were appended to the Framework of Standards. In June 2007 the WCO Council agreed to merge the Framework of Standards with the AEO Guidelines to form one integrated document to be called the SAFE Framework of Standards. Although voluntary, at the time of issuing this circular, 149 States had expressed to WCO their intention to implement the SAFE Framework of Standards2. The SAFE Framework of Standards is the only global instrument encouraging Customs authorities to implement a series of measures to enhance the security and facilitation of international trade. It rests on twin pillars; a Customs to Customs pillar and a Customs to Business pillar. The Customs to Customs pillar seeks to encourage co-operation among Customs and other competent authorities on the basis of common and accepted standards for data exchange and risk profiles to maximize the security and facilitation of the international supply chain. Central to this pillar is the use by Customs authorities of

1 www.imo.org Chris Trelawny, Senior Technical Officer, Maritime Security Section, International Maritime Organization (IMO), Containerised cargo security -a case for “joined- up” government, IMO News No.2 2006, page 10; 2 www.imo.org, Maritime security, Container security; 333

Knowledge Based Organization 2008 International Conference advance electronic information as part of a risk-based cargo security strategy. Requirements on the use of high security mechanical seals, as part of a seal integrity programme for containers, form an important element of this pillar and have been allocated a separate appendix. This programme, which is based on the use of high security mechanical seals that meet or exceed ISO 17712:2003 on Freight containers mechanical seals or other then-existing ISO Standard1, requires seals to be affixed at the point of stuffing of the container and checked at key interchange points along the supply chain until release from Customs. The Customs to Business pillar which specifies the need for Customs authorities to establish partnerships with the private sector, particularly though the creation of an international system of Authorized Economic Operators (AEOs) whereby businesses that offer a high degree of security guarantees in respect of their role in the international supply chain can, by meeting certain criteria in the SAFE Framework of Standards, receive tangible facilitation benefits, such as the quicker movement of low risk cargo through Customs1. The IMO has begun to consider proposals to integrate appropriate cargo security procedures based on or compatible with the standards of the WCO SAFE Framework into international legislation such as the 1965 Convention on Facilitation of International Maritime Traffic (FAL), as amended, and the 1974 Safety of Life at Sea Convention (SOLAS), as amended. To that end, a joint Working Group has been established by the Maritime Safety Committee (MSC) and the Facilitation Committee (FAL), (MSC/FAL Working Group). It met during the 82nd session of the MSC (29 November-8 December 2006) to begin work on container and supply chain security, and hold initial discussions on the need to develop any relevant amendments to the SOLAS and/or FAL Conventions. Although no specific decisions were taken on this issue, by MSC at its 82nd session, member Governments and international organizations were urged to consult with their experts on all aspects of the security and facilitation of maritime cargo and to submit their proposals on the security and facilitation of the movement of closed cargo units and of freight

1 www.imo.org, Maritime security, Container security; 334

Knowledge Based Organization 2008 International Conference containers to the next session of the FAL Committee (FAL 34). A number of proposals were submitted at FAL 34 (26–30 March 2007). After discussion, it was suggested that a joint MSC/FAL circular be issued soon in order to raise awareness in relation to the SAFE Framework of Standards and the AEO Guidelines. A draft joint MSC/FAL circular on securing and facilitating international trade was approved by the FAL, and the secretariat was instructed to issue it once approved by the MSC 83 (to be held from 3 to 12 October 2007). The draft circular reiterates the need to raise awareness of the SAFE Framework and AEO Guidelines among government agencies, local administrations and the shipping and port industries, and recommends that member States, when developing guidance on the implementation of the FAL Convention, SOLAS chapter XI-2 and the ISPS Code, in the context of the SAFE framework, “should include statements to the effect that: SOLAS chapter XI-2 and the ISPS Code sufficiently set out the requirements on ships and port facilities with respect to the security and facilitation of the movement of closed cargo transport units and of freight containers transported by ships, taking into account the appropriate references in the ISPS Code; The WCO has primacy over supply chain security, with IMO’s role being limited to those aspects related to ships and port facilities; Port facilities and ships are not responsible for maintaining the physical integrity of closed cargo transport units and of freight containers other than those in their custody; The (SAFE Framework of Standards and the AEO Guidelines), including the risk-based cargo security strategy set out therein, should be taken into account in policies and practices with respect to the FAL Convention, SOLAS chapter XI-2 and the ISPS Code; Communication, co-ordination and co-operation at both national and local levels, between ships, port facilities, Customs and other competent authorities are of utmost importance.” One proposal provided a comparison of the WCO AEO Guidelines with the ISPS Code and the FAL Convention, and suggested some focus on areas where individual elements of the AEO Guidelines, applying to a vessel or port facility, might be taken into account by these IMO instruments. After discussion, the Joint MSC/FAL Working Group agreed that there was no need to amend the FAL Convention, SOLAS

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Knowledge Based Organization 2008 International Conference chapter XI-2 or part A or part B of the ISPS Code. However, it acknowledged that there is a gap in knowledge and understanding of the relationship between the ISPS Code, the FAL Convention, and the SAFE Framework of Standards and the AEO Guidelines, and recognized that there would be value in addressing this gap. In this context, the Working Group emphasized in particular the importance of communication between ships, port facilities, Customs and other competent authorities. The FAL Committee also noted that the United States, had catalogued, on the basis of extensive validations and site visits, port security best practices and supply chain best practices, and had made the catalogues available1. According to a presentation by the observer from WCO at the FAL 34 meeting, the SAFE Framework, the seal integrity programme and the AEO Guidelines would be reviewed by the WCO Council in July 2007, and were expected to be integrated into a single document. It is also worth noting that several important amendments (July 2005) to the Convention on Facilitation of Maritime Traffic (FAL Convention) entered into force on 1 November 2006. They include new recommended practices to encourage the use of electronic systems for exchanging data and, generally, for simplifying procedures to enhance the facilitation of trade. The new recommended practices include transmission of data, required in connection with the arrival, stay and departure of ships, persons and cargo, to a single point (the “Single Window” concept) and use of pre-arrival data for subsequent release and clearance of passengers and cargo. Amendments to SOLAS, adopted by the IMO in 2002, including in particular the International Ship and Port Security (ISPS) Code, which entered into force on 1 July 2004, continue to represent the most important international set of rules for the security of ships and port facilities. These new rules imposed wide-ranging obligations on Governments, shipping companies and port facilities. Almost three years since its entry into force, the ISPS Code has proved to be less disruptive in terms of control measures than had been feared2.

1 www.unctad.org Review of Maritime Transport 2007, Report by the UNCTAD secretariat, United Nations, New York and Geneva, 2007, page 106; 2 www.unctad.org Review of Maritime Transport 2007, Report by the UNCTAD secretariat, United Nations, New York and Geneva, 2007, page 106; 336

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The IMO’s Maritime Safety Committee (MSC) has regularly issued a number of guidance circulars to assist in the implementation of and compliance with the requirements of ISPS Code. Most recently, at its 82nd session in December 2006, the MSC, among other things: Adopted a guidance circular entitled “Interim guidance on voluntary self-assessment by companies and company security officers (CSOs) for ship security” (MSC.1/Circ 1217); Began consideration of issues relating to the security aspects of the operation of ships which do not fall within the scope of SOLAS chapter XI-2 and the ISPS Code, including cargo ships of less than 500 grt which travel on international routes. It was agreed, inter alia, that any guidelines developed should be non-mandatory. Furthermore, the MSC agreed to recommend the inclusion, as a high-level action for the 2008–2009 biennium, of the development of model legislation on maritime security; Approved the Revised recommendations to the safe transport of dangerous cargoes and related activities in port areas (MSC.1/Circ.1216), which include provisions intended to address the security of the transport of dangerous goods by sea; Approved amendments to the IMO/ILO/UNECE Guidelines for packing of cargo transport units (MSC/Circ.787), to address the need for security procedures to be developed and followed by all concerned. These guidelines will be transmitted to the ILO and UNECE for their consideration and acceptance; Made progress in the development of the technical specifications of the components of the Long Range Identification and Tracking (LRIT) System, including the technical specifications for the International LRIT Data Exchange and the International LRIT Data Centre, and for communication within the LRIT System network; protocols for the development testing of the LRIT System and for the testing of the integration into the system of new LRIT data centres; and guidance on setting up and maintaining the Data Distribution Plan; Continued to make efforts to incorporate security related provisions into other international legal instruments, such as the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention) and the STCW Code. Relevant IMO instruments in the context of the United Nations

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Global Counter-terrorism Strategy include the amendments to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and its 1988 Protocol, adopted by way of two Protocols in October 2005. Amendments introduced by the 2005 SUA Protocol to the 1988 SUA Convention included the following: A broadening of the list of offences, to include the offence of using the ship itself in a manner that causes death or serious injury or damage and the transport of weapons or equipment that could be used for weapons of mass destruction and inclusion of new procedures related to the transportation of WMD (Article 3 bis); Introduction of provisions for the boarding of ships where there are reasonable grounds to suspect that the ship or a person on board the ship has been or is about to be involved in the commission of an offence under the 1988 SUA Convention (Article 8 bis); A new definition for “transport” to the effect that it “means to initiate, arrange or exercise effective control, including decision-making authority, over the movement of a person or item” (Article 1(1)(b))1. Amendments introduced by the 2005 SUA Protocol to the 1988 SUA Protocol extended the scope of provisions on the new offences to fixed platforms in the continental shelf, as appropriate. When implementing these amendments, particularly when boarding, States Parties should apply important safeguards, so as to avoid any possible negative effects. These include not endangering the safety of life at sea; ensuring that all persons on board are treated in a manner which preserves human dignity and in keeping with human rights law; taking due account of the safety and security of the ship and its cargo; ensuring that measures taken are environmentally sound; and making reasonable efforts to ensure that a ship is not unduly detained or delayed. The Protocols were open for signature from 14 February 2006 until 13 February 2007. Thereafter, they will remain open for accession. As at 13 February 2007, 18 States had signed, subject to ratification, approval or acceptance, the 2005 SUA Protocols. As at 23 March 2007, one State had deposited an instrument of accession with

1 www.unctad.org Review of Maritime Transport 2007, Report by the UNCTAD secretariat, United Nations, New York and Geneva, 2007, page 107; 338

Knowledge Based Organization 2008 International Conference the IMO Secretary- General. As also noted during the FAL 34 meeting in March 2007, the development of national legislation to implement the 2005 SUA Protocols is somewhat complex as it touches on all of the counter-terrorism conventions and needs to be in accordance with national and international law, in particular human rights law, refugee law and humanitarian law; and IMO should continue to assist States in implementing appropriate legislation.

Conclusions Adopting the new international legal frame in which CWO has the supremacy of the providing chain and IMO is limited at the legal aspects concerning ships and harbour facilities, shows the international community interest for the security of the maritime transport.

References [1] www.imo.org Chris Trelawny, Senior Technical Officer, Maritime Security Section, International Maritime Organization (IMO), Containerised cargo security -a case for “joined-up” government, IMO News No.2 2006, pp. 10-12. [2] www.imo.org, Maritime security, Container security. [3] www.unctad.org Review of Maritime Transport 2007, Report by the UNCTAD secretariat, United Nations, New York and Geneva, 2007, pp. 105-107.

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ASPECTS OF APPLYING COMMUNITARIAN LAW BY THE PARLIAMENTS OF MEMBER STATES OF THE EUROPEAN UNION

TA Apostolache Mihaela-Adina

“Petroleum-Gas” University, Ploiesti [email protected]

Abstract The role of member states regarding the putting in execution of the communitarian law has it’s juridical base in the general oblige of collaboration stipulated in the European Treaties (article 5, that became article 10 from the CE Treaty, article 192 from the EURATOM and article 86 of the CECA Treaty), or in the special attributions accorded by the institutions in the documents of derived law. Applying communitarian law by the member states appears under three main forms: normative application, administrative application and judicial application.

Keywords: communitarian law, normative application, administrative application, judicial application

Having in sight the originality and the specific elements that characterize the communitarian law, to the national parliaments have a role of the most important in integrating juridical systems and constitutions of different countries in European juridical order, ensuring the synchronization and compatibility of internal constitutional norms with the principles and basic norms of the EU. Although “adopting communitarian law is concentrated at the level of communitarian institutions, they do not enjoy monopole regarding effectively putting in practice this right, entrusted most 340

Knowledge Based Organization 2008 International Conference often to the authorities of member states”. [6] Such a dissociation between the legislative competence and the executive competence has it’s origin in the communitarian system, with a functional character, of assigning competences. [5] The role of member states regarding putting in execution of the communitarian law has it’s juridical basis in the general obligation of collaboration stipulated in European Treaties (art.5, that became art. 10 in the CE Treaty, art 192 from the EURATOM Treaty and art 86 from the CECA Treaty), or in special attributions grated by institutions in documents of derived law. Applying communitarian law by the member states appears under three main forms: normative application, administrative application and judicial application. [7] Normative application is realized depending on the nature of the communitarian texts that will be put in practice that can present different degrees under the aspect of normative necessary supplements. So there must be keep in sight the communitarian derived law. The nature of stipulations does not solicit national normative supplements. Practice does show the constant by the communitarian institutions of the parliaments’ ability to adopt certain documents regarding the applying of stipulations. These documents can be simple measures of execution, but some times can present a superior normative degree because if the freedom given to national authorities, in the hypothesis that the Court is called to control such a practice that risks to endanger the uniformly applying of the stipulations. [8] The fact that the stipulations foresee the possibility of “national interventions of supplementing” [6] it is commonly linked to the necessity of motivating adopted solutions by the communitarian institutions. Thus, adopted measures by the national parliaments trough laws that respond to a juridical need. In the absence of a general competence of settling sanctions, especially penal ones that sanction the violation of communitarian stipulation, the communitarian institutions can foresee that the member states will have to settle administrative or penal sanctions. [3] The intervention of national normative measures in applying

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Knowledge Based Organization 2008 International Conference stipulations could not limit to the cases in which these measures are foreseen by stipulations; the communitarian jurisprudence devoting the obligation of member states to intervene fore repairing the issues of communitarian stipulation. The directives, trough their nature, impose normative national supplements, as they limit in fixing results, leaving member states the election of forms and modes for reaching the objectives, that presumes the adoption of national texts of transposing directives in national law. Even the precise character of the directives does cross out this necessity. The transpose will have to be done by national texts that retake the national dispositions that go over the simple transposing, dispositions that will states different ways if applying adopted texts. The decisions are mandatory, but they can, when addressed to member states, to necessitate administrative measure of national appliance. Administrative application of the communitarian law is done trough national authorities. In principle, besides the competition domain, a port of the administration of structural funds and some research programs inside the CE treaty, administration of communitarian policies is of national administration competence. National jurisdictions can have an important role in applying communitarian law. As show in a decision of the court of first instance, national jurisdictions appear as communitarian jurisdictions of common law [9], in contrast with CJCE or the first instance court, whose competences are attributed according to treaties. An analysis of applying communitarian law by the member states has show different aspects. Thus in Belgium it has been seen a participation without major problems to the communitarian juridical order, using the intervention of the national parliament for normative application. Communitarian norms are put in execution trough the procedure of legislative delegations that authorize the executive to put in practice the directives. As in France, the State Council has an important consultative role in examining transposing texts. The direct effect of the communitarian law was deducted from the fact that “treaties that have created communitarian law have instituted a new juridical order in favor of which states have limited their exertion of

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Knowledge Based Organization 2008 International Conference sovereign powers in the domains determined by these treaties”. [10] In Austria the legislative power is exerted by the two Chambers of Parliament (Nationalrat) that can stop the opposition formulated by the Bundesrat at adopting a document. The European law is applied by the federal units (Länder) in their competence domains. In the situation in which a Land does not do it’s obligation, act observed by the European Community Court of Justice, the competence will be transferred to the federation. The Austrian system allows the integration of juridical communitarian norms in internal law order, but, in the absence of special dispositions in the national constitution and because of the dualist nature of the national juridical system, affirming the primate of communitarian law is left in the competence of the national judge. Another state in which a powerful implication of the national parliament in the European process is visible, keeping under intense control is Denmark. Not the adherence to institutive treaties but especially the new engagements linked to communitarian evolution raised a series of problems. In Denmark, the one that oversees the correct application of communitarian documents is the Minister of External Affairs. According to adherence laws, competences can be delegated to the executive in applying communitarian law that constitutes, thus, the monopole of the Parliament. The direct effect if communitarian law was express recognized by the adhering law. In Finland, in the absence of express dispositions referring to the reports between communitarian law and national law, the national judges must recognize in practice the direct effect of the first one. In practice “the dualist finish tradition is interpreted in a supple way, meaning in the form of a monism, that allows the applicability of treaties in the internal law order”. [1] Applying communitarian law in France is characterized trough a powerful prominence if the executive, in the detriment of the legislative. Judicial applicability was a long time marked by the misalignment between the positions expressed by judiciary jurisdictions, from the administrative ones, the evolution of the second ones reducing, finally, the initial divergences. The State Council has

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Knowledge Based Organization 2008 International Conference recognized the primate of communitarian rules over internal law, administrative jurisdictions applying in the last years, the same principles. The direct effect was deducted from the superior authority of the treaties, instituted by art 55 from the constitution. Although they recognized the direct effect of regulations, the French jurisdictions were reticent in admitting the same effect in the case of directives, initially affirming that “a communitarian directive, in contrast with a regulation or decision, does not modify internal law in the absence of an applying law”. Afterwards, this point of view was changed, in the present the effect of the directives being unanimously admitted by internal jurisdictions. Regarding the applicability officially of the communitarian law by the judge, the French Court of Cassation admitted the possibility even the obligation of the ordinary judge to invoke officially the communitarian law. Germany has remarked itself “trough a ratification of the constitutive treaties without major difficulties, in the context of political consensus without precedent” [1]. The federal character of the states raised the problem of the mode in which the federal units (Länder) participate in elaborating national positions. The German national jurisdictions confirm the priority of communitarian law in report with national law, based on articles 23 and 24 from the constitution. On the other hand, The German Constitutional Court affirms that it can not pronounce itself on documents emitted by the communitarian institutions, as they are documents of an over-national public power, distinct from powers of member states. Regarding human rights, the national Constitutional Court stipulates that they are integrant part, irreducible, from the German Constitution and sees that their protections are not sufficiently ensured by communitarian law dispositions. Only in 1986 did the Constitutional Court consider for the first time that the fundamental rights are sufficiently protected by the communitarian norms system and especially by the control mechanisms of applying communitarian law out in practice by the European Community Court of Justice. In Greece, the primacy of the communitarian law as it’s direct effect were recognized without problems by Greek jurisdictions, that, in this purpose, were based not on the principle of communitarian law, but on

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Knowledge Based Organization 2008 International Conference article 28 of the national constitution. According to article 93 (4), from the fundamental law, the national jurisdictions are obligated to refuse to apply rules that they consider not constitutional, the Special Supreme Court being competent to respond to relative questions and interpretations of laws when it is informed with the contradictions between at last two of the Supreme courts of state (State Council, Supreme Court in Civil and Penal Matters, The Court of Accounts), but it is very rarely seen in practice. In what regards applying the communitarian law by the jurisdictions of some states that became members of the European Union in 2004, it an be mentioned that, since the pre-adherence stage, a constant legislative harmonization by the states was the defective character, transposing European legislative documents, being done trough simple translations, without adaptations to the national nature of each member state, also trough legal transfers without modifying the national system first. [1] The internal jurisdictions of member states showed, that in jurisprudence way, the way they will report to communitarian law. The Polish instances decided that the national judge that applies internal law in a litigation is obliged to have in mind the right communitarian legislation, it’s interpretation given by the Court of Luxemburg and the jurisprudence of member states. The national instances are obliged to interpret with positive national law so that they ensure the highest level possible the compatibility with communitarian law. [11] The Supreme Court of the Czech Republic has stipulated, in the pre- adherence stage, that the European laws and directives are valid in European Union member states are not applicable on national territory, as long as the Czech Republic is not a member of the Community, this not being kept as a reason to respect them. In the same manner the Supreme Court of Slovakia refused to interpret an internal norm o law according to a European directive. [12] The Hungarian Constitutional Court has shown in a decision that it ignores the possibility to interpret in national law in concordance with communitarian law, refusing to declare as non-constitutional the dispositions of the Agreement of Association of Hungary to the Union. [13] “After adhering, national instances have maintained of a hesitant

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Knowledge Based Organization 2008 International Conference position. Thus, if the polish Constitutional Court stated, as a general line, that internal law must be compatible with communitarian law, and national instances must interpret it in this sense, the Hungarian Constitutional Court seemed to states that the communitarian law should be the one that must respect the principles on the internal constitution, in contrary it being ignored by the national jurisdictions”. [1] Putting to good use the experience of other European States, the Romanian law maker proposed in 2003 a model of constitutional revision, capable of removing some difficulties and doing some changes that determined a vast legislative reform in all the branches of internal law. The constitutional reform in mind wanted to foresee the primacy of communitarian law over the whole national law, including constitutional one. The Romanian Parliament spent a lot of time on the line of approaching Romanian and communitarian legislation. At the level of the legislative process there was a constant preoccupation to ensure the priority in debating the law projects and legislative initiatives that refer to communitarian legislation. [2] At the same time, is has been observed that the only rules of resolving conflicts of that Romanian instances apply without problems are the classic ones, based on the criteria of the ulterior law and the principle of “specialia generalibus derogant”. Until present, the national jurisdictions did not settle a set of rules for solutions for these conflicts, usually reaching in practice to invalidate normative administrative documents if executive authorities, under the pretext of applying a law or modifying another. In conclusion, in can be affirmed that the member states are invested in general, “with a subsidiary responsibility in what regards applying the communitarian law”[6], the susceptible responsibility to be sanctioned in the way informing to be found out the non achievement of obligations, foreseen in article 169 (now art 225) from the CE Treaty. [4] The collaboration of parliaments in member states regarding communitarian law takes variable shapes and sizes, meaning that effective appliance of communitarian law depend in a great measure of the normative, administrative and judicial action of the member states.

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References [1] R. Bercea, Communitarian Law. Principles, Bucharest, C.H. Beck Publishing House, 2007, pp. 239-242 and 265-267. [2] V. Duculescu, R. Adam, Romanian National Report Regarding the Impact of Adhering to the EU over the Romanian Juridical Order, in the Romanian Communitarian Law Magazine no.4/2004, p. 32. [3] C. Haguenau, Sanctions pénales destinées à assurer le respect du droit communautaire, Revue de Marché Commun et de l’Union Européenne, 1993, p. 351. [4] G. Isaac, Droit ommunautaire général, Paris, Masson, 1990, pp. 184-185. [5] R. Kovar, Compétences des communautés européennes, în Juris-Classeurs, Europe, 1990, fasc.420, no. 90-115. [6] R. Munteanu, The necessity of adapting the national juridical basis to communitarian exigency, in the Magazine of Romanian Law, no. 1-2/1999, p. 137. [7] J. Rideau, Le rôle des Etats membres dans l’application du droit communautaire, Annuaire francais du droit international, 1972, pp. 864 - 865. [8] C.J.C.E., Decision on 14th of January 1993, that refers to the interpretation of competences limits settled by a regulation in the benefice of member states. [9] T.P.I., Decision from the 10th of July 1990, Tetra Pak c. Commission, aff.I 5/89, Rec. II, p.309; A. Barav, La plenitude de compétence du juge national en sa qualité de juge communautaire, in L’Europe et le droit. Mélanges en hommage à Jean Boulois, Paris, Dalloz, 1991, pp. 1-2. [10] Belgium, Cour de Cassation, 27 May 1971, Fromagerie Franco-Suise, Le Schi/Etat belge, Common Market Law Review, 1972, p. 330. [11] Decision of the Supreme Administrative Court in Warsaw on the 13th of March 2000, in af Senagpo, Decision K. 15/97 of the Constitutional Court. [12] Decision of the Czech Supreme Court on the 12th of December 2000. [13] Decision no. 438/B/1996 from the 27th of Mai 2002 of the Hungarian Constitutional Court.

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THE TREATY OF LISBON AND EXTENDING THE ROLE OF NATIONAL PARLIAMENTS

TA Apostolache Mihaela-Adina

“Petroleum-Gas” University, Ploiesti [email protected]

Abstract The Treaty of Lisbon devotes a specific article to the role of national parliaments (Article 8C). It is for the first time when the contribution of national parliaments to “the good functioning of the Union” is mentioned inside the content of the treaties. The role of national parliaments will amplify in the purpose of strengthening the democratic legitimacy of the European Union.

Keywords: national parliaments, mechanisms, procedures, juridical instruments

The intense consultations that took place between the member states in the year 2007 lead to a compromise formula that had as base the constitutional treaty. This lead to the Reform Treaty, document finalized in Lisbon, on October 18th, that will probably remain in European terminology as the “Treaty of Lisbon”. The official signing of the reforming treaty by the head of states and governors of the member states was determined to be the 13th of December 2007. This lead to the opening of the ratification process, that will be finished by the parliamentary elections in 2009. Following the 4th inter-parliamentary meeting regarding the future of Europe, held in Brussels of the 3rd and 4th of December 2007, between the European Parliament members and the national parliaments representatives, the main conclusion was that the second ones were the winners from the Lisbon treaty. The document will 348

Knowledge Based Organization 2008 International Conference replace the old Constitutional document; the treaty from now, comes to trace general lines of action for all the 27 member states, but, as in the case of the rejected constitutional project from two years ago, opinions a different regarding the possible transfer of sovereignty from the member states to the European Union. It is certain that the project signed on the 13th of December 2007 puts accent of the better inter-state cooperation and extension of the collaboration towards other areas that are not worked on in present. The president of the European Parliament, Hans-Gert Pöttering, underlined that “the national parliaments and the EU parliament must not compete, as they have the same objective, to consolidate European democracy”. The role of national parliaments will be amplified after the modifications to the treaty, in the purpose of strengthening the democratic legitimacy of the European Union, and the majority of participants agreed that the new treaty does not threaten the sovereignty of the states. [3] According to the new treaty, the European Parliament extends its participation to the legislative and budgetary process, consolidating the democratic legitimacy of the Union; the decisional process is improving, especially by extending the vote with qualified majority in the domains of freedom, security and justice. Regarding freedom, security and justice legal basis are established necessary for developing some policies of immigration, asylum granting more efficient, also for a better police and judiciary coordination in the domain of fighting terrorism and organized crime; there are clearly established the domains in which the member states transfer prerogatives to the Union; the role of monitoring national parliaments is consolidated. Thus, the national parliaments will have the possibility to influence more the decision making in the EU. Also, the period that national parliaments will have to examine the projects will be extended from 6 to 8 weeks. At the level of the EU there will be competences exclusive to the EU in some domains, competences separated and competences o some domains of sustaining in which the states have the main responsibility in some policies, but in which the EU has minor stipulations (education). The Treaty of Lisbon devotes an article specific to the role of

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Knowledge Based Organization 2008 International Conference national parliaments (art. 8c). It is the first time when the contribution of national parliaments to the “good functioning of the Union” is found mentioned inside the content of treaties. Thus “the national parliaments contribute actively to the good functioning of the Union: a) Trough the fact that they are informed by the institutions of the Union and by receiving notifications regarding active legislative projects of the union in agreement with the protocol regarding the role of national parliaments inside the Union. b) By respecting the principle of subsidiary in agreement with the procedures stipulated in the protocol regarding the putting in practice of subsidiary and proportionality. c) By participating, inside the space of freedom, security and justice, to the evaluation mechanisms that put in practice the policies of the Union in this space, in concordance with article 61c in the Treaty regarding the functioning of the EU, and trough involving in the political control of Europol and in evaluating activities EUROJUST, in concordance with articles 69 G and 69 D from the Treaty. d) By participating in the revisable procedures of the treaties, in concordance with article 48 form the present treaty. e) By the fact that they are informed by the adherence requests to the Union, in concordance with article 49 in the present treaty. f) By participating to inter-parliamentary cooperation between the national parliaments and the European Parliament, in concordance with the protocol regarding the role of national parliaments inside the EU”. If the purpose of this article is, before all things, to symbolical regroup the dispersed dispositions in treaties, we can consider that it is not senseless – regarding controversies in the past – that the contribution must be recognized to the “good functioning of the union”, the inter-parliamentary cooperation between the national parliaments and the European Parliament. [2] The Protocol no.1 regarding the role of national parliaments in the EU has the purpose “to encourage and greater participation” of them to the activities of the EU and “consolidate their capacity to express their point of view regarding projects of legislative documents

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Knowledge Based Organization 2008 International Conference of the EU, also regarding other matters that can present a special interest for them”. At the moment (as of 13 October 2008), 24 Member States have concluded parliamentary ratification of the Treaty of Lisbon, in the first five Romania also appearing: Hungary (17 December 2007), Slovenia (29 January 2008), Malta (29 January 2008), Romania (4 February 2008), France (8 February 2008). Sweden plans to ratify it in autumn 2008. In the Czech Republic the question whether the Treaty of Lisbon is in compliance with the Czech Constitution, is pending before the Constitutional Court. Considering the importance of the Treaty of Lisbon, many national parliaments have undertaken communication strategies in order to provide the public with information about the content of the Treaty in general or by highlighting specific topics like the new arrangements regarding the role of national parliaments. The communication activities reported by the respondents show a variation of practices, ranging from implementation of common parliamentary procedures to more ambitious information programs in partnership with other institutions committed to the European Affairs or without them. Sometimes European Affairs Committees play a significant role in those matters. It is the first time ever that a Treaty contains a specific article acknowledging the role of national parliaments in the EU. Article 12 of the Treaty on European Union (TEU) reads that "National Parliaments contribute actively to the good functioning of the Union", through some specified ways: receipt of information and all draft legislation direct from the EU institutions; ensuring compliance with the principle of subsidiarity; taking part in the evaluation of EU policies in the area of freedom, security and justice (new Article 70 of the Treaty on the Functioning of the European Union (TFEU); monitoring and scrutinizing EUROPOL (Article 88 of the TFEU); involvement in the activities of EUROJUST (Article 85 of the TFEU); taking part in any future Treaty revision (Article 48 of the TEU; being notified of any applications to join the EU (Article 49 of the TEU); taking part in the inter-parliamentary cooperation both with other national parliaments and with the European Parliament.

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The Treaty of Lisbon (TEU and TFEU) includes two annexed Protocols on national parliaments that mostly follow what was already envisaged in the Protocols annexed to the Treaty Establishing a Constitution for Europe, signed in Rome on 29 October 2004. One innovation however is worth noting, namely the so-called 'orange' card procedure. [4] The Treaty of Lisbon ”substantially enhances the role of the European Parliament” [4] , which acquires powers of co-decision in virtually all areas of Union policy, gains a status of full parity with the Council as budgetary authority, obtains concurrent right of initiative for new ordinary procedure for the revision of the Treaties and elects the President of the Commission by a majority of its component members on a proposal by the European Council, taking into account the results of the European Parliament elections. An overwhelming majority of parliaments considers that the Treaty of Lisbon will enhance the way the parliaments deal with European Affairs, since it contains the potential to lend new quality to their involvement in the policy formulation process. [4] Three main suggestions were put forward as to develop further the cooperation among parliaments: the focus that COSAC should put on this, the more intensive use of IPEX and the strengthening of the informal network of national parliament representatives in Brussels. The Ninth bi-annual Report ”Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny” prepared by the COSAC Secretariat contains a list of special events arranged by several parliaments with regard to the Treaty of Lisbon: – Austria. Series of public discussions on “The Treaty of Lisbon - Facts and Assessments” were held by the Nationalrat and the Bundesrat on 22 February 2008 and 2 April 2008. – Bulgaria. The Parliament organized on 19 March 2008 a conference entitled “The Treaty of Lisbon: the Citizens, the Parliaments, and the Union”. The main topics of the Conference were “Charter of fundamental rights of the European Union” and “The role of the national parliaments in the European Union”. – The Czech Republic. The EAC (European Affairs Committee) will hold a seminar on the Treaty of Lisbon in May 2008 with the

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Knowledge Based Organization 2008 International Conference participation of the EU experts of parliamentary political parties as well as academic. – Germany. The EAC of the Bundestag has held three special hearings, open to the public, on the Treaty of Lisbon with experts devoted to the developments in the following areas: Common Foreign and Security Policy/European Security and Defence Policy; Area of Freedom, Security and Justice; Basic structure of the Treaty of Lisbon and institutional reform. – Greece. The EAC of the Hellenic Parliament was in charge of the organisation of a round table entitled: “The Reform Treaty and the Role of national parliaments”. This round table was open to the public and attended by national parliament’s member and European Parliament members. – Ireland. After a series of meetings with a number of the social partners, the Joint EAC of the Oireachtas organised regional public sittings throughout the country to inform people about the contents of the Treaty and to encourage and stimulate debate in public for and in the media. – Poland. A conference on the Treaty of Lisbon under the auspices of both the Polish assemblies took place in the Sejm of the Republic of Poland on 12 March 2008. - Portugal. The Assembleia da Republica presides over a triad of decentralised conferences, held with the aim of promoting an open and plural debate about the content of the Treaty of Lisbon. The first conference took place in Porto (North Portugal) on 17 March 2008, the second in Faro (South Portugal) on 2 April 2008, and finally the third one was hosted in Lisbon, on 9 April 2008, on the premises of the Assembleia da Republica. – Slovenia. At the end of 2007, the Slovenian “Državni zbor” held a symposium entitled "Treaty of Lisbon - Towards better efficiency of the EU at home and abroad" to give citizens an insight into the new Treaty. With the opportunity of the Conference of Community and European Affairs of Parliaments of the EU (Paris, 3-4 November 2008), inside the tenth Bi-annual Report prepared by the COSAC Secretariat are illustrated “the different reactions and expectations of

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Knowledge Based Organization 2008 International Conference national parliaments and the European Parliament regarding the Treaty and its ratification, especially in the light of the outcome of the Irish referendum”. This Report also „examines how European affairs are perceived by the general public in the Member States, in particular with a view to the tools that parliaments have at their disposal to raise public interest in the issues of the European Union”. [5] In can noticed that “perfecting the Treaty of Lisbon” happily ends an elongated process of searching and political unrests, managing to bring to the same denominator the interest of the 27 member states in the present of the European Union, that find their interest and aspirations in the new form of the juridical instrument that was convened upon”. [1]

References [1] Calinoiu, V. Duculescu, European Constitutional Law, Bucharest,Lumina Lex Publishing House, 2008, p. 75 [2] H. Haenel, Rapport d’information sur le Traité de Lisbonne, www.senat.fr/rap/rap07-076 [3] H.-G. Pöttering, Speech before the European Summit, Brussels, 21 June 2007. [4] The Ninth bi-annual Report ”Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny” prepared by the COSAC Secretariat and presented to XXXIX Conference of Community and European Affairs Committees of Parliaments of the EU, Slovenia, Bled- Brdo pri Kranju, 7-8 May 2008, p.7, http://www.cosac.eu/en/documents/biannual/ [5] The Tenth Bi-annual Report ”Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny, prepared by the COSAC Secretariat and presented to XL Conference of Community and European Affairs Committees of Parliaments of the EU, Paris, 3-4 November 2008, p. 3, http://www.cosac.eu/en/documents/biannual/

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THE ROMANIAN COMMERCIAL VENTURE, UNDER CIRCUMSTANCES OF PERFORMING ACTIVITIES WHICH IMPLY INTERNATIONAL ROAD TRANSPORTATION

TA Dumitrescu Aida Diana

University of Craiova

Abstract The legal stipulation related to the documents solicited are different depending on the fact that the commercial society – transport operator runs activity of public road transport or even on their own account. Therefore the activity of public road transport is allowed only based on the copy of the valid transport license emitted by the competent authority, and the activity of road transport on their own account is allowed only if the society obtains a transport certificate on own account.

