Facultatea de Drept / Faculty of Law
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Item Independența instituției ombudsmanului, condiție indispensabilă a statului de drept și acces la valorile europene(CEP USM, 2024) Zubco, AlexandruThe institution of the Ombudsman plays an important role in strengthening democracy, the rule of law, good administration, the protection and promotion of fundamental human rights and freedoms. It is the duty of the state to support and protect in this way, the Institution of the People's Advocate and to refrain from any action that undermines its independence. The competence of the Ombudsman regarding judicial or administrative authorities should be limited to ensuring the procedural efficiency and administrative functioning of this system. The People's Advocate will not be involved in the judicial system, for example, but will be able to monitor and report on the level of respect for the constitutionally guaranteed right to a fair trial. The ombudsman will not be able to annul an administrative act, but he will be able to support whether or not it contravenes international human rights standards. The ombudsman will not be able to hold civil servants accountable, but through his reports he will be able to reiterate the degree of respect for human rights by the public/administrative institution or any other entity.Obviously, in his mandate, the Ombudsman will not get involved in political, administrative or professional activities incompatible with his independence and impartiality. In this paper, the authors will analyze the level of compliance with the above-mentioned guarantees by the state authorities in the context of precedents from the Republic of Moldova and other states and how effective they are or can be in a state in democratic transition.Item Provocările actuale privind exercitarea mandatului Avocatului Poporului în contextul angajamentelor de asociere(CEP USM, 2024-09-20) Zubco, AlexandruOn July 1, 2016, the Association Agreement between the European Union and the European Atomic Energy Community and their member states and the Republic of Moldova entered into force. And, on August 4, 2017, the Association Council approved the EU-Republic of Moldova Association Program. Among the short-term priorities of the program in the field of "political dialogue, good governance and strengthening institutions" was, inter alia, the completion of the reform of the People's Advocate institution, by improving Law no. 52 of April 3, 2014 regarding the People's Advocate (Ombudsman), in in accordance with the recommendations of the Venice Commission, and ensuring its financing according to the Paris Principles. In concrete terms, according to the Association Program, the Government of the Republic of Moldova was to strengthen the function of the People's Advocate, including through amendments to the law on the People's Advocate and the law on whistleblowers, by providing human and financial resources and an appropriate headquarters , in accordance with the provisions of the National Human Rights Action Plan, so that the Ombudsman can carry out his duties effectively. In 2023, the Parliament of the Republic of Moldova adopts urgent amendments to the Law on the People's Advocate, which aims at the inviolability of the Ombudsman, the procedure for appointing the People's Advocate, the conditions for early termination of the mandate, the exclusion of the public competition for the Ombudsman's deputies and the imposition of the duty to pay stamp duties in the case of actions in court. These changes were presented to the Association Council in 2023. Then, through the European Commission's 2023 country report, it is mentioned that the institution of the Ombudsman has been fully consolidated; the institution has "A" status; such as that the Ombudsmen enjoy inviolability when carrying out their duties and that the revocation of both lawyers requires a prior hearing by the full Parliament. At the same time, the European document suggests that the office is financed from the state budget, and its representatives have the right to address the parliament if the resources made available are insufficient to fulfill their mandate. Following the 2023 Expansion Package, it was decided to grant the EU candidate status to the Republic of Moldova. On June 21, 2024, the decree on the initiation of accession negotiations was signed. The respective article shows certain aspects omitted during the period of strengthening the capacities of the Ombudsman Institution, as well as some problematic aspects in achieving the full constitutional mandate of the People's Advocate in the context of European association commitments. The paper shows the importance of implementing the recommendations of the Association Council, of the Venice Commission, of the Universal Periodic Review tool by national authorities in order to have an independent and consolidated institution for a real protection of fundamental rights and freedoms.Item Obiectul juridic special al infrastructurii prevăzute la art. 337 din Codul Penal(CEP USM, 2024-09-20) Balanel, IonThe content of this article pertains to the investigation of the special legal object of the crime of treason against the state. The significance of this article lies in the fact that the crime of treason against the state is considered one of the most severe offenses, undermining the sovereignty, independence, territorial integrity, and security of the Republic of Moldova. Examining the special legal object is crucial, especially in light of the changes that have occurred in the Penal Code following recent amendments.Item MANDATUL PARLAMENTAR – ÎMPUTERNICIRE POLITICO- JURIDICĂ ÎNTRU REALIZAREA SUVERANITĂŢII NAŢIONALE PRIN REPREZENTARE(2013) Arseni, Alexandru; Costachi, GheorgheMandatul parlamentar reprezintă o împuternicire