Contents
EDITORIAL – Bridge over the centuries
Nicolae Fleva – Our Magistracy. Part I [reprint of „Free Romania” newspaper no. 2870 of 11 March 1887]
ATTITUDES
Maimon Schwarzschild – How we judge judges
Tamara Manea – Disciplinary Responsibility of Magistrates for Breach in Bad Faith or Gross Negligence of Rules of Substantive and Procedural Law
Lorne Neudorf – Judicial Independence: The judge as the third part of the dispute [article in English]
Richard H. Pildes – Is the Supreme Court a ‘Majoritarian’ Institution? [article in English]
STUDII JURIDICE
Sanda Elena Lungu, Dragoş Călin – Some Aspects of Mediation in Romania. Facilities to Use the Mediation Procedure [article in French]
Roxana Lăcătuşu – The Case A.M.M. v. România. Fair Balance between the Interests of the Child to have his Paternity Established and Alleged Father’s Interest not to be Subjected to DNA Testing
Lorena Zidaru – Violation of Article 2 of the ECHR by Unjustified Use of Firearms
CASE LAW
Recent jurisprudence of the European Court of Human Rights
1. Case of Union „Păstorul cel Bun” v. Romania – The right of association of clerics and religious autonomy principle
2. Grand Chamber judgment in case of Creangă v. Romania – The burden of proof regarding the deprivation of liberty. Impossibility of leaving prosecution office. Unlawful deprivation of liberty
3. Reforming the pension system by transforming the special pension into a public pension system, under Law no. 119/2010, is compatible with art. 1 of Protocol No. 1 – inadmissibility decision in cases Frimu and others v. Romania
4. Cumulation regime of retirement benefits with wages in order to minimize budget expenditures, according to Law. 329/2009, does not violate Article 14 of the Convention and art. 1 of Protocol No. 1 – inadmissibility decision in case of Ionel Panfile v. României
5. Lack of „expectation” for recalculation of pensions. Effects of divergent case law – inadmissibility decision in case of Dumitru David and others v. Romania
6. Case of Nicoleta Gheorghe v. Romania – A new reference judgment rendered by the European Court of Human Rights in matters of contraventions
7. Request for review in a procedure for the annulment of a building permit – inadmissibility decision in case of S.C. Millennium Building Development S.R.L. v. Romania
Recent jurisprudence of the European Court of Human Rights
1. Consumer protection. With regard to a contract term providing for an amendment of the total price of the service provided to the consumer, the reason for and the method of the variation of the aforementioned price must, in particular, be set out, the consumer having the right to terminate the contract. The declaration of invalidity of the unfair term shall have effects as regards all consumers who have concluded a contract, including those who were not party to proceedings for an injunction. National courts which find that a term is unfair are required to draw all the consequences that follow under national law, so that the consumer is not bound by that term
2. Equal treatment in employment and occupation. Differences of treatment on grounds of age. Failure to take into account professional experience acquired with another company in the same group does not constitute discrimination on grounds of age. An employer is not obliged to take into account, for the remuneration of his employees, professional experience acquired by them with such a company
3. Social policy. The EU Law must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work
4. Social policy. During a transitional period of up to five years following Bulgaria’s accession to the EU, the conditions of access by Bulgarian students to the labour market of another Member State may not be more restrictive than those applicable to students who are third-country nationals
5. Consumer protection. The national court is required to assess, of its own motion, whether a contractual term in a consumer contract is unfair, but a national court cannot revise the content of an unfair term in a contract concluded between a seller or supplier and a consumer
Recent jurisprudence of the European Court of Human Rights n matters of judicial organization and status of judges
1. The opinions in matter of search, detention or arrest of a magistrate, delivered by competent department of the C.S.M., are not administrative acts independent by criminal action taken by the criminal court. As such, they can not be appealed to administrative courts.
2. Action by the Court of Appeal against the judgment of C.S.M. Plenum who decided that posts regarding management positions not be included in the list of vacancies of promotion contest to executive judges. Lack of interest. Employment opportunity job in question by exploiting the contest results.
3. The plea of illegality of art. 33 alin. 5 provisions Rules of organization and holding the examination for appointment of judges and prosecutors in leading positions. The final character of the oral test results can not only result from the registration (at least in audio format) and keep this record at least one year from the date of the sample.
4. Election as Vice-President of C.S.M. Renewal of the mandate. It can carry two mandates, provided that they are not consecutive. If the legislature had intended to prohibit a second term in any event, he would have used the phrase „one term” or other similar term and without any trace of ambiguity.
PRESENTATIONS
The Conference „Liability of Magistrates in the Light of Recent Developments in European and National Level”, Bucharest, Romanian Academy, 15 March 2012
HAPPY REGISTRY
Declining of jurisdiction in favour of the administrative court after establishing the composition of the court of first instance in the manner prescribed by law for judging by the Court of labor disputes, with the participation of two judges and two judicial assistants