Keywords: commercial venture, transport certificate, international road transportation

The commercial company1, an active and vitally important participant in the main activity fields of any country, has lately been under spectacular development, which is bound to become root of externalizing actions from the side of many such law formations. Commercial law2 establishes, by provisions of paragraph 3 C., the

1 Within the doctrine, the commercial venture is defined as a legal entity, respectively a group of people gathered on the basis of a constitutive document and hence assuming a legal identity, where the partners agree to mutually make use of certain goods in order to exercise commercial acts to the purpose of obtaining and sharing resulting profit. Stanciu D.Carpenaru, Drept Comercial Roman, Editura All Beck, Ed.V, p.3. 2 The rules framework on the subject of commercial companies is nowadays represented by (the list is not exhaustive) the following imposing documents: Law no. 31/1990 of 16/11/1990 355

Knowledge Based Organization 2008 International Conference structure of relations that make up the object of commerce. Within such framework, it is decided by law that the company/venture is an economic and social organism which performs an autonomous organization for some activity, by means of the production agents through the enterprise, at its own risk, with the purpose of producing goods, executing works or providing services to the end of gaining some profit. The venture includes economic agents, individuals, family associations or legal parties, with or without a patrimonial intention, as well as any association or group of people without legal personality, with or without patrimonial intention, and any official organism assuming a legal personality or which depends on an authority assuming such legal identity1. The law clarifies that, in order to perform commercial acts, physical individuals and legal entities can associate and can form commercial ventures/companies. The commercial venture will be made up of at least two parties, unless otherwise specified by the law. Companies which establish head offices in Romania are hence Romanian legal entities. The formation of a companies comprising foreign contribution, in association with Romanian individual persons or legal entities, or based on entirely foreign financial input, will occur in accordance with and obeying provisions of the Law no. 31/19902 and of the Law regarding status of foreign investments.3 The forms of commercial company existing in our legislation are described as follows a) collective designate venture; b) sleeping partner venture; c) share held venture; d) sleeping partner share held venture and e) limited liability venture. While listing the forms of enterprise, the law author also presents with regard to the commercial ventures. The text was modified and improved by: Law no. 302/2005, Law no. 164/2006, Law no. 441/2006, Law no. 516/2006, G.D. no. 82/2007, G.D. no. 52/2008 (this government decision applies: 1. The Directive of the European Parliament and Council 2005/56/CE of October 26, 2005 related to the cross-border merger of the capital ventures, published in the Official Journal of the European Union no. L 310 of November 25, 2005). 1 Paragraph. I point 4.22 of Law 102/2006 for approval of G.D. no.109/2005 regarding road- way transport. 2 The city of Bucharest standing for the entire county. 3 According to paragraph. III of Government Decision no. 32/1997, approved with modifications by Law no. 195/1997, commercial ventures which are governed by special laws still remain under rule of the nominated laws. 356

Knowledge Based Organization 2008 International Conference the service providing organisms, within which are included the transport companies for people or goods. Transportation is defined as the operation of materially moving a person or an asset from one place to another, under various circumstances and by various means. In view of the Commercial Law Code, people and goods transport on sea, on shore and, by extension, on airway are actually commercial operations, if occurring under the conditions of an enterprise. We so note that activity of a company can include deploy of road transportation, on the expenses of the specific entity or on public transport basis, within national or international traffic, merchandise, work or people transport1. Road transportation of merchandise may occur in form of moving general goods, perishable goods, dangerous merchandise and wastes, general wastes and live animals, whereas the transport of people is represented as constant services, special constant services or occasional services. The Romanian road transporters who have to act in the frame of international traffic must hold documents according to provisions of Law. The object of activity for a company must comprise performance of transport activities by individualization, in accordance with the Code of national economic operations2. For a company to be able to run activities of international road transport, it is necessary that in the object of activity mentioned in its constitutive act to be expressed the progress of the activities of transport by individualization, according to the Code of the national economic activities3. If this condition is not respected, meaning if it is not stipulated such an object of activity at the moment of the creation the commercial society, an additional act to the society's constitutive act can be done which will include the activity of transport in the society's object of activity. The firm can gain the quality of road transport operator (a license of

1 According to provisions of paragraph 4, point a in Law 102/2006, from the point of view of the area where it takes place, road way transport can be performed within internal or international passage, and from the point of view of the activity’s characteristics, road way transport can be either public or on private expenses. 2 CAEN, section H, 49 on shore and pipe-way transports, 50 water-way transports, 51 air-way transports, 52 storing and auxiliary activities to transport, 53 posting and carrying activities. 3CAEN, section H, 49 Road and by channels transports, 50 Water Transports, 51 Air Transports, 52 Storage and auxiliary activities for transports, 53 Mail and courier activities. 357

Knowledge Based Organization 2008 International Conference transport will be given to the society) if it fulfills the conditions of honesty, financial capacity and professional competence required by the law1. The legal stipulation related to the documents solicited are different depending on the fact that the commercial society – transport operator runs activity of public road transport or even on their own account. Therefore the activity of public road transport is allowed only based on the copy of the valid transport license emitted by the competent authority, and the activity of road transport on their own account is allowed only if the society obtains a transport certificate on own account. They can only perform the activity of public road merchandise transporting in international passage on the basis of an international transport authorization 2 issued by a competent related organism. In order to run the activity of international road transport, the commercial society must respect some strict, specific dispositions: a. public road transport in international traffic: – 1. for material goods3 – is mad only based on the international transport authorization granted by the competent authority, if the U.E. legislation or the international agreements/conventions to which our country participates do not stipulate something else. – 2. for persons – public road transport for persons by regulated services and special regulated services on an international route between our country and a state from outside the European Union is made only based on the authorizations of international transport and the graphic of

1 Urgent Statutory Order of the Government n.74/2008, The Law 102/2006 for approving ea U.S.O. G. n. 109/2005 regarding the road transports, U.S.O.G. n. 109/2005 regarding the road transports. 2 The International Transport Authorization is the document that gives a road-way transportation operator the right to perform one or more transit or destination transports in the area of a certain country, under certain conditions, during such document’s period of validity. (Paragraph I point 4.7 of Law 102/2006 for approval of G.D. no. 109/2005 which regards road-way transportation). 3 Urgent Statutory Order of the Government n.74/2008- pct. 19. After the article 28 a new article is introduced, article 281, with the following contents: "Art. 281. - The road transport of material goods in the international traffic on the territory of Romania and the U.E. Member states is made in conformity with the valid U.E. legislation, but the international road transport of material goods in the international traffic on the territory of the U.E. Non- members states is made in conformity with the agreements and the conventions to which Romania and these states are part of." 358

Knowledge Based Organization 2008 International Conference circulation included in those, granted by the competent authorities of the states where the end of the routes are situated , as well as the authorizations of the international transport granted by the competent authorities of the transited states, depending on the case1. We mentioned that the public road transport for persons by regulated services on an international route between Romania and a state from outside the European Union can be made also by more Romanian road transport operators, in common, in conformity with the authorization of international transport granted by the competent authority. The road transport for persons through occasional services in international traffic can be made only in the conditions of the Agreement regarding the occasional international transport for persons with the touring couch or the motor bus (INTERBUS Agreement)2. b. Road transport on own account in international traffic: – 1. for material goods – imposes the necessity at the board of the society's, during the entire duration of the transport a copy in conformity with the certificate of transport on its own account and documents proving that a transport on its own account is made. – 2. for persons – means the fulfillment of the same conditions regarding the possession of a copy in conformity with the certificate of transport on its own account and documents by which to prove that a transport on its own account is made.( the occasional transport will be made in this situations only based on the document of transport granted and decided by the competent authority in concordance with the competent authorities on the territory of which the transport is made). So, in conclusion we can say that the juridical frame concerning the romanian companies of international transport it is a complex one and it have to be known in order to develope a legal commerce.

1 According to the dipositions of the O.U.G. 74/2008 pct.26 (modification art.36), the road transport for persons in international traffic between Romania and the U.E. member states is made based on the valid U.E. Legislation, but the international road transport for persons between Romania and the U.E non-member states is made in conformity with the agreements and the conventions to which Romania and these states are part of." If a romanian company makes a road transport for persons in international traffic between Romania and a UE member state. 2 Urgent Statutory Order of the Government 109/2005 regarding the road transport, art. 39, align. 2. 359

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JURIDICAL THEORY AND PRACTICE CONCERNING WHITE-COLLAR CRIME BY RESTRICTION OF RIGHTS IN ROMANIA

TA Dumitrescu Aida Diana

University of Craiova

Abstract The Romanian juridical system is suppose to accord a great importance to crime such as white-collar crime by restriction of rights as a country from European Union. It have to analyze this position of Romania from the perspective of the internal legal practice and from the perspective of the European Human Rights Court's judicial practice. They are a lot of challenging theoretical aspects, good points but also problems (inhuman and degrading treatments put in application by representatives of some public institutions, violences against the rrome minority, etc.).

Keywords: crimes/offenses, Penal Code, restriction of rights

The crimes/offenses done at workplace or related to work provided by the Romanian Penal Code, title VI, first chapter include also the offense of “white-collar crime by restriction of rights”. An enhanced attention must be given to this crime in the context of our country's integration in the European Union, from the perspective of the internal judicial practice and from the point of view of the European Human Rights Court's judicial practice. Approaching such a theme means on one hand a general presentation of the aspects common to the offenses done at workplace or related to work and on the other hand the analysis of the aspects

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Knowledge Based Organization 2008 International Conference specific to the offense of “white-collar crime by restriction of rights”1. I. Common aspects. In regard to the common aspects, the crimes/offenses done at workplace or related to work present: a. a generic juridic object consisting in the social relations meant to preserve a good and normal development of the units' public (or of public interest) activity; b. a special juridic object represented by non-mediated social relations put in danger by the offender's activity and it is different from crime to crime; c. a material object represented by the things upon which the consequences of the crime accused will have impact. The subject of these crimes can be either active subject (the non- mediated active subject is the person who actually makes the offense. The active subject is qualified, meaning he is a person with a certain quality, respectively of “clerk” or “public clerk”2) and the passive subject (he will be represented in all the cases by a unit as the ones mentioned in the art.145 of the Penal Code or by a person that was prejudiced materially or morally by the crime). The offenses from this chapter are not conditioned by committing the offense in a certain time or place. The objective side (the material element may consist in an action or a non action, the immediate consequence being the harm brought upon the normal development of a unit or person's activity), and the subjective side (the majority of these offenses are committed with malicious intent). The legislator punishes the consumed form of the offenses in this category, (the crimes present a large variety of factual modalities, and regarding the penalties, the main penalty with jail is mentioned in certain limits). II. Specific aspects. The specific aspects of the white-collar crime by abridging some complaints must be analyzed focusing on:

1 Gh. Nistoreanu, V.Boroi and others, Criminal Law, Special part, Bucharest, Editura Europa Nova, 1999, p. 326 and follow. 2 In the doctrine of specialty it is made clear that the notion of “clerk”from the penal law differs from the same notion from the administrative law , considering the aspect of investment (so, in the penal law clerks are considered also the ones that are not invested officially, those “de facto clerks” or “illegally invested”). 361

Knowledge Based Organization 2008 International Conference the legal content, the already existent conditions, the constitutive content, the forms, the modalities and the penalties. The legal content. According to the art.247 of the Penal Code, the restriction, by a public clerk, of any citizen from using or exerting his rights, or the creation for the citizen of some situations of inferiority based on nationality, race, sex or religion are considered crimes. The Law n. 521 from the 24th of November 20041 modifies and completes Law n. 78/2000 concerning the prevention, identification and penalization of corruption acts. In this sense, a new article was introduced according to which the white-collar crime against public interests, the white-collar crime against individual persons' interests or the the white-collar crime by abridging some complaints, if the clerk has gained for himself or another person a patrimonial or non patrimonial advantage, is punished with jail from 3 to 15 years. Already existing conditions. The object of the crime: the special juridic object consists in the social relations that guarantees the legal interests of the citizens regarding their equality of rights against the abuses of the clerks and of the public clerks. The material object usually is missing, the exception appearing if the abuse is made while modifying a paper from the register of birth, deaths and marriages or another public act. Subjects. The actual active subject is qualified, a clerk or a public clerk. We point out that is possible a participation under the form of coauthoring or instigating and the other participants must not necessarily be a clerk. The passive subject is the citizen whose rights were abridged. The constitutive contents. – The objective side: a. the material element is an action in all the cases. If a citizen's

1 1. After article 131 the article132 is introduced with the following contents: „Art. 132. – “The white-collar crime against public interests, the white-collar crime against individual persons' interests or the the white-collar crime by abridging some complaints , if the clerk has gained for himself or another person a patrimonial or non patrimonial advantage, is punished with jail from 3 to 15 years.” 2. Letter d) of article 17 will have the following contents: „d) The white-collar crime against public interests, the white-collar crime against individual persons' interests or the the white-collar crime by abridging some complaints, made in order to achieve the objective aimed by a crime mentioned in the 2nd and the 3rd section;” 362

Knowledge Based Organization 2008 International Conference right is protected by a special penal law (for example the electoral rights), than the crime will be framed in conformity with that dispositions and not the art.247 of the Penal Code. The restriction of any citizen from using or exerting his rights can be made also by acts of omission, (the refuse to hire a certain citizen) b. The essential request. The qualification of the active subject c. The immediate consequence. Moral damage (the non-listing of a name on the electoral lists determines the restriction of the right to vote) or the material damage on a citizen's right( the fact of refusing to release an civil act restricts the citizen's right to participate to a contest). d. The causality relation between the action/non action of the active subject and the immediate consequence. – The subjective side: the fact is committed with direct intent due to the special motive, meaning the restriction to use a right or the creation of a status of inferiority based on nationality, race, sex or religion. Types. Modalities. Penalties. A. Types. The crime is considered an offense of action though it can be done also by acts of omission; in this context, though is susceptible of preparatory acts, the attempt will be punished only under the form of a consumed fact. B Modalities. The crime presents two normative modalities (the restriction to use or exert a right or the creation of a situation of inferiority) and for each of them there are more factual modalities. C Penalties The law mentions the jail penalty differentiated for the criminal that is a clerk or a public clerk. If a jail penalty longer than 2 years is given, the instance can also dispose the application of a complementary punishment by the interdiction of some rights in conformity with the art. 65 of the Penal Code. III Aggravated white-collar crime. According to the art. 248, ind.1 from the Penal Code, it represents an aggravated white-collar crime the offense described by the art. 247 from the Penal Code if it had very serious consequences IV The internal and the CEDO judicial practice. The majority of the cases that are presented by the CEDO against Romania are putting up for debate the solutions given by the courts and the manner

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Knowledge Based Organization 2008 International Conference in which the prosecutors have acted. In this context, it is more and more obvious the fact that an enhanced attention must be given to the education in the domain of the human rights as well as to the inclusion of the course of the European Protection of the Human Rights in the curriculum of the Faculties of Law, Police, Administrative and Political Sciences, Social Sciences etc. The directions that must be followed include, in a short enumeration, the next steps: making legislative changes, achieving a better comprehension of the CEDO jurisprudence by the internal courts and the direct putting in practice of the CEDO rulings by the Romanian magistrates, adopting of a national strategy concerning the problem of the corpus of magistrates assuming their responsibility. It is also necessary the adoption of a legislation interdicting explicitly to the authorities involved in judicial procedures (police, prosecution department, courts etc.) but also to the other authorities of the state(government, ministers, parliament etc.) to pronounce themselves in regard to a person's guiltiness before the adoption of definitive judicial decision of punishment. With the occasion of the internal judicial practice's analysis a number of problems were noted1 such as: – the inhuman and degrading treatments put in application by representatives of some public institutions and the lack of any efficient investigation related to those is a repeated situation that have determined the breaking of the art. 2 and 3 of the Convention (especially the bad treatments put in practice by police and gendarme officers). Though it can be noticed that the number of the sentences regarding the art. 3 is reduced in the present („Pantea”, „Anghelescu”, „Bursuc”, „Moldovan”), the number of communications (over 20) in similar causes is growing 2.

1 www.sojust.ro 2 SoJust expresses its concern for the fact that a jurisprudence of the Court in this matter is not studied at th Police Academy. Considering that the CEDO jurisprudence is studied compulsory by magistrates and also the real possibility to promote some actions in the court having as object of activity the acts and measures of this institution's graduates, we consider such a measure to be opportune (at the same time it assures the acknowledgment of the CEDO jurisprudence by the active professors, by the mean of the professional training courses or self improvement courses). 364

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– violences against the rrome minority1. – sentences on some journalists with breaking the freedom of speech.

References [1] Gh. Nistoreanu, V.Boroi and others, Criminal Law, Special part, Bucharest, Editura Europa Nova, 1999, p. 326 and follow [2] Law n. 521 from the 24th of November 20042 modifies and completes Law n.78/2000 concerning the prevention, identification and penalization of corruption acts. [3] Criminal Code [4] www.sojust.ro [5] www.just.ro

1 In 2005, CEDO gave sentences in four causes concerning the breaking of art. 14 reported to art.6 and art.8, from which it admitted three causes („Gergely”, „Kalanyos”, „Tanase”). Afterwards new causes were communicated by CEDO to the Government along 2006 as being declared admissible („Baciu”, „Nita”, „Stoica”). 2 1. After article 131 the article132 is introduced with the following contents: „Art. 132. – “The white-collar crime against public interests, the white-collar crime against individual persons' interests or the the white-collar crime by abridging some complaints , if the clerk has gained for himself or another person a patrimonial or non patrimonial advantage, is punished with jail from 3 to 15 years.” 2. Letter d) of article 17 will have the following contents: „d) The white-collar crime against public interests, the white-collar crime against individual persons' interests or the the white- collar crime by abridging some complaints , made in order to achieve the objective aimed by a crime mentioned in the 2nd and the 3rd section;” 365

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THE FRENCH REFORM OF THE RIGHT OF FILIATION

TA Guţan Sabin

“Nicolae Bălcescu” Land Forces Academy, Sibiu [email protected]

Abstract The new social realities have led to a new vision of the filiation relations; the French legislator gave up the Napoleonian hierarchization of filiation (legitimate, natural) and considers that it is unacceptable that the child be dependent on the marital status of the parents. In this sense, a visionary and humanist regulation of filiation, based on the principles of equality and reality is being promoted.

Keywords: filiation relations, marital status, children, procreation, French Reform

A crisis without precedent of the human identity is felt in France, a country that already has a tradition in the field of assisted reproduction. The medical law, the filiation law, the human rights, the rights of the child can no longer be harmonized. The French law is based on the principle of respect for the dignity and inviolability of the human being and of the human rights. Because of this, the French policy in the field of medically assisted human reproduction is one of the most restrictive. The French law has tried, wherever possible, to preserve the traditional rules regarding the filiation; exceptions and adaptations of these rules were created on the basis of these whenever it was necessary [2, p. 63]. Thus, by the law of 1994 [3], which, also made reference to the medically assisted procreation, Section IV, entitled 366

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“The Medically Assisted Procreation” – Articles 311-19 – 311-20 was introduced in the French Civil Code, in Chapter I, Title 7 of Book 1 – devoted to general provisions regarding the filiation. Moreover, regulations on assisted human reproduction have been introduced in the public health Code (Chapter II bis, in Title I of Book II, entitled The Medical Assistance for Procreation, art.152-1 – 152-10; art. 673-1 – 673-7 contain provisions concerning the donation and use of gametes) [2, p. 64]. By this law, the fundamental principles of filiation have been maintained, but a derogatory juridical framework was created, especially with regard to the donation of gametes [1, pp. 140-141]. These regulations have caused juridical errors and problems, especially regarding the filiation relations. There followed a series of reforms in the field of medically assisted human reproduction, bioethics, filiation in order to correct these errors and problems. Thus, law 2004-800 (6 August 2004) on bioethics brings a number of amendments to the French Civil Code and to the Code of public health with respect to the legal conditions applicable to biological and clinical activities in the RUAM field. Enactment no. 2005-759 (4 July 2005) on the reform of filiation (which came into effect on 1 July 2006) was based on this law. This enactment amends Title VII (The Filiation) of the French Civil Code. It is the result of long efforts of analysis and clarification, of alignment to the previous reforms and aimed at simplifying the establishment of filiation relations by reducing the regulations, redefining notions, etc. [4, pp. 25-30]. Decree no. 2006-1660 of 22 December 2006 on the donation of gametes and medical assistance of procreation followed. It amended the Code of public health. This decree, in its turn, was also amended by decree no. 2008-588 of 19 June 2008 which implements the directives of the European Parliament and of the European Council (D. 2004/23/EC) regarding the donation of gametes and the medical assistance of procreation. The French law is currently facing a new crisis regarding the filiation problem, because the reform from the recent years has caused a series of errors and shortcomings. That is why 2008 has brought new proposals for amending the law on filiation. In addition, the pressures of gay people to achieve the right to marry and have children have increased, amplifying the crisis.

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The new social realities have led to a new vision of the filiation relations; the French legislator gave up the Napoleonian hierarchization of filiation (legitimate, natural) and considers that it is unacceptable that the child be dependent on the marital status of the parents. In this sense, a visionary and humanist regulation of filiation, based on the principles of equality and reality (the legal filiation applicable to all children) is being promoted [4, pp. 25-30]. In its old form, Title VII (The Filiation) regulated the filiation in three chapters, namely: common provisions on the legitimate filiation and natural filiation, the legitimate filiation, the natural filiation. The new regulation (which came into effect in July 2006) structures Title VII as follows: general provisions (chapter 1), the establishment of filiation (chapter 2), actions regarding the filiation (chapter 3), actions for the purpose of subsidy (child support) (chapter 4). Article 310 (established by the law of the guardianship authority of 2002) proclaims the equality of filiation as the fundamental principle: all the children who have a legally established filiation have the same rights and obligations in the relations with their fathers and mothers. The filiation can be established in four ways (art. 310-1): as a law effect, by recognition, by the usage of the civil status, in a court of law. In the old (Napoleonian) system, the filiation was always the result of volition (the declaration of the spouses or the voluntary recognition). The new regulation is based on the fact of birth. The legitimate filiation of the child born due to the medical assistance of procreation may be established by the simple declaration of the spouses or it can follow the path of the activation of the paternity presumption for the husband, by the declaration of the child by the mother (Article 313-1 ccf). In the case of a third party donor, no responsibility action can be exercised against him. The action of contesting the filiation and any patrimonial action against the donor of gametes are inadmissible. Thus, as far as the filiation resulted from medically assisted human reproduction is concerned, the French legislator has clearly established two principles that fall within his legal tradition, namely, the principle of priority of consent expression and the principle of protecting the social appearance against the biological reality [6, pp. 179-180].

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References [1] Daniel Vigneau, Génétique et procreation assistée en France, in Biomedicine, the Familz and Human Rights, edited by Marie-Therese Meulders-Klein, Ruth Deech, Paul Vlaardingerbroek, Editura Kluwer Law Interational Haga/ Londra/ New York, 2002. [2] Jean Hauser, La filiation, edit. Dalloz, Paris, 1996. [3] Loi no 94-654 du 29 juillet 1994 relative au don et à l'utilisation des éléments et produits du corps humain, à l'assistance médicale à la procréation et au diagnostic prénatal, Décision no 94-343/344 DC du 27 juillet 1994 publiée au Journal officiel du 29 juillet 1994. [4] Pierre Verdier, Le nouveau droit de la filiation, in Journal du Droit des Jeunes, no.247, September 2005. [5] Guy Razmond, Droit de l’enfance et de l’adolescence, edit. Litec, Paris, 2003. [6] Gabriela Lupşan, Dreptul familiei, Editura Junimea, Iaşi, 2001. [7] L’enfant & sa famille, Editions du Juris-Classeur, groupe LexisNexis, 2003.

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THE INCREASING THREAT OF MONEY LAUNDERING

TA Ionaş Diana, Jr. TA Ionaş Cristina

“Transilvania” University, Braşov [email protected]

Abstract Money laundering represents a phenomenon that has spread all over the world, in every single country, having a single typically scheme that involves transferring money through several countries in order to hide their origins. Throughout this article we will try to discover how exactly money laundering works, who launders money, and by which means, and most important, what steps can be taken in order to end this operation.

Keywords: money laudering, legal operations, illegal operation

Basics Money laundering tries to hide the source of dirty money, by dissimulating it’s source. For example, if money come from the source X, money launderers will do everything they can to hide the source, and to say that the money actually come from the source W. In fact, they try to dissimulate the illegal source through illegal operations, in order to look like the money actually come from legal operations. Otherwise they can’t use the money, because whoever uses dirty money will automatically be connected to the illegal operation, and authorities will incarcerate him. Usually drug traffickers launder money, but next to them, there are also corrupt politicians, mobsters, even public officials, embezzlers, terrorists and con artists. Drug traffickers are the first who actually need to launder money, as their entire operation is based on 370

Knowledge Based Organization 2008 International Conference cash. And while cocaine that’s worth 1 million dollars weights 20 kg, 1 million dollars in bills weights around 116 kg. So, drug traffickers exchange light merchandise (cocaine in this case) for a lot heavier merchandise that is money, bills. Because there couldn’t be drug trafficking, terrorism and white collar crime without money laundering, these illegal operations have gained a lot of importance. All countries are preoccupied to find and to eradicate them. State and local police are on a lookout for any suspicious deals. Also the European Community is fighting money laundering through various ways, trying to attract all member states in order to cooperate.

Effects Statistics say that criminals launder somewhere between $500 bilion and $ 1 trilion worldwide every year. Taking into consideration these numbers, we should all agree that the negative effects are enormous regarding the social, economic and even security department. If money laundering is successful, more and more criminals will be pushed further, to continue with their illicit activity, because, after laundering their dirty money they come to the conclusion that crime actually pays off. This in fact means more crime, more victims, more corporate embezzling that brings disaster on the community: workers lose their pensions, people are being robbed, the streets are full of drugs available to small children. In these conditions, the law enforcement authorities face a general loss of morale, as their fight against illicit operation seems useless. Usually money launderers target small countries that are on the verge to develop, because these countries don’s have a strong legislative program, don’t have specialized institutions, their governments are still in the process to develop regulations for the newly privatized financial sectors. Romania, as all other countries has transcended this stage, and is now facing the problem of strong laws against money laundering. During the 1990s, numerous banks in developing Baltic states ended up with huge deposits of dirty money. Thus, bank patrons withdrawn their money, clean money for fear that

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Knowledge Based Organization 2008 International Conference the bank would be under investigation and they would lose their money. Because of that, banks collapsed, and huge a economic crises appeared. Also, usually when money launderers bring huge amounts of money into one sector, they create a false demand, the officials act on this false demand and adjust the economic policy. But, when law enforcement begin to show interest in that certain sector which holds dirty money, money suddenly disappear and that financial sector falls apart. Worldwide, the most important activities that sustained money laundering are drug trafficking and terrorism. The effect of money laundering in these fields is clear: more drugs, more victims, more violence. The connection between money laundering and terrorism is a complex one. There are people who finance terrorist attacks, but these people struggle to keep their anonymity. Thus they use all measures to send dirty money, in order to sustain terrorist attacks. Usually terrorists launder money in order to be impossible to be traced when they use the money.

Ways to react Every day there are about 700 000 wire transfers globally speaking, thus it is an impossible task to trace the origin of each and every transfer. In order to have an advantage upon the money launderers, each state has to have strong legislative acts. For example, the United States have several: The Bank Secrecy Act, which eliminated all anonymous banking in US, it forces banks to keep records that make easier to spot a money laundering operation, the Money Laundering Control Act, the US Patriot Act which states that identity checks for US bank patrons are mandatory, etc. Besides a strong legislation, each and every state should have strong agencies, undercover agents, all having a well prepared and motivated staff, that works around the clock in order to apprehend as many money launderers as possible. All banks should identify and do a background check an all depositors that transfer large amounts of money, and also should report all suspicious activity.

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To conclude, we must be aware of this crucial phenomenon that affects all of us. Money laundering can easily destroy and mess up with our economy, and even with our national security. Severe laws, and well trained agents working undercover should help us to cope with this problem. We should all be aware of the fact that this problem is huge, is not a one country problem, but it is a worldwide problem, and that we should all fight together in order to eradicate it.

Bibliography The Black Market Peso Exchange, PBS. org. http://www.pbs.org/now/politics/peso.html DeLay faces money laundering charge, CNN.com. October 3, 2005. http://www.cnn.com/2005/POLITICS/10/03/delay.indictment/?section=cnn_ allpolitics The Money Laundering Cycle, United Nations Office on Drugs and Crime. Molander, Roger C., David A. Mussington, and Peter A. Wilson, Cyberpayments and Money Laundering: Problems and Promise, Santa Monica. Rand, 1998. http://www.un.org/ga/20special/featur/launder.htm Money Laundering, U.S. Department of Justice. http://www.usdoj.gov/dea/programs/moneyp.htm Money Laundering, UN General Assembly Special Session on the World Drug Problem, June 1998. Money Laundering, 2001 Criminal Investigation Annual Report, IRS. Gov http://www.irs.gov/compliance/enforcement/article/0,,id=107649,00.html Wells, Joseph T., Money Laundering: Ring Around the White Collar, Journal of Accountancy, June 2003. http://www.aicpa.org/pubs/jofa/jun2003/wells.htm http://www.unodc.org/unodc/en/money_laundering_cycle.html Morris-Cotterill, Nigel. Money Laundering, Foreign Policy, May/June 2001. http://www.globalpolicy.org/nations/corrupt/2001/05morris.htm United States Breaks Up Colombian Drug Money-Laundering Ring, U.S. Department of State. http://usinfo.state.gov/ei/Archive/2005/Jun/20- 264682.html

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PROSTITUTION BETWEEN OFFER AND REQUEST

TA Ionaş Diana

“Transilvania” University, Braşov

Abstract Searching the tradition from all antiques people and the myth age, we can conclude that the prostitution, “an old profession since the beginning of the world”, is considered by some people flagitious tolerated and for the others even a required bad profession, being encouraged for different purposes. Modern prostitution genesis is strictly bounded by the beginning and evolution of urban and industrial process, which determined the raise of the economic independence and implicit women’s sexual freedom. Prostitution can successfully be considered a commercial activity very well organized and characterized, of course, by a bearing balance between request and offer.

Keywords: prostitution, request, offer.

