The 23rd International Conference The Knowledge ...

520$1,$´1,&2/$(%ą/&(6&8µ /$1')25&(6$&$'(0 VOCHOZKA, R. Management reserves of spare parts in MoD. [online] 2016 [cit. 31. 1. 2017] Available from: < http://aktivity.unob.cz/dk/Documents/Sborn% C3%ADk_Proceedings_%202016.pdf> Catalog – Normative of spare parts for repair wheeled infantry fighting vehicles "KBVP" and wheel armored transporters of all modifications. MoD of Prague, 2010. 3XEOý-0601-CZE-00.

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International Conference KNOWLEDGE-BASED ORGANIZATION Vol. XXIII No 2 2017

ASPECTS OF COMPATIBILITY AND CONVERGENCE OF THE ACCOUNTING INFORMATION COMPRISED IN THE BALANCE SHEET IN THE DKMT EUROREGION (DANUBE-&5,ù-085(ù-TISA) Andreea Mihaela MARIN*, Cristiana Daniela /$=Ă5**, Ion 3(5(ù** * Ä(IWLPLH0XUJX´8QLYHUVLW\5HúLĠD5RPDnia ** 7KH:HVW8QLYHUVLW\7LPLúRDUD5RPDQLD [email protected], [email protected] Abstract: In order to study the compatibility and convergence of accounting information between the Autonomous Region Vojvodina and the West Development Region of Romania and implicitly between Vojvodina and Hungarian counties of DKMT, it is necessary to study the compatibility and possible convergence between the Vojvodina Balance Sheet (Bilans Stanja) and the Romanian Abridged Balance Sheet. In order to reach the set goal we opted for the detailed presentation of the Bilans Stanja, with the highlighting of correspondences, indicators’ manner of calculation (when necessary) and the highlight of differences and complementarities.

Keywords: abridged balance sheet, bilans stanja, accounting information, DKMT Euroregion Hungary including: - from Romania: West Development Region, with the counties $UDG &DUD‫܈‬6HYHULQ+XQHGRDUD7LPL‫܈‬ - from Serbia: The Autonomous Region of Vojvidina, with the capital in 1RYL6DG - from Hungary: the counties Bács-Kiskun, Ciongrad, Jász-Nagykun-6]ROQRN%LFKL‫܈‬ The DKMT Euroregion was established on the 21st of November 1997. Since 2015, the presidency of the Euroregion has been DVVXUHGE\WKH7LPLúFRXQW\

1. Brief presentation of DKMT Euregion (Danube-&UL‫܈‬-0XUH‫܈‬-Tisa) Euroregions are cross border regions constituted on geographic and historic bases for economic necessities, especially out of the need for economic and inter-cultural cooperation among the populations and ethnic groups of the area. Up to now 80 Euroregions have been created. The first Euroregion established in 1958 was “EUREGIO” (Euregio Gronau-Enschede) at the border between Germany and the Netherlands. The DKMT Region (Romanian Danube&UL‫܈‬-0XUH‫܈‬-Tisa, Hungarian Duna-KörösMaros-Tisza, Serbian Dunav-Kriš-MorišTisa or Ⱦɭɧɚɜ-Ʉɪɢɲ-Ɇɨɪɢɲ-Ɍɢɫɚ is a European region of cross border cooperation established in 1997, among Romania, Hungary and Serbia. The largest city is the Municipality of TimL‫܈‬RDUD The Euroregion DKMT (Danube–&UL‫–܈‬ 0XUH‫܈‬-Tisa) comprises counties (districts) from three countries, Romania, Serbia and

2. The annual financial situations in Vojvodina – Republic of Serbia The annual financial situations represent documents of financial reporting indicating at a certain moment the level, size of real and monetary flows of an economic entity, originated from its relations with the exterior, namely from the internal activity [1]. These are synthesis documents “supplying information about the entity’s functional position, results and changes of financial

DOI: 10.1515/kbo-2017-0093 © 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

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position” [2]. According another opinion [3], financial situations are regarded as “a comprehensive image of wealth, expressing the entity’s financial position in monetary units by the correlation between economic assets, financing sources and results obtained at the end of the accounting period”, or financial situations are considered to be the documents providing information about the faithful image of the financial position, performance, change of financial position, changes in capital and equity, useful for a wide sphere of users enabling them to make their economic decision [4]. In order to observe and analyse the Vojvodina financial situations we made appeal to the economic entities and institutions in the area, making efforts to observe the legal provisions in force in the neighbouring country. It is impossible to obtain actual information with economic character, not even related to private economic entities from Serbia, as the legislation in force forbids and punishes the circulation of any piece of information of this sort across the frontier. In this context, following repeated endeavours, we have found and used three documents with public character, which constituted the object of certain Romania-Serbian cross border projects, namely: - the financial situations of the Zrenjanin Chamber of Commerce for the year - the financial situations of the 3DQþHYR Chamber of Commerce for the year 20 - the financial situations of the Regional Agency of Social-Economic Development Banat of Zrenjanin. The two chambers of commerce operate according to legal forms of organisation corresponding to the companies by share, and the Agency is organised as a company with limited liability (SRL). Irrespective of the type of legal organisation and size, the economic entities with the registered headquarters in the Republic of Serbia elaborate, at the end of the financial year (31st of December) and publish in the

official gazette of the state, the following annual financial situations: - Bilans Stanja (The Balance Sheet in se - Bilans Uspeha (Profit and Loss 6WDWHPHQW - 6WDWLVWLþNL$QHNV6WDWLVWLFDO$QQH[ The three documents above are published in Serbian and English. The economic entity has the freedom to decide their publication in traditional Serbian language, but in this they have to be accompanied by the variant in Latin-alphabet Serbian. The publication of the Statistical Annex to the Balance Sheet 6WDWLVWLþNL Annexes) is left to the discretion of the economic entity, but only starting with the third annex (the publication of the first two is mandatory). There are 11 annexes to the balance sheet, with a multitude of items of information, many of them revealing indicators from the Bilans Stanja and Bilans Uspeha or being control information, the main annexes to the balance sheet are the following: I. general information about the legal person and entrepreneurship II. substantial changes in material investments and state of technology and equipment, as well as live stock III. structure of capitals IV. structure of immobilisations V. structure of stocks and liabilities VI. receivables and debts to cash VII. expenditure and other consumptions VIII. other incomes. For these considerations and especially due to the fact that many items of information from Bilans Stanja and Bilans Uspeha are repeated in 6WDWLVWLþNL $QHNV WKH SUHVHQW article considers that, in order to study the compatibility and convergence of accounting information between the Autonomous Region Vojvodina and West Development Region of Romania and implicitly between Vojvodina and the Hungarian counties composing the DKMT, it is necessary to study the compatibility and possible convergence between the Balance Sheet of Vojvodina (Bilans Stanja) and the Abridged Balance Sheet of Romania.

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As a principle, the Bilans Stanja goes only to the details level, which makes it extremely clear and intelligibleLQWKHJLYHQ situation, on the second level of detailing we find: IV. Lands, plantations, equipment and biological substances (with partial correspondent in F10, line 02) made of: 1. Lands, plantations (line 006, with equivalent in F10, line 02, the afferent account 2. Equipment (line LGHP 3. Biologic substances (line 008, idem). V. Long-term financial investments, made of: 1. Shares or equity contributions, without direct equivalent in F10, deductible from the accounts 2. Other long-term financial investments (idem). B. The exploitation assets (line 012, without direct correspondent in F10, and they can be recreated from F10 – circulating assets): I. Reserves (line 013, with correspondent in F10, line II. Fixed assets for sale and assets from assignments (line 014, without correspondent in ) III. Short-term receivables, investments and cash (line 015, with partial correspondent in F10, lines 06, 07, IV. Assets related to delayed income tax (line 021, without correspondent in F10). The calculation formula is: B = I + II + III + IV. On the second detailing level: III. Short-term receivables, investments and cash have the following components: 1. Receivables (line 016, with equivalent in ) 2. Receivables on taxes on incomes paid in excess (line 17, without correspondent in ) 3. Short-term financial investments (line 18, with correspondent in F10, line 4. Cash and cash equivalents (line 019, with correspondent in F10, line 5. VAT, advance and delayed expenditure

3. Analysis of compatibility and convergence between the Bilans Stanja and the Abridged Balance Sheet The Balance Sheet, as component of financial situations, renders the equity (own capitals) by the difference between assets and liabilities, provides information about the nature and amounts invested in the resources of economic entities, its obligations towards creditors, as well as the shares of owners in these resources, being considered “the main instrument by which one achieves the application of the accounting principle of double representation of patrimonial items” [1]. The Bilans Stanja is divided, like the Romanian balance sheet (and the European balance sheet) into two large chapters: - Assets $NWLYD - Liabilities (Pasiva). The assets of Bilans Stanja is made of: A. Immobilised assets (line B. Assets from exploitation (line C. Depreciations of equity (line 023). At the end of the chapter one highlights separately: E. The extra-balance assets. The detailed presentation of the calculation of assets elements is the following: A. The immobilised assets have a correspondent in the abridged balance sheet in line 04, Form F10 and are calculated from: I. Subscribed and unpaid equity (line 002 with direct correspondent in F10, line II. Customers (line 003, without direct correspondent in F10, but deductible from F10, 06 of the „Customer” account III. Non-corporal investments (intangible, line 004, with correspondent in ) IV. Lands, plantations, equipment and biological substances line 005, without equivalent in F10, but deductible from the afferent accounts afferent V. Long-term financial investments on (line 009, with correspondent in F10, line 16, but not directly). The calculation formula is: A = I + II + III + IV + V.

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(line 020, with correspondent partial in F10, line 10, 11, 12). The immobilised assets, together with the assets from exploitation, form together the wealth (equity) from exploitation of the entity (line 0 they are completed by the accounting index “equity depreciations” (line 023, with indirect correspondent in Romanian accounting, in the chapter “amortisation” from annexes to the balance sheet, line 024, with correspondent with the same title in F10, line 49). The accounting information “extra-balance sheet assets” (line 025) has a partial correspondent in F10, line 18 “incomes in advance”. The liabilities (Pasiva) from the Bilans Stanja have two components: A. Equity (line 101, with correspondent in F10, line B. Long-terms debts and reserves (line 111, with direct correspondent in F10, line 16). Remark: unlike the Abridged Balance Sheet which in the liabilities section starts with the debts and continues with equity, in Bilans Stanja the two indicators are presented in reversed order. A. Equity is made of: I. Basic capital (line 102, corresponding to F10, line 30 “Subscribed and paid-up Equity´ II. Subscribed and unpaid Equity (line 103, with correspondent in F10, line III. Reserves (line 104) with correspondent in F10, line IV. Revaluations (line 105, with correspondent in F10, line V. Gains not achieved based on stock value (line 106, with correspondent in F10, line VI. Losses not achieved based on stock value (line 107 with correspondent in F10, line VII. Undistributed profit (line 108, equivalent to F10, line VIII. Losses (line 109, equivalent to F10, line

IX. Purchases of equity shares (line 110, without equivalent in F10). The calculation formula for equity is: A = I + II + III + IV + V - VI + VII. Remarks: the equity structure in the Bilans Stanja is almost identical with the structure in the Abridged Balance Sheet. B. The long-term debts and reserves are made of: I. Long-term reserves (line 112, without correspondent in ) II. Long-term debts (line 113, with equivalent in F10, line III. Short-term debts (line 116, with equivalent in F10, line IV. Delayed debts (line 123, without correspondent in F10). The calculation formula for B. Long term debts and reserves is: B = IX (line 110) + I + II + III. Total debts (line 124, without equivalent in F10, but easy to calculate from the sum of lines 13 and 16) are calculated with the formula: Total debts = B + IV. Total liabilities will be the result of the sum of indicators Equity + Total debts. In the Liabilities section there are also highlighted extra-balance sheet debts (line 125, without equivalent or correspondent in F10). Remark: the structure of liabilities in the Bilans Stanja is much closer to the structure of liabilities in the Abridged Balance Sheet than the structure of assets to the afferent chapter in our financial situation. 4. Conclusions The document Bilans Stanja and the Abridged Balance Sheet contain, in substantial proportion, accounting information with the same content, but different as regards the organisation structure of forms, mainly in the assets VHFWLRQ WKH DVVXUDQFH RI the two financial situations convergence is easy and involves a minimum effort of adaptation, including of the accounts plans.

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[1] [2] [3] [4] [5] [6]

[7]

References 0DWLú'3RS$ Financial accounting (in original in Romanian), Cluj-Napoca, Casa FăUĠLLGHùWLLQĠă3UHVV 2010. 5LVWHD0'XPLWUX&*,RQD‫&܈‬,ULPHVFX$Accounting of commercial companies (in original in Romanian), vol. I, Bucharest University Press, 2009. 0DWH‫ ' ܈‬3HUH‫ ܈‬, 3HUH‫ & ܈‬Basics of accountancy (in original in Romanian), 7LPLúRDUD0LUWRQ3UHVV Paraschivescu M.D., Radu F., Management of financial accountancy (in original in Romanian) ,DúL7HKQR3UHVV Law 82/1991, Law of Accountancy, with further alterations and completions, updated. Order of the Minister of Public Finances no. 1802/2014 for the approval of the Accounting Regulations regarding the individual annual financial situations and the consolidated annual financial situations, updated. https://ro.wikipedia.org/wiki/Euroregiunea_DKMT.

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THEORETICAL ASPECTS REGARDING INFORMATION SYSTEMS AUDITING WITHIN THE MILITARY ORGANIZATION Marius MILANDRU, Daniel Sorin CONSTANTIN “NicRODH%ăOFHVFX” Land Forces Academy, Sibiu, Romania [email protected]

Abstract: As part of the general effort to modernize the financial-economic system, in both private and public sectors, the concept of internal auditing is fairly recent. The development of information technology has significantly contributed to the integration of information systems into management related activities (economy, logistics, finance and accountancy, etc.). The integration of new information technology into the practice of processing, transferring and storing information has brought about a series of threats and vulnerabilities of the information system. Thus, auditing information systems has become a vital element for all domains and activities of organizations, including the military one.

Keywords: information system, auditing, risks, vulnerabilities, objectives. information system monitoring. Such a development has amplified the risk of using information systems in the remote processing and transfer of data. Fraud and loss of data in information systems connected to the Internet has reached alarming levels and it has confirmed the necessity to generate within each particular entity an internal monitoring process that targets the information system. Thus, managers have tackled the problem of ensuring an accurate and secure environment for the operations carried out in the information system and of correlating these with the objectives and strategies of the organization. In order to neutralize the possible negative effects, the elaboration of a monitoring procedure has been established for information systems in all entities. The aim of all these internal monitoring objectives and procedures is to ensure the security of information systems and to reduce the possible risks related to their operation, posed by any threat and vulnerability of the system.

Introduction The rapid development of automatic data processing systems determined by the emergence and evolution of computer technology and specialized software has had a great impact on the way we store information and monitor the activity carried out by various entities, including the military organization. The technological evolution of increasingly efficient and less costly, highly accessible personal computers has lead to the rapid development of specialized software applications (accountancy and salary calculation programs, records of volume and value, human resources, major staff, etc.), used extensively, even by personnel not specialized in information technology. The use of new information technology in data processing, transfer and storage has generated a series of threats and vulnerabilities of the information system. Concurrently, the employment of the World Wide Web and the Internet by entities has had a particular impact on the objectives of


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management of the information systems. The CISA ( C ertified I nformation S ystems A uditor) certificate issued by the ISACA ( I nformation S ystems A udit and C ontrol A ssociation) represents a professional certification in this field. Although there is a rather close methodological connection between finance and accountancy auditing and information system auditing, the latter is based upon at least four domains: traditional auditing, information systems for management, behavioral science (psychology) and computer science. Information system auditing can be organized both on the level of entities, within the appointment for internal auditing, and as external auditing performed by people outside the entity. During an information system auditing the most frequent operations are the assessments, evaluations and testing of the information devices: - identification and evaluation of risk in the system; - evaluation and testing of the monitoring within the system; - assessment and evaluation of the physical information environment; -assessment and evaluation of the administration of the information system; - assessment and evaluation of information applications; -assessment and evaluation of computer network security; - assessment and evaluation of recovery plans and procedures in case of disasters and procedures to resume activity; - testing the integrity of the data. The risks within the information system of the entity must be evaluated as correctly as possible by both managers and auditors. Generally, in order to identify and evaluate risks, the following measures are taken: - identification of risk factors; - ranking of risk factors according to their importance for the audited system; - determining the frequency and length of occurrence of each risk factor;

The intervention of internal auditing within this segment aims to assess the monitoring system, and implicitly, to issue recommendations regarding its improvement, especially in the case of the information system used in the military, as part of the public sector. 2. The concept of information system auditing The two terms we encounter in common usage as well as specialized literature in Romania are organizational information system auditing (sistem informational) and computer information system auditing or IT auditing (sistem informatic). The contrast between the two terms is rendered by the content and the level of the auditing activity, on the one hand, and the conceptual difference on the other. Conceptually, organizational information system auditing is more inclusive, its objectives covering all levels of the system from the assessment of system design and use to the evaluation of security policies and procedures of the operational and strategic levels. Computer information system auditing is a term covering the more specific activity of monitoring the computer system. Concretely, organizational information system auditing includes computer information system auditing. Since in most entities the computer information system constitutes all of the organizational information system, the most widely used term is that of information system auditing and the term used for the auditor is information system auditor. Information system auditing is the activity of collecting and assessing evidence in order to determine if the information system is secure, able to maintain the integrity of the processed and stored data, allows the achievement of the strategic objectives of the enterprise and employs efficiently the available information resources. Usually, this activity should be carried out by personnel qualified and specialized in the field of monitoring, security and

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- techniques of testing the monitoring process within the audited system. The most frequently used techniques for collecting the evidence are the interview, the questionnaire and the flowchart. The interview consists of a list of questions elaborated in order to be addressed to the personnel within the audited system (managers, users, system administrators, etc.). It is a process with a precise purpose implying the formulation of questions in order to obtain answers. The questions should target the aim of the auditing activity, so that the highest amount of relevant evidence can be collected. During the information system auditing mission, the auditor can interview: - the managers of the functions that the auditing covers in order to determine the structure and complexity of the audited system; - the users of the information system applications in order to determine their perception of the utility and errors of the applications; - analysts and programmers within the system in order to better understand the implemented functions and monitoring process in the applications that these types of personnel create; - internal auditors or personnel involved in internal auditing in order to determine the level and the state of the monitoring process. The questionnaire is a form of the interview, without the interviewer, in which a series of options are provided as possible answers to the questions so that the interviewee can select or complete the answer on his/her own. The structure of the questionnaire should be planned in such a way that it can evaluate several aspects regarding the risks and the monitoring of the audited system. The flowchart is a graphic representation with standard symbols of the circulation and flow of information and data within the audited system. The auditor can use the existing flowcharts or build them in order to

- quantification and evaluation of the level of the risk; - scheduling the auditing activity and allocation of auditing resources according to the established risk level. There are a series of techniques used to evaluate and quantify risks. One of the most widely known and used is the score technique, which is one of the quantitative evaluation methods for potential risks. According to this technique, each risk factor (threats or vulnerabilities) is allotted a weighting (a factor that indicates the importance for each function of the entity) and a risk level. The result of the multiplication of the weighting with the risk level determines the risk of the function, and, by adding up the individual risks multiplied with their weighting, we determine the system risk. A further method to evaluate risks is to rely on the free judgment of the auditor, who relies on his own experience and the evidence collected on the audited system. In practice, it is recommended to combine the two methods. Quantifying and evaluating risks in the information system auditing process results in: - effective determination of auditing objectives; - efficient allocation of resources for auditing. Throughout the entire auditing process, the auditor should employ a variety of techniques and procedures to evaluate risks, to evaluate and test internal monitoring, to collect logs, to administer conformity and integrity tests, to assess evidence, to elaborate and transmit the report and follow up on the implementation of recommendations. In practice, the techniques used by the information system auditor are the following: - techniques of investigating the audited system; - techniques of identification and evaluation of risks;

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identify and evaluate strong and weak spots of the monitoring process within the auditing system. In an auditing mission the flowcharts can be used to: - identify documents and their circulation in the audited system; - determine the way in which the data circulates and is processed within the information system; - identify the addressees of the reports and data files; - evaluate the quality of the documentation within the system; - evaluate the monitoring of documents.

effective evaluation, to clearly delimitate the responsibility for acquisition from that of inventory; - the activity of the auditor which should be focused on the performance monitoring of the use of information system resources and the implications it can have on the inventory of the entity. The auditor should be an information system specialist, even though, he has to be familiar with the terminology and have some specific knowledge. It needs to be emphasized that throughout the evaluation certain important aspects may be revealed that require an elaborate inspection by a specialist. Thus, the auditor will focus on assessing whether the necessary information system resources are allotted in order to cover the inventory of the entity and if this is accomplished at a reasonable price. From the point of view of the type of evaluation, the activities related to the information system are divided into: -activities related to planning and performance; - activities related to operation. The activities related to planning and performances occur based on a cycle that includes: - a general study of the field in which the information system is used within the entity, through which a development plan is elaborated for the information system, also known as system plan or plan of mechanization, containing the applications that are to be developed and the priorities; - a detailed planning of the concrete applications which are intended to be initiated. This process starts with the technical and economical evaluation of the application, followed by a logistic planning of its course which is described in a work plan based on which the progress of the application is monitored. The work plan should be carefully assessed by the auditor as it provides the efficient and the economical use of the resources implied, in one word, it reveals the efficiency of the application.

3. Specific aspects of information system auditing The range and ramifications of the use of informatics nowadays have lead to the necessity to evaluate and analyze the information system. The methodological frame associated to an internal public auditing mission aims to obtain an understanding of the requirements of the organization, the identification of existing vulnerabilities, the evaluation of the conformity of the internal auditing by identifying the risks and by applying the recommendations for performance improvement. The identification of the specific risks in the information system requires an analysis of the weaknesses in the monitoring process and the vulnerabilities of the system in order to assess the present or possible impact. Examination of the integrity of data is a stage that precedes the accomplishment of the internal auditing mission as the auditors have to make sure that that the results of the final reports are based on complete, precise and reliable data. The main criteria to be observed during a system auditing mission in the field of informatics are the following: -the available resources, equipment (processors and peripherals) and associated operation resources, their efficient, effective and economical use. It is essential, for an

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In the assessment of this plan the following aspects should be observed: -the participation of the users, which has to be sufficient in order to make sure that the application covers needs and expectations, that the samples are satisfactory, and, that the logistics related to the conversion of the present system into a new one is well planned and monitored; - the training of the users for the operation of the application, including manuals and necessary instructions; - the necessary modifications in the case of accountancy and administrative procedures that occur due to the use of the new application, as well as the timely availability of materials, forms and registers associated with these procedures; - the selection of criteria related to the completion of the application where we should mention the use of program packages vs. programming, the use of a data base structure vs. specific archives, decentralized processing vs. centralized processing, methods of data transfer (communication lines vs. physical media), immediate processing (on line) vs. differentiated (batch). The criteria of completion influence efficiency, effectiveness and economy as well as the monitoring and reliability of the processed information; - the fragmentation of the work plan into partial modules with concrete results and terms of execution. This will allow a better surveillance and monitoring of the development process and it will provide partial results for the whole length of the process; - the sufficient time allotted in the work plan to document the application (functionally and technically). This aspect is important from the point of view of efficiency and effectiveness (in employment, maintenance, and modification of the application) as well as that of internal control; - control mechanisms regarding the execution of the work plan, starting with

organizational aspects (such as an assessment committee that monitors the participation of users) and ending with highlighting the progress achieved (such as recurrent reports on the level of achievement and the documentation of the decisions taken – modifications, deadlines, priorities, conceptual changes). The operation activities occur chronologically through a cycle that contains the feeding of data which is to be processed, processing operations and the obtaining of results. Depending on the characteristics of the application, these phases can succeed without interruption or can take place punctually, independently, or in a combined form. There are special methods, typical of information technology, to limit and monitor access to equipment and data on magnetic media, as providing a personal password for the various access and confidentiality levels and automatic registration methods to use of equipment. 4. Conclusions The contemporary complexity of the financial and economic activities emphasizes the necessity to use accountancy and auditing techniques and tools that correspond to the requirements of information system users. Such a performance cannot be achieved through only classical auditing techniques; therefore, their completion with computer assisted methods is a natural and beneficial development for the aims of internal auditing. The methodological framework around a public internal auditing mission aims to obtain an understanding of the requirements of the organization, the identification of the existing monitoring procedures, the assessment of the conformity of internal monitoring through the identification of risks and the recommendations for its improvement. The identification of significant risks for the information system requires an analysis of weaknesses in the system and the monitoring process, in view of assessing the

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present and the potential impact. The inspection of data integrity is a phase that precedes the accomplishment of the auditing mission as the auditors need to determine that the results of the final reports are based on complete, precise and reliable data. Cases of fraud and error committed with the help of the computer are not

uncommon. Generally, information system auditing aims to complete an analysis on both general and particular levels, which sometimes affects the activities related to the information system, influencing the monitoring of the applications that exist in the system.

References [1] Arsac, J. Informatics, Romanian Encyclopedic Publisher, Bucharest, (1973). [2] Boulescu, M., Fusaru, D., Zenovic, G., The Auditing of Information Systems in the Field of Finance and Accountancy, Bucharest, Economic Publisher, (2005). [3] 3RSDù,RQHVFX&Auditing in the Field of Information Systems, Bucharest, 2005. [4] Zaharia M., CkUVWHD&6ăOăJHDQ/ Artificial inteligence and expert systems in assisting economical decisions, Bucharest, Economic Publisher, (2003). [5] Whittington, O., Kurt, P., Walter, B., Principles of Auditing. Tenth Edition, Boston, 2006.

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SOME ASPECTS CONCERNING THE COMMUNICATION IN MULTINATIONAL CORPORATIONS EXISTING ON THE ROMANIAN MARKET 0RQLFD1,ğĂ, Radu D. STANCIU Politehnica University of Bucharest, Romania [email protected], [email protected] Abstract: The proposed topic presents a high interest at least from two points of view. Economically speaking, the multinational corporations define to a considerable extent the economic performance of Romania. As communication, these corporations with entire or prevailing foreign capital could be considered as models for what it means intercultural communication and cultural adapting. The research of the aspects connected to communication in an intercultural framework allows the drawing of some pertinent conclusions concerning the role of communication as a key factor of success or on the contrary an important barrier. At the same time, the approach of communication process needs not only the study of communication itself but also the mentalities, the attitudes, and the behaviors. The present paper refers mostly to internal communication and less to promotional communication. In the same time, it refers to the way act the organizational cultures existing in those corporations, if there is a closed connection between communication and organizational culture.

Keywords: internal communication, multicultural, multinational corporations In addition, internal communication has a strong influence on the organizational climate [1].

1. Introduction The approach to communication within the multinational corporations on the Romanian market needs the focus on at least two aspects: place and role of those companies in the national economy, on one hand, and, from the point of view of communication, culture, and cultural adaptation, on the other. In the same time, the analysis of communication process in an intercultural context calls for a study not only of verbal and nonverbal communication but also of mentalities, attitudes, and behaviors. In studying the communication process of a company, is necessary to analyses the feature of both internal and external communication (so-called promoting or marketing communication) of it. It is important to understand, as well, the way the organizational culture acts, taking into consideration its strong relation with communication [1].

2. Overview of the multinational corporations on the Romanian market The late ’90s represented the entrance of the multinational companies in Romania. That event brought many changes in the economic and social environment, especially regarding the labor market. In the same time, that presence contributed to the emergence of modern technologies, different processes and procedures, consistency, and pragmatism. The most recent figures regarding the multinational companies in Romania, collected by the Romanian National Institute of Statistics within the Foreign Affiliates Statistics, were published in an annual report by National Bank of Romania in the autumn of 2016. The report shows that, from 450 thousand active companies


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more than 211 thousand employees (20,7% from total number of employees) [2, 3].

in Romania, multinational companies stand for around 30 thousand (less than 7%). The majority, 11.4 thousand companies, are in the service industry. While their weight in the total number of active companies is small, their impact on Romanian economy is very important [2, 3]. Nowadays, the companies with a majority or entirely foreign capital stand for more than 80% from the gross profit and the turnover, at least in industry, as resulted from latest economic studies and analysis on the economic performances of the most important companies in Romania made by The National Institute of Economic Forecasting of The Romanian Academy. Those figures sustained the report called “Romania Top 100 Companies” for 2011 to 2016 published by Finmedia, one of the most important companies in the market of economic publications [4, 5]. The most multinational companies are from European Union (71%). Taking into consideration companies’ turnover and the origin of the capital, most of those companies are from Germany. Second comes France, then Austria. Significant percentages have also the companies originating in Italy, Holland, Cyprus, Great Britain, and Spain. Regarding the companies originating outside EU, most of them are from United States, Japan, and Russia [3]. In analyzing the communication inside the multinational companies, is interesting to look to their workforce. The largest number of multinational companies’ employees are in industry (over 570 thousand, around 41.5% from total number of employees from industry). In services, there are around 147 thousand (21.5% from the employees in services), while in trade there are more than 180 thousand (21.4% from total number of employees from trade domain). The least employees are in construction sector, 24 thousand and is 6.75% from the total number of employees from tat sector [2, 3]. Over 79% of the employees (810 thousands) are in multinational companies originating in EU, while in the companies outside EU work

3. Intercultural dimension of communication in the multinational corporations The multinational corporations are important actors in the world economy. There are big companies, present in many countries, widespread all over the world through their subsidiaries or by mergers. The cultural spaces in which they run can be extremely varied and different. The personnel of those companies are heterogeneous from many points of view. Here is why, the communications problems are more delicate and complex. Therefore, the approach of the communication process at the level of multinational companies, including those on the Romanian market, refers to certain features of intercultural communication and negotiation, and emphasis the necessity of cultural adaptation. Cultural adaptation refers to a process in which the elements of a system (in our case, the multinational company, and its subsidiaries) are oriented and go in a direction where the adaptation probability increase [6, 7]. As a response to diverse cultural environments, the cultural adaptation appears when the individuals a significant measure of compliance in the new cultural environment. At the same time, within the intercultural contacts, one may speak of the emergence of a “land border” called cultural exchange, founded also in Romania, and represented by a set of rules, traditions, customs, attitudes, behaviors belonging to one part, specific for one culture that neither side will follow accurately, to achieve an easier rapprochement [7]. The culture influences both verbal (through spoken language) and nonverbal communication. Oral communication, used when there is a high cultural context, allows a greater closeness between people, a better knowledge of the way of thinking, trust,

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etc. may generate one of the barriers most important and elusive, differences in perception. The communication style may vary from one direct, clear, and concise to an indirect, roundabout and with nuances of meaning, hesitant one. In this sense, very important is the knowledge of the cultural features of employees who come from other cultures and, on this basis, the development of empathy. Multinational and intercultural teams must work together to combine their efforts to obtain the best results. In terms of "global communication" of these companies it is necessary to analyse the aims, principles, and philosophy declared by them. These principles must be included in all messages transmitted to assure image consistency and to achieve maximum impact on communication. Messages can be transmitted mainly through advertising and public relations. Table 1 presents some examples of principles, goals, philosophies states be such companies that run on the Romanian market.

credibility, morality, creating a communication link before starting to talk business [1]. In written communication, specific for a lower influence of cultural context, the emphasis is on written documentation, rigor, and pragmatism founded especially in “cold” cultures. Non-verbal communication must be carefully studied because its impact is much more important than verbal communication. People belonging to diverse cultures may have different gestures and facial expressions and may different in terms of body language, dressing code, how time is perceived, social distances, etc. The differences in values and beliefs, mentality, attitudes generate the so-called intercultural communication barriers because there are harder to spot and harmonize. Factors like how perceived good and evil, relations between men and women, how time is perceived, which traditions are considered important, the way to show respect, prejudices, attitudes towards other cultures,

Table 1 Values and principles promoted in multinational corporations

Company

Values

Principles Focused on client satisfaction. A better price/quality ration Fairness for each employee Compliance with legislation in force and internal regulations

Kaufland Romania

Fairness and respect for clients, employees, and partners

Carrefour Romania

Solidarity – financial and logistical support for A better life-quality social programs every day Care for environment – sustainable development Dedication, Attention to human relations responsibility, optimism Development of close ties with domestic producers

ArcelorMittal

Nothing is more important than employees’ health and life

Including labor health and safety in any decision process Personnel development Environment protection

Integrity, Leadership, Involvement, Passion for Success, and Trust

Company’s and individual interests are inseparable. Respect for everyone Innovation is the cornerstone for success; Outwards orientation Be the best

Procter & Gamble

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Company

Values

Principles Communication – listen and keep balance in everything you do Integrity – be correct and fair in everything you do Take any necessary measurements to avoid conflicts Stay out of politics

Orange Romania

Creativity, Audacity, Dynamism, Care of the details, Consistency, Courage

Oriflame Romania

Respect for people and nature; Direct communication Beauty, Dedication, Support for personal and professional Passion, Solidarity, development Spirit – positive attitude Community involvement Manufacturing natural products.

Coca- Cola Romania

Innovation, Passion, Integrity, Attitude of a Leader

Added value gives clients Efficiency and Metro Cash & Creativity Employees are Carry Romania the most valuable resource of the company

Leadership in costs Teamwork Integrating the principals of sustainable development into the decision-making process Social partnership Excellence in the supply chain management Hygiene, quality, and packing at lofty standards Outstanding innovation and performance at competitive prices.

background) can be well above what companies will offer. Professional advancement and salary increase do not come when expected. The rewards for young people can sometimes consist of training abroad, most often not followed by a promotion or raise. In addition, other elements may have an impact on communication, culture, and organizational climate. Some of them have a positive connotation, some not. Often, companies working on the principle of outsourcing, which means, among other things, that the Romanian employees will do the same thing with their foreign colleagues, but for much lower wages. Then, investing in people is well timed, the induction training must cover all requirements of the post because they consider the possibility that the employee will leave the company after six months. It is intended that the adaptation period to be

4. Aspects regarding the internal communication within the multinational corporations on the Romanian market Working in a multinational is the dream of many young Romanian graduates of college (one or more), or of one or more Master programs. Many of them do not know exactly what they expected: large volume of work (overtime hours), pace, prolonged stress, adaptation cumbersome due intercultural context. Young people can have a successful upward career, a “brilliant career“. On the other hand, in a multinational company is possible that this is only a myth. In fact, the place and role of everyone in the company are defined, the potential for each job is well designed and decided, and everyone’s career path is predetermined. Therefore, the expectations of many employees (especially those with a solid, talented, and creative

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x

as short as possible and many things to be learned on the fly in a fast pace. Most employees are young graduates or fresh employees. At the beginning, their wages are higher than in the public sector or in Romanian companies from the private sector, but in time, or even in case of a promotion, there are not important increases in wages. Those companies focus on cost cutting and profit increasing because the performance of managers will be appraise based on these aspects. In addition to their parent company, multinational corporations have offices in other countries, so Romanians may have colleagues in countries like England, France, Germany, the US, or even more remote countries of North Africa, Asia, etc. The line managers for Romanian employees are also Romanian but the top management is foreign. There are meetings for activity analysis where those involved are informed of the performance indicators. Information is oriented on past activity and are not communicated future goals and projects. Many times, there is no transparency or honesty, and may appear games for satisfying unofficial interests. The work environment can often be bureaucratic, especially in terms of decision-making. In the same time, risk control and focus attention on results makes human resources to be secondary. In addition, the working environment organization is a "desk near desk" type, and employees must adapt to a situation that does not respect the personal space. Talking only about the advantages of having a job in a multinational company, they refer to but not limited to the following aspects: x A higher salary and a bonus system different from those existing in Romanian companies; x Private health insurance usually included salary offer; x Possibility of specific training abroad;

Possibility of posting in other foreign subsidiary, seen as a promotion; x Ability to approach a set of values and models that are relevant to employees not only professionally, but also in terms of personal development; x There is the opportunity to develop in a multicultural environment that broadens the horizon of thought. The official language in most companies is English. Exceptions are the German or Austrian companies who claim knowledge of the German language. For Romanian employees, English language is not a barrier to communication The “business” language used by the Romanian employees is a mixture of English terms with Romanian language, so cold “Romgleza”, that tend to replace the Romanian language in many companies especially in IT marketing/advertising, and management. More than their foreign colleagues, Romanians put price on interpersonal relationships at work and less on their professional goals. For example, they talk "too much" comparing to Western employees, about themselves and about others. Communication between employees and management (middle and top) is mostly indirect, through a designated person or email. Many meeting are “virtual”, by using telephone or intranet. They are used to discuss topics referring mainly to figures or to give orders, etc. Given the less enjoyable experiences of Romanians working in multinational companies, some negative manifestations related to communication like gossip and any verbal attack against someone, especially when is not present, disrupting a supervisor especially when making observations, refusing a task without tact, promising something before understanding exactly what it is, deadlines noncompliance, etc. must be avoided.

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cultural differences. So, one may speak of a "cultural exchange” process. Intercultural communication problems within multinational companies in Romania are not related to the official foreign language spoken. They deal with the mentality, attitudes, behaviors, and management system. The multinational companies have no special preoccupations on how communication works and how motivated are employees. They focus on outcomes and profit. Even if how communication works reflect the economic performance and the organizational culture and organizational climate, this is not fully realized in most companies.

6. Conclusions The aspects presented in this paper and many more others not explicitly presented because of space limitation, led to some conclusions. In the business space of the multinational companies, local cultural values approaching increasingly more European ones, since the clear majority of the companies comes from Europe. To have a communication process, a multinational company must cultivate a range of values that transcend individual cultures within it, as the quality of intercultural communication depends on how everyone in the organization understand and accept

[1] [2]

[3]

[4]

[5] [6]

[7]

References 1LĠă 0 6WDQFLX 5' Annals of the Oradea University, Fascicle of Management and Technological Engineering, Vol. XXIV (XIV), No. 1, pp. 105-108, 2015. Banca NDĠLRQDOăDRomâniei, ,QYHVWLаLLOHVWUăLQHGLUHFWHvQ5RPkQLDvQDQXO. [pdf], Available at http://www.bnr.ro/PublicationDocuments.aspx?icid=9403 [accessed March 2017]. http://economie.hotnews.ro/stiri-finante_banci-21600876-isarescu-multinationalele-trebuieintre-legislatia-romaneasca-respecte-fiscalitatea-regulile-noastre-cate-multinationale-suntfapt-romania-afaceri-deruleaza-cati-angajati.htm [accessed March 2017]. http://www.zf.ro/banci-si-asigurari/s-a-schimbat-liderul-top-100-cele-mai-valoroasecompanii-din-romania-hidroelectrica-devine-pentru-prima-data-cea-mai-valoroasacompanie-din-romania-devansand-omv-petrom-16005049 [accessed February 2017]. http://www.piatafinanciara.ro/top-1000-companii-dupa-cifra-de-afaceri-pe-2015/ [accessed February 2017] NiĠă M., Organizational Culture and Entrepreneurial Spirit: Romania vs Germany, Proceedings of the 3rd Review of Management and Economic Engineering International Management Conference, pp. 79-85, Cluj-Napoca, Romania, September 2012. NiĠă M., Aspects of The Organizational Culture in The Multinational Companies in Romania, Proceedings of the 6th International Conference of Management and Industrial Engineering, Management – Facing New Technology Challenges, pp. 307-313, Bucharest, Romania, October 2013.

