Contents
EDITORIAL – Bridge over centuries
A. Vlădescu – About debts and dignity of the magistrate [reprint of Judicial Gazetta no. 6 of September 5, 1861]
INTERVIEWS – About Justice and Judges
Interviews with Ms. Zoe Petre and Mr. Ion Vianu and Mircea Cornișteanu
ATTITUDES
Richard L. Hasen – Judges as Political Regulators: Evidence and Options for Institutional Change [article in english]
David S. Law – Judicial Independence [article in english and romanian]
Robert Fischman, J.B. Ruhl – Adaptive Management in the Courts [article in english]
Gabriel Caian – About the Crisis of Interpretation
Thomas Bustamante, Bustamante Evanilda of Godo – Constitutional Courts as “Positive / negative Legislators’: The Brazilian Case [article in english]
Tuan Samahon – Bankruptcy Judges Unconstitutional It? An Appointments Clause Challenge [article in english]
LEGAL STUDIES
Carla Alexandra Anghelescu, Delia Diaconu, Lorraine Zidaru – Ad Interim Proceedings and the Right to a Fair Trial [article in english]
Cristina Maria Florescu, Nicoleta Cristina Ghiță – Inadmissibility of the Action for Annulment (Article 263 TFEU) according to the Court of Justice of the European Union
Delia Narcisa Theohari – Acquisition of Debt according to the Regulation of the New Civil Code
Carla Alexandra Anghelescu – The Unanimity Rule in the Matter of the Action to Recover Possession of a Property in Joint Ownership. The ECHR case-law and Regulation of the New Civil Code
CASE LAW
The recent jurisprudence of the European Court of Human Rights
1. The Case Zelca and Other 414 Applicants v. Romania, Decision as to the Admissibility of September 6, 2011 – the Appeal in the Interest of the Law Governed by the Provisions of Art. 329 of the Code of Civil Procedure is an Effective Way to Unify the National Jurisprudence
2. The Case Schneider v. Germany. The refuses of the right to have contact with the boy he assumes to be the applicant’s son without examining the circumstances of the case
3. The Case Erimescu v. Romania, Decision as to the Admissibility of January 18, 2011. The motivation of court decisions regarding the extension of the preventive detention
4. The Case Florin Ionescu v. Romania, Judgement of May 24, 2011, the separate civil action represented an effective remedy in respect of the applicant’s civil claims
5. The Case Adrian Constantin v. Romania, Judgement of April 12, 2011. The Convention requires that the accused be informed in detail not only of the acts he is alleged to have committed, that is, of the facts underlying the charges, but also of the legal characterisation given to them
6. The Case Andrei Iulian Rosca v. Romania, Judgement of 3 May 2011. The mere fact that these witnesses recanted their testimony at their initial examination in open court can not change the finding that the applicant had an adequate and proper opportunity to examine or have examined, the witnesses during the trial have not determined the unfairness of the proceedings.
The recent jurisprudence of the Court of Justice of the European Union
1. Freedom of establishment. Imposing the condition of nationality for access to the profession of notary is contrary to European law.
2. Consumer Protection. The seller is obliged to ensure good lifting and installing non-compliant asset replacement. If the cost of these operations is disproportionate in relation to asset value and significance of non-conformity, the seller can achieve a reduction of this cost, correlative with the right buyer to claim a reduction in price or the contract.
3. Intellectual property rights. Member States which have, except the copy for personal use, are obliged to ensure that the authors actually perceive fair compensation for damage caused by the enactment of this exception.
The recent jurisprudence of the High Court
of Cassation and Justice
1. By including a post that will be vacant in an unknown time into the category of posts likely to be filled through competition, it infringes the art. 43 of Law no. 303/2004, affecting the rights recognized by SCM to all those who have acquired a professional degree which would allow them to obtain, by transfer, a post which will be vacant at the superior court in the future.
2. The principle of the legality of promotion. The remuneration for a particular function assimilated to the function of magistrate corresponding to the position of judge, does not involve the acquisition, by the one which is assimilated by the magistrate, of the professional level of a judge.
3. Law no. 317/2004 does not contain provisions regarding the case when the mandate of a member of SCM finishes prematurely and the Constitution establishes the period of the mandate of the SCM members of 6 years, whether it has begun with the other members of the judiciary or afterwards.
PRESENTATIONS
Judicial Reform Conference, Chisinãu, Republic of Moldova, 6 to 8 September 2011
New Book Release with the contribution of FJR: Romanian Case law Regarding Judicial Mediation
FUNNY
Counterclaim filed by the plaintiff, assisted by an attorney, in the same time with the application for summons