Searching the tradition from all antiques people and the myth age, we can conclude that the prostitution, “an old profession since the beginning of the world”, is considered by some people flagitious tolerated and for the others even a required bad profession, being encouraged for different purposes. It seams that the origin, prostitution it was strictly bounded by the religious reverence, first known in history being “temple prostitution” practiced in the oratory goddess places. Here, the ministration was made by beautiful priestess who used to offer their sexual services to all the guests that passed the temple, in exchange expecting their donation for the goddess worship. Modern prostitution genesis is strictly bounded by the beginning and evolution of urban and industrial process, which determined the raise of the economic independence and implicit women’s sexual

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Knowledge Based Organization 2008 International Conference freedom. Gradually it was formed the idea, a very new idea that between prostitute and their clients there is no personal bound and also the idea that contradiction to women the man has the right to intercourse before marriage, extra-conjugal relationship and also to see the prostitute. Woman had no right in this matter but only the possibility to choose prostitution treated as a delinquency. In our days, the laws regarding prostitution are characterized by rigidity and unyielding behavior in many states prostitution still being prohibited. For example, in United States, except Nevada, woman prostitution is prohibited and the brothel entrepreneur, panders and even the clients are sanctioned. Very interesting is the fact that in 27 American states having this profession is prohibited but there is no different judicial category, no legal paragraph who can specifically predict this infringement. The prostitutes are sanctioned only with jail for vagrancy from 6 month to 1 year. In Romania prostitution has developed during a very big period of time, although, paradoxical, because of the oriental influences, women were totally dominated by the parents or their husbands. In the Middle East prostitution was disseminated in Moldavia and in Romania as the chronics and the foreign travelers’ books say. In Bucharest during Cargea Voda’s days the prostitute number being so big he decided to implement special taxes on the “commerce” they were practicing, decision which brought important gains. Institutionalized prostitution, known as brothel, had a big bloom especially in the inter-war period, the “emblem” being the famous “Stone Cross” from Dudesti block, replaced in other Bucharest areas by the red cresset1. Beside state’s tolerated prostitution, street prostitution, occasional or systematic, and unauthorized it was extremely widespread in the capital and whole country. Communism, with its harshness, has ended the legal prostitution but didn’t stop its practice. The poverty and the temptations offered by this profession has determined many young girls to practice prostitution with foreign. There have been many situations when even the state

1 Sorin M. Rădulescu, Sociologia şi istoria comportamentului sexual deviant, Bucureşti, Editura Nemira, 1997, p. 112 375

Knowledge Based Organization 2008 International Conference government have encouraged this profession, using it in political purposes and cooperate with practitioner girls in order to obtain different information about foreign people.1 After December 1989 prostitution entered a in a new era knowing a plentiful spread. Besides their own choice of some girl in practicing this job in or outside the country, in states like Turkey, Cyprus, Spain, Greece, Italy, France, Germany, Japan and in many others, had appear and developed a new type of sexual circumscribed harness, in most of the Romanian hotel chain cases. Prostitution is practiced in many big hotels from the cities often visited by the foreign tourists: Constanta, Timişoara, Brăila, Galaţi, Arad, Baia Mare, Braşov, Suceava, Predeal, Bucureşti. The society development has also multiplied the possibilities to practice this profession which brings important amount of money for the ones who practice it. A different category in Romania is represented by the meretricious who work in the parking areas arranged endlong the highways for the big trucks foreign drivers, especially Turkish. Some of these parking areas have service-stations, bars and other facilities among them like the prostitutes. Considered as notable example it will be the area witch bounds Ramnicu Valcea and Calimanesti station. In the same time, in Romania ingresses international people traffic networks, which covered by some company names looking for dancers, show girls, models or any kind of workers, recruit meretricious for different countries specially for Turkey, Greece, Italy, France and Germany. Recruitment is made through the advertisement where they offer very good paid jobs. In other situations prostitution is covered by so named matrimonial agencies who facilitate dates between people, the manager of this agencies being actually the pander, and also modeling agencies, artistic, baby sitting, cleaning assistance and even by charitable associations for inmate people. Concerning prostitution characteristics in Romania according to the information from police department these are: – most of them lived in unorganized families;

1 idem, p. 113 376

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– most of them were borne in poor economical areas; – most of them have big cultural and education deficiency; – most of them refuse to develop activities in legal domains; – most of them are exploited by the pander. Prostitution can successfully be considered a commercial activity very well organized and characterized, of course, by a bearing balance between request and offer. The request seen by a will manifestation of a population sector having the purpose to assure the number of market prostitute who can satisfy sexual needs for the continually development of amateur clients, is in a balanced report with the assimilated offer, having a generic feature, addressed to an undetermined “addressee”, with the purpose of sexual performance. Accepting this offer with generic feature consists in addressee’s willing manifestation for the offer to have coition with the tendered prostitute. The acceptance can be purposefully or tacit, therefore the accepter willing can manifest through any act or fact from who will result the doubtless intention to accept the offer. Statistics have proven that in this field the request is continuously developing, so as the fact that 15-20% from male population from the developed countries are considered occasionally clients and the periodical long for 10%. Like in any other commercial report, a definitive component in this activity is the price, representing the equivalent of the sexual services offered. The price can consist of money or in any other value that can assure the resource needs of living, or the main living resources. This specific component is often variable, determined by many different parameters. From these parameters we can mention as an example: – the request and offer level which determine the competition and, implicitly, price decrease; there is, anyhow, several situation when prostitute or their panders establish a certain price level, fixed, and it is used by all prostitutes or professionals; from this results, therefore, the next price influence element; – market price; – the variety of the offered and performed services; – the type of prostitution that the client appeal to, because the prices used by a luxury prostitute will never be the same with the regular ones,

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Knowledge Based Organization 2008 International Conference for example, by a prostitute that carry on the activity on the street or in the parking areas along the highways or ring-roads; – geographical and economical features, the price being strongly influenced by the geographical area where the prostitution is performed and by the buying capacity of the area, the tariff being strongly influenced by the population economical possibilities; – esthetical features bounded by the outer prostitution appearance. Influenced by these parameters and also similar other, the market price varies from 50.000 lei to very large amount in euro. Starting with the idea that the offer reflects the request, I considered that is necessary to carry out a quantitative and qualitative evaluation of the prostitution, based on certifiable offence situation and the chargeable persons for practicing prostitution on Romanian territory, registered in the police operative evidence between 1997 and 2007. The phenomenon extent is much larger, hard to estimate, if we consider the number of women who, starting from 1990, prostitute in countries like Turkey, Italy, Germany, Greece, Cyprus, and Yugoslavia. So, for the period between 1990-1996, statistical evidence do not allow separation between the prostitution offence number and the procurement ones, but, even in this conditions, is easy to see the invariable increase, almost in geometrical progression, of the number of made offences. So, starting with 15 cases in 1990, increase to 112 cases in 1991, 216 in 1992, 381 cases in 1993.Year 1994 comes with a readily shrinkage of the offence number registered to the value of 305 offences, and then, in 1995 to register 698 cases and in 1996 a number of 730 cases. Concerning prostitution, also in the next period of time, in year 1997, is seen an invariable increase of the registered numbers, continuing with degrease in year 1998 and 1999. In year 2000 the offence number increased again up to 733 cases and then, in 2003 to reach at 965 offences. The next period will have an invariable degrease of the prostitution offence number, at least for the ones discovered and approbate by judicial representative. This way, in 2005 registered 750 prostitution offences, in 2006 a number of 718 and in 2007 only 535 prostitution

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Knowledge Based Organization 2008 International Conference offences1. Same statistics shows a higher number of persons judged in Bucharest and other districts like: Brăila, Buzău, Prahova, Caraş- Severin, Arad, Bacău, and Dolj. There is a difference between the statistics regarding the prostitution offences number and the number of accused people sent to be judged for committing this offence which is explained, principally, through difficulty having a complete evidence to prove the rally of all integrant elements of prostitution offence. A prostitution offence is hard to prove since, being a custom offence, the instruments of action has to be done recurrently, with different persons, in exchange of a sum of money or other substantial advantage, to assure the existence resources or the main existence resources for the active subject, otherwise these offences are hard to prove. This hindrance has multiple reasons, the most frequent ones are: the prostitute refuses to cooperate with penal pursuance officials and difficulty of identifying the ones that benefit of the prostitute services. Lately, is ascertain that there is a bigger and bigger request-offer on the market for the adolescent prostitutes, the phenomenon getting up to an alarming pedophile rate, but most of the prostitute frame in the age group between 18-29 years old. The distribution on age categories shows that the gravity of the minors from the total of people accused of practicing prostitution, in the referred period tend to slowly decrease in the first range part (from 26% in 1997 and 28% in 1998 to 17,5% in 1999) and in year 2000 to increase to 20. This dynamics is not very suggestive, but, expressed in straight numbers reality seems heavy. So, if we refer to years 1999-2000, we can obviously see that regarding the big number of the persons accused of this offence, although the gravity of the ones between 0-17 years old stays invariable, their number became double from 69 in 1999 to 144 in 2000. Nevertheless this was not a higher number than the one in 1997 (158 minor), when it was also registered the maximum gravity for the ages between 0 and 17 years old (26%)2.

1 Dates taken from IGP site. 2 A. Markovic, D. Markovic, S. Vujin, D. Markovic, V. Nicolae, C. Grecu, D. Licsandru, Traficul de persoane – traficul de femei şi copi”, Ed. MI, Center for Advanced Legal Studies, Centrul de Resurse Juridice, 2001, p. 24 379

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The studying situation of these persons is also relevant. The majority have only studied the middle school, probably at a minim level of knowledge, having as a result a major lack of interest for education. In these conditions of a pretty high unemployment rate, they have no possibility in finding a job, this also being confirmed by occupation level analysis. So, while a percent of 73% of the authors of this offence have middle school studies, about 90% from them have no job. Other statistics concerning the studying level show that there are less prostitute that graduated a professional school and many more that finished high school. Prostitutes that have university studies are almost non-existent. This doesn’t mean that some persons with university studies does not use to prostitute, but these persons will profess prostitution on a higher level being a luxury prostitute who, through their knowledge, intelligence and their company, manage to avoid the police research and they have a minimum risk to be arrested. This fact is because of being protected by their clients. Young prostitute are usually approbate, from the streets, drunk or hooked on1. Concerning occupational parameter we can remark a high level statistic frequency of the schoolgirls. Is possible from some of them to start prostitution not only because of the lack of money but also because of a very dissolute approach of sexuality, probably “contaminated” with this attitude by the company they use to join in school. Also, in the same request-offer report, it is observed the territorial migration from rural to urban average determined by the request substantiality at one time, by economical opportunities or other parameter. So, they conclude that the gravity of the prostitute from the rural average is about 30%2. The offence increasing number and also the chargeable persons is a reflection of offer increase level on Romanian market and implicit of request. Although in Romania the clients are not sanctioned for practicing intercourse with prostitutes, this assesses the necessity to fight or at least to belittle this phenomenon. Sanctioning the clients is used only in the

1 A. Markovic, D. Markovic, S. Vujin, D. Markovic, V. Nicolae, C. Grecu, D. Licsandru, op.cit., p. 24 2 idem, p. 26 380

Knowledge Based Organization 2008 International Conference states that they condemn the prostitution as being an offence. So, examples, In Ireland the clients are sanctioned with 500 sterling. Also, another example is United States where, except Nevada, the clients are sanctioned. The same situation we will find it in Sweden. Sanctioning the clients it is very delicate, carrying, besides the legal aspect, also moral air and this because of its promiscuous feature of this job and also because of the mass reaction reported concerning practicing prostitution and using this solution to satisfy sexual needs. What is distinguishable reporting to the wide world is the fact that prostitution is legalized in the majority of developed states, with a high educational and understanding level. Obviously this has regularly unrolled constrained. As a result, there are no sanctions for the clients that appeal to this kind of services. Some legislation has purposely legal sanctions against clients, but is rarely or even bit applicable, just owing to the public reaction. There are also legislations, as the Romanian one, which although bans and sanction prostitution, do not have criminal law sanctions for the prostitute’s clients. This fact implicitly determines maintenance and even the growth on the market for the request and offer and multiplication of the number of this kind of offences. Therefore, fighting against this deflection feature context, it is necessarily assessed having some preventive steps against people who appeal to prostitute’s sexual services.

References [1] Ion Gheorghe Totoianu, Human sexuality, Tg. Mureş, Casa de Editură Mureş, 1996, p. 434. [2] Sorin M. Rădulescu, Sociologia şi istoria comportamentului sexual deviant, Bucureşti, Editura Nemira, 1997 p. 112. [3] A. Markovic, D. Markovic, S. Vujin, D. Markovic, V. Nicolae, C. Grecu, D. Licsandru, Traficul de persoane – traficul de femei şi copii, Ed. MI, Center for Advanced Legal Studies, Centrul de Resurse Juridice, 2001, p. 24.

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ISSUES REGARDING JUDICIAL CO-OPERATION AMONG EUROPEAN UNION MEMBER STATES IN THE MATTERS OF CIVIL AND COMMERCIAL EVIDENCE

TA Matei Cătălina, TA Bularca Roxana

“Transilvania” University, Braşov [email protected], [email protected]

Abstract The paper presents the development and the implementation of the judicial co-operation and the common policies in civil and commercial matters regarding the administration of evidence as part of judicial research. The European Union Treaty has been followed by a series of communitarian regulations referring to issues that have been discussed by the Member States. Therefore, the judicial co-operation among Member States represents an important aspect for the protection of European citizens' rights and freedoms, and the goal to be achieved is the one of elaborating an unique European Procedural Civil Code. For individuals and companies to be able to exercise their rights wherever they might be in the European Union, the incompatibilities between Member States will have to be removed. For example, at the Tampere European Council in October 1999, European Union leaders presented three priorities for action, mutual recognition of decisions judicial decisions and increased convergence in the field of civil law. Further more, the Council adopted a decision establishing a European judicial network in civil and commercial matters. These instruments aim to improve the judicial co-operation in practice. Since 1968, the European governments have agreed on common rules on jurisdiction and enforcement of judgments in civil and commercial areas. Going further, the Treaty of Amsterdam made judicial co-operation in civil matters a European Community policy linked to the free circulation of people.

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Keywords: co-operation, evidence, European Union, law court, regulation

1. Introduction The judiciary co-operation at the level of the European Union member states means ensuring some equivalent procedural rights for the European citizens in the situation in which they are parts or participants in a civil or commercial law suit which is carried on in a court of law situated on one of these states' territory. So far, at the level of the European Union there hasn't been achieved the purpose of achieving a uniform judicial procedure, namely the existence of some procedural codes, in terms of civil maters, at least, which should govern the similar carrying on of the civil and commercial suits, at the courts of law situated on the member states' territory. As far as the judicial co-operation in terms of civil and commercial matter among the member states in view of achieving the proofs is concerned, the European Union Council Regulation 1206 from 28th of May 2001 has been passed. This is compelling in all its elements and it is applied directly in all member states in accordance with the European Community Treaty of Setting Up.

2. New Procedural Rights Order in the European Union For passing the European Union Council Regulation concerning the European Community Treaty of Setting Up, especially the article 61 letter (c) and article 67 paragraphs (1) took into account the following priorities: The European Union established the purpose to maintain and develop a space for liberty, security and justice in which the free circulation of the persons is ensured. For the gradual setting up of this kind of space, the Community, apart from others, is passing measures, on judicial co-operation condition, in terms of civil matters needed for the good functioning of the internal market; The good functioning of the internal market needs improving and especially the simplifying and speeding up of the co-operation among the member states as to obtaining proofs; The European Council reaffirmed the necessity for drawing up new procedural right orders in the cross-border cases,

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Knowledge Based Organization 2008 International Conference especially as to obtaining proofs; This domain is subjected to article 65 from the Treaty; Taking into account that the purposes of the present regulation cannot be enough achieved by the member states, they can be better achieved at a communitarian level, as a result. The community can take measures, according to the subsidiary principle stipulated by article 5 from the Treaty. According to the proportionality principle, stipulated by the same article from the Treaty, the present regulation won't excel what is necessary for fulfilling these objectives; So far, there is no compelling judicial document in operation between all the member states as to achieving proofs. The Hague Convention in 18th of March 1970 concerning achieving proofs overseas in terms of civil and commercial matter is only applied among eleven member states of the European Union; Given the fact that, in civil and commercial terms, for establishing a subordinate case in front of a court of law in a member state, it is frequently necessary for proceeding to obtain proofs in another member state, the action of the Community is not retrained to transmitting the judicial and extrajudicial documents in civil and commercial terms , which are subjected to the Council Regulation (CE) 1348/2000 from 29th of May 2000, concerning the communication of the judicial or extrajudicial documents in civil and commercial terms within the member states (4). That is why it is necessary for continuing the improving of the co-operation among the member states' courts as to achieving proofs; For a judicial procedure in civil and commercial terms to be useful, the transmitting and fulfilling of the requests for achieving proofs must be performed directly and by means of ways between the member states' courts of law, as fast as possible; The rapidity of transmitting the requests for getting proofs justifies the usage of all the adequate methods, observing certain conditions as to legibility and fidelity of the received document. For ensuring the judicial clarity and certainty to the greatest extent possible, the request for obtaining proofs must be transmitted by means of a form due to be filled in the official language of the member state's applicant court of law, or in another language accepted by this member state. For the same reasons, the forms must be used as much as possible for other communications between the concerned courts of law; the request for obtaining proofs must be fulfilled rapidly.

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If it is not possible for the request to be achieved within 90 days from the moment the applicant court of law is getting it, the latter is compelled to inform the applicant on the reasons hindering the rapidly fulfilling of the request; For ensuring the efficiency of the present regulation, the possibility of refusing the fulfilling of a request for obtaining proofs must be limited to exceptional situations on purpose stipulated; It is necessary for the applicant court to fulfill the request in accordance with the legislation of the member state to which the court belongs; If it is the case, it is necessary for the parts and their representatives to be present at fulfilling the request for obtaining proofs , if this fact is stipulated in the legislation of the member state of the applicant court, for being able to follow the same procedure in the same conditions in which the request should have been performed in the member state of the applicant court. Also, the parts have the right to ask for participating in the fulfilling of the request; in this way they play a more active part within the procedure of obtaining proofs. Nevertheless, the conditions that must be fulfilled for participation must be established by the applicant court according to the legislation of its member state; It is necessary for the representatives of the applicant court to be able to be present at the fulfilling of the request for obtain proofs, if this fact is compatible with the legislation of the member state of the applicant court, for having a better opportunity for assessing the proofs. In the same time, it is necessary for these to have the right to ask for their participation, in the conditions set by the applicant court, according to the legislation of its member state, for playing a more active part within the procedure of obtaining proofs; For facilitating the obtaining of proofs, it is necessary for a member state's court, in conformity to the legislation of its member state, to be able to directly fulfill a request for obtaining proofs in another member state, in the situation in which this fact is accepted by the latter and on the conditions established by the central authority or the competent authority of the applicant member state; The fulfilling of the request, according to the article 10, mustn't give rise to the restitution of some taxes or expenses. Nevertheless, if the applicant court asks for the restitution, fees paid to the experts and interpreters, as well as the expenses resulted from applying the article 10 paragraph (3) and (4) mustn’t be paid by this court. In this case, the

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Knowledge Based Organization 2008 International Conference applicant court must take the necessary measures for ensuring the timely restitution of the expenses, in the case in which an approval of an expert is required, applicant court can, before performing the request, ask the applicant court for constituting a deposit or a corresponding advance payment; The present regulation must prevail the orders which apply in this matter and which are comprised in the international conventions established among the member states.

3. The Implementation of the Regulation regarding Proofs in the Member States The regulation won't oppose to performing agreements or arrangements among the member states in view of the subsequent improving of the co-operation in terms of obtaining proofs; the information conveyed altogether with the present regulation must be protected. As there are applied the European Parliament and Council Order 95/46/CE from 24th of October 1995 concerning the physical persons' protection as to the processing of personal data and the free transit of this data (5) and the European Parliament and Council Order 97/66/CE from 15th of December 1997 as to processing the personal data and the private life's protection in telecommunication field (6), specific orders in the present document are not bound to be stipulated; The measures necessary for applying the present regulation are passed according to the Council Decision 1999/468/CE from 28th of June 1997 (7), about establishing the ways of exercising the capacities of applying, conferred to the Committee; For the good functioning of the present regulation, the Commission must examine its application for recommending the necessary amendment, if it is the case. The regulation applies in civil and commercial terms, according to the legislative orders of the respective state, whenever a member state's court asks the competent court of another Member State for proceeding to obtaining proofs or obtaining them directly within another Member State. Requests provided in art. 1 paragraph. (1) Letter. (a), called hereinafter “requests”, are sent by the law court in front of which the procedure is begun or will be begun, called hereinafter “the solicitor law court”, directly to the competent law court of another member state,

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Knowledge Based Organization 2008 International Conference called hereinafter “the solicited law court”, for obtaining proof. Each member state elaborates a list of the competent law courts for obtaining proof according to the present regulation. The list also indicates the territorial competency and if the case, special competency of these law courts. Each member state designates a responsible central authority with: supplying information to the law courts; searching for solutions for the intervened difficulties regarding accomplishing a request; transmission, in exceptional cases, at the request of the soliciting law court, of a request to the competent law court. The request is formulated using form A or, as the case may be, forms me from annex of the Regulation. This one, together with all the annexed requested documents is absolved from any legalization or any equivalent formality. The documents, which the law court considers necessary to annex for accomplishing the request, have to be accompanied by a translation into the language in which it was formulated. The request and the formulated communications on the basis of the present Regulation will be elaborated in the official language of the solicited member state or, if there are more official languages in that member state, in the official language or in one of the official languages of that area in which the proof is to be obtained, or in any other language which the solicited member stated indicated as accepted. Each member state indicated the official language or languages of the European Community institutions, others than their own, which is or which are accepted for the completion of the forms. Request and communications done on the bases of the present regulation are transmitted through the fastest means, which the solicited member state indicated as able to accept. Transmission can be done through any corresponding mean, with the condition that the received document reflects exactly the content of the transmitted document and that all information is legible. In 7 days from the receipt of the request, the solicited competent law court sends the soliciting law court a confirmation of receipt, using form B from the Regulation’s annex. In case the request doesn’t fulfill the conditions stipulated in art. 5 and 6, the solicited law court mentions

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Knowledge Based Organization 2008 International Conference this on the confirmation of receipt. In case the execution of a formulated request using form A from the annex, which fulfils the conditions stipulated in art. 5, it is not the competency of the law court to which it was sent, the latter sends the request to the competent law court of his member state and informs the soliciting law court about it, using a form A of the annex. If a request can’t be executed because it doesn’t contain all the necessary information in conformity with art. 4, the solicited law court informs the soliciting law court about this without any delay, and in term of 30 days from the receipt of the request, using form C from the annex, asks it to send the missing information, indicating as precise as possible which those are. According to the 18th Article, paragraphs (3) if a request can’t be executed because a deposit or advance money is necessary, the solicited law court informs the soliciting law court, without delay, in term of maximum 30 days from the receipt of the request, using form C from the annex to the Regulation, informs about establishment methods of the deposit or the advance money payment. The solicited law court confirms the receipt of the deposit or the advance money without delay, in 10 day from the receipt of the deposit or the advance money, using form D. The solicited law court accomplishes the request without delay and the latest in term of 90 days from the receipt of the request as it follows: The solicited law court fulfils the request in accordance with the legislation of the member state; The soliciting law court can request the solicitation to be accomplished according to a special stipulated in its own member state legislation using form A from the annex. The solicited law court conforms to this request with the condition that the procedure is not incompatible with the legislation of the solicited law court of the member state or from major practical difficulties point of view. If the solicited law court doesn’t conform to the request because of any of these reasons, it will inform the soliciting law court using form E from the annex; The soliciting law court can request from the solicited law court the use of modern communication techniques to obtain proof, especially by using videoconference or teleconference.

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The solicited law court conforms to this request with the condition that this is not incompatible with the legislation of the solicited law court of the member state or from major practical difficulties point of view. In case the solicited law court doesn’t conform the request because of one of these reasons, it will inform the soliciting law court using form E from the annex of the Regulation. If the mentioned technique means are not accessible to the soliciting law court or to the solicited law court, the courts can make them available on common agreement.

4. The Romanian Legislation regarding the International Judicial Assistance The present regulation does not restraint the member state to maintain or to make agreements between two or more member states in order to facilitate obtaining evidence, as long as they are compatible with the present regulation. The regulation is valid from 1 July 2001 and applies from 1 January 2004. This is compulsory in all its disposals and is directly applicable in the member states according to the European Community Treaty. Law Nr. 189 from 13 May 2003 regarding the international civil and commercial judicial assistance has been modified through law Nr. 44/2007 after the integration of Romania in the European Union and through the order of the Justice Ministry Nr. 2888/2003 the Application Methodology of the prevision of Law No. 189/2003 modified was approved. In present on the role of the Romanian Parliament there is a law project for modifying and completing the Law no.189/2003.

References [1] The European Union Council Regulation 1206 from 28th of May 2001 [2] The Hague Convention in 18th of March 1970 [3] http://www.europa.eu

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DISCUSSION REGARDING THE PROBATORY ASPECT WITHIN THE ACTION FOR DECLARATION OF TITLE TO LAND

TA Tudor Andreea-Violeta

“Eftimie Murgu” University, Reşiţa

Abstract The main way that may one can make proof of ownership is through the titles that the plaintiff can prevail. However, other evidence is also admissible. This effect will be produced in the last phase, by presumption attached to his possession. In practice, proof of ownership, difficult task, is facing serious difficulties, which may spring out from the following situations: the lack of writings concerning the transmission of real estate property title, especially that in the past there were not written, or the possibility that these entries may be lost or may contain insufficient data. In many cases, the official entries of documents do not include enough data identification, or they are not accompanied by drawings, topographical situation plans of the building, dismantling in several buildings, etc.

Keywords: title to land, property claim, immovable property, movable property

The most important classification of goods is immovable and movable property; according to this classification, the vindication action (property claim) may be the claim for either mobile goods (mobile vindication action / claim for mobile goods) or real estate property, each with its own specific characteristics and regime. Shaping the legal regime of the vindication action is due to doctrine and jurisprudence, starting from the obedience of the prerogatives of

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Knowledge Based Organization 2008 International Conference ownership to which its holder is entitled. Regarding the property claim, in addition to general issues, already considered the most important task is the task of probation. In matters of property claim, the proof of ownership highlights numerous problems, since the legislative did not statue in the Civil Code juridical rules related to this legal institution. On the contrary, in matters of mobile vindication action, issues appear easier, particularly in terms of proof of ownership, whereas, the owner is presumed to be the owner of the good.1 In this context, being no special regulations in the field of proof of ownership, during the vindication action of property will apply the general rules laid down in chapter „About probation of obligations and payment”, art. 1169 ff. Civil Code2. At first glance, we may be tempted to believe that the evidence of ownership may be made by proving the legal act (sale, gift, bequest, etc.) which gave rise to this law. However, besides the fact that the owner may not have such an act, it will not be any evidence of the undoubted right of ownership. The holder of such a title is not really the owner unless its author was the owner and the author of his author and so on and so forth3. Perfect proof of ownership is therefore impossible to achieve, where the expression probatio diabolica. It is understood in this context, the plaintiff’s interest to prevail in possession of thirty years or, if you have a just title doubled by the condition of good faith, a possession of ten to twenty years. In the general conditions laid down by art. 1169 Civil Code, proof of ownership rests with the plaintiff. The complainant will have to provide proof of ownership attributes, provided by art. 480 Civil Code. Defendant in a case law claim has the advantage of possession, whereas the one who is alleged to be the owner of immovable

1 C. Hamangiu, I. Rosetti-Balanescu, Al. Baicoianu, Treaty of Romanian civil law, 2nd volume, Bucharest, Ed All, 1998, p. 61 ff., D. Alexandresco, Theoretical and practical explanations of the Romanian civil law, Bucharest, Ed Socec, 1915, pp. 265-266. 2 Article 1169 Civil Code specifies „the one who made a proposal before the judgment must prove it” actori incumbent probatio. 3 Philippe Simler, Les biens, 3rd edition, Ed. Presses Universitaires de Grenoble, 2006, p. 122. 391

Knowledge Based Organization 2008 International Conference property, without taking possession of it, has the task to prove his right of ownership, while the defendant, as owner of the property, enjoys a relative presumption of ownership, so you must prove its title under which he really owns the property. If the complainant does not prove its title to property, the vindication action must be rejected as being unfounded. The defendant cannot be compelled to submit his title, because the possession is protected regardless proof of ownership. As said, the defendant has a beatus possidens.1 However, if the plaintiff brings proof of his right of ownership, the burden of proof is overturn, the defendant being forced to step out of passivity; he must, under these circumstances, to prove the title under which he possesses the good. To determine the subject of proof we must understand that there is not in our right, a formal and direct proof of ownership. Preconstitution of evidence in relation to property right, is impossible. In contractual matters, the creditor can prevail in a preconstitute trial, because from the beginning it is known the person before which will prevail in this evidence. The right of ownership, which is against all, cannot be proved against everyone through a verified entered with an absolute proving force, unless the owner has an official title issued by a state body empowered to certify his right. In the absence of such a system cannot be a perfect proof of ownership, binding erga omnes. Such is moving object of proof. Since the owner cannot bring a title to draw in his right in an irrefutable manner, and that direct evidence of ownership is impossible, he finds himself in a position to invoke legal acts and facts that make likely the existence of his property title, which provides a proof of ownership probably better characterized than his opponent’s.2 The main way that may one can make proof of ownership is through the titles that the plaintiff can prevail. However, other evidence is also admissible. This effect will be produced in the last phase, by presumption attached to his possession.

1 C. Stătescu, C. Bîrsan, Civil Law. General theory of real rights, University of Bucharest, Faculty of Law, 1980, p. 195. 2 Francois Terre, Philippe Simler, Droit civil, Les biens, 7th ed. Dalloz, 2007, pp. 415-416. 392

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In practice, proof of ownership, difficult task, is facing serious difficulties, which may spring out from the following situations: the lack of writings concerning the transmission of real estate property title, especially that in the past there were not written, or the possibility that these entries may be lost or may contain insufficient data. In many cases, the official entries of documents do not include enough data identification, or they are not accompanied by drawings, topographical situation plans of the building, dismantling in several buildings, etc. Another failure to break the relativity principle of legal documents according to witch, the documents/contracts occur only between parties who have concluded, they are not binding on third parties. Based on the principle of opposability, if the plaintiff presented to the court an entered of passing ownership of the claimed property, the defendant will be able to sustain that the act is not against him, because it is estranged to that civil juridical report as a res inter alios acta. The issue remains topical, because of the fact that the law no. 7/1996 returned to the consensual principle, right being acquired by the conclusion of the act and not by its constitution in regime of land. The difficulty stems from the fact that not in all particular cases, the owners have written evidence, and sometimes these titles are canceled because of the faulty form or substantive, or they are not complete, etc. Another failure of evidence is resulting from the fact that the transitive proof of property cannot provide evidence of full and unassailable property rights, unless originating from the true owner. However, in order that a person is considered the true owner of the building, he must also have acquired all the property from a real owner, and so on, the scale of all successive broadcasters. Therefore, should the entry submitted by the complainant to be filled with other pieces of evidence, that all authors who have previously alienated the good, were themselves real owners, only so, the last act of acquisition could be considered fully valid. Since such evidence is impossible to bring, it is a real probatio

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Knowledge Based Organization 2008 International Conference diabolica. It requires an indication that this difficulty related to probatio diabolica may be ended in part through the existence of usucapio, under which, it is sufficient that the plaintiff proves that the property was possessed by himself and its authors for thirty years, to be recognize the right of property.1 The proof of ownership, based on the translation of titles, cannot be absolutely, because the copyright property right would have to be established from author to author, forever. The proof of ownership is absolute only in two cases, both based on possession, when it comes to occupancy or usucapio, hypotheses with a relatively restricted practical application. The complaint will have to prove an original way of acquiring the property rights (usucapio, succession etc.), in which case it is considered absolute proof, or a derivative of an acquisition, in which he could invoke securities, which are acts of translation or declaration. These acts also constitute evidence, but only relative, with probable and presumptive character, and only on condition of previous possession of the defendant, in the claimed good.2 The invoking of the complainant, in an action to claim a title under private signature, to the genuine title of the defendant cannot confer processual active quality.3 In relation to these drawbacks, in legal literature and in juridical practice it was felt that the plaintiff, in the vindication action / action of claim of property, must win not only when he is able to provide full and absolute evidence of property rights, but also when it will be created in his favor only the possibility that the right claimed it belongs to himself. What it is meant by the title in the context of evidence of ownership? The title that will be invoked by the plaintiff is the one by which

1 C. Hamangiu, I. Rosetti-Balanescu, Al. Baicoianu, Treaty of Romanian civil law, 2nd vol. , Ed National S.Ciornei, Bucharest, 1928, p. 62. 2 Julieta Manoliu, George Durac, Civil law, main real rights, Ed Foundation "Calling", Iasi, 1993, p. 142. 3 Court of Vaslui County, in December. Nr. 664/1976, the Romanian Journal of Law no. 10/1977, p. 43. 394

Knowledge Based Organization 2008 International Conference the ownership has been transferred (sale, gift, bequest, etc.) or by which the ownership has been recognized (shared, court, etc.). It is not about the proof of legal operation (in this regard, the title is, beyond doubt, the evidence), but about ownership, the claimed title making the evidence likable. The resulted presumption is powerful enough without being irrefragable. That explains why most titles are accepted as means of evidence: translative or declarative, authentic or under private signature, emanating from a common author, an author of the plaintiff or a third party’s (without that a title that comes from the complainant can be accepted), especially that the opponent has the opportunity to challenge the relevance of the evidence and the judge has a sovereign power of appreciation. In addition to securities, which have the value of clues, the parties may also indicate, for example: – cadastral records; – payment of taxes, a consequence of land entries; – the existence of the terminals, having the significance of signs of demarcation.1 By proving possession, even if usucapio conditions are not fulfilled, we presumed existence of ownership. A useful possession of the plaintiff may take place of presumption of fact, especially where the plaintiff has failed to exercise reintegranda action quick enough. On the other hand, if the possession of any of the parties meets the conditions of acquisition prescriptive, it will make a perfect test of ownership. Therefore, the probatory system of vindication action is a creation of juridical practice and of civil law doctrine, in which to the title of property has been offered the value of a presumption fact and to the possession has been attached an evidentiary significance. If none of the parties can test usucapio (which would be undeniable), various forms of evidence mentioned above, might come into conflict. The judge will have the power of decision regarding probatory force of means of evidence. The difficulties referred to, relative to the evidence of ownership

1 P. Simler, op.cit., pp. 123-124. 395

Knowledge Based Organization 2008 International Conference in the claim of property, in practice have revealed the existence of three hypotheses: – Conflict between securities / titles; – Conflict between title and ownership; – Conflict between possessions.1 Three hypotheses are possible, for which there are allowed the following rules regarding proof of ownership.2 a) The first analyzed assumption is the one when each party has a title. This can be seen only in relation to real estate, a distinction should be made as the two titles do or do not originate from the same author. If both sides presente each one a title, which comes from the same author, a distinction must be made, based on the fulfilled formalities from the transcription in register of the land. According to law no. 7/1996 the real estate registry law was changed. Whether the translation of property titles, will triumph the one who transliterated his first title. If none of them included the title, will win the title bearing the older date. If it is arranged through the generosity disposed in successive wills, the situation is inversed, it will aquire the possession the latest bequest, because in terms of will, the last document is revoking all the precedent ones. It establishes a simple comparison between two titles from the same author. If both parties, both plaintiff and defendant, submit titles of property from different authors, the court is obliged to investigate and decide in favor of the ruling party which has acquired the property whose title is preferable. The preferable title is the one better defined in legal terms. For example, between a note of the statement in payment and a

1 C. Bârsan, M. Gaiţă, M.M. Pivniceru, Civil Law. Rights in rem, Iasi, Editura European Institute, 1997, p.124; C. Hamangiu, I. Rosetti-Balanescu, Al. Baicoianu, op.cit., p. 64. 2 Lulă I., I. Sferdian, Civil law, real rights, Timişoara, Editura Mirton, 2001, p. 339; I.P. Filipescu, Civil Law. The right of ownership and other real rights, Bucharest, Editura Actami, 1996, p. 218 ff. 396

Knowledge Based Organization 2008 International Conference certificate of ownership issued in the Law. 18/1991, the latter one is preferable, being better characterized from a legal point of view. The judge must identify the desirable title, taking into account an amount of circumstances. Ultimately, if the securities can not be differentiated, is the preferred the holder, under the presumption of property that is in his favor („in pari causa Meliá is the cause possidentis”), or the party claiming the title with the oldest date, without any of these solutions enjoy a real support. Burden of proving that the author has a preferable title, crops us to the plaintiff, and if he fails to make such evidence, the defendant will triumph in the process. For example, in one caselaw, the plaintiff’s action was rejected, the title of ownership of the defendants was considered „better defined” than the plaintiff’s, therefore preferred to the latest one, because: – the date the contract is concluded, the State seemd to be the owner of the property; – the seeming title of the State had not been questioned by any court action and therefore no judicial decision had been given, – any communication or notification was not addressed to the tenants to warn them about the complainant's intention to reclaim the property; – a special law, Law no. 112/1995 allowed the purchasing of apartments by tenants with a legal regime similar to the one of property in dispute, the requirements of the so-called theories of the seeming owner being fullfilled. In addition to this rightfull appearance, defendants enjoy the presumption of good faith.1 b) If only one party has a title, it will naturally gain the question. When the plaintiff has a written title, which comes from a third party, and has given prior possession to the defendant, he will gain from the process without requiring the proof of his possession, following forever, from owner to owner. It is the assumption through which the title of the plaintiff opposes to the possession of the defendant (the conditions required for

1 Î.C.C.J., civil department, decision no. 1422 February 20, 2004. 397

Knowledge Based Organization 2008 International Conference the usucapio of the defendant being not met), the anteriority criteria is used by law to sequence this conflic. A change to these rules is noticed in the recent decisions of French jurisprudence1, which, without giving a decisive importance to its anteriority, considers the circumstances of the case as a whole in order to arrive to a conclusion. If the defendant is provided with the title, and the plaintiff can not bring this evidence, the court action will be rejected and the defendant will remain in possession. c) If neither one of the parties has the title, and neither one can invoke usucapio or occupancy, it could reach to the solution that the plaintiff’s lawsuit should be rejected by the plano, because he has not been proven his allegations, thus giving the gain to the owner. Juridical practice adopted the solution of comparing the two possession, will won the case the possession better characterized (possession of good faith, longest term, unflawless etc.). Thus, the complainant with no title, fighting a defendant in possession without a title, which can not invoke usucapio in his favor, may: – either demonstrate that current possession is informal, therefore ineffective probatory, unlike his possession, that, although earlier datted is better characterized; – or, although actual possession of the defendant is characterized, the plaintiff has previously possessed (himself or his authors), for thirty years, the usucapio following the possession; – or simply comparing the two possessions, in which case the plaintiff may oppose the defendant's possession with arguments such as: possession is only an indication, the task to arbirtrate being given to the judge, without having the possibility to refuse, under the pretexte that no decisive evidence was presented; In other words, if the conditions of usucapio are not met, the possession generates only a rebuttable presumption, likely to be destroyed by any other means of evidence.2