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CZECH ARMED FORCES AND SOME ASPECTS OF HELICOPTERS ACQUISITION Antonín NOVOTNÝ, Dalibor PROCHÁZKA University of Defence, Brno, The Czech Republic [email protected], [email protected] Abstract: After several years of discussion and decision-making approaches Army of the Czech Republic to implement the purchase of multipurpose helicopters to replace the previously used, morally and physically obsolete attack helicopters Mi-24 / 34. The process of acquisition consists of many stages; it is not a simple matter and has its pitfalls. It is also a big, expensive and long-term acquisition in which the poor implementation can cause problems that are likely to affect the Army of the Czech Republic and its Air Force for many years. One of the decision-making process inputs is an estimate of Life Cycle Cost (LCC). For the estimation, many methods can be used. The paper deals with application of system dynamics to LCC estimation process. Partial models of utilization and support Life Cycle phases are presented, which can be further developed according to consecutive data availability. An influence of different helicopter operating modes on a Life Cycle Cost is demonstrated by means of simulation in Vensim application. The models, after verification and validation, can be used to support the acquisition process. Keywords: Helicopters; System Dynamics; Life Cycle Cost; Life Cycle Model; Acquisition. ground technical specialist [1].

1. Introduction Helicopter air force will remain an indispensable part of the Czech Armed Forces, and it will be key contributing factor to carrying out foreign missions. Helicopter forces will be further developing in order to fulfil a wide range of operational missions, including tasks in support of the Special Forces and the Integrated Rescue System. The biggest share will be medium sized transport helicopters and multipurpose helicopters. Training, maintenance and modernization capability will be developed to meet the Czech Armed Forces and Alliance needs. Priority will be given to operations training at the Multinational Aviation Training Centre (MATC) focusing on standardization and efficient training of helicopter crew and

2. Replacement of Mi24 / 35 helicopters in the Czech Republic One of the main reasons for the helicopters replacing in the Czech Air Force was, and still is, ending or reducing dependence on Russian technology and the transition to the platform one of the Western manufacturers. The unsatisfactory situation in the supply of spare parts for repairs and service for Russian equipment is even more complicated by situation in Ukraine and is also affected by the European Union embargo against the Russian Federation. Acquisition of new helicopters does not mean immediate shift away from the use of MIL Series helicopters, which are in service


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in the Czechoslovak and Czech Air Force since 1956. Helicopters Mi-24/35 will continue to operate primarily to keep the ability of flight personnel at least until the new multipurpose helicopter delivery.

staff, ensuring initial and subsequent logistical support for its planned annual flight hours etc. For helicopter operations it will be necessary to develop a comprehensive land service, including service technology, to provide repair and maintenance facilities and training capacity. From this point of view some potential suppliers should have comparative advantage. For example, the signing of the Memorandum of Understanding between Bell Helicopter and LOM Praha company about service military helicopters manufactured by Bell. This includes installation, customization and maintenance of helicopters not only for the Czech Republic but also for Central and Eastern Europe [3]. The final helicopters price also significantly affects the electronic and sensory equipment of helicopters. Another important variable is the type and quantity of purchased ammunition or missiles, which can markedly affect the final cost of the purchase. So, it is not only about the total amount of "buying" prices for the whole helicopters acquisition, eventually price for "one piece," but the total financial costs of the entire project, Life Cycle Cost (LCC) of the system.

3. The acquisition process of new multipurpose helicopters in the Czech Republic The aim of the project is the acquisition and implementation in the service 12 multipurpose helicopters, including weapons and ammunition with requested options and alternatives for tasks of combat support for ground and special forces and other specified tasks, providing initial and retraining of flying and technical personnel (including instructors) and providing initial logistics support. For every helicopter it is planned and requested 250 flight hours per year [2]. The contract will be implemented in the government-government mode. Czech Air Force requirements: - The twin-engine multipurpose helicopter; - Type Certification and conformity certificates issued by national / military authority or the civil aviation authority - Certification of weapon systems - Ability to operate day and night, under adverse weather conditions of permanent airport, terrain and areas of limited dimensions out of the permanent airport network; - Ability to operate in all climates, with the exception of the Arctic; - Ability to fire support of ground forces [2].

4. Model of Life Cycle Cost Estimate Although functionality of any military system is a key requirement when a new system is procured, dealing with economical restrictions, which always present, the Life Cycle Cost is another factor which must be considered. The issue is that not only the initial acquisition price should be considered, but in-service phase cost, which regards to the most important phase of a system life cycle, i.e. operating it.

Currently they seem into account these types of helicopters are considered: - Airbus Helicopters H145M - The Bell UH-1Y Venom - S-70i Black Hawk: International military version assembled by Sikorsky subsidiary, PZL Mielec in Poland. - Leonardo-Finmeccanica AW139M (Military)

The Life Cycle of a system is divided into six phases: concept, development, production, utilization, support and retirement. The utilization and support phases concern operation of a system and they run parallel. The phases of Life Cycle are in depth described in [4]. Dealing with helicopters, we will focus only on the utilization and support phases of LCC,

It is evident that an integral and important element in the acquisition of multipurpose helicopters for the Czech Air Force is the price. In this case comprises not only the price of the helicopter, but also ensure the initial and retraining of flying and technical

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because the Czech Republic do not have capabilities for helicopter research, development and production, and the acquisition process has no influence on life cycle early phases costs. The same can be said for the retirement phase. The presented approach uses a system dynamics model. Partially, the Czech Army operates four types of helicopters, A, B, C and D. The generic names are given because the authors were not able to verify data and the focus of the paper is on methodology of life cycle phases cost estimate. Table 1 present empiric data for cost of flight hour (FH). There is a direct cost of FH, which includes fuel, lubricants and other liquids and materiel, spare parts

necessary for a helicopter operation. The reproduction cost represents required general overhauls (GO) of helicopter components given by helicopter producer regulations. GO is required after specific amount of fly hours or after reaching a component lifespan. It is expressed as the Operation Period between GO (OPBGO), represented by either a component flight hours or an age, which occurs first. There is no modernization cost included. This support scheme is used for helicopters A, B and C. An example of a required component GO of the C helicopter is given in Table 2.

Table 1 Empiric flight hour cost composition FH Direct Cost Support Cost per FH FH per Year

Helicopter A 154 029 CZK 28 667 CZK 250

Helicopter B 94 729 CZK 37 000 CZK 250

Helicopter C 105 479 CZK 48 700 CZK 200

Helicopter D 135 223 CZK 66 136 CZK 147

Table 2 Example of components GO costs for helicopter B Component Airframe GO Engine GO Reducer GO Main Rotor Blades Tail Propeller Blades Total per FH

Cost

OPBGO FH/Year

30 000 000 CZK 8 500 000 CZK 3 500 000 CZK 5 200 000 CZK 1 500 000 CZK

4 800/10 1 000/8 3 000/8 1200/8 1000/8

The D helicopter uses a different GO scheme, typical for modern helicopters. Required work, according to the producer regulations, is undergone every 1500 flight hours and the component is repaired or exchanged respecting actual findings and the component lifespan. According to the Table 2 the support cost per FH is given by the supposed amount of flight hours between GO, which is in this case 1000 FH. This value in general can vary depending on an actual helicopter operation. The model presented bellow allows calculating this value according to supposed helicopter operation scenario and even in case of supposed amount of FH per

Real FH OPBGO

per 1 000 1 000 1 000 1 000 1 000

FH Cost 30 000 CZK 8 500 CZK 3 500 CZK 5 200 CZK 1 500 CZK 48 700 CZK

year is not constant. The generic model can be further detailed and it is capable to support a LCC estimate of any considered helicopter supposed that the producer would provide required data. The model was developed using a system dynamics methodology [5] in the Vensim DSS application. Dealing with the LCC analysis, the system dynamics is beneficially used in case of many factors influencing price and long time period of life cycle. A generic system dynamics model of a helicopter LCC estimate was published in [6]. The presented paper deals with utilization and support phases only and provides a further decomposed model.

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The model of utilization phase is very simple, Figure 1. It uses an amount of FH per year (FH per Y), the flow In FH per Y is integrated in the FH Total variable and the Utilization Cost variable is a product of FH Total and FH Cost.

helicopter is different. There is only a rough estimate of work required cost available, given in Table 3. Table 3 Estimate of required work for D helicopter Flight Hours Estimated Cost of required work (mil CZK)

1 500 20

3 000 50

4 500 125

6 000 50

5. Simulation results Models of utilization and support phases were created for the A, B, C and D helicopters based on available data. For the comparison 250 flight hours per year and 25-year life cycle were assumed. The results of the simulation are in Figure 3. Although the A helicopters has a higher FH direct cost (see Table 1), the support cost of the D helicopter causes almost the total cost of these phases during the life cycle. Dependency of the utilization and the support costs on the operation mode given by various amount of flight hours (200, 300 and 400 FH per year) is illustrated in Figure 4, using the D helicopter cost model.

Figure 1 Model of utilization cost

An example of a helicopter airframe general overhaul model is in Figure 2. The variables Time Counter Airframe and FH Counter Airframe count time and flight hours from the last GO respectively. If the conditions for GO (set in OPBGO Airframe) are met, the value of the Moment GO Airframe variable sets the Airframe GO Undergo variable which influences the inflow Invest Airframe. The last one represents actual investment, based on data from the Cost GO Airframe variable. The total amount of investment is accumulated in the GO Cost airframe B variable, so it represents the total cost of the airframe GO.

Figure 3 Comparison of utilization and support costs

Figure 2 Airframe GO model

Analogic models were created for the other components; see Table 2, for helicopters A, B and C. The GO model for the D

Figure 4 Utilization and support costs by flight hours per year

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helicopters then would have a chance to succeed then his platform in future competitions, mainly because of the large costs of service, training and repair base, which forms a very significant asset lifecycle costs in this project. Although the economic parameters of any military systems for the acquisition and management of Life Cycle Cost are important, represent only partial access to the decision-making process. Other parameters, particularly technical and combat, of course, are assessed and may be given stronger relevance. An integral part of the decision-making process must be also the risk analysis. On the other hand, an estimate of the Life Cycle Cost is an important input for medium and long term planning. Due to the limited military budget may prove advantageous variant that is needed in higher overall costs, but the favourable timing. It is clear that not only the results of this tender, in addition to economic factors, can affect many other factors (political, diplomatic, military, ...) which in effect may play a crucial role and may modify the final decision. These factors, however, are not the subject of research, but this article focuses on modelling the exact, quantifiable factors in two LCC phases, utilization and support, and finds system dynamics as a proper method. The process of LCC estimate is generally described and documented and the Czech Republic adopted and implemented appropriate standardization documents, but development of specific models is necessary to support the decision making processes at all phases of the life cycle. The ambition of the article was to contribute to it with a model which can support the comparison of economic factors of considered variants.

The model outputs provide not only the relation between utilization and support costs according to a helicopter operation costs, but also their time behaviour. The briefly introduced approach of life cycle phases modelling can be applied to consideration of Life Cycle Cost of potentially acquired helicopters. A crucial point is availability and completeness of data or at least an estimate for all phases (the acquisition cost is substantial). The model can be further decomposed and detailed according to a data collecting process. Models of other items as weapon and communication systems, training systems, ground infrastructure and personnel costs can be developed as well. Advantages of the above introduced model using system dynamics are more accurate cost estimate in time, potential of model decomposition and refining according to data availability and visualization of the system elements and couplings. A further step of an application of system dynamics to LCC model would require to complete the system structure and to take into consideration resource limits, which vary in time and which include finance, available and prepared personnel and an infrastructure. 6. Conclusions The acquisition process of multipurpose helicopters belongs, with respect to the complexity and amount of financial resources, in the big Czech Republic defence projects. It may affect the development of the Czech Air Force for many years ahead. It is clear that after some time the previously used MIL helicopter platform will be left, as has been variously spoken in connection with Concept of the Czech Armed Forces Development 2025 [7]. Potential winners of this current tender for the purchase of 12 multipurpose

References [1] Czech MoD. The Long Term Perspective for Defence 2030. Prague, 2015. Available at: http://www.army.cz/images/id_8001_9000/8503/THE_LONG_TERM_PERSPECTIVE_ FOR_DEFENCE_2030.pdf

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[2] Presentation deputy commander of Czech Air Force. Helicopter Technology Eastern Europe Conference. Prague, 24. - 25. 6. 2015. The Multirole Helicopter Procurement Road Map. [3] Hectic week in the Czech aerospace sector. Available at: http://www.czechinvest.org/en/hectic-week-in-the-czech-aerospace-sector [4] Methods and Models for Life Cycle Costing: RTO Technical Report TR-SAS-054. F92201 NEUILLY-SUR-SEINE CEDEX: RTO NATO, 2007. ISBN 978-92-837-0072-2. [5] Introduction to System Dynamics. System Dynamics Society [online]. Rockefeller College University at Albany, SUNY Albany, NY 12222, USA: System Dynamics Society, 2017 [cit. 2017-03-29]. Available at: http://www.systemdynamics.org/what-is-s/ [6] NOVOTNÝ, Antonín; PROCHÁZKA, Dalibor. Application of System Dynamics in Acquisition Helicopters for the Armed Forces of the Czech Republic. (Only in Czech) In: Sborník vedeckých a odborných prác. 6. Medzinárodná vedecká konferencia "Národná D PHG]LQiURGQi EH]SHþQRVĢ /LSWRYVNê 0LNXOiã 6ORYHQVNR: AOS Liptovský 0LNXOiãS. 431-442. ISBN 978-80-8040-515-1. [7] Czech MoD. Concept of the Czech Armed Forces Development 2025. Prague, 2015. (Only in Czech, unclassified version) Available at: http://www.mocr.army.cz/images/id_40001_50000/46088/KVA__R_ve__ejn___verze.pdf ACKNOWLEDGEMENT - The work presented in this paper has been supported by the Ministry of Defence of the Czech Republic (Research Project “STRATAL” No. 907930101023).

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THE ROLE OF INTERNAL CONTROL IN MANAGING THE RISKS SPECIFIC TO THE FINANCIAL FIELD 9DOHQWLQ3Ì598ğ ³1LFRODH%ăOFHVFX´/DQG)RUFHV$FDGHP\6LELX5RPDQLD SLUYXWBY#\DKRRFRP Abstract: This article deals with a currently discussed topic, namely that of preventive financial control, a concept that has to ensure a reasonable use of public funds in a transparent, economical, efficient and effective manner. In this sense the issues related to public internal financial control are considered instruments that actively influence the organizational and managerial culture of the public entity in a positive manner by engaging in control actions that are meant to identify and stop the possible illegal activities or actions, fraudulent or uneconomical use of public funds. I further detail the concept of public financial control with the two principal branches, that is the preventive financial control and the preventive financial control proper. The preventive financial control proper, by exercising the control visa for every financial supporting document affecting public funds, is a cornerstone regarding the exercise of financial control activity. .H\ZRUGV VWUDWHJ\ RI SXEOLF LQWHUQDO FRQWURO LQWHUQDO FRQWURO LQWHUQDO FRQWURl VWDQGDUGVSUHYHQWLYHILQDQFLDOFRQWUROFUHGLWRIILFHU . 2001, on the European Commission ,QWURGXFWLRQ The most important purpose of public recommendation, being updated constantly institutions is to meet and satisfy the according to the evolving economic necessities and objectives of public and environment. This document is achieved by national interest in terms of transparency, consulting and co-operating with the main efficiency and effectiveness. The stakeholders in the process control, such as: continuous improvement of the Ministry of Finance, Court of Auditors, the establishment and use of public funds is ministries with large budgets, structures required by mandatory legal provisions and exercising audit, academic structures, the verification of compliance with all the economic research institutes and specialists laws is guaranteed by the control function. in the field. By virtue of this principle, Romania The purpose of the PIFC Strategy is to through the Ministry of Finance - authority establish the short- and medium-term which has responsibility for policy strategic development of public internal formulation and implementation of financial control in Romania in the 2014financial control and financial management 2016 period. - implemented a public internal financial The development and modernization of control system. public internal financial control in Romania involved the monitoring and verification of the following indicators [1]: 7KH VWUDWHJ\ RI GHYHORSLQJ SXEOLF a) public revenues (establishment, inWHUQDOFRQWURO The first "Strategy of public internal registration and tracking receipts); financial control" appeared in Romania in DOI: 10.1515/kbo-2017-0097 © 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

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b) public expenditure (management and use of funds for financing the expenditure in the established budgets; c) the management of public external reimbursable and non-reimbursable funds; d) revenues and expenses of national societies and companies in which the state is a majority shareholder. The PIFC strategy's objective is to present the current state of PIFC as a result of the progress made in the last three years on the basis of the diagnostic analysis and the main lines of action.

They also empower other persons occupying management positions, who are specialized in the implementation and development of operational procedures at their specific level of responsibility, punctual inspections and the organization of control activities through teams and specialized committees, depending on the identified activities and risks, resolving the observed failures or irregularities and reducing or maintaining an acceptable level of risk. Through this delegation of responsibility which also means total involvement in organizing a control system most efficiently, managers have the legal mechanism and instrument to organize and implement their own system of internal control, not needing to wait for someone from outside to organize the control system. The actual control activities may include: observation, endorsement, approval, decision, resolution, decision, resolve, planning, verification, analysis, separation of duties, reporting and monitoring.

3IQWHUQal FRQWURO Respecting art. 5 para 2 of the Government Ordinance no. 119/1999 on internal/managerial control and preventive financial control, republished, with subsequent amendments, the Secretariat General of the Government issued the Order no. 400/2015 for approving the Code of internal managerial control of public entities comprising the internal control standards in public entities and the regulations on the duties and responsibilities of managers. The Code of internal control comes in the form of internal control standards, which represent an important aid for managers in the knowledge of the general principles of good practice in terms of establishing general objectives by reference to a reference system and identification of a minimum set of management rules. In terms of forms, internal control can manifest through self-control, chain control, hierarchical control, and depending on the time of exercise, it may be ex-ante (before), concomitantly (in kind), ex-post (after) the operations subjected to control. This code created the general manager's responsibility of deciding on the control measures required for the implementation and development of its internal control system, taking into account the specificities of the institution he leads and the internal control standards.

4 PXEOLF LQWHUQal ILQDQFLDO cRQWURO (PIFC) The purpose of the public internal financial control is to verify the legality and regularity of the operations, identify the weaknesses of the internal control system which allowed the fraud or improper management, as well as to propose measures to remedy them. The public internal financial control includes: 1. Internal/managerial control has the following objectives: - proper performance of the duties of public institutions, in terms of regularity, efficiency, economy and efficiency; - protecting public funds against losses, waste, abuse or fraud; - compliance with applicable laws. 2. Public internal audit is part of the internal/managerial control and it is organized under the direct leadership of the public entity [2].

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3. Coordination and centralized harmonization of the system of internal/ managerial control and internal audit is ensured by the Ministry of Finance, through two premises: x Central Harmonization Unit for Public Internal Audit – ensures the coordination, supervision and internal audit in the public sector; x Central Harmonization Unit of Financial Management and Control Systems – ensures the coordination and monitoring of the implementation and development of the internal/managerial control. Those responsible for the design and development of internal/managerial control systems (i.e. ensuring functionally independent internal audit) are the managers of public entities.

eliminate the risks in managing public funds. Organization of preventive financial control proper The authorised officers are obliged to organize preventive financial control proper and to keep records, updating and reporting according to the methodological norms and commitments through financial-accounting divisions. The head of the financial-accounting compartment establishes the projects of operations subjected to preventive financial control, the supporting documents and their circuit, respecting the legal provisions and submits them for approval to the entity head. The preventive financial control proper is exercised by applying the personal seal with the visa of preventive financial control, by people with specialized professional skills within the accounting departments and in the financial limits for exercising control. The appointment, dismissal or change of personnel responsible for the PFC visa is done at the proposal of the entity leader with the approval of the superior entity, the respective persons not being entitled to initiate the transaction subjected to the visa. The projects of operations subjected to the visa are accompanied by appropriate supporting documents, certified with regard to reality and legality by the signature of the leaders of specialized compartments that initiate the operation in question and are responsible for their correctness and legality.

PUHYHQWLYHILQDQFLDO FRQWURO The public entities are subject to preventive financial control by checking the legality and regularity of projects or operations aimed at: legal commitments (control of legal base), global and individual budget commitments (compliance control), budget appropriations employed (employment within budget appropriations), opening and allocation of budgetary appropriations, authorization of expenditure, payments and cash receipts, public revenues and establishment of marketable debt, reduction or cancellation of debt, recovery of paid or provided unduly amounts, sale, lease or rental of goods from private or public state domain and other operations established by order of Minister of public finance [3]. Organization of preventive financial control The financial control proper can be applied to all public entities and to all financial operations, while the preventive financial control is delegated to the main credit officers through controllers delegated by the Ministry of Public Finance. In the long-term, preventive financial control should be integrated in the sphere of managerial control, as this control will

5LVNVVSHFLILFWRWKHILQDQFLDOILHOG The causes leading to the appearance of risks in the financial field are closely related both to the proper organization and activity of the structure and to the activity of the other organizational compartments or structures that the financial structure works with. Some of the most frequent riskgenerating causes can be:

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x frequent changes of the organizational structure, reorganizations, mergers and spin-offs of public institutions, as welll as personnel fluctuations; x poor organization of the specialized compartments certifying operations to reality, legality and regularity; x non-identification of the sensitive operations and targeting operations that prove to be ineffective; x frequent changes of legislation; x lack of norms, guidelines and detailed procedures for conducting operations, optimizing the flow of documents and precisely defining the responsibilities of specialty departments and staff working in them. At public institutions by the VHFUHWDU\ of the Commission responsible for monitoring, coordination and methodological guidance of the implementation and development of their systems of internal managerial control the Register of risks and the program of development of internal managerial control is drawn up on the basis of the propositions given by the heads of microstructures. The command of the institution approves of these two projects and oversees their implementation and development. Risk management involves running the following steps [4], irrespective of the domain of activity: x identification of general and specific objectives having a decisive role in completing the mission; x establishing the main activities necessary for accomplishing the identified general and specific objectives; x identification of major risks that can affect the accomplishment of general and specific objectives; x evaluation of identified risks; x establishing the measures for managing risks and for implementing them; x analyzing the stage of implementation of measures of risk management; x reevaluation of the process of risk management.

The implementation of risk management is a process that involves the effort both of the command and of the whole personnel of an organization, consisting of: Identification of risks The existence of a system of clearly defined objectives within the structure represents the essential premise for identifying and defining risks. Risks are identified and defined in relation to the objectives whose achievement is affected by the appearance of risks. The identification of risks is achieved by formulating the answer to the following question: Which would be the consequences of not carrying out or of carrying this activity/task inadequately? Evaluation of risks Risk assessment involves assessing the probability of risks materializing and their impact on objectives if they materialize. The risk assessment steps are: assessing the likelihood of materialization of the identified risk; assessing the impact on objectives if risks materialize; assessing the exposure to risk. Establishing tolerance to risk Risk tolerance is the "amount" of risk a structure can tolerate or is willing to be exposed to at a certain moment. Establishing the risk tolerance capping consists in putting in a steady relationship the cost for controlling risks with the cost of exposure where the risk would materialize. The strategy for risk mitigation controlling risks (response to risk) D Once the risks have been identified and evaluated and the tolerance limits have been defined, the type of response to risk is determined for each separate risk by implementing the following strategies: x Acceptance - involves tolerating risks or not taking measures of control or intervention; x Avoidance - involves eliminating the activities that generate risks;

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x Permanent monitoring - involves keeping risk under permanent supervision and operating when the probability of risk is increased; x Transferring risks - involves assigning the risk to a third specialized party, on the basis of contract or insurance, leading to lowering the exposure of the structure to risk; x Treating risks - means acting through measures to mitigate the likelihood and impact by using tools for internal/managerial control. E The internal/managerial control instruments are the set of measures taken to mitigate risks and are classified into six groups, as follows: x objectives x means x information System x organization x procedures x supervision and control.

The reviewing and reporting of risks involves monitoring the modification of risks as a result of the implementation of internal managerial control tools and of the modification of the circumstances of risk occurrence. &RQFOXVLRQV From this presentation one can assess the relationship of mutual interconnectedness of all forms of control used in the Romanian system of control and management of public funds, which could not work or would work with great difficulty and deficiency without each other. This hypothesis leads to the need for a management control integrator, whereby all control forms join in and work together in order to achieve the desired effect, namely the efficiency and effectiveness of public funds.

5HIHUHQFHV [1] [2]

[3]

[4]

The Ministry of Finance, Strategy of development of internal public financial control in Romania for the 2014-2016 period, January 2014, Bucharest, p. 4 The Parliament Of Romania , Law no. 672/2002 regarding internal public audit, republished, with subsequent amendments, available at: http://discutii.mfinante.ro/static/10/Mfp/audit/lege672_mo856_en.pdf Romanian Government, Ordinance no. 119 of 31 August 1999 (**republished**)(*updated*) regarding internal control and preventive financial control, art. 6 , available at: http://lege5.ro/Gratuit/ge2daojzgeyq/ordonanta-de-urgentanr-3-2017-pentru-modificarea-si-completarea-legii-nr-227-2015-privind-codul-fiscal The Ministry of Defence, Methodological norms regarding the system of internal/managerial control, Art. 28 , M. Of Romania in force since 18.07.2016

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CAUSES OF FISCALITY GENERATING ECONOMIC AND SOCIAL EFFECTS IN ROMANIA Ioan Gabriel POPA “1LFRODH%ăOFHVFX” /DQG)RUFHV$FDGHP\ 6LELX5RPDQLD SRSDLJDEL#\DKRRFRP Abstract: I think I am in the same line with the majority of finance and especially tax specialists in arguing that taxation is an economic and social phenomenon, i.e. a chain of actions and deeds which take place in time and space. The main argument in considering taxation in a broader sense, as an economic and social phenomenon, is that taxation should ensure the achievement of the economic and social objectives of the state. This phenomenon is caused by a complex of factors that are general and perpetual and whose actions breed measurable consequences. Like any economic and social phenomenon, taxation is characterized by generating causes, specific to the time and space framework of the event, vectors of influence of the intensity of the action (accelerators or reducers) and noticeable results (effects) on the surface of the economic reality. The economic and social causes of the phenomenon of taxation are not usually measurable given the continuous interaction of the vectors of influence, but the effects are real, reliable and quantifiable. Therefore, it is necessary to undertake in-depth studies in order to understand the lesser known side of the elements that trigger the emergence and development of the economic and social phenomena. .H\ZRUGVWD[WD[HYDVLRQSROLF\FDXVHHIIHFW ,QWURGXFWLRQ Like any economic and social phenomenon, taxation is characterized by generating causes, specific to the framework of the event (time and space), vectors of influence of the intensity of action (accelerators or reducers) and noticeable results (effects) on the surface of the economic reality. Without being limited to research, understanding the concept of cause and effect is essential, as the only way to define the emergence, manifestation and completion of the phenomena and through this approach, to ensure the progress of scientific research. When discussing causes and effects, we generally think of a model able to highlight the interaction between phenomena and the relationship that leads to perceptible and measurable changes.

In an interactive causal process, which taxation is part of, the combined action of a number of factors can cause several effects. They often occur randomly, which eventually requires distinguishing cases in which the same causes determine different effects, depending on the given conditions. Regardless of the angle from which we perceive the evolution of taxation as a phenomenon or as social-economic processes, it does not depend only on hazard. The economic phenomenon is generated and governed by certain rules that are based on one or more causes of initiation and action. The identification, analysis and in-depth knowledge of the causes which generate taxation provide, inter alia: observing its evolution in time, the manifestation in space, the possibility of finding means of diagnosis and effective actions to reduce and mitigate the effects.


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The cause, in the sense used in everyday speech, is, according to the authors Elisabeta Clement and Pierre Kahn “that which produces an effect which is the constant antecedent of a phenomenon”. In this context, we can tackle on the notion of causality, with the meaning the same authors assigned it, as “the principle whereby a given phenomenon is attached to anther that is perceived as being its condition”, since we believe that every phenomenon has a cause, that the phenomena are interrelated to each other in a system, and causality is not linear, but rather circular, with a turn of the effect back to the case. In other words, the effects resulting from the action of a cause produce other effects in the context of a wider linkage. In this way, the process can be continuous until the cases are either annihilated or reduced to a reasonable level. This line of thought underlines the early identification of the causes of the action, the initial timing of a process or phenomenon.

must come up with mechanisms for influencing the economy. In specialized literature, economic policy is presented as “the conscientious action of public power, democratically established, involving the scientific definition of economic and social objectives of the nation-state for a certain period of time and the implementation of these objectives, starting form the existing conditions (premises) and using the suitable means and techniques”[1], which on the one hand refers to the interventions of the state to correct the imbalances that may occur at the level of the national economy, and, on the other hand, define all the decisions taken by the public power, designed to achieve through the use of instruments, safe aims related to the economic situation. The economic policy determines the legislator to choose between taxes on income, on capital and on expenditures, or to combine them. The aim is wealth, but it does not always have the same economic nature. Among its objectives, the economic policy aims at establishing the fiscal system, meaning imposing taxes and compulsory social contributions. The scope of the economic policy comprises fiscal policy, budgetary and monetary policy. In the following lines we will pursue the research in order to identify their main objectives. When we discuss fiscal policy, we must take into account both the amount and the sources of origin of the public budget resources. We also need to identify sampling methods to be used according to the objectives of the state and the modalities to accomplish them. Fiscal policy is based on several criteria, of which the tax efficiency criterion is the one indicating whether or not a new form of sampling is efficient or not. Therefore, the desire of fiscal policy is to ensure a large amount of public revenues while creating proper conditions to encourage business investment, without overlooking maintaining the tax equity as

0DLQFDXVHVRIWD[DWLRQ Taxation has positive and negative effects. The positive effects stem from their need and reason, i.e. to ensure the existence of the necessary resources. The negative effects are rooted in an excessive taxation and require finding relevant solutions and measures to mitigate the produced effects. For this reason, the following lines analyze the main causes generating negative effects. The causes of taxation are: (FRQRPLFSROLF\ 6RFLDOSROLF\ 7D[HYDVLRQ /HJLVODWLYHLQVWDELOLW\ (FRQRPLFSROLF\ In a modern society based on a functioning market economy, the state should exercise its increased economic role in all countries, in particular historical conditions and depending on their actual development. Since economically wise, the target of the state should be macroeconomics, the state

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related to the ability of the taxpayers to provide public income revenues. Tax policy tasks include: - designing the general system design of taxes and mandatory social FRQWULEXWLRQV - identifying the general and SDUWLFXODUOHYHORIWD[DWLRQ - establishing timely public budget revenues within the amount envisaged by taxes and mandatory social contributions ZLWKKLJKWD[\LHOG - preventing and combating tax evasion. Fiscal policy uses the fiscal system with the same purposes as the public authorities. As an instrument of political decisions, the tax system will influence the social, economic and political life of the state. Fiscal policy is primarily based “on the existing financial and economic potential to be ‘exploited’ in terms of financial and fiscal limits, but with maximum efficiency” [2]. A very well promoted and applied fiscal policy must increase the economic potential of a country so as to fully meet the social needs of the population. Political power uses fiscal policy as a lever to achieve the economic policy of a state. Thus, fiscal policy is “an indirect form of state intervention in the economy” [3] and is applied to the aggregated market of goods and services, which is why fiscal policy is associated with consumer and saving behavior of the businesses. Consequently, increased taxation and parataxation will reduce the disposable income of businesses, while their aggregated reduction over time has the opposite effect. The fiscal policy of a state also measures the degree to which the state intervenes in the economy. Forms of state intervention in the economy form a whole, interfering and being mutually conditioned. The results of the economic activity of the state will encourage or discourage taxation depending on the way in which this outcome is materialized, i.e. increasing or decreasing production activities, changing the standard of living, the manner in which

social needs are covered, ensuring higher or lower revenues for the state. When referring to the actions of the state in relation to the budgeting of the income, to the means and methods of constituting them and to their use for specific destinations, that nurture stability and economic development, we must refer to budget policy. Budget policy can be found in the legal document called public budget, which is the main means of presenting the formation of public revenues and the manner of spending them. In order to achieve a goal or action, the state must identify all real solutions that lead to choosing the best option, i.e. the best ratio between the expected effect and effort in activating, validating, and authorizing expenditures. In what concerns fiscal policy, taxes and mandatory social security contributions are nothing but genuine sampling channels for the financial resources from the public budget, but they are also tools that can be influenced by economic processes. According to Professor Bistriceanu, monetary policy “represents all the principles, rules, measures and instruments used by the state through the central bank or monetary authorities to regulate the issue, circulation and withdraw of money from circular arteries to exert proper influence on the national economy, in order to ensure stability of prices and exchange rates and control inflation”[4]. Monetary policy should be designed in accordance with the budgetary and fiscal policy and represents all the decisions that alter the amount of currency and interest rates in economy and are intended to amend the national income and prices. The objectives of monetary are subsumed to the objectives of the general economic policy, i.e. economic growth, internal and external stability of the currency etc. The implementation of monetary policy is conducted using tools that are designed to influence credit directly and bank liquidity indirectly. Monetary policy should ensure a better

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correlation between the household income and the amount of goods on the market or the growth of labor productivity and the average wage growth. 6RFLDOSROLF\ Social policy is made by the political power of the state, i.e. the government, by which it is believed to affect some of the public revenues constituted for the achievement of social objectives proposed by the government plan. From this perspective the political power wants the proposed regulatory framework for achieving its social policy to impose objectives. To achieve objectives such as social protection, education, health and the growth of living needs of the population, the government can use a regulated system of measures, activities or programs that redistribute some of the resources available. Moreover, social policy is reflected in all activities in the economic, cultural, educational, demographic, national minorities, gender, environment fields. Social policy objectives can be grouped as follows: SURPRWLQJ SXEOLF JRRGV GHIHQVH security, infrastructure, health, education, culture, VFLHQFH VRFLDOSURWHFWLRQRIVRFLDOJURXSVLQQHHG VRFLDOGHYHORSPHQWLQJHQHUDO In terms of social option, taxation broadly depends on the choice between types of taxes and obligatory social contributions. In order to assess the performance of the financial obligations to the state, these must be analyzed in terms of tax efficiency and fiscal equity. 7D[HYDVLRQ– FDXVHDQGHIIHFWRI WD[DWLRQ One of the most complex economic and social phenomena with negative effects on society and especially on the tax-paying citizen, a phenomenon that all countries face, is tax evasion. Tax evasion acts directly downwardly on fiscal revenues and eventually leads to market distortions. Most often, it contributes to the emergence or deepening of social inequalities arising

from the taxpayer’s inclination towards evading taxation, due to excess fiscality, so to tax evasion. It is both the cause and effect of taxation. Tax evasion is a cause of taxation because it has a negative impact on the efficiency of financial obligations, reducing their efficiency, thus reducing tax revenues and, at the same time, it is an effect of taxation determined by high fiscal pressure or even excessive taxation (fiscality), which leads to the hiding or the non-reporting of taxable assets, that encourages the black market and the finding of other methods and procedures of protection against excess tax. Tax evasion can be defined as “all legal and illegal methods by which those interested hide, in whole or in part, their taxable material obligations under the law tax” [5]. The same approach on tax evasion is found in 9ăFăUHO [6], Tulai [7], 'UăJRHVFX >@ etc. The above definition and the convergent opinions of the authors listed above lead to the assertion that tax evasion is precisely the essence of evading payment of financial obligations imposed on the taxpayer by the legislature. Another approach to tax evasion or a paraphrase of the previous one is given by C. Corduneanu [9] “... is the circumvention of the stealing taxpayers from paying tax obligations partially or totally incumbent on them, using loopholes or resorting to ingenious maneuvers, so as to conceal taxable assets”. This definition expands the scope of tax evasion to everything that leads to the reduction of taxable assets, whether or not endorsed by the legislature, since tax evasion is not the only form of non-taxation. It is supplemented by tax concessions, exemptions or reductions of taxes and mandatory contributions stipulated by the tax legislation regulations with express provisions in this regard. Although these forms of non-taxation of income inexorably lead to the reduction of public resources, they are not accomplished by the taxpayers’ evading the payment of the

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money. Therefore they cannot be included under the definition of tax evasion. According to the criterion of legality, Romanian specialized literature identifies two terms used to denote the form of tax evasion: lawful tax avoidance (legal) and illegal tax evasion (fraudulent). In the opinion of C.V. Brown [10], the two types of tax evasion are “... a legal reorganization of a business so as to minimize tax liability and tax fraud as an illegal reorganization of a business for the same purpose”. Morally wise, the ways to avoid taxes using legal instruments are as bad and fraudulent as the phenomenon of evasion itself and therefore I believe they should be treated accordingly. Typical activities of tax evasion determines the contributor to adopt complex decisions under uncertain conditions, that is to be found and ordered to pay financial obligations and accessories. In other words, even if there is a distinction between the two forms of tax evasion, licit or illicit, I think that can it can only be done theoretically (legal tax evasion does not exist in practice because it involves a non sense). However, this distinction is necessary because it enables the estimation of the phenomenon and raises awareness of the competent authorities to search and establish appropriate means to limit and control the phenomenon. In practice, the taxpayer’s repeated attempts to use the gaps in the law or even fiscal incentives sometimes materialize in violation of the law. /HJLVODWLYHLQVWDELOLW\ The frequent changes to tax legislation have created “disorder” in the Romanian taxation, with consequences for the taxpayer’s timely fulfillment of tax liabilities in the exact amount. They learned that it is possible to postpone on a long or short term the payment of the financial obligations to the state. This

custom was transformed into a real practice of tax evasion. The legislative process was often out of control, and important laws in the field have been issued by government emergency ordinances or government decision, approving the orders of finance ministers. Related to legislative instability, one aspect noticed in recent years refers to a wide range of procedural “tricks” to put legal acts on a normal path. In practice, creating a climate of legislative instability, leads to delaying or even deterring investment which ultimately affects the economy and society. This has also affected Romania’s position as the EU and as a NATO member. Creating a climate of legislative instability is determined by numerous procedural improvisations starting from the tax code and tax procedure and ending with law emergency ordinances. As an example, according to art. 4 par. (1) of the Fiscal Code, amendments and additions may be made only by law, normally promoted six months before the date of entry into force. “Normally” has become has become a habit and it often means a loophole to justify legislative instability. Even if de bona fide, central or local government propose legislation projects in the field of taxation, which most often succeed so quickly that it makes it impossible for taxpayers to keep up with them. Legislative instability, bureaucracy and corruption are the main factors that investors take into account, and they fear that they may adversely affect the success of investment activities. Developing precise and clear tax laws, without gaps favoring tax evasion by exploiting its loopholes should be an important focus of government programs. &RQFOXVLRQV The above suggest that the taxing causes refer to facts generating effects or the factors acting on them, causing them to react, that is to take effect.

