JOURNAL LEGAL AND ADMINISTRATIVE STUDIES December 2024

The constitutional evolution of Romania reflects the cultural traditions, social realities, the degree of economic development and the degree of democratization. The evolution was not simple, it has a complex dimension that involves the multitude of constitutive factors of society. It is marked by normative acts with constitutional value through which, over time, social relations regarding power and fundamental human rights have been regulated. This legal materialization of the will of the rulers is directly determined by the social realities existing at a given time. In Romania, as in other European states, constitutional evolution signifies the democratization of the exercise of power, the limitation of the discretionary powers of the state, the affirmation of the principle of democracy regarding the social, political, and legal organization in the state, and the consecration of fundamental civil rights and freedoms. Constitutional development reflects political, legal, economic reality, traditions, but also international influences along with the adoption of democratic ideas affirmed at the end of the 18th century and the beginning of the 19th century.

The Criminal Code, in the General Part, Title II, Chapter II, Art 21, states that “(1) the act provided for by criminal law consisting in the exercise of a right recognized by law or in the performance of an obligation imposed by law, in compliance with the conditions and limits provided by law” and that “(2) the act provided for by criminal law consisting in the performance of an obligation imposed by the competent authority, in the form provided by law, is also justified, if it is not manifestly unlawful”.

Extradition is a form of international cooperation in criminal justice and is based on the fact that each country accepts the decisions of courts in other countries. Each country has different views on different crimes and how they should be investigated and punished. The purpose of extradition proceedings is not to establish whether or not a person is guilty of the act on which the extradition warrant is based. This is a problem that will only be resolved after the wanted person has been brought back to the country that issued the request. The European Arrest Warrant operates on the principle of mutual recognition: judges are obliged to treat the warrant at face value without regard to the facts set out in the warrant or to require the issuing State to show that it has sufficient evidence to handle the case. EU countries also have no right to refuse to extradite their nationals under the European Arrest Warrant procedure.

The early release of offenders on parole allows them to leave prison before the expiry of the sentence and serve the remainder in the community. In South Africa, the decision to grant an offender parole was traditionally the sole function of the executive. Since 2004, courts are empowered by section 276B of the Criminal Procedure Act 51 of 1977 to postpone the release of offenders on parole until they have served a determined period, known as a non-parole period. This provision is an extension of the sentencing process and potentially limits the rights of offenders to not be deprived of liberty arbitrarily and to a fair trial. Thus, non-parole periods may only be exercised in prescribed situations when exceptional circumstances exist and the parties have been given an opportunity to be heard. However, it is evident from case law that, in practice, these requirements are not always complied with by courts. In December 2024, the Constitutional Court of South Africa in Sithole v S [2024] ZACC 31 again reminded trial courts of the requirements for the imposition of non-parole periods. Sithole demonstrates that despite 20 years of established judicial precedent, the practice of non-parole periods in South Africa remains non-compliant with the legal framework. This leaves offenders at risk of unjustifiable violations of their constitutional rights and warrants legislative intervention.

In modern organizations, whether in the public or private sector, proactivity has become a fundamental element of success. Retaining high-performing employees is a challenge in this era of limitless careers. Although Romanian judges enjoy irremovability and independence according to the statute, access to higher courts by promotion is not only a personal desire and a way to facilitate professional development, but also a way for the judicial organization to ensure its performance and consequently confidence in the act of justice. The law adopted by the Romanian legislator in 2022 maintained the two forms of promotion to the higher courts, one effective and one on the spot, but established different ways of carrying out the promotion process. This article aims to make an analysis of the way in which the process of effective promotion of judges at the Tribunals, Specialized Courts and Courts of Appeal is carried out, not only in relation to the national legislation, but also in relation to the criteria laid down in the international regulations in this field.

The independence of the judge as a principle of criminal procedure is a fundamental element of the rule of law and of guaranteeing a fair trial. This principle ensures that the judge performs his duties without external influences or pressures, being guided exclusively by the law and his own professional conscience. The independence of the judge is essential for the respect of the fundamental rights and freedoms of the persons involved in the process. In conclusion, the independence of the judge is not just an abstract principle, but a practical foundation for the proper functioning of the criminal procedure. It ensures the respect of fundamental rights and freedoms, protection against abuses and maintenance of confidence in the justice system.

The normative positioning of the Supreme Court in Poland entitles one to conduct a twofold analysis. On the one hand, it is possible to look at this court from the functional side, understood as the procedural role of the highest judicial instance in the prism of related tasks. On the other hand, it is also possible to carry out a strictly systemic analysis, understood as a set of legal regulations outlining the position of this Court in the structure of the judiciary and the organisational solutions in force within it. The scope of analysis of this article, due to the narrowly defined nature of the study and the multiplicity of procedural legal constructions, was limited to the sphere of resolutions issued by the Supreme Court. The aim of the article is therefore to analyse a certain section of the functional role of the supreme court in Poland, precisely in the form of these specific rulings. Indeed, the Supreme Court's resolutions are a direct emanation of the essential function entrusted to it by the Polish Basic Law, but they also constitute a break from the principle of jurisdictional independence. They are, however, burdened with certain shortcomings. For this reason, legal views on their nature and the need for their existence in Polish law are sometimes extremely different.