1 Cass., 1st civ., Nov. 18. 1964: Bull. CIV. I, no 512; Cass. 3rd civ., March 6, 1974: Bull. CIV. III, no. 108, in P. Simler, op. Cit., P. 125; 2 Henri and Leon Mazeaud, Leçons de droit civil, t. II, 2eme volume, Biens: droits de propriete et ses demembrements, par F. Chabas, 8th ed., 1994, no. 1644; to the contrary 398

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Please note that, besides proving his right of ownership, the complainant is obliged to prove that the defendant is the owner of the building, that he makes acts of resistance, otherwise, the defendant being deprived of his passive processual quality. By title, in this matter, is not understood only the translative one (sale, donation, etc.), but also the declarative one (as it is a judicial decision, a transaction, a partition). On the question of whether to invoke a title from a third party does not constitute a deviation from the principle of relativity of legal documents, the answer is negative. The opposition of an opponent's tenure does not mean the claim, in fact, of the absolute characteristic of the title, but it invokes a presumption of ownership in his favor, resulting from the existence of the title. Just because the title has value as presumption, as legal fact, and not as a legal act, in such lawsuits it can be invoked also titles that do not have a translative trait. The title invoked, with the value of a simple presumption may be overthrown by invoking a stronger presumption. Lack of the author’s ownership title, whose succession was debated, plus declaratory trait of the partition decision, lead to the conclusion that the complainant has not proved he is the owner of the claimed land1. The lack of the author’s title will lead to the rejection of vindication action, the proof of property not being made. After 1991, in legal practice and literature were raised two issues, stemming from two laws, Law no. 18/1991 regarding the land fund, republished and amended, and Law no. 10/2001 concerning the legal status of properties abusively taken in the period March 6th 1945 – December 22nd 1989. The first issue arising from the land fund law refers to the possibility of assimilation ownership attestations as property. The issue was controversial, some authors2 and the juridical

opinion, Marty G. and P. Raynaud, Les biens, 2nd ed., 1980, according to which possession generates a presumption stronger than all the others, none of the other can’t oppose to it. 1 Î.C.C.J, the department of civil and property rights, decision no. 2487 of March 29, 2005. 2 P. Perju, Discussion on some controversial issues of civil procedural law and civil law, The law no. 10-11/1995, p. 56; Court of Appeals Timisoara, sec.civ., dec.nr. 60/14.01.1998, in the Collection of juridical practice for the year 1998, pp. 52-53. 399

Knowledge Based Organization 2008 International Conference practice considering that the attestation of the ownership of the land were temporary, and therefore can not test the right of property not even in conjunction with the minutes of its possession. We subscribe to this view. Other authors1 argue the opposite, in the sense that these property attestations have the same legal force and probation as the title of ownership. In the case of land for which the reconstitution of ownership was made after the procedure established by law, Law no. 18/1991. Law no. 169/1997 and Law no. 1/2000, the complainant may reaquire possession only for areas of land allocated for the purposes of the refund, and proof of ownership for the land covered by the claim, is the title of property issued under Article 16 of Law no. 18/1991. The certificate of ownership, confirming only the reconstitution without determining the location of land allocated, is not considered land property, so it can be considered during the settlement of the action claim2. By Article 1 of Law no. 18/1991 the legislature widens the scope of evidence that can make proof of ownership of the land, beyond those enshrined in the field of property claim practice and literature. It stated that, in the area to agricultural cooperative production is the one resulting from: acts of property, Real Estate Register, cadastre, the application form for entry into a cooperative, evidence of cooperation, or, failing that, any other evidence or entries, statements, witnesses3. It is noticed, in this context, the opinion of a specialist in land law4 which states, along with the title of ownership, the minutes for the possession and property attestations and other acts (evidence) on the evidence of land propeery, as follows: – requests for inclusion in the CAP;

1 Gh Dobrican, Legal value of attestations of the property issued by the committees for land law enforcement No 18/1991, the Law no. 7/1994, pp. 34-36. 2 Î.C.C.J, sec.civ., dec. no 2970 from April 22nd 2004. 3 Nicholas Puscas, Current problems concerning evidence of ownership in the property claiming action, In Romanian studies no 1-2/2004, pp. 129-130. 4 F. Scrieciu, Theoretically and practically treaty of land law, Bucharest, Ed Lumina Lex, 2001, pp. 117-118. 400

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– books, tables, lists and other documents relating to the entry in the CAP; – minutes of a takeover protocol of an agricultural land (either by the former executive committees of the former People’s Council or by other institutions and bodies, land which was subsequently taken over as asset of the CAP; – certificates, attestations, addresses, or any other document issued by the authorities, which shows, in one way or another, the ownership; – attestations of land registry and general cadastre; – statements issued by the State Archives which show the existence of property and which make reference to the acts on this right; – extcrepts from the register of agriculture; – other entries under private signature containing entries regarding the right of property; Another category of problems is resulting from the application of Law no. 10/2001, in particular art. 22 which states that „the evidence of property rights and, if regarding the successors the one that certify this quality ...” will be submitted and their validity evaluated, not only by courts but by holding or management units or by municipalities. Proper appreciation of the validity of evidence given by the classes and inability in carrying out such activities leaves room for doubt. The above allegations1 are sustained by the increase of the number of actions brought by people abusively devoided of their land property rights, during the period referred to the E.C.H.R. that usually through the given decisions, the Court ruled for them, the Romanian State was obliged to repay in kind the goods in question, or it put out the dispute through the execution of duty by equivalent.

1 N. Puşcaş, op.cit., p. 131. 401

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THE ROLE OF THE CIVIL DEMOCRATIC CONTROL IN A GOOD FUNCTION OF THE RULE OF LAW

Bahrin Dorel, PhD

“Hyperion” University, Bucharest

Abstract The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in a accordance with written, publicly disclosed laws, adopted and enforced in accordance with established procedural steps that are referred to as due process. In this respect, the paper points out the importance of improving the mechanisms of the civil democratic control, while referring to various types of control parliamentary control, administrative control, jurisdictional control, control exercised by certain autonomous authorities (control of constitutionality, Ombudsman’s control and so on) and civic control. Special attention is paid to the democratic control in the field of security. Starting from 2007, according to the agreements, Romania will be able to make its contribution to the promotion of democratic institutions, particularly of strategic interest with NATO and the EU.

Keywords: democratic, control, rule of law, Civil Democratic Control

The Role of the Civil Democratic Control in a good function of the Rule of Law In the state governed by the rule of law, the state is the guarantor of individual rights and freedoms, while ensuring internal and external security of the citizens through democratic institutions. The superior institution to whom other laws and rules are subordinated is the Constitution. The compliance of the regulatory instruments from

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Knowledge Based Organization 2008 International Conference inferior level with the ones of superior level is ensured through democratic control mechanisms stipulated in a state governed by the rule of law. The institution of democratic civil control represents a crucial dimension for the proper functioning of the state governed by the rule of law and therefore the development of doctrine in the area, is and will be an effective tool for assessing the dimension of the rule of law both for the political factor, and for the institutions that are involved in promoting the concept. The realities of the 21st century, a century dominated by the phenomenon of globalization, with new defiance and asymmetric threats to national and international security, are compelling and will compel the Romanian state to countermeasures; some of these may even slide into violations of citizens rights, if there are no measures, promoted primarily through the institution of democratic civil control. We can define the institution of democratic civil control as being the set of competences given by law to democratic, constitutional institutions, to establish the regulatory framework for their organization, operation and responsibilities, their action limits and also to check how they comply with the legal provisions. [3]

1. Ways of approaching the civil democratic control: The concept of democratic civil control can be approached on two levels: – The first one aims the “soft” approach of the concept that gives equal importance to the control of all the areas of socio-economic life in a country. – The second one aims the “hard” approach, which puts first, when considering the degree of democratization of a political system, the control of the security area. Depending on the control in this area – subjective or objective – is determined the characterization of the control type applied by a political regime: civil democratic control or control specific to police state. Both approaches must treat equally the manifestation manner of all the components of democratic civil control, namely: political control (parliamentary), the administrative control (control made by the

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Government but also by some authorities of the autonomous administration), jurisdictional control (control made by the judicial power), the control exercised by some autonomous authorities (with the control types: constitutionality control, control regarding the respect of citizens rights, etc.) and civic control 1 (with the types of control: civil control, civic control, etc.) Developing in this frame only the “hard” approach, we appreciate that, at this time, the civil democratic control regarding the security area in Romania covers the following components: Armed Forces (composed of the Army, militarized structures of the Ministry of Interior and Administrative Reform, Information Services and other formations the militarized fields, the special sectors, private security services. These structures are supervised mainly through parliamentary control. Looking at the first controlled dimension – the army, the purpose of democratic civil control covers, with priority, preventing the military “coups d’état” in the tendency to establish military or autocratic regimes, and, as a consequence, preventive measures on defending the values of the rule of law are imposed. This role of "watch- dog" of the democratic system, which is even nowadays played by the institution of democratic civil control, remains valid also for the future more or less close. A natural question appears: why so much concern for civil democratic control of the Romanian army, considering that, in its modern history of almost 150 years, has not taken the political leadership of the country, and has not threatened with a “coup d’état”? A first response should arise from the necessity to apply the democratic principles and practice also to the army. A second direction concerns the need to supervise the process of reforming the military organization. But the role of democratic civil control was not and is not less important in well known democracies. The transition from the masses army to the professional army in the modern armies, a process specific to early `70s, was not done without efforts and a strong involvement of the political factor (this measure dealt with a strong resistance even in

1 institution conceptualized by the author 404

Knowledge Based Organization 2008 International Conference the U.S.A.). In Romania, a first step of this process has been achieved through the implementation of the Romanian Army Program – 2007, meaning completion of the initial stage of the process of professionalizing the army. Former French Prime Minister Georges Clémenceau said that “war is a thing too serious to be left on the account of the militaries.” [2] Beyond its cynicism, this assertion reminds the fact that in a democracy, elected representatives of the people have supreme power and that no sector of the state should avoid their control. A state without a parliamentary control in the security sector and especially in the military one, should be considered, at best, an incomplete democracy or a democracy in the process of formation. Another important direction results from the relative autonomy of some structures in the area of secret services (the Romanian Information Service, the Foreign Intelligence Service) or in the special sectors which, without a political supervising, can manifest an undemocratic behavior, or may become a kind of “state within the state.” In this chapter an important role will have the promotion of a new legislation in the field of security, given that some laws in this area still contain provisions corresponding to the realities of the 90`s1 [12] New regulations on the approvals of security, necessary (also for parliamentarians) in order to have access to classified information, increase the degree of opacity-often unjustified, of such structures. Currently the military structures (in international meaning [8]) that are part of public defense, public order and national security institutions of the state are: ● at the Ministry of Interior and Administrative Reform: Romanian Police, Romanian Border Police, the Authority for Foreigners, the National Office for Refugees, the General Directorate of Information and Internal Protection, Acvila Special Group for Protection and Intervention, the Special Aviation Unit, Judicial Police, Special Unit of Aviation etc.

1 Ex: Law no.51/1991 on the national safety of Romania, Law no 45/1994 on national defence, etc. 405

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● at the Ministry of Justice: National Administration of Penitentiaries These structures, currently assured by civil servants with special status (by transforming the military functions and degrees in civil positions and degrees) require a careful supervision, given that the reform process of these structures is complicated and still ongoing. The civil democratic control in the special sectors particularly concerns: The Protection and Guard Service, the Special Telecommunications Service, the Central State Office for Special Affairs National Administration of State Reserves, the General Directorate - the Production of Defense (from the Ministry of Finance and Economy); the National Agency for Control of Strategic Exports and other structures. There are particularly sensitive areas and a special attention has to or should be given to them. A relatively new area is the exercise of democratic civil control over private security services. Until recently the state was the sole provider of security. Since 1989, also in Romania, an explosion of private security companies and of private detectives took place; such structures are currently regulated by Laws 329 and 333 from year 2003. Starting with 2004, by Law no. 371 on the organization and functioning of the community police, a new player has appeared, subordinated, according to its name, only to local communities. Although the law prohibits to the companies specialized in alarm systems to perform activities of collection of information, audio or video records which exceed their object of activity, the effectiveness of the specialty control is questionable, as the state authorities empowered by law to monitor such activities have imported specialty technique under the performances of the one existing in some private security companies, information released even in the media. The specialized companies and the individual offices of private detectives are entitled, under well established law provisions, to equip themselves and to use technical means of investigation and communication and to request formally to the public authorities data about persons, goods or circumstances, necessary to the private detective in the investigation process. In practice, however, may appear abuses and attacks on private and

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Knowledge Based Organization 2008 International Conference intimate live of citizens, abuses made public – as the TV show, without any state body to notice ex officio. Compared to the phenomenon of the proliferation of private security companies, is more and more important that the democratic institutions and firstly the Parliament to ensure a minimum standard of the control and supervision of these new players in the field of security. Last but not least, an increasingly important role in Romanian society has the civic control, primarily by the media, which often has disturbed the peace of the political factor by disclosures such as: frigates business, suspect privatization of strategic importance objectives, excesses or abuses of the order bodies, etc.

2. Relationship state governed by the rule of law – civil democratic control. The role of parliamentary control as the main component of democratic civil control The most important and effective institution in the exercise of political power has been and remains the state. It is also the first political structural institution, organized and institutionalized, of having, exercising and legitimating the political power. This has made in many cases that the state is identified with political power, while the latter is defined by the state, as state power. In order to exist, a state governed by the of rule of law in the modern sense of the term, needs not only the establishment of a legal mechanism for ensuring strict compliance with the law, but also to give to it a specific content, inspired by the idea of promoting the human rights and freedoms in the most authentic liberal spirit and a wide democracy. We can define the state governed by the rule of law as a state which, being organized on the principle of separation and balance of powers, with an independent justice, seeks by its legislation to promote the rights and freedoms inherent to human nature and ensures the strict compliance with the rules established by all public authorities in their whole activity. In the state governed by the rule of law are functioning adjustment systems in the generic form of: democratic civil control, free access to justice, organizing the justice activity in several degrees of jurisdiction,

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Knowledge Based Organization 2008 International Conference etc. Parliamentary control means a manifestation of the state governed by rule of law and also the main dimension of democratic civil control, control without which the assessment of the functional parameters would not be possible, and corrective measures could not be determined or the measures – firstly political, in order to improve the functional parameters of the state governed by the rule of law. From the scientific point of view, the separation of powers and the parliamentary control over the Executive have a logic support, under which, where there are three competing entities, namely the legislative, executive and judiciary, and the rule of one of them is excluded, systems of weight and counterweight should be created, in order to stop any disallowed ascending of one of the entities to the supremacy. The only part of the civil control which disposes of the necessary means for preventing the executive’s trends towards a possible autocrat regime, when the security forces are used for a possible legitimacy, is the parliamentary dimension. If in the past the idea of parliamentary control was based mainly on design regarding the sovereignty of Parliament, today it is based on the recognition and acceptance of general separation of powers, but also of the multiple forms regarding the complex links to be set between state bodies and institutions Unfortunately, in the 16 years since the Romanian Parliament is elected and operates under the new Constitution, it has been attacked on all fronts, its image being more than affected (corruption, lack of professionalism, draft laws “buried” in Parliament, chronic absenteeism, scandals in Parliament, etc.), in the surveys being credited with approx. 20% – share of trust from the population, below the share trust of the Government, usually so unusual in states with established democracy. As a result the institution and therefore the parliamentary control executed by it had and still has to suffer. This phenomenon increased the imbalance between the powers of the state, the Parliament showing “caution” in manifesting its powers of control over the executive, thus affecting the proper functioning of mechanisms of the rule of law. The function of control is as important as the legislative function.

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Both positions have their theoretical support in the principle of the separation and balance of powers. The balance of powers between the Legislative and Executive is made from the Legislative`s part mainly through parliamentary control exercised over the Government and the President of Romania. Also, for speeding the reform process, actual requirement also as a result of post-accession monitoring in recent years, the Executive has exercised a constant pressure on the judicial power, sometimes proper, and other times even abusive, touching the principle of independence of the justice.

The Parliament is the most entitled institution that must manage, through its control function, the respect of the principle of balance and separation of powers in the state. Otherwise, the good functionality and stability of the state governed by the rule of law can be affected.

Conclusions The lack of effective and competent civil democratic control, in all its forms, from political control to civic control, would throw into a sterile area the concept of state governed by the rule of law. Given the fact that it performs a strategic function, the civil control of the security area is an essential element of separation of powers and, if effective, limits to an optimal level. The power of the Executive or of the President The status of full member of NATO and the EU, transformed Romania from an “importer” of security institutions in an “exporter” of security institutions, of which is distinguished the institution of democratic civil control. Since 2007, Romania according to arrangements made, can contribute, mainly by the civil society dimension, but not only, to promoting democratic institutions in the areas of strategic interest for NATO and the EU. The Romanian doctrine has the role to provide theoretical foundation required to meet such new obligations.

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References [1] David F. Trash, The Civil Control on the army forces in US, published under the care of USIA, 1993, pp. 26-38. [2] Clemanceau Georges, Grandeur and Misery of Victory, New York, Mc Graw- Hill, 1995, p. 68. [3] Gheorghe Diaconu, Floarea Ilie Şerban, Nicolae Pavel, The Democratices Control of the Army, Enciclopedica Publishing House, 1996, pp. 26-32. [4] Ionel Nicu Sava, Gheorghe Tibil, Marian Zulean, The Army and the Society, Info – Team Publishing House, 1998, pp. 35-37. [5] Zbigniew Brzezinski, The Big Chessboard, Univers Enciclopedic Oublishing House, 1999, pp. 230-231. [6] The Romanian Institute for Human Rights, Human Rights Magazine no. 2/2001, pp. 26-31. [7] România – Nato Centre for Strategic Security Studies, 1990 – 2002, Academiei de Înalte Studii Militare Publishing House, 2002, pp. 19-22. [8] The Centre for Democratic Control of Army Forces – DECAF, Geneva, The Reform and Democratic Control of The Security Sector and International Order, 2002, pp. 5-18. [9] Hans Born, Parlamentary Oversight of the Security Sector, DECAF-Geneva, 2003, pp. 69-72. [10] Ioan Muraru, Elena Simina Tănăsescu, Constituţional Law and political institutions, All Beck Publishing House, 2004, pp. 156-163. [11] Cristian Ionescu, Constituţional Law and political institutions, All Beck Publishing House, 2004, pp. 428-440. [12] Law no 51/1991 regarding the national safety of Romania, modified and added-on.

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THE RIGHT TO FREE MOVEMENT, AS A RIGHT STIPULATED BY THE CONSTITUTION. THE ASPECTS OF THE RIGHT TO FREE MOVEMENT IN TODAY’S INTERNATIONAL CONDITIONS

Tarnu Lucian, PhD

Sibiu County Police Inspectorate

Abstract The right to free movement, as a legal concept, involves, necessary, certain rights and obligations for the subject that uses them, and also for the other citizens, the citizen’s state authorities, but also for the other state authorities. For the citizen that exercises his right to free movement, this right implies exercising it under the law conditions, submitting to the stipulations established by the authorities or the organisms that assure the transportation of the subject on the territory of other countries.

Keywords: right to free movement, Constitution, communitarian aquis

For Romania, the right to free movement presents a special importance, as it represents, undoubted, an expression of the democratic achievements obtained in December 1989. As shown in the handout of the National salvation Front Council for the country from December 22nd, 1989, one of the objectives of the revolutionary changes that were to be made in Romania was “passing an internal and external policy servient to the needs and interests of the human development, complete respect of the human rights and freedoms, including the right to free movement”.

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Considering this list of preoccupations, in the next period a series of restrictive regulations were abolished and new laws were passed concerning the passport and the movement of Romanian citizens abroad1. The Constitution of Romania from 1991 devoted an entire article to the right to free movement, with the following content: “1. The right to free movement, within the country and abroad, is guaranteed. The law sets the conditions for exercising this right. 2. Every citizen has the right to establish an abode or a residency anywhere in the country, to emigrate and to return in the country”. At the same time, the Constitution of Romania devoted special stipulations concerning the protection of Romanian citizens abroad, and also the statute of foreigners and stateless persons. The integration of Romania in the Euro-Atlantic’s structures, process finalized when Romania became member in the European Council, on the 7th October, 1993, of NATO on March 24, 2004 and since the 1st of January 2007, of the European Union, gave the possibility to elaborate a new vision, democratic and profoundly humane, on the right of free movement for Romanian citizens and foreigners, and also on the conditions under which the foreigners – and mainly, the citizens of the European Union’s member states, were to enjoy the same rights in our country2. The process of appropriation of the communitarian acquis permanently offered, in all this period, elements of novelty, implying not only the adjustment and improvement of Romanian legislation, but also political and administrative measures, at state’s level, for a better guarantee and recognition of this right. The amendment of the Constitution of Romania in 2003, set the obligation for our country to apply the treaties that constructed the

1 We mention here the Law decree 10/08.01.1990 regarding the passport statute and the citizens of Romania statute abroad, the Government Decision nr. 949/1990 regarding the categories of citizens that receive diplomatic and official passports, the Government Decision nr. 65/1997 regarding the passport regime in Romania, Law nr. 248/2005 regarding the free movement of citizens abroad etc. Concerning the legal statute of the foreigners we mention Law nr. 123/01.04.2001 regarding the foreigner’s statute in Romania, the Government Enactment nr. 194/2002 regarding the foreigner’s statute in Romania. 2 For example, beginning with the Government Enactment nr. 265/2000 it was abolished, one- sided the statute of the visa’s for the citizens of the member states. 412

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European Union and also all the other communitarian rulings that were mandatory, with priority in front of the internal rulings and stipulations. In the years that followed, more and more Romanian citizens exercised they right to free movement, and this implied special stipulations and policies regarding their protection by the Romanian state, and also the guarantee to legal assistance in case the Romanian nationals might be involved in events that could affect the legal order of a state. At the same time, as a result of the establishment of the European citizenship and the abolishment of the penal consequences of leaving the country from the penal code, many Romanian citizens settled for certain periods of time abroad, forming more or less stable communities, with who the Romanian state has to stay in contact in order to maintain their national identity and to ensure their integration in the resident state. Consequently, it can be said that by attaining the quality of member of the European Union and in other international organizations, Romania had to reconsider completely the right to free movement and harmonize it with the standards and levels existing in the European Union. Romania’s commitments as a member of the European Union also impose an active contribution to carry out the European Union programs regarding the borderline security, public administrations and justice. Situated at the eastern frontier of the European Union, Romania receives the mission to ensure the protection of this frontier, defending the communitarian space from elements of offences, and at the same time, to contribute to the prevention and the fight against crimes across borders. As it is well known, Romania is still in the process to adhere to the Schengen space, which will allow us to gradually eliminate the control at the frontiers with the other member states. In a bigger perspective, Romania will study the possible implications of the immigration policies after the enlargement of the European Union. In this regard, a very important role important role has the National Strategy regarding the problem of immigration, that

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Knowledge Based Organization 2008 International Conference will allow Romania to correctly fulfill the it’s obligations as member state of the European Union, and also to guarantee the right to free movement. As a said before, the right to free movement is stipulated in the Constitution of Romania in article 25. Regarding the foreigners and stateless persons, they also have the right to free movement, but not as citizens, but in the spirit of the international treaties and the policies followed by Romania. Article 18 stipulates two different situations: – the first situation is stipulated in art 18 (1), which states that “the foreigners and the stateless persons that live in Romania are under the general protection of persons and estates, guaranteed by the Constitution and other laws”; – the second situation regards the right to asylum – art. 18(2) – “The right to asylum is granted and is withdrawn under the conditions of the law, respecting the international treaties and conventions to which Romania is part of”. It can be said that the right to free movement is a fundamental human right guaranteed by the Romanian Constitution, and it is applied for Romanian citizens and also for the foreigners, obviously with specific connotations and different stipulations. A special observation must be made regarding the European Union member state’s citizens, in their case the stipulations of the Nisa Treaty are applied, as well as the other stipulations from the communitarian treaties that Romania is part of. As the art. 25 from the Romanian Constitution stipulate, this right can be exercised under some conditions. The interpreters of the Constitution show, regarding this subject, that “the conditions regarding the right to free movement are to ensure some economical and social values, the fundamental rights and freedoms, the relationship with other states etc. The legal stipulations regarding the identity cars, passports or other documents, the rules to cross the frontiers and generally, the legal status of people are nor and can not be considered as restrictions of the right to free movement but, contrariwise, as stipulations that establish an efficient and civilized frame of exercising this right. Indeed, this stipulations must not

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Knowledge Based Organization 2008 International Conference suppress, by abusive or teasing techniques, the right to free movement”1. From the comparative constitutional law point of view, al though the right to free movement is a fundamental human right, recognized by international documents, and, most importantly, by the Universal Declaration of Human Rights, it is not stipulated in the Constitutions of the main democratic states, such as USA, France etc. The logic of this fact is in the believe that this type of right shouldn’t be included in the Constitutions, as it is self understood that the citizens of a country have the right to move wherever they want inside of their country, and also over it’s borders, having – obviously, the right to return. In all of these countries there are however, stipulations regarding migration and immigration, the prerogatives of the institutions that have responsibilities in these situations, the documents that are released to the people that find themselves in this type of situation etc. Instead, in the countries that knew totalitarian regimes, the right to free movement is stated expressly, just as an expression of the desire to mark the difference from the past when the movement of the citizens abroad was strictly stipulated. Thus, the Charter of The Fundamental Rights and Freedoms, which is the appendix of the Czech Republic Constitution from December 16th, 19922, stipulates that the right to free movement is guaranteed, any person that is legally in the Czech Republic is also free to leave it. Article 14 from this Chart says that these rights can be limited by the law, but only if this is unavoidable for national security, public order maintenance, the protection of the health and to protect the rights and freedoms of others, and on special territories, to protect the nature. Any citizen has a right to freely enter on the Czech Republic territory and no one can be constrained to leave his own country. Regarding the foreigners, the same article, says that a foreigner can not be expelled than under the law conditions. The Constitutions of the Republic of Croatia from December 22nd

1 Constantinescu Mihai, Iorgovan Antonie, Muraru Ioan, Tănăsescu Elena Simina, The Constitution of Romania – coments and explicatins, All Beck, Bucharest, 2004, p. 46. 2 http://mjp.-perp.fr/constit 415

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1990, uses a bit different statement when it stipulates that any person that finds itself legally in Croatia has the right to move and reside freely. Any citizen has the right to leave the county and settle, at any time – permanently or just temporally –, abroad and to return any time he chooses. Only as an exception, the right to free movement in Croatia or the right to enter or leave the country can be astricted by the law, only if this measure is necessary in order to protect the order, the health, the rights and interests of others. Similar stipulations can be found in the Constitution of Poland, from May 2nd 1997, which speaks about any person’s right to move and reside on its territory. We can also find stipulations regarding leaving the country. A specific stipulation is the one that says that the people whose polish origin was legally established have the right to live in Poland. In Hungary, the Constitution from August 20th 19451, that suffered numerous modifications, also included similar stipulations. Besides, it was stipulated that the foreigners residing legally on its territory can not be banished unless there is a legal decision taken in this matter. In Russian Federation, article 27 from the Constitution from December 12, 19932, also included similar stipulations regarding the people that find themselves legal in Russia to move and reside. We also find, a stipulation regarding everyone’s right to cross the Russian borders and the right of the russians to return in the country without any difficulties. The Constitution of Bulgaria from July 13, 1991, modified in 2003 and 20053, also stipulated the right of the bularians to choose their home, to move freely in their country and to leave it, right that can be limited only in specific situations. Also, the Constitution of Bulgaria stated in article 35 (2), that every bulgarian has the right to return in his country. Among the European states that stated in its Constitution

1 http://mjp.univ-perp.fr 2 http://www.constitution.ru/fr 3 http://mjp.univ-perp.fr 416

Knowledge Based Organization 2008 International Conference stipulations regarding the right to free movement we also mention Germany1, the right to free movement was written in article 11; Italy, stipulated the same rights in art. 162; Portugal, in article 44 from the Constitution from April 2nd, 19763 and in article 5 of the Constitution of Greece from 19754, Spain – article 19 from the 1978’s Constitution5. Such stipulation are explained in the persistence of some bad memories from the totalitarian regimes that existed in all of these countries which imposed limitations of the right to free movement, from political or other considerations. After comparing all these constitutional stipulations – and it must be mentioned that we referred here only to some states that after 1990 became democratic states –, some ideas claim to be underlined: a. first, the right to free movement on the territory of these countries is a general right, recognized to their citizens and also to the foreigners; b. this right can be exercised all over the country. This way some restrictions from the past, regarding the movement to certain areas or cities considered of military or strategic interest, were cancelled from the beginning. c. the restrictions of the right to free movement are of strict interpretation and they regard only well determined situations, such as the protection of public order, health, the rights and freedoms of others. The right to go across the state’s borders is completed with the idea that the ones that leave can return any time without any difficulties. This way, situations from past when the people were trialed and condemned for leaving the country were cancelled.

1 Călinoiu Constanţa, Duculescu Victor, Duculescu Georgeta, Compared constitutional law, edition IV, vol. I, Bucharest, Lumina Lex Printing, 2007, p. 398. 2 Idem, p.360. 3 http://mjp.uni-perp.fr 4 http://www.amb-grece.fr 5 The Constitution of Spain, Bucharest, All Educational Printing, 1998, p. 21. 417

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The legal content of the right to free movement. The correlation with the other rights The right to free movement, as a legal concept, involves, necessary, certain rights and obligations for the subject that uses them, and also for the other citizens, the citizen’s state authorities, but also for the other state authorities. For the citizen that exercises his right to free movement, this right implies exercising it under the law conditions, submitting to the stipulations established by the authorities or the organisms that assure the transportation of the subject on the territory of other countries. The right to free movement was recognized as a fundamental human right but exercising it was put under political conditions. As the french author Monique Chemillier-Gendreau showed “the right to move from one state to another has a central place among the fundamental rights … In the history of the international law, the political and economical circumstances decided a larger or smaller area to exercise this right, without ever having the statute of a general right of everybody”1. Today, the right to free movement can be considered a right almost entirely accomplished at the European Union’s level, and lesser in the states of other continents2. Al the European Union level several regulations were adopted, the most recent being the Directive of the European Parliament and European Council 2004/38/CE from April 22nd 2004, that comprise a large regulation regarding the conditions to exercise the right to free movement, the right of the European Union’s citizens and their families to reside, the right to reside permanently and the limitations that this rights can suffer for considerations of public order, public security and health3. Regarding the citizens of the countries that are not members of

1 Chemillier-Gendreau Monique, La libre circulation: un droit. Analyse des texts de loi du droit international, în revista “Alein droit” (no. 36-37), http://imsi.net/spip 2 Andrus Cătălin, Aspects regarding the workers right to free movement – present stipulation from the European Constitution point of view, in Marcu Viorel and Diaconu Nicoleta, The dynamic of the international relationships in the present-day, Legal studies, Bucharest, Universul Juridic Printing, 2006, pp. 343-356. 3 Droit de libre circulation et de séjour des citoyens de l’Union Européenne et de members de leurs famille, http://europa.eu/scadplus/leg/fr. 418

Knowledge Based Organization 2008 International Conference the European Union, the right to free movement is still subdued to certain restrictions; particularly, the conditions for asylum and migration are strictly stipulated. An important legal document was adopted by the European Council in November 24, 1977 – The European Convention regarding the legal statute of the migrant worker, document that comprised stipulations regarding the admittance and departure from a EU country, the procedure and formalities regarding the labour contract, the permit to reside, family regrouping, working conditions, the social security conditions etc1. Regarding the right to free movement of the European Union citizens, as a rule, this in guaranteed by the European documents, and firstly, by the communitarian treaties that include the right to free movement among the four communitarian freedoms, along with the free movement of goods, capitals and services. The Court of Justice of the European Union, in some important cases, reaffirmed the legal value of the right to free movement and the states obligation to respect it. Analyzing the practice of the European Court, Jean François Renucci stated that, in the last years, the Court of Justice had the opportunity to pronounce in matters regarding the legal statute of migrant workers from non EU countries. With these rulings, the judges from Luxembourg tried to diminish the difference between the communitarian workers and those from non EU countries, mainly reckoning upon the different understanding signed by the European Community regarding the right to free movement. Thereby, a certain development of this right was made regarding the migrant workers from non EU countries2. Regarding the right of a foreigner worker wife/husband, the Court of Justice established that a communitarian state can not refuse the entrance on its territory of a non-communitarian citizen, even if this citizen doesn’t have an identity card or a valid passport, under the condition to be able to prove his identity, his matrimonial legal statute

1 Convention européenne relative au statut juridique du travailleur migrant, Strasbourg, 24 novembre 1977, http://www.conventions.col.int/traties 2 Renucci Jean François, Traité de droit européen des Droits de l’Homme, L.G.D.J., Paris, 2007, p. 594. 419

Knowledge Based Organization 2008 International Conference to the wife/husband that works in the communitarian state, and also that there are no elements to indicate that this person can be a threat for the public order, public security or public health in that country. On the other hand, the communitarian courts ruled that a member state can not refuse to release the permit to reside for the citizen of a thirst country, husband/wife of a citizen of a thirst country that has entered legally on its territory and also, can not take the measure to expel him for the sole reason that his visa expired before he requested the permit to reside. Jean François Renucci observed that “even so, important differences still remain regarding the statute of communitarian migrant workers: if the Court interprets the personal rights and equality of treatment as an obligation for the member states not to restrict the access of the extra communitarian workers in the communitarian labour marker to the free movement of the foreign labour hand, it isn’t less true that putting this rights in practice is problematical”1 The European Court of Justice stated precisely that the simple registration in the Informational Schengen System (ISS) will not be enough to justify the restrictions of the peoples right to free movement: the member state which consults the Informational Schengen System must be able to know, before refusing to allow the entrance of a person on the Schengen territory, that his presence might be “an actual, real and serious threat that can affect a fundamental interest of society”. In the Bosman case, regarding the right to free movement of professional football players, the Court considered contrary to communitarian regulations the stipulations used by certain states to limit de number on non communitarian football players in the composition of national football teams present in competitions2. Essentially, it can be assessed that the right to free movement knew important developments since the Universal Declaration of Human Rights was adopted. Certainly, in the perspective – still far off – of establishing fully

1 Idem, p. 595. 2 Idem 420

Knowledge Based Organization 2008 International Conference democratic international relationships and discharging any possible conflict, the right to free movement will be able to become an universal right and won’t be submitted to restrictions, justified or unjustified, that might substantially alter its content. Until then, since we live in a world of the sovereign national states, it’s natural for each country to have the right to decide the number of foreigners allowed on its territory and under which conditions, in order not to affect its own economy or security interests. The right to free movement remains a fundamental human right, bur like any other right, it is subdued to certain conditions and ways to exercise it, that allow exercising it according to the interests of the citizens, and also according to the interests of the state of entrance and the state of which national he is.