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The causes of taxation can be grouped according to several criteria which include: a) according to their nature: x objective causes, generating main HIIHFWVRIWD[DWLRQ x subjective causes, generating and “helping” the taking effect of taxation. b) according to the manifestation frame: x internally: legislative instability, legal inconsistency, economic instability, tax evasion, corruption, DUUHDUVHWF x internationally: global financial and economic crisis, international double taxation, non harmonization of tax systems etc. c) depending on the field of event: x social: psychological causes such as the behavior of the taxpayer to

taxation and para-taxation, tax education, profession, religion and PDULWDOVWDWXVRIWKHWD[SD\HU x economic: specifically pertaining to the remaining income, capital or assets after the payment of taxes and FRPSXOVRU\VRFLDOFRQWULEXWLRQVHWF x legal: causes related to legal and administrative factors, settlement and collection of financial obligations, equity of the tax system etc. Without claiming to exhaustively discuss the form of manifestations of the causality of taxation, the focus was to highlight the main causes, admitting the fact that in the economic reality taxation is influenced by other factors that may be considered as arising from the above.

5HIHUHQFHV [1] University Professor Dr. Angelescu Coralia et al.'LFĠLRQDUGH(FRQRPLH(FRQRPLFă Publishing House, Bucharest, 2001, pS [2] 1LFRODH +RDQĠă (YD]LXQHD )LVFDOă, C.H.Beck Publishing House, Bucharest, 2010, SS [3] Moldovan I)LQDQĠHSXEOLFH, Alma Mater Publishing House6LELXSS [4] University Professor Dr G.D.Bistriceanu, 0LFă (QFLFORSHGLH GH )LQDQĠH 0RQHGă $VLJXUăUL, Vol.III, 8QLYHUVLWDUă Publishing House, Bucharest, 2006, SS [5] 'DQ'URVXùDJXQD7XWXUJLX0LKDHOD(YD]LXQHDILVFDOă, Oscar Print Publishing House, BucharestSS [6] ,XOLDQ 9ăFăUHO et al. )LQDQĠHOH SXEOLFH 'LGDFWLFă úL SHGDJRJLFă Publishing House, BucharestSS [7] Constantin I.Tulai, )LQDQĠHOHSXEOLFHúL)LVFDOLWDWHD&DUWHD&ăUĠLLGHùWLLQĠă Publishing House&OXM1DSRFDSS [8] (OHQD'UăJRHVFX)LQDQĠH3XEOLFHDimitrie Cantemir Publishing House7J0XUHú SS [9] Carmen Corduneanu, Sistemul ILVFDO vQ ùWLLQĠD )LQDQĠHORU, Codecs Publishing House, Bucharest, S [10] C.V. Brown, P.M.Jakson, 3XEOLF6HFWRU(FRQRPLFV, Basil Blackwell Publishing House, Oxford, 1982, pp.227.

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THEORETICAL AND EMPIRICAL RESEARCH ON THE ANALYSIS AND THE ASSESSMENT OF THE STABILITY OF NATIONAL FINANCIAL SYSTEMS. ROMANIA’S EXPERIENCE Leontin STANCIU*, Liliana-Mioara STANCIU** *´1LFRODH%ăOFHVFX´ /DQG)RUFHV$FDGHP\ 6LELX **SC MORU &$0,217(&+1,&$65/6LELX OHRQWLQVWDQFLX#\DKRRFRP, OLOLDQDBVWDQFLXBUR#\DKRRFRP Abstract: The stability of the financial systems is an objective necessity for the sustainable development of each national economy. Within this framework, ensuring financial stability is a priority for the central banks and for the other macro-prudential supervisory and regulatory authorities. In order to ensure the stability and "the health" of the national financial system, the competent authorities should analyze, assess and adopt optimal and timely measures to eliminate potential imbalances. These and other aspects are the main objectives of our research.

.H\ZRUGV: nDWLRQDO ILQDQFLDO V\VWHP ILQDQFLDO VWDELOLW\ DQDO\VLV DQG DVVHVVPHQW, LQGLFDWRUVRIILQDQFLDOVWDELOLW\ ,QWURGXFWLRQ A modern knowledge-based economy cannot exist without a healthy stable financial system. The problem of financial stability, the means of analyzing and assessing it, have concerned over time more and more specialists. In recent years, ensuring financial stability and price stability have been among the main concerns of the central banks which are the core of the national financial systems. In this context, the analysis and the assessment of the financial stability require effective and continuous cooperation, at national and international level, between the various supervisory and regulatory authorities. Periodically, a number of central banks, including the National Bank of Romania, issue reports on financial stability. These are drawn up according to regulations and methodologies that use specific financial stability indicators. These particularities, as well as others, are the main objectives of our research.

1. 7KH 6WDELOLW\ RI WKH )LQDQFLDO 6\VWHP –$3UHUHTXLVLWHDQGD&RQVHTXHQFHRIa 6XVWDLQDEOH(FRQRPLF'HYHORSPHQW In the functional market economy, the financial system has a determinative role. Its stability ensures capital accumulation, facilitates a better risk distribution, guarantees the financing of all investment opportunities, and ultimately makes a decisive contribution to achieving sustainable economic development. At national level, the financial system consists of the following components: x WKH financial PDUNHWV (namely, the money market and the capital market) x WKH ILQDQFLDO LQIUDVWUXFWXUH (providing the transfer of payments, the trading, the settlement and the clearing of securities value) x WKH ILQDQFLDO LQWHUPHGLDULHV (indirectly facilitates the connection between creditors and debtors).


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debts, even in financial stress situations or in times of profound structural changes. While the BanNRI(QJODQG considers that the fundamental objective of financial stability is to provide adequate resilience to the national financial system, the %DQN RI WKH 1HWKHUODQGV believes that “a stable financial system is capable of efficiently allocating resources and absorbing shocks, avoiding that they have a distinctive effect on the real economy or on other national financial systems."[5] In its turn, the (XURSHDQ &HQWUDO %DQN defines the stability of a national financial system more broadly, considering that it is a basic prerequisite of the financial system in order to be able to absorb financial shocks, to mitigate the disruptions of the financial intermediation process that may affect the decisions to allocate the savings to the investment opportunities. [6] 7KH 1DWLRQDO %DQN RI 5RPDQLD, in its first Financial Stability Report, defines financial stability in a broad sense as "that feature of the financial system able to deal with systemic shocks on a sustainable basis and without major disruptions, to efficiently allocate financial resources in the economy and to identify and manage risks efficiently."[7] Taking into account this diversity of opinions on defining the concept of national financial system, we consider that it is stable when it simultaneously fulfills two fundamental requirements, namely: 1. It actively contributes to increasing the performance of the national economy; 2. It eliminates the imbalances caused by endogenous factors or by adverse and unanticipated events. We also believe that the involvement of the central bank in providing the stability of the national financial systems is an objective necessity, achievable through the efficient exercise of certain statutory functions, such as: x the regulation and the supervision of the banking sector; x the management and the monitoring of the payment systems; x the guarantee of the bank deposits; x the lender of last resort, etc.

At international level, unlike price stability, there is no comprehensive definition that highlights the vast range of financial stability, both at a conceptual and an empirical level. At the same time, there is no consensus concerning the role of the central banks in ensuring the stability of the financial system, even if their preoccupation for supporting it has become a reality for a long time. [1] By studying a series of researches in the literature, we have identified two fundamental concepts associated to this financial concept, as follows: x the absence of general episodes of vulnerability which would affect the efficient functioning of the national financial system; x the resilience of the national financial system to endogenous and/or exogenous adverse shocks. Also, there are specialists who define the stability of the financial system by reference to its reverse, namely to the state of financial instability. [2] Andrew Crockett believes that the stability of the financial system reflects "the situation where the economic performance is not potentially affected by the fluctuation of asset prices or by the inability of the institutions to fulfill their obligations." [3] According to Schinasi G., financial stability is the state of the national financial system when it can simultaneously fulfill the following main functions: x the efficient, dynamic and smooth mediation of financial resources (transfer of funds from those who own them to those who use them); x anticipating, evaluating and rigorously managing the risks involved in this process; x the absorption of shocks that the real and financial economy supports and/or generates. [4] 7KH%XQGHVEDQNargues that the financial stability shows the state of equilibrium of the national financial system, which allows it to allocate resources efficiently, to diversify risks, to ensure the liquidation of

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In this context, there are specialists who claim that the central bank has to deal first with securing the stability of the national

financial system and then with developing and implementing the monetary policy. [8]

Financial system - Financial intermediaries - Financial markets - Financial infrastructure Endogenous risks

Real economy

Exogenous risks Prevention Reparation Solution

Figure no1. Framework of the Stability of a National Financial System (Source: Schinasi. G, Defining Financial Stability, IMF Working Papers,4, 187, 2004, p.103)

2. ,QGLFDWRUV 8VHG Ior AQDO\]LQJ and AVVHVVLQJ WKH 6WDELOLW\ RI 1DWLRQDO Financial S\VWHPV As can be easily observe in the figure below, the financial system is a subsystem of the national economic system, having many connections with the real economy and the economic policies promoted by the competent authorities.

Towards defining the framework of financial stability and making it operational, the starting point should be the analysis of the risks and vulnerabilities of the national financial system, the main sources of risk being presented in the table below:

Table no1. Sources of Risk for the Stability of the National Financial System A. Risks at the level of financial institutions: A. Macroeconomic turbulences x financial risks (credit, liquidity, market, foreign x economic climate risk; exchange, related to the interest rate); x inappropriate macroeconomic x operational risk; policies; x reputational risk; x risk of the business strategy; x risk of the concentration of exposures; x risk of capital inadequacy; B. Risks at the level of financial markets: B. Incidental risks x risk of counterparty (commercial) x natural disasters; x risk of volatility of asset prices; x social events; x risk of funds withdrawal; x bankruptcies of some economic branches x risk of liquidity; x risk of contagion;

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C. Risks at the level of financial infrastructure: x risks associated with the clearing, settlement and payment system; x loss/deterioration of confidence in the financial system; x fragility of the financial infrastructure (legal, audit, supervision, regulatory); the Domino effect. Source: Adapted after &HUQD6'RQDWK/ЭHXOHDQ9+HUEHL0%ăUJăOă]DQ D., Albulescu C., %ROGHD%³6WDELOLWDWHDILQDQFLDUă´7LPLЮRDUD:HVW8QLYHUVLW\3XEOLVKLQJ+RXVHSЮL +RXEHQ$.DNHV-6FKLQDVL*³Toward a framework for safeguarding ILQDQFLDOVWDELOLW\´,0) Working paper, wp/04/101, p.19.

evaluating and monitoring the strengths and the weaknesses of the financial health used by the IMF for deposit-luring institutions, the following: x capital DGHTXDF\ (Capital/Assets posing a particular risk, Capital/Assets presenting a high degree of risk); x DVVHWTXDOLW\ (non-performing loans/gross loans, non-performing loans/Capital, Sectoral distribution of loans/Total loans); x LQFRPH DQG Srofitabilit\ (Return on assets - ROA, Return on equity - ROE, Interest margin/Gross income, Expenses other than interest/Gross income); x liTXLGLW\ (Liquid assets/Total assets, Liquid assets/Total short-term liabilities) x VHQVLWLYLW\ WR PDUNHW ULVNV (short-term open foreign exchange position); For determining the FHI indicators, the necessary data are obtained from the balance sheet of the central bank, the consolidated balance sheet of the banking sector, the aggregate balance sheet of the non-financial corporations, the balance of payments, the stock exchange reports, the execution of the state budget. The FHI indicators can be supplemented both with indicators that highlight the situation and the evolution of the major components of the capital market (money market, stock market, government securities market, etc.) as well as a series of data reflecting the country-specific conditions (the structure of the financial system, the proportional size

The analysis of the stability of the national financial system requires the permanent monitoring of all these risks and vulnerabilities. As shown in the table above, some of these risks and vulnerabilities appear and develop within the financial system (the endogenous risks), while others outside it, in the real economy (the exogenous risks). At the same time, the analysis involves both monitoring the functionality of all the components of the financial system (institutions, markets and infrastructure) and the real economy (enterprises, public sector, population) as well as comprehensively knowing the intersectoral and cross-border economic links. The international literature, for the analysis and the assessment of the stability of a national financial system, suggests numerous systems of indicators, the most widely used in practice being: x the system of indicators developed by the IMF (Financial Soundness Indicators); x the tests of resilience of the financial system to the speculative stress (the stress tests); x the early warning systems; x other quantitative methods for analyzing and assessing the financial stability (the discriminatory analysis and the multiple discrimination). [9] Known as "Financial Health Indicators" (FHI), the system of indicators developed by the IMF was designed to serve in conducting a macro-prudential analysis. In its turn, this analysis involves identifying,

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of different categories of non-banking financial institutions, etc.) [10] Periodically, the IMF issues the "Country Reports" using the FHIs and refers to countries in Latin America, Central and Eastern Europe, Southeast Asia, etc.

Within this body, RNB has a major role, being responsible, among other things, for establishing the macro-prudential policy strategy within the limits of its area of competence. Up to now, RNB: x adopted a series of macro-prudential measures on lending to the general public and the non-financial enterprises; x has improved its ability to monitor and manage systemic risks and vulnerabilities at the level of the financial system in Romania; x set the following intermediate objectives of macro-prudential policy: 9 reducing and preventing excessive credit growth and indebtedness, 9 reducing and preventing excessive maturity mismatches and lack of liquidity on the market; 9 limiting the concentration of direct and indirect exposures; 9 limiting moral hazard 9 strengthening the resilience of the financial infrastructures. [13] Since 2006, RNB has been published reports on the stability of the national financial system. Thus, the Financial Stability Report of December 2016, contains among others: x the degree of financial intermediation continued its decline in 2015 and in the first half of 2016, even though the total assets in the national financial system registered a marginal increase; x the financing is mainly targeted towards the sector of the population, lending is preponderant in national currency, and the increase of the attracted resources is done from the domestic market; x the ratio between loans and deposits does not generate risks from a macroprudential perspective, the liquidity of the banks being consistent and sufficient to counteract the potential negative liquidity shocks; x the quality of the bank assets improved, and the provisioning coverage is appropriate; x the solvency indicators show appropriate values;

3. 5RPDQLD V ([SHULHQFH LQ $QDO\]LQJ and $VVHVVLQJLWV)LQDQFLDO6WDELOLW\ The reality of the contemporary national economies demonstrates that a sound, healthy financial system is a determinant condition for economic growth and, implicitly, for sustainable development. Also, financial stability is a "global public good characterized by non-equity and nonexclusion" [11] In 2010, in order to ensure the stability of the European financial system, the (XURSHDQ 6\VWHPLF 5LVN %RDUG (ESRB) was established and, through Recommendation ESRB/2011/3, it called on all EU Member States to designate through their own regulation, the authority responsible for implementing the macroprudential policy. [12] In Romania, the financial stability is provided through the joint effort of several national institutions and the coordination of the macroeconomic policies. In order to implement the ESRB recommendations, the National Committee for Macro-prudential Supervision is established by Law no.12/2017 regarding the macro-prudential supervision of the national financial system, as an interinstitutional cooperation structure, comprising representatives of the National Bank of Romania (NBR), the Financial Supervision Authority and the Government. According to art. 2 (1) of this normative act, “the fundamental objective of this committee is to contribute to the safeguarding of the financial stability, including by strengthening the capacity of the financial system to resist shocks and by reducing the accumulation of systemic risks, thus ensuring a sustainable contribution of the financial system to the economic growth."

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x the stress tests on solvency confirm the resilience of the banking sector and the stable funding base; x the non-banking financial sector has continued its expansion, being predominantly oriented towards the national economy, both in terms of investments and in terms of investors' profile. [14]

stability of the national financial systems stimulates the economic development and increases the standard of living of the population. The analytical framework for analyzing and assessing financial stability covers all the components of the national financial system. Depending on the results of the analysis, measures need to be taken in order to prevent, remedy or solve the imbalances which will ensure the functioning of the financial system within the acceptable stability limits. The analysis and the assessment of the stability of the national financial systems require a specific methodology and tools (indicators, data sets, etc.) to allow the quantification of the vulnerabilities that could trigger financial crises. Currently, a number of indicators and techniques are used to analyze and assess the health status of the national financial systems. These are, however, limited in terms of the possibilities of modeling the economic and financial interactions and of estimating the related costs.

&RQFOXVLRQV In the context of the globalization of the financial flows and of the increasingly obvious integration of the financial markets, the issue of the stability of the national financial systems has become a favorite research topic for academics and specialist institutions. The main motivation of the increased interest in this topic lies in the fact that the stable and "healthy" national financial systems have a decisive influence on the process of allocating resources and implicitly on the economic performance. Also, the special attention paid by authorities responsible for the macro-prudential supervision and regulation is also due to the fact that the [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14]

ReferHQFHV /ăWHD *2 ³6WDELOLWDWHD SUHаXULORU ЮL VWDELOLWDWHD ILQDQFLDUă vQ DFWLYLWDWHD EăQFLORU FHQWUDOH´, in Biblioteca economic collection, Probleme economice series, vol.425, the Economic Information and Documentation Center, p.15 Boitan, I.A, ³&UL]H EDQFDUH ЮL VLVWHPH GH DYHUWL]DUH WLPSXULH´, Bucharest, ASE Publishing House, 2011, p.77 Crockett A., ³The Theory and 3UDFWLFHRI)LQDQFLDO6WDELOLW\´, GEI Newsletter, 6, 1997, p.1-2. Schinasi G., ³DefLQLQJ)LQDQFLDO6WDELOLW\´. IMF Working Papers, 4, 2004, p.82 Wellink N., ³&HQWUDO %DQN DV *XDUGLDQV RI )LQDQFLDO 6WDELOLW\ 7KH 6HPLQDU &XUUHQW ,VVXHVLQ&HQWUDO%DQNLQJ´, Oranjestad, 2002, p.2 /ăWHD*2RSFLWS NBR, ³)LQDQFLDO6tability 5HSRUW´, 2006, p.7 Volcker P., ³The Federal Reserve Position on Restructuring of Financial Regulation 5HVSRQVDELOLWLHV´, Federal Reserve Bulletin, 70, 1984, p.548 &HUQD6FRRUG 'RQDWK/‫܇‬HXOHDQ9+HUEHL0%ăUJOă]DQ'$OEXOHVFX&%ROGHD% ³6WDELOLWDWHD ILQDQFLDUă´ 7LPL‫܈‬RDUD :HVW 8QLYHUVLW\ 3XEOLVKLQJ +RXVH S DQG 121. Ibidem p.82 Cerna S. (coord), op.cit, p.28 NBR, ³)inancial Stability 5HSRUW´, 2015, p.133 NBR, op.cit, p.140-141 NBR, ³)LQDQFLDO6tability 5HSRUW´, 2016, p.54-55

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THE NATURE AND PURPOSE OF THE GENERAL MEETINGS OF THE SUPRANATIONAL ECONOMIC ASSOCIATIONS IN THE EUROPEAN UNION Asen VODENICHAROV „Neofit Rilski” South-West University, Blagoevgrad, Bulgaria [email protected] Abstract: The general meeting is the supreme body of the European company as well as of the other European entities for economic association. It is a body forming and expressing the intention of a company. It is a specific forum for the free and voluntary expression of the intentions of its individual participants. The intentions can be expressed by an individual or a group, but they always express a specific attitude. A meeting collects, as a “funnel”, the expressed concerns, the suggestions supporting or rejecting the expressed theses, etc., with regard to the discussed issues. This forms the common will of the participating parties. The general meeting of shareholders is a legally established body of an European company. In view of its structure, the general meeting of shareholders is a collective body. It includes all shareholders entitled to vote. Therefore, it can be defined as a college because it approves all decisions as a college at in-person meetings or in absentia. Thus the meeting in question is the only legal means by which shareholders may exercise moral management rights: participation in management, right to vote, active and passive right to elect and be elected to the board of directors, management or supervisory board, etc. The legal framework of the general meeting of shareholders has hybrid nature. Keywords: general meeting, European Economic Interest Grouping (EEIG), European company (SE), European Cooperative Society (SCE) 1. The harmonious development of the European Union’s single market has led to the creation of a new legal framework which facilitates the adaptation of the natural persons, companies, firms and other legal bodies’ activities to the economic conditions of the Community. To the achievement of the abovementioned objective, as well as towards addressing the legal, fiscal or psychological difficulties has required the creation of an appropriate Community legal instrument in the form of a European Economic Interest Grouping (EEIG) [1], European company (SE) [2] and European Cooperative Society (SCE) [3]. 2. The general meeting (assemblée générale) occupies an especially significant place in the organizational system of the

bodies of cross-border European companies for economic grouping. It is an inherent element of every corporate entity. Its existence in the business segment of social practice is manifested in the civil and commercial legislation of all countries. Its legal regulation is harmonized to a considerable extent in the Member States of the European Union. The existence of this body is also provided for organizational and legal structures active in other areas of public life in our country [4]. The general meeting is the supreme body of the European company as well as of the other European entities for economic association. Its place in their hierarchical organization chart is determined by its broad competence. The objective content of its powers includes resolution of key


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issues concerning the development of the company, the amendment and supplementation of the statutes, the increase and decrease of capital, the reorganization and winding up of the company, etc. It legal and regulatory base has also been enhanced. The general meeting of the European company has as LWVOHJDOEDVLVQRWRQO\5HJXODWLRQ(& ʋ 2157, but also the legislation of the Member State in which the registered office of the company is located according to its constituent act adopted in compliance with Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees [5]. This regulatory framework is to include its competence to resolve the issues assigned to the general meeting of a public limited liability company according to the existing legal regulations in the respective country. This is a particularly relevant for the further harmonization and coordination of the national laws of Member States. The general meeting is a body forming and expressing the intention of a company. It is a specific forum for the free and voluntary expression of the intentions of its individual participants. The intentions can be expressed by an individual or a group, but they always express a specific attitude. A meeting collects, as a “funnel”, the expressed concerns, the suggestions supporting or rejecting the expressed theses, etc., with regard to the discussed issues. This forms the common will of the participating parties. It is finds a legal expression in the decisions that are adopted. The organization of the implementation of the adopted decisions resulting from the common will of the shareholders participating in the meeting is to be implemented by the executive bodies formed as a result of that will – the board of directors in a one-tier system of governance and a management board and a supervisory board in a two-tier system. These company bodies take the necessary

legal actions to achieve the desired legal and material and technical goals. It should be noted that the general meeting should not be equated with the European company itself. These are two legal constructions. The general meeting is a body of the company. In practice, the general is formed by all shareholders. Therefore we can state that the main body is actually constituted by the shareholders. To support this thesis we should note the fact that there is a legal possibility to adopt decisions in absence, that is without holding an in-person meeting. This option is not expressly provided for in Regulation (& ʋ 2157/2001. The reference in Article 52 to national laws, however, creates the necessary legal possibility to make decisions in absence since most laws in the field of civil and commercial law in the the Member States have regulated this hypothesis. Regulation (EEC) ʋ 2137/85 on the European Economic Interest Grouping stands out in this respect. It states in Article 17, point 4 that “On the initiative of a manager or at the request of a member, the manager or managers must arrange for the members to be consulted so that the latter can take a decision. The general meeting of shareholders is a legally established body of a European company. That is expressly stated in 5HJXODWLRQ (& ʋ 2157/2001. Thus a company has strong legal stability. Its removal as a legal body in the structure may only take place by amending the Community act. This is a lengthy process. The legislative practice of European lawmakers shows that the adoption of a new regulation to amend or supplement an existing act is four – five years. This process is even longer if a new regulation is prepared to govern the same public relations and to repeal the previous regulation of the Council. Moreover, it should be pointed out that this process takes place outside the European company. The rulemaking procedure will evolve under the two hypotheses of Article 290

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and Article 291 of the Treaty on the Functioning of the European Union. The general meeting is a mandatory body of a company. It is envisaged not only in 5HJXODWLRQ (& ʋ 2157/2001 for a European company, but also for a European Cooperative Society in Regulation (EC) ʋ 1435/2003. In the latter Community act, section four, titled General Meeting deals consistently with its powers, conduct, holding, form and period for convening, additions to the agenda, attendance and proxies, voting rights, right to information and taking decisions, etc. (Article 52-63). The statutes of the general meetings of the discussed two new European companies – European private company and European single-member private limited liability company – are objects of the draft documents for their regulation at Union level. The regulatory framework of the European Economic Interest Grouping is different in the discussed area. Although Regulation (EEC) ʋ settles its body structure, it does not indicate an organ named “General Meeting”. By contrast, it is stated that “the members act collectively” (Article 16). We consider that despite the absence of legal and technical identity with the other two Community acts, the intention-forming and intentionexpressing nature of the members of the grouping remains unchanged. The consistent interpretation of this provision in conjunction with Article 17 shows that this is the only collective body of the grouping [6]. It is assigned a decisionmaking role in relation to all significant issues such as alteration in the objects of the grouping; the transfer of the official address of the grouping; the number of votes allotted to each member; appointment and removal of the manager; alteration in the conditions for the taking of decisions; unanimous authorization for assignment of participation in the grouping, or a proportion thereof either to another member or to a third party; unanimous decision to admit new

members, etc. (Article 14(1), Article 17, point 2, Article 19(3), Article 22(1), Article 26(1), etc.). In practice, the general meeting of a European company and a European Cooperative Society is composed of their members. Taking part in the meeting, they also act collectively although this is not stated explicitly. Regulation (EC) ʋ 2137/85 outlines the range of issues requiring collective discussion and resolution by reaching a common intention. The regulation states that each member has one vote, defines the issues which require unanimity, etc. For that reason a large number of authors determined that since “the members act collectively” then they are, in terms of structure, the supreme body of a European Economic Interest Grouping [7]. In view of its structure, the general meeting of shareholders is a collective body. It includes all shareholders entitled to vote. Therefore, it can be defined as a college because it approves all decisions as a college at in-person meetings or in absentia. Thus the meeting in question is the only legal means by which shareholders may exercise moral management rights: participation in management, right to vote, active and passive right to elect and be elected to the board of directors, management or supervisory board, etc. 3. The legal framework of the general meeting of shareholders has hybrid nature. Regulation (EC ʋ 2157/2001 contains imperative provisions on the organization and conduct of the general meeting (Article 52-60). They regulate only the main elements of its status. At the same time the Community act provides for subsidiary application of the national law on public limited-liability companies (“SE”) of the Member State where the company’s registered office is situated and the Statute of specific European company (Article 52, b) and Article 53). Special attention is placed on the compliance with the domestic law of the country in relation

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to the transposition of Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees. According to Regulation (EC) ʋ 2157/2001 the organization and conduct of general meetings together with voting procedures shall be governed by the law applicable to public limited-liability companies in the Member State in which the European public limited-liability company’s registered office is situated. The company law of the EU Member States in this area is very similar. The general meeting consists of all shareholders pursuant to an imperative provision of the Community act (Article 52). Therefore, they are members of the meeting ex lege and their exclusion from it is inadmissible. There is a legal possibility for two categories of persons who are not qualified as a “shareholder” to participate in its work but without right to vote. They have the right to an advisory vote, i.e. their vote is not included in the formation and expression of the common will of the general meeting. These participants can express their opinions, support or criticize proposals, ask questions, etc., but may not participate in the approval of decisions. The first group consists of members of the board of directors, respectively the supervisory and management board where they are not shareholders. Their participation is justified because their involvement in the operational

management of the business makes them well acquainted with the current problems of the development of the company, the practical guidance for improving competitiveness, the automation of operations, the application of innovations, etc., and they can express their opinions. The second group includes representatives of workers and employees of the company. Their involvement in the supreme body becomes the basis of Directive 2001/86/EC which was transposed in all Member States. The number of employees in the company which limits the participation of their representatives in the general meeting ranges from 50 to 450 in the individual Member States [8]. Their participation enables them to draw the attention of shareholders to issues related to the more active involvement of the employees in the more efficient resolution of production issues, improvement of the social climate and social responsibility, etc. A participant in a general meeting may be represented. They may appoint as a proxy not only another shareholder but also someone who is external to the company. In such cases the authorization requires a notary’s attestation. That requirement is the same both for individuals and legal entities. The authorization for representation of legal entities must be signed by the representative of the organization. The absence of the latter’s signature will void the issued document and it will not have any legal consequences.

References [1] Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG), OJ L 199, 31.7.1985, p. 1–9. [2] Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), OJ L 294, 10.11.2001, p. 1–21. [3] Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for European Cooperative Society (SCE), OJ L 207, 18.08.2003, p.1–24. [4] Direct Citizen Participation in State and Local Government Act – section IV, Articles 54– 64 (Promulgated, State Gazette (SG) 44 of 12.06.2009, amended SG 56 of 24.07.2015); Condominium Ownership Management Act – section II, Articles 18 - 25 (Promulgated, SG 6 of 23.01.2009, amended SG Ⱦȼof 7.06.2016); Non-Profit Legal Entities Act – chapter II, section I, Article 23-29 (Promulgated, SG 81 of 6.10.2000, amended SG 103

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[5]

[6] [7]

[8]

of 27.12.2016; Community Centers Act – Article 9-a, Articles 11-17 (Promulgated, SG 89 of 22.10.1996, amended SG 74 of 20.09.2016, in effect from 1.01.2018); Act on the Association of Veterinary Professionals in Bulgaria - section 2, Articles 7–12, section 3, Articles 16–20 (Promulgated, SG 84 of 19.10.2007, amended SG 14 of 19.02.2016 ); Irrigation Associations Act – section III, Articles 25-31, section IV, Articles 34-39 (Promulgated, SG 34 of 6.04.2001, amended and supplemented SG 54 of 15.07.2016 ) etc. Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, Official Journal of the European Union, Special edition in Bulgarian: Chapter 6, Volume 4 pages 134 - 144 was transposed in Bulgarian legislation with the Law on informing and consulting with workers and employees in multinational companies, enterprise groups and European companies (Promulgated, SG 57 of 14 July 2006, amended SG 26 of 29 March 2011, amended SG 82 of 21 October 2011). See detailed study – Mateeva-Stoyanova, Ek., European grouping based on a common economic interest and Bulgarian company law. S., Cielaɫ. Kohlhosse,H, A.Raddatz, Europäischen wirtschaftlichen Interessenvereinigung (EWIV), Berlin,JA,1989;.Guillemin, J-Fr., Le GEIE, un instrumente de la coopération frontalière, RD, 1989, p. 451; Hamilton, B., European Economic Community, Los Angeles, 2003, ɪ 58. It is stated in Article 220(3) of the Commercial Law that where a company has more than 50 employees, they shall be represented in the general meeting by one person with a consultative vote. Similar provisions exist also in the Greek legislation – īȚȐ ĲȠȞ ȡȩȜȠ ĲȦȞ İȡȖĮȗȠȝȑȞȦȞ ıĲȘȞ ǼȣȡȦʌĮȧțȒ İĲĮȚȡȓĮ Official publication: ǼĳȘȝİȡȓȢ ĲȘȢ ȀȣȕİȡȞȒıİȦȢ ĭǼȀ ȉİȪȤȠȢ ǹ ; Number: 92; Publication date: 2006-05-04; Page: 00918-00924, in the Spanish legislation - LEY 31/2006, de 18 de octubre, sobre implicación de los trabajadores en las sociedades anónimas y cooperativas europeas, Official publication: Boletín Oficial del Estado ( B.O.E ); Number: 250/2006; Publication date: 2006-10-19; Page: 36302-36317, Romanian legislation - Lege privind constituirea, RUJDQL]DUHD úL IXQFĠLRQDUHD FRPLWHWXOXL HXURSHDQ GH vQWUHSULQGHUH Official publication: Monitorul Oficial al României; Number: 628; Publication date: 2005-07-19; Page: 00001-00007 etc.

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SOME IMPLICATIONS OF ADOPTING NEW CODES - TAX AND FISCAL PROCEDURE - ON SME BUSINESS Nicoleta ASALOS*, Ioan HURJUI**, Costica ROMAN**, Puiu NISTOREANU*** * “Ovidius” University of Constanta, Romania, ** Stefan cel Mare University, Suceava, Romania, ***The Bucharest University of Economic Studies, Romania [email protected] Abstract: Given the entry into force of the new Tax Code and of the New Tax Procedure Code in 2016, our approach is aimed at addressing the most important issues of interest to SME entrepreneurship. Obviously, we are referring both to the rules of the respective codes that bring benefits to the shareholders/ entrepreneurs engaged in small business, but also to those designed to displease. Based on the Romanian and foreign literature, in the end, we also propose some solutions in order to improve this situation.

Keywords: SME business, taxes, These fiscal changes concern corporate tax, VAT, microenterprises, income tax, social contributions, local taxes etc. However, this legal document shows a two-step approach regarding the entry into force of certain provisions, so that only some rules apply from 1st January 2017. At the same time, the two pillars of the Romanian tax law, i.e. the Tax Code and the Code of Fiscal Procedure, underwent significant changes in terms of corporate tax, microenterprises and employers, in December 2016, by an emergency ordinance.

1. Introduction The status of small and medium contributor to the state budget is of strategic importance. This sector has contributed significantly to economic growth and to the creation of jobs; therefore, it should benefit from state public policies that address smart regulations, a systematic consultation with representative organizations, an attractive fiscal system, increased access to finance and simplified procedures and bureaucracy. By GD no. 859/2014, published in the Official Gazette on 14th October 2014, there was approved the Government Strategy for development of small and medium sized enterprises and for the improvement of the business environment in Romania - Horizon 2020, whose objective was as follows: "Romania – the country with the most attractive business environment for SMEs in the region in 2020". In order to achieve this national objective, Law no. 227/2015 on the Fiscal Code in force from 1st January 2016 brings several changes in taxation.

2. SMEs – the engine of the economy "The category of Micro, Small and Medium Enterprises (SMEs) is made up of the enterprises that employ less than 250 persons and have an annual net turnover of up to 50 million Euros and/ or total assets of up to 43 million Euros".[1] The European Union considers that SMEs and entrepreneurship are key elements that support economic development, innovation,


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creation of new jobs and enhancement of social integration. In terms of European policies, the responsible institutions aim at: Creating a positive framework for business development (concept Think Small First); Promoting entrepreneurship (the framework document Entrepreneurship Action Plan); Improving the access to new markets and internationalizing business; Facilitating the access to financing; Supporting competitiveness and innovation in SMEs; Promoting entrepreneurship support[2] Romania is placed by the European Commission as the leader among the 28 Member States in the field of entrepreneurship, with growth prospects in the number of SMEs by minimum 8.5% annually[3]. In addition, a number of statistics place Romania above the European average in terms of: WKHLQWHQWLRQWRODXQFKDEXVLQHVVDFWLYLW\ (within 3 years): 31.7% - Romania; 12.1% the European average; WKH RSSRUWXQLWLHV WR RSHQ D EXVLQHVV 49.75% - Romania; 47.9% - the European average; WKH GHJUHH WR ZKLFK WKH HGXFDWLRQDO curriculum was useful in developing an entrepreneurial mindset: 73 – Romania; 50 – the European average; HQWUHSUHQHXUVKLS LV D FDUHHU RSWLRQ 73.64% - Romania; 56.9% - the European average. Although the period 2011-2013 was marked by lack of progress, during 2013-2015, the progress was significant, due to the adoption of two strategies in the field, an action plan on entrepreneurship, business environment and SMEs and a government program for 2013-2016. The establishment of a specialized department for SMEs, the business environment and tourism strengthened further progress. As a result, over the past three years, Romania has achieved results above the EU average in terms of facilitating the creation of new enterprises. As far as SMEs are concerned,

they have a low innovation level and the knowledge flow between public research and development activities on the one hand, and the business environment, on the other hand, is weak, as confirmed by the fact that Romania is at the bottom of the rank in terms of "Collaborations and entrepreneurship", within the scoreboard. In 2016, 105,982 new companies were established in Romania, i.e. by 6.35% less than in 2015; over two thirds of these newly registered entities were limited liability companies. In 2015, 113,167 companies were established, of which 64,417 were limited liability companies and 31,789 were self-employed persons. In the first two months of 2017, the Romanians founded fewer companies. Only 17,251 new companies were registered in January and February, i.e. by 11.29% less than those registered last year, during the same period, when there were established 19,447 companies, according to data published by the National Trade Register Office (NTRO)[4]. The number of the limited liability companies registered (which represents the largest share of the total new companies) was only 11,656, i.e. less than the number of those registered the last year, in the first two months, i.e. 14,282. However, the number of self-employed persons increased from 3,278 (in January-February 2016) to 3,547 (in January-February 2017). Among cities and regions, the capital remains the leader, with 2,638 new companies registered; however, compared to 2016, we notice a decrease in this number (from 3,213). The next in rank is Cluj (with 941 new companies), Ilfov (with 724), and Timis (with 700). In contrast, the lowest number of companies was registered in Ialomita (130), Teleorman (136), Giurgiu and Calarasi (156) and Covasna (160). In terms of activities, most registrations were made in wholesale and retail trade, repair of motor vehicles and motorcycles (4,168 registrations), agriculture, forestry and fishing (1,781 registrations) and professional, scientific and technical

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activities (1,608 registrations). According to the NTRO, in the first two months of 2017, the total number of the legally active professionals increased by 2.59% compared to the same period of the last year, i.e. from 1,167,073 to 1,197,354. Among the action directions included in the governmental program in terms of fiscal matters, there are: Supporting and promoting entrepreneurship; Access to appropriate finance for SMEs; Innovative SMEs; Access to markets and the internationalization of SMEs; Government reactivity to the needs of SMEs. The strategic goals by 2020 are: 670,000 - number of active SMEs (increase by 41.23%); 36.45 - number of active SMEs per 1,000 inhabitants (increase by 51.50%) 3,233,000 – total number of employees in active SMEs (an increase by 23.23%)

3/2017. Specifically, the maximum limit up to which a legal person can register as a microenterprise was increased on 6th January 2017 to 500,000 Euros, from 100,000 Euros. Therefore, since February 2017, a legal person is considered a microenterprise if, in the previous financial year, it did not exceed the income of 500,000 Euros, equivalent in RON. In other words, this means that trading companies that have earned an income of up to 500,000 Euros in 2016 must amend their taxation system, as they should pay their income taxes as microenterprises. Along with the measure of increasing the maximum limit, the GEO no. 3/2017 introduced a tax rate of 1% for the microenterprises that have at least one employee, employed under a contract of employment, given that, until now, the companies with one employee applied a tax rate of 2%.[6] Furthermore, the microenterprises with no employees shall apply a tax rate of 3%, i.e. the same as before. According to the rules in force, employee means a person that is employed full time, under an individual labor contract. However, this condition is considered fulfilled also by the microenterprises that: x have part-time employees, employed under a part-time individual contract, if the work-load fractions provided therein, taken together, represent the equivalent of a fulltime position; x have signed management contracts or mandates, under the law, if their remuneration is at least at the level of the guaranteed minimum national gross salary As far as microenterprises are concerned, the cited document provides for the reduction of the maximum limit of the founding capital, in terms of which the tax regime for micro-enterprises may be applicable or not. Specifically, the maximum limit of the share capital wherefore the corporate tax payment may be chosen, instead of the tax on the microenterprises' income, has been reduced

3. The Tax Code and the Fiscal Procedure Code – between brake and accelerator in SMEs development The Tax Code of 2016 brings several changes based on the following provisions: 9$7GHFUHDVHLQWZRVWHSVIURPWR 20% from January 2016, and from 20% to 19% from 1st January 2017; GHFUHDVH LQ WKH WD[ UDWH SHU GLYLGHQGV from 16% to 5% from 1st January 2017; WKH WD[ UDWH RQ WKH PLFURHQWHUSULVHV¶ income remains at 3%; VWDUW-up companies with at least one employee, established for more than 48 months, have a tax rate of 1%; VHOI-employed persons also pay social security contributions (the Romanian abbreviation is CAS) of 10.5% from the actually achieved net income, limited to five average gross monthly salaries.[5] The conditions for classifying companies in the category of microenterprises were significantly changed in early 2017, with amendments to the Tax Code, by the Emergency Government Ordinance no.

