Romanian Legal Week: May 23-29, 2016

Anda-Laura Tanase

HCCJ. Bilateral promise to sell. Legit refusal to contract
The High Court of Cassation and Justice has ruled that, according to the disposals of Article 1669 Paragraph 1 Civil Code, when one of the parties that contracted a bilateral promise to sell refuses, groundless, to clench a promised contract, the other party may request giving a decision that preempts the contract, if the other conditions of validity are satisfied. Consequently, in the case of a legal action actions that aims giving a decision that preempts a contract, it is inevitable to analyse the unjustified character of the refusal that determines the taking of the action. This analysis implies, abreast the existence of the promise, the analysis of the condition referring to the discharge of all the other conditions of validity of the act that is about to be clenched, in this case, the sale contract.

Cosmina Sima

CCR. Reopening prosecution. Constitutionality
In Romanian Official Monitory no. 353 from 9th May 2016 it was published the Decision of the Constitutional Court no. 86 from 23rd February 2016 referring to the constitutional challenge of the disposals of Article 335 Paragraph 4 from the Penal Procedure Code.

The object of the constitutional challenge is represented by the disposals of Article 335 Paragraph 4 from the Penal Procedure Code, having the following content:  “Resumption of the criminal investigation shall be subject to confirmation by the Preliminary Chamber Judge, within no more than 3 days, under penalty of nullification. The Preliminary Chamber Judge shall rule in a reasoned judgment, in preliminary chamber, without the participation of the prosecutor and the suspect or, as the case may be, the defendant. (…)”.

By examining the constitutional challenge, the Court states that, through a previous decision it admitted the constitutional challenge of the disposals of Article 335 Paragraph 4 from the Penal Procedure Code and it discovered that the legislative solution according to which the Preliminary Chamber Judge decides “without participation of the prosecutor and the suspect or, as the case may be, the defendant” is unconstitutional. The Court has ruled that this equates to defying the right to defense of this participant at the criminal suit, participant that has the procedural interest to prove that the conditions referring to resumption of the criminal investigation regarding him are not enforced.

However, according to the disposals of Article 29 Paragraph 3 from the Law no. 47/1992 referring to the structure and functioning of the Constitutional Court “it cannot be object of challenge the disposals stated as being unconstitutional through a previous decision of the Constitutional Court”, therefore the present challenge was declined as becoming inadmissible.

Fiscal law. Romania has enchained 1 billion Euros from the external markets
Romania issued bonds on the external capital markets worth 1 billion Euros, hereby boosting the curve of efficiency of the bonds with a new maturity of 12 years, coupon bond 2,875%, according to a handout of the Ministry of Public Finance, published on Friday, 20th May 2016.

Intellectual Property. President Klaus Iohannis about plagiarism
Klaus Iohannis, the President of Romania, declared on Thursday, 19th May 2016, at a press conference that took place at Cotroceni, that he will not issue the law that approves the decree that changes the Law of national education because the act does not facilitate excellence and does not ensure integrity, according to a handout of the Presidential Administration.

Klaus Iohannis: “(…) I will not issue this law, but I will resend it to the Parliament because this law, through the changes that it brings, does not determine that legal context which is able to really stimulate performance and to encourage excellence in doctoral studies. (…) Performance must have priority, merit must be acknowledged and offences must be sanctioned. I want us to stop the phenomenon of plagiarism and I believe that, for this to happen, we need a legislation that stimulates performance, that ensures the transparency of the process of awarding the doctorate, and also clarifies the way it is revoked, in the case that it is proved the dissertation is copied or plagiarized. ”

Criminal Law. Laura Codruța Kovesi about the corruption existing in the healthcare system
Laura Codruța Kovesi, Chief Prosecutor of National Anticorruption Directorate, declared on Monday, 23rd May 2016, that the situation of corruption in the healthcare system will not be removed only by arresting people and that it is necessary to adopt some preventive measures, according to agerpres.ro.

Laura Codruța Kovesi: “It is alarming the lack of preventive strategies and the lack of change in some procedures that conducted to committing such acts. (…) There must be taken preventive measures, the procedures must be changed, the magistrates that are condemned to lose their position. During the last years, NAD has investigated doctors and employees from the healthcare system. This thing proves that we will not handle the corruption in the healthcare system only by arresting and sending people to be judged. ”

Internation Law. The President of Russia being sued by ECHR
The President of Russia has been sued by the European Court of Human Rights for shooting down the Malaysian Airlines airplane above Ukraine, according to agora.md. The aircraft had almost 300 people on board and it was shot down by the pro-Russia rebels.  The intimation has been filed by the same law firm that represented the relatives of the victims from Lockerbie.

European Commission. Combating Human Trafficking
The European Commission enacted on Thursday, 19th May 2016, the memorial regarding the progresses achieved in the battle against human trafficking. The memorial integrates the tendencies and challenges involved in combating the human trafficking, analyses the progress registered and underlines the main challenges that European Union and its member states must primary approach, according to a handout of the European Commission.

Greece. The strike of the lawyers hinders the activity of the courts
The lawyers from Greece will achieve soon the sixth month of anti-austerity strike that will conduct to the delay of 300.000 law suits and to a term for them to be closed of 7 to 10 years. Thereby, the strike has stopped several important corruption law suits that could bring capital to the budget of the state.

Anda-Laura Tănase
Cosmina Sima

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