References [1] Constantinescu Mihai, Iorgovan Antonie, Muraru Ioan, Tănăsescu Elena Simina, The Constitution of Romania – coments and explicatins, Bucharest, All Beck, 2004. [2] Marcu Viorel and Diaconu Nicoleta, The dynamic of the international relationships in the present-day, Bucharest, Legal studies, Universul Juridic Printing, 2006 [3] http://www.conventions.col.int/traties [4] Renucci Jean François, Traité de droit européen des Droits de l’Homme, L.G.D.J., Paris, 2007. [5] http://imsi.net/spip

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THE IMMIGRATIONS IN ROMANIA IN THE CONTEXT OF ADHERING TO THE EUROPEAN UNION

Tarnu Lucian, PhD

Sibiu County Police Inspectorate

Abstract In general terms, among the objectives of the migration policy, the most important are the ones concerning the promotion of the national and regional economic prosperity, the family reunion and the abidance of the international rules regarding the refugees. The problem of migration and the mobility of the force labor are treated differently and the frame of Romania’s future policy on migration is not the object of the free movement right negotiation.

Keywords: immigrations, European union, migration,

The immigration of the European Union’s citizens The debate around this subject showed the reduced relevance of the approach, excepting the volume, composition and effects of the east-west migratory flow or of the characteristics and influence of the opposite flow: from the European Union’s countries towards the Central and Eastern European countries. This is due to the fact that these flows will, most likely, have insignificant dimensions. The same reasons make it so that there is no need for transitory measures to regulate or restrict the right to free movement for the citizens of the European Union in Romania and on the labor force market from Romania. These assertions are true because these entrances, probably associated with contractor activities and delivery 422

Knowledge Based Organization 2008 International Conference of services, are gains for Romania’s economy: transfer of human, financial capital and technology. The main origin countries from the European Union in the last years were Spain, Italy, Greece and Germany. The citizens of the European Union that arrived here in order to develop affairs are mainly from Italy, Greece and Germany (the large number of Greeks if made mostly of students). This suggests the fact that the main entrances of European Union’s citizens after the adherence are associated to some complimentary entrances of capitals and goods: the main country sources of exiles from the European Union are the main partners for Romania in terms of commercial relations and DFI (direct foreign investments).

The costs of the EU member quality, in the terms of migration There are three possible sources of costs for Romania, as a result of applying the communitarian aqueous in the domains connected to the right to free movement: ● the economic effects ant the ones on the labour market, due to the free immigration of the European Union’s citizens; ● the political and administrative costs to adopt the frame to regulate the development of the administrative structure and the capacity to guarantee nondiscrimination; ● the effects upon the economical activities of the third country citizens, if they are discriminated in relation with the EU citizens and are confronted with a stricter regime to enter and reside. The official police and the administrative costs represented a complex problem, always in connection with the other chapters of the negotiations concerning the people’s right to free movement. Romania’s position regarding the right to free movement of the people already followed a legislative program for the E.C. measures that were adapted to Romania. It covers the domains of mutual recognition of professional qualification, the right to reside, the visa regime, the free movement of workers, migration and the coordination of the social security schemes. According to this program, the entire communitarian aqueous had to be transpose and the national measures

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Knowledge Based Organization 2008 International Conference adopted were applied beginning with 2007. The main source of costs for Romania is connected with the professional recognition, the free movement of workers and the coordination of the social security schemes. The quality of EU member self brings, in the first place, an effect of defalcation, in the domain of commercial flows and DFI (direct foreign investments). These effects of commerce defalcation, along with the new regime of immigrants, can determine a change in the combination of origin countries of the business migrants. In other words, o stricter policy of entrance in the European Union, after obtaining the quality of member state, will reduce the business activities of the third countries citizens, discriminating this way the citizens of these country on the labour force market.

The policy in the domain of immigration Romania is not yet in the position of being a country of destination for a significant flow of migrants. Beside the European Union’s demands, Romania is not yet able to have an individual migration policy or even a debate in order to adopt such a policy in the near future. Considering the geographical position, the practice of the other ECE1 countries shows that there is a high probability for Romania to become a country of transit, facing in the end with the problems of a destination country. In general terms, among the objectives of the migration policy, the most important are the ones concerning the promotion of the national and regional economic prosperity, the family reunion and the abidance of the international rules regarding the refugees. The problem of migration and the mobility of the force labor are treated differently and the frame of Romania’s future policy on migration is not the object of the free movement right negotiation. The negotiation process of Romania’s adherence to the European Union presumed a continuous and sustained effort made by the government’s institutions in order to attain a level of compatibility with the member states, at legislative and institutional level. In this context, the Romanian Government conferred a special attention to the

1 OIM (1995) regarding the transit of migrants in the CEE. 424

Knowledge Based Organization 2008 International Conference immigration policy, as an important part of the justice and internal affairs domain, further more, with the adherence date our country became member state at the eastern European Union frontier. The legislative reform regarding the foreigner’s regime and asylum in our country, presumed passing a set of laws in order to ensure the accordance with the communitarian legislation and the international instruments to which Romania is part of. The application of a modern legislative frame imposed reforming the institutions with competence in this field, accomplishing in this way, necessary instruments to put into practice an efficient management to fight migration on Romania’s territory. The progresses are obvious and recognized at the European institutions level, which, all along, sustained the Romanian authorities with projects that ensured a high level of expertise, from the similar institutions of the member states, completed with a financial support for the investments in the domain. Project like on line visa system, EURODAC, EUROPOL and EUROJUST, the frontier security, building or rehabilitating some centers to host the illegal foreigners or refugees, would have been harder to accomplish without the important contribution that came from the European Union. In order to establish a unitary conception upon migration at national level, in the year 2004, were approved the National Strategy regarding migration and a multi-institutional mechanism to put it into practice, thing that brought together, for the first time at the same table of discussions, all the authorities with attributions on migration. The Strategy was applied with the help of annual action plans, which ensured achieving some objectives by a coordinated effort of the institutions in the domain of controlled migration, preventing and fighting illegal migration, asylum, social integration and the self- willed repatriation of illegal foreigners. The immigration although, is a complex and dynamic phenomenon influenced by a serious of factors, both from the origin country (push factors) and the destination country (pull factors). That is why it is necessary to permanently update the national legislation in this domain, according the new evolutions, at national and international level.

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Thereby, on September 18th 2007, was passed the Government Decision nr. 1122 for approving the National Strategy regarding immigration for 2007-2010, document that represents our country’s position concerning migration and also a sequel to the efforts made by our country to align with the international standards. The statute that Romania achieved by adhering and the economical development predicted for the period after adhering, will certainly influence the existing migratory flows and will gradually transform Romania in a country of destination preferred by the immigrants. This should not be seen as negative. Migration can contribute significantly to the cultural exchange, economical development and the progress of the Romanian society, just like it can bring benefits for the countries of origin and migrant’s family. In this context, migration must be regarded as a process that has to be managed and not as a problem that must be solved. Hence, the main objective for the Romanian authorities for the period after the adherence is to maximize the positive effects and limit the negative effects regarding the immigration in our country and for our citizens. This is why the responsibility belongs to the Romanian state to clearly state the categories of immigrants that can be admitted and can settle in Romania, according to our country’s interests, but in strong connection with the European Union’s policy and documents, and also respecting the rights of the immigrants. Also, the Romanian state will take the necessary measures to prevent and fight illegal immigration and to alienate from the Romanian territory the immigrants that are no longer satisfying the legal staying conditions. Not only has the Romanian Government had to be prepared to face the new situation, but also the Romanian society. Understanding the migration phenomenon – its risks and benefits -, should be made by a continuous education of the people. The Romanian citizens, in their quality of tax-payers, must be the first informed, respecting this way the transparency of the decisional process. Through the present Strategy, the Government identifies the opportunity and segment of population to which he must address.

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According to the latest demographic prognosis, Romania will confront, much like most of the member states, with the demographic ageing and decrease of the population, so that is being estimated that in 1050, the population of Romania will be of 16 million. Immigration is not it self a solution to limit this process, but it can represent a part of the measures package that can improve this situation. That’s why a special attention must be paid to the quality of immigrants that are admitted and for the cultural and social measures taken to integrate them. Lately, in certain areas of the country the lack of labour force is beginning to be felt, and are already taken in notice solutions that concern hiring workers from the third countries. This is only an example of the fact that Romanian’s position as destination country is beginning to outline itself, and this fact can be amplified by the necessity of a labour market that can sustain the economical development for the next period. From the point of view of the legal system that is applied, a change is made concerning the European Unions citizens and their families, which, beginning with the date of adherence date, enjoy the right to free movement and residence, establish by the Treaty Establishing the European Community as one of the 4 fundamental rights of the European citizen. The Romanian authorities must ensure the exercise of this right. In order to control the migration phenomenon, in its ensemble and to fully fructify its advantages, the field of social assistance must suffer a significant development. The present Strategy has, in this regard, the role to motivate and coordinate the process of integration in the Romanian society both for the foreigners that came willingly in Romania and the people that are under the protection of the Romanian state, people that were forced to refugee because of different regional and international conflicts. Never the less, in order to obtain maximum benefits by controlling immigration, the Romanian authorities will give a special attention to the correlation with the emigration of the Romanians, so that the immigration completes the eventual lacks on the labour force market in Romania, and especially, the lack of high qualified personal.

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The current Strategy regards a 4 year period (2007-2010) and represents the next step that Romania makes to modernize the process of managing the immigration on national territory and wants to establish, in a simple and efficient manner, the national objectives for a better approach of this phenomenon in the interest of the Romanian society. Along this period, the Romanian authorities will establish and coordinate real actions and measures in the field of migration. The current Strategy will be the environment of communication through which the institutions are informed about the new measures and stipulations adopted by the other group members and also the environment of interaction, each member expresses his observations and suggestions in order to identify the best solutions. In order to fulfill of the Strategy’s objectives, Romania considers the alignment of the national legislation with the EU policies in this domain, including the stipulations of the “Program of fellowship and management of migrant flows for 2007-2013”, pursuing the law- abiding of the fundamental rights and also preventing and fighting illegal migration on the communitarian territory, Romania being a part of it since January 1st, 2007.

The objectives of the Romanian Government regarding migration for 2007-2010 Romania’s Strategy on immigration sets the action lines of the Government for the following period after the adherence regarding controlled immigration, preventing and fighting illegal immigration, asylum, social integration of the foreigners and the alignment of all these aspects with the emigration phenomenon the Romanians.

Controlled immigration The Romanian Government promotes the free movement and legal immigration according with the national legislation regarding the foreigner’s regime. For the period of 2007-2010, a special attention will be given to optimize the legal frame so that the EU citizens and their families can exercise their right to free movement and residency and also to make it easier for the third country’s citizens to enter for

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Knowledge Based Organization 2008 International Conference labour purposes, according with the policy in this matter, and to study, by ensuring the exercise of the right to reunite with their family. The measures taken by the Romanian authorities to manage the immigrant flows will be in full harmony with the Haga Programme “strenghten of the freedom, security and justice”, which takes a balanced approach in managing migration, by elaborating a common policy regarding legal immigration at EU level, concerning the procedures and admission criteria, ensuring a legal and secure law frame, and a set of rights for the immigrants to support them in the social integration process. A special accent will be put on applying at national level the measures adopted at communitarian level based on the Action plan regarding the legal migration elaborated by the European Commission. Ensuring the administrative frame necessary to exercise the right to free movement and residence for he citizens of the member states Promoting the admission of the third county citizens for labour purposes according to the needs of the national labour force market Encouraging the admission for commerce purposes for certain categories of foreigners Promoting an efficient system of selection for admitting in Romania people for study purposes Projecting, developing and managing efficient informatic systems to manage the immigration on the national territory Preventing and fighting illegal immigration Informing the possible immigrants on the legal ways of admittance and the measures taken by the Romanian state to fight against illegal migration Intensifying the cooperation of the Romanian authorities to fight against illegal migration and moonlighting. Intensifying the measures to alienate the foreigners that entered illegally in Romania or the ones that entered legally but later their staying became illegal Preparing in order to adhere to the Schengen space Intensifying the cooperation of the Romanian authorities with the similar institutions from the member states

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Asylum Ensuring the right to access the asylum procedure and respecting the non-reimbursement rule, according to the international standards which Romania embraced by the treaties and convention that it is part of. In the following period, a special attention will be given to the conditions of accessing the asylum procedure, having in mind the changing migratory flow, which lately has a mixed character. Thus, it will be considered the minimization, as much as possible, of the number of cases in which some personas, even if they are illegal in Romania, they are in special need of international protection, their statute being absolutely necessary to regulate. It is very important to regulate immediately these persons statute because it contributes essentially to keep a low crime rate, having a double protective role – for the person and also for the host society. Carefully interviewing the asylum solicitants by professional personal, with a high level of experience and with access to detailed information regarding the condition in the country of origin of the solicitor, and also by solving the asylum requests in the judicial faze by qualified judges, are vital conditions. Developing the asylum system based on criteria of efficiency and quality of the procedures and adopting policies and practices in this domain in order to prevent, discourage and sanction abuses in the asylum procedure Ensuring and maintaining Romania’s capacity to assume the responsibilities and obligations of a member state in the domain of asylum Assuming an active role in the regional and international cooperation in the matter of asylum and to contribute at the development of functional asylum systems in east and south-east Europe Improvement of the receiving conditions of asylum solicitors and research of information in their country of origin, by identifying real financing solutions from the European Found for Refugees

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Social integration of foreigners Sustaining the active participation of the foreigners which live or legal reside in Romania to the economical, social and cultural life, and at the same time respecting their own cultural identity Making sure that those relevant categories of foreigners make enough efforts to integrate sufficiently in the Romanian society, inclusively by participating in the programs that the Romanian state organized for this

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REAL ESTATES INTABULATION – JURIDICAL, ADMINISTRATIVE AND TECHNICAL ASPECTS

Legal adviser Apostol Cristian Eng. Popescu Horia

Properties and Infrastructure Direction, Bucharest [email protected]

Abstract By the end of the year 2008, the main elements of changing into field of the real estate and infrastructure had referred to measuring and the intabulation of the estates belonging to the ministry, the whole usage of the data base for the technical evidence and the cadastral-juridical one of then real estates and the infrastructure elements, the use of the internal norms and regulations with the changes bronght to the legislation in the estate field as a consequence of the E.U. adhering, as well as to identification and defining in cooperation with the army’s force categories, of the eligible projects in order to be financed trough the OTAN Security Investment Program (N.S.I.P.). The infrastructure’s modernisation and development according to the exigences imposed by the army’s tehnique and equipment creatoring some attractive conditions of trening accomodation and recovery fos the army’s personnel, will represent the main objectiof the following phase. This can be done also by improving the reevaluation system for the army’s benefits, the unuseful estates as a consequence of the changing process.

Keywords: real estates, intabulation, infrastructure, development

Juridical aspects The greatest problem encountered while drawing up the cadastral paper was the lack of the paper copies or the original ones. The estate advertisment made up on the evidence system of the general cadastre has the goal to fill in the real estates report the juridical papers and 432

Knowledge Based Organization 2008 International Conference deeds regarding the estates from the same area. This can be done by real estate offices, for the estates belonging to that area. One or more joined estates from an area that belong to the same owner make up the proprety that should be in the same owner make up their own cadastral part which should be filled in the same estates report. According to the legal norms in force, a whole series of juridical papers can be concluded only in their original forms such as: – juridical papers between alive persons for the alienation of the properties with on without buildings on the terrain. – the contract for sailing bruyng a terrain should be concluded under the cancelation penalty, in original, while the same contract for the sailing-bruyng of a flat can be concluded with a private signature too. Of course, this last assumption can be possible only if the right of property is transfered to the flat without taking into account the terrain which is under the block of flets. So, with an agreement with National Cadastre Agency and Real Estates Advertisment for the estates from the public property the intabulation is allowed if the copies are in accordance of filling in the estate report is hat of the opposition to the third party. So the estate revendication can be possible in the future, for these intabulated estates. As the law no. 10/2001 doesn’t consist in special provisiens regarding the demonstration of the property right of the person justified to request the estates revendication, there can be applied rules by common agrement. The action of estate revendication refer to three aspects: – the demonstration of the property right wich can be done in other situation too, such as: damages brought to the estates. The demonstration is done by the complainer in accordance with the article 1169 from the Civil Code, after wich the accised will actor or onus probandi incumbit eius qui dicit.There as some difficulties in getting the property right because in the past there were not documents regarding plans for making the obtained goods. – for succesive forward of the estate by diferent persons, without a title, the so-called probatio diabolica, it s hard or even imposible to

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Knowledge Based Organization 2008 International Conference prove that all of them were owners, the relativity principle of the juridical papers ist hat has consequences only between the parties that concluded it, their universal succesors or with an universal title (art. 973 Civil Code), so they are not in opposition with the third party. – if the titles are from the same author, it comes off victorius the one that filled in first (art. 712, Civil procedure Code), this paper being in opposition to the onest hat got it later: qui prior tempore, potiur iure. If no one had done the transcription, it has an avantage the one that has the oldest title, respectivly the oldest date, in case of the will, it wins that with the latest date, wich revokes the previous one. Supposing that the titles are from different authors, it wins: – the accused one, because it is in its posessions: in pari cause, metior est causa possidendis; – it wins the one wich has an older date; – if that two titles belong to different authosrs, it wins the one that get it from the author hase right is prefered, according to the principle: “nemo plus iuris ad alium transferre protest, quam ipse habet”; but also can win the one with the oldest title, but with his posseions better characterised. The claiming actions is imprescriptible regarding the estates. Claiming goods from the public properties has the following aspects: – for the goods from the public property, it is required the property right, – goods from the public property are imprescriptible, according to art. 135, p.4 and 5 from Constitution, – goods from the public property are imprescriptible regarding aquisitions art. 1844 Civil Code, art. 5, the last paragraph from Law 18 1991, art 135, p.4 and 5 from Constitution, – goods from the private property are protected trought art 41, p.2 from Constitution, equally, no matter who is the ownwer and are abided by the common right, if the law doesn’t have other provisions. The law makes no provision for the buildings as if the belong to the public property, trought they make up the object of this right when they don’t join the terrain of the public property as bridges, lighthouses etc and then they are not affected the buildings of

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Knowledge Based Organization 2008 International Conference ministeries, townhalles, prefect’s office, libraires and public museum etc. As a conclusion, according to an agreement with National Cadastre Agency and Real Estates Advertisment for estates from the public properties, only the terrain can be intabulated.

Administrative aspects To improve the situation in wich a great amount of the buildings that belong to the army s patrimony couldn’t be intabulated, the cadastral papers will be signed according to an agreement with National Cadastre Agency and Real Estates Advertisment, no matter if there are diferences between the srfaces described in the papers and the surfaces designated by measures. The real estate report should contain both of them in accordance with art. 258 par. 8 from the Romanian Fiscal Code, approved truoght Law 571/2003, with its subsequent alterations.

Technical aspects The new and easy posibilities for measurement in cadastral domains is ROMPOS. ROMPOS is a system for determing the positions and the ROMPOS GEO is a service which assured a precision under 2 cm. This service is useful also for geodetic nets, support nets for marking and monitoring the constructions, geographical and informatics system (GIS), geodinamics, laser scanning, scientific survey and so on. ROMPOS is supported by a service of conversion and changing TransData coordinates, including reference sYstem ETRS 89 and S-42 (elipsoid Krsovski 1940, stereographic proection plan 1970) as well as other local system (for example, Bucharest localm proiection system). In the future there will be avaible a service for determing the link between the elipsoidal altitudes established by using ROMPOS and the normal altitudes (The Black Sea 1975 EVRS 2000) by determing the(cvasi)geoid on the Romanian teritory.

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As equipment, ROMPOS GEO user a receiver with simple or double frequency whose satellite measures will be connected to the station national Net GNSS. In Romania, oficially there are used two reference system: Coordinates system 1942 (internationallly knowen as S-42), base on ellipsoidal Krasovski 1940, with the main centre in Pulkovo (Russia), and the stereographic projection, 1970. The reference system base on the reference ellipsoid Hayford 1910, projected on the fundamental astronomical centre placed in the military astronomic observatory from Bucharest, togheter with the stereographic projection 1930 - secant plan Bucharest. The Romanian system for determination the position-ROMPOS is a project of the National Cadastre Agency and Real Estates Advertisment trought wich are assured precise projections in the european reference and coordinate system ETRS 89 on the basis of the National Net satellite system of global navigation (GPS, GLONASS and GALILEO) supplies additional dates necesary for improving the position determination to mm, and covers the entire territory with 48 permanent stations (73 status in 2009) being avaible anytime and everywere. With a single receiver and a GSM GPRS connection, the user can benefit of the system services. Integrating the system in EUPOS European system its interconnection with other similar European system allowes an uniform preojection even in the frontiera area. Necessary devices for ROMPOS: – ROMPOS GNSS: receiver with a single frequency-direct acces from the field to internet for conecting to the service at the service server; – mobile internet trought GSM GPRS and NTRIP; – data format supplied RTCM 2x, 3x.; – ROMPOS RTK: receiver with 2(1) frequency direct acces from the field to internet for connecting to the service at the service server; – mobile internet trouhght GSM GPRS and NTRIP; – data format supplied RTCM 2x, 3x; – ROMPOS GEO: receiver with 2 (1) frequencies wich satelite measures will be connected to the national net of permanent stations; – data format supplied RINEX GPS/GLONASS (G/ M).

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References [1] Law 18/1991 – The Law of landed fund. [2] Law 7/1996 – The Law for cadastre and real estate advertisement. [3] Order 90/15.02/07 – for the alteration of the order 68/29.01.2007 for establish the terms of applyng the services supplied by A.N.C.P.I. and the subordonated units. [4] The order 634/2007 – for the Agreement approved regarding the content and the means of drwing up the cadstral papers regarding their introduction in the Funcial Report. [5] H.G.R. 869 /2005. [6] Law 247/2005 – Title XII. [7] Law 7 – cahanges and alterations. [8] H.G.R. 1210/2004 regarding National Cadastre Agency and Real Estates Advertisment. [9] Law 78/2002. [10] Law decree 115/1936 regarding joining the orders for funcial reports. [11] Law 499/2004 for aapproving U.U.G. 41/2004 for changes and alternations to the Law 7. [12] O.G. 10/2000 for the the activity of the authorised physical and legal persons. [13] O.UG. 41/2001 for changes and alternations of the law 7. [14] O.U.G. 70/2001 for changes and alternations of the law 7.

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INTERNATIONAL POLITICAL AND MILITARY ORGANIZATIONS AS SUBJECT OF INTERNATIONAL LAW

Covatariu Cosmina

M.U. 01961, Otopeni [email protected]

Abstract Until United Nations Organization was created, in the literature of international law few opinions were expressed regarding the status of international organizations, more exactly if they had legal personality or not. Referring to the Committee for reconstructions created after The First World War, J.F. Williams said: ”The Committee’s behavior was in agreement with the benefit theory of a distinct personality in the international world. Therefore, it would have been difficult to doubt the fact that it was having international personality. The old dogma that states are the only subjects of international law cannot be supported further.” International organizations represent forms to realize multilateral cooperation between countries in various fields, in an institutionalized juridical framework to achieve objectives established also on the basis of rules contained in the status and in other of those documents. Thus, along with the states, international organizations are subjects of international law that create and maintain international legal order.

Keywords: political and military organizations, international law, cooperation

1. Introduction International organizations have proved to be a constant presence in international life through the role they have played, even if in the theoretical plan debates about them being subjects of international law 438

Knowledge Based Organization 2008 International Conference and the associated responsibility have caused many controversies. Since the beginning of the twentieth century different points of view have been made in this respect, which either considered States as the only “actors” in the international relations or claimed the superiority of international organizations over the state as subjects of international law. International organizations represent forms of multilateral cooperation between countries in various fields, in an institutionalized juridical framework, for the achievement of established objectives and on the basis of rules contained in the statute and other of those documents. Thus, along with the states, international organizations are subjects of international law that create and maintain international legal order.

2. Legal personality Until the creation of the United Nations, in the literature of international law were few opinions regarding the status of international organizations, namely, whether or not they have legal personality. A step forward on the recognition of these organizations’s personality has been made through the modus vivendi from 1926 between the Swiss government and the League of Nations, which sustained that “the League, possessing international personality and legal capacity, cannot be, in principle, according to the rules of international law, summon in the Swiss courts without its express consent.” The International Court of Justice (I.C.J.), in its 1949 Reparations of Injuries Advisory Opinion, confirmed that other entities could be subjects of international law, recognized that the United Nations (like other IGOs) has 'functional personality’; that is: legal personality to the extent required to carry out the tasks which States have assigned to it. The I.C.J. showed that “personality is indispensable for achieving the purposes and principles of the Charter and that the Organization functions and its rights can be explained only on the basis of existence, to a large extent, of the international personality”. Next, referring to the nature of UN, the Court stated that "this is

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Knowledge Based Organization 2008 International Conference not the same as saying that it is a state, which certainly is not or that its legal personality, its rights and duties are the same as the one of the state. This means that it is a subject of international law able to have rights and international obligations, and the ability to realize its rights through international complaints. "

3. International Governmental Organizations – subjects of international public law The recognition of IGOs as subjects of international law involves determining in advance their ability to participate in their own name to such international legal relations, their individuality being just one of the elements to be considered in the assessment of this quality. The extent to which they will appear in international legal relations, in relations with other subjects of international law is crucial for recognition of their legal personality. If for the state the establishment of legal relations with other subjects of international law is a form of manifestation of their personality, the situation of the international organizations is different from this point of view. Their international personality is conditioned by the possibility to take part in such relations with international character. In other words, States participate in these relations just by virtue of their personality, while the personality of international organizations can only exist as a consequence of this opportunity to participate in such relations. Their state structure and the nature of goals that they pursue, which proclaim as a way of achieving cooperation between states, therefore confer to these organizations the right to participate in international relations. It is true that to international organizations could be recognized this capacity to participate in their own name to international legal relations only to the extent and limits within which they need (for achieving their goals) to enter into legal relations with other subjects of international law. Exactly this makes their international legal personality, as subjects of international law to be limited, derivative and secondary. According to their constitutive acts, when trying to accomplish certain functions, their personality has also a functional aspect because it is

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Knowledge Based Organization 2008 International Conference assigned by the states in order to achieve the precise and determined functions. Any violation or removal from this will be against the will of Member States. According to the opinion of I. Brownlie, the conditions for the IGOs to have legal personality are: • permanent association of states; • the distinction in terms of legal capability and goals between organizations and states that form them; • existence of a legal capacity which would be exerted internationally and not only in one state. According to another opinion, when an international organization is considered as a legal person should be considered all the following aspects: • the states that compound it; • existing purposes is which many states are interested in; • international source of the organization (treaty on the basis of which has been established); • opportunity to participate in the international law relations. In attempts to equalize international organizations with states and to promote in this way the need of an organization superior to states, as a way to enforce international law, to ensure peace and security. It is frequently cited in this respect the Norwegian lawyer F. Seyersted which claims that “an international organization once created is subject of international law and as a result it has the same capacity, according to the rules of international law as any other subject of international law, except if it is excluded by some special rules to meet certain acts.” Admitting a thesis like this, which is also contradicted by the opinion I.C.J. in 1949 (which stresses that the recognition of legal personality of the UN does not mean in any form, it has the character of a super state), could be done only by denying the fundamental differences that exist between states and international organizations. Thus, while the states are constituted by their own power and enjoy sovereignty – the international organizations emerge only as a result of the will of the component states which created them. Sovereignty belongs only to states and not to international

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Knowledge Based Organization 2008 International Conference organizations. In terms of legal personality, any state is subject of law, while many organizations are devoid of such feature. Even those who meet the requirements to be subjects of international law are, as shown, differentiated by the extent of their ability, being restricted to the rights and obligations contained in the acts of their constituents. States have the advantage that they enjoy the attribute of subject of international law completely.

4. Summary Although, legally, it was not unanimously accepted a definition of international organizations, however, in the law literature can be found the necessary elements which allow for an association of states to be considered international organization. A first condition refers to States’ participation as the primary subjects of international law, as members of the organization, distinguishing between intergovernmental organizations and non-governmental organizations, the last ones being constituted by natural or legal persons included in the internal legal order of several states and which are not attributed, in general, the quality of the subject of international law. Another condition stipulates that is mandatory the existence of a constitutive treaty, regardless its name, but to be the base of cooperation between Member States. Also, the organization must have its own institutional structure, to ensure the permanent or periodic functioning, as well as its own legal personality, different from the one of Member States’ and in accordance with the jurisdiction established in the constitutive document. Differences between states and international organizations result just from the legal personality of international organizations which is very limited and specialized. In conclusion, only the analysis of the cases and circumstances may lead to determining liability, or the organization or its Member States. There is an alternative responsibility of the international organization, depending on the degree of integration of the organization and on the type and quality of authorities. Although issues relating to the status, nature and responsibility of international organizations have been broadly discussed after the Second World

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War, initially in connection with the United Nations, and later with regard to the other international organizations, there is not a point of view generally accepted at the international level, the matter still remaining open to debate.

References [1] Beşteliu, Raluca-Miga, International Public Law, Bucharest, Editura All Beck, 2005. [2] Beşteliu, Raluca-Miga, International Interguvernamental Organizations, Bucharest, Editura CH. Beck, 2006. [3] Chilea, Dragoş, International Public Law, Bucharest, Editura Hamangiu, 2007. [4] Diaconu, Ion, International Public Law, Bucharest, Editura Lumina Lex, 2007.

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PROBLEMS OF MODERN CRIMINOLOGY

Goşa Dumitru

Sibiu County Police Inspectorate

Abstract Criminology plays an increasingly important role in the judicial activity. This discipline could be defined as a set of scientific methods applied to the investigations undertaken by the police who must prove the existence of a crime, the identity of the perpetrator or of the perpetrators, as well as that of „the modus operandi”, methods that have a direct connection with medicine, biology, toxicology, psychiatry and chemistry. Criminology is based on the fact that a criminal, very often without realizing, always leaves traces. He also collects other traces from the crime scene on the clothes or on the instruments with which he/she operates. These represent clues, most of the time imperceptible, typical for his/her presence or his/her actions. As the criminological techniques are in a continuous process of development, the preparation of policemen should not be sporadic, but permanent. This requires efforts both in terms of material resources and of the time factor, but the increase in the efficiency of the police work, especially regarding the proper operation of evidence, is done only by paying this price.

Keywords: criminology, criminological techniques, material resources

Generalities The criminological demarche implies a double nature: on the one hand, we deal with an analytic demarche, which entails the gathering and the registering of imperceptible clues, their identification and classification. On the other hand, we have to tackle the synthetic

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Knowledge Based Organization 2008 International Conference demarche, which implies the establishing of a rapport between the indices and their combination, in order to situate each of them in the scheme generated by what determined their presence and the action that produced them. If, in philosophy, the two demarches are opposed, in criminology they are inseparable; we can not apply one without the other. Let us take, for example, the action of a criminal who, in the dead of the night, breaks into a house by breaking a window or by bursting the entrance door open (let us assume that the right sleeve of the coat gets caught by a barely visible asperity), then crosses a room and burst the drawer of a wardrobe open, looking for money or other valuables to steal, after which he leaves the house. At the crime scene, the criminal can leave mud or street dirt traces, textile fibers from the clothes, traces of the tools he used to push the door or the wardrobe open, finger or palm prints. During first stage, one must detect, identify and classify the different traces left by the individual under discussion, the analytical demarche being involved in this case. The traces that are not part of the delictual action must be removed, this selection representing the synthetic demarche. At the same time, the criminal can take, besides the spoils, dirt from the garden, glass shivers that have clung to the clothes, wood particles from the extremity of the tool he works with. The analytic demarche intervenes again in the comparison of the traces collected from the crime scene with the traces and the objects taken from the suspect. The final synthesis takes place when the results of the different comparisons are connected and confronted with the hypothesis put forth at the beginning of the criminal’s action in that place. Presuming that all the comparisons are positive, the culpability of the suspect is beyond any doubt for the prosecutor, because everything is undeniable and cannot be denied. The synthesis of the scientific exams remains the same, but its interpretation is completely different.

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From clue to evidence The dictionaries precisely define the terms “clue” and “evidence”. Thus, “clue” is defined as “the apparent and probable sign that a certain thing exists” and the “evidence” is “the thing that demonstrates the existence, establishes the truth of a thing, brings certitude”. In the case of the previous example, the presence of the glass fragments on the clothes of that suspect (the analytic characteristics of which concord with those of the window), is nothing but a clue of the presence of that coat at the place where the breaking of the window occurred, because there appears the possibility to exist a great amount of windows manufactured by the same factory and having the same silica mixtures. Therefore, the shivers can come from another window broken by the respective individual. At the same time, the analysis of the textile fibers caught in the remains of the broken window do not evidence in any way that they come from the coat worn by the suspect, because they can come from an identical piece of clothing or that has the same composition. All these elements represent clues, because they can not be associated to the delictual action with certitude. The taking of fingerprints and their conclusive comparison with those of the suspect can bring the evidence of his physical presence at the scene of the delict or crime. In criminology, the notion of evidence is not absolute and does not depend only on the circumstances that lead to the producing of the trace, but also on the statistical calculus of the number of chances for an erroneous identification. Moreover, the evidence greatly depends on the judgment (which is also fallible) of the criminologist. However, unlike in the case of fingerprints for which it is easy to make a statistical calculus, it is hard to appreciate and measure the individuality of the trace of a tool or of a soil sample. The parallel development of the statistical models is also represented by the working capacity of the computers, which have increased the efficiency of the action, of the comparison of

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Knowledge Based Organization 2008 International Conference fingerprints, of the human voice, of signatures and handwritings, as well as of that of the automatic comparison of the sliding traces. This operation illustrates very well the implications of the utilization of the new techniques on the notions of “clue” and “evidence”.

Methodological problems in criminology The investigation and the criminological techniques that use more and more sophisticated scientific means (and which are often very expensive); the cause of this phenomenon resides in the extraordinary development of sciences. The spreading and perfecting of the means used by criminology presents advantages, but, at the same time, it has disadvantages too. Every lab worker specializes in a certain method of analysis, and the “language” that he uses is, very often, different from that of his colleague’s. This is one of the reasons why the cooperation entailed by the interpretation of results is affected. The misunderstandings are more acute when the modalities utilized for the analysis of a single object are numerous. The analytic demarche presented earlier acquires a more and more complex character, while the synthetic one continues to remain incomplete. Under these circumstances, how can the criminologists be prepared to be able to make a synthesis of all the analyses required by a case in order to integrate them into the scheme of the criminal action and to make their results understood by the prosecutors? All the more so in a world in which flair, imagination and common sense are on the verge of disappearing. Let us take an example, which, although it is fictitious, it is no less eloquent regarding what could happen one day. During the investigation of a hit and run accident, there occur some flakes of paint which come, it seems, from the car that caused the crash. A few hours later, the police notice a suspicious car and keep it for examination. The question that is addressed to the criminology department of the police is simple: Do the fragments found at the scene of the crime come from this car or not? If well brushed-up scientific means are used, the criminologists

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Knowledge Based Organization 2008 International Conference will be able to examine and compare, for the beginning, the color of the surface of the fragments with that of the paint of the suspicious car, first visually, and then by microspectrophotometry. Next, the morphology of the surface is studied by means of an electronic microscope. They investigate the number of layers of paint, their thickness and color, with the help of a comparator microscope and, again by microspectrophotometry. These fragments will be analyzed afterwards in a global way, by means of the fluorescence of the X-rays in order to determine the presence or the absence, as well as the relative quantity of certain chemical elements. An investigation similar to the previous one is possible to be performed layer by layer, by means of a microprobe. These last two analyses help only to determine the composition of the mineral elements, whereas the paint fragments contain organic compounds, like coloring agents and bindings. These will be analyzed by thin layer chromatography, while others can be identified by infrared spectrometry or by gaseous stage chromatography, coupled to a mass spectrometer. Finally, the research can be done by contact reactions. Far from being comprehensive, the range of examination techniques for a paint fragment is quite broad. The sum of all these analyses represents but a clue regarding the provenance of the paint fragments found at the accident scene, because there are a great number of vehicles of the same brand and having the same type of paint. If the criminology service cannot resort to all the abovementioned techniques, they will use visual and microscopic examinations (the color and layer of paint), then, probably, they will try to rearrange, as a reconstruction, certain fragments found at the accident scene, on the hit side of the suspect vehicle. When this examination is minutely done, incriminated fragments surely come from this car. The purpose of this example is not represented by the demonstration of the uselessness of sophisticated methods and techniques, but by the underlining of the fact that, in certain cases, (pretty numerous, in our opinion) the flair, the imagination and the

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Knowledge Based Organization 2008 International Conference common sense can lead to finding a simple solution of the problem. Consequently, it is necessary that the police laboratories have scientists, technicians and specialists with a sound professional preparation, as well as employees with a resonant specialization.