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from 25,000 Euros (about 112,000 RON) to 45,000 RON (about 10,000 Euros). Under Article 47 of the Tax Code, a microenterprise is, in 2017, that legal entity that has met cumulatively at 31st December 2016, the following conditions: x has earned income from activities carried out in fields other than banking, insurance and reinsurance, capital market, gambling or exploration, development and exploitation of oil and natural gas deposits; x has earned income from activities carried out in fields other than consultancy and management, in a share greater than 80% of total revenue; x has earned income that did not exceed the equivalent in RON of 500,000 Euros (the newly introduced maximum limit); x the share capital was held by persons other than state and local authorities; x it is not under dissolution by liquidation, registered in the Trade Register or in courts. Moreover, if during a fiscal year a microenterprise earns an income that exceeds 500,000 Euros or if the share of the revenue from consulting and management activities in total revenue is over 20%, inclusively, the entity shall pay a corporate tax of 16%. The calculation and payment of corporate taxes are made as from the quarter when any of the previously mentioned limits were exceeded, taking into account the revenues and the expenditures incurred as from the

respective quarter (i.e. when any of these limits were exceeded). The statement whereby a taxpayer was assessed by tax officials in terms of the ability to carry out economic activities in the field of VAT was removed from 1st February 2017. Over time, about 15,000 companies have been refused the registration because of this statement. In addition, from this date, the companies operating in research and innovation fields shall be exempted from corporate taxes for a period of 10 years. 6. Conclusions The decrease in the number of the companies registered at the beginning of this year was caused by issues such as instability and lack of predictability in society, lack of prevention in the control activities carried out by state institutions, the poor accessibility of national funds and the lack of access to European funds. Bureaucracy, underdeveloped infrastructure and the low levels of entrepreneurial education are as many obstacles to innovative entrepreneurship and to the creation and development of enterprises in the technological sector. SMEs have a low innovation level and knowledge flow between public R&D activities and the business environment. Many of the tax changes affect SMEs, some of which are now listed among microenterprises, under a different taxation regime.

References Extract from Article 2 of the Annex of Recommendation 2003/361/EC1 transposed into national law by GO no.27/2006 – Official Gazette no.88/31.01.2006 approved by Law no.175/2006 – Official Gazette no. 438/22.05.2006 [2] Your Europe Business Portal, Enterprise Europe Network, SME Internationalization Portal, Access to Finance [3] Small Business Act Report, published in 2015 [4] http://www.onrc.ro/index.php/ro/statistici [5] https://static.anaf.ro/static/10/Anaf/legislatie/Cod_fiscal_norme_2016.htm [6] http://lege5.ro/Gratuit/ge2daojzgeyq/ordonanta-de-urgenta-nr-3-2017-pentru-modificareasi-completarea-legii-nr-227-2015-privind-codul-fiscal [1]

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USE OF TECHNICAL MEANS FOR MAKING THE TACTICS OF IDENTIFICATION MORE PRECISE Ivan AVRAMOV “Neofit Rilski” South-West University, Blagoevgrad, Bulgaria [email protected] Abstract: The present article concerns the technical means that are used by the investigating authorities at the institute in relation to the identification and in order the same to emphasize on its evidential influence and importance.

Keywords: Identification, Investigation, witness, protocol, Technical Means usually do not regulate in detail the conditions for carrying out this investigative action. In art. 171, par. 2 of the Criminal Procedure Code of the Republic of Bulgaria are given two requirements – the person who is subject to identification shall be presented together with “three or more people who look like him/her”, as it has to be avoided the prior direct contact with the one who identifies these persons. In par. 6 it is mentioned that “when several accused or witnesses have to identify some people or subjects, the last shall be separately presented”. The connected with the identification regulation states that there is a limited number of persons who can be shown with the person who is subject to identification. In some countries which are part of the European Union the identification is carried out as the suspect has to be shown with at least two other persons, as this is said in art. 214.1 of the Criminal Procedure Code of Italy, art. 147.3 of the Criminal Procedure Code of Portugal and art. 369 of the Criminal Procedure Code of Spain. On the other hand the psychological tests of the court psychologists states that the possibility for wrong identification increases when the persons who look like the one who is subject to identification are

1. INTRODUCTION Identification is frequently met procedural and investigative action which solves identification tasks. It is directed to the solving of two tasks: presence of individual identification or group appurtenance of the object and examination of the collected before that spoken evidences[1]. It can be also done on the basis of material evidences which are actually the photos. The identification lies on the so called mental image of the object and that is why the one who has to identify the object should have perceived that image before that. It is a type of procedural acknowledgement and includes the presentation of at least three similar objects to the one who is going to identify these objects. This is done with the purpose of finding the identity of the one who is subject to identification, as this concerns the main fact – the crime. The validity of identification shall be determined according to the circumstances of every single case in order to be guaranteed that the identification was free, spontaneous and that it wins people’s confidence or in other words – it was not suggested. Following the rules, it is obligatory to be guaranteed that the provided by the law procedure was kept during the process of identification. Laws


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less than seven. The connected with the investigation practice here shows that any attempt for identification with the participation of less than 5 similar objects is risky and it can be the reason for a wrong result, as this is proved by the psychological tests. Similarity is the second requirement that is given in art. 171, par. 2 of the Criminal Procedure Code. There is a requirement stating that all the persons who are shown together with the person who is subject to identification have to look like him/her. This similarity includes physical characteristics like race, sex, colour of the hair and skin, height, age, figure, clothes, glasses, moustache, beard and etc. Contrary to the recommendations of the court psychologists, the legal regulation requires the participants in the group, among whom the suspect has to be identified, to have a similarity with him/her, although it would be better to exist a requirement for similarity in relation to the initial description, given by the witness for the perpetrator of the crime.

mistake. The existence of a concrete peculiarity of the body (scar, halting, amputated limb) really narrows the circle of suspects and increases the percentage of accuracy. It is also used a way for identification that is based on the voice, but in such cases the percentage of effectiveness and accuracy is lower than the one when outward features are used for identification. 3. PREPARATION FOR THE IDENTIFICATION The objective and complete preparation for the identification also includes the provision of technical means which are necessary to support the identification process and the results of the same. For that purpose and depending on the object that has to be identified, it can be used the means of the court photography[2] and the voice analysis /photos, video recordings, audio recordings/. Several types of photos are usually made – of the place where the objects that have to be identified are exposed, of the objects that have to be identified, as in case of a found similarity during the investigation process it has to be presented a separate photo of the identified person. In certain cases typical characteristics are given on the basis of which the person has identified the object. If the person who is subject to identification is a found dead body with unknown identity, it shall be made photos which have to clearly present the object of identification. The same is done with the purpose to be found main characteristics connecting with the object and namely: position of the body, place, clothes and etc. In the cases when material evidences have to be identified, it is used a great method for making photos through which it can be given the sizes of the proposed for identification objects. With the development of photography the technical characteristics of the equipment that is used for making photos have also developed. The further development of

2. MAIN PROCEDURAL TASK As it has already been noted the main procedural task of the identification is to be proved the identity of persons who are of great importance for the investigation. The witness usually identifies the suspect on the basis of outward features (sex, face, hair, figure, height, race and etc.) which have to be enough for him/her to identify the person. The identification is usually done on the basis of outward features and typical characteristics, as more specifically these are the features of the face which are accepted to be unique, but actually it is not like this. Because of this the identification with the help of scientific means (fingerprints or DNA markers) can only provide a high percentage of certainty. The identification that is done with the using of the traditional methods (identification of the suspect among several other arrested persons or on the basis of a photo) is insecure and leads to the risk of a court

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photography provides better conditions for the same to be used in the process of investigation, as this also concerns the process of identification.

the process of identifying persons who are shown to the witness personally[3]. 5. VIDEO CAMERA There is another method for proving the results of the identification which concerns the use of a video camera. This method is mainly related to the identification of persons who are alive. When it is used the method of video recording, the whole process of identification can be presented – the place, the atmosphere, as well as the behavior of the persons who are proposed to be identified and the one who has to identify them. This gives the opportunity for thinking of the strategy that is used during the process of identification and eliminating the made mistakes. This is exactly the method for finding the physiological and dynamic signs and characteristics of the proposed for identification persons – peculiarities concerning the way of walking, facial expressions and gestures in case that all these are of great importance for finding a similarity during the process of identification. The use of a camera is connected with significantly more difficulties in comparison with the taking of photos. The preparation before the video recording supposes the provision of proper lighting, choosing the places and the sequence of recording. In order to be achieved efficiency and precision the video recording should have sound and explanatory text provided by the investigating authority, as the same has to be shown to the witness, the identified person and the other involved persons. When the video recording is applied to the protocol of identification, the technical characteristics of the video camera and the compact disc have to be noted. Some authors[4] believe that in separate cases it is also appropriate to be prepared and applied to the protocol a plan of the place where the identification is performed and especially in the cases of identifying the way of walking.

4. PHOTOGRAPHY The use of photography in connection with the identification is of great importance for the objectivity of this investigative action, as it is also an opportunity for objective assessment of the obtained from the same results. The protocol for identification and the applied to the case photos allow to be correctly decided to what an extent the procedural and tactical requirements have been kept, as the same concern the performance of this investigative action during the investigation. The theory includes many points of view about the right way for taking photos of those persons who are not a part of the case and who appear together with the accused, respectively the witness. Some people share the opinion that for that purpose it is necessary to be asked for the explicit consent of those persons. Other people assume that it is only necessary the general consent for participation in the carried out investigative action. We believe the second one should be accepted as more correct because otherwise the taking of photos during the process of identification will be dependent on the subjective opinion of the accompanying persons and in practice it would not be based on an objective basis for carrying out in the work of the investigating authorities. When it comes to the pre-trial proceedings, the identification is also done on the basis of photos when the person cannot be shown. In some cases the person who has to identify the suspect is shown a group photo on which the accused is together with other people. In case that the photo is individual, there are other photos chosen which belong to other people who have similar to the accused features. The principles that are followed in the cases of identification with the help of photos are the same like the principles which apply to

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instruments – “cross-examination” which includes a requirement stating that it is obligatory to be present a defender for each action of identification of people in order the identification because of suggestion to be avoided. With a protective purpose people have created standards for suitability of this evidential technique – the so called Neil v. Biggers criteria (Neil v. Biggers 409 US 188, 2199-200, 1972), as these standards require to be taken into account different factors in order to be decided to what an extent the identification is reliable. Such factors include the taking into account of the possibility that the witness has seen the perpetrator at the time of committing the crime, the vigilance of the witness, his/her accuracy and precision of the made by him/her first description of the perpetrator, degree of the witness’s confidence during the interrogation, the period of time that has passed between the crime and the identification. As a conclusion it can be said that the identification procedures which hide a serious risk of making a mistake contradict “due process of law”. Actually the high degree of certainty, bordering on faultlessness, which is required for any criminal conviction, can be achieved if the accused is identified with the help of the techniques of the scientific analysis (DNA samples) or if the based on outward features identification is also objectively confirmed by other evidences. It comes clear from the mentioned above that the identification in a group should not be accepted as the only proof on the basis of which the person can be said to be guilty.

6. VOICE RECORDINGS It comes clear from the Bulgarian criminalistic practice and the foreign[5] literature that more and more often another method is successfully applied for identification of alive people, as this method is based on peculiarities of the manner of speaking, voice and speech in case that the witness has heard the voice, manner of speaking, the used dialect and the vulgar words which are typical for the unknown person. It is then advisable to be made audio/sound recordings. This gives the opportunity for better performance of the investigation and better results of the carried out investigative action. Moreover during the process of examination and evaluation of the results of identification which is done with the help of audio recordings it can be understood the emotional state and the degree of certainty of the witness. After the end of the identification made with the help of the audio recording, the participants in the same process have to be also acquainted with it. In respect of the procedural actions the voice analysis is prepared and applied as an integral part of the protocol in which it has to be mentioned the make and the model of the apparatuses, the type of the compact disc, the speed of the made recording and etc. 7. WRONG RECOGNITION Identification is associated with cases when wrong conclusions are made, as this is a result of a wrong recognition. This is also proved by some scientific publications in which it is said that the identification with participation of witnesses is suspicious because of the unreliability of people’s perceptions in the cases when they are tense (because of the crime) and because of the elements of suggestion. The ambition all the court mistakes to be brought to nought because of the wrong identification is typical for all the procedural systems. The American system relies on different preventive procedural

8. CONCLUSIONS Practice shows that the given technical ways and means are not enough used or when they are used or applied this leads to inaccuracies and errors. This is a result of the fact that the investigating authorities do not appreciate properly the importance of the court photography, the audio and video recording and the voice analysis as means

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for guiding the procedures and the results of the carried out procedural and investigative actions during the investigation. The use of the mentioned scientific and technical means is of great importance for the identification in several directions: it provides important visual material in relation to the case and thus conditions are created for different evaluation of the circumstances in which the identification was performed; it gives chance to be determined whether the proposed objects for identification have been properly chosen or not; it presents the typical identification characteristics of the identified at the time of identification, as though this the investigation is provided with important data in this respect in the cases of subsequent intensive change of the characteristics of the object. These means allow to be easier verified the trustworthiness of the testimony or explanations of the witness, they provide more objective prerequisites and create more favourable

conditions for overall assessment of the person who is subject to identification. Because of this in some legislations /Lithuania, Estonia, Kyrgyzstan/ it is explicitly given the tactical rule for using photos when proposing people for identification. The identification of people in a way that makes the competent authorities to believe and that provokes their trust excludes the possibility for suggestion. In this way the neutrality of the investigating authority has a special importance because it represents a necessary condition for confirming the validity of the identification. For all the legislations the evidential influence of the identification is connected with the requirement which states that the investigating authority has to be neutral and it has to discard any possibility for suggestion during the process of identification because this is the thing on which relies the trust in the result of the identification.

References [1] Vuchkov, V. (2006). Publishing House Sofia Feneia Evidences in the criminal proceedings, pp. 73-76. [2] Tsekov, Ts. Publishing: Science and Art (1971). Tactics of identification in the pre-trial proceedings, pp. 56-58 [3] Bobev, K. (2006). Publishing House "St. Kliment Ohridski" Criminalistics, pp. 222-224. [4] Belenski, R. (2008). Ciela Publishing House Criminalistics. [5] Brus, B. & Horgan J. (2001). Ciela Publishing House Criminalistics.

WEBSITES www.realjustice.org Magistrate Juan Jose Lopez Ortega (Madrid, May 30, 2007), Enforcement investigative measures with the participation of the accused and use of special reconnaissance means.

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A NEW DATA PROTECTION DEVELOPMENT IN THE EU JUDICIAL AND CRIMINAL AREA Gabriela BELOVA, Gergana GEORGIEVA “Neofit Rilski” South-West University Blagoevgrad, Bulgaria [email protected], [email protected] Abstract: The following article is dedicated to a new data protection regime in the European Union, in particular the Directive (EU) 2016/680 of the European Parliament and the Council on the protection of natural persons regarding processing of personal data by authorities aiming at prevention, investigation, detection and prosecution of crime offences, including execution of criminal penalties. For this purpose, the authors look first at the data protection within the Prüm framework as well as at the relevant provisions of Lisbon Treaty Ɍhe important cases of the European Court of Human Rights are analyzed. Whereas in 2014 EU Member states focused on the question whether or not to retain data, the 2016 conclusion was that in some aspects data retention is the most efficient measure to ensure national security, public safety and fighting across serious crimes. The terrorist attacks in Paris and Brussels call to better equip security authorities. The EU legislature made significant progress on the Data Protection regime. The Directive (EU) 2016/680, the so called the ‘Police and Criminal Justice Directive’, repeals the Council Framework Decision 2008/977/JHA and will enter into force on 6 May 2018.

Keywords: Prüm framework, DNA, data protection, new Police and Criminal Justice Directive. necessity to enhance collaboration in combatting terrorism, cross-border related crimes and illegal migration has led to signing the so called Prüm Treaty. It was signed on 27th May 2005 by seven Member States of the European Union (Belgium, Spain, Germany, Austria, France, Luxemburg, and the Netherlands). The data obtained by comparing information should open up new investigative approaches for Member States and as the Treaty states: “a new dimension in crime fighting”. [2] On 23 June 2008 the most important aspects of the Treaty were transferred into EU law by the two Framework Decisions, namely Council Decision 2008/615/JHA as well as Council Decision 2008/616/JHA. The manner in which Prüm became a part of EU acquis has been harshly condemned by a number of commentators, including

1. Introduction Handing over vital personal information and transferring vast amounts of data across borders on a daily basis could often fall into the wrong hands. Under European Union Law, personal information can be collected legally under strict conditions and for a legitimate purpose and each person has the right to personal data protection. However, contradictory data protection rules in various countries would disrupt international exchanges. Since individuals may be reluctant to transfer their data to a foreign country if they doubt the level of protection in other states, common rules of the European Union have been established to guarantee the protection of one’s personal data allowing complaints as well as obtaining redress if the data has been misused within the EU. The ever-increasing


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By August 1st 2011 every Member State had to configure their DNA database, which did not actually happen. At present 22 countries are connected within the Prüm network or DNA data exchange, 18 states regarding fingerprints exchange and 19 countries – vehicles exchange. [4] Its target is the European Union Member States’ accreditation of forensic laboratories to one and the same standard, i.e. EN ISO/IEC 125. The aim is the outcomes of their activities, respectively dactyloscopic data and DNA profiles, to be first recognized, then treated as identically dependable in the rest of the Member States of the European Union.

the European Data Protection Supervisor who claimed that it was performed in a way permitting just ‘limited margin of manoeuvre’. [11] 2. Transformation of Prüm Treaty into a part of EU law At this time there are three possibilities for the content of Prüm Treaty to become a part of EU law: - Ratification by MS; - Enhanced co-operation mechanism; - Council Framework Decisions. Under the German Presidency states that are contracting ones avoided the substantive requirements of enhanced cooperating. The Treaty of Prüm only partially became acquis communautaire because Council Decisions comprise no provisions related to ‘air marshals’ and illegal migration. There are four main elements that are present in the Prüm decisions. The first one is automatic search and comparison of data from national data in the area of DNA, dactyloscopic and vehicle registration data. The second one is related to information exchange for the prevention of offences in the context of some main events concerning a cross-border dimension and regarding possible terrorist offences. This element is followed by police co-operation and the last one is dedicated to the operational chapters being underpinned by Data Protection rules. [6]

4. DNA Profile A forensic DNA profile might be obtained from cell material in bodily fluids such as blood, saliva and semen, and - less often from biological material such as nails, skin flakes and bones. A DNA profile consists of a set of numbers that indicate which genetic markers (or alleles) appear at 10 to 15 places (called loci) that are chosen for their great variability (called polymorphy) across human beings and are located on the 23 pairs of chromosomes which could be found in the nucleus of most human cell types. Chromosomes are composed of long strings of four paired chemical compounds or building blocks, that is T or thymine, A that stands for adenine, C meaning cytosine and G - guanine, arranged in the form of a double helix and constitute the individual’s so called genotype or genetic make-up. The numbers in the DNA profile represent the repetitions of sequences of – typically – four such paired building blocks or base pairs, e.g., TACG-TACG-TACG etc., with T always pairing with A, and G with C. [2] The first conviction that was based on DNA profiling evidence happened in England in 1987. Colin Pitchfork received a sentence of life imprisonment for raping and murdering two females. To begin with, a police investigation led to the wrong person, whose name is Richard Buckland.

3. Prüm’s Goal The major aim of Prüm is to get over long bureaucratic procedures through the creation of automatic exchange of information. [8] An evaluation of the Polish Presidency inferred that the procedure is “complex, technically fraught and expensive”. [9] Nevertheless the Prüm Decisions make it possible for MS to look for other MS fingerprints and DNA databases through an automated system within the frameworks of obligatory response times: DNA – 15 minutes; Fingerprints – 24 hours; Vehicles – 10 seconds.

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He was a 17-year-old boy who deceitfully admitted he committed one of the crimes. After an exceptional mass screening of five thousand people with the usage of pioneering “DNA profiling” technology, in the end, Pitchfork was captured. Firstly, Pitchfork had escaped justice by convincing one of his colleagues to take the test instead of him. In April 2016 the first killer caught by DNA has been refused parole. The UK set up the first DNA database in the world in 1995. The United States of America has the biggest database - more than 5 million profiles. Great Britain has the most profiles as a percentage of its population - 4 million, representing 6% of those living on the island. DNA has played a significant role in crime investigations: helping to convict criminals and acquit innocent people. Genetic profiles could exist on clothes and other items for decades, even centuries, making it possible for police to dig deep into the past in order to deal with “cold cases”. The implementation of the Prüm Treaty involves two types of technical regulations, in particular Inclusion Rules and Matching Rules. In 2011 the European Standard Set (ESS) was extended from six to twelve loci. The Amelogenin locus, which marks for gender, may also be specified but it is not included in the number of matching loci. There could be full match - two profiles share all alleles on at least six loci and near match - when they share all alleles but one on at least seven loci. [4] It should be noted that the DNA profile exchange process essentially amounts to sending encrypted (anonymous or pseudonymised data) DNA profiles between the national Prüm (identification numbers) which are not traceable to an individual. Only if a match is detected, is an encrypted message sent to the custodians of both databases to find the person whom the hit refers to.

The national Prüm database of an MS is a virtual database within or separate from the national forensic database. [3] 5. Prüm Decisions - benefits and concerns There are numerous benefits with regard to Prüm Decisions such as simplified processes to request information and/or data; efficiency gains in international searching; increase in resolution of unsolved crimes; improved response to requests for information associated with crime and terrorism; detection of volume crime as well as serious crimes – can help reveal crime trends and patterns; enhanced crime and terrorism intelligence picture. The main concern related to the Prüm system of exchange of data represents ‘rising risk of false positives’ owing to the manner DNA profiles are thought to be the so called ‘hit’. [3,7] The risk of false positives grows bigger since a larger number of MS join the network. It would be justifiable to say that the risk of false positives occurring from using the Automated Fingerprint Identification System ‘has not been sufficiently investigated’. Access to DNA samples and profiles can allow unethical abuses (categorisation of individuals as ‘risky’ based on genetic data). In various aspects, the Prüm arrangements point out to sensitiveness towards the bioethical considerations. [5] 6. DNA, Data protection and HR The ECtHR in contemplating on the preservation of DNA or fingerprints for forensic usage sounded a cautionary note for states that are in the forefront of technological innovation: “…any State claiming a pioneer role in the development of new technologies bears special responsibility for striking balance between the use of modern scientific techniques in the criminal justice system and important private life interests”. (S & Marper v. the UK) [12]

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The Strasbourg Court in X. v the Netherlands case [1978] recognised the following: submitting to a blood test does not make a presumption of blame. This contradicts Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). [1] Presently the most typical samples taken for investigative purposes is the collection of saliva or hair samples. There are obvious disparities between the different national legislations with regard to the suspects under 18. Commonly, there should be an agreement of the minor and their parents, defence lawyer or guardian. In the UK there are samples that are taken counting on the gravity of offence not on the age of the suspect. [1] It looks like the creation of a special database of minors’ profiles would be the best option. In S & Marper v United Kingdom [2008] ECtHR acknowledges that storing cellular material is far more perilous for the right to privacy compared to storing the DNA profile. This is so because an analysis of cellular material could display a lot more personal data. [12] Unrestricted retention of these data is not justifiable; the outcome is a breach of the right to privacy.

Regulation. There are non-affected or without any justification certain acts, particularly the rules for Eurojust, Europol, as well as data exchange according to Council Decision 2008/615/JHA. [10] In the following years a lot of recommendations have been tailored. 7.1. New Data Protection Package The adoption of the new Data Protection Package took place on 27 April 2016 via two secondary legislation acts: 1) Regulation (EC) 2016/ 679 or the General Data Protection Regulation of the European Parliament as well as the Council. It is connected with: protecting persons regarding the processing and free movement of personal data, repealing Directive 95/46 / EC. It shall apply from 25th May 2018. (OJ L119 / 1, 04.05.2016); 2) Directive (EU) 2016/680 of the European Parliament and of the Council. This second act is related to: protecting persons regarding the personal data’s processing by the qualified bodies for the aims of preventing, prosecuting, investigationg of penal offenses or the enforcement of crime sanctions. The free movement of this data as well as repealing Council Framework Decision 2008/977/JHA also apply here (OJ L 119 89 04.05.2016). The binding nature of this secondary legislation will certainly make EU Member States comply with established data protection standards. 7.2. New Data Protection Directive (EU) 2016/680 The new Data Protection Directive (EU) 2016/680 is actually the so-called Police and Criminal Law Directive. It has a dual purpose, which is to protect personal data as well as provide exchanges among authorities at national level. [1] It makes a connection between the legislative gap between Directive 95/46/EC, which is the present European Data Protection Law, and Framework Decision 2008/977/JHA. What the Directive does is harmonise Member States’ laws as regards the information exchange among judicial bodies and police. It leaves discretion in

7. A Road to a New Data Protection Regime On 25 January 2012, based on Art.16 TFEU, the European Commission accepted a proposal for the so called General Data Protection Regulation, including a suggestion for the so called Police and Criminal Justice Directive. It has been pointed that a few aspects of the Commission’s Draft have had a critical outcome on behalf of the European Data Protection Supervisor. [1] Concerns have been voiced by the European Parliament as well. As far as the European Data Protection Supervisor’s say on the data protection reform package is concerned, the Draft Data Protection Directive is not as strong as the Draft Data Protection

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particular fields, e.g. penalties for violation of the Directive in order to respect the various Member States’ legal established practices. Analysts think that the directive is some leaps ahead of Council Framework Decision 2008/977 / JHA since: it concerns both the cross-border and national processing of personal data and aims to improve Member States' mutual work in the combat against terrorism and other criminal offenses in the EU; it ensures that personal data transmitted from outside the EU by law enforcement bodies of criminal law should be adequately protected; it covers the genetic data exchange; it provides that the agreements by the Member States are to be revised in accordance with the Directive’s provisions; it sets major principles for the processing of personal data, just when it is needed, in a proportionate manner and in accordance with a particular objective [1]. The processing of personal data in the framework of judicial cooperation in criminal matters as well as police cooperation is characterised by the processing of data with the relation to various categories of data subjects. This ought not to be an obstacle for the implementation of the right to a presumption of innocence assured by the Charter and the European Court of Human Rights as it has been interpreted in the Court of Justice’s case-law and the ECHR.

Thus, where possible, there should be made a differentiation between personal data of varied categories of data subjects. For instance, these could be individuals guilty of a crime; victims; witnesses; individuals holding relevant information or contacts; suspects; suspects’ associates as well as criminals that have been found guilty, that is Recital 31. 8. Conclusion Whereas in 2014 EU Member states focused on the question whether or not to retain data, the 2016 conclusion was that in some aspects data retention is the most efficient measure to ensure national security, public safety and fighting across serious crime. The terrorist attacks in Paris and Brussels call to better equip security authorities [13]. Despite all the innovations, the Data Protection Directive does not include each and every area of freedom, security plus justice. For now the ‘old’ Data protection regime will apply until the coming into force of the Directive – a period during which the Commission needs to assess and decide upon the necessity to align the provisions of other acts with the ones of the abovementioned Directive. Further progress is envisaged to be observed when Member States apply the Directive’s provisions May 2018. since 6th

References [1] Helena Soleto Muñoz, Anna Fiodorova ‘DNA and Law Enforcement in the European Union: Tools and Human Rights Protection’ Utrecht Law Review, Volume 10, issue 1 (January 2014), http://www.utrechtlawreview.org [2] M. D. Taverne , A.P.A. Broeders: The light’s at the end of the funnel! Evaluating the effectiveness of the transnational exchange of DNA profiles between the Netherlands and other Prüm countries, University of Leiden, Institute of Criminal Law and Criminology, November 2015 [3] Carole I. McCartney & Tim J. Wilson & Robin Williams ‘Transnational Exchange of Forensic DNA: Viability, Legitimacy, and Acceptability’ European Journal on Crime Policy and Research, Volume 1, N0 4, 2011

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[4] Van der Beek, C.P. Forensic DNA Profiles Crossing Borders in Europe (Implementation of the Treaty of Prüm). [Internet] 2011. Available from: http://worldwide.promega.com/resources/ [5] Prüm Business and Implementation Case, Report of the Home Office, November 2015, presented to the Parliament by the Secretary of State for the Home Department, Cm 9149 [6] Rocco Bellanova “The Prüm Process”: The Way Forward for EU Police Cooperation and Data Exchange? Security v. Justice [7] Helen Wallace ‘The UK DNA database and the European Court of Human Rights; Lessons India can learn from UK mistakes’, www.genewatch.org [8] Eric Töpfer, ‘Europe’s emerging web of DNA databases’ http://database.statewatch.org/article.asp?aid=30566 [9] Chris Jones “Complex, technologically fraught and expensive” – the problematic implementation of Prüm Decision, Statewatch analysis [10] European Data Protection Supervisor, Report 2012/C 192/05, OJ C 192, 30.6.2012, pp. 13-15. [11] Opinion of the European Data Protection Supervisor on the Initiative of the Federal Republic of Germany, with a view to adopting a Council Decision on the implementation of Decision 2007/…/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (2008/C 89/01) [12] S. and Marper v. the United Kingdom, Applications nos. 30562/04 and 30566/04, Judgment of 4 December 2008. [13] Ȼɟɥɨɜɚ Ƚ Ɇɚɪɢɧ ɇ Ɇɧɨɝɨɜɟɤɬɨɪɧɢ ɢɡɦɟɪɟɧɢɹ ɧɚ ɫɢɝɭɪɧɨɫɬɬɚ ɜ ɑɟɪɧɨɦɨɪɫɤɢɹ ɪɟɝɢɨɧɫɩɆɟɠɞɭɧɚɪɨɞɧɚɩɨɥɢɬɢɤɚɛɪɫ 81-91

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MOTIVE OR REASON IN CRIMINAL LAW Elisabeta BO‫܉‬,$1 Romanian-German University of Sibiu, Sibiu, Romania [email protected] Abstract: Guilt often encompasses volitional and intellectual mental processes and only in rare cases it will include affective processes. The motive and purpose are certain mental processes which the legislator sometimes introduces in the content of the offenses. The motive is the psychological causal support of human facts. The doctrine currently uses both the term of motive and that of reason, but the Criminal Code uses exclusively the term motive, which better communicates the conscious and rational character of these psychological processes. In the general section of the Criminal Code, mental processes of the motive are common among the general criteria of punishment individualization and also in listing the aggravating circumstances. In the special part of the Criminal Code mental processes of the motive can be found both for typical or special variants and aggravated or qualifying forms of certain crimes. Motive can be expressed explicitly by equivalent terms or by an implied manner, which entails the need for interpretation of the text. Keywords: guilty, motive, purpose, crime content mental processes selected by the legislator from the plurality of mental processes specific to humans that best highlight the conscious and deliberate character of the deed, as well as the attitude of the offender to the result of the deed. As noted, most often, criminal law exploits in terms of guilt, mental processes that are most frequently encountered, but not excluded from cases in which the legislator attaches importance to other mental processes such as premeditation, bad faith, some mental disorder states or affective mental processes. Among the latter we can include motive and purpose, constituting the emotional support of criminal offences [1]. Unlike intent, guilt and exceeded intent that the legislator defines in the general part of the Criminal Code, the motive and purpose are not defined, however, they sometimes appear in the content of incrimination rules and determine certain legal consequences.

1. Introduction In criminal law, guilt is defined by the correlation between the wrongful act and its author. The two concepts with which guilt is explained in the science of criminal law are normative theory and psychological theory. This latter view has been endorsed both by the Criminal Code of 1968, as well as that of 2009 (entered into force on February 1st 2014). While according to normative theory, guilt appears as a reproach that society makes the individual about how he has acted, violating the rule of law, in psychological theory guilt is presented as a set of mental processes that highlight the connection between deed and its author. This set of mental processes consists mainly of volitional and intellectual mental processes and only in rare cases it will include affective processes. Thus, the intent and guilt with the detailed rules, but also the overcome intention are actually certain


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for mental processes where the rational, conscious factor was predominant. Currently, in modern psychological and criminological theories there is the tendency to abandon the classic notion of motive, in favour of reason, which is considered more comprehensive [1].

2. Terminology and Psychological Considerations I appreciate that achieving a more comprehensive analysis of the mental processes that make up the motive or the reason, the offense has to start from elucidating the etymology and meaning of these terms. According to the Dictionary of neologisms [2], by “motive” we understand the determining cause of an action, posing as synonymous for “reason”. The word is of French origin (mobile), and in this language it may also mean, as a noun, cause, reason or grounds. “Reason” is defined as that cause that determines an action or a feeling. As synonymous terms, there are mentioned the cause or pretext. The origin of the term is Latin, and in this language, “motivus” is the one that gives it meaning. Analysing the causes of human crime, an important step is to identify the causative psychological support of delinquent behaviour. From this point of view there must be clarified both the reasons which led to some criminal behaviour and the goals or results by committing the illegal act. By elucidating the motivation of the criminal act, judicial psychology tries to refocus the subject in the motivational plan to achieve its social recovery. Criminology operates with the notions of motive and reason to highlight the genesis of criminal behaviour and the shift to delinquent act. In terms of criminal doctrine, the notions of motive and reason were taken from psychological and criminological theories of the criminal act. In the beginnings of forensic psychology, both concepts were used, the motive being considered synonymous with reason. By motive or reason it was understood that what unleashes, supports and directs a certain activity. Subsequently, the term “motive” was used to refer to those emotional processes, predominantly unconscious and irrational, and the term “reason” was used

3. Motive and Reason in the Doctrine of Criminal Law In Criminal Law, motive (or reason) and purpose are the affective mental processes that complement the sentimental framework of crimes and which, once identified, clarifies the deeper aspects of psychological processes that make up the guilt. In terms of the sense in which they are used, the terms “motive” and “reason” are considered synonymous for most of the criminal doctrine and have the significance of a psychological process which represents the internal cause of the conduct act. Analysing and planning the definitions given to motive / reason in the literature, we can distinguish two main trends, namely: the first is the one attributing motive the single significance of affective mental process generator of the criminal act, and the second considers that the motive comprises besides the emotional component other volitional and intellectual mental processes by which the perpetrator decides on the criminal act and decides on its implementation. We have already stated that the legislation makes no conceptual distinction between motive and reason, and the current Criminal Code uses only the term “reason”, without defining it, but in recent literature, we can see that the perpetrators of criminal further use, both the term “motive” and that of “reason”. The simultaneous and undifferentiated use of the two terms were alleged to perpetrators of criminal law [3], but it should not be overlooked that the assessment of a specific mental process in the science of criminal law may be different from the assessment made by other disciplines.

