The Annals of “Dunarea de Jos” University of Galati. Legal Sciences. Fascicle XXVI

The Establishment of Organized Criminal Group

2024-02-20T11:14:20+02:00

Within the paper we have proceeded to the brief examination of the provisions of art. 367 of the Criminal Code, with reference also to the provisions of the previous law. We also insisted on examining the forms and ways of committing the crime, as well as some transitory aspects. We have referred to the Romanian doctrine, as well as to some decisions of the Romanian courts. The paper is part of the Criminal Law university course, the Special Part which will be published at a prestigious publishing house in the country. Considering the topic addressed, the study can be useful to judicial practice, as well as to students of specialized faculties.

Cyberterrorism Defining the Threat and Evaluating EU Legal Countermeasures

2024-03-05T10:47:02+02:00

Cybercrime is a criminal activity directed at or using a computer, computer network, or networked device. Cybercriminals or hackers commit most cybercrimes after a quick and undeserved gain. However, there are also cases where cybercrime aims to damage computers or networks for reasons other than profit, such as political or personal reasons. The Internet creates considerable development potential in all areas of social life, its applications being practically unfailing. The current technology, however, opens new horizons for committing crimes. Ease of use, low cost, speed, and anonymity make the Internet an environment conducive and accessible to crimes. Due to the global feature of the network and its vast complexity, the perpetrator's "hidden" possibilities are practically unlimited, thus encouraging the commission of crimes. International law is the most practical means of deterring cyberterrorism due to the inherent realities of cyberspace. Universal jurisdiction is likely the most practical means of prosecution and deterrence. The threat of cyberterrorism can be significantly decreased with a multilayered strategy of deterrence and mitigation.

Delinquency – a Contemporary Global Problem

2024-03-05T10:47:17+02:00

About the process of globalization - at least in the current phase - the shortcomings consist in the fact that, in addition to cutting-edge technology with its benefits, globalization carries with it a certain indifference to the stage of development of the areas and countries where it enters, deepening the gaps. At the same time, it promotes, with or without permission, especially through the media, crime, violence, promiscuity, and the exacerbation of sex. In this way, the values of democracy and, above all, the formation of human behaviors are affected. Information networks, ultra-sophisticated communication channels, and the Internet, with its wide availability and audience, ease of use, and cost efficiency, induce, beyond the undeniable technical performances, a mediocre mass culture, a prefabricated, standardized, simulated, and narcotic culture, expressed, mainly imagistic, far from artistic thrill, from human sensibility, in general, and from the system of traditional values. Methods: communication, education, cultivating respect for social values. Result: carrying out effective activities to prevent and eradicate delinquent phenomena requires, first of all, thorough knowledge of the causes that generated them, the research of which is also the basic objective of this article.

Case Study on the Effects of Constitutional Court Decision No. 51/2016 on Pending Proceedings

2024-03-05T10:48:05+02:00

The present work represents a critical analysis of a recent solution pronounced in judicial practice regarding the legality of the administration of evidence by the Romanian Intelligence Service.
The recent judicial practice seems to establish the illegality of the administration of the evidence consisting in the technical supervision by other state bodies, the national courts pronouncing solutions to exclude the results of the technical supervision from the evidentiary material even in the situation where the procedure of the preliminary chamber was exceeded.
On the other hand, there is also a minority practice of national courts that appreciates that the evidence administered by workers of the Romanian Intelligence Service before the publication in the Official Gazette of the Constitutional Court Decision no. 51/2016 is not subject to absolute nullity and cannot be excluded from the evidence.
The minority practice of the courts is based on an interpretation of some paragraphs of the Decision of the Constitutional Court, according to which this decision would only apply in the future.
Although this minority practice seemed to have become obsolete with the publication in the Official Gazette of the Decision of the Constitutional Court no. 26/2019, we note that in 2023 some courts still embrace it.
We will demonstrate that this interpretation is not only wrong but also contradicted by the practice of the constitutional court.
From this perspective, the work has both academic and practical importance, since the work is addressed both to legal practitioners and litigants who were the subject of technical supervision activity.