The links between criminology and applied sciences The specialization, connected with the development of technique, leads to the appearance of what could be called “the inadaptability of the research to reality”. This happens because, at present, the specialists in one technique or another of scientific analysis try to apply their research to criminology, most of the times ignoring its character and its schemes of analysis. The authentic scientist often ignores the contradictions imposed by the small (even tiny) quantity of matter that represents the traces collected from the crime scene, or from an offence or murder scene; this contradiction, produced by the quotidian reality, leads to techniques, perfectly applicable for great quantities of matter to be analyzed, to become less accurate, almost impracticable, when we deal with micrograms. In this case, the techniques are pushed to their extreme detection limit, and the results of the analyses are difficult, even impossible, to be interpreted correctly. Another concept, which creates a fissure between the applied sciences and criminology, is the comparison. Most often the criminologists try to compare two objects in order to find if they are identical, similar, have the same origin, or, on the contrary, if they are totally different. Many times, the concept of “comparison” is totally foreign to the scientist who tries to determine the composition or the characteristics of a single object. Practice has shown that the results are not always perfectly identical for two successive investigations of the same object. There are tolerances and error margins the criminologist must establish and keep in mind, during the comparison; if the results of the analyses of the two objects are inferior to the measure tolerance, it is possible to draw the conclusion that they are often identical. If the results differ, even if only slightly outside the tolerance limits, it is necessary to

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Knowledge Based Organization 2008 International Conference interpret whether the difference in nature between the objects is significant or if the two objects, initially identical, due to distinct “lives”, have changed some of their characteristics. For example, the surface color of the same paper can be totally different if it has been preserved in the absence of light or if, on the contrary, it has been exposed to the sun beams or to the influence of natural phenomena. Thus, if in a certain case, the examination of the surface color of the papers under discussion is entrusted to an authentic scientist, he will probably indicate, in his analysis report that, for the two papers, the surface color is not the same. If the investigation is entrusted to a criminologist, he will perceive the fact that the color difference was caused by the different “life” conditions of the two papers: for him, the dissimilitude will be insignificant and, consequently, he will conclude that the comparative exam of the surface colors is not an adaptable method in this case, because the result of the analysis does not lead to the formation of an opinion on the identity or on the difference in nature between the papers regarded from the point of view of their distinct “lives”. The different visions of the scientist and of the criminologist seem to be relevant for a nonidentity of analytic closeness of the objects and, starting from here, of the interpretation of results. Generally speaking, in the field of applied sciences, the analytic demarche is a step ahead the synthetic one, while in criminology, they can not be dissociated. As far as the formation of the criminologist is regarded, without entering into details, we can say that is belongs not only to the pure sciences, but also to the experimental and humanistic ones, like criminology, psychology, legal psychiatry, to mention only the most important. As a result, the preparation of the specialists must be essentially pluridisciplinary. The profound knowledge of the different techniques applied to each type of analysis completes, in a practical way, the mentioned theoretical bases. Only after many years of hard specialized study can one accumulate the necessary notions. In addition to all these, certain moral virtues, like the scientific

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Knowledge Based Organization 2008 International Conference honesty, are indispensable. This quality ensures objectivity, which enables criminology to convince the different parties involved in a penal trial to accept, without too much reticence, the conclusions of the experts. The criminal experts should have access to the latest experimental techniques, either by contacts with the investigators and practitioners from other laboratories, or by the study of numerous specialized publications. The knowledge accumulated by the lab specialists, as well as by the “field” policemen, should have the opportunity to be updated and broadened.

Bibliography Aioniţoaie, C., Curs de criminology, Bucureşti, Academia de Poliţie „Al.I. Cuza”, 1983. Stancu, E., Tratat de criminology, ediţia a II-a, Bucureşti, Editura Universul Juridic, 2002. Suciu, C., Criminology, Bucureşti, Editura Didactică and Pedagogică, 1972.

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THE MEDICO-LEGAL INTERPRETATION IN CASE OF VIOLENT DEATHS

Goşa Dumitru

Sibiu County Police Inspectorate

Abstract In this paper I want to make a synthesis regarding the medico-legal interpretation in the case of violent deaths, namely the establishment of a general methodology for identification and of some criteria of differentiation between the main forms of violent death. In order for the necessary medico-legal interpretations for the establishing of the judicial truth to be objective, a technical, economic and administrative autonomy is necessary, along with the access to the present scientific and technical progress. The key element for the establishment of a team in criminological and medico-legal research of a death is the confidence in the competence, objectivity and honesty of the other participants because it is very hard to build “on moving sands”. I consider that through by establishing the scientific truth for each and every case, forensic medicine can offer a convincing image to society regarding the role of this medical discipline and science for a just juridical classification of the crimes against life and, in this way, a fairness of the judicial sentences and, at the same time, the prevention of crimes.

Keywords: medico-legal interpretation, violent death, judicial truth, forensic medicine

Generalities The role of legal medicine in crime prevention is all the more important during this social stage when people are driven by the spirit of competition, by the permanent unscrupulous fight that divides 452

Knowledge Based Organization 2008 International Conference society into selfish tough, inhumane winners and unhappy, desperate losers, therefore promoting violence, especially in the case of young people and of those with labile personalities. An important specific medico-legal implication is the identification of the forms of violent death, in order to find their juridical classification. The coroner is usually called in when the death occurs under suspicious circumstances and when the death-causing agent is capable to produce any of the three types of violent death. Special attention must be paid to the differentiation between suicide and homicide or accident, the coroner having a great responsibility. His suspicion regarding a violent death is not by far the result of professional hazard, because, most of the times, the circumstances in which the death occurred are obscure, suspicious, and there have been many cases in which a violent death, when summarily examined by a specialist, was labeled as suicide or accident, and after a thorough medico-legal expertise, it proved to be a murder. The reverse situation is also possible; that is why it is very important to correctly classify the death from a medico-legal point of view, classification that is made after a thorough medico-legal investigation. Interpreting the death cause only on the basis of the lesions discovered during the necropsy can not be complete, that is why the expert must analyze and synthesize the data provided by the examination of the following categories of factors: a) the instrument or the damaging substance; b) the conditions at the crime scene; c) the aggressor or the alleged aggressor. However, the conclusions must be drawn by the jurist. Because a judicial error can have its origin in the erroneous interpretation of the circumstances in which the death occurred, several requests must be fulfilled. We enumerate some of these: performing the expertise on time; using all the means of investigation related to the case; the collaboration between the factors with prerogatives in the carrying out of an expertise; the competence of approaching the problem; the scientific spirit based on a rigorous interpretation of the facts; the avoidance of any amateurish inferences.

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In order for the medico-legal diagnosis to become scientific evidence in the criminal investigation, it must be: admissible, conclusive and pertinent. For this, the diagnosis must be established by an expert. Next, we will present the 3 types of violent death.

A. The category of sharp objects includes cutting, puncturing, cutting-puncturing, cleaving, cutting-cleaving objects. Cutting objects. Juridical classification. They are objects with a cutting edge or blade (razor, pointless knives) which produce cuts on any region of the body. The neck cuts require the differentiation of suicide from homicide, accidents being exceptional. In case of suicide, there appear unique or multiple wounds, orientated downwards and usually from the left to the right, the wound being deeper at the attack point. The lethal wound is deeper, asymmetrical, transversal, crossing the respiratory ways and the veins, rarely the arteries. When the clothes are removed, there appear gushes of blood. Most of the times, the wounds that appear in the case of suicide are neck or arm cuts with the sectioning of the radial artery. One can also notice several transverse and parallel cuts. Very rarely do such lesions occurs in case of accidents (falling onto glass pieces) or in homicides (self-defense lesions). When we deal with a homicide, the wounds are irregular, unique or multiple, all having the same depth, deeper than in case of a suicide. Puncturing and puncturing-cutting objects. Juridical classification. The puncturing objects produce puncture wounds, and the puncturing-cutting ones – puncture-cut wounds, which present an entering orifice, with a channel, and when they are transfixiant they also have an exit orifice. The puncture wounds produced by small caliber instruments have a punctiform aspect. When the caliber is greater, there appears an elongated wound with equal angular ends, with the diameter smaller than that of the instrument.

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The puncture wounds must be differentiated from the insect bites or from the shot wound (with lack of substance) or the puncture-cut wounds that are similar to them, but which have much more acute angles, produced by instruments that perforate and cut the tissue. In the case of punctiform orifices, as a result of injections, the examination must be very careful because such murders can be caused by the injection of toxic substances. The precardiac localization requires special attention. In case of suicide, its maximum frequency is produced by multiple pericardic wounds; one or two of these are deeper, more penetrating. The localization on the back, limb, head and the existence of self- defense lesions, the existence of wounds with an entering orifice and more channels, orientate the diagnosis towards homicide. There have been cases of accidental deaths due to the falling onto puncturing-cutting objects. One can speak of an accidental fall onto a knife only when it was preliminarily fixed. There are situations when the pressing of the body or of the head against the knife is done in order to commit suicide. The more bizarre the lesions, the more we suspect that it is a suicide. Cleaving and cutting-cleaving objects. Juridical classification. They cause heteroaggression lesions especially of the head or of the limbs; when in the area of the neck, they can also cause decapitation. The characteristic lesions are: cleft wounds with the sectioning of the tegument; the dilaceration of the deep tissues, contusion wounds, fractures, in the case of heteroaggression being accompanied by defense lesions. Suicide can be incriminated when there exist cleft wounds of the head, especially in the frontal or temporal region (more accessible) and grouped parallel wounds, affecting only the skin.

B. The violent shooting death. From the medico-legal point of view, there exist all the three forms of violent death, differentiation being made on the basis of a complex expertise. The important thing is the aspect of the characteristic lesions produced by the projectile as well as the effects of the secondary factors of the shooting.

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These must differentiated from the puncture or perforated wounds by the morphologic aspect of the wounds, with the description of the entering orifice, of the present secondary factors, the presence of the bullet inside the body, in the blind wounds. The entering orifice is characterized by the lack of substance, has a round shape, in the case of distance shooting or a star shape, in the case of point blank range shooting. A 90º impact angle produces a circular orifice, a 45º angle – a semicircular orifice, and under 13-50º, the bullet no longer enters the body, at the place of the impact appearing a contusion wound. The diameter of the entering orifice is, usually, smaller than that of the bullet. It has the same diameter on the bones. The presence of the modifications produced by the action of the bullet is characteristic to the entering orifice. The wiping ring, of a black color, situated immediately after the contusion ring, towards the channel of the bullet, appears due to the wiping of the skin perforated by the substances deposited by the bullet during its passing through the barrel. In the cases of point blank range shooting, there may appear the total or partial printing rings, due to the recoil; the muzzle of the gun is imprinted on the skin and it has the appearance of a circular or crescent shaped bruise of 2-5 mm. In the cases of point blank range shooting, the metal coating ring may appear over the contusion ring. The exit orifice does not have less substance, nor do the described rings, and it is usually bigger, with irregular edges. The channel may be direct or deeviated by the interposition of a bone. The unburnt powder produces, in the cases of point blank range shootings, an area of imprinted tattoo under the tegument, around the entering orifice; in the cases of shootings from a distance equal with the length of the barrel, this tattoo is more dispersed and more superficial. In the long distance shootings, the tattoo no longer appears. The soot produces an indistinct tattoo area around the entering orifice. The gases produce lesions of tissue damage. The flame can produce burns of the skin, especially in the case of

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Knowledge Based Organization 2008 International Conference black powder, or the burning of the clothes. Unlike the bullet, the small shots act as a block, producing a greater lack of substance, with irregular edges, at the entering orifice. At close shooting distances, there appears a bigger central orifice, surrounded by more smaller orifices, produced by the dispersion of the small shots. The degree of dispersion establishes the shooting distance. The shrapnel is formed by the explosion of grenades, mines, etc., which penetrates different organs and causes lethal lesions. The smoke deposit and the tattoo appear at great distance and they also can be found at the persons in the vicinity, in the case of a mine or grenade explosion. In case of suicide, the shooting is usually carried out, from within the action area of the secondary factors, with the presence of soot and of the interdigital pinch, produced on the victim’s hand by the recoil. Many times the weapon is found in the victim’s hand and the lesions are in accessible areas. In the case of heteroaggression, the shooting can take place from inside or outside the action area of the secondary factors, the lesions appearing in any region of the body. In case of accident, the investigation of the crime scene, of the circumstances that caused it and the lesional aspect orientate the diagnosis. The activity sphere of the coroner includes the following investigation objectives: the crime scene; the victim (the body); the clothes of the victim; the fire weapon and the ammunition; the aggressor; the medico-legal experiments; the ballistic experiments; the reconstruction. The fire arms leave pretty obvious criteria, the detailing of which enables a differential diagnosis: the presence of the weapon in the hand of or near a body; the traces of the secondary factors of the shooting on the victim’s hand; the shooting direction; the shooting distance; the shooting angle; the number of similar shots with the same type of weapon or with different weapons; the body region we are interested in; the existence or the lack of preparatory acts. In the studied cases we have encountered three cases of violent

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Knowledge Based Organization 2008 International Conference shooting death: 2 suicides (a conscript who shot himself in the head and a guard who shot himself in the left pectoral region) and an accidental death due to an abdominal shooting wound caused by small shots affecting the left iliac artery in a night hunting accident.

C. The violent death by mechanical asphyxiations. The mechanical asphyxiations cause death by anoxic mechanism, in their category being included the asphyxiations achieved by compression, ligature strangulation, hanging, manual strangulation, thoraco- abdominal compression, by the occlusion of the respiratory ways and of the respiratory orifices with objects (manual strangulation) or liquids (drowning). The hanging. Differential diagnosis criteria. Juridical classification. The hanging represents one of the most typical asphyxiations and is the most utilized method for committing suicide. It produces certain characteristic local and general signs, which permit an easy diagnosis. From the medico-legal point of view, the hanging can be complete or incomplete, typical or atypical. The lesion characteristic to hanging is the unique or multiple hanging furrow, which appears in the superior part of the cervical region. If in the case of typical hangings the furrow is obliquely ascendant, upwards and backwards, towards the posterior knot, in the case of atypical hangings, the furrow presents an anterior or lateral orientation and the knot is situated anteriorly or laterally. The maximum depth of the furrow can be found on the opposite part of the knot; sometimes, at the level of the knot, the furrow can be interrupted. In the case of complete hanging, the depth of the furrow is greater. General signs of hanging: lividity of the legs, cyanosis of the face, the elongation of the backbone, axis fractures; traumatic body lesions may also occur due to the convulsions that precede death, the signs of a possible intoxication. The presence of the weights attached to the feet, the tying of the hands for the certitude of the act, the choice of the place and of the means, orientate the diagnosis towards suicide.

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Some of the most common forms of suicide are: the blackmail suicide, the pathologic suicide, with its selfless form (the mother, with puerperal melancholy kills her baby and than commits suicide by hanging), the psychotic suicide, the hallucinatory suicide, the confusional suicide, the impulsive suicide, etc. A peculiar form of suicide is the couple suicide, which appears in intense passionate states. The accidental hangings are characteristic to children, mountain climbers who fall hanging from the ropes, acrobats, and accidental falls; in the case of erotic asphyxia, due to loss of consciousness or to the malfunctioning of the devices used for this purpose. The homicide is encountered when the victim can not defend himself or is taken by surprise and, after the realization of a previous favorable so-called “anesthesia”, the hanging takes place. In such cases there occur immobilization lesions, there are no climbing means. When the vital character of the hanging furrow and the lividity of the legs are missing, but violence lesions are present on the body, it is probably the case of a homicide dissimulated by hanging. Other traumatic lesions produced while falling, can also occur due to the breaking of the noose, some post-mortem, through the cutting of the noose by unknowing persons. The lesions that must be carefully examined, both in the context of the crime scene conditions, as well as morphologically, in order to exclude the possibility of their being produced before the hanging. The ligature strangulation. The manual strangulation. Diagnosis criteria. Juridical classification. The ligature strangulation is achieved using a cord-like object, the manual strangulation using the hands. Generally these are homicide cases, rarely do there exist cases of suicidal ligature strangulation or accidents. Manual strangulation is always is characteristic of homicides. In the case of ligature strangulation, the characteristic lesion is the ligature strangulation furrow, which is horizontal, continuous, situated on the median third of the cervical region, having a relatively equal depth. Oval-shaped ecchymoses appear in cases of manual strangulation. They are produced by the compression with the fingers and the

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Knowledge Based Organization 2008 International Conference crescent-shaped cutaneous lesions produced by nails. The internal lesions are the sprains and fractures of the thyroid cartilage and of the hyoid bone. There are cases of erotic asphyxia with the purpose of reaching orgasm. They are produced accidentally or during certain sadistic crimes; when this is the case traces of the sexual intercourse and violence lesions are looked for. Accidental cases also appear in the case of newborns, by umbilical cord strangulation, of children immobilized in bed, in sport accidents, during judo matches. Thoraco-abdominal compression. Diagnosis criteria. Juridical classification. They usually occur accidentally due to the turnover of a vehicle with a heavy voluminous body, because of bank slides, fallen walls, during earthquakes, avalanches. The suicide occurs when a person jumps in front of a vehicle and is compressed by it. As a criminal act, it may appear in the cases of gang raping, when one can also notice traces of the sexual intercourse and marks of violence. Suffocation. Diagnosis criteria. Juridical classification. Suffocation by hand leads to the presence of cutaneous lesions and eccymoses around the oral-nasal orifice, and when it is produced with soft objects, ulcerations and hemorrhagic infiltrations can be seen on the oral mucous membrane. The cases of suffocation by hand are always homicides. Asphyxia caused by foreign bodies or food swallows occurs accidentally, in the case of children, old people, or in cases of epilepsy, inebriety, when during the undigested food which is vomited is aspirated. Rarely do there occur suicides by the blocking of the oropharynx with soft objects. The homicide of newborns occurs by the blocking of the pharynx, and that of adults by the submerging of the victim’s head in flour, seeds, etc. The existence of the asphyxiated body, the oral cells on the asphyxiated body, the marks of struggling orientate the diagnosis

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Knowledge Based Organization 2008 International Conference towards murder. The drowning. Diagnosis criteria. Juridical classification. The drowning occurs accidentally in case of floods. The untrained sportsmen and those who can not swim can also become victims of drowning. In the case of diving in cold water, the death by inhibition occurs. In the bathtub, the drowning may occur in cases of inebriety or by electrocution. When there are preparatory acts, the tying of the hands, weights tied to the feet, anterior attempts, we think of suicide. In the case of homicide, lesions caused by the submerging of the victim into the water may occur; when there are traumatic lesions or of manual strangulation, with a clearly vital character, the body is introduced in a bag, we deal with a homicide dissimulated by drowning. The vital modifications in case of drowning are represented by the appearance of a specific fungus, edema, emphysema, pulmonary hemorrhages, subpleural eccymoses presenting a panther skin pattern. The right heart dilates and is filled with liquid blood.

Conclusions The general methodology for the identification of the three medico-legal forms of violent death which result from the corroboration of the theoretical data with the practical results consists in: a) the knowledge of the frequency of the medico-legal form of death related to the death causing agent; b) the knowledge of the victim’s past; c) the timely examination, together with the other members of the team, of the crime scene; d) the autopsy made according to the same tactical rules as in the case of the crime scene investigation: without delay; complete and objective; thorough; after a judiciously elaborated plan; e) establishing the cause of death accurately by adequately using all the means of investigation; f) the examination of the damaging agent and establishing the correspondence damaging agent - lesions;

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g) the permanent collaboration of the coroner with the investigative authorities until the case is solved. When interpreting violent deaths from a medico-legal point of view, one must respect not only the abovementioned general methodology, methodology that must be rigorously respected, but also the general pragmatic rules by means of which the differentiation criteria between the three forms de violent death are evidenced: – detailed description of the traumatic lesions, especially as anatomic and orientation topography, which gives valuable clues for the differentiation of the three forms de violent death; – the isolated interpretation of the conclusions of the necropsy can not satisfy the scientific evidence, complete and synthetic; it is compulsory to corroborate all these conclusions with: the crime scene examination, the damaging agent, the aggressor (when this exists); – the competence of the coroner, which entails theoretical and practical preparation, experience, receptivity, attention, cooperation and synthetic thinking, is the essential element of honesty related to society. Simulation and dissimulation can be causes of medico-legal errors and, implicitly, judicial, but they are not easy to spot if one strictly respects the abovementioned methodological rules, granting the same attention to all the death cases. In the case of suicides, mention must be made of the fact that the individual who commits suicide can be alienated, a psychopath or a normal person (usually emotionally unstable). The evaluation of the social and familial conditions that generate suicides, evaluation made in order to discover or prevent them, is very difficult, Schopenhauer’s words illustrate this situation best: “No pain is great enough to prompt a person to commit suicide, but it is not little enough not to have already prompted him”. In conclusion, the problem of the causal self is easy to solve in the case of primary or secondary lesions, but it becomes difficult when there intervenes a great number of diverse conditions. The conclusions of the coroner regarding the cause of death and the orientation towards its medico-legal form have a mostly descriptive character. In this situation, it is the jurist’s duty to isolate the causes that have the

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Knowledge Based Organization 2008 International Conference characteristics of an illegal act, an act which generates penal effects, and to decriminalize on the basis of the medico-legal criteria and of the findings of the mechanisms of hetero or self-infliction of the lesions.

Bibliography Beliş, Vl.,Tratat de medicină legală, Bucureşti, Editura Medicală, 1995. Bercheşan, V., Metodologia investigării criminalistice a homicideului, Piteşti, Editura Parallela 45, 1998. Măcelaru, V., Balistica judiciară, Bucureşti, Ministerul de Interne, 1972. Moraru, I., Medicină legală, Bucureşti, Editura Medicală, 1967. Stancu, E., Criminalistica, vol. I, Bucureşti, Editura Actami, 1999.

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THE NECESSITY OF DRAWING UP THE SKETCH AFTER THE EXAMINATION OF THE SCENE

Crişan Constantin Mircea

Alba County Police Inspectorate

Abstract The drawing up of the sketch after examination of the place of the criminal offence is a very important activity, that the investigation authorities must do, in conformity with the Code of Criminal procedure, in order to form an overall picture as closest to reality as possible, regarding the way of committing the criminal offence and the contribution of each person, involved in committing this criminal offence.

Keywords: place of the scene, criminal offences, examination, report, fixing

The miscarriage of the rights and liberties of a person, gives that person the opportunity to address oneself to the police authority and the Prosecutor `s Office, or to other authority, to have his/her demands legally resolved in terms of the law. The qualified authorities are forced to take legal measures, taking into consideration the gravity of the antisocial committed criminal offences. In the case of committing some criminal offences, these authorities, invested with state authority, must identify the authors, collect and preserve the evidence and announce the legal competent authorities. The examination of the scene is the most important activity taken by the police, in order to document an activity relating to an infraction that a person has done, in order to bring that person to a legal account, 464

Knowledge Based Organization 2008 International Conference being an activity with an immediate and irreplaceable form. In many cases this activity is impossible to be repeated under the same circumstances that the offence was committed and with the same results. The place of the scene is the main source for the judicial evidence, regarding the criminal offence and to its author. On the way in which the research to the scene takes place, on the way of searching, discovering, fixing and taking the evidence will depend, mostly, the solution of the case, identification of the author or authors and the other participants to the criminal offence. The examination of the scene is stipulated intentionally in the Romanian Code of Criminal procedure, Title II “The evidence and means of sample”, section XII, art.129. The report that is made after this activity is done and what the report must contain is also stipulated in art.131 Code of Criminal procedure. The team formed to carry out the examination of the scene, will have to respect strictly all the criminal procedural norms and the criminal tactic rules. In the static phase of the examination of the scene, there are many activities like: discovery and fixing of the material evidence and traces, taking the plan of the characteristics of the relief in order to be able to draw the sketch of the scene. The fixing of the material evidence and traces in the static phase is made by the help of taking pictures, filming and a sketch. Taking the plan of the characteristics of the relief in order to be able to draw the sketch of the scene is also made by the help of taking pictures, filming and a sketch. By drawing the sketch of the scene, relief characteristics are taken, especially in the case of offences to the road traffic, of air catastrophes or railroad ones. The sketches are drawn, being oriented to the scale, to mark the persons, objects and traces, using some adequate conventional signs, as the person who draws them appreciates, without any manual or guide providing some established conventional signs to be used by the investigation authorities, in these situations.

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It must be said that not even in the Code of Criminal procedure, there is no reference to the conventional signs that should be used; the inquiry authorities are free to establish these signs, as said above. It must also be mentioned that the sketch will be drawn not only in case of criminal offences committed in the open space, but also in closed spaces (homes, shops, cellars, mine accidents etc.). When searching the place one could draw several types of sketches, as: – sketches of orientation of the scene; – the sketch of the scene; – the sketch of a part of the scene; – the sketch of the main objects from the scene; – the sketch of the traces discovered to the scene; – the detailed sketch of some traces, objects with traces, objects used to carry out the criminal offence etc. The sketch drawn is signed by the person who drew it and the report of examination of the scene. In fact it is seen that when examining the scene, in case of some criminal offences, which do not represent a high social danger, the authority that makes the investigation to the scene, gave up drawing these sketches, resuming to filming and taking pictures of the scene. I consider that the renouncing of drawing the sketches is a big mistake, because first of all they are procedural papers, provided by the Code of Criminal procedure, and secondly, they have an essential contribution next to filming and picture boards, for the inquiry authority `s understanding, who took place to the examination of the scene, to the way in which the criminal offence was committed, to the conditions and causes which favored its finalization, to the place where the authors entered, and where they left the in fractional place, etc. Nowadays the computer programs are successfully used in drawing the sketches, especially for the traffic road accidents, programs that can easily reproduce all the aspects that were discovered while examining the scene, sketches-that next to, as we already mentioned, filming and picture boards-have an essential role in understanding the way in which the accident was produced and the guilt of the persons involved.

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I think that the computer programs by which sketches are made which reproduces in all aspects the place of a criminal offence can be successfully used in fixing the scene outside or inside, these have to be used in all criminal offences that are found or reclaimed and where the examination is made on the scene.

Bibliography [1] The Code of Criminal procedure with the changes made by Law nr. 356/2006. [2] The Examination of the Scene, Constantin Rujoiu, Ştefan Popa, Nicolae Stoia, Ştefan Neicu, Lucian Petrică, Pantelimon Enache, Ilie Creţu, Viorel Gheorghici, Bucureşti, Editura Ministerului de Interne, 1996. [3] Criminology, Camil Suciu, Bucureşti, Editura Didactică şi Pedagogică, 1963.

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THE BANKING DEPOSIT OF FUNDS. IDENTITY

Postolache Rada

“Valahia” University, Târgovişte [email protected]

Abstract Receiving deposits and other refundable funds from the public stands for the main activity of a bank, which influences its own existence and viability, being basically a monopoly of that bank. On the one hand, the banking deposit of funds is little regulated, enough to provide judicial legitimacy to the participants’ will and speed up the operations performance, while on the other hand it represents a ”guaranteed” contract regarding the certainty of its effects. The banking deposit of funds is hard to be ascribed to the pattern of traditional civil contracts. Judging by its object and aim, it is different from the classic deposit, but is similar to a version of the latter, namely the irregular civil deposit. Judging by its purpose, it can also be seen as a loan given to the bank by the customer and, implicitly, as an intermediation activity, on the basis of which the bank offers credits to its customers. The contract of the banking deposit of funds must be set apart also from the banking contracts which resemble it to a certain extent, that is the contract of documents deposit and the contract of loaning specific safes. The banking deposit must not be associated only with the classic way of depositing amounts of money, with the obvious aim of increasing them. Practically, we are confronted with a lot of versions which emphasize the complexity and the diversion of the banking deposit: cash vouchers, deposit certificates, economies deposits, collateral deposits etc.

Keywords: banking deposit of funds; irregular deposit; deposit guarantee fund.

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1. General aspects 1.1. The definition of banking deposit According to common law, art. 1591, Civ. Code, “a deposit generally stands for the act of receiving someone else’s good in order to keep it and giving it back in kind.” According to the juridical doctrine, “a deposit is the contract by means of which a person called deponent entrusts a mobile good to another person called depositary who commits himself to keeping it and giving it back in kind at the due term or at request.” [1] In the banking field, current regulations provide no definition for banking deposit. “Attracting deposits and other refundable funds” is mentioned only as the main activity of a bank in art. 18 align. (1) letter a) of the Government Emergency Ordinance No. 99/2006 regarding credit institutions and the adequacy of capital (Off. Gaz., Part I, No. 1027 of December 27th 2007, approved with amendments by the Law No. 227/2007, Off. Gaz., Part I, No. 480 of July 18th 2007, which in this work will be called the Banking law or the Ordinance No. 99/2006). Attracting deposits and other refundable funds is basically the contract through which the costumer entrusts an amount of money to the bank for a certain period of time, in order to increase it, the bank having the duty to offer an interest and give back the regarded amount of money at the customer’s request or when the deposit period ends. This definition regards only the traditional banking deposit – of refundable funds – and not the variety of the latter’s versions. A deposit is direct only when the customer deposits the amounts of money at the bank and when his account is supplied with a banking transfer made on his behalf. Various deposits are indirect, for instance handing in a debt title, a cheque, so as to be cashed by the bank, the amount of money crediting the deposit account. The origin of a deposit might also be a credit allowed by the bank, the amount of which is registered in the account, as it happens particularly in the case of discount [2].

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1.2. Juridical regulations When it comes to contractual forms, the banking field is little regulated, the tendency being that of deregulation. Law makers have provided regulations enough to offer legitimacy to the participants’ will, implicitly approving the freedom and the swiftness of banking operations. The G. E. O. No. 99/2006, art. 18, letter a), only stands for the general ground regarding the banking deposit of funds. In the absence of specific regulations, the banking deposit will be regulated by common law provisions, abiding by the requests of banking prudence – adopted by the only authority within the field, the National Bank of Romania.

2. Juridical qualification In order to establish the applicable common law and, implicitly, the effects of the banking contract of funds deposit, it is necessary to determine the latter’s identity and to include it in the pattern of contracts which it strongly resembles.

2.1. The banking deposit - an irregular deposit Ascribing the banking deposit of funds to the pattern of traditional deposit is difficult, as there are some aspects which set it apart. Through its object and purpose, it might be interpreted in two ways: irregular deposit; loan given to the bank. The object of the banking deposit contract is the quantity of deposited money – fungible goods, consumables, similar goods; in what the civil deposit is concerned, the object is represented by various movable goods, which have to be given back in their kind. Judging by its object, the banking deposit is similar to a version of the civil deposit – the irregular deposit; the latter’s object, just like in the case of the banking deposit, is represented by fungible goods, consumable in accordance to their kind, which must not be given back in their kind, but by means of other similar goods. At the maturity or at the customer’s request, the bank will fulfill its obligation by giving back goods of the same kind – a quantity of money – with those it has received.

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A customer deposits money in order to increase their amount and to obtain an interest, and not to have them kept or preserved by the depositary bank, as it happens with the regular civil deposit; otherwise, he could rent specific safes from the bank, so that it would be the bank which receives money and not the customer. The bank accepts deposits of funds with the obvious aim of taking advantage from the entrusted amounts of money, remunerating the deponent. It is considered that the bank has the right of using the funds from the very first moment when it receives them. If the bank cannot benefit from funds freely, then they cannot be considered as received from the public, according to the special law [3]. Through the object and purpose of the deposit contract, the bank no longer has the duty of keeping or preserving the received amounts of money, the remunerated one being the deponent. As in the case of irregular deposit, the rule genera non pereunt is applied. The risk of a sudden disappearance of the entrusted goods is the bank’s responsibility.

2.2. The banking deposit – a loan given to the bank Judging by the bank’s possibility to use funds, the banking deposit is rather similar to the loan contract, mutuum. The funds received from the public represent the basic financial source for performing banking operations, mainly lending money, that is why the bank has the duty to remunerate the deponent. It is considered that the banking deposit of funds is not a genuine deposit, as the banker gives back not what he received, but the equivalent of what he received; if the bank receives funds, it often gives them back by means of cheque or banking transfer. The deposit is regarded as a “contract of loaning the bank”, since its aim is not that of keeping and preserving the entrusted amounts of money by the bank, but of using them [4], particularly for lending money to customers. The banking deposit is connected to the loan contract, but not identical. In what the loan is concerned, the stipulated terms of execution are essential for both parts and can be modified only if both parts clearly agree to it (art. 1581, Civ. Code), while “in the case of

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Knowledge Based Organization 2008 International Conference banking deposit money is given back at the deponent’s request” [5], in accordance to the provisions of art. 1616, Civ. Code. Attracting funds from the public also has similar features with intermediation operations; unlike in the case of civil loan, the bank mainly lends the resources attracted from customers as banking deposits and less its money. Irrespective of its interpretation, the banking deposit continues to have an unilateral character; for this reason, is deprived of the effects typical to reciprocal contracts. A customer can denounce the contract any time, without offering any justification and without being juridically accountable. In conclusion, the object and purpose are those elements which make from banking deposit an irregular one, similar with the loan contract (muttum), sometimes called [6] also “irregular deposit of money at saving banks and banks”, a variant of the irregular deposit.