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As far as we are concerned, we consider that, in order to avoid confusion, the use of term “reason” is advisable to be used, for at least two reasons. The first argument is the expression of the legislator that, in the Criminal Code entered into force on February 1st, 2014, uses exclusively the term “reason”. Thus, it is necessary and justified that the doctrine uses the terminology preferred by the legislator, as long as misuses or imprecise uses of those notions go unnoticed misuse. The second argument considers the trends already highlighted in the forensic psychology and contemporary criminology, according to which “reason” means the conscious emotional and rational affective mental processes causing the individual to commit a crime. In this context it must be stressed that only the mental processes of conscious and rational order can have a criminal significance, being the sentimental binder between offence and author. For criminologists and psychologists, unconscious and affective factors that led the subject to commit a criminal offense may be relevant, therefore its motive, but the criminal law only assesses the volitional and intellectual mental processes.

d, for those offenses that include in the content of indictment only the requirement of the purpose, as the influence of the purpose might be retained in the case of indictments that include the essential requirement of a particular motive. For example, in case of theft, the motive for which they commit the act could be retained in the process of individualization of punishment, meaning a general criterion for mitigation or aggravation, given that in the content of indictment only the condition of purpose as an essential feature of the offense can be found. Moreover, the term “reason” is also used in art. 77 which lists the circumstances which constitute aggravating circumstances, so the last letter “h” of this article refers to committing the offense for reasons of race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion or political affiliation, wealth, social origin, age, disability, non-contagious disease or HIV/AIDS, considered by the offender as causes of inferiority of a person in relation to others. Even if there have been reported very few cases of application of such circumstances in legal practice, we must not forget that our country has aligned with international legislation on combating all forms of discrimination and committing the act with such a reason reveals an enhanced danger of the offender. It can be noticed that the term “reason” to indicate explicitly these mental processes are a legislative progress from the former Criminal Code where an equivalent term was used, namely „grounds”. 4.2. Special Part of the Criminal Code In Title I, Chapter I, devoted to offenses against life, we can notice the qualified version of murder at letter “b” of Article 189, stating that, one of the aggravating circumstances of committing murder is performing it out of “material interests”. Material interest has been identified with any advantage, benefit or material gain, followed by committing the offense.

4. Reason in the Criminal Code in Force 4.1. General Part of the Criminal Code The term “reason” is found primarily in the general section of the Criminal Code, specifically in art. 74 dedicated to general criteria of punishment individualization, and par. 1 letter d mentions the reason for committing the crime and the purpose. The doctrine [4] emphasized that these mental elements could be appreciated in determining the sanction, only to those crimes whose contents do not already include these requirements, as constituent trait or circumstantial element, since they were taken into consideration in a specific sense when formulating the indictment. We believe, however, that it would be possible to take account of the mental processes of reason within the meaning of art. 74 letter

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According to the legislator, committing murder for financial interest is a higher social danger than that of the act in its simple form, as it shows a deeper perversion of conscience of the one trying to satisfy their material interests at any cost, even by taking the life of another. The legal practice has highlighted the meaning of the expression, stating that any patrimonial motive corresponds with the notion of material interest. Thus, immediate material benefits, obtained through the assimilation of the victim’s goods during the murder, do not fall within the definition of financial interest, but within the offense of robbery. Law requirement is fulfilled only if the author acts aiming that by committing murder he satisfies his material interests faster, in an apparently legal manner (for example, by legal or testamentary succession or other similar means which gives a patrimonial character to the victim’s goods). In common language, by interest we understand both the concern in obtaining a benefit or satisfaction of certain needs and benefit, advantage, profit or gain to be obtained. It is obvious that the aggravated murderer must be animated by the motive of the material interest and the offender sees in the victim’s death, the only way capable of leading to quick satisfaction of his needs, which cannot be maintained in all situations. It is not necessary that the reason the murder was committed for had been satisfied to retain this aggravating circumstance. It is sufficient that the act is committed under these psychological processes. Moreover, it is not important whether the offender has wrongly concluded that the victim’s death will lead to satisfying the reason. The aggravating circumstance is usually personal and will not affect the participants, but situations where all participants operate under the same motive are not excluded. Further, in Chapter VI of Title I, entitled “Crimes against personal freedom”, in art.

208 par. 1, we find the accusation of harassment and, according to the text, the offense lies in the person’s act who repeatedly seeks unrightfully or “without a legitimate interest” a person or monitors his/her home, working place or other places frequented by this person, therefore causing a state of fear. Incrimination seeks to repress the conduct by which a person affects the freedom of another person, through unjustified pursuit. The essential requirement of the reason is expressed using the equivalent expression “without a legitimate interest”, which has the role of negative conditions of existence of the crime. Due to the requirement of the reason, the act can be accomplished only with direct intent. The offender’s justification of a legitimate interest will lead to removing the criminal nature of the act. For example, such a legitimate interest may be invoked by the offender pursuing his ex-wife to whom the children from the marriage were entrusted, since she had neglected them, leaving them often unattended in the home and who does not take care of them, putting them in danger. In Title III dedicated to offenses on the authority and state borders, we identify at article 257 par. 2 the incrimination of contempt committed out of revenge which consists of an offense against an official who performs a function involving the exercise of state authority or against his assets, for intimidation or revenge, in connection with the performance of work responsibilities. Aggravating circumstantial elements (quality of the passive subject and the purpose or motive of the action) outline an aggravated regulatory variant of the offense committed in the circumstances given. Although it would seem that the content of incrimination only includes the essential requirement of the purpose, in reality we have the conditions of the reason, for vengeance is the reason causing the offender to act. The grammatical

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interpretation of the text allows us to conclude that the legislator considers revenge, too, as a purpose, although in terms of the actual content of the mental processes, it appears rather as a cause of the crime. Since, also in legal practice, revenge has been constantly considered a despicable reason, we consider that the change of this concept’s meaning is unjustified and misleading. This situation could have been avoided by redrafting the text, so that instead of the preposition “for” at the front of the noun “revenge”, the preposition “out of” should be used. The requirements of the motive and reason would be expressed in this way in a much clearer way: “for the purpose of intimidation or out of revenge”, which would be consistent with the usual meaning of the expressions. In Title IV dedicated to offenses against justice, we identify the reason’s condition in art. 274 which incriminates revenge for helping justice, consisting of a crime against a person or a family member thereof, on the ground that he notified the prosecution authorities, gave evidence or submitted evidence in a criminal or civil case, or in any other proceeding where witnesses are heard. It was considered necessary to introduce this new incrimination, to deter retaliatory acts committed against those who go to court. The requirement of the reason is expressed explicitly in the content of incrimination using the phrase “on the grounds of” and is also synthetically presented in the marginal term of the offense that refers to it: revenge. In order for this offense to be attributed to the offender, it is necessary to prove the fact that he acted with this reason, otherwise legal classification will be done according to the laws which incriminate that offense. Rule of article 274 is a norm of reference as it relates to other rules of incrimination, pointing out also that special limits of punishment for any crime committed for this reason is increased by a third. Another indictment in this title refers to

torture which we find described in art. 282 of the Criminal Code. In this case the legislator uses the phrase “for any other reason based on discrimination of any kind”, which defines those impulses and tendencies existing in some people to make distinctions between members of society according to criteria that have no justification. The more serious it appears in our legislator’s mentality, the conduct of an agent of the public authority or a person acting in an official capacity, to cause the victim pain or strong suffering in contempt, hatred or superiority to some people, thus violating the principle of equality among citizens. Without explicitly mentioning which those forms of discrimination are, the legislator understands them all, thus adopting an open definition. It does not matter if the discrimination is based on grounds of sex, nationality, race, religion, gender, political affiliation, sexual orientation, beliefs, wealth, social origin, age, disability, noncontagious disease, HIV / AIDS or other. Law requirement is satisfied if the offender acts under the influence of that reason and the reason will be deducted from the external manifestations of the agent. The community police officer will commit the crime of torture for example, after having found a homeless person in the park, finding that this person is part of an ethnic group despised by him, by applying him several kicks. In Title V, Chapter II is devoted to offenses related to work, and at art. 297 par. 2 we can find a type of abuse of office by limiting certain rights, where the essential requirement of the reason appears in the phrase “based on race, nationality, ethnicity, language, religion, gender, sexual orientation, political affiliation, beliefs, wealth social origin, age, disability, noncontagious disease or HIV / AIDS”. Distinctly incriminating this option of abuse of office, the legislator intended to protect citizens against any attempt of discrimination, no matter who it comes

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from: civil servants or simple natural or legal persons. Incriminating such acts allow citizens to exercise their rights and freedoms without distinction between them. Compared to the typical variant of abuse against the interests of people in paragraph 1 of article 297, the presence of such a reason denotes, according to the legislator’s opinion, an infamous and low-minded mental attitude and gives the described act an equally high degree of social danger. Given that the special reason why acts are committed is part of the very content of incrimination, these crimes would never be committed under statutory aggravating circumstance of article 77 letter h of the Criminal Code. Regarding the offense of abuse of office in the option of limitation of certain rights, the dominant opinion in the literature is the sense that the act can be committed only with direct intent, because the reason which prompted the offender to move to

[1] [2] [3] [4] [5]

committing the offense excludes indirect intention or negligence. Contrary opinions have also been expressed, arguing that the deed might also be committed with indirect intention whereas, even animated by such justification, the agent can accept jeopardizing working relations, without actually pursuing this [5]. We have reservations about those claims. In our opinion, the offense cannot be committed but with direct intent because the perpetrator acts with a special intention, qualified by reason. In this case simple intent is not enough, but it must be accompanied by deeper psychological elements related to certain particular impulses, attached to guilt. The author acts with will, knows that he restricts the use or exercise of a person’s rights and provides that he thus causes harm to the victim, a result which not only did he had in mind and pursued, but which was also the reason for his action.

References %R‫܊‬LDQ(OLVDEHWD0RELOXOЮLVFRSXOvQGUHSWXOSHQDO6LELX(GLWXUD$FDGHPLHL)RU‫܊‬HORU 7HUHVWUH´1LFRODH%ăOFHVFX´SS 0DUFX )ORULQ ‫܈‬L 0DQHFD &RQVWDQW 'LFаLRQDU GH QHRORJLVPH %XFXUH‫܈‬WL (GLWXUD Academiei, 1978, pp. 695 Cioclei Valerian, 0RELOXOvQFRQGXLWa criminală, %XFXUH‫܈‬WL(GLWXUD$OO%HFNSS 261. AQWRQLX *HRUJH ‫܈‬L FRODERUDWRULL, Noul Cod penal. Comentarii pe articole, Vol. 2, %XFXUH‫܈‬ti, Editura C.H. Beck, 2008, pp. 215-216. /RJKLQ 2FWDYLDQ ‫܈‬L )LOLSD‫ ܈‬Avram, 'UHSW SHQDO SDUWHD VSHFLDOă %XFXUH‫܈‬WL (GLWXUD 'LGDFWLFă‫܈‬L3HGDJRJLFăSS

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THE UNACCOMPANIED OR SEPARATED MINOR IN THE ASYLUM PROCEDURE Andra Maria BREZNICEANU University of Craiova, Craiova, Romania [email protected] Abstract: The unaccompanied or separated minor is, according to the European Union body of legislation regarding asylum and migration, one of the extremely vulnerable categories of persons, and the risk of vulnerability is amplified in the case of the unaccompanied or separated minor - asylum seeker. Ever since the EU pre-accession period Romanian legislation reconciled, according to the European model, the requirements of the rules on migration with humanism provisions in the field of child rights. The images in the media about the migratory flows in recent years have revealed a system that requires imperatively legislative changes, adapting procedures, innovative work tools, including the case of the unaccompanied minor asylum seeker. In this article I intend to analyze the existing legislative framework in Romania, highlighting the positive aspects of the law and those which I believe that should be reconsidered so that the interests of the minor in the asylum procedure to be properly protected. Keywords: unaccompanied, minor, separated, asylum, migration according to which the unaccompanied minor is a foreign child or a child without citizenship of a state who, by entering the territory of Romania, finds himself/herself in one of the following situations: a) he/she is not accompanied by parents or by an adult who is legally responsible for the minor and is not in the effective care of him/her; b) the minor who, after entering Romania, is left unaccompanied.

1. Introduction The unaccompanied minor, separated from parents or from legal guardian, is one of the most vulnerable categories of asylum seekers, along with trafficked persons, people with disabilities or serious illnesses, etc. The term minor used in Romanian legislation, both in the general [1] and the asylum-specific one [2], is similar to the usual term child used in the Convention on the Rights of the Child, according to which "child means any human being under the age of 18, except the cases where the applicable law to the child sets the age under this limit "[3]. In order to delimit the strict framework of this article, we will refer to the definition agreed by the Romanian legislator,

2. The concept of unaccompanied or separated minor in Romanian legislation From the moment of defining the category of interest - unaccompanied minors - we notice a greater strictness of the Romanian regulation vis-à-vis the international bodies regarding the asylum seekers. Thus, in UNHCR's (United Nations High


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not considering the existence of protection under the customary or legal regulations of the minor's asylum seeker's home country. A large number of these subjects (unaccompanied minors) come from countries where the custom is a recognized source of law and, at the same time, a current and prolific way of regulating legal situations. Starting from international regulations (The UNO Convention on the Rights of the Child, art.5), from European regulations (art.5,8 from The European Convention on Human Rights, art.17 from The European Social Charter) or the casuistry of the ECHR [7], which states without exception the principle of the best interests of the child, Law no. 122/2006 also enshrines the fundamental importance of the principle, thus reconciling the protection of the child's rights with the emigration policy requirements. Article 8 of the Regulation stipulates that all decisions regarding the minor are taken with respect to its superior interest, especially when unaccompanied.

Commissioner for Refugees) approach the unaccompanied minors are "minors who have been separated from both parents and other relatives and are not cared for by an adult who, according to law or custom, is responsible for doing so" [4], introducing into the notion of unaccompanied minors a distinct subcategory, that of minors separated by both parents or the legal guardian, but not necessarily separated from other relatives, who may actually have the role to care for the minor without having the legal attribute of his/her protection. The establishment of this subcategory was determined by the practical consideration of the fact that the unaccompanied minor is usually part of a group of asylum seekers, persons with whom it is related and in whose care it was given when leaving the country of origin without having legal documents on child protection. International institutions take into account the protection of the minor by other adult members of the extended family. The Romanian legislator, however, inserted in the definition of the unaccompanied minor a subcategory only found in the Dublin Regulation, namely "the minor who is left unaccompanied after entering the territory of Romania"[5].The argumentation of this sub-category was determined by the sometimes justified suspicion that minors (usually persons over 14 years of age, who no longer require current care from an adult) benefit in the asylum application procedure from favorable conditions and legal guarantees of access to the territory and to the status, as a result of the unimpeded application of the principle of protecting the best interests of the child; which can justify the reason for being left apparently unaccompanied. Another aspect that the Romanian legislator treats differently from the international institutions is that the person accompanying the juvenile must "be responsible for him/her according to the Romanian law"[6],

3. The asylum procedure The unaccompanied minor becomes according to article 34 (1) Law no.122/ 2006 asylum seeker when manifesting the will to request the protection of the Romanian state, in oral or written form. Although the expression of will involves a personal act, most often, for the unaccompanied minor who can not express his will (young age), the request for protection is made by de facto representatives of the group he is part of. Subsequent to the oral presentation of the intention to seek asylum, the written procedure for submitting an application for asylum to the competent authorities is provided. The ambiguity of the provisions of art.34 (3), referring to art. 36 (2) of Law No. 122/2006 and Article 3 of the Dublin Regulation raise difficulties of understanding and interpreting both for the

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administrative unit the competent authority is to receive the asylum application, with attributions in assisting the unaccompanied minor during the asylum procedure, according to law "instanter". It is true that European Law does not require the appointment of a legal representative for a minor even when the authorities find out about his/her existence, Article 25 of the Asylum Procedures Directive using the term "instanter" taken over by the Romanian legislator or the term "immediately" used in Art. 24 of the Asylum Conditions Directive. However, we consider that in the transposition of the directives, the national legislature is desirable to provide for a maximum term for the appointment of the representative, because the absence of a concrete term may have negative or abusive consequences on the situation of the minor, including the taking over in the accomodation institutions provided by the state. In practice, the appointment of a representative lasts between one day and seven days. At the same time, European legislation in the field (including the Dublin Regulation, art. 25) does not require the appointment of a legal representative to assist the minor exclusively during the asylum procedure, leaving it to the States to choose for the appointment of a specialist in the asylum procedure or for a representative with wider attributions of guardian type. From the formulation of Law no.122 / 2006, we consider that the legislator opted for the appointment of a legal representative with general competencies considering that he/she will continue to "operate for as long as the minor enjoys international protection in Romania" [11], the exercise of the rights and obligations of the asylum seeker and later of the refugees / beneficiaries of international protection being exercised with the agreement and the contest of the representative.

unaccompanied minor and for the adult asylum seeker. Thus, the Dublin Regulation provides that the Member States are responsible for examining all international protection claims made by foreigners "on the territory of any of them, including at the border or in transit zones" [8], which at least seems to contradict our legislation (there are no explanations within the methodological norms of law enforcement) that provides that the request for protection filed on the territory of the country but not directed to the authorities of the Romanian state will generate the effect of recognizing the status of asylum seeker only "at the time of the manifestation of will towards the competent Romanian authorities"[9], by this understanding the unhappy expression of the Romanian legislator that the Romanian state is responsible for examining a request for protection only if the person requests the protection of the Romanian state. At the same time, art. 36 (2) provides that "the asylum applications lodged outside the territory of Romania are not admitted"[10]. Per a contrario, the applications filed on the territory of other Member States by asylum seekers in Romania should, according to the legislator's expression, not be accepted on the grounds of being deposited outside the territory, even if Romania is designated as a responsible State according to the Regulation. As a consequence of the expression of the will to request the protection of the romanian state, the unaccompanied minor is registered by the competent authorities as an asylum seeker, the entry into the written phase of the procedure (the filing of the asylum application) being initiated by the legal representative at the time of his appointment. Unaccompanied minors over the age of 14 may personally submit the application. The appointment of a legal representative within the Child Protection Directorate within the territorial

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family member, including the extended family, is the state in which the minor submitted the asylum application, "provided that this is in the best interests of the minor" [12]. However, the regulation does not clarify how the application is solved and by which state if the maintenance of the minor in the state where the application was filed is not in his/her interest. The case of the unaccompanied minor is offered, according to the European and national legislation, a series of other technical guarantees to defend his or her best interests: - the refusal of forensic expertise to determine the age in cases where there are serious doubts (determined by general statements or by analysis of some conclusive evidence of the case) regarding the minority does not necessarily lead to the person being considered as adult, if grounds for refusal are invoked or if conclusive evidence of age, including the last medical examination in the country of origin are provided. European regulations allow states to use certain techniques or medical analyzes in the process of determining the actual age of the person. The refusal by the state authorities of the request for protection cannot be based solely on the refusal of the minor to undergo a medical examination of the age; - the interpretation of the result of the expertise is done in accordance to the principle of the child's interest; - digital photography and fingerprinting of the minors under 14 are not carried out; - the minor's personal interview is adapted to the age and degree of intellectual maturity, not being realized if the minor is too small to participate to such a procedure; - the request for protection of the unaccompanied minor is analyzed as a matter of priority. The permissiveness of the law in granting the possibility for the juvenile over 14 to

We consider that the appointment of a legal representative specialized in the procedures for obtaining protection is preferable, given that he/she informs the minor about the performing of the forensic expertise for age assessment, about the personal interview and about its consequences on his situation. The above-mentioned argument is reinforced by the legislative aspect that allows the interview to be conducted without a lawyer (art. 45 alin. 4 Law 122/2006), the minor being throughout the personal interview assisted only by the legal representative, which is why we consider that the appointment, in the presented conditions, of a representative specialized in the legislation and casuistry of the asylum is preferable to a representative with general protection valences of the minor. Targetting the child's best interests - family reunification or avoidance of separation in the situation in which members of the same family make asylum applications on the territory of different states - Dublin Regulation introduces the obligation in the case of unaccompanied minors for the states to identify the Member State responsible for the applicant of asylum, according to a scale of the minor belonging to the family or to a group. In this respect, the application submitted by the minor is to be examined by the state on whose territory the family members are legally included, including brother, sister or a relative who, after an individual examination carried out by the state on whose territory he or she is, justifies the possibility to take care of the minor. The existence of family members of the minor on the territories of several Member States determines the European legislator to assess the interest of the child in identifying the responsible state and not just granting the responsibility of any state where a member of the family has been identified. The nonidentification of the family members of a

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submit a request for protection in its own name as well as of the juvenile over 16 to submit in its own name a complaint against the decision of resolution of the asylum seeker request, is part of the extended collateral body offered by EU Member States to the unaccompanied minor. The examination of minors' requests through the accelerated procedure, in transit zones or state borders are considered exceptions, being processed only under the terms of Directive no.2013/32/EU (art. 25). - the minor’s accommodation "is carried out in a residential service belonging to the general directorate for social assistance and child protection or an authorized private body" [13] or in the reception centers if the minors are over 16 years old. Within the framework of the Directive no. 2011/95 / EU priority is given to the placement of the minor to relatives or to other (substitutive) host families at the expense of the institutionalized type (to which the Romanian legislator stops) in order to attenuate the exposure of the juvenile to cultural shock as far as possible (not knowing the language, habits, entourage people). The detention of unaccompanied minors is forbidden in principle, the cases in which it is permitted exclude compulsory detention in prisons; - starting with urgency the steps to identify family members both in safe states and in home countries. In order to protect the minor and the family members remaining in

[1] [2] [3]

[4]

the country of origin, the collection of information is done with strict respect of the confidentiality of the data. Enhanced guarantees granted by EU countries or by Romania to unaccompanied minors do not exclude the possibility of a negative solution of their asylum requests, as well as the refusal of a right to stay in the territory during the review of the protection request, provided the protection of the minor's best interest. 4. Conclusions The adoption by the EU (and the transposition into national legislation) of some novator and visionary legislative regulations starting with 2011 and the existence of common procedures of the Member States in the field of asylum (including the asylum of the unaccompanied / separated minor seeker) had the merit to prevent many of the day-today difficulties of protection seekers and to provide responsible and functional support in the context of the 2015-2017 migration exodus. The joint legislative approach of states has facilitated the access of unaccompanied minors to extended safeguards in the asylum procedures, for the most part of the EU member states, including Romania (the clarification of some useful notions in the Romanian legislation - respectively the term "instanter" from article 16 Law 122/2006; the statute of the juvenile’s legal representative - being expected).

References Romanian Civil Code–Law no.287/2009, Monitorul Oficial no.505/15.07.2011, art.38 (2); Law no. 122/2006, Monitorul Oficial no.428/18.05.2006, art.1; The Convention on the Rights of the Child ratified by Law no. 18/1990, published in the Monitorul Oficial no. 109 /28.09.1990 and republished in Monitorul Oficial, no. 314/ 13.06.2001, art.1 UNHCR Guidelines on Determining the Best Interests of the Child, p.7; retrivied from http://www.unhcr.org/ro/wpcontent/uploads/sites/23/2016/12/Guidelines_Best_interest_of_ the_Child.pdf

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[5] [6] [7] [8] [9] [10] [11] [12] [13]

(EU) Regulation no. 604/2013,art.2, retrivied from http://eur-lex.europa.eu/legalcontent/RO/TXT/?uri=CELEX:32013R0604 Law no. 122/2006, Monitorul Oficial no.428/18.05.2006, art.2 (1); http://hudoc.echr.coe.int/eng#{"itemid":["001-104366"]} (EU) Regulation no. 604/2013,art.3(1) retrivied from http://eur-lex.europa.eu/legalcontent/RO/TXT/?uri=CELEX:32013R0604 Law no. 122/2006, Monitorul Oficial no.428/18.05.2006, art.34(3); Law no. 122/2006, Monitorul Oficial no.428/18.05.2006, art.36(2); Law no. 122/2006, Monitorul Oficial no.428/18.05.2006, art.40(1); (EU) Regulation no. 604/2013,art.8(4), retrivied from http://eur-lex.europa.eu/legalcontent/RO/TXT/?uri=CELEX:32013R0604 Law no.272/ 2004, Monitorul Oficial no.159/05.03.2014, art.8 (1,2)

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THE REFERENDUM AS AN INSTRUMENT TO JOIN INTERNATIONAL ORGANIZATIONS Zlatka GERGINOVA “Neofit Rilski” South-West University Blagoevgrad, Bulgaria [email protected] Abstract: The article scrutinizes the referendum as an instrument to join international organizations. It analyzes the interaction of the participants for achieving unanimity and consensus, not differences or attempts to impose a certain opinion. A conclusion is drawn that through direct democracy the citizens take responsibility for the future development of the state.

Keywords: referendum, democracy, international organizations the two enlargements of 2004 and 2007, is especially significant. The so-called “concurrence of wills” [2] of the participants is one that allows the “adaptation” of the interstate legislation to the joint appearances of the participants in the international organization. Naturally, what is important is the interaction and willingness of participants to achieve consensus and opportunity for synergy, to achieve consensus on the set issues to be resolved rather than highlighting the differences and the attempt to impose an opinion from a position of strength. Probably without differences it would not be possible to continue with the formation of a new international organization or accepting new members into the organization. The rallying unit is the will, the desire for cooperation in the name of common goals. “In other words, entities agree on the content of the norm and assigning it to the relevant obligatory force.” [3] The preamble of the UN Charter, the Statute of the International Court of Justice, and the Vienna Convention on the Law of Treaties of 1969 focus on the sources of international law [4]. They are considered

1. Introduction The formation of an international organization is based on common principles that are adopted voluntarily by all party cofounders. In elaborating the Statute or Rules of the existence and work of the organization the norms of the international law as well as the rules of domestic law of the founding countries are observed. In drawing up the Act for establishing the international organization there are discussed and formulated the goals and objectives of the organization as well as the forms and methods of its existence and cooperation between members. Thus, at the highest level it is highlighted the “unity of the international and domestic legitimacy”. [1] This is, on the one hand, because of the growing influence of international law on the legislation of individual countries, especially in the period of a general globalization and on the other hand, because of the pursuit of individual sovereign states to unify their legislation with accepted international norms, among which a primary place is taken by human rights. In this respect, the example of the European Union in recent years, especially regarding


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as an official foreign legal form of the existence of international legal norms, customs, treatiess and rulemaking decision of international organizations. Treaties and customs are adopted as generally recognized sources of international law. They create norms that are established in society. And as auxiliaries judgments and doctrines of qualified professionals may be applied, although this is disputed, but their legal force is determined by the founding act of the organization. In the EU the implementation of the resolutions of international organizations is adopted.

realize the need to respect the norm because it works for the benefit of the public, whose part they are from. Here the combined efforts of many (mostly non-governmental) organizations, the media, educational institutions and politicians to achieve the common good, as cliché as it sounds, should enter into action. As “special subjects of international law“ the international organizations are “carriers of certain interests and are called upon to defend them.“ [7] Even if there appears to be a controversy among members of the organization or disagreement on specific issues, all together are obliged to work for the implementation of common tasks according to the Statute of the organization. The strength and effectiveness of the organization is in the mutual agreement among the members. Proof of this is the Declaration on the Principles of International Law of the 25th session of the UN General Assembly in 1970. On the other hand, the Vienna Convention on the Law of Treaties of 1969 could not come into force for a long time because it was originally adopted by only half the countries. The attitude towards the international treaties is not equal in different states. In France, for example, international treaties have a priority over the laws of the country. The basic law of Germany accepts norms of international law to be part of the federal law. The constitution of the Netherlands is often changed to align the state law with the international one. [8] In this regard, it should be shown appreciation to the growing role of the public in decision-making at national and supranational level. An example of this is the implementation of direct democracy in Switzerland and Liechtenstein with the known frequent referenda at local and state level. A confirmation of the growing role of voters in making important government decisions are the carried out in France and the Netherlands in 2005 referenda on the Treaty Establishing a Constitution for the

2. Main tasks of the international governing The international governing is faced with the following tasks: - Ensuring safety for all citizens; - preventing the consequences of interdependence that allows placing the interests of one party over the interests of another; - preventing systemic crises globally, including climate change and financial crises; - ensuring universal respect of the rights of peoples and individuals. No country alone can cope with the resolution of all these complex tasks. For this reason, there is a growing number of international organizations and associations, and at the same time their meaning is growing as well. This is probably explained by the fact that there is a constant “increase of global problems whose solution is only possible with the combined efforts of the states.“ [6] The implementation of the main tasks is a continuous activity and goes through radical changes in the minds of the majority. It is not enough to adopt one norm of the statutes of any international organization as binding. There is a need of continuous work for the clarification of its nature, its importance for the society and for the individual. It must achieve that level at which every member of society should

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EU, whose negative result affected the acceptance of a common basic union law. Whether the referendum will establish itself as an instrument of accession to international organizations is too early to say. In all cases, however, countries have the legal basis of the right of international treaties, legally formed in the Vienna Convention on the Law of Treaties of 1969. [9] For the Swiss Confederation the conclusion of international treaties is the responsibility of the Bundesrat and increasingly leads to the exercise of democratic rights of the Swiss. The Swiss constitutional and legal order regarding the conclusion of international treaties protects the democratic rights of participation of the parliament and the people. The direct democracy at the conclusion of international treaties in any other country is not as well developed as in the Confederacy.

“approves the international legal treaties; exception are treaties for whose conclusion based on a law or international treaty the Bundesrat is competent.“ [11] The Bundesrat “prepares an annual report to the Federal Assembly for all executed by it ... state treaties.” [12] The most important means of securing foreign policy inside the domestic one remains the direct participation of the people. With the reform of citizens' rights the scope of application of the optional referendum regarding international treaties has significantly been expanded. According to Art. 141a (adopted on a referendum on February 9, 2003, effective August 1, 2003): “1. If the decision for approving the international legal treaty is subject to a mandatory referendum, the Federal Assembly may adopt amendments to the Constitution that serve to implement the treaty in the decision for approval. 2. If a decision for approving the international legal treaty is subject to an optional referendum, the Federal Assembly may adopt legislative changes that serve to implement the treaty in the decision for approval.“ [13] The reform aims to make a significant parallelism with the legal referendum and subject all international treaties containing important legally defining provisions to a facultative referendum. The same is true for treaties that require the issuance of federal laws. Article 141, para. 1, letter d), number 1 of the Swiss Federal Constitution states that international treaties which are not limited by time and are permanent, are subject to a facultative referendum. Most of the treaties concluded by Switzerland contain an explicit clause for interruption or the subject of the treaty makes it clear that it is concluded for a fixed period or contains a possibility for interruption. The largest number unlimited by terms and permanent agreements are border treaties signed by the Confederation with its neighboring countries. They are permanent

3. Bilateral relations of Switzerland with other states The bilateral relations of Switzerland with other countries are governed by international law. The growing intensity of these relationships leads to an increase in international legal norms that impact on the attitude of the Swiss people. The expectations of citizens in the democratic legitimacy of international law also increased. These processes are reflected in the reform of the Federal Constitution of 1999, as “the right of participation of Parliament in the conclusion of international treaties is institutionalized and the political rights in the sphere of state treaties are adapted to these in the field of national legislation.“ [10] The Federal Constitution of 1999 strengthened the foreign policy position of the Parliament. Article 166, para. 1 secured the foreign policy competences of the Federal Assembly exclusively on the constitutional level. According to para. 2 of the same article the Swiss parliament

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because the parties to the treaty proceed from the indisputability of the agreed limits. As permanent are discussed both the UN Covenant on Economic, Social and Cultural Rights and on Civil and Political Rights, approved by the Federal Assembly on December 13, 1991, which are subject to the facultative referendum with an unlimited term and permanent treaties set in the previous constitution of the state. The permanent treaties reflect the desire of the parties under them to commit themselves for an indefinite period of time with a state treaty. However, of course, the parties may agree to terminate a treaty or, within a treaty change, to add a clause for its termination. The unilateral termination of a treaty is possible only in exceptional cases, when “one of the parties thereto does not comply with essential contractual obligations or when significant circumstances, which provided the basis for the conclusion of the ttreaty, have an unpredictable twist. Without one of these reasons the unilateral termination of a treaty would constitute a breach of a treaty.“ [14]

to NO by passing through multiple reflections on the awareness of voters about the importance of state participation in the relevant organization, about the positives and negatives for the country from the longterm participation in the work of the organization, about the retention or loss of autonomy in decision-making and many others. It is known that voters often decide how to vote based on moral motives or according to their party affiliation rather than on the basis of good knowledge of the matter. In this sense, a referendum would also be “vitiated“. On the other hand, however, in modern society it is becoming increasingly unacceptable to talk about the poor awareness of voters despite the frequently criticized role of the media. It is not right to impose a party bias on voters either, or a temporary adjustment to display a positive or negative attitude towards the current governing of the state, especially when it comes to the accession of the country to an international organization. Voters should be given an opportunity to freely express their will, even when - as it is shown by some repeatedly conducted referenda in Switzerland on the same issue the result of the referendum is negative. Thus, for example, Swiss voters decided their country to join the world organization of the UN in 2002 after a negative referendum in 1986. This indicates that the direct democracy is an expression of the people’s will and the people's will must be decisive in the state. Through direct democracy citizens take responsibility for the future development of the state and it is not only their right but it is also a duty. However, no matter how different the notion of democracy is in different countries around the world, there is the possibility to teach ourselves democracy by increasing the level of political literacy.

4. Conclusion According to Rico Hoffmann: “The revised general concept of the Swiss foreign policy, modern understanding of neutrality and independence, as well as more open stance on international affairs in 1990s resulted in the Confederacy - despite some restraint participation in the European integration being actively engaged in various policy areas in international organizations today and represented in the most important institutions of international politics.“ [15] Naturally one could rightly pose the following question: Is the referendum always the best way to implement the accession of a country to an international organization? The answers range from YES

[1] [2]

References Ʌɭɤɚɲɭɤ ɂ ɂ Ɇɟɠɞɭɧɚɪɨɞɧɨɟ ɩɪɚɜɨ Ɉɛɳɚɹ ɱɚɫɬɶ Ɇɨɫɤɜɚ ȼɨɥɬɟɪɫ Ʉɥɭɜɟɪ ɫ ɉɚɤɬɚɦɫɢɫɥ

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[3] [4] [5] [6] [7] [8] [9]

[10] [11]

[12]

[13]

[14] [15]

ɉɚɤɬɚɦ The issue has been scrutinized later - Ʌɭɤɚɲɭɤɫ-31. ɉɨɅɭɤɚɲɭɤɫ-13. Ʌɭɤɚɲɭɤɫ Ʌɭɤɚɲɭɤɐɢɬɫɴɱɫ ɉɚɤɬɚɦɫɢɫɥ ȼɂȿɇɋɄȺɄɈɇȼȿɇɐɂəɡɚɩɪɚɜɨɬɨɧɚɞɨɝɨɜɨɪɢɬɟɊɚɬɢɮɢɰɢɪɚɧɚɫɍɤɚɡʋ ɧɚ Ⱦɴɪɠɚɜɧɢɹ ɫɴɜɟɬ ɨɬ ɝ - Ⱦȼ ɛɪ ɨɬ ɝ ɂɡɞɚɞɟɧɚ ɨɬ Ɇɢɧɢɫɬɟɪɫɬɜɨ ɧɚ ɜɴɧɲɧɢɬɟ ɪɚɛɨɬɢ ɨɛɧ Ⱦȼ ɛɪ ɨɬ ɝ ɜ ɫɢɥɚ ɡɚ Ȼɴɥɝɚɪɢɹɨɬɝ (VIENNA CONVENTION on the Law of Treaties, ratified E\'HFUHHʋRIWKH&RXQFLORI6WDWHRQ- SG. 14 of 1987 issued by the Ministry of Foreign Affairs, Prom. SG. 87 of 10.11.1987, in force for Bulgaria since 21.05.1987) http://www.parlament.ch/D/Suche/Seiten/geschaefte.aspx?gesch_id=20093256, last retrieved 01.08.2014. Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18. April 1999, in Kraft seit dem 1. Januar 2000. http://www.admin.ch/opc/de/classifiedcompilation/19995395/index.html am 29.12.2013. Art. 48a Abs. 2 des Regierungs- und Verwaltungsorganisationsgesetzes; SR 172.010, http://www.admin.ch/opc/de/classified-compilation/19970118/index.html, last retrieved 03.10.2014. Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18. April 1999, in Kraft seit dem 1. Januar 2000. http://www.admin.ch/opc/de/classifiedcompilation/19995395/index.html am 29.12.2013. http://www.parlament.ch/D/Suche/Seiten/geschaefte.aspx?gesch_id=20093256, last retrieved 01.08.2014. Rico Hofmann, Die Schweiz und Internationale Organisationen – Unterschiede in Repräsentation und Engagement, Masterarbeit, 2004.

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ISSUES ON THE ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW TO THE USE OF DRONES IN ARMED CONFLICTS 6DELQ*8‫܉‬$1 ³1LFRODH%ăOFHVFX´/DQG)RUFHV$FDGHP\6LELX5RPDQLD VDELQBJXWDQ#\DKRRFRP Abstract: Drones are new means and methods of warfare which, apparently, are similar to combat aircrafts. A big difference between the two categories is the human personnel involved. Compared with airplanes, carrying a human crew on board - this one carrying out combat operations from inside the aircraft - drones do not have inside human beings, being coordinated from the ground (or sea) - the military actions carrying out from the place where the operators are. So the question arises: what kind of rules of international humanitarian law are applicable to the use of drones in armed conflicts? Starting from the rule that legal rules apply to legal relationships between people (but not directly to objects or animals), I analyze to what extent these means and methods of warfare are subject to the rules of armed conflict on land, sea or air.