The offense of driving a vehicle under the influence of drugs and road accidents

2024-03-05T10:48:37+02:00

In Romania, many of the road accidents are caused by people whose ability to drive is impaired by the consumption of psychoactive substances or alcohol. The number of deaths caused by people driving a car under the influence of alcohol or other substances is also worrying. What we consider important to highlight is the fact that in the case of consumption of psychoactive substances while driving, the legislator did not provide a minimum level of concentration of these substances in the blood, as evidenced in the case of alcohol consumption, which would point out that this crime would not have criminal relevance, leaving to the judgment of the judicial bodies the assessment of the evidence. We note that both the lack of express provisions for sanctioning the use of psychoactive substances while driving has led to an alarming increase in this criminal phenomenon, and the decisions of courts that do not detain people who commit such a crime, considering that it does not pose a social danger, encourages criminal phenomenon.

Aspects Regarding the Necessity to Admit the Forensic Expertise of the Data Resulting from Technical Surveillance

2024-03-05T10:49:49+02:00

The present paper aims to analyze the need to administer the evidence with the forensic expertise of the data resulting from the technical surveillance. Even if the criminal procedural law provides for the faithful registration in the minutes of recording the technical surveillance, in case law it was found that the judicial bodies violated this obligation to substantiate the accusation. In such cases, the parties must contest in front of the judge the authenticity of these means of evidence. The means of verifying both the authenticity of the recordings and the loyalty of the record of the interception of conversations consists in conducting forensic expertise. The administration of forensic expertise implies the meeting of conditions such as the existence of facts or circumstances of the cause that require specialized knowledge in a certain field, but also the clarification of their meaning. The administration of forensic expertise of the data resulting from technical surveillance presents a probative interest since any deletion, editing, insertion of replicas or alteration of the original content of a recording can lead to a change in the meaning of a call, so it is necessary to remove it as evidence.

Guilty Plea. Some Considerations

2024-03-05T10:50:56+02:00

From a normative perspective, the plea agreement represents an institution of procedural law, including the rules of art. 478-488 of the Criminal Procedure Code (Law no. 135/2010, with subsequent amendments and additions). From an existential perspective, the plea agreement is that agreement between the prosecutor and the defendant regarding the resolution of the case; it is a form of negotiated justice; it is, at the same time, a simplified procedure for bringing criminal responsibility: the criminal prosecution is truncated, the preliminary chamber, removed, and the trial, much abbreviated; the individualization of the punishment is carried out by the prosecutor, and the judge confirms it. In this study, the authors present some interesting ideas about plea bargaining.

The Application of the Ultima Ratio Principle in Criminal Matters

2024-03-05T10:51:30+02:00

Starting from the interpretation that the Constitutional Court of Romania (in the considerations of Decision no. 405/2016) gives to the principle of ultima ratio in criminal matters, this study addresses the issue of the application of this principle, by distinguishing between its application at the legislative level (by the legislator) and the application at the judicial level (by the criminal judicial bodies). We consider that, while, at the legislative level, the application of the principle of ultima ratio in criminal matters is manifested by the legislator exercising his power to legislate (in the sense of criminalizing an act as a crime only as a last resort to protect a social value), at the judicial level, the application of this principle, by the judicial bodies, is achieved through their possibility to order/pronounce a solution of non-engagement of criminal liability, even if the act is provided for by the criminal law, to the extent that all the conditions required by the law are met for ordering/pronouncing such a solution. In conclusion, we appreciate the solution of closing the case or acquittal under art. 16 para. (1) lit. b) thesis I from the Romanian Criminal Procedure Code ("the criminal law does not provide for the act") cannot be argued by the judicial body by applying the ultima ratio principle in criminal matters; only a solution of waiving the criminal prosecution, respectively waiving the application of the penalty, or postponing the application of the penalty can be justified by the application, at the judicial level, of this principle.

Effects of Technical Surveillance on Individual Rights and Freedoms

2024-03-05T10:51:43+02:00

Technical surveillance has become a basic evidentiary procedure in criminal investigations, allowing authorities to gather valuable information in the fight against crime. However, this procedure raises many questions and challenges from a legal and ethical point of view.

The paper analyses the compatibility of the legal texts that regulate technical surveillance with the provisions of the Constitution, as well as of the European Convention, including the rules regarding the approval of warrants for the interception of communications, access to electronic data and the protection of the fundamental rights of the individual, as well as the effects on the individual rights and freedoms of procedural subjects.