2.3. The banking deposit - a guaranteed contract Only funds attracted from the public enjoy the juridical treatment of the banking deposit. According to the specific law, the public means “any physical or juridical person or entity without juridical personality having no knowledge or experience required to evaluate the risk of non-refund of the investments made. This category does not include: the state, authorities of the central, regional and local public administration, government agencies, central banks, credit institutions, financial institutions, other similar institutions and any other person seen as qualified investor, according to the legislation regarding capital market” [art.7 align. (2), point 18, G. E. O. No. 99/2006, pre- quoted]. Limiting the source of deposits at the public – persons with no “knowledge or experience required to evaluate the risk of non-refund of the investments made” – raises the issue of guaranteeing the refund of amounts entrusted to the bank. Through the Government Ordinance No. 39/1996, there has been set up the Bank Deposit Guarantee Fund, an institution subject to public law. The standardized banking legislation regards the amount of the guarantee, the type of guaranteed deposits, the conditions in which the guarantee applies, the term of

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Knowledge Based Organization 2008 International Conference payment of the guarantee, but also informing deponents and making public the guarantee systems [7]. Customer’s amounts of money are insured straight according to the law; in front of the Fund, bank’s customers only have the quality of potential beneficiaries. The juridical contribution ratio is between the Fund and the credit institution; credit institutions authorized to receive deposits from the public are bound to contribute at building up the Fund’s resources. The compensation becomes to be paid by the Fund only when the court order for commencement of bankruptcy proceedings of the credit institution is issued. Guaranteeing the refund is not an argument for omitting the provisions regarding bank’s responsibility from the deposit contract, as banks abusively do.

3. The banking deposit of funds and similar juridical institutions The banking deposit of funds must not be confounded with the documents deposit or with the rent of specific safes which, through their object and aim, represent genuine classic deposits. Renting safes is practically a contract through which the bank offers a particular space where the costumer, in exchange for money, can store objects or valuable goods in safety. Is this a rent or a deposit contract, given the fact that the banker’s essential activity is to supervise (guard) the rented space (safe)? The banker must verify the right to access at the rented space and to insure the content of the safe, being directly responsible for the disappearance of the stored valuable goods, even if they belong to a third person. The prejudiced client must prove the prejudice, including the content of the safe at the moment of disappearance, particularly because he is the only one having access at the safe.

4. Different types of banking deposits Except for the traditional deposit of funds – at sight or at term, there are also other variants [8]; here are the most common: a. certificates deposit. They are characterized by the specialized literature as activity, under the name of “attracting deposits through

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Knowledge Based Organization 2008 International Conference titles [9] and are often practiced by a lot of customers; they are commercial negotiable titles, performable outside a banking account, and are usually released by banks, at a fixed maturity term of 1,3,6 or 12 months; they have a minimum limit regarding their amount and produce an interest. They are issued with the purpose of allowing banks to finance themselves outside the monetary market. b. economies deposits. They are now practiced not only by savings banks, but also by banks; their variants are: savings books, economies for industrial investments, and also economies for building or purchasing houses, the latter being the most resorted at, especially by young people. c. collateral deposits. Their purpose is to guarantee the execution of an obligation coming from another fundamental juridical relation, usually commercial; they are different from the classic banking deposit previously analyzed and have the juridical nature of the civil bond [10] d. other deposits, with specific purpose, like those constituted for purchasing shares or for performing payments subsequently determined, the bank not having the right to take advantage from the deposited amounts of money.

Conclusions The present work has presented a few aspects which set the banking deposit of funds apart from similar civil contracts, without following the classic approach manner. The banking deposit of funds has similar features with other juridical institutions, thus confirming the hybrid characteristic of banking contracts. It cannot be identified with any of the analyzed contracts, having a specific identity. Practically, deposit contracts are brief, with few provisions, but easy to perform. The clause regarding bank’s accountability for the non-execution of the contract is frequently absent. Although banks try to make deposit contracts as tempting as possible, they tend to decrease, as a result of the competition coming from other saving instruments and techniques, such as: investments in securities, insurances, mortgage investments etc.

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References [1] Mircea Costin et al., Dicţionar de drept civil, Bucharest, Editura Ştiinţifică şi Enciclopedica, 1980, p. 119. [2] Christian Gavalda, Jean Stoufflet, Droit Bancaire–Institutions–Comptes, Opérations–Services, Edition 4, Litec Publ. House, 2000, p. 115. [3] Stéphane Piedelièvre, Droit bancaire, PUF Publ. House, 2003, p. 35. [4] Françoise Dekeuwer-Défossez, Droit bancaire, Edition 5, Dalloz Publ. House, Paris, 1995, p. 30. [5] Mircea Costin at al., quoted works, p. 180. [6] Aspazia Cojocaru, Contracte civile, Bucharest, Lumina Lex Publ. House, 2004, pp. 193-195. [7] Constantin Florescu, Aspecte ale evoluţiei reglementărilor privind protecţia deponenţilor în relaţia acestora cu băncile depozitare (II), The Commercial Law Magazine (Revista de drept commercial), no. 1/2001, p. 152. [8] Rada Postolache, Drept bancar, Bucharest, Cartea Universitară Publ. House, 2005, pp. 176-178. [9] Carmen Adriana Gheorghe, Drept bancar, Bucharest, C.H. Beck Publ. House, 2005, p. 116. [10] Rada Postolache, quoted works., p. 177.

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THE INTERNATIONAL CRIMINAL COURT, IRAQ AND THE GAME OF POWER

Merfu Oana

M.U. 01042, Curtea de Argeş [email protected]

Abstract Lately Romania seems to have had to choose sides between the United States of America (further US) and the European Union (further EU). The reason for this circumstance lies in the power competition developed between these two international actors in several issue areas. In order to understand the country’s position and, thus the choices that it made we started with the question ‘How can Romania’s choice be explained?’ It must be made clear from the outset that this paper is not merely a foreign policy analysis. Rather it intends to delineate a pattern of behaviour that could be reproduced in time and under similar circumstances. It is my belief that the reasons that determined Romania’s decision could also be accountable for similar response coming from other countries found in the same situation. Hence, the paradigm in which this research falls into is international relations theory. The hypothesis on which this research paper is based upon is that when involved in a power competition the reasonable option for Romania is to bandwagon, i.e. to join the stronger side. However the competition that ensued is marked by the different aspects of power employed: while the US relies on the authority provided by their prestige as a great power, the EU stresses the authority endorsed by legal obligations for the states under the common EU legislation (the acquis communautaire). The dichotomy appears clearly in the way both the US and the EU try to influence the choices that Romania made.

Keywords: digital, war, warriors

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1. Introduction The hypothesis on which this research paper is based upon is that when involved in a power competition the reasonable option for Romania is to bandwagon, i.e. to join the stronger side. However the competition that ensued is marked by the different aspects of power employed: while the US relies on the authority provided by their prestige as a great power, the EU stresses the authority endorsed by legal obligations for the states under the common EU legislation (the acquis communautaire). The dichotomy appears clearly in the way both the US and the EU try to influence the choices that Romania made.

2. The International Criminal Court, Iraq and the Game of Power The hypothesis on which this research paper is based upon is that when involved in a power competition the reasonable option for Romania is to bandwagon, i.e. to join the stronger side. However the competition that ensued is marked by the different aspects of power employed: while the US relies on the authority provided by their prestige as a great power, the EU stresses the authority endorsed by legal obligations for the states under the common EU legislation (the acquis communautaire). The dichotomy appears clearly in the way both the US and the EU try to influence the choices that Romania made. In short, the argument presented here relies on two conditions that explain why the US was successful in attracting countries like Romania on its side. On the one hand, the emphasis is on the structure of the international system, and its consequent mechanisms of control, which influences all member states, some of them to a higher degree than others. On the other hand, Romania’s own perception determined it to bandwagon, instead of complying with the legal obligations that it assumed in relation with the EU. Such statement entails a short elucidation. The first part of the argument that will be developed here points towards a systemic theory of international relations, one in which structure holds primacy over

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Knowledge Based Organization 2008 International Conference agents, i.e. states, Romania included. The second assumption seems to turn the first one upside down, by placing agent’s actions at the forefront. This is however not the case, as there is no place for an agent-structure debate in this paper. Instead, a systemic theory will be applied on account of its greater explanatory power. Yet such a theory is not a holistic one, therefore, some elements must also be added so that the general explanation can become relevant in particular cases. Currently there are two main schools of thought that compete with each other in the realm of international relations theory. The first school of thought, best known as neorealism (or structural realism) maintains a materialistic perspective about the nature of international relations. Because sovereign states exist in an anarchic world, i.e. one without any form of international government, the only mechanism that explains the actions of states is the distribution of power among them. Furthermore, states’ ultimate concern is to survive in an often- hostile environment. A second school, one that is usually associated with the name neoliberal institutionalism, argues for an international legal system based on norms, rules and practices, which determine a high degree of convergence in the actions of the states involved. Such scholars argue for institutional frameworks (sometimes termed international regimes) that compel states to comply with their normative provisions and which foster co-operation on various issue areas. Neoliberalism’s great shortcoming is its emphasis on co-operation among states, at the expense of the other important process in inter- state relations, namely competition. For our purpose it is of vital importance to know where to draw the line between them, for it is competition, and not co-operation, that is under scrutiny in this paper. Yet, there are some areas of concern where the neorealist theory also reveals itself as incomplete for the development of the present argument, thus rendering the appeal to concepts and interpretations from other disciplines necessary. One such ancillary discipline is social constructivist scholarship. In terms of operationalisation the reasonable option was for nonrandom, judgmental/purposive sample that would allow the selection of two relevant cases. These cases are the US campaign

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Knowledge Based Organization 2008 International Conference against the International Criminal Court (further ICC) in the first months of 2002 and the US war in Iraq in the spring of 2003. The method used combines a comparative study of these two instances in the search for similarities and differences with a content analysis of primary and secondary data that would reveal the presence and the frequency of previously established idiosyncrasies. The argument presented in this paper starts from the power competition that ensued between the important players of the international system and seeks to determine where does Romania fit in. It acknowledges that this country had (and will still have) an important part to play. In this vein, the actions undertaken and the subsequent choices on which the actions were based were closely scrutinised. The argument is twofold, as it relies both on the structure on the international system as a selector for certain type of behaviour and on consciously constructed identities and meanings that actors attach onto themselves, and which explain why a particular choice is preferred and not another. In specific terms it applies mainly the neo-realist theory onto which social constructivist explanations were adjoined. The two case-studies presented here, i.e. the United States’ campaign against the International Criminal Court and the war on Iraq, were chosen due to their relevance, based on the fact that they bring forth two important concepts associated with the theory of international relations, namely those of security and international law. They are both employed in order to test the theory advanced in this paper. Which brings us to the discussion of the role of the theory. This paper was written in the belief that: “The theory must be judged not by some preconceived abstract principle or concept unrelated to reality, but by its purpose: to bring order and meaning to a mass of phenomena which without it would remain disconnected and unintelligible. It must meet a dual test, an empirical and a logical one”.1 The need to bring theory in accordance with the “reality” of empirical facts is part of the explanation why two “theories” were

1 Morgenthau, Hans J., Politics Among Nations: The Struggle for Power and Peace, New York: Alfred A. Knopf, 1973, p 3. 479

Knowledge Based Organization 2008 International Conference actually employed. Neorealism accounts for the shape and the structure of the international system in which interact the actors under scrutiny here. The context is that of international anarchy, which is synonymous with a hierarchical positioning of actors according to their relative power. In this way power is brought to simplify the pattern of international system and of actors’ interactions by placing the relations among great powers as its skeleton. Simply put, great powers are those that set the rules of the game which themselves play alongside others. This argument further entails the assumption that there are constraints imposed on Romania by the structure of the international system and its consequent mechanisms of control. Yet these assumptions alone cannot reveal the full picture as they are unable to account for the particular choices that a country (in this case Romania) makes. It is in this particular instance that social constructivism comes in handy. It sets a direct and intimate link between identity formation and actors’ interest, arguing that the former is a conscious endeavour undertaken in the name of the latter. When put to the test these arguments account for the pro-active stance adopted by Romania in relation with the situations it has come to face. Indeed, instead of idly standing by and waiting for events to unfold, Romania resolved to take matters into its own hands, choosing a side (the American side, that is) and going with it all the way. According to the first part of the argument developed here, Romania may have moved towards the US simply because it was stronger and it is usually an overall advantage to be on the stronger side. The rationale may be that of a cost-benefit analysis, in which benefits outweigh the costs. With respect to the second part of the argument, Romania consciously chose to rally to the American flag and construct for itself an identity of a “close friend” of the US, which is more or less equivalent with being a close ally of America. The explanation entails more than a simple cost-benefit analysis, considering that benefits may reveal themselves in the future, whereas the costs must be met in the present. The element that binds the two arguments together is envisaged

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Knowledge Based Organization 2008 International Conference by the attractive aspect of power, or by the concept of governance in the international system that is promoted in this construction. Indeed, by yielding to the more powerful and joining its side, i.e. playing by the rules set forth by the stronger, one actually attracts some of the power for itself. Besides this theoretical construct there were more tangible gains for Romania that pushed the country towards the US. What Romania was looking for, i.e. its international agenda, comprised of two basic desires. One was the accession to NATO and the other was joining the EU. As it became clear that the former would take place with reasonable advance, the priority was set on the NATO accession first, and than on the effort to join the EU. However, the Romanian official wanted to make clear to all, both American and European, that the two processes were considered as complementary and achieving one should not impede on the achievement of the other. Time and again, Romania tried to act as everyone’s best fried, keeping in mind in the same time its international agenda and the consequent national aspiration on which the agenda was largely built. The empirical analysis of the actors’ behaviour that is under scrutiny here revealed further aspects of their interaction that supports the theory. For example the way in which the two competitors, namely the United States and the European Union, communicated their intentions was instrumental in influencing the choices that Romania made. On the one hand, the American message was delivered as straightforward and as clear as it could possibly be, with the obvious intention to capture most of the benefits. It made good use of both threats and rewards, in a combination that surely caught the attention of the Romanian government. On the other hand, the message coming from the EU was clumsy, inarticulate and it was usually delivered when there was precious little left to be done. Furthermore, the EU spoke on more than one “voice”, as them message coming from the European institutions was often doubled (and sometimes challenged) by that of the member-states, some of whom also fancied a close relation with the US. This fact has more than one implication. For once, it is much easier to listen to one

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Knowledge Based Organization 2008 International Conference person speaking directly to you than to behold a deliberation among several others, and then be expected to make out for yourself what they expect you to do. It is exactly what the Romanian Minister of Foreign Affairs was complaining about when arguing that when it comes to expectations the country is being treated as a member-state, yet when it comes to being consulted on matters of crucial importance it is being cast off from the deliberation process. Furthermore, the fact that the EU was speaking on more than one “voice” lead to Romania’s placing much more importance and attention to what the member-states had to say, rather than to carefully listen to the European institutions (and above all the European Commission). It is only natural to be this way since most EU members are also NATO member-states and Romania also depended on their good will for a full success in the accession process. It could also find allies within the Union, that is other states that shared similar concerns and had related expectations. Last, but not least, EU’s institutions deliberately lessened their implicit demands with respect to Romania, since they asserted with every official statement that the enlargement process would not be jeopardised and the country’s expected membership was a sure thing.

3. Summary In the end, a word must also be said about other cases similar to the ones already discussed, instances in which Romania also had to chose between the United States and the European Union, and in which favoured the former. Two such instances are of particular importance, especially because of the debate surrounding them. A first tensioned issue involved the problem with international adoptions of Romanian children. In 2001 Romania yielded to pressure coming principally from the EU by instituting a moratorium of international adoptions of Romanian children. American couples had been the primary recipients and the US at that time exerted significant pressure against the moratorium. Which was finally broken in December 2003, when, as a result of a more informal meeting between Romanian Prime Minister Adrian Nastase and his Italian counter-part Silvio Berlusconi, 105 children left for Italy. This

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Knowledge Based Organization 2008 International Conference resulted in a European-scale campaign to review accession negotiations with Romania. The campaign was spearheaded by Baroness Emma Nicholson of Winterbourne, a British member of the European Parliament, also a substitute delegate to the EU-Romanian Joint Parliamentary Committee and responsible for Romania on the Committee on Foreign Affairs. A second example of a US-EU clash, on Romanian territory this time, involved the decision of the Romanian government to contract the building of a motorway with the notorious Bechtel Corporation. This project would duplicate a similar one for which the EU has granted Romania a large amount of financial support. The Romanian government was at a loss when it was revealed that it awarded a 2.5 billion EURO contract to Bechtel without a public sale, thus breaking EU contracting regulations and procurement norms. As a general conclusion, the argument presented above is not meant to imply that Romania’s choice was either good or bad. There is no place for value judgements here, as it is in my intention to describe the situation with scientific objectivity and to assess its implications for future instances when Romania will have to chose again in a trans-Atlantic debate. It is my belief that the theoretical framework presented here could also be employed under similar conditions with those revealed above and for future actions as well.

References [1] Morgenthau, Hans J., Politics Among Nations: The Struggle for Power and Peace, New York: Alfred A. Knopf, 1973. [2] Gilpin, Robert, War and Change in World Politics, Cambridge: Cambridge University Press, 1981 [3] Ortega, Martin, Iraq: a European point of view, Occasional Papers 40, Paris: European Union Institute for Security Studies, December 2002 [4] Mundis, Daryl A., The Assembly of States Parties and the Institutional Framework of the International Criminal Court, The American Journal of International Law, Vol. 93, No. 1, (January 1999), pp. 132-147

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OPINIONS CONCERNING THE IMPORTANCE OF PENALTY’S INDIVIDUALIZATION

Meche Mirel

Gorj Lawyer Bar

Abstract In a society increasingly based on immutable values, associated with progress and democracy, the function of the modern state – reference framework and at the same time guarantor of respecting the fundamental human rights and liberties, meets the function of authority, of force, which imposes and inflicts sanctions leading to constraint and deprivation. The individualization of the penalty is a subject of a great importance within the context of respecting the fundamental human rights and liberties, even when committing a penal offence. The present paper deals with the forms of penalties’ individualization, the general criteria of individualization and some conclusions which result from the application of the individualization.

Keywords: penal offence, human rights, individualization

It is obvious that the functions of any applied and put into execution penalty addressed to a certain person, who committed a certain crime, can act efficiently towards prevention only if, by its type and duration, it will be adjusted to the precise individual case. Firstly, this adjustment involves taking into account the offence, not as an abstract entity but as a precise reality, as an action or inaction particularized by means of certain features, the offence having a qualitatively and quantitatively determined result and being committed in the context of certain situations, conditions or circumstances. All these confer on the committed offence its own gravity, which has to be

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Knowledge Based Organization 2008 International Conference taken into account when inflicting the actual penalty. Inflicting a penalty which does not match this gravity means either to make the offender suffer from a lot of deprivations or restrictions, or, on the contrary, to impose a suffering which, thanks to its low intensity, would rather encourage the offender to keep braking the penal law than intimidate and correct him/her. Finally, the adjustment of the penalty involves in the subsequent stage of execution, the careful supervision of the convict’s reactions to the restrictions imposed by detention or by the regime of the correctional work and his/her reactions to the educative activity carried on in the penitentiary or at the workplace, and - in comparison with this – if it is the case, the shortening of the execution’s duration. The process of penalty’s adjustment in comparison with each precise offence and offender - or, as stated in the terminology established by the law and by the science of law, the process of penalty’s individualization – represents the essential condition for each penalty to capitalize its functions with maximum efficiency, and in this way, by preventing the perpetration of other offences to be able to achieve the goal of both penalties and penal policy.

The forms of penalty’s individualization. The individualization of the penalty is known under the following forms: – legal – judicial or judiciary – administrative, as the individualization is done during the stages of penalty’s elaboration, infliction and execution. As far as the legal individualization is concerned, it has been shown in the judiciary literature that, within its framework, the adjustment of the penalties is done by the legislator in the very moment of penal law’s elaboration, by means of establishing penalties’ type and limits and by means of the extent to which they can be modified under the influence of the extenuating or aggravating causes. [1] In our opinion, what is currently meant by the phrase “legal individualization” is in its essence not a proper individualization. We state that the individualization of the penalty can only partly be

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Knowledge Based Organization 2008 International Conference administrative because this wouldn’t exist if there were not the judiciary one, which, in our opinion, represents the only real individualization of the penal law sanctions. Law only acts on some abstract entities, whereas individualization is related to a precise offence, to a precise offender; this is why, regarding these, only the judge and the qualified authorities can ascertain facts; what is done by the legislator is only the organization, by means of law, of the judiciary and administrative individualization; he can only place the legal framework of the institution at judges’ and qualified authorities’ disposal, without performing himself any process of individualization. However, the only authority qualified to perform this activity is the judicial authority. The judiciary or judicial individualization of the penalty is done by the court and it is materialized by inflicting the offender the precise penalty for the offence he/she committed, according to the offence’s degree of social risk, the danger represented by the offender, the extenuating or aggravating circumstances in which the offence took place or which characterizes the offender. The adjustment of the penalty, performed by the court, is done according to the general criteria of legal individualization established in art. 72 Romanian Penal Code from 1968. Taking into account both these general criteria and the circumstances in which the offence was committed, the court will establish and inflict the penalty which is to be executed by the convict. According to its type, the penalty inflicted by the court is to be executed: – in a place of imprisonment, in the case of the liberty privative penalties; – in a rehabilitation center, in the case of the under aged; – at the workplace, in the case of the penalty at the workplace; – within community, in the case of non-privative penalties, such as the suspension on probation of penalty’s execution, the suspension of penalty’s execution under surveillance, the work in the community’s benefit, etc., according to the legal establishments form the positive penal law system specific to each country individually. The court can thus stop at this stage of penalty’s infliction, if they

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Knowledge Based Organization 2008 International Conference consider that the purposes and the functions of the penalty will be performed by means of the execution regime according to the type of the inflicted penalty. However, by means of law, there is also the possibility that the court deals with the way penalty is to be executed, therefore they individualize the execution of the punishment. The court can establish the penalty to be executed in a different way from that typical to its nature, by executing imprisonment at the workplace or in a military prison, or they can even dispose the penalty’s suspension on probation or the suspension of penalty’s execution under surveillance.

General criteria for the individualization of the penalty The individualization criteria are those categories of data and elements by which the court must guide during the activity of judiciary individualization of the penalty, according to the law. By general criteria for the individualization of the penalty we understand the requirements (rules) established by the law that the court must obey when inflicting each penalty, for each penalty individually. In the Russian doctrine, the general criteria for the individualization of the penalty are those circumstances by which the court must guide when individualizing the penalty for every offender. From another point of view, the criteria for the individualization of the penalty are those categories of data and elements by which the court is obliged to guide in the activity of judiciary individualization of the penalty. [2] As law does not establish exhaustively the criteria which lay at the basis of penalty’s individualization, the issue which occurred within the doctrine is that of the priority that should be given to the retribution or prevention (and here the issue between general and special prevention occur) during the stage of judiciary individualization. [3] In this way, art.33 from the Italian Penal Code establish as individualization criteria: the nature, the type, the circumstances, the object, the time, the place and any other ways of action, the gravity of the prejudice or of the occasioned risk, the degree of guilt, the reasons

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Knowledge Based Organization 2008 International Conference which determined the perpetration of the offence, the character of the offender, penal antecedents, lifestyle, individual, family and social conditions. According to the length of their field of activity, the individualization criteria are general and special. The former must be taken into account, without exception, when performing any process of judiciary individualization. The other criteria become point of law only when establishing or inflicting the penalty in some particular cases. The general criteria for the individualization of the penalty are established in chapter V, title III, art. 72 Romania Penal Code from 1968, General Section. These are as it follows: – the establishments of the general section from the penal code which can refer to the infliction of the penal law in time and location, the way the offence was perpetrated, the contribution brought to the perpetration of the offence (author or participant), the conditions of the penal call into account, etc. – the limits of the penalty, established in the special section, which usually represent the framework within which the penalty will be established; – the degree of social risk represented by the offence, resulted from the manner and the means of offence’s perpetration according to the importance of the injured social value and the consequences that were caused or might have been caused; – the offender; the court takes into account the offender’s psycho- physical development, the professional training, the life conditions, his/her attitude in society, family, at the workplace, the attitude he/she has after perpetrating the offence towards the penal prosecution authorities; – the circumstances which extenuate or aggravate the penal call into account: those states, situations, conditions, data of the reality which are not comprised in the aggravating content of the offence and which, by their accidental connection to the offence or offender, influence the degree of social risk and represented by the offence and by the offender and determines an extenuation or aggravation of the precise penalty. [4] The individualization criteria stipulated in art. 72 Romanian Penal

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Code from 1968 must be taken into account when establishing and inflicting all the penalties, principal and complementary. They will help the court determine the quantum of the principal penalty, estimate – in the cases stipulated by law – if it is the case to add a complementary penalty, and, finally, establish the duration of this penalty. According to art. 72, paragraph 2, Romanian Penal Code, when law stipulates principal alternative penalties for an offence, the individualization criteria must carry out a double function, in other words, they are to be used to perform two successive operations. As some standard penalties can have in their precise performance, social risk degrees of a large diversity, so that the judges dispose of the most adequate repressive means for each case individually, the penal law sometimes stipulates the possibility of alternatively inflicting two principal penalties. Alternative penalties seem to be “a special form of the relatively determined penalty comprising two or more types of penalties, each of them being relatively determined.” [5] Therefore, in order to be able to inflict a penalty which matches the offence’s precise social risk and the danger represented by the offender, the court must first decide on one of the two alternative penalties, taking into account all the individualization criteria, including the extenuating and aggravating circumstances, if they exist. Once one of the penalties has been chosen, the court must leave aside the other, as if it had not been stipulated by the law, and proceed its individualization, taking into account the same criteria. We can find similar regulations in art. 75 Moldavian Republic’s penal Code, entitled “General criteria for the individualization of the penalty”, according to which: (1) The person who is found guilty for committing an offence is inflicted an equitable penalty within the limits established in the Special Section of the code and in strict accordance with the stipulations of the General Section of the code. When establishing penalty’s category and duration, the court takes into account the gravity of the offence, its motive, the character of the offender, the circumstances of the cause which extenuate or aggravate the call into account, the influence of the penalty on offender’s correction and reeducation, as well as, his/her family’s living conditions.

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(2) A more severe penalty, from the alternative penalties stipulated for the offence, is established only in case an indulgent penalty does not secure the purpose of the penalty. Concerning the individualization of the penalty in the Moldavian Republic, it is worthy of appreciation the Decision of the Supreme Court of Justice from The Moldavian Republic, no. 16 from 31st May 2004, regarding the application of the principle of penalty’s individualization in the judiciary practice, from which we extract the following guiding ideas: [6] The general criteria for the individualization of the penalty are those requirements established by the law, by which the court must guide when inflicting each penalty, for each offender individually. The penal law offers the court a large possibility of putting into practice the principle of criminal penalty’s individualization. When establishing the penalty, the court must take into account the following criteria: a) the penalty is inflicted within the limits stipulated in the Special Section of the Penal Code; b) the penalty is inflicted in strict accordance with the stipulations of the General Section from the Penal Code; According to the principle of penalty’s individualization, the court inflicts the penalty taking into account the character and the gravity of the offence, the motive and the purpose of the committed offence, the character of the prejudice and the amount of the damage caused, the circumstances which extenuate or aggravate the call into account, penalty’s influence on the offender’s correction, as well as his/her family living conditions. When the circumstances which extenuate or aggravate the call into account (art. 76-77 Penal Code) are indicated in the stipulations of the Special Section of the Penal Code as qualitative symbols of the offence, they cannot be taken into account when establishing the penalty for this offence. The courts must remember the fact that the enumeration of the extenuating circumstances is not limitative. Concerning other circumstances, there can be taken into account the perpetration of the offence as a result of a juncture, the existence of

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Knowledge Based Organization 2008 International Conference special merits in the past, the financial support offered to the parents who are unable to work, the offender is the only one in the family, who is able to work. In penal cases where under aged are involved, the courts must not allow the deprivation of liberty for the offences that do not represent increased gravity, if correction and reeducation can be performed without isolating them from society. When establishing the penalty for under aged persons, it is necessary to take into account the circumstances stipulated by art. 475 PC, which are to be established in the cases concerning the under aged. Paragraph 4, art. 78 PC stipulates that, if there is a juncture of the extenuating and aggravating circumstances, when individualizing the penalty the court does not have to establish a minimum or a maximum penalty stipulated by the Special Section of the Penal Code. The perpetration of an offence by a person who previously perpetrated another offence cannot be considered an extenuating circumstance, if, concerning the previous offence, the prescription term for the call into account expired, if the penal record was cancelled or if the law discharged the action perpetrated in the past, as well as, in case the person was discharged with the penal call into account, according to the conditions stipulated by the penal law. When inflicting the penalty for an uncommitted offence (preparation or attempt) the court must take into account the circumstances by virtue of which the offence was not committed. It is to be taken into account that the stipulations of art. 81, paragraph (2) and (3) PC limit to a certain extent the penalty for this uncommitted criminal activity. The duration of the penalty for the preparation to commit an offence which does not represent a repetition cannot exceed half the maximum of the most severe penalty stipulated in the article from the Special Section of the Penal Code, but for the attempt to commit an offence which does not represent a repetition it cannot exceed three fourths. Life imprisonment cannot be inflicted for preparation and attempt to commit an offence. The reduction of the penalty for uncommitted offence is based on the fact that the preparation and the attempt are less

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Knowledge Based Organization 2008 International Conference harmful than the committed offence. The disrespect of these requirements of the law can be considered as establishing a penalty within other limits than those stipulated by the law. When solving the issue concerning the establishment of the penalty in case of offence’s repetition (art. 82), the courts investigate the circumstances which confirm the existence of the repeated offence (art. 34 PC), resulting from the records which were not cancelled for the offences committed on purpose. In this case, there must be applied some cancellation rules for the penal and rehabilitation antecedents, stipulated by art. 1 11 and art. 1 12 PC. According to art. 34 PC, the recidivism takes place when the offence, committed on purpose, for which the person is convicted by final verdict no matter if the offence was not consumed, or for preparation and no matter if the person was the author or the accomplice to one of these offences. If the penalty is established within the limits settled in the sanction of the corresponding article from the Special Section of the Penal Code, then, in the descriptive section of the sentence there has to be made a reference to art. 82 paragraph (1) PC and the duration of the penalty for recidivism must match the requirements of paragraph 2 of the same article. When inflicting the penalty in case of recidivism, dangerous recidivism and very dangerous recidivism it has to be taken into account: a) the number of offences previously committed; b) their character, gravity and consequences; c) the circumstances by virtue of which the penalty for the previous offence has not reached its goal: d) the character, the gravity and the consequences of the new offence. According to the law, the courts do not have the authority of inflicting the sentence with the conditioned suspension of penalty’s execution to the persons who committed very serious offences, exceedingly serious offences, as well as in case of recidivism. (art. 90, paragraph 4, PC). The courts must secure the infliction of severe measures to the persons who committed serious, very serious and

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Knowledge Based Organization 2008 International Conference exceedingly serious offences, especially to those who are members of organized groups or criminal organizations. The presidents of the courts are recommended to analyze systematically and generalize the practice of penalty’s infliction by courts, taking into account the structure of the criminality and of the criminal records. When examining the penal case depending on appeal it is necessary to be minutely verified if the inferior courts respected the requirements of the law when inflicting the penalties. It is also necessary that the eventual errors occurred are cleared. As we discussed above, there is no legal definition of penalty’s individualization, the existing definitions being doctrinarian. In our opinion, although there is not a great difference among the existing doctrinarian definitions, they do not express clearly and undoubtedly the most important institution of the penal law.

References [1] Daneş, Şt., Papadopol, V., Penalties’ judicial individualization, Third Revised Edition, Bucharest, Judicial Publishing, 2005, pp. 79-83. [2] Barbăneagră, A., Berliba, V., Gheorghiţă, M., Carpov, T., Barodac, A., Ulianovschi, X., and others, The Penal Code of the Moldavian Republic, Commentary, Kichinev, Arrow Publishing, 2003, pp. 183-184. [3] Rotarii, C., The basis of the Penalty-Modern Theories, Bucharest, C.H. Publishing, 2005, pp. 332-333. [4] Mitrache, C., Mitrache, Cr., Romanian Penal Law, the General Section, Third Revised and Enriched edition, Bucharest, Judicial World Publishing, 2004, pp. 359-360. [5] The Plenum of the Supreme Court, The resolution of guidance no. 1/1956 from the collection of resolutions of the year 1956, p. 20 [6] Published in the Official Report of the Moldavian Supreme Court of Justice, no. 6, 2004, p. 22.

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THE INFLUENCE OF THE EUROPEAN CONVENTION TO PROTECT HUMAN FUNDAMENTAL RIGHTS AND LIBERTIES ON ROMANIAN CONSTITUTION

Boca Vasile

Turceni Energetic Complex Ltd., Târgu Jiu [email protected]

Abstract In every corner of the world, people stubbornly claim their political and civil, economical social and cultural rights. Establishing peace, security, development and progress is unimaginable without ensuring the fundamental rights of the individual. This work is conceived as a synthesis of the ample problems of fundamental rights, liberties and duties of an individual produced by the influence of the European Convention on Romanian Constitution. By the vast area of the problems investigated it has been emphasized the new Constitution of Romania determined by the rules, principles with a general character, considered indispensable for understanding the entire problems of fundamental rights, liberties and duties but also the dispositions which reflect the concern for respecting human rights.

Keywords: protect human, human rights, liberties, Romanian Constitution

Although the problems ’Human rights’ seems to be a matter of the 21st century, it is not completely new in humanity history. The idea of ‘rights of a person’ has roots from the ancient times. Although, the idea of natural equality between people was expressed by Aristotle- the famous student of the well-known Plato –

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Knowledge Based Organization 2008 International Conference in its great work ‘Politics’: ‘Only by law someone becomes a slave or he is free, but by nature people are all alike’. [1] Investigating the relation between the European Convention as a document of international and internal right, means emphasizing the way in which the European Convention is introduced in Romanians’ internal right, its rank in relation with the internal law, the way the dispositions of the European Convention are quoted in the content of sentences passed in the national instances, but also the authorities which ensures their official interpretation. The new Constitution of Romania coming into effect as a result of the referendum from December the 8th 1991, has answered the necessity of realizing the fundamental juridical frame of the evolution to democracy, liberty and human dignity, to build up a state of law, based on political pluralism, free elections and ensuring the firm respect of human rights and liberties. The period which has passed since then was an agitated one, being characterised by elaborating and adopting some new regulations in almost every field, by creating some new institutions specific to the state of law, but also by ‚a powerful political effervescence, ordinarily, of course, as everywhere else after abolishing a totalitar regim’. [2] In this context naturally appeared the necessity of revising the Constituion made, in 2003 – that means adapting its provisions to the new realities of the historical moment: adapting its constitutional dispositions to the standards and exigency of UE and North-Atlantic Alliance, comprised in the basic documents of these organisations; some important problems aiming governing the country referring to which the constitutional texts could not give a precise answer; consolidating the role of political parties, authorities of civil society, ‚finding some new modalities more accurate to ensure accomplishing the citizens’ rights in the spirit of European documents, documents which have a fundamental role’, between which there are emphasized the European Convention and the Social European Carta; different economical grounds (such as, ensuring some guarantees corresponding to foreign investors, fully guaranteeing the rights of property etc.).