.H\ZRUGV ODQGZDUIDUHDLUZDUIDUHGURQHVLQWHUQDWLRQDOKXPDQLWDULDQODZ ,QWURGXFWLRQ Drones are remote controlled aerial equipments used in both civilian and military fields. They are also known under the names: Unmanned Aerial Vehicle (UAV) or Unmanned Combat Aerial Vehicle (UCAV). However, they do not act on their own, but are coordinated remotely from human operators. That's why, in the UK, they are called Remotely Piloted Aircraft. [1] International humanitarian law does not provide information and technical methods to use weapons, but only the legal limits of their use to minimize the destructive effects of the war. International humanitarian law provides such data only for prohibited weapons and ammunitions. The fact that drones are not explicitly mentioned by international humanitarian law does not mean that they are not regulated but, on the contrary, they are legal, as they only attack legal targets by legal means - and in terms of the use of the drones, this is practically possible. They must first comply with the

provisions of Article 36 about New Weapons in the 1977 Additional Protocol I. The failure of the drones to honour a number of protection rules (to take prisoners of war, to provide care to wounded and sick, etc.) is not the subject of this study. The question that is being discussed in this paper is what set of rules applies to the drones? A tank is subject to the rules of land warfare (acting on the ground), a ship or submarine of war is subject to the rules of the naval warfare (acting on water), a combat aircraft is subject to the rules of air warfare (acting in the air). 7KHOHJDOQDWXUHRIWKHFRPEDWGURQHV From the way the rules of international humanitarian law are regulated, three fundamental rules can be observed: A. Applying rules of conduct depends on where the fighter operates; B. Application of the protection rules is related to the place where the protected persons are located;


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'URQHV - PHDQV RI ODQG RU DHULDO ZDUIDUH" The rules of international humanitarian law do not apply uniformly, but depending on the types of operations and forces involved: land, sea and air. In order to determine which rules apply to new combat means and methods, it is first necessary to establish the category to which they belong. The rules of land warfare apply to forces acting on the ground (irrespective of the type of means and methods of combat used), the rules of the maritime warfare apply to forces operating at sea and the rules of the air warfare apply to forces acting in the air. And these rules refer to the actual presence of the combatant in the battlefield. Similar to the use of drones is the use of missiles, which can also be routed from the ground, sea or air. In international humanitarian law, missiles are not considered as specific means and methods of air warfare, although they fly through the air to the target. They shall be subject to the rules specific to where they are leaving or where they strike. [5] Moreover, air attacks on land targets are governed by the rules of the land warfare, and the actions of airplanes above the sea or aircraft attacks on the naval forces are governed by the rules of the naval warfare. [6] In the United Kingdom, unmanned airplanes are subject to the same domestic and international legal rules as apply to airplanes with human crew. [7] Moreover, the use of the drones is given to the competence of the air forces. The same situation is found in the US Air Force, which uses drones and prepares staff („pilots”) for their handling. [8] Two fundamental principles of law helps us identify the correct legal status of using drones: legality and legal responsibility. It follows from both principles that no one is above the law, and every individual (physical or legal - including states, authorities, and international organizations) is responsible for his own deeds or for acts committed by persons or goods under his

C. When the first two rules interfere, the second has priority - (e.g. air or sea attack to the ground - Article 49/3, Article 57/4 Additional Protocol I 1977). From the perspective we are speaking of, we do not deny the legality of using military drones in armed conflicts. This problem is no more or less questionable than the use of other weapon systems considered legal (artillery, tanks, missiles, ships and military submarines, military aircraft). The only aspect that makes them special is novelty. The same happened in 1899 when states agreed „to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of similar nature” [2] (provision reiterated by the Second Convention of The Hague of 1907). But today, there is no problem anymore, bombing of any kind being an indispensable method in armed conflicts. It is only now that they are done through the drones. Similarly, the work of a sniper can be made easier by a drones. This debate would no longer matter when we analyse the legality of launching a nuclear bomb from a military plane or a military drones. The basis for the lawfulness of the use of a weapon or weapon system is the ability to respect the fundamental principles of international humanitarian law - distinction, proportionality, discrimination in attack, limitation, and humanity - and drones fall within this context. Problems arise from the human factor that uses drones - and this may be fairness, error or bad faith. The manual of international law applicable to air warfare and missiles considers drones as planes – „any vehicle whether manned or unmanned”. [3] Taking into account the fact that in the air warfare the execution of an attack with a combat aircraft is considered as a means of combat, also the use of drones must be considered, in accordance with international humanitarian law, as a means of combat. [4]

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responsibility. These principles are wellestablished in international humanitarian law and criminal international law - from obligations and accountability of states to individual obligations and accountability. In this context, the use of drones must first be subject to these principles, and the responsibility always lies with the persons authorized to use them. In the international armed conflict, only combatants have the right to commit acts of hostility against the enemy. The use of military drones is an act of hostility, and this use must be subject to the rules of the combatant's status. Thus, all persons who coordinate drones attacks must be combatants within the meaning of Articles 1-3 of the Regulations Annex to the Fourth Hague Convention of 1907 and Articles 43 and 44 of the Additional Protocol I of 1977. Other people using drones in military operations are illegal combatants - for example, CIA agents. [9] In internal armed conflicts, neither the status of combatant nor the status of prisoner of war is recognized. In internal armed conflicts, it is forbidden to attack civilians who are not directly participate in hostilities, but do not restrict their participation in hostilities. These issues remain under the domestic law of each state. [10] A drone in itself cannot take responsibility for its actions, no matter what level of autonomy it has. Also, the combatant can only be considered a human being, and technology can only be considered as means and methods of warfare. If the pilots and crews of the military airplanes in action are subject to the rules of air warfare, being in the air - with the exception of land attacks (the rules of the land warfare) and attacks at sea (the rules of the naval warfare), military drone in action does not carry human crew. Operators must be subject to the rules of law of the place where they are located - on the land, at sea or in the air. It can therefore easily be said that military drones are not means and methods of the air warfare,

which is also the case for missiles. As a matter of fact, the place where the drone operators are becomes a theatre of war and all the goods (mobile and immovable) used by them for combat purposes become military objectives. All of these must be subject to the roles of the land warfare, even if the drones fly. &RQFOXVLRQV Beyond the question of the legality of using of the new weapons, as is the case with the drones, there is the issue of the set of rules applicable to these weapons. As is well known, each type of warfare - land, sea and air - has a special set of applicable rules, in addition to the common body of rules of international humanitarian law. The present shows, however, that there can be no pure land or pure maritime or pure air warfare, but modern wars are mixed, using all kinds of forces, combined actions and different types of battlefields. More and more means and methods of warfare acquire specific features of both air and sea and land conflicts. There are weapons that can leave the ground, fly through the air and hit targets on the sea; or weapons that leave the sea or under the sea, fly through the air and hit ground targets - especially missiles and, more recently, drones. Moreover, even if some weapons fly and attack from the air, they are coordinated from the ground or at the sea by humans. In this context, the strict application of international humanitarian law rules is getting harder and, indeed, the need for reformulation is felt. That is why in the modern war there is no justification for the existence of separate rules for each type of battlefields and for each type of armed forces (land, naval and air), these rules having to merge into a unitary set of regulations. Thus, the evercontroversy will not arise: what rules do we apply to a military operation or to the use of certain means and methods of warfare?; Are they regulated or not?; Are they forbidden or not?; Is it an armed conflict on land, sea or air?; Is the air warfare regulated or not?,

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and so on… Considering the principle of legality, the method of legal analogy and the principle of legal responsibility, we can only apply the rules applicable to the direct user of these means and methods of warfare for both missiles and drones. If the operator is on the land, even if the drones fly and attack to the air, the rules to be observed must be primarily those of the land warfare. Why do we need special rules for maritime warfare (as enshrined in the 1994 San Remo Manual on International Law applicable to Conflict at Sea) or special rules for air

warfare and for the use of missiles (as enshrined in The HPCR Manual on International Law Applicable to Air and Missile Warfare, 2009). We appreciate that this differentiated regulation, specific to the 19th and 20th centuries, is no longer up to date. It is imperative that international law be reformed in its entirety, in particular by eliminating the separation between land, sea and air warfare, but also between the international armed conflict and the internal armed conflict.

5HIHUHQFHV [1] Titus Hattan, Lethal Autonomous Robots: Are They Legal under International Human Rights and Humanitarian Law?, NEBRASKA LAW REVIEW, vol.93, pp. 1035-1057, 2014, p.1035 [2] Declaration (IV,1), to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature. The Hague, 29 July 1899 [3] Section A: 1) d) of HPCR Manual on International Law Applicable to Air and Missile Warfare, 2009, p.1 [4] Petra Ochmannová , Unmanned Aerial Vehicles and Law of Armed Conflict Implications, Czech Yearbook of Public & Private International Law (Vol.2), pp. 143-157, 2011, p.148 [5] Frauke Lachenmann, Rüdiger Wolfrum, The Law of Armed Conflict and the Use of Force. The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2016, p.745 [6] Marco Sassoli, Antoine A. Bouvier, Anne Quintin, How Does Law Protect in War?, ICRC, Third Edition, 2011, Volume I, Chapter 11, p.2 [7] Louisa Brooke-Holland, Overview of military drones used by the UK armed forces, The House of Commons Library, Briefing Paper Number 06493, pp. 1-53, 8 October 2015, p.33 [8] Oren Gross, The New Way of War: Is There a Duty to Use Drones?, FLORIDA LAW REVIEW, Vol. 67, pp. 1-72, 2015, p.8 [9] Melina Sterio, The United States’ Use of Drones in the War on Terror, Case Western Reserve Journal of International Law, Vol. 45, pp.197-214, 2012, pp.212-213 [10] Michael N. Schmitt, Unmanned Combat Aircraft Systems and International Umanitarian Law: Simplifying the Oft Benighted Debate, Boston University International Law Journal, Vol. 30, pp.595-619, 2012, p.618

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THE FREE MOVEMENT OF SERVICES AND THE RIGHT TO NONDISCRIMINATION Raya ILIEVA “Neofit Rilski” South-Western University Blagoevgrad, Bulgaria [email protected] Abstract: The present article will explore the free movement of services, which is one of the four fundamental freedoms of the citizens of the European Union. The reader's attention will be drawn to the violation of the right to non-discrimination in view of the unfavourable treatment of Bulgarian citizens in comparison with citizens of the European Union regarding the prices of package holidays on the Bulgarian Black Sea coast offered by Bulgarian travel agencies. Keywords: the free movement of services, the right to non-discrimination Bulgarian Black Sea coast offered by Bulgarian travel agencies. The main goal of the author is to present arguments for the unvafourable treatment of Bulgarian citizens in comparison to European Union citizens when using the same services at the same time and place with the sole difference being the price of the package holiday and the citizenship of the persons using it.

1. Introduction One of the main goals of the European Union as envisaged in Article 25, para 2 of the Treaty on the Functioning of the European Union [1] (TFEU) is the creation of a common or internal market, which is to ensure the free movement of goods, people, services and capital. The same provision defines the internal market as an area without internal borders, in which free movement is guaranteed. On the one hand, the service sector is of vital importance to the economy of the European Union because it generates more than half of the gross domestic product, on the other, more than half of the economically active population is employed in it. The present article will be devoted to the free movement of services, which is one of the four fundamental freedoms of the citizens of the European Union. The reader's attention will be drawn to the violation of the right to non-discrimination in view of the unfavourable treatment of Bulgarian citizens in comparison with citizens of the European Union regarding the prices of package holidays on the

2. The Free Movement of Services According to the provision of Article 4, para 1 of the Tourism Law [2] , the persons providing tourism services at tourist sites are obliged to announce the same prices for all tourists and differential treatment of tourists or putting certain tourists into a more unfavourable position is inadmissible pursuant to Article 4, para 1 of the Law on Protection against Discrimination [3] . The provision of Article 4, para 1 of the Law on Protection against Discrimination regulates a comprehensive, imperative and unconditional prohibition of all forms of discrimination. The prohibition of discrimination concerns the exercising and the protection of all freedoms and rights


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stipulated in the Constitution and the laws of the Republic of Bulgaria, i. e., it is applicable to all spheres of public life (Article 3, para 1 and Article 6 of the Law on Protection against Discrimination). The prohibition applies to all legal persons (Bulgarian and foreign citizens as well as stateless persons on Bulgarian territory, juridical persons and civil associations) and the protection from all forms of discrimination is the same regardless of the sphere it is applied in – employment, education, provision of services, health care, etc [4]. The text of Article 4, para 1 also lists the discrimination grounds: sex, race, nationality, ethnic origin, citizenship, origin, religion or belief, education, opinions, political belonging, personal or public status, disability, age, sexual orientation, marital status, property status and others. According to para 2 of the same article states that „direct discrimination shall be any less favourable treatment of a person on the grounds referred to in paragraph 1 than another person is, has been or would be treated under comparable circumstances“. The list includes all grounds stipulated in Article 6, para 2 of the Constitution, while also adding several as expressly envisaged in the directives of the EU [5] . The prohibition of discrimination is also contained in the regulation of Article 18 of TFEU, which stipulates that any form of discrimination on the grounds of citizenship shall be prohibited. This freedom is guaranteed and is incongruous with the discrimination between the member states and their citizens. Article 50 of TFEU envisages 4 possible ways to provide services: 1. The person providing the service crosses the state boundary (e. g., legal services); 2. The person receiving the service leaves his country of residence (e. g., tourism services); 3. Both parties remain in their respective countries - „movement“ of the services

themselves (e. g., various types of mobile communication services); 4. Both parties leave their countries and provide/receive the service in a third country. In addition to the above the Court has stated in its judgement in Joined cases 286/82 and 26/83, Luisi and Carbone v Ministero del Tesoro that the freedom to provide services also means freedom to receive services (e. g. tourism services) [6]. In particular, the „services“ include: activities of an industrial character; activities of a commercial character; activities of craftsmen; activities of the professions. Comprehensive prohibition of the restrictions on the free provision of services and a requirement for nondiscrimination – pursuant to Article 50, para 3 of TFEU the person providing the services may perform his activities temporarily in the country where the service is provided under the same conditions the latter requires from its citizens. The guiding principle applied hereto concerns the equal treatment of local and foreign citizens. This regulation is further developed in the practice of the Court of Justice of the European Communities. In its judgement in the case Van Binsbergen (33/74) the court rules that „the restrictions to be abolished pursuant to Articles 49 and 50 of TFEU include all requirements imposed on the person providing the service by reason in particular of his nationality or of the fact that he does not habitually reside in the State where the service is provided, which do not apply to persons established within the national territory or which may prevent or otherwise obstruct the activities of the person providing the service“. In the same judgement the Court points out the direct applicability of the treaty regulations, which gives concerned parties the right to invoke them before national courts in order to oppose all forms of discrimination against the person providing

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the service on the grounds of citizenship or country of residence in a member state other than the member state where the service is provided. In its practice the Court of the European Union elaborates that the prohibition pursuant to Articles 49 and 50 of TFEU includes not only the direct but also the indirect (actual) discrimination – e. g., when the legal framework seems to apply equally to local and foreign services but in practice is more complicated with regard to the services imported from another member state. In a number of judgements the Court takes into consideration criteria related to the prohibiton of discrimination in the free movement of goods due to the similarity to the regulations of Article 30 of TFEU. Pursuant to Article 6 of the Constitution of the Republic of Bulgaria no restriction of rights or privileges are admissible, which are based on the grounds of race, nationality, ethnic origin, sex, origin, religion, education, opinion, political affiliation, personal or social status or property status. This regulation is further developed in Article 3, para 4 of the Law on Protection against Discrimination, which states that refusal to provide tourism services at tourist sites as well as providing tourism services of lower quality or at unfavourable conditions shall not be permissible pursuant to the criteria of Article 4, para 1 of the Law on Protection against Discrimination. With this regulation the state has introduced the right to non-discrimination for persons as a fundamental and protected right [7]. The protection of these rights is ensured by the means envisaged by the law. When they are infringed, the harmed parties have the right to protection. Therefore, every person has the right to equal treatment. Despite the whole range of laws and measures for protection from discrimination our state still tolerates unequal or differential treatment of

Bulgarian citizens in comparison to citizens of the EU. It is not a secret that booking a holiday through a foreign travel agency costs considerably less than booking through a Bulgarian one. In recent years many of our compatriots have been booking their holidays through foreign tour operators but now such bookings are often refused on the grounds that Bulgarian citizens should book their holidays through Bulgarian travel agents. The above statement can be proved by the following offers for the period 11-17 August 2014: Tour operator Hotel

Price in EUR per person Sunway Travel CHAYKA BEACH 784.00 RESORT HOTEL Group Sunny Beach Irish tour operator ASTRAL CHAYKA BEACH 1046.69 Holidays BG RESORT HOTEL Sunny Beach Bulgarian tour operator Opodo Germany Mirage Hotel 4 stars 513.00 German tour operator Balkantourist Mirage Hotel 4 stars 562.40

The package price includes 6 days' accomodation, all inclusive, swimming pool use including deck chair and sunshade, tourist tax and insurance. One of many cases of discrimination in the Republic of Bulgaria happened in January 2013 when a female Bulgarian citizen tried to book a summer holiday on the Bulgarian Black Sea coast through a Romanian tour operator because offers of the latter cost less than those of the local travel agencies. Unfortunately the woman received a reply from a Bulgarian tourist company, a partner of the Romanian one, which stated that her booking could not be accepted since she did not have Romanian citizenship and the offer in question was only valid on the Romanian market. This is discrimination on the grounds of

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their services in other member states and the consumers in the EU will receive the same conditions when purchasing tourist packages in any member state. The de lege ferenda proposal foresees that the Commission for Protection against Discrimination should initiate enquiries, inter-alia, in the tourism industry and, if necessary, make the relevant suggestions and duly note their importance for the protection of Bulgarian consumers and the influence of the differences in the legal frameworks of the member states on the correct functioning of the common market.

citizenship. The woman submitted a case before the Commission for Protection against Discrimination [8]. 3. Conclusion It is a fact that Bulgarians pay more for holidays in Bulgaria than the average British, Romanian or Russian citizen. I think that the establishment of common regulations for tourist packages will contribute to the abolishment of such obstacles and therefore to the creation of a common market for services as stipulated by European and national law. In this way the tour operators based in one member state will have the opportunity to offer

References * Lecturer in scientific major “Civil and Family Law” at Faculty of Law and history of South-Western University “Neofit Rilski” – Blagoevgrad, Bulgaria. [1] Promulgated OJ C 115, 9.05.2008 [2] Promulgated State Gazette No. 30/26.03.2013, supplemented SG No. 109/20.12.2013 [3] Promulgated State Gazette No. 86/30.09.2003 [4] Gencheva, Z. http://justicedevelopment.org [5] Directive 200ȿC, Directive ȿɋ Directive ȿɋ Directive ȿɋDirective ȿɋand Directive ȿɋ [6] http://lex.bg/bulletin/?isu=171&tp=sf&id=93; In another judgement the Court has stated that receiving professional education is equal to receiving services (wherein professional education includes tertiary education and 1 year of professional training). [7] Ivanov, A., Stanin, M. Protectability of the right to non-discrimination, Norma, 2013, No. 10, 22-26 [8] Case 136/2013, criterium citizenship, defendant Astral Holidays

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ON THE ISSUE ABOUT THE MOMENT OF INCURRENCE OF RIGHT OF CASSATION APPEAL ON CIVIL CASES IN REPUBLIC OF BULGARIA Atanas IVANOV “Neofit Rilski” South-Western University, Blagoevgrad, Bulgaria [email protected] Abstract: The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding – the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code. Keywords: term, cassation, appeal, grounds, right, permissibility, civil litigation on the grounds for permitting the cassation appeal (art. 280 of Civil-Procedure Code) does not combine with the common grounds for soundness of the cassation appeal (art. 281 of Civil-Procedure Code) which condition the unlawfulness of the appellate judgment.

1. Introduction The order established in the new CivilProcedure Code [3] for permitting cassation appeal in the presence of the foreseen in art. 280 of Civil-Procedure Code grounds for permitting cassation appeal, is disputable in the Bulgarian procedural law. According to the provisions of art. 280, par. 1 of CivilProcedure Code, liable to cassation appeal are the resolutions of the appellate courts where the court has ruled on material legal or procedural legal issue which is: 1. decided in contradiction to the practice of Supreme Court of Cassation; 2. contradictory settled by courts; 3. of significance for the right application of law as well as for the development of the law. The common thing between stated criteria for permissibility of cassation appeal is ruling of the appellate court on legal issue of material and procedural law which issue is a precondition for the permissibility of the cassation appeal, discussed in the appealed appellate resolution. The ruling

2. Speciality of the Cassion Appeal Characteristic peculiarity for the soestablished cassation appeal as a faculty one is that necessary is execution of supplementary requirements with review of performing selection of appeals which the Supreme Court of Cassation will allow to be reviewed in essence. Those conditions are supplementary to the common conditions for permissibility of the petition – the submission of petition within term, appellate of the judgment, presence of legal interest and legitimation of the party, observing the mandatory requisites of the cassation appeal and enclosures thereof. As oppose to the cassation grounds expressing the necessity


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of defense of the party against unlawful deeds through practicing cassation control which in the essence is the judicial activity of Supreme Court of Cassation, the “criteria of art. 280, par. 1 of Civil Procedure Code state a non-judicial function characteristic to only this court to unify the court practice in execution of its constitutional obligation to ensure accurate and unified interpretation and application of the law by the courts” [2]. This is related to the characteristics of the cassation instance as the court of the right not the facts of the dispute and with the stated function to unify the justice on the principal issues of material and procedural law as in case of inaccurate or contradictory practice imposed is issue of interpretative judgment by the Supreme Court of Cassation (art. 124, par. 1 Judiciary Act). In the current system of defense before the third instance – the cassation, not sufficient is only submission of cassation appeal, needed is also an estimate by the Supreme Court of Cassation regarding the permissibility of the cassation appeal – whether to allow the cassation instance to inspect the deed of the appellate court in the presence of the grounds, established in art. 280, par. 1 of Civil-Procedure Code. If the Supreme Court of Cassation establishes that the ruling of the appellate court on the legal issue – material or procedural, preconditions the statutory solving of the specific dispute for analogue cases due to the principal character of the legal issue, significant for the law application, then the presence of positive establishment preconditions an estimate whether the solving of this legal matter in the appellate court is in contradiction with the criteria, stated in art. 280, par. 1 of CivilProcedure Code. This estimate of the Supreme Court of Cassation for permissibility of cassation appeal is not liable to control due to lack of procedural possibility for this. The legislator motivates the restriction of the possibility for cassation appeal with the fact that it

may not be placed as purpose of the reform of the civil litigation for in any case it would cause a conflict with the function of the Supreme Court of Cassation the court to secure equal application of the law and development of right as the new regulations of cassation appeal shall be subordinate to the requirement to ensure better possibility for court to secure the equal application of law and development of right due to which the restriction of the cassation appeal opportunity is a way to meet such requirement, but not objective. Ensuring the uniform application of law and development of right as a function of Supreme Court of Cassation which function is non-judicial, may not and shall not be achieved through restricting the judicial function expressing in performing control of lawfulness of the appellate deeds. First of all present are other ways and means to achieve this function – personnel and material assurance for Supreme Court of Cassation, more missing is primate of the non-judicial function of Supreme Court of Cassation expressed in uniform application of law and development of right, over the judicial function of the latter, being performing control over the lawfulness of the appellate deeds. These functions are interrelated, missing is collision between then for they are completing each other – the judicial function preconditions the nonjudicial function. The cassation instance shall not be motivated by the public interest only, namely implementing the rule of uniform application of law and development of right, and shall be motivated by the interest of those suing each other, to whom granted is another legal way to remedy the mistake in the appellate court deeds, remedy of lack of justice in the deeds for the first instance and the appellate court may have reached to unlawfulness preconditioned by the imperfection of justice, performed by one person and initiated by another one. No matter how well-prepared for their activity

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is the judges, no matter how conscientiously and carefully they relate to their obligations, in any case they cannot be fully secured from omissions and mistakes which preconditions the need of third instance. Not only the inaccurate understanding of law or occasional oversight when clarifying factual circumstances on the case but also the subjective attitude, sympathies and antipathies of the judge, as well as the impact of the views and local prejudice in the region may become a reason for ruling wrongly. On the other hand, reason for illegal and unjustified deeds may be the omission in the professional training and insufficient practical experience of the judge; the carelessness and negligence in the work which oversight is sometimes precondition by the overloading of the courts with a large number of cases.

Court of Cassation the right to estimate the existence of cassation appeal when present are common, abstract and unclear grounds (criteria) by the legislator on the grounds of which to make the estimate. Reporting the established contents of the cassation function by the Constitution Court has adopted in resolution No 9/24.10.2002 as per constitutional case No 15/2002 and resolution No 6/08.05.2003 as per constitutional case No 23/2002 as well as resolution No 4/16.06.2009 as per constitutional case No 4/2009 that the contents of the cassation function is defined by the procedural act because the constitution has delegated this to the nonconstitutional legislation due to which the form of cassation appeal selected in the procedural act may not be anticonstitutional. This is why I find that the adopted form of cassation appeal of the procedural act – as facultative, assigned by estimate of the instance (Supreme Cassation Court) which shall perform cassation proceeding (art. 280 of CivilProcedure Code) that it does not comply with the constitution. This is so because it contradicts to the principle of the common respect of the rules of human as well as the formed by the European Court of Human Rights principles of rights definition, efficiency when regulating the public relations, of the balance between the public and private interests. Here, due to the public interests, neglected is the private interests – the interest of the parties in the case, furthermore the constitutional delegation is towards the procedural law to establish right of cassation appeal and to define the form of the latter according to the constitutional court and in case the procedural act has delegated to Supreme Court of Cassation the authorization to establish the existence or non-existence of right of cassation appeal for the stakeholder in exchange of the unlawful appellate deed. The submission of regular cassation appeal under the new Civil-Procedure Code does not initiate permissible cassation

3. Content of the Cassion Function The possibility for inspection of judgments by third instance aims namely to protect the parties on the case and other stakeholders from the mistakes of the judge. When the cassation court establishes mistake and in case it finds other omissions having caused the unlawful settlement of the case, the adopted deed needs certain editing with the purpose of guaranteeing the accurate review and settlement of the case. Led by only concerns that the new regulations of the cassation appeal shall be subordinate to the requirement to ensure better possibility of Supreme Court of Cessation to secure the uniform application of law and development of law due to which has accepted that through restriction of the possibility for cassation appeal this is way and not an aim to meet this requirement – the function of Supreme Court of Cassation to secure the uniform application of law and development of right. The legislator, accepting art. 280 of Civil-Procedure Code has neglected the interest of those suing each other before the public interest, assigning to Supreme

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proceeding which will incur specific legal consequences – the submission of regular cassation appeal before the Supreme Court of Cassation does not precondition right of cassation appeal. We shall distinct the procedural permissibility of the cassation appeal under art. 284 of Civil-Procedure Code, in relation to art. 285 and art. 286 of Civil-Procedure Code, of the permissibility of cassation proceeding under the provision of art. 280 of CivilProcedure Code, in relation to art. 288 of Civil-Procedure Code. Conducting the proceeding under art. 285 of CivilProcedure Code, the court inspects the regularity of the cassation appeal with review of the requirements of art. 284 of Civil-Procedure Code as in case of failure to remedy the irregularities by the cassation authority within one week of the announcement as well as in hypothesis of art. 286, par. 1, point 1 and point 2 of Civil-Procedure Code – in case of overdue of the cassation appeal and non-liability to appeal of the appellate resolution under ar.t 280, par. 2 of Civil-Procedure Code, the court rules for return of the cassation appeal. With the permissibility of the cassation appeal under art. 280, par. 1 of Civil-Procedure Code outlined are the conditions with which the Supreme Court of Cassation makes an estimate whether to accept appeal for review in essence and settled is proceeding on the realization as given is response to this matter. Here the court makes estimate whether to establish the existence of the right of cassation appeal of the cassation authority – right of third instance on inspection of appellate deed or to establish the inexistence of this right. The rights are established in the act and not in deed of court – the civil litigation defends the violated material law due to which is outside the competence of the Supreme Court of Cassation to make such estimate. On the other hand the right of the party concerned for cassation appeal shall incur of the presence of appellate judgment [4], and not to be result of specific inspection

made by the Supreme Court of Cassation itself where inspected is the presence of conditions foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation appeal incurs [5] with the ruling of the appellate judgment which right may be practiced after incurrence of the cassation appeal term. The cassation petition is submitted with the judgment is void, impermissible or inaccurate due to violation of the material act, substantial violation of the litigation rules or unjustifiable – argument from art. 281 of Civil-Procedure Code as the petition is submitted through the court having ruled the appellate judgment within one month of its handover to the parties – argument of art. 281, sentence 1 of Civil-Procedure Code. Therefore the subjective procedural right on cassation appeal is the provided and guaranteed by the court opportunity for an individual to oblige the Supreme Court of Cassation to rule on the first stage of the cassation proceeding – the proceeding on permitting the cassation appeal, estimating the statutory criteria under art. 280 of Civil-Procedure Code as result of this activity conditioned will be the obligation of the Supreme Court of Cassation as third instance on inspection of appellate deed or non-existence of this obligation. This activity of the Supreme Court of Cassation, on the other hand, is incompatible with the functions to administer justice because it is an activity of applying the law – to apply the right in the act or not, which activity is inherent to the executive power. The discretion of the Supreme Court of Cassation in accordance with the statutory criteria – general and abstract ones, for selection of cassation appeals which are permitted to the review in essence, is related to the principle of equality of citizens, established in art. 6 of the Constitution of Republic of Bulgaria. The practiced discrimination is related to the possibility of the cassation authority to practice its right of cassation appeal which practice of right may be thwarted by the

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lack of acceptance criteria set out in art. 280 of Civil-Procedure Code. This limitation of the right of cassation appeal may be on the grounds of some of the principles, established in art. 6, par. 2 of the Constitution of Republic of Bulgaria which discrimination one. The legislator is in his right to define the court instance, the deeds which in the legal system of Republic of Bulgaria are not liable to appeal as this does not contradict to the constitutional appeal of the state to ensure to everyone access to justice, including remedy of court mistake as the impermissibility to appeal before the cassation instance shall not be reviewed as violation of the right of the cassation defense, has accepted the constitutional court. The prohibition of cassation appeal, defined by the judge of cassation instance – Supreme Court of Cassation through not allowing of cassation appeal of appellate deeds, violates the right of legal defense and limits the access of the party to justice. Under its authorities the legislator is entitled to define such order for inspection of the lawfulness and reasonableness of the deeds with the purpose of remedy of a mistake which will best comply with the peculiarities of one or another kind of proceeding. In the resolution the legislator shall determine criteria for permissibility of the cassation appeal, presence of which shall be inspected by the cassation instance, there is contradiction, in the basis of which is absolutizing of the right of legal defense, equalizing the right of defense and right of appeal of judgments. This is because the estimate for the availability of the permissibility criteria are not objectively

[1]

clear for the estimate for their presence is given to the subjective view of a panel of Supreme Court of Cassation which behavior of the court will precondition the existence of the right of cassation appeal. 4. Conclusion On the other hand criteria for appeal of court deeds may not be only the fact for possible further movement of the case, after ruling of the deed, criteria shall be the presence or lack of violated by the deed rights and/or legal interests of the parties, as a last resort also of individuals taking part in the case as well as formal criteria – for example price of the claim or subject of the case. With the so-clarified contents of the notions “right of legal defense” and “guarantee for legal defense” the legislator shall define the formal criteria – subject of the case and price of claim which shall exclude from the cassation appeal the categories cases as impermissible is exclusion of the appellate deeds of the cassation appeal as per estimate of the Supreme Court of Cassation itself, which estimate is not liable to appeal as prevented is the guarantee for legal defense – the cassation appeal. If the right of legal defense was realized in court of first and appellate instance and the law with the provisions of art. 280 of Civil-Procedure Code provide an opportunity with this resolution for arbitrariness – the right of access to court of cassation instance is only formal, not actual. On the other hand, only the legislator may exclude of cassation appeal cases but not Supreme Court of Cassation as cassation instance, as the opposite is anti-constitutional.

References In the theory maintained is the other thesis that “only the right of the party concerned for cassation appeal does not incur of the presence of appellate judgment (ruled, prepared and announced with the contents and the form in accordance with the statutory provisions – art. 235, 236 of Civil-Procedure Code). The subjective procedural right of cassation appeal is result of the specific inspection, carried out by the Supreme Court of Cassation itself, regarding the presence of special conditions, foreseen in art. 280, par. 1

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of Civil-Procedure Code. The right of cassation appeal is not precondition by the inspection under art. 288 of Civil-Procedure Code. It incurs with the positive result of its conduction and has as its source (grounds, judicial fact) the ruling of Supreme Court of Cassation, ruled in this proceeding. Prior to the ruling of Supreme Court of Cassation regarding the criteria for access to cassation appeal the right of cassation appeal is still not existing – it has not incurred or its carriers. This right is not a predicate, it is sequence of the legal activity under art. 288 of Civil-Procedure Code.” See Mingova, A. “Why the judgments of Supreme Court of Cassation are not liable to appeal under art. 288 of Civil-Procedure Code” – Norm, book 5/2013, page 98-99. [2] Author’s remark. The considerations of the legislator, having conditioned the establishment of this order, according to sufficiently inconclusive are: “The possibility to restrict the access to regular third instance according to the nature of the case is reasoned with the competence of the Supreme Court of Cassation to rule interpretative resolutions on all matters as this way it will fulfill its obligation to secure the uniform application of law and development of law and on those types of cases on which it does not rule as regular third instance. The possibility to restrict the access to regular third instance according to the interest is reasoned with the fact that by ruling on cases with bigger interest, the Supreme Court of Cassation secures the uniform application of lw on all cases.” See Motives to project of Civil-Procedure Code. [3] Such as Ivanova, R., Punev, B. and Chernev, S. Comment on the new Civil-Procedure Code, Publishing house “Labor and Law”, 2008, page 436 [4] In the theory maintained is the reverse statement that “the right of the party concerned itself for cassation appeal does not incur from the presence of appellate resolution (rules, compiled and announced with the contents and form according to the statutory provisions – art. 235, 236 of Civil-Procedure Code). The subjective procedural law of cassation appeal is result of specific inspection made by the Supreme Court of Cassation itself, regarding the presence of special conditions, foreseen in art. 280, par. 1 of CivilProcedure Code. The right of cassation appeal is not preconditioned by the inspection under art. 288 of Civil-Procedure Code. It is caused by the positive result of its conduction and is sourced (grounds, judicial fact) by the ruling of the Supreme Court of Cassation, ruled in this proceeding. Prior to ruling of the Supreme Court of Cassation regarding the criteria for access to cassation appeal the right of cassation appeal still does not exist – it has not incurred for its carriers. This right is not a predicate but is consequence of the judicial activity under art. 288 of Civil-Procedure Code. See Mingova, A. Why the ruling by Supreme Court of Cassation under art. 288 of CivilProcedure Code are not liable to appeal? – Norma, book 5 /2013, page 98-99. [5] ɌɚɤɚɢɌɨɞɨɪɨɜɄÄɋɥɟɞɜɚɥɢɞɚɩɨɞɥɟɠɢɧɚɨɛɠɚɥɜɚɧɟɨɩɪɟɞɟɥɟɧɢɟɬɨɩɨɱɥ ȽɉɄ"³– Ɍɴɪɝɨɜɫɤɨɢɨɛɥɢɝɚɰɢɨɧɧɨɩɪɚɜɨɤɧɝɫ

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INTEGRATED WORK ENVIRONMENT FOR PEOPLE WITH DISABILITIES WITHIN THE CONTEXT OF THE BULGARIAN AND EUROPEAN LEGISLATION Nikoleta LAZAROVA “Neofit Rilski” South-West University, Blagoevgrad, Bulgaria [email protected] Abstract: People with disabilities are one of the socially vulnerable groups in the labor market. The main reason for this negative trend is the lack of integrated work environment that creates conditions for equal exercise of their right to work. At national level, the main piece of legislation which governs the right of an integrated work environment is the Law on Integration of People with Disabilities. The integration of the work environment is crucial for ensuring the opportunity for employment and professional realization of people with disabilities. Namely the professional realization of the labor market is one of the main mechanisms for the overall integration of this social group in various spheres of public life, which is set as a priority objective in the UN Convention on the Rights of Persons with Disabilities.

Keywords: integrated work environment; people with disabilities; employment; socially vulnerable groups. 2. Integrated work environment and its legal framework under Bulgarian and European legislation. The legal regulation governing the integrated working environment is contained mainly in The Integration of Persons with Disabilities Act (IPDA), which governs the various mechanisms for the integration of persons of this social group [1]. The provision of Art. 4, para. 1 pt. 3 of IPDA states that one way for the integration of people with disabilities is providing employment and ensuring career opportunities as well as professional realization that could be implemented precisely by integrating of the working environment. The integrated working environment as a concept finds its indirect application in the Labor Code (LC), which contains a number of special rules on work done by disabled workers. The purpose of these

1. Introduction People with disabilities are one of the socially vulnerable groups who face particular difficulties in their realiziation on the labor market. The reason for this problem is complex and results in a lack of integrated working environment, qualifications and/or professional experience, availability of social prejudices and discrimination in the exercise of labor rights of persons belonging to this group. As a result of these reasons, a large percentage of people with disabilities are permanently unemployed, which is becoming a major obstacle to their integration in various spheres of public life. Unemployment among the studied social group turned into an unfavorable trend that needs rethinking of this publicly significant problem and undertaking a series of legislative measures to resolve it.