Literature of any kind – philosophical, scientific, fictional, etc. – has revealed for thousands of years the human need to live in communities, seeking to establish relationships that are as mutually beneficial as possible with all other members of society. This desire is instinctively understood from the first months of life, and this phenomenon can be observed in any living being – animal or plant – because in the absence of communities of the same species, there is no future; reproduction ceases, leading to inevitable extinction. Communities, once formed, have an interest in expanding or improving the quality and well-being of their members. Thus, economic development programs can be created, which will succeed if there is social harmony within the community. Social harmony can be fostered through certain types of policies that encourage not only pragmatic connections between people but also entertainment and coexistence based on mutual support. The 21st century has brought to the forefront a unique form of community, namely the electronic, transnational one, which allows for human connections at an intensity and scale unprecedented in history. These communities aggregate on social networks, and certain legal situations in recent years compel a response to the question: can these entities be regulated, and if the answer is affirmative, based on what principles? This text will seek to provide an introduction to this debate, in relation to a decision recently adopted by the U.S. judiciary regarding one of the most important social networks, namely TikTok.

The judgments in Cases C-808/21 and C-814/21 provide a new perspective on the legal contours of the electoral rights covered by Article 22 TFEU. The CJEU, seized in two infringement proceedings, was called upon to determine the content of electoral rights, in the light of the principle of non-discrimination. In other words, does that principle relate solely to the right to vote and to stand as a candidate or to other ancillary measures guaranteeing participation in political life? This study aims to shed light on the architecture of the CJEU's legal reasoning in the two cases, emphasizing that the right to participate in the democratic life of the Union is enforceable not only against the European institutions, but also against the Member States, insofar as the latter, through legislative and administrative measures, restrict such a right or diminish its effectiveness.

There is no armed conflict (or even political conflict, in the strict sense of the term) in which the issue of human rights violations does not arise. Moreover, it is absurd to believe that there can be an open conflict that does not affect the rights of the civilian population. As in any debate that is simultaneously sociological, political, legal and international relations, terminology is a key variable. If we talk about war crimes, we theoretically and legally more correctly frame this collective crime in the context of a type of interaction between two states. A concept such as crimes against humanity also covers the situation in which we criminalize, for example, the crime of a political regime against its own population, against a minority, not just a war between two states or a civil war between well-determined parties.

In the digital age, artificial intelligence (AI) is intervening in many areas, and the transport industry is no exception. AI has the potential to significantly transform the way this sector operates, bringing significant benefits in terms of efficiency, costs and sustainability. We will explore the different ways in which artificial intelligence can be integrated into transport management and how it can revolutionize this field. Artificial intelligence (AI) represents the next frontier in logistics innovation, with the potential to make transport more efficient by minimizing costs and maximizing profit, but also by ensuring the safety of transport.

Usufructuary is a general way of acquiring the property right, but it also constitutes an indirect sanction directed against the former owner of the building, who, showing negligence, left it in possession for a long time another person, allowing him through his passivity to behave publicly as an owner. Therefore, the active procedural capacity in the request to establish the right to ownership through usufruct can only be owned by the former owner of the building and by since the plaintiff did not prove the ownership of the land in dispute, and the defendant constantly testified to the court that the plaintiff never had the respective land in his patrimony, it is obvious that the plaintiff has no standing active process.

Medical communication is an important element in the doctor-patient relationship. Special attention must be paid to neurological patients and how they are communicated with. They often feel vulnerable due to health problems and unfamiliar people, frequently having poor memory and confused thinking. Particularly, emphasis must be placed on obtaining informed consent and respecting their confidentiality. Effective medical communication will help the doctor achieve their goals in dialogue with the patient and improve the outcomes of their professional activity.

Civil law is the foundation of the entire private law legislation. Therefore, at present, the autonomy of other special matters, such as family law, commercial law, labour law, private international law and so on is never total, their concepts maintaining a strong connection with the fundamental notions of civil law. In view of this aspect, without the pretence of an exhaustive analysis, this article seeks to show that the whole “greatness” of civil law is justified primarily by its historical foundations. Starting from Roman law, passing through the old Romanian law and culminating in the elaboration of the Romanian Civil Code of 1864 we find a model of reasoning, technique and procedure that forms the nucleus around which the current civil law developed.

This article considers capacity and undue influence in the Anglo-Australian law of wills and how they might be impacted by Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. The article compares the common law view of capacity, which is transactional but either exists or doesn’t exist with the view taken by Article 12 which asks States to protect capacity by supporting decisionmaking. Undue influence is only pleaded where capacity exists, but it is notoriously difficult to prove and it has been argued that it should be made easier, in part by reference to Article 12. In this article I use the prevalence of elder abuse to illustrate the problems that may be created by using supported decision-making. I argue that supported decision-making is a naïve approach to capacity in view of the level of inheritance impatience and financial elder abuse in existence, and that those who seek to lower the bar for undue influence may be mischaracterizing the relevant human rights and causing rather than alleviating harm. I argue that the relevant human right is not the right not to be unduly influenced, but the right to exercise testamentary capacity. I then argue that the way to protect this right is not by lowering the bar, but by requiring lawyers to take the necessary steps while making wills and other instruments such as enduring powers of attorney or guardianship.

Artificial intelligence has become part of our lives and has gained a significant role. In this context, the law has a dual task: on the one hand, it must promote technological development, but on the other hand, it must protect against its potential dangers. This is a task for the state, but also for the supra- and international legal system. In relation to the state, there is a constitutional duty to promote technological progress. This follows from the fundamental constitutional idea of protecting and promoting the people in the national community, also from the principle of the social state and also from the duty of protection inherent in fundamental rights. The state's obligation to protect against the dangers of technology can be derived directly from fundamental rights. The guarantee of human dignity as the supreme value of the legal system plays a special role here, precluding the domination of technology over humans. But numerous other fundamental rights (at the national and EU level and based on corresponding guarantees in the European Convention on Human Rights and other documents) are also guarantees against potential threats from artificial intelligence. The fundamental values of the liberal democratic constitution: human dignity, the principle of freedom and equality remain unchanged as the basis for the legally regulated coexistence of people in the state community. However, the constitutional norms must duly integrate the new reality that artificial intelligence creates through its power of influence into their protective function.