We have analysed how the evidentiary procedure can interfere with constitutional rights, such as Article 8 of the Constitution regarding the right to intimate, private and family life, as well as the way in which it is respected the balance between intrusion into private life and the principles of proportionality, necessity and subsidiarity.

At the same time, we analyse the compatibility of the provisions of art. 138 and 139 of the Criminal Code with the provisions of the Constitution from the perspective of the recent decisions of the Constitutional Court.

This paper is of interest to theorists and legal practitioners in terms of analysing the balance of legal norms regarding technical supervision, in relation to the constitutional requirements, as well as those of the European Convention through the lens of the Strasbourg Court's jurisprudence.

Violence as a Method of Committing Assault. Comparative Approach

2024-03-05T10:52:48+02:00

A person's criminal behavior differs from his usual actions in that it causes harm to protected relationships and has a public danger, but as in the ordinary behavior of the person, the criminal deed meets both mental and physical components which can be identified with „mens rea” and „actus reus”, which in the Eastern European criminal doctrine are identified with the subjective side and the objective side of the crime.

The features of the objective side of the concrete crime are described in the disposition of the corresponding article of the Special Part of the Criminal Code and compared to others elements in the criminal law norm are defined most fully.

The objective element is the external manifestation of the crime, and in the case of the offense of assault, it is carried out through actions such as threats, intimidation or the application of violence, in some legislations, it is necessary to demonstrate the achievement of the purpose of stopping the performance of the victim's duties.

In the article, the author aims to identify the similarity of the criminalization of assault in the legislation of European states in order to harmonize the legislation of the Republic of Moldova with international standards for the protection of public officials.

Interdisciplinary connections between violence and the level of consciousness

2024-03-05T10:53:16+02:00

Given that, in the current globalized and technological society, where it seems that ancestral values seem to be ignored in the rush for material, in a competitive environment where cooperation does not exist, it is necessary for the scientific and academic world to reposition itself, and with all the forces to act for the awareness of the changes that humanity must make, and this as urgently as possible, so that the spiritual ascension is in accordance with the social and moral values that are mandatory in the adaptation of man to the new reality. This new reality, which even if it is ignored by some, does not mean that it does not constitute the future of planet Earth!

The challenge consists in realizing what is the path to follow beneficial for the current generation, but especially for the future generations. The analysis of the level of consciousness becomes essential for each person, as a living soul, to realize that we are not alone in the universe, especially in the conditions in which the Metaverse gradually begins to be part of our lives!

Letter of Guarantee versus Letter of Comfort

2024-03-05T10:53:32+02:00

The Civil Code regulates for the first time the letter of guarantee among autonomous guarantees, alongside the letter of comfort. The creation of commercial practice and autonomous guarantees appeared and developed in the banking environment, from the need to secure credit but also for flexibility. From articles 2321-2322 of the Civil Code dedicated to these new guarantee instruments, we extract, to identify and distinguish them, at the same time, particularities embodied in legal characters and specific effects. After analyzing the common features of the two types of regulated autonomous guarantees, we note that the essence is the assumption by the issuer of their obligation, distinct from the pre-existing obligation relationship (guaranteed obligation relationship) between the officer and the beneficiary, in the case of the letter of guarantee, or between the debtor and creditor, in the case of the comfort letter. The independence and autonomy of the guarantee obligations are also confirmed by the fact that the issuer is expressly forbidden to oppose the creditor any defense or exception deriving from the pre-existing (guaranteed) obligation relationship. To recover what he paid, the issuer of the autonomous guarantee benefits from a personal appeal, which, as a rule, does not have a subrogative nature.

The Peculiarities of Telework for Civil Servants

2024-03-05T10:54:06+02:00

The need for a detailed and coherent regulation in the field of teleworking was evident in the context of recent years which imposed many changes in the way we conduct our daily activities. In the field of labor relations, there was a legislative framework that allowed the activity to be carried out through remote working methods and this was improved in the last period to comply with the demands of this domain.

In the matter of public servants, the legislative consecration of the way of carrying out the activity by teleworking or working from home was later established, by the provisions of Law No. 283/2022. Taking into consideration the new legal framework, this article contains an analysis of the specific aspects that apply in the case of civil servants regarding this matter. Also, the article contains a review of the conditions established by the Administrative Code and it emphasizes the differences and similarities of the teleworking in case of civil servants according to the provisions of labor law.