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with Disabilities, which was adopted and ratified by Bulgaria in 2012. The aim of the Convention is to promote, protect and ensure the full and equal enjoyment of rights and fundamental freedoms by persons with disabilities. With the provision of Art. 27 of the Convention there is recognized the right to work of people with disabilities on par with others, and this includes the right of an opportunity to earn a living by freely chosen or accepted work in the labor market and in a working environment that is open, non-discriminatory and accessible to people with disabilities. The States Parties undertake to ensure and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including legislation, among which are: the prohibition of discrimination; enhanced protection of rights of persons with disabilities to just and favorable working conditions, including equal opportunities and equal pay for equal value of work; safe and healthy working conditions; enabling people with disabilities to have effective access to programs for technical and vocational guidance; creating employment opportunities and career advancement for persons with disabilities in the labor market; providing people with disabilities with reasonable accommodation in the workplace; cooperation for the acquisition of work experience in the open labor market by persons with disabilities, etc. A significant part of the regulation of the labor rights of people with disabilities in the Convention is aimed precisely to provide a satisfactory working environment by employers to help integrate this group into the labor market.

rules is to take account of the ill health of the worker or employee and to provide an opportunity to use their residual performance by performing suitable work under conditions that comply with their health condition. Special labor legal protection is realized by setting higher requirements for working conditions in respect of disabled persons as a socially vulnerable group. It is through this enhanced legal protection that there are aims to overcome the unequal treatment of this category of workers and employees who could not pursue work on equal terms with other workers or employees. The appropriate working conditions should be viewed as a whole, including all the working conditions in the exercise of a given working activity, which must necessarily conform to the amendments of the health condition of the relevant worker or employee. The scope of this concept should be included: the exercised employment function; integrated working environment; adapted working conditions at the workplace; safe and healthy working conditions. The problem that arises on the right to adequate conditions of disabled persons is rooted in the rules contained in the many regulations that are often at odds (The special protection of disabled persons, who are reassigned, is contained mainly in Chapter XV, Section III LC. In addition to the Labor Code, the legal framework concerning the suitable working conditions for disabled persons can be found in: Art. 16 para. 1, p. 3 and 4 HSWA; Chapter IV, Section III IPDA; Chapter II, Section I PADA; Ordinance on vocational rehabilitation). As a result of the lack of a coherent system, there are a number of difficulties in the interpretation and enforcement of the rules. The adoption of the Integration of Persons with Disabilities Act is a logical continuation of the basic ideas set out in the Convention on the Rights of Persons

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2 and p. 3 and para. 2 of the Labor Code (LC). In connection with the integration of the working environment, with the provisions of art. 24 IPDA for the employer or appointing authority it is introduced an obligation to adapt the workplace to the needs of a disabled person the moment they are hired or when the disability occurs after they have been hired, except where costs are unjustifiably excessive and would seriously burden the employer. The provision of Art. 24 of the Integration of Persons with Disabilities Act is applicable only when the disability of the employee falls within the scope of § 1, p. 1 of the Additional Provisions of the IPDA, according to which “disability” means any loss or distortion in the anatomical structure, physiology or in the psyche of an individual. There is no requirement that state to be established by an expert decision of the bodies of the medical expertise, which means that the presence of any damage, regardless of the degree of disability and its duration is a ground creating an obligation for the employer under Art. 24 IPDA. The need to adapt the workplace exists whenever there is total or partial inability for the disabled person to be employed under existing conditions. The inability is strictly individual for each person and depends on a number of additional factors - type and degree of disability, available capacity, medical indicators for the restoration of health, etc. As already noted, the employer's obligation will arise regardless of the extent and duration of the settlement, but these factors will be important in determining the scope of actions on behalf of the employer related to the adjustment in the workplace. It should be noted that in most cases not only the damage, but also the lack of appropriate conditions in the workplace create difficulty or inability of a person to

3. Integrated working environment and adaption to the workplace as a means of realizing the employment of people with disabilities. One of the reasons for people with disabilities to find poor realization in the labor market is the lack of integrated work environment that is tailored to their specific needs. § 1, p. 12 of the Additional provisions of the IPDA contains a legal definition of the term “integrated work environment”. According to the legal definition, what is integrated is this work environment that provides opportunities for people with disabilities and people without disabilities to work together. Based on the given definition, it is suggested that employers will need to adapt their usual working environment according to the functional capabilities of people with disabilities so that they are able to render service on par with other workers and employees. In this respect the provision of Art. 25 IPDA provides a number of measures to ensure the employment of people with disabilities in an integrated environment by introducing incentives for employers, resulting in financial assistance to adapt the working environment to the needs of the individual with a disability, equipment and job creation, tax incentives for improvements in the environment for the benefit of the worker and others. Despite the proposed legislative measures the problem with the employment of this social group continues to exist [2]. A small part of employers in the private sector take advantage of the relief provided for integrating the working environment. Employers prefer not to hire people with disabilities and for that reason they can find difficulties in terminating subsequently arisen employment relationships, as this category of workers and employees benefit from enhanced labor legal protection in case of termination pursuant to Art. 333, para. 1, p.

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excessive and would seriously burden the employer. This means that the employer has a subjective right to refuse to adapt the workplace in any case when they consider that they would suffer significant financial difficulties. Putting this legal framework is intended to settle a reasonable level of performance of the obligation under Art. 24, second sentence IPDA, but here arises a reasonable suspicion of possible abuse of rights by the employer. The assessment of the exercise of the right of refusal is made by the employer that should form it on the basis of various criteria such as cash required for customizing a job, time interval, human resources, etc. The criteria are not specifically defined, but they are placed depending on the specific needs of the individual and existing working conditions available to the employer. The right of refusal of the employer under Art. 24, second sentence IPDA may raise a number of legal disputes, particularly in the termination of employment relationships of persons with disabilities [3]. Pursuant to Art. 325, para. 1, p. 9 of the Labor Code, the employer is entitled to terminate the employment relationship of a worker or employee who cannot perform the assigned work due to illness resulting in permanent disability or medical contraindications based on the conclusion of the Labor Expert Medical Commission (LEMC). Termination in this case is inadmissible if the employer has another job that is appropriate for the health condition of the worker or employee and they are willing to take one. The question that arises is - is the employer obliged to adapt the old workplace, according to the health needs of a person if the enterprise does not have another appropriate job? Pursuant to Art. 24 IPDA, the employer will be obliged to adapt the workplace to the needs of a disabled person, unless the costs are unjustifiably excessive and would result in serious difficulty. As already

participate fully in the labor process. The participation in the labor process should be understood not only working in an existing employment relationship, but also the possibility of setting up a new one. In many cases, people with disabilities are prevented from participating in tender procedures or other forms of verification of professional qualifications relevant to start a job due to lack of specific technologies or techniques to provide them with equal opportunities in constituting labor relations. The main idea of the statutory obligation of the employer under Art. 24 IPDA is to adjust conditions in the workplace, so as not to give rise to the inability for people with disabilities to render their labor. Under § 1, p. 11 of the Additional Provisions of IPDA, “the workplace” is a place, workshop room, machine room, installation and other territorial specific location in the enterprise or outside of it in telework, where the worker or employee instructed by the employer does their job in the performance of their duties under the employment relationship. Inability will be present in cases where the person with disabilities cannot perform their job at the designated for the purpose workplace and under the present conditions. The reasons that would prevent the person may be of a different nature, such as lack of: access to the workplace; appropriate software or other technological means necessary to carry out the relevant activity; healthy or safe work conditions corresponding to the functional status of the person. Adapting the workplace if any adverse elements are observed will be achieved by repairing or customizing them according to the individual needs of the person. Despite its explicit legal regulation, the obligation of the employer to adjustment at work under Art. 24 IPDA is not unconditional. It will occur unless the cost of this adjustment is not unjustifiably

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discriminatory because it is not based on disability, but on significant financial costs necessary to adapt the workplace to the venue in person.

stated, the assessment will be done by the employer, but it will be subject to judicial review. The court will find it difficult in such cases, since there is no explicit statutory criteria on which to determine whether the adjustment is within the frameworks of what is reasonable or it will actually lead to significant and unreasonable costs for the employer. In this connection, it is recommended that the legislature designate specific factors that the employer or other authorities should comply with when conducting assessment and verification of the right of refusal. Another issue which can occur is whether the termination of the employment contract under Art. 325, para. 1, p. 9 LC will be legitimate if the employer fails to perform their duty to adapt the workplace. The norm is contained in a special law and is designed to protect labor rights of workers or employees falling within the category of persons with disabilities, but substantially it is not attributable to the termination of the employment relationship on that basis. The ability or inability to adapt the workplace is not intended as a constituent element of Art. 325, paragraph 1, pt. 9 LC and is therefore not subject to discretion. In such a case, the argument for breach of Article 24 IPDA will be unfounded. Another interesting hypothesis is that in which the employer refuses to employ a disabled person for a reason that will require adaptation in the workplace, which will both represent an unreasonably large expense for the employer. Can we assume that there is discrimination under Art. 12 of the Protection against Discrimination Act? I think the answer here should be negative in case the employer lawfully exercises the right of refusal pursuant to Art. 24, second sentence IPDA. It could not be assumed that the employer's conduct is

4. Conclusion. Providing employment opportunities for people with disabilities should be one of the national priorities, both politically and socially. The realization on the labor market of this social group through an integrated work environment is one of the main ways of overcoming social isolation and fully integrating people with disabilities into society. On the one hand, the integrated work environment will enable persons of the group to participate fully in the labor process in terms consistent with their health needs. On the other hand, the ability to work in an integrated work environment will help to significantly increase the vocational training for people with disabilities. At present the, majority of this social group acquires their professional qualifications mainly in specialized enterprises and cooperatives or have trainings in a few specialized centers for teaching children with disabilities. Unfavorable in these cases is that the choice of profession is very limited and the qualification does not often match the dynamics of the labor market. It is necessary to raise employers’ awareness on financial stimuli and incentives to ensure an integrated work environment that would allow a more permanent and qualitative employment for people with disabilities. In this connection, it is necessary to lay down clear and binding rules on the obligations of employers to adapt the working environment and to exercise greater control over their implementation.

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[1]

[2]

[3]

References Mihailov, G. , Ivanova, M. Ɋɟɝɭɥɚɬɨɪɧɚ ɨɰɟɧɤɚ ɡɚ ɪɚɜɟɧɫɬɜɨ ɜ ɡɚɤɨɧɨɬɜɨɪɱɟɫɬɜɨɬɨ – ,Q(OHFWURQLF -RXUQDO ³/DZ 3ROLWLFV $GPLQLVWUDWLRQ ɬɨɦ ɛɪ,661-4601, http://www.lpajournal.com/; Lazarova, V., ȿVWDEOLVKLQJ ZRUN H[SHULHQFH XQGHU WKH EXOJDULDQ OHJLVODWLRQ – In Electronic Jornal: Revista Europa des Este Unida, Numero 2, Julio/Diciembre, 2016, Chili, ISSN 0719-7284, http://www.europadelesteunida.com/; Lazarova, V ȼɢɞɨɜɟ ɢɫɤɨɜɟ ɩɨ ɢɧɞɢɜɢɞɭɚɥɧɢɬɟ ɬɪɭɞɨɜɢ ɫɩɨɪɨɜɟ – ȼ ɫɩ ɌɴɪɝɨɜɫɤɨɩɪɚɜɨɛɪɋɨɮɢɹɂɄÄɌɪɭɞɢɩɪɚɜɨ³ISSN: 1313-8133.

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NATIONAL LAW OR EU LAW Georgi MIHAYLOV “Neofit Rilski” South-West University Blagoevgrad, Bulgaria [email protected] Abstract: The article examines cases of conflict between the national law of the EU Member States and European Union Law. There is an analysis of the legal advantage of EU law over national law or vice versa. Conclusions have been drawn that the national law should maintain its advantage when the reason for it is contained in the Constitution of the respective state. Keywords: European legislation; national law and EU law; a conflict between domestic and international law; the Constitution as a criterion for legal force. from Bulgaria and Romania) and finally in 2016 launched a crucial step in a referendum on leaving the EU. Another example of conflict with the European policy and legislation are the actions of the Visegrad Four countries that undertake completely different actions to solve the problem of migrants from those laid down in EU regulations and directives. An analysis of the criminal policy of the EU MS also shows that in this area of law there are many contradictions between different countries and the penalties they apply. Empirical studies show that a neoliberal country like the Great Britain has a higher percentage of sentenced to prison and jail compared to conservative countries such as Germany and France. The last place of this criterion belongs to social democratic countries like Sweden and Finland[1]. These indicators show that the neoliberal countries have to apply punitive measures much more often and much harsher against the perpetrators of criminal acts than countries with a different type of socio-political government. The examples that have been pointed out and many other current and upcoming ones

1. Introduction In recent years the European community has faced many challenges and problems that shake the unity of the Community and individual Member States. While the causes of the difficulties are of economic, migration or other social character, the problems always have the relevant legal dimension. Due to the nature of the legal regulatory system, what is factual always finds its legal expression. In the field of law the fundamental issues that create problems and pose a challenge to the European Community are related to the ratio and the conflict between the law of national Member States and EU law. In recent years, filled with difficulties as the immigration problem and the financial crisis, the imbalance in the ratio national law and EU law stands out even brighter. Some Member States refuse to apply and comply with the developement of its legislation with the regulations and EU directives. As a result, for many years the UK has refused to replace their national currency with the common European one, adopted a number of restrictions on the rights and social status of immigrants from the EU Member States (which are mainly


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suggest clarifying the legal and theoretical issue, which is in the basis of the problem raised, namely: What is the relationship between the national law of the Member States and EU law when they are in conflict?

legislative process is concentrated in the hands of the authorities directly involved in the process of decision-making in the Union - the European Parliament and the Council of the European Union. As part of the institutional structure of the EU[4], they seek to express their interests and will of the states (CEU) and nations (EP) of the EU. Their adopted secondary legislation (regulations, directives and decisions) without the need for additional ratification (by virtue of the membership in the Union) should be consistent and applied in the domestic legislation and enforcement of each Member State. Moreover, regulations and directives should be used with greater legal force than the current national legislation[5]. In the hierarchy of regulations the international ones are positioned as above the law as their legal force puts them between the laws and codes on the one hand and the Constitution as the supreme and fundamental law on another one. According to the abovementioned positioning all international regulations, including regulations and EU directives should be a priority over the current legislation, which must comply and adapt to them. Logically, however, the question arises: What happens when there is a conflict (directly or indirectly) between EU law (in the form of regulations and directives) and the national constitution of a separate state?

2. EU Law To answer this question, we first need to clarify the status of EU law. Some writers and politicians consider the EU law as part of the national law of the Member States, not as international law. In this sense, Dmitry Medvedev in his capacity as Prime Minister of the Russian Federation in 2011 at a meeting with his Slovenian counterpart Alenka Bratušek states that in terms of international law, EU acts constitute national legislation for Member States of the Community. This thesis can not be shared because the EU does not constitute a federation or confederation; it is a union among sovereign states that share common values[2] and economic interests. No Member State has fully deprived itself of their sovereignty while maintaining its state volitional character, being an essential feature of international law[3]. Along this line of thinking, despite the union form of the Community and the delegation of part of the national legislative and enforcement powers of the bodies of the Union, the relations between the Member States remain international. Therefore, the law governing these relations - EU law - is characterized as international law with all its distinguishing features, the main among which is precisely its state volitional character. Although it is characterized as international, EU law differs from the classic understanding of the international law in that it is not a product of the direct expression of the free will of the individual Member States as separate subjects of international law. Under EU primary law (Treaties, the Single European Act, the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty, the Treaty of Lisbon) the

3. National legislation A similar conflict between the rules of the Union and those of national legislation is becoming more prevalent due to the many problems that arise in the European community and the different ways that different countries choose to resolve them. The immigration problem, the financial crisis affecting mainly southern European countries and the institutional arrangement of a number of other social issues are a serious challenge that the European community has to solve via its law. EU law

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in the form of regulations and directives, which the Council and the European Parliament issue, are a means of solving political problems. The intersection between law and politics, both internationally and on a domestic level, is the legislation[6]. The problem of dominance in conflict between national and EU law is inherently legal, but by being aggravating it acquires political dimensions. This is perhaps one of the reasons many of the political problems that the Union is facing not to be resolved. It is also needed to be justified a legal solution to resolve key political problems. The delegation of legislative functions in the hands of the European institutions and the adoption of their acts directly operating on the territory of different countries without needing the approval of each legislative act creates tremendous contradictions. The so-called “refusal of sovereignty” by providing a huge legislative power in the hands of the European institutions deprives Member States of full protection. In developing international legal norms by Community institutions there is a lack of equal basis for coordination of individual national interests. The specific model of direct effect of European law, without the need the separate regulations and directives to be approved by individual states, creates conditions to coerce. International legal relations within the European Community develop based on a subordination level instead of a coordination one, which is characteristic of international law. In this way, those Member States that disagree with the policy of the Community against immigrants or against international trade agreements (such as CETA) remain without an opportunity of their own state volitional statement under European law. There is about to be a grand clash of legal force of national law against EU law that Member States themselves determine as they transfer along with their EU

membership such a huge legislative power in the hands of its institutions. Evidence of the problem is facts such as the failed attempt to create a Constitution for the European Union in 2004 and the increasingly current theme in recent years “two-speed Europe”. To resolve the problem, it should be coordinated the cooperation between the Member States of the Union in the field of rulemaking. When a provision of the EU law is contrary to the law of a Member State, it should be explicitly sanctioned by the respective state in order to have legal consequences and enjoy an above-law legal force. This way of the international interaction is well-known and functioning in international relations and after the sanctioning by the relevant state, the norm acquires the necessary legitimacy and legal force for a priority over domestic law. Sanctioning of each regulation or EU directive by each Member State with a view to their legitimate action is absolutely necessary in order to balance the interests and respect the will of each of the 28 member states. Because if the legal order of the Union continues to function in the form of legal dictatorship against the will of the individual member states, it will not be long before more and more countries resist the action of the legal acts of the Union. It is not excluded due to this fundamental question concerning the establishment and the primacy of the EU law over national law, for other Member States (except the UK) to also leave the EU, and eventually the Union could disintegrate. 4. National law or EU law – juridical crisis The legal crisis that originated from the direct and immediate effect of EU law and the conflict between Community and national law in different countries is a legal shenanigan, which is a risk for the future of the Union. The problems of social, financial and environmental character are

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constantly deepening and the best way to resolve their legal solution is by returning the state volitional nature of the rulemaking in the EU. The EU law cannot prevail and be penalized in national legislation as well as be applied to subjects of law in each Member State when the same thing is contrary to the constitution of the relevant country. The preamble to the Bulgarian Constitution reads “We, the Members of the Seventh Grand National Assembly, in an effort to express the will of the Bulgarian nation ... accept this Constitution.” Therefore, if EU law is in contrast with the constitution, it is contrary to the will of the Bulgarian people. The Constitution is the supreme and fundamental law, which means that its legal power is over all other regulations, including international ones, such as the EU law. The role of the nation, whose will is constitutionally objectified, is to create a law to accompany the functioning of the state[7], even in its international relations. Therefore, if EU law conflicts the constitution directly or indirectly, it cannot be accepted and enjoyed with any legal force in the respective Member State. In direct conflict with the constitutional norms of an individual country sanctioning of the relevant regulation or directive is unthinkable with a view to the rule of the legal force of the constitution, expressing the will of the people. If there are doubts about an indirect conflict with constitutional provisions, EU law should explicitly be ratified by the competent legislative authority of the relevant Member State in order to be institutionalized as an above-law normative act in the national legal system. Indirect conflict with the constitution exists when the European Union Law is contrary to a law or code that builds a concept of an abstractly formulated constitutional provision. The fundamental character of the constitution suggests its abstractly formulated principle regulations to be

further developed in the current national legislation. This ensues that in doubts regarding a contradiction with those rules and indirectly with the Constitution, EU law should be analyzed and explicitly sanctioned by the legislative authority of the Member State. The proposal de lege ferenda to change the rulemaking mechanism in the European Union is radical and concerns a fundamental principle of EU enshrined in its primary law. However, the problem of defending and protecting the national interests of individual Member States is gaining momentum; because what is in the interest of the Germans and the French may be contrary to the interests of citizens of other countries. In view of the relationship rights – interests, a consequence of the controversy can be an unwarranted restriction of rights. And that in turn can be seen as a breach of one of the fundamental obligations of the rule of law to effectively protect the rights of citizens.[8] The differences in interests and attitude of Member States and their citizens to EU legislation are mainly caused by differences in culture, lifestyle, history and psychology of European nations.[9] Therefore, despite being united by uniform economic interests, values, and natural rights, European nations yearn to regain full sovereignty in the field of law through which to highlight and protect the peculiarities of their national identity and interests[10]. 5. Conclusion “It is not possible to adopt international legal standards which will automatically become binding for the subject of international law without its explicit consent.”[11] Therefore the EU must reform its fundamental legal principle by giving an opportunity to explicit sanctions of EU legislative acts of individual Member States. Thus EU law will be fully synchronized and in conformity with

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national law, according to the government declaration of will of each country. The alternative to the legislative policy of the European Union is inevitable - change

or fail due to its inefficiency and conflict with national law.

References 6HH Ⱥɧɞɨɧɨɜɚ Ƚ ȼɴɡɧɢɤɜɚɧɟ ɢ ɪɚɡɜɢɬɢɟ ɧɚ ɩɪɟɫɬɴɩɧɨɫɬɬɚ ɢ ɧɚɤɚɡɚɧɢɹɬɚ ɜ ɦɢɧɚɥɢ ɢ ɧɚɲɢ ɞɧɢ ȿɥɟɤɬɪɨɧɧɨ ɫɩɢɫɚɧɢɟ ɧɚ ɉɂɎ ɤɴɦ ɘɁɍ Äɇɟɨɮɢɬ Ɋɢɥɫɤɢ³ Äɉɪɚɜɨɩɨɥɢɬɢɤɚɚɞɦɢɧɢɫɬɪɚɰɢɹ³ɬɨɦɛɪɨɣɝ,661– ɫ [2] Stoilova, V., Intercultural dialogue in the European Union. Shared values and realities, Profili (Vol. 2), Petrozavodsk State University, ɉɟɬɪȽɍ2011, pp – 104 – 109. [3] See ȻɨɪɢɫɨɜɈɪɥɆɟɠɞɭɧɚɪɨɞɧɨɩɭɛɥɢɱɧɨɩɪɚɜɨɋɫ [4] ȻɟɥɨɜɚȽȿɜɪɨɩɟɣɫɤɚɢɧɬɟɝɪɚɰɢɹɋɢɟɥɚɋɫɬɪ– 112 [5] Regarding the application of regulations and directives in the field of Labour and Insurance Law see Lazarova, N. Conditions for the Acquisition of the right to compensation under the Bulgarian Legislation and compliance with the terms of Regulation (EC) ʋ “Economic, social and administration to the Knowledge – based organization”, “Nicolae Balcescu” Land Forces Academy, Sibiu, 2016, ISBN 978-973-153-246-2Ʌɚɡɚɪɨɜɚɇɉɪɢɥɨɠɟɧɢɟɧɚɚɧɬɢɞɢɫɤɪɢɦɢɧɚɰɢɨɧɧɢɬɟɦɟɪɤɢ ɜ ɛɴɥɝɚɪɫɤɨɬɨ ɬɪɭɞɨɜɨ ɡɚɤɨɧɨɞɚɬɟɥɫɬɜɨ ɫɴɝɥɚɫɧɨ Ⱦɢɪɟɤɬɢɜɚ ȿɈ – ȼ ɋɛɨɪɧɢɤ ɫ ɞɨɤɥɚɞɢ ɢɡɧɟɫɟɧɢ ɧɚ Ɇɟɠɞɭɧɚɪɨɞɧɚ ɧɚɭɱɧɚ ɤɨɧɮɟɪɟɧɰɢɹ ÄɈɈɇ ɂɫɬɨɪɢɱɟɫɤɢɬɪɚɞɢɰɢɢɢɫɴɜɪɟɦɟɧɧɨ ɩɪɚɜɨ³ ɍɂ ÄɇɟɨɮɢɬɊɢɥɫɤɢ³Ȼɥɚɝɨɟɜɝɪɚɞ 2015. [6] See Ɇɢɯɚɣɥɨɜ Ƚ Ɋɟɝɭɥɚɬɨɪɧɚɬɚ ɨɰɟɧɤɚ ɤɚɬɨ ɫɪɟɞɫɬɜɨ ɡɚ ɩɨɥɢɬɢɱɟɫɤɚ ɧɟɭɬɪɚɥɧɨɫɬ ɧɚ ɩɪɚɜɨɬɨ – ȿɥɟɤɬɪɨɧɧɨ ɫɩɢɫɚɧɢɟ ɧɚ ɉɂɎ ɤɴɦ ɘɁɍ Äɇɟɨɮɢɬ Ɋɢɥɫɤɢ³Äɉɪɚɜɨɩɨɥɢɬɢɤɚɚɞɦɢɧɢɫɬɪɚɰɢɹ³ɬɨɦ ɛɪɨɣ ɝISSN: 2367 – 4601 [7] See ɄɨɥɟɜɌɉɪɚɜɨɬɨɢɩɪɚɜɚɬɚɤɚɬɨɤɭɥɬɭɪɟɧɮɟɧɨɦɟɧɋɫ- 44 [8] ɋɬɚɧɢɧ Ɇ Ɉɝɪɚɧɢɱɚɜɚɧɟ ɩɪɚɜɚ ɧɚ ɝɪɚɠɞɚɧɢɬɟ ɈɈɇ ɂɋɌɈɊɂɑȿɋɄɂ ɌɊȺȾɂɐɂɂ ɂ ɋɔȼɊȿɆȿɇɇɈ ɉɊȺȼɈ ɋɛɨɪɧɢɤ ɞɨɤɥɚɞɢ Ȼɥɚɝɨɟɜɝɪɚɞ ɫ [9] GEORGIEVA, G. “Multilingualism as a Significant Element to European Integration”, The 21st International Conference The Knowledge-Based Organization 2015, Sibiu. &RQIHUHQFH 3URFHHGLQJV 0DQDJHPHQW DQG 0LOLWDU\ 6FLHQFHV ³1LFRODH %ăOFHVFX´ Land Forces Academy Publishing House, p. 211. ISSN 1843-6722. [10] As an example we can indicate the different legal regulation of the immunity of the bulgarian’s members of the parliament and the members of the European parliament, considering the national traditions. See more in Mircheva, V., The Immunity of the 0HPEHUV RI WKH (XURSHDQ SDUOLDPHQW In: Europe in two speeds – is it possible?, Reports from International scientific conference, Blagoevgrad, 2012, p.115-123 [11] ȻɨɪɢɫɨɜɈɪɥɆɟɠɞɭɧɚɪɨɞɧɨɩɭɛɥɢɱɧɨɩɪɚɜɨɋɫ [1]

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THE INDIRECT INTENT IN THE INTERNATIONAL CRIMINAL CASE-LAW 9LRUHO3$‫&܇‬$%LDQFD-&RGUX‫܊‬D%Ă5$ :HVW8QLYHUVLW\7LPL‫܈‬RDUD5RPDQLD YLRUHOSDVFD#H-XYWUR EDUDELDQFD#\DKRRFRP Abstract: This study focuses on the analyse of the indirect intent in the international criminal caselaw. Traditionally, the Romanian Criminal Code defines the indirect intent through the pshychological position of the offender towards the result of the crime, which can lead, in some circumstances, to unfair result. Finding an appropriate definition has been a constant problem for the international courts of justice, especially taking into consideration the effort to reconcile this attempt with the national regulations and principles. The International Criminal Tribunal for Yugoslavia developed a new form of criminal participation in which it described the mens rea using the notion of `risk`. The 7DGLüFDVHUHSUHVHQWVDVLJQLILFDQWVWHSIRU the definition of indirect intent, in the way it is considered in our legal system.The international criminal court emphasizes the importance of the person`s position towards the risk that criminal acts could lead to relevant results and it outlines the standards of foreseeability of such risk. .H\ZRUGVLQGLUHFWLQWHQWULVNMRLQWFULPLQDOHQWHUSULVHUHVXOWPHQVUHD ,QWURGXFWLRQ Two important elements have to be established regarding the criminal liability. On the one hand, it has to be determined if there is an action or omission (actus reus) and, on the other hand, if there was a specific psychological process of the wrongdoer that led to the comission of the crime (mens rea). The Romanian Criminal Code identifies a number of five forms of guilt: the direct intention, the indirect intention (also known as dolus eventualis), recklessness, negligence and praterintention [1]. The Romanian legislator defines these forms of guilt through the psychological process of the wrongdoers towards the possibility that a specific result may occure. Establishing the criminal liability only in regard of the psychological position of a wrongdoer towards a result can lead to an extremely unfair interpretation.

The criminal activity is a progressive process which evolves in time and space. Until the the final moment when the harm is done (the occurance of the result), the iter criminis (meaning the criminal process) goes through several stages [2]. In fact, this is the reason why criminal law regulates and punishes the attempt of committing a crime. Establishing the criminal liability implies a rigorous analysis of all the consequences that the actions or omissions of a person generate[3]. Therefore, beside the final result of a crime, criminal law has to take into consideration the risk that specific human conducts create towards the social values protected by the law. 7KHLQWHUQDWLRQDOFULPLQDOFDVH-ODZ The international criminal law deals with crimes of a wide geographical, economical and political sphere. The transnationality and the special dimensions of these crimes


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'XãNR 7DGLü ZDV D UHJLRQDO OHDGHU RI WKH Serbian nationalist party S.D.S. from Bosnia Herzegovina, being an outstanding participant in the formation plan of the `Big Serbia`. The aim of this plan was the ethnic cleansing of the Prajedor region by eliminating the Croatian and Muslim SRSXODWLRQ 'XãNR 7DGLü FRQWULEXWHG WR WKH establishment of a regime of terror against the Croatian and Muslim population, a regime that led to the killing, rape and the battering of many civilians [5]. 7KH 7ULDO &KDPEHU DFTXLWWHG 7DGLü IRU killing the 5 civilians in the village of -DVNLüL $FFRUGLQJ WR WKH FRXrt, his participation in these crimes did not equate to the to direct perpetration, nor he was he liable under the theory of superior responsibility [6]. The Appeals Chamber of the I.C.T.Y. changes this solution using a so-called theory of customary international law` [7]. ,QRUGHUWRHVWDEOLVK'XãNR7DGLü VFULPLQDO liability, the I.C.T.Y. creates a new form of criminal participation called the `joint criminal enterprise` (a common purpose liability), composed of three distinct categories of collective criminality, which have come to be known as Joint Criminal Enterprise (JCE) I, II and III [8]. The third type of the `joint criminal enterprise` is the one that is important for analyzing the implications of risk in the criminal law. The third category of `joint criminal enterprise` (extended joint enterprise) is characterized by at least two participants, the existence of a common criminal plan and the committing by one of the participants of an offense not forming part of that joint plan, but which is a means of the materialization of the original objective [9]. From the mens rea`s point of view, `what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for

raise extremely complex legal issues regarding the criminal participation and the mens rea. The important challenge of the international criminal law was the criminal responsibility of those who co-ordinated and conducted crimes against humanity or war crimes, persons that constituted the triggering force of the criminal activities, as against to those who had only executed the criminal plan. Another important issue was the criminal liability of these war leaders for the crimes committed by their subordinates besides the common criminal purpose. The international crimes are committed by a large criminal group who act according to a specific aim. In order to reach this purpose, the criminal group establishes a common plan. The delicat problem arises when a member of this group commits a crime besides this common plan, without having it discussed with the entire group but committing this crime is a mere form of achieving the criminal joint purpose [4]. For reasons of fairness, international criminal courts gave legal value to the position that the war leaders adopt against the risk of producing critically results, results that they do not always program but foresee up to a certain point. The adoption of traditional principals and rules from the national legal systems for the resolution of these legal problems would have led to unfair results, considering the specificities of these criminal cases. The international criminal courts have borrowed the notion of risk in the construction of guilt, especially with regard to the indirect intention, where we find the notion of "a willingly taken risk". Prosecutor vs. 'XãNR7DGLüDFDVHEURXJKW before the International Criminal Tribunal for the former Yugoslavia (hereinafter I.C.T.Y.) is the reference case in which it was raised the question of a new form of criminal participation and the notion of "a willingly taken risk.

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a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, it was foreseeable that such a crime might be perpetrated by one or other members of the group and the accused willingly took that risk`[10]. ,Q WKH 7DGLü FDVH WKH MRLQW FULPLQDO enterprise is represented by an armed group. The common plan of this group is the ethnic purification of the Prajedor region. Although Tadiü GLG QRW GLUHFWO\ execute the material acts of murders that were not included in the initial plan, he was able to predict the possibility of these results occurring, voluntarily assuming this risk. In the appeal decision, the I.C.T.Y. defines the two major elements that characterize the mens rea in the case of J.C.E. III: a) the intention to participate and contribute to the achievement of the joint purpose of the group; b) the possibility to foresee that other members of the group will commit offenses other than those strictly related to the original plan but which have an important link with the latter, a risk that the person willingly takes [11]. According to the court, the psychological state of mind in which a person, although not seeking to bring about a specific result (other than the one contained in the criminal joint plan, such as the `ethnic FOHDQVLQJCSXUVXHG E\ 'XãNR 7DGLü foresees that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk, takes the form of a dolus eventualis or an advertent recklessness [12]. The way that dolus eventualis is understoond by the I.C.T.Y. is close to the definition that the Model Penal Code gives to recklessness: ` a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a

nature and degree that, considering the nature and purpose oI WKH DFWRU V FRQGXFW and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding SHUVRQ ZRXOG REVHUYH LQ WKH DFWRU V situation`[13]. In the Romanian criminal law the definition that the I.C.T.Y. gives to dolus eventualis characterizes the indirect intent. The main difference betwen the indirect intent and recklessness relies on the fact that in the first case the offender foresees the risk and accepts the posibility of it to happen (although he doesn not have the intent to achieve this result), while in the second case, the wrongdoer foresees the risk but unjustifiably believes that the result will not become a result forbbiden by the criminal law [14]. The theory of the joint common enterprise has substantiated the criminal responsibility of important criminal group/organization leaders in other resounding cases brought before the international criminal courts. These courts have continued with the I.C.T.Y. perspective towards indirect intent, LQ WKH ZD\ LW ZDV HVWDEOLVKHG LQ WKH 7DGLü case. An important trial brought before the I.C.T.Y. was that of the Serbian General 5DGLVODY .UVWLü WKH FRPPDQGHU RI WKH Drina Army Corps, whose troops were actively involved in the Srebrenica massacre in 1995 [15]. Together with the officers of the Army General Staff of the Republic of Srpska and the State Major of CA Drina , Radislav .UVWLü ZDV D NH\ HOHPHQW LQ WKH IRUFHG deportation of the Muslim women, children and the elderly who lived in the city of Srebrenica [16]. 5DGLVODY.UVWLüZDVIRXQGJXLW\IRUVHYHUDO crimes of murder, rape and battering. The I.C.T.Y. rulled that these crimes were a natural and predictable consequence of the deportation plan of the Muslim population, even though they were not established together with the common plan [17].

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In defining the mens rea RI5DGLVODY.UVWLü WKH ,&7@3URVHFXWRUY'XãNR7DGLüQU,7-94-1-T, 14th of July 1997, par. 127-179. [6] M. A. Summers, op.cit., p. 672. >@3URVHFXWRUY'XãNR7DGLüQU,7-94-1-A, 15th of July, par. 194-195. [8] Idem, par. 195. >@3URVHFXWRUY'XãNR7DGLüQU,7-94-1-A, 15th of July 1999, par. 204. [10] Idem, par. 228. [11] Idem, par. 220. >@3URVHFXWRUY'XãNR7DGLüQU,7-94-1-A, 15th of July 1999, par. 220. [13] Model Penal Code, section 2.02. General Requirements of Culpability. [14] 0 8GURLX 'UHSW SHQDO 3DUWH *HQHUDOă &ULPLQDO /DZ 7KH JHQHUDO SDUW (GLWXUD &+%HFN%XFXUH‫܈‬WLS [15] L.-$ /DVFX 0RGDOLWă‫܊‬L GH SDUWLFLSDUH OD FRPLWHUHD FULPHORU GDWH vQ FRPSHWHQ‫܊‬D LQVWDQ‫܊‬HORU SHQDOH LQWHUQD‫܊‬LRQDOH :D\V WR SDUWLFLSDWH Ln the commission of the crimes XQGHU WKHMXULVGLFWLRQRIWKHLQWHUQDWLRQDOFULPLQDO FRXUW (GLWXUD +DPDQJLX %XFXUH‫܈‬WL 2013, p. 146. >@3URVHFXWRUY5DGLVODY.UVWLüQU,7-98-33-T, 2nd of August 2001, par. 615. [17] Idem, par. 616. [18] Idem, par. 613. [19] Prosecutor v. Cauza Édouard Karamera, nr. ICTR-98-44-T, 2nd of February 2012. [20] Prosecutor v. Édouard Karamera, nr. ICTR-98-44-A, 29th of September 2014, par. 137. [21] Prosecutor v. Radislav Brdanin,nr. IT-99-36-A, 3rd of April 2007, par. 420-425. [22] Prosecutor v. Cauza Édouard Karamera, nr. ICTR-98-44-T, 2nd of February 2012, par. 1435. [23] Ibidem. [24] Idem, par. 628. [25] M. A. Summers, op.cit., pp. 668-669.

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BIRTH CERTIFICATE OF STILLBIRTH AND SUCCESSION Vesselin Dimitrov PETROV “Neofit Rilski” South-west University Blagoevgrad, Bulgaria [email protected] Abstract: This article explores the subject of one question “de lege ferenda” which is related to the birth of stillbirths and the matters of succession that result from the amendment of the Civil Registration Act of 2015 and the establishment of a separate civil status certificate. Keywords: succession, birth certificate, stillbirth, potential viability, legislation birth certificate and for every person who dies – a death certificate [2].