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The human fundamental rights, liberties and duties constitute, by excellence, an institution of the constitutional right, and as follows, naturally, there are comprised in the Constitution body. [3] Such previsions are comprised in the First Title ‘General Principles’ and, especially, in the Second Title ‘The Fundamental Rights, Liberties and Duties’, but also in many other dispositions of the Constitution, which implicitly refer to fundamental rights and liberties of a person. This assembly of provisions gives the Constitution the character of a modern fundamental law, coherent, which promotes [4] and protects to a maximum level human rights in our country, according to the European standards whose headquarters is the European Constitution. Even from art.1 align. 3 from the Constitution, there is underlined the fact that ‘Romania is a state of right, democratic and social, in which human dignity, citizens’ rights and liberties, free development of human personality, justice and political pluralism represents supreme values, in the spirit of the democratic traditions of Romanian people and the ideals of the Revolution from December 1989 and are guaranteed’. [5] Among the general principles inscribed in the First Title, headed, there are the provisions according to which: – national sovereignty belongs to Romanian people, who practise it through its representative authorities and through referendum. This principle has been recognized by all the democratic constitutions after the French revolution; – Romania is the common and indivisible country to all its citizens, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, fortune or social origin; – The state recognises and guarantees people who belong to national minorities the right to keep, develop and express their ethnic, cultural, linguistic and religious identity. The conclusion is that the right to an identity for national minorities is recognized and guaranteed by Romanian state, and that people and not compact communities benefit by it.[6];

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– The pluralism in Romanian society is a condition and a guarantee of constitutional democracy, thus being definitely recognized the pluralist political system. The importance given to the Romanian constitutional legislative to the problems of human rights is emphasized by the fact that, after the first title which synthesizes the principles which govern the entire constitutional matter, then the Second Title, having as matter the fundamental rights, liberties and duties. [7] Thus, in chapter I of the second Title, under the name of ‘Common Dispositions’, there are written some rules of an increased importance, true principles with general character, considered indispensable for understanding the entire problems of fundamental rights,, liberties and duties, as follows: – the citizens benefit the rights and liberties established by Constitution and by other laws and, in the same time, they are devolved upon the obligations stipulated by them; – the citizens are equal in front of the law and the public authorities, without privileges and discriminations; – practising the rights and fulfilling the duties must be done, under the conditions of the state of right, on the ground of the law, nobody being above the law; – Romanian citizens being abroad are under the protection of the Romanian state; – foreign citizens and stateless people who live in Romania are under the general protection of people and fortunes, guaranteed by the constitution and by other laws; – the Romanian citizen cannot be extradited or expelled from Romania. By derogation of the dispositions of the article 19 align. 1, Romanian citizens can be extradited on the grounds of international conventions to which Romania is part of, under the conditions of law and on the ground of reciprocity; – foreign citizens and stateless people can be extradited only on the grounds of an international convention or under the conditions of reciprocity. Moreover, according to the provisions of article 19 align. 4 extradition or expulsion is decided in the court, aspect which can eliminate the arbitrary or discriminatory measures, taken at the level

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Knowledge Based Organization 2008 International Conference of some administrative authorities, which could aim at a foreigner or a stateless person; – the constitutional dispositions regarding the rights and liberties of citizens will be interpreted and applied according to the universal Declaration of human rights, to the agreements and the other treaties in which Romania is part of, in conclusion with the European Convention too. Romania is part of the European Convention. If there aren’t concordances between the agreements and treaties regarding the fundamental rights of a person, to which Romania is part of, and the internal laws, the international regulations are prior, except for the case when the Constitution or the internal laws contain more favourable dispositions. The extremely important provisions of the article 20 from Romanian Constitution referring to the international treaties regarding human rights ensures an opening for Romania towards democratic Europe, this process thus being guaranteed by Constitution. So, the constitutional dispositions mentioned establish a modern solution which we also find in the constitutions of other European states with democratic traditions, such as France and Spain. The text of the article 20 comprises two rules of a great importance and actuality, which refer to putting into practice the constitutional provisions regarding fundamental human rights and liberties. The first rule is in the way of interpreting and applying the citizens’ rights and liberties according to the international treaties to which Romania is part of (it is about any kind of international treaties which contain dispositions referring to human rights, specialised or not, multilateral or bilateral, European universal or regional). The second rule grants priority to the international regulations on the field of human rights, the ones comprises in the treaties approved by Romania, in the situation in which there would not be certain concordances between them and the internal regulations. It is thus established the thesis of the priority of international right against the internal right. From this rule , in a logical way, can be considered an exception

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Knowledge Based Organization 2008 International Conference the case in which the Constitution or the internal laws contain more favourable dispositions than the ones comprises in the international treaties referring to human rights to which Romania is part of. As a consequence, in the case of a conflict between the provisions of the European Constitution and the ones of some internal laws which regards fundamental human rights and liberties stipulated by the European Convention, they will revise the dispositions of the latter one, by eliminating the ones opposite to it, comprised in the internal rules. Conversely, if the internal regulations comprise provisions referring to the rights inserted in the European Convention more favourable than the ones it stipulates or than the way in which they were interpreted by the European Court, the internal regulations will be applied. So, the article 20 aligns 2 from Romanian Constitution is applied only in the situation in which the internal rules regarding the human rights stipulated by the European Convention (both the constitutional ones but also the ones comprises in the internal laws) are more restrictive than its dispositions, but not conversely.[8] The Second Chapter from the Second Title of the Constitution also comprises dispositions which reflect the care for the fundamental rights and liberties. Under this aspect, Romanian Constitution establishes equality in rights of Romanian citizens, without distinction of race, colour, sex, language, religion, political opinion or any other opinion, national or social origin, fortune, birth or based on any other circumstances. In the fundamental law there are established a lot of rights and liberties which could be classified in many categories.[9] A first category comprises the social-economic and cultural rights, which means those rights which ensures cultural and material development of a person, letting him\her to participate to social life. In this category there are: the right to work and to social protection of work; the right to learn; children’s and young people right to have ensured a special regime of protection and assistance in realizing their rights; the right to protect health; the right to a private property; the protection of people with disabilities; the right to a healthy environment; the access to culture. Another category of rights which Romanian Constitution

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Knowledge Based Organization 2008 International Conference establishes regards the exclusively political rights which, by their content, ensure the participation of all citizens to ruling the state, to governing or in the local authorities of public administration, either in the European Parliament (under the conditions of Romania’s adhesion to EU), that is: the right to vote; the right to be elected; the right to be elected in the European Parliament. Then the social-political rights, that means those rights which can be practiced by citizens, at their choice, both regarding ensuring their material development, but also in the purpose of their participation to state leading, such as: the liberty of conscience; the liberty to express; the liberty of meetings, the right to associate; the right to strike; the secret of mail; the right to information. We also mention the inviolabilities, which mean those fundamental rights which ensure life, the possibility of moving of an individual, his physical existence, but also his residence. Among them there is: the right to life and physical and psychical integrity; the right to individual liberty and safety of a person; the right to defense; residence inviolability; the right to free circulation; the individual’s right to decide for himself and the right to protect his intimate life, his family and private life; the right to consolidate a family. The last category represents the rights-guarantees, that is the right to petition and the right of the injured one in a right of his own by an illegal document of an state authority to request the competent authorities, under the conditions stipulated by law, the document annulment and the reparation of the damage. In the Fourth Chapter and the last of the Second Title, Romanian Constitution establishes, for the first time in Romanian juridical system, the institution of People Defender, which has as fundamental role defending the citizens’ rights and liberties; in this purpose, ex officio or at the request of injured people injured in their rights, notices or verifies the facts of breaking the fundamental rights and liberties, informing the competent authorities in what regards reestablishing the legality and the caused prejudice. In the same time, the public authorities are obliged to ensure the People Defender the support necessary in practicing its attributions. According to article 58 align. 3 from Romania Constitution, the

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Knowledge Based Organization 2008 International Conference organization and function of this institution is established by organic law.[10]

References [1] Aristotle, Politics, Bucharest, Iri Press, 2001, p. 41. [2],[6] Constanţa Călinoiu, Victor Duculescu, op.cit., p. 267, p. 146, p. 154; [3] M. Constantinescu, I. Deleanu, A. Iorgovan, I. Muraru, F. Vasilescu, I. Vida, Romanian Constitution, comented and adnotated, Bucharest, Regia autonomă „Monitorul Oficial”, 1992, p. 35. [4] K. Vasak, Les dimensions internaţionalei des droits de l'homme, Paris. [5] Romanian Constitution. [7] Ioan Muram, Constituţional Right and şi Political Institution, Echological University of Bucharest, 1990, p. 199; Constanţa Călinoiu, M Victor Duculescu, op.cit., p. 149. [8], [9], [10] Predescu Ovidiu, European Convention of Human Rights and Romanian Penal Right, Bucharest, Lumina Lex Press, 2006.

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MEANS OF COMPENSATING THE VICTIM OF AN OFFENCE

Boca Vasile

Turceni Energetic Complex Ltd., Târgu Jiu [email protected]

Abstract Even if the problems “means of compensating the victims of an offence” seems to be a matter of the 21st century, still it is not absolutely new in the history of humanity. Thus, the system of protecting human rights constitutes not only a reality but also a finality of the entire human activity, of course of the democratic and progressive one. That’s where the proper attention given almost everywhere in the actual world comes from, given to the theoretical and practical problems referring to human rights protection, to protection and fundamental respect of the human person. Conceived as a theoretical commentary with practical application this work emphasizes the problems of protecting human rights by the possibility of compensating the victim of the offence taking into account the regulations of the constitutional and civil right on an internal level and in the same time the regulations of the international right.

Keywords: victim, offence, human right

Romanian Constitution stipulates and guarantees the fundamental rights, liberties and duties of citizens including, the right to life, physical and psychical, the liberty of an individual, of the residence, intimate life, family and private, the right to protecting health, the right to work and to protect work, the right to repair the damage caused by the state authorities etc. [1] 502

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The fundamental law of the country stipulates that the constitutional provisions regarding the rights and liberties of citizens will be interpreted and applied in concordance with the Universal Declaration of Human Rights, with the agreements and other treaties to which Romania is part of. In the same time the Constitution imposes, next to the state obligation and a person’s honor, the obligation of a citizen in accomplishing the constitutional rights and liberties not to violate other people rights and liberties. Romanian Constitution outlines by article 30 align. 6 the general frame of protecting a person’s private life, stating that the liberty to express is inviolable, but by practicing this liberty cannot be prejudiced neither ‘honor, private life of a person nor the right to own image’. According to Romanian Civil Code, repairing the damages follows the rules of civil punishable civil responsibility, which constitutes the common right, as long as the illicit action causing damages has been committed ‘ex contractu’. The article 998 stipulates that ‘any action of a person that causes another person a damage, forces the one by whose mistake it occurred to repair it’. [2] Because the legislative does not distinguish, the text must be interpreted in the way that it refers to any kind of prejudice, inclusive the no patrimonial one. As a result of committing the offence, the entire attention of the society is oriented towards the offender or towards finding him, and the victim often remains outside the attention. The person who caused the prejudice is rejected by the society, and feelings of pity for the victim occur, suspicions or malice. Previously, the victim was treated only as a subject of the indictment part in the penal trial. According to some researches more than half of the victims in the world are not satisfied by the police attitude towards their complains.[3] In present, it is unanimously recognized the fact that carrying out the penal justice must be equitable not only towards the offender but also towards the victims of the offence. A lucid argument of this

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Knowledge Based Organization 2008 International Conference tendency is adopting by the General Meeting ONU the Declaration regarding the fundamental principles of justice among the victims of the offence and of the abuse of power. In many countries have been elaborated normative documents with the purpose of entirely insuring the victims’ interests. The damage caused to the victim can be elementary and secondary. The elementary damage is caused directly by offence and the secondary one is expressed by repeated causing prejudice which appears in the result of the informal reaction at the first prejudice caused. By the notion of informal reaction we must understand the behavior of the people in the victim’s environment, his family, and his friends and also the behavior of the official representative in the process of controlling the criminality that means the police officers, the public prosecutor, and the judges. The Declaration mentioned above grants a great attention to the system of measures and means to protect the victims, it establishes the victim’s access to justice, the procedure of judging the cause, the equitable behavior towards the victim, it stipulates refunding, compensating, it is also given the definition of the notion of victim of an offence. The purpose of the Declaration is established in pct. 3 of the Resolution 40\34 of the General Meeting ONU and it consists in the attention granted to the states of the international community in order to ensure the equity and give help to the victims of the offence. It is recognized the fact that the systems of law of countries are diverse, reason for which it is necessary to elaborate some suggestions of implementing these provisions. In our opinion, these suggestions must refer to the problems which appear at the request of the programs of helping the victims, especially 1). The procedure of elaborating the programs of helping the victims at a national level, 2). The standards of the granted services, 3).the characteristics of the traumatic appeared in the process of causing prejudice, 4). The participation of the victim to committing the justice, 5). Refunding and compensating the caused damages. In the same time we mention the fact that there are some provisions missing both at a national level but also at the international

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Knowledge Based Organization 2008 International Conference one referring to office workers who, by virtue of their tasks, they co- work with the victims of offences, in our opinion it is necessary to elucidate the following moments: 1). The interconnection between the activity of the authorities of justice and the system of assisting the victims, 2). The prosecuting activity in assisting the victims, 3). The role of the judging instances, 4). The role of the office workers of the institutions which execute the sentences in the process of assisting the victims, 5). Insuring the victim’s rights at a political and juridical level. For a certainty, the solutions and the methods to realize the problems mentioned above will be different from state to state because of the system of law, general and juridical culture and the national specific. It is important the fact of respecting the fundamental rights and liberties of the offender and of the victim, but also respecting the society’s interests. The provisions of the penal trial legislation must stipulate not only the relations between the state and the offender, but also between the offender and the victim, but also between the state and victim. In present, the system of penal justice must ensure the balance of the legal interests of three parts – the society (community), the offender and the victim. The most appropriate solution in this way is, as mentioned, the justice of reestablishing, which is capable to realize the balance of the parts mentioned above. [4] We agree that the problems of retrieving the damages in the penal trial must be based on the principle ‘loaning the rules from the civil law and the civil trial law’ by the penal trial. The Code of Criminal Procedure stipulates that ‘the rules of the civil procedure are applied if they do not act contrary to the principles of the penal trial and if the rules of the penal trial do not stipulate such regulations’: also, it is stipulated that ‘the decision regarding the civil action is adopted considering the rules of the civil law and other fields of law’. Thus, we arrived to the basis problem of justice regarding the victims: retrieving and compensating the damage. It must be mentioned that the notions of ‘retrieving’ and ‘compensating’ are used in the Declaration mentioned above as distinct notions. We can conclude that retrieving is the action of returning, coming back to the initial situation, and the compensation is replacing something that is

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Knowledge Based Organization 2008 International Conference consumed or spent by somebody else (equal as value, that means the action to recompense adequately. According to that Declaration, retrieving must include returning the property or the payment for the caused damage or prejudice, covering the expenses emerged in the result of becoming a victim, granting some services or reinstatement. The obligation given is due to the offender or third people, who are responsible for his actions; as a beneficiary of the obligation is the victim, his family. In the case when retrieving is not possible, then it comes to compensation as a way to repair the damage. If the compensation cannot be fully perceived, the state must take measures to grant financial compensation: a). the victims who were caused important corporal hurting as a result of serious offences or they had their health deteriorated very much; b). the families and the ones who were supported by the people who died or became physically or psychically incapable as a result of being victims. The damage caused can be repaired from many sources: compensating the prejudice by the state; repairing the damage by the offender; the payment of the ensured amount of money in the case when the victim is the ensured one; on the way of voluntary pecuniary help given by the community. The problem of repairing the damage caused to the victim by offence is an essential one in carrying out the justice. Along the same line, we underline that, the European Convention for compensating the victims of violent offences, from November 24th 1983, it stipulates that the responsibility of the state to repair the damage, but only in the case when it cannot be repaired by other sources and only for the next categories: a). people who, as a result of mentioned offences, have been caused damages to health or physical state; b). people who were supported by the victim who died as a result of such offences. Any state can stipulate for the entire compensation or for its elements a superior limit and a minimal limit above\under which no compensation will be given. This compensation must include, depending on the situation, the following parts of the prejudice: loosing the income, expenses for medicaments and hospitalizing, expenses for funeral and alimony for the people supported by the

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Knowledge Based Organization 2008 International Conference victim. The state can stipulate a period of time in which the victim can hand in an application for having the prejudice repaired, that means to exercise the right to compensation granted from the state. We consider welcomed the fact that the Penal Code stimulates voluntary repairing by the offender the damage caused by including extenuating circumstances: preventing by the guilty one the damaging consequences of the committed offence, voluntary repairing the damage caused or removing the damage caused. Preventing by the guilty one the damaging consequences of the committed offence imply taking some actions (non-actions) in order to avoid the prejudice that has already been produced. Voluntary repairing the caused damage can happen after committing the offence and consists in the fact that the offender, being aware of the consequences of his behavior, retrieves, voluntary, the injured part or legal person the material damage caused. [5] By material damage we must understand also the expenses related to treatment, buying necessary medicaments for the victim. In the same time the damage is repaired, the moral prejudice can also be compensated. By removing the damage caused we must understand the actions made towards neutralizing and eliminating the negative consequences resulted from the offence, such as: the reparation of an object, its restoring etc. A controversial problem is compensating the moral prejudice. The size of the moral prejudice is determined by the judicial instance according to the character and gravity of the psychical and physical suffering caused to the injured person, by the degree of guilt of the author of the prejudice, if the guilt is a condition of responsibility, and the measure in which this compensation brings satisfaction to the injured person. When evaluating the quantum of the material compensations of the moral prejudice, the judicial instance takes into consideration the physical suffering of the victim, the agreement or aesthetical prejudice, loosing life hope, loosing trust in conjugal fidelity, loosing honor by defamation, psychical suffering caused by the decease of close relatives etc. the character and the gravity of physical or psychical suffering are determined by the judicial instance, taking into

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Knowledge Based Organization 2008 International Conference consideration the circumstances where the prejudice has been caused, but also the social statute of the injured person. We must mention that when examining the application for repairing the moral prejudice the judicial instances don’t always determine the size of the compensation on the basis of the mentioned circumstances.[6] In the case when the size of the damage influences framing the actions, establishing the punishment for the condemned and finding solutions for other issues that must be examined when giving the sentence, the judicial instance cannot give a verdict for the civil action. Along this line, we mention that, according to the concrete circumstances of the cause, to the degree of guilt and the financial state of the condemned, nut also to the victim’s behavior, the instance is in title to reduce the size of the damage which must be recovered, showing in the sentence the reasons which led to such a sentence. It is not permitted decreasing the damage which must be compensated if it has been caused by offence committed for a financial interest. Referring to the modality of repairing the prejudice, we want to emphasize that civil legislation contains two procedures a little different: the first one is applied in general cases, that means to every case except the ones from the second procedure, the second – the prejudice caused by damaging the corporal integrity or by other damage brought to health or by decease. The modality and the type of compensations is established by the instance after an application from the victim. The circumstances of the cause being taken into account, another modality can be stipulated, but only from serious reasons. The modalities of repairing the prejudice by civil action (in the penal trial or outside it) are: a). giving an object of the same kind and the same quality; b). the reparation of the object which has been damaged; c). entire compensation by pecuniary equivalent or other services. The beneficiary of the reparation of the damage is the victim (the injured part, the civil part), no matter if the civil action has been forwarded by his representative or y the prosecutor. In some cases, beneficiary of the recovery of the prejudice can be: 1). The possessor

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(the one who transports, deposits etc.) where the goods were, the materials stolen, ruined or damaged. In this case, the civil action can be forwarded by the owner; 2). The insuring company which paid the compensation for the ensured goods under the limits of the amount of money paid; 3). The organization which paid the victim’s disease receipt as a result of the criminal actions; 4). The security service extra-departmental of the authorities of internal business, if the room where the theft was committed was secured by them; 5). Any person who repaired the prejudice caused by another person, if the law or the contract does not stipulate that. In this way, we mention the right of the state to receive compensation from the offender, in the case when the state repairs the victim’s prejudice. At the same time, the state can repair the prejudice also by insurances. According to the national legislation (Civil Code, the Law regarding insurances etc.), it is permitted the insuring activity, which consists in a system of relations meant to protect personal an d patrimonial interests of the natural and legal person by making pecuniary funds from the account of the insurances, for which the insuring person takes the obligation to pay the insured amount of money in case of the insured case happens.

References [1] Romanian Constitution. [2] Civil Code –All Beck Press, 2004. [3] Graene R.N. (ed). Global Report on Crime and Justice, Oxford University Press, 1999, p.281 [4], [5] Gh. Gladchi, Means of Compensating the Victim of an Offence, Annals Scientific. Juiridical Sciences, 2005, no. 8, p. 422. [6] The Plenum Decision of the Supreme Court of Justice no. 5 from April 17th 1995, with the changes introduced by The Plenum Decision no.38 from December the 20th 1999. – In: Collection of decisions of the Plenum of the Supreme Court of Justice (1974-1999)-Chişinău: Museum,2000, pp. 111- 115.

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THE PRACTICING OF THE INDIVIDUAL APPEAL RIGHT BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Stoian Mirela Alexandra

The Law Court of Târgu-Jiu [email protected]

Abstract Romania’s accession to CEDO concedes to the citizen from the national territory, which is under the Romanian state’s jurisdiction, the right to appeal to the Court from Strasburg to insure the observance of the fundamental rights and liberties, guaranteed by the Convention and the Additional Protocols. After the exhaustion of the inner recourse to legal proceedings, the claimant who considers himself injured in one of his rights, guaranteed by the Convention and the Additional Protocols, can appeal to the European Court of Human Rights. The main characteristic of the European Convention is to state the rights where the titular are individual persons in the sense of article no. 34 from the Convention, rights that are susceptible to make the object of a control with a juridical character, international or even national.

Keywords: human rights, European Court, CEDO

1. Introduction The dispositions of article n0.34 from the Convention, give the possibility to the natural persons, non-governmental organizations or to any other group of private persons who pretends himself victim of a trespass of a right guaranteed by the Convention or the Additional Protocols, to appeal the Court from Strasbourg. Through the demand to individual appeal, the claimant addresses himself to the European Instance as a result of a trespass by the

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Knowledge Based Organization 2008 International Conference defendant state’s authorities of a right guaranteed by the Convention, asking to the European Instance to pronounce a judgment which establishes the denounced trespass and to dispose always the trespass’ cessation and the reparation of the suffered damage. The right of an individual appeal, before the Court, represents the Convention’s main innovation and it is the cause of the success imagined by the Convention’s authors [18]. Without being recognized to any other person of private law the possibility to express a demand to individual appeal, the individual appeal, had joined the other international treaties and conventions in matters of fundamental rights, which remained to a stage of simple objectives and declarations assumed by the states, without having the real possibility to check their observance. The individual appeal, that allowed to every person to demand the examination of his situation, also the reported success by some persons, who addressed themselves to the European Instance, conducted to a gradual increase of the Court’s role and importance [14]. The individual appeal can be defined as being the juridical possibility, recognized to the holders of the fundamental rights and liberties established by the Convention, to demand to a jurisdictional body-The European Court Of Human Rights- to establish the trespass of a right guaranteed by the Convention, by a contacting state, under the jurisdiction of which it is and to dispose the that trespass’ cessation, eventually with a compensation payment [1].

2. The state’s obligation to not impede the effective exercise of the individual appeal right Article no.43 the final part from the Convention, disposes that the contracting states ,,engage themselves to not impede through any measure the effective exercise” of the individual appeal right. In a decision of a concrete case[1], the ex Committee established with a principle value that ,, the interdiction of any interference over the right to an individual appeal right confers the claimant a right of a procedural nature that, the same as the material rights from the Title I of the Convention and the Additional Protocols, must be interpreted in the sense of the assurance of some concreted and effective rights, not theoretical and illusory”. The article previous mentioned, imposes

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Knowledge Based Organization 2008 International Conference in the states’ charge, the obligation to respect to the subjects by right, respectively: natural persons, non-governmental organizations and groups of private persons the right of a procedural nature to addresses themselves to the Court from Strasbourg. Beginning from the addressing manner to the Court from Strasbourg, the states’ authorities must respect and guarantee the free correspondence of the persons who addresses the Court. A special situation, concerning this aspect, it can be found in the deprived of liberty persons’case, in the sense that the national authorities’ obligation is on one hand a negative one, to do nothing to impede the exercise of the right to appeal to the European Instance, and, in the same time, a positive obligation to give all the facilities to the persons being in detention to appeal to the European Instance. The state’s obligation, to not impede the effective exercise of the right to an individual appeal, expands on all the procedure exercise period before the Court from Strasbourg and not only in the moment of the notification demand’s introduction of the Court by the claimant. In a case, the Court memorized that the former Committee declared itself “preoccupied” by the fact that the claimants and other persons who had the intention to become claimants were interrogated directly by the authorities concerning the addressed demands or the demands that they wanted to addresses to the former Committee, competent in that period to examine the demands’ admissibility. It was established that the states’ authorities don’t have the right to addresses in this matter to the interested persons, without an attorney assistance, especially, in the case when this measure could be interpreted as a attempt to discourage to keep their demands, therefore she considered that, proceeding this way, the national authorities prevented the claimats to exercise in an effective manner the individual right certificated in article no. 25 (in present article no.34) from the Convention [5]. In the same case, the Court showed that for the individual appeal’s mechanism to be effective, it is most important that the declared claimants or potential claimants to remain all the time in the situation to communicate freely with the Convention’s bodies, without having the authorities to determined them in any way to remove or modify the demands [2].

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3. The victim concept in the sense of article no. 34 from the Convention To consider himself a victim, in the sense of article no. 34 from the Convention, a person must have suffered an effective and concrete damage of his rights guaranteed by the Convention or the Additional Protocols, though national authorities’ decisions. The individual recurrent must have been the victim of a trespass of the guaranteed rights to be able to exercise the individual appeal [16]. For a claimant to pretend to be the victim of a Convention’s trespass, it must exist a direct bond between the claimant and the suffered trespass [3]. In the legal persons’ situation, to have the victim quality, this one must pretend a trespass of the rights suitable to the legal person and not to its members, members who can introduce another demand in his own name [17]. Analyzed through the European Convention of Human Rights’ perspective, the victim term is an independent concept, bond by the recognition itself of the right to an individual appeal. To exercise the individual appeal, article no.34 from the Convention imposes to the claimant to pretend in a plausible manner that he is a direct or indirect victim of a disposition’s trespass from the Convention, trespass that results from an action or from an omission imputable to a contracting state [1]. The victim concept of a trespass of a right guaranteed by the Convention or the Additional Protocols, related to the obligation of all the inner measures’ exhaustion, signifies the fact that in the European system of human rights protection, the right to an individual appeal can’t have as object the prevention of a Convention’s trespass. In general, the Court, as a body invested with the mission to guarantee the observance of the assumed engagements by the contracting states, through the Convention’s conclusion can establish just an ,,a posteriori” trespass of the Convention, when it has already produced [1]. Article no.33 from the Convention, allow to every state, that ratified the Convention, to notified the Court from Strasbourg for the trespass of the dispositions from the Convention or the Additional Protocols, considered to be fulfilled by another state. In contrary, a natural person, a legal person or a group of private

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Knowledge Based Organization 2008 International Conference persons, to be considered ,,victims” in the sense of article no.34 from the Convention, must prove that they were effectively injured by the measure which makes the object of the formulated demand. From this point of view, the individual appeal system excludes the possibility to introduce an ,,action popularis” demand, in the sense that it doesn’t authorize a denunciation in abstracto of an inner law by a person or a group of persons on the reason that it appears to them that an inner law trespasses the Convention’s or the Additional Protocols’ foresights. The claimant, who appeals the European Court, must invoke the fact that he was directly and personally affected by the Convention’s pretended trespass, similar demand with the condition of proving the interest to formulate a request to sue, according civil proceeding from the municipal law. When the claimants don’t succeed to prove the causality bond between the person who makes an action and the damage appreciated by this one as a sufferance, situations in which the demands were declared as inadmissible ratione personae. The trespass of a right guaranteed by the Convention or the Additional Protocols by the state’s authorities and that caused to the claimant a material or moral damage, justifies his interest to appeal before the Court from Strasbourg the responsible state by introducing the individual appeal, established by article no. 34. from Convention. In the European Instance’ jurisprudence, it was mentioned in a concrete situation that the existence of a trespass of a right guaranteed by the Convention can be conceived in the absence of any damage, which will be established on the article no 50 grounds (in present article no. 41) from the Convention, which establishes the problem of a ,,fair compensation” giving to the victim, in the case of the establishment by the Court of the Convention’s dispositions trespass concerning the claimant [6]. On article no 34. from the Convention grounds, the claimant who pretended himself a victim of a trespass of one of his guaranteed rights, it mustn’t prove that he suffered a damage to formulate the procedure before the European Court.

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4. The cessation of the victim quality The national authorities are the first institutions called to assure the protection of the rights guaranteed by the Convention or the Additional Protocols, and because of that the European system of human rights protection has a subsidiary character. When the claimant didn’t obtained a ,,compensation” on an inner plan, he can pretend himself victim of a trespass of a guaranteed right, to introduce an individual demand before the Court on article no.34 dispositions grounds from the Convention. In this case, it is necessary for the claimant to prove the ,,victim” quality in all the period that the juridical proceedings last before the Court from Strasbourg. The European Court established as a rule that when it is recognized a trespass of the Convention’s dispositions and a compensation for the suffered damage of that trespassed right by the national authorities through an action or an omission, the claimant can’t pretend to be a victim in article no.34 from the Convention sense. In this case, to double the inner procedure with another procedure developed before the Convention’s bodies, appears as incompatible with the subsidiary character of the protection of the human rights mechanism established by the Convention [1]. In a concrete case, it was mentioned by the Court, that if the article no. 25 dispositions (in present article no. 34) appoints, through the victim notion, a person directly affected through the litigious action or the omission, and the existence of a trespass of the Convention’s dispositions can be conceived even in the damage absence, that means that a decision or a measure convenient to the claimant is not enough in general to remove the victim quality, only if the national authorities recognized explicitly or in the essence and then they repaired the produced damage [4]. The payment with two years delay of a debt that the claimant had against the state, without having the national authorities’ recognition, explicitly or in the essence, the existence of a trespass of the rights guaranteed by the Convention [7] and the given of a “financial help” to the claimant, as a result of a “recognition, explicitly or in the essence, from the national authorities of the existence of a trespass of

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Knowledge Based Organization 2008 International Conference the rights guaranteed by the Convention, help appreciated as inadequate by the Court [8], they were not considered by the European Court as representing situations where the persons in cause can’t pretend to be “victim” in article no. 34 from the Convention sense. In many cases, the Court decided that it didn’t consider “convenient” to pretend to a private person, who had obtained a debt against the state as a result of a juridical proceeding, to be obligated then to engage himself in an unwilling fulfillment to obtain the payment for that debt [9]. The payment, made with delay, of the sum of money owned by the claimant from the state, through an unwilling fulfillment, it is not meant to compensate the national authorities’ omission to conform themselves a long period to a judgment, therefore, in a similar situation, he doesn’t loose the victim quality of a trespass of his rights guaranteed by the Convention [10].

5. The pro forma and the admissibility conditions of the demand The juridical proceedings, before the European Court of Human Rights from Strasbourg is not established through a code, but there is a regulations of organization and functioning. The Court’s notification is realized through an appeal request, which is made through a special printed form. The first heading of the printed form, is referring to the parties, in other words to the claimant or the claimants and the state or the contracting states against what the demand is addressed. In the claimant situation, in the demand must be mentioned all the identification data, name, residence, because the anonymous demands are rejected de plano according article no. 35, item 1, letter a) dispositions from the Convention. Concerning the defendant states, it must be mentioned the fact that they must be contracting parties of the Convention. Initially, in the stage of the demand introduction to the European Court of Human Rights, the claimant can introduce in person the notification demand of the European Court, or through an official, not being necessary that his commission to be a notoriety procedure, being enough the existence of a commission signed by the claimant through what it appoints a certain person to represent him before the European Court. Afterwards, after the demand’s communication to the defendant state, the claimant must be assisted

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Knowledge Based Organization 2008 International Conference by an attorney according article no.36, item 2, dispositions from de Regulations. Before addressing the Court from Strasbourg, the claimant must have exhausted all the inner proceedings. The inner appeal measure must be fallowed to the end, through the use of all the ordinary appeals being to the person in cause disposition [14]. The claimant is not hold to use all the proceedings through what he can obtain the satisfaction of his interests, but is enough to have tried unsuccessfully an effective proceeding [10]. As a result, if there are two inner possible remedies, for example an acceleration demand of the proceedings and a compensation given demand for the excessive period of the proceeding, the claimant must not use both of them before addressing the Court, because the purpose of both proceedings is the same [12]. The formulated petition by the claimant before the Court from Strasbourg will be rejected as inadmissible when the claimant opens an inner proceeding with the same object and this one was not explored completely, in other order there were not exhausted all the inner ordinary proceedings, or when the petition addressed to the national authorities was rejected for a proceeding fault, as the prescription and the non-observance of the proceedings’ acts [14]. The Court from Strasbourg rejected as inadmissible the petition formulated by the claimant after his appeal before the inner Court was rejected as inadmissible, because the claimant didn’t pay the stamp duties, which isn’t excessive [13].

References [1] C. Bîrsan, European Convention of Human Rights Convenţia, Comnets on articles, Volume I, Rights and liberties mentioned work. [2] Cauza Petra c/ Roumanie, Recueil 1998-VII, 8 iulie 2004, Ilaşcu et autres c/ Moldova et Rusie, Recueil 2004-VII. [3] Cauza Mendes Godinho c/ Portugaliei (1990). [4] CEDH, Dalban c/Roumanie, Recueil 1999-V. [5] CEDH, 16 september 1996, Akdivar et autres c/ Turquie, Recueil 1996-IV. [6] CEDH, 13 mai 1980, Articolico c/Italie, Serie A nr. 37, Alimena c/Italie, Serie a nr.195. [7] CEDH, decision from 21 June 2001, Bourdov c / Russie, Recueil 2001-VI, p. 530. [8] CEDH, decision from 1 february 2000, Aydin c /Turquie, Recueil 2000-III, 517

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p. 399. [9] CEDH, 27 may 2004, Metaxas C/ Grece, decision from 26 september 2002, Arahalios c/ Grece, Internet site. [10] CEDH, 27 may 2004, Karahalios c / Grece, Internet site. [11] CEDH, the sentence Canciovici and others against Roumania, from 26 noiember 2002. [12] CEDH, decision Moreira Barbosa c/Portugal, from 19 april 2004. [13] CEDO, decision Reuther c/ Germania, from 05 June 2003. [14] R. Chiriţă, European Convention of Human Rights Coments and Explication, Volume II, mentioned work. [15] Comis. EDH 12 februarie 1992, nr. 14807/1989, Agrotexim Hellas SA et autres c/ Grece, DR nr. 72. [16] A. Fuerea, International protection of Human Rights, Bucharest, Publishing House University “Titu Maiorescu”, 2006. [17] B. Selejan-Guţan, International protection of Human Rights, Bucharest, Publishing House All Beck, 2004. [18] F. Sudre, European and international low of human rights, mentioned work.

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