politico-juridică obţinută în urma alegerilor parlamentare în scopul realizării suveranităţii naturale în conformitate cu prevederile legale. Fiind înzestrat cu trăsături, cum ar fi: generalitatea, independenţa şi irevocabilitatea mandatului parlamentar se bucură şi de o protecţie constituţională. Durata exerciţiului mandatului este strict determinată de legislaţie.Item CONSILIUL SUPERIOR AL MAGISTRATURII VERITABIL GARANT AL INTERDEPENDENŢEI PUTERII JUDECĂTOREŞTI: REGLEMENTĂRI LEGALE ŞI ABORDĂRI DOCTRINARE(2014) Arseni, Alexandru; Roșca, ConstantinIncontestabil, statul de drept şi democratic se formează şi se consolidează în baza mai multor principii, printre care și principiul separaţiei puterilor în stat. Sprijinindu-se pe echilibrul şi colaborarea puterii legislative, puterii executive şi puterii judecătoreşti, cea din urmă contribuie totuși la controlul, în mare parte, al funcţionării primelor două datorită posibilității aplicării contenciosului administrativ. Nu ne vom referi aici la controlul constituţionalităţii legilor, exercitat de către Curtea Constituţională. În aceste împrejurări, se ține cont de specificul activităţii judecătoreşti chemată să înfăptuiască actul de justiţie.Item CONSTITUȚIA ROMÂNIEI DIN 1923: SURSĂ DE MODERNIZARE ȘI DEZVOLTARE CREATOARE A CONSTITUȚIONALISMULUI(CEP USM, 2023) Smochină, Andrei; Smochina, Carolina100 years ago, on 26 and 27 of March, the adoption of the Constitution of Romania set modern standards and legal norms, being very advanced and democractic in many aspects during interwar period. Romania was defined as a unitary and indivisible national state, with an inalienable territory. With these evaluation criteria, The 1923 Constitution of Romania became Romania’s visiting card. In this historical context, today we celebrate important national democratic values, which have prevailed despite totalitarian and authoritarian experiences. At the same time, the scientific conference is organized in honor of academician Ion Guceac. We take this opportunity to express our most sincere congratulations to one of the most well-known and outstanding scholar in the area of his expertise, the Constitution and constitutionalism.Item ASIGURAREA INDEPENDENȚEI JUDECĂTORULUI PRIN PRISMA PRINCIPIULUI PROPORȚIONALITĂȚII ÎN MATERIA TRAGERII LA RĂSPUNDERE DISCIPLINARĂ A JUDECĂTORULUI(CEP USM, 2021-12-08) Balaban, SergiuThe judiciary is one of the three powers in any democratic state. Its role is to ensure the very existence of the rule of law and to ensure the proper application of the law in an impartial, fair and efficient manner. In the current public space there are many dis- cussions related to the extent of judges’ independence and their responsibility. For some, independence can only be effectively ensured if the judge is exempt from liability, and for others the purpose of the judge’s independence is to ensure that a correct decision is made, free from political or economic pressure. In the view of others, the judge cannot make an exception to the fundamental principle that no one can be exonerated from liability, beca- use no one is above the law. But at the same time, the responsibility of the judge must be met in accordance with the criteria of the principle of proportionality in order to ensure the proper functioning of the entire judicial system.Item ASPECTE CONCEPTUALE PRIVIND SCOPUL SANCȚIUNII ÎN ACTIVITATEA JUDECĂTORILOR(CEP USM, 2023) Arseni, Alexandru; Balaban, SergiuWith regard to the independence of the judiciary, the conclusion must be drawn that it represents a supreme value of any rule of law, being the one that ensures the maintenance of social balance and the supremacy of the law. Protecting the judicial system from pressure, influence or interference is the essential premise of an independent judiciary, based on the law and the social values protected by it. However, independence cannot be seen as a privilege of the judge, it is also a duty of every judge. Thus, the principle of independence of the judge can only be understood in relation to the principle of responsibility and liability of the judge, in the exercise of the function. In this communication, we will focus on the dimension related to the spirit of the position of judge, which must be worn by the person exercising this position, and the application of judges’ sanctions must represent an exception and not a corrective measure, as a goal. In this way, we will elucidate the contest between the notions: “integrity and responsibility in relation to the characteristics of the position of judge.Item MANDATUL REPREZENTATIV– ÎMPUTERNICIRE POLITICO-JURIDICĂ ÎNTRU EXERCITAREA SUVERANITĂȚII NAȚIONALE(2017) Arseni, Alexandru; Vieru, GrigoreThis scientific article is devoted to all aspects that pertain to the representative mandate of a parliamentary state. The representative mandate is a politico-judicial endowment of power gained through a ballot of the electoral body by an act of free, universal and secret vote, with the objective of exercising a country's national sovereignty within which those endowments of power are established by the law. The representative mandate, being allocated with specific attributes, is essentially different from the characteristics of private law, and the difference can be acknowledged by looking at characteristics such as: generality, collectivity, independence, inmovability, constitutional protection. The representative mandate assigns the deputy with a special statute for the duration of exercising the sovereignty given to the deputy by the established law through the will of the people. This special statue grants the deputies a very specific number of rights and duties, which are established to protect the deputies against any interferences that could have an effect to their mission of exercising the people's sovereignty.