1. Succession relations in Bulgaria are regulated by The Succession Act. The common understanding according to Bulgarian law of succession is that a child born alive has succession rights by intestate succession and by testamentary according to section 2 of the Succession Act. The child that is conceived by the date of the probation of the succession has succession rights only on condition to be born alive and viable. There is a rebuttable presumption that the child that is born alive is considered viable [1]. The civil status of natural persons is a set out of legal facts and indications which defer the legal status of a natural person. It is a complex legal status. Its components are designated by a legislative act and they are equal to all natural persons. The Civil Registration Act establishes three main types of certificates – a birth certificate, a certificate of legal marriage and a death certificate. Those certificates are executed in the occurrence of the relevant legal fact. They are official written documents with attesting function “erga omnes”. They attest the civil status of natural persons. Their execution and content, as well as their amendments are compulsory persuant to a legislative act. For every child born alive it shall be executed a

2. The Act amending and supplemending the Civil Registration Act established a new subsection 2 of section 42 [3] which introduced the principle of execution of a birth certificate of a stillbirth and the supplementing of section 43, subsection 1, second sentence of the Civil Registration Act provisions that the birth notification shall be made at least 24 hours after the birth if a stillbirth. This is new undertaking of the legislature of the civil status of natural persons. The stillbirth isn’t a legal person because it isn’t alive so that the requirement of the fiction provisioned in section 2 of the Succession Act to take effect cannot be fulfilled. 3. The development of the social relations and legislation in respect of the civil status and the medical practice gives rise to the question of the term “potential viability” GHOLEHUDWHG LQ 'HFLVLRQ ʋ RI 17.03.2016 of the Supreme Administrative &RXUW RQ DGPLQLVWUDWLYH FDVH ʋ ZKLFKZDVSUHPLVHGZLWKWKH2UGHQDQFHʋ 19 of 22nd December 2014 for the medical standard of Professional Organization of


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Medical Nurses, Midwives and Associated Medical Specialists Guild Act [4]. This term is neither used in the Succession Act, nor in the Civil Registration Act. The plaintiff had a complaint against the provisions of the Ordenance and claimed that the viability criteria were too high and that they concerned “the rights of the parents of the new-borns who don’t have the right to take their children, or to receive an executed birth certificate for the newborns, or in case of death of the new-borns to bury them. This distinguishes a “newborn” which means viable according to the presumption provisioned in section 2, subsection 2 of the Succession Act and a viable child. In the statement of reasons of the Decision of the Supreme Administrative Court mentioned above is noted that the provision of paragraph 1, point 17 of the Additional Provisions of the OrdHQDQFHʋRI give the definition of the term “potential viability” grounded on the quantitative indicators of the weight of the conceived child and the pregnancy gestational week. The Decision proclaims that this medical standard is of significant matter in regard with the substantive rules which regulate the legal personality of natural persons and the difference between giving a birth and the case of abortion where isn’t a legal person and a birth certificate is not issued. If the conceived child is under the weight of JUDPV DQG the age of 26 gestational weeks and he is born alive he shall be alive at least 72 hours in order to be considered “potentially viable”. It is clear that the criteria are subject of matter to the intrauterine life of the embryo and the work of the medical staff according to the good clinical practices but the potential nonviability is discovered at a point after the time of the childbirth, i. e. the child is born dead. There is no doubt in the importance of the term with regard to the medical point of view. As from the legal standpoint what matters is whether the term “potentially

viable” and its interpretation is in accordance with section 1 of the Persons and Family Act which is the basis on which the Civil Registration Act defines the type of the birth certificate that shall be issued: a birth certificate according to section 42, subsection 1 or a birth certificate of a stillbirth according to section 42, subsection 2 of the Civil Registration Act. It also should be considered in regard with the application of section 43, subsection 2 and DOVR VHFWLRQ DQG VHFWLRQ of the Civil Registration Act. According to the latter provisions of the Act there isn’t a regulation of the execution of a separate death certificate in case of a stillbirth, but only a birth certificate of a stillbirth. Actually, the amendments of the Civil Registration Act of 2015 resulted in combining both birth and death certificate and establishing a separate type of certificate. It is apparent from an examination of its content and legal effect that it is established a new category of a civil status certificate – a certificate of a stillbirth which combines the basic characteristics of both of the certificates mentioned above. Where a child is born dead a birth certificate of a stillbirth shall be issued and in the box “name of the newborn” it shall be written “stillbirth” according to section 45, subsection 2 of the Civil Registration Act and in this case a death certificate shall not be executed. 4. Although the amendment of the Civil Registration Act is induced by humane and pragmatic reasons and the strong demands of the non-organizational sector the consequences of the new regulation could be revealed on a wider range in regard to civil law because it is coherent with the legal personality and the relevance to the mortal remains as property. This new interpretation of the matter is provisioned apart from the regulation of the cases of birth of a viable child followed by subsequent death given in section 46 of the Civil Registration Act. It confirms the statement that legal personality incurs at the

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time of birth and a stillbirth could never be a legal person. The distinction from the abortion can be clearly defined. Though at the same time the new criteria, introduced in compliance with the amendment of the Civil Registration Act and its medical point of view give rise to the question whether the conceived child shall be given legal personality since according to the medical standards it is considered “potentially viable”. This would also mean that the rules of civil law shall also be applicable including succession rights. The first question is whether the potentially viable can be considered to be subject to succession rights because according to the criteria mentioned above the child is conceived and there is intrauterine life. In other words whether a conceived child shall be given intrauterine legal personality. Moreover, this type of legal personality is coherent to the conditions of survival after the childbirth.

the cases where the mother gives birth to a child by assisted reproduction (section 60, subsection 5 of the Family Code). The origin from the father is established in compliance with the presumption of paternity which proclaims that the mother’s husband is considered the child’s father in case the child is born during the marriage or before the effluxion of 300 days of its termination (section 61, subsection 1 of the Family Code). The non-marital paternity could be established by recognition of the child or bringing an action. According to the Family Code a stillbirth could also be affiliated. The provision describing the case of a child who has left descendants is inapplicable and it cannot be an obstacle for affiliation because the Family Code regulates the cases in which a death certificate is issued (section 64 of the Family Code) but a question of matter in this case is the execution of a birth certificate of a stillbirth with its specific features which combine both a birth certificate and a death certificate [5]. Another question of discussion is succession by testamentary. In order for the will in the favour of a conceived child to take effect it is necessary not only the child to be conceived before the moment of the probation of the succession but also the testator shall explicitly dispose the succession rights of the conceived child who is “potentially viable”. It doesn’t matter whether there private or general testamentary dispositions are drawn up. In the latter case the child would be a full legal successor – heir (section 16 of the Succession Act). In case of giving rights to a stillbirth, in respect the fact of his death it relevant to discuss the possibility of intestate succession on the ground of the right of substitution of his parents in case their death has happened before the probation of the succession in favour of one them according to section 10, subsection 1 of the Succession Act. This would be a specific case of granting succession rights which as

5. The acceptance of the theory of the “potentially viable” can be bounded with the personal right of intestate succession. According to the Succession Act there are four levels of successors (provisioned in sections 5 to of the Succession Act). The deceased’s children are successors of first level and they have preferences above all others. All children have the succession right of an equal part of the deceased’s estate. On the ground of the legal fiction (section 2, subsection 1 of the Succession Act) the conceived child has equal rights with the new-born at the time of the probation of the succession in case he is eligible to live which means to be “potentially viable”. The conceived child could also inherit on the ground of the right of substitution. Of course, at any case where the intestate succession is concerned it shall be proved that there are family relations based on the origin. The origin from the mother is determined by the childbirth according to section 60, subsection 1 of the Family Code including

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well as any other shall be provisioned by a legislative act. It is different if a stillbirth that is given the right to inherit dies before the testator, so that a specific case of succession transmission shall take place which is provisioned in section 57 of the Succession Act). These considerations about the possibility of granting succession rights to the “potentially viable” are still relevant even DIWHU'HFLVLRQʋ of 17th March 2016

[1]

[2]

[3] [4]

[5]

[6] [7]

of the Supreme Administrative Court [6] was held which repeals the OrdenDQFH ʋ 19 of 22nd December 2014. This situation occurs because neither the Civil Registration Act, nor the Persons and Family Act are repealed or amended. In a case of amendment the rational reasons provided by the judicial practice has to be updated and developed. The regulation shall not be provided only by subordinary legislation, but by a legislation act [7].

References Tadzher, Civil Law of National Republic of Bulgaria, General part, Chapter II, 1973, page 23, which provisions that only the one who is born capable of being alive shall have succession rights. According to Pavlova, Civil Law, General part, 2002, p. 236, the time of birth is when the embryo is separated from the mother’s body and it is necessary to be cut the cord blood and all of the actions required by the medical science to be done for a new legal person to occur. In order to have legal personality the child shall have breathed through his lungs and it doesn’t matter how long the new-born is alive. The Persons and Family Act doesn’t set out a requirement for the child born alive to be viable. Section 2 of the Succession Act provides this requirement in order for the child to have succession rights. See and Ilieva, R. Course in Civil Law, Generality, Volume 1, Ciela, Sofia, 2015, pp. - The legislation before the promulgation of the Civil Registration Act and the civil status certificates, Tsanka Tsankova. Civil legislation issues with the civil status certificates, Lectures for post-graduate education, University of Sofia, 9RO ;;9, SS Detailed content of the probative value of documentary evidence, see Ivanov, A. Current issues of proof in civil proceedings. Sofia, New Star /Nova Zvezda/, 2015, pp.73- The Act amending and supplemending the Civil Registration Act was promulgated by Official Journal, issue 55 of 2015. TKH2UGHQDQFHʋRInd December 2014 for the medical standard of Professional Organization of Medical Nurses, Midwives and Associated Medical Specialists Guild Act was promulgated by Official Journal, issue 106 of 2014 and repealed by Official Journal, issue 22 of 2017. In order to establish the origin from the mother and the father see T. Tsankova, M. Markov, A. Staneva, V. Todorova, V. Petrov, E. Balevska, B. Decheva, V. Micheva. Family Code, 2015, pp. 227-290. 'HFLVLRQ ʋ of 17th March 2016 of the Supreme Administrative Court was promulgated by Official Journal, issue 22 and enacted on 14th March 2017. The questions of the legal persons, legal personality and legal capacity according to Bulgarian Civil Law are not discussed in the article.

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THE CONTEMPORARY COUNTRIES IN THE CONDITIONS OF MIGRATORY MULTICULTURALISM Manol STANIN “Neofit Rilski” South-West University– Blagoevgrad, Bulgaria [email protected] Abstract: One of the characteristics in the early 21st century is the existence of different in intensities and content migration waves. This confronts the countries at a range of challenges. On one side, countries should protect the rights, freedoms and interests of its citizens, on the other rights, freedoms and interests of persons, who form migratory pressure and are threatening the national security. In order to be guaranteed the rights, freedoms and interests, it is necessary first to be ensured a security, which means limiting the rights of persons, who represent a threat to the national security. The problems are further exacerbated by the enforced coexistence of different cultures with values different from those of the citizens in the respective countries, which are reflected in the current legal order. This, in turn, means a normative impossibility for the institutionalization of these values and the adoption of legislative consensual solutions, applicable as for the time of their stay in the respective countries, as well as in their eventual integration. Keywords: multiculturalism, values, rights, conflict, integration

Thereby would be sustained the effective interaction between governed (nation) and government, manifested in different fields, including in the achievement of a homoeostasis in the community.

I. Introduction The beginning of XXI century is characterized by the emergence and exacerbation of conflict zones around the world and with the consequences of the global financial crisis - factors that generate varying in degrees of intensity and content migration waves. These are factors, which challenge the countries with the choice to protect the rights, freedoms and interests of persons, involved in the formation of migratory pressure or to protect the rights, freedoms and interests of its citizens. Complete guarantee of the rights and freedoms is possible only in a state of security. This, in turn, means limiting the rights and freedoms of persons, who are a threat to the national security - a task, to fulfilment of which the contemporary states should proceed.

II. Values and legal regulation The idea of nationalism usually is gaining popularity during periods of presence of large numbers of foreigners, whose value system is contradictory with the values, manifested in the relationship between nationals of the respective country. Thus, cause a series of problems, additionally exacerbated by the incompatibility of values. The latter finds an expression in the diversity, concerning the understanding of good - evil, fair – unfair, sin, status of genders in society and others, which are arising from specifics of the different cultures that honour different values. With


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the feature that the existing legal order in the host country reflects and protects values, unacceptable and even incomprehensible for some of the immigrants - a fact, which determines the lack of a community of values between nationals and immigrants. It naturally excludes or makes difficult not only the integration of the immigrants, but also generates a number of problems during their residence in the territory of the relevant country. This ascertainment means normative impossibility of consensual legislative solutions, applicable for the period of their stay in the respective countries, as well as for their eventual integration. In the context of what has been said so far, it seems to me appropriate to remind that there are hundreds of definitions for culture. With a view to the present analysis, a 'culture' means a complex of values, reflected in the social regulatory systems, designed to influence the behaviour of individuals, who exist in the conditions of community. Of special importance is the normative system "law" as "the individuals (legal entities) through their rights are integrated into a community (nation) in the name of certain values and interests enshrined in the Law." [1] And the rights, regulated by the law, imply obligations for assistance in their exercising or obligations not to hinder their titular, when he exercises them. Fulfilment of these obligations positively influences the homeostasis within the community of individuals. Thus, through positive mutual respect for the rights sanctioned by the law, individuals deepen the integration processes in the community. It is logical to presume the contrary. Negligence of obligations leads to disintegration, even for individuals, who a part of the community, because this is not only a legal infringement, but also a disrespect for the values of that society. These dependencies could be applied in relation to persons, who are positioned in

one country, because of migratory or refugee waves. In that sense each conflict situation, resulting from the abovementioned processes, is both a conflict of values and a conflict over rights. Defining the possible and the appropriate behaviour of the individuals poses a number of urgent tasks before the subject of the legislative activity. From properly taken legislative decisions depends the mutual respect for rights, values and naturally, the right to pursuit a building community. [2] These ascertainment suggest the powerful integration potential of law. [3] Potential, which the contemporary countries should use wisely, as it may also lead to serious negative consequences. III. Multiculturalism and administration of justice The accompanying migration multiculturalism reflects both positively and negatively to the integration processes, as it is also a prerequisite for increasing the transnational criminality. The violation of the established legal order, created because of the dominant in the country value system, is often a ground for defining and implementing a measure of criminal law responsibility. The question of whether the criminal proceedings against the offender should be initiated and conducted in the country of stay of the person - immigrant, refugee, temporary resident - could be solved through the mechanisms of criminal law cooperation between countries. Thus, the offender could be tried and penalized either in country of his residence or in his native country. There is another possibility - after he is sentenced in the country of his residence, to be transferred for serving the sentence in his native country, where the conditions for social reintegration, respectively for correction and re-education are more favourable. [4] Thereby is revealed the mutual interrelatedness between values, culture, equity and justice globally.

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right there are consequences, with which the one, who has exercised it, must comply. These consequences suggest an interaction with a community of nationals with their cultural identity. Such interaction could be regulated only by the existing legal order in the country, which usually contains and protects values incompatible with the value system of the majority of these individuals. Values are the foundation of the boundaries characterizing each community of people. The borders stem from the necessity and the causes for building of community and connect with the territory and its resources, and with a sense of connectivity and reciprocity. [7] For these reasons, according to the cited author, it is fully justified if the inclusive community that has a country put its integrity and identity in the first place. Therefore, the source for problematic situations, as well as sustainability, is the interaction that raises the question of the development of conflictology of cultures or intercultural mediation, including issues related to the legal regulation of these processes. It is also possible a process of rejection and unwillingness for interaction. Migrants crossing the border of a country find existing community with expressed values and territorial boundaries, which are shared a prolonged period, sufficient to form a nation. Moreover, if the passage of the first boundaries proves relatively easy, often the second boundary is difficult and even insurmountable, since its components have values that foreigners do not understand, do not accept and even reject. In the presence of a critical mass of foreigners with common values that determine their behaviour, it is quite natural for them to start building a community, when the above stated circumstances are present. The consequence is creating an environment for the expression of cultural values that they have "ported". These processes involve conflicts at every social interaction between individuals from both communities. Actually, this is not a conflict situation,

IV. Legal regulation and security It is accepted that 1960 is the year of occurrence of the concept of multiculturalism, which with time takes precedence over the so-called "assimilation model" in dealings with immigrants. The realization of the idea of co-existence of different in their essence cultures, on the territory of one country, gradually forms difficult and even impossible to solve problems in front of the contemporary countries.[5] From the available diversity I will put an emphasis on two problematic areas – legislative activity and guaranteeing security, with a view of their importance to the maintenance of unity and consensus not only of the community of nationals of one country, but also unity and consensus of the community of nations. Related to the co-existence of several nations within the European union, in the theory has been said that: “The presence of a number of multifaceted challenges and asymmetric threats, despite its negative impact on the functioning of the European Union itself lead to a deterioration in the level of security and stability in the EU's neighbouring regions. In this regard there should be paid special attention to a new phenomenon in the contemporary reality, namely mass migration to the old continent of unstable political and economic regions of the so called Third World, adjacent to Europe.” [6] V. The law and the rights seen as integration instruments Naturally, it should be recognized the right of everyone to migrate or seek refugee status. Like any right, however, there are limits for its exercising. This right could be restricted by establishing obligations or prohibitions as well as through factual activities, mostly from the countries, to which the persons concerned are directed, including the countries, through the territory of which they are only passing. In the context of what has been said, it should be kept in mind that after exercising of a

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based on incoherencies in behaviour, resulting from the different cultures, between specific individuals. It is a conflict between the cultures, because it is expected and even predictable between individuals from culturally incompatible communities. What has been said so far does not exclude risks and challenges facing the countries in the absence of the above mentioned conflict situations, resulting from the cultural incompatibility. Even the presence of sustainable integration processes implies risks in the conduct of their legislative activity in the field of possible and appropriate behaviour of the representatives of different cultures. In the light of the concept of multiculturalism, measures are taken to maintain the cultural identity of immigrants. Despite the fact that the concept of "culture" has many definitions, in 1952 have been ascertained 164 [8], it is easy to assume that in 2017 their number has increased significantly. The diversity, however, contains something constant. Culture connects with people. It is the

product of a lengthy process with its specifics. [9] Each analysis of a particular culture is positioned on the extended time basis, covering both the present and the history of a nation. The nation is defined as the natural environment of the existence of legislative factors (justice, morality, economic condition, politics, biology, geography, demography, etc.) and therefore is of a great importance in their transformation into national positive law. [10] VI. Conclusion Reporting of these features is particularly important for the legal entity of the legislative activity, elected from the nationals of each country to create law. Any thoughtless and randomly shifting the focus to maintain the cultural identity of immigrants may form disturbances in the legislative process with negative consequences for the legal certainty.

References [1] ɄɨɥɟɜɌɉɪɚɜɨɬɨɢɩɪɚɜɚɬɚɤɚɬɨɤɭɥɬɭɪɟɧɮɟɧɨɦɟɧɋɢɟɥɚɋɫ. [2] ɍɆɚɣɤɴɥ. ɋɮɟɪɢɧɚɫɩɪɚɜɟɞɥɢɜɨɫɬɬɚ ɂɄɄɄɫ. [3] ɇɢɡɛɟɬ Ɋ ɋɬɪɟɦɟɠɴɬ ɤɴɦ ɨɛɳɧɨɫɬ. ɐɟɧɬɴɪ ɡɚ ɢɡɫɥɟɞɜɚɧɟ ɧɚ ɞɟɦɨɤɪɚɰɢɹɬɚ International for Contemporary Studies International Center for Self Covernance, 1992. [4] Voynova, R. Comparison of the Transfer of Criminal Proceeding with other forms of International Legal Cooperation in Criminal Matters, in scientific collection “The complex physiognomy of the International security environment“, Land Forces Academy ”Nicolae Balchesku", Sibiu, Romania, 2015, pp. 178-186. [5] Mihaylov, G. Law in the Process of Social Integration of Immigrants, in scientific collection “Economic, Social and Administrative Approaches to the Knowledge-Based Organization”, Volume II, Land Forces Academy ”Nicolae Balchesku", Sibiu, Romania, 2016, p. 12. [6] Marin, N. Disproportionate Migration Pressure as a Challenge for the National Security of the Republic of Bulgaria, in scientific collection “Economic, Social and Administrative Approaches to the Knowledge - Based Organization”, Volume II, Land Forces Academy ”Nicolae Balchesku", Sibiu, Romania, 2016, p.134. [7] L. Friedman. Is there a modern legal culture? Ratio juris. Volume 7, Issue 2, July 1994 , pp.117–131. [8] A. Kroeber, C., Clachohn, Culture. A critical review of concepts and definitions, Cambrige (mass), 1952

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[9] Vasilev, V., I.Efremovski, Organizational culture and motivation in public administration - a relation of the future in the public management, Journal of Process Management – New Technologies, 2014: pp. 101-106. [10] ɄɨɥɟɜɌɌɟɨɪɢɹɧɚɩɪɚɜɨɬɜɨɪɱɟɫɤɚɬɚɞɟɣɧɨɫɬɍɧɢɜɟɪɫɢɬɟɬɫɤɨɢɡɞɚɬɟɥɫɬɜɨÄɋɜ ɄɥɢɦɟɧɬɈɯɪɢɞɫɤɢ³ɋɫ

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THE PROBLEM OF RECURRENCE IN THE NEW CRIMINAL CODE AND THE IMPACT OF THE NEW CHANGES TO CRIMINOGEN PHENOMENON IN OUR COUNTRY Vasile STOICA “Dunarea de Jos” University, Gala‫܊‬L, Romania [email protected] Abstract: The present paper wants to emphasize the impact of the new amendments to the penal code in the magazine on the criminogenic phenomenon. The provisions of the new Criminal Code for Romanian recurrence brings new elements in both the definition of its terms and in terms of the punishment.

Keywords: recurrence, impact, criminogenic phenomenon the new Criminal Code, recidivism post-executory recurrence, it adopted legal increase with half of the special limits of punishment. By checking the conceptual acceptance, it has been showed that the, from the point of view of etymological plan, the term "recurrence of the problem comes from the Latin meaning "recidivus"[1], 1or from the Latin verb "recidere"[2], which means "recadere i.e.” who commits the same mistake or which falls on the same mistake". In other words, recurrence means committed the offenses, i.e. "repeating the phenomenon after the disappearance of the apparent"[3]. Analysis and the study made on the occasion of the research and development of this work me to define the recurrence of as "a form of continuous displacement of offenses, which consists in committing again of offenses by a person who was sentenced definitively for another crime"[4]. The specialized literature has consistently held several criteria for the classification of this paper, criteria against which have been defined and to the different forms or

1. Introduction Entry into force of Law no.286/2009 on the Criminal Code, by means of Law no.187/2012 for the implementation of Law no.286/2009 on the Criminal Code marked the modification of certain institutions of criminal law among which the condition relating to the plurality of crimes. As part of the continuous displacement of offenses, recurrence has brought new elements both in terms of the definition and the terms thereof and as regards the penalty applicable in such a situation. As regards the temporary nature, it is highlighted in even to the definition of this form of plurality and crimes. There have also been reared within the time limits by changing the positive terminal in order to qualify as the offender only on that person sentenced which has committed a further infringement from a certain degree of social threat. As far as the treatment of sanctionator, the new law has been simplified, within the meaning of that in the case of postconviction it resorted to dealing with an arithmetic ratio, while in the case of the


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conditions of it. It is important to know these ways because, recurrence always appears under one of those forms and therefore the only way it can appreciate the persistence of the offender, manner of penalty and the design of the legislature with regard to the structure and the conditions governing the existence of a magazine. In the new approach the penal code, recurrence means that the form of continuous displacement of offenses which consists of commitment with intent or by a person, after having been sentenced to imprisonment penalty of more than one year and up to rehabilitate or until expiration of the rehabilitation, again, of offenses for which the law provides for a lighter penalty with imprisonment of one year or more than one year including detention for life. The truth of new also provides the fact that at the status of recurrence of account shall also be taken of the judgment of the Court of pronounced abroad, if the deed is provided by the penal law Romanian, only if such determination has been recognized in accordance with the law.

implementation as well as the regime and criminal law of them. In the law on the Criminal Code do not result in which was the reason the legislature to waive the distinction between small and great recurrence in the context in which the small recurrence was an effective means of punishment of a murderer which has a degree of social threat because of the repeatability of the facts complained, even if the punishment for these were of less than one year. In accordance with the provisions of Article 41 from the new criminal Code entitled "Recurrence", is mentioned the following: " There is a recurrence of the problem when, after the naive of a judgment of the court of the imprisonment penalty of more than one year and up to the rehabilitation or expiration of the rehabilitation committed the condemned again to crimes with closer look but with closer look exceeded, for which the law provides for the imprisonment penalty of one year or greater. There is a recurrence of the problem and in the event that one of the punishment referred to in paragraph 1 is detention for life. In order to member the status of recurrence is sofer into account and by the judgment of sentence pronounced in abroad, for a deed prescribed by the penal law Romanian, if the judgment by the used conviction and recognized as according to the law". After the first analysis of a specific text referred to above, resulting in a simplification of the rules in front of the old provisions by Apple the number of forms of the recurrence of the provided for by law, the new text only incriminating postconviction recurrence post-executory,, and the national and international without making a distinction between the recurrence of the high and low recurrence. It is observed at the same time the change of the conditions relating to the terms of the shops that grow basis from 6 months to one year or imprisonment for life as regards concrete penalty laid down by the court for the first period, while for the second period,

2. Means of recurrence in the new Criminal Code From the definition of the data of the lawmaker in the content of the articles 41 from the new Criminal Code can be noted that it has understood to the distinction between the recurrence of the high and low recurrence, covering a single form of the recurrence of similar to the recurrence of the problem. In this context, the new provisions identify new elements both in terms of the definition of the shops, of its terms as well as in respect of punishment. The new Criminal code has adopted such general system shops, temporary relative, and international. Although no longer expressly regulated recurrence postconviction and post-executory, the new provisions of the Criminal Code provides for the legal conditions of the shops after the condemnation and of the shops after

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the penalty provided by the law should be prison more than one year or detention for life as well as in the truth of the old. At first sight the new recriminations creates a more favorable arrangements for those who have been sentenced to punishment of less than one year, although the intention of the legislature has been aggravation sanctionator regime of the shops, by the increase in the duration of the imprisonment penalty which may constitute the first term of the shops to a year. This encourages the creation by the new provisions seems to be numbering in the context in which the "Evolution of statistics relating to the number of welfare with a criminal record which reproduces the behavior of the Criminal activity”[5], is on the rise. Increase in the first term of magazine at the jail more than one year or detention for life does nothing but to focus activities and even to encourage the recurrence of the problem on the people sentenced to prison sentences of less than one year, a fact that is not justified in relation to the prevention imperative general and of rated recidivism. The conditions imposed by the new rules for the existence of the magazine are: - Final sentence to a penalty of a certain length of time for an offense; - Committing a new offenses of a certain level intentionally or with the intention exceeded; - Both condemnation and further infringement to look the same person who plays a central role for the connection between the two terms of the magazine.

- judgment of sentence to have been delivered by a Romanian court or from abroad for an offense has been committed with intent or with intent exceeded, in the case of the taken abroad, only if the judgment of sentence has been recognized as according to the law; - judgment of sentence does not form part of the category of the exempted by law. Unlike the old, the truth of the current Penal Code provides only three cases of convictions which do not lead to the condition of the recurrence of namely: 1. when the facts are no longer provided for in the law on the criminal proceedings; 2. for offenses amnistiate; 3. in the case of crimes committed through of manslaughter. As regards the second term of postconviction recurrence, it must meet the following conditions: - the new deed to have been committed with intent or intent exceeded, subsequently definitive condemnation, irrespective of the nature of her. The form of the new crimes committed through can be consumed or remaining in the phase of attempted and the quality of can be both by the author and the instigator or accomplice. May constitute a second deadline of the magazine both committing a single crimes and more; - to the new offense the law must provide for a jail penalty of more than one year or even imprisonment for life. The purpose of this condition is the restriction of the area of attracting the status of the recurrence of only of the offenses more serious; the - offense to have been committed after the naive to the conviction decision, before the execution of the punishment, during the execution of the punishment or in the weak. Through this feature postconviction recurrence can be distinguished from post-executory recurrence.

3. Post-conviction Recurrence This type of recurrence of the problem exists when, after the final sentence, person commits a new criminal offense. Require such to be met, for the existence of the first term of post-conviction recurrence, the following conditions: - to be at least one final punishment with imprisonment of more than one year or imprisonment for life;

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- for the new criminal offense, the law to provide for a jail penalty of one year, more than one year or imprisonment for life; - to the new offense the law must provide for a jail penalty of more than one year or even imprisonment for life; - the date of the commitment of the new offenses may be after the date of the penalty execution, after the publication of the decree ordering total or of the rest of the punishment, or after the date on which the limitation period for the enforcement of the penalty execution prior to be realized.

4. Post-executory Recurrence Is that type of recurrence of which exists when, after the condemned has been carried out in the entire punishment prior to or after the prescription of the penalty execution or the decree untied committed a new, criminal offense. Recurrence postexecutory is subject to Article 41 paragraphs 1 and 2 from the new criminal Code according to which "when after the execution of a punishment with imprisonment of more than one year and up to rehabilitate or expiration of the rehabilitation committed the condemned again a crime with intent or with intent exceeded, for which the law provides for the imprisonment penalty of one year or higher". Require such to be met, for the existence of the first term of post-executory recurrence, the following conditions: - minor should be executed in the entire punishment that has been the subject of the first convictions or it is to be regarded as and performed, the penalty which has been more than one year or imprisonment for life. Does not submit the relevant method of carrying out the death penalty, it can take place "under detention, in liberty, with the execution of sentence at the place of work, etc.".[6] Also, the first term of the magazine postexecutory may also consist in a punishment that was pardoned wholly or partly or for which the limitation period for the enforcement of the penalty execution has been accomplished, how will may also consist of the prescription of the penalty; - deed for which it has carried out the punishment to have been committed with intent or with intent exceeded; - penalty performed or considered as carried out not to be part of the sentence which does not involve the condition of relapse. As regards the second term of postexecutory magazine, it must meet the following conditions:

5. International Recurrence Represents the situation when the first term of the magazine is a judgment of sentence pronounced abroad. Thus, the international recurrence has the following characteristics: - is binding because the law stipulates that in establishing the status of recurrence is taken into account and by the condemnation pronounced abroad, than the old provision which a bonus to the optional; - is double incrimination, whereas the deed for which it has delivered a condemnation abroad must have a correspondent in the legislation of our country. Thus, the text of the law makes the taking into account of condemnation taken abroad by the fact that it should be laid down as criminal offenses and the National Romanian and such determination must be acknowledged by the Romanian court; - judgment of sentence pronounced abroad is recognized by a court in our country. „The Recognition could be made on the accuracy with which path in the framework of a criminal trial in progress or on the way home by the court seized in this end"[7]. 6. The impact of recurrence on the criminogenic phenomenon

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In criminological acception, the concept of recurrence of committing new offenses, even if the persons concerned have or have not been issued by the presence or not of keeping records of criminal proceedings, of responsibility or criminal punishment, the time elapsed since the committing of criminal offenses, etc. Is relevant if the offense was the previous known by the authorities and if it has been the subject of a reaction to the appropriate legal. Among criminologists to accept such an idea whereas they have to explain not only the criminal conduct of the individuals but also the cause of her recurrence, in so far as the conduct of the previous criminal has been the relevance and has drawn on the way the consequence of the measures provided for by law. The typology of recidivist convicts plays a particularly important role in the assessment of the crime status recidivist convicts, the criminological theory the following types of recidivists: antisocial recidivists, situational recidivists and asocial recidivists.

In respect of post-convictional recurrence the new Criminal Code establishes that the first time the existence of a final judgment of the court of the imprisonment penalty of more than one year as compared to the 6 months in the old grief. At the second period shall be one year or greater than the truth of old where the punishment had to be only of more than one year. Sanctionator regime in the case of the magazine is established in the form of arithmetic overlapping of the penalties laid down in relation to the old penal code which made reference to legal the cumulating provided for in the case of the contest of crimes with the possibility of applying a current of punishment. In conclusion, the addition to the old regulatory authorities consider that the new regulations in the magazine is aimed at the application of a sanctionator worsened the person committing crimes with a degree of social threat raised, paying at the perverseness of those who a person committing crimes with a degree of social threat reduced through the inclusion of the latter under the supervision of this institution. After the entry into force of the new Penal Code can be noticed a decrease in the number recidivist convicts which strengthens the belief of the legislature that the amendments made in terms of recurrence of the slowly, slowly attain their purpose.

7. Conclusions New rules relating to the recurrence of the emphasizes the fact that the legislature has given up on the distinction between the recurrence of the high and low recurrence incriminating one single form of recurrence of the closest to the recurrence of the sea from the old penal code.

References [1] Cocaina A., Recurrence in criminal law, edition reviewed and added, Publishing house LUMINA LEX, Bucharest, 1995, p.24 [2] Buzea N.,., Criminal offense and culpability, Alba Iulia, 1944, p.715 [3] Mateut Ghe., Recurrence in theory and criminal practice of Law, Publishing house LUMINA LEX, Bucharest, 1997, p.51 [4] Bulai C., Manual of criminal law. The general part, Volume II, All Publishing House, Bucharest, 1997, p.226 [5] Pasca V., Regulation of the paper in the Criminal Law. The "Law", no.9/2010, p.13 [6] Boroi Al Criminal law. The general part. Under the new Criminal Code, Publishing House C.H.Beck, Bucharest, 2010, p.231 [7] Pavaleanu V.,Procedural Criminal Law, Volume II, Publishing House Lumina Lex, Bucharest, 2004, p.540

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LEGAL LIABILITY REGARDING THE REGIME OF ORGANIZATION, SYSTEMATIZATION AND SIGNALIZATION OF ROADS IN ROMANIA Lucian Ioan TARNU “Lucian Blaga” University of Sibiu, Romania [email protected] Abstract: People and society`s life can not be understood out of conduct rules that must be respected by everybody. Legal liability represents both a fundamental form of law and a basic component of the whole legal system. One of the fundamental principles of law is liability. Those who break legal rules alter laws and citizens` legal rights and interests. They disturb, sometimes in a serious way, public order and good going, thus, endangering the most important values of society. Either the frequency or severity of breaking laws or their negative impact on social balance and legal order oblige law makers to both set up accurately the limits of liability regarding these commitments and penalize them promptly. Road safety refers to the whole acts and measures submitted in order to improve people`s conduct, vehicles and road infrastructure. All these will generate safe conditions for everybody who uses public roads. In this way, the risk of being involved in car crashes with severe consequences will be diminished.

Key words: liability, infringement, guilt, systematization, signalization. The content of this special type of legal report consists of: the state's right to apply sanctions under legal rules to people who violated law and the obligation of these people to respect legal sanctions, in order to restore the rule of law.

1. General issues regarding legal and criminal liability and infringement Legal liability was defined in the legal theory as "a legal situation of express warning of certain law issues about the legal consequences of breaking legal rules and, if the actual norms are not respected, about the application of constraint of state corresponding to the constant law breaking” [1]. Under these circumstances, legal liability acquires a very special significance, because its meaning is to ensure stability and order in society [2]. Legal liability is a legal relation created by legal rules between the person who violated law and the State which is represented by law enforcement authorities [3].

2. Conditions of legal liability Legal liability can be generated only if three conditions are met as follows: misconduct, fault and causation. Misconduct represents the concrete behavior – action or lack of action - by which a person violates the law. Illegal character is determined only in relation to the limitation contained in legal rules. Guilt means the mental attitude of somebody who commits an illegal deed


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related to both the deed he commits and the consequences of the deed [4]. Other authors in law field define guilt as "the mental attitude of somebody who, committing with an unconstrained will a deed that represents a social danger, had, at that moment, the representation of deed and of its consequences that was socially dangerous or, although he did not have the representation of deed and its consequences, he had the real, subjective possibility of this representations [5]. The forms of guilt are the following: intention, fault, exceeded intention. Intention, is divided into two forms namely, direct and indirect intention. Fault, has two forms, meaning negligence and imprudence Exceeded intention As the legislator did not define clearly the exceeded intention, this task falls under the legal doctrine [6]. So, we can define exceeded intention as a mixed form of guilt which brings together subjectivity of the same infringement, intention and fault, and which occurs when perpetrator, by his deed, foresees, follows or accepts the production of a particular outcome which is socially dangerous. But in reality, it produces a more serious effect or an extra one that perpetrator has foreseen, but has not accepted, believing without reason, that it will not happen, or he has not provided, although he should or could have to [7]. For example, there will be an exceeded intention if perpetrator intends to injure a person. The victim is punched, falls down, hits the road and dies. In legal practice in Romania, there are also cases in which Courts take into consideration infringement referring to injuring the body causing death afterwards [8]. Causal relation between the committed deed and its outcome, is the third essential condition for legal liability, seen as an objective condition.

constraint, generated as a result of infringement [9]. Penal liability is a set of rights and reciprocal obligations of subjects related to penal law, which is achieved primarily by the State constraint to perpetrator, under the conditions and forms provided by law, in order to restore legal order and socially integrate perpetrator [10]. On one hand, it is established between the State and perpetrator, and on the other hand, it is the result of disregarding the provisions of legal rules. Infringement, once committed, is the only and sufficient basis for penal liability. It is sufficient to establish the existence of an infringement so that the penal liability should be generated. The definition of infringement is found in the Penal Code as follows: "infringement is the deed that falls under penal law, committed with guilt, unreasonable and imputable to the person who commits it [11]. Infringement is the only basis of penal liability [12].” The active subject of penal liability is the State, because it is empowered to exercise constraint on perpetrator who is considered a passive subject because penal sanction is applied to him; The passive subject of penal liability is always the active subject of the infringement, meaning that the individual is guilty of both committing and participating at an infringement; Penalty, as typical sanction of penal law, differs from all other legal penalties because it is the hardest form of constraint, because it may refer to both individual`s property and freedom. Penal sanctions, no matter if they refer to a fine, confiscation, imprisonment, etc., do not have a recovering character. They aim to prevention and justice. The identification of penal liability is done by the identification of infringement by the judicial specialized authorities of the State. Removing penal liability should not be considered an arbitrary act of will of the State authority, it is strictly related and

3.Penal liability, a form of legal liability Penal liability is a form of legal liability and it represents is a legal relation of

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determined by general and specific causes. By adopting the new Penal Code, starting on January, 2nd, 2014, it was introduced a series of new institutions beside the other national legal ones. There was brought also a number of important changes to existing institutions according to the previous regulation. Thus, there were reformed the causes of removing penal nature of the deed, the legislator opted for dividing them into two categories: 1. justifying causes – they are circumstances which remove the third of the essential characteristics of infringement, the unjustified character respectively; the unjustified nature of the deed falling under the penal law assumes that it is not permitted by law, in other words, it is illegal. 2. not-imputable cases – they are circumstances which remove the fourth of the essential characteristics of the infringement, meaning imputation, respectively; not-imputable causes are personal causes, which do not occur to participants, excepting the forcing cases. They will be in the benefit for only the person who acts as such. The justifying causes [13] are the following: self-defense; state of emergency; exercise a right or achieve an obligation; the harmed person`s approval; Not-imputable causes are the following: physical constraint; moral constraint; imputable excess; perpetrator`s underage; irresponsibility; intoxication; error; forcing event. 3.1. Penal liability of legal persons [14] The Penal Code of Romania regulates very clearly in the Title VI, Chapters I, II and III, penal liability of legal persons. Thus, the conditions of legal liability are presented in the following statement: "Legal persons, except the State and public authorities, is criminally responsible for infringements committed in order to carry out the activity or in the interest or on behalf of the legal person" [15].

Also, the legal text specifies that "public institutions are not criminally responsible for infringements committed in the exercise of an activity that may not fall under the private domain [16]”. Penal liability of legal persons does not exclude penal liability of natural persons who contributed to committing the same deed [17]. Penalties for legal persons are main and complementary. The main penalty is the fine. The additional penalties that can be applied to legal persons are the following: dissolution of legal person; suspension of whole activity or of one activity of a legal person for a period from three months to three years; closure of some work spots of legal persons for a period of three months to three years; prohibition to participate at procedures of public procurement for a period of three months to three years; place legal person under judicial supervision; display or publication of the judgment of conviction; Infringements of road traffic represents all the deeds, by whose criminality, it is protected mainly social values that are represented by security and traffic safety on public roads, defense of life, integrity and health of people and the defense of property of individuals and legal persons . The terms of "Infringements against the security of road traffic" or "Traffic infringements" are no longer an intellectual creation or jurisprudence because, starting with January, 2nd, 2014, when the new Penal Code is enforced, it is known that our penal code includes at the Title VII "Infringements against public safety" and Chapter II "Infringements against traffic safety on public roads” the regime of traffic infringements. These antisocial deeds that represent infringements regarding the organization, systematization and signalization of roads, are provided in Articles 339 and 341 of the Penal Code.

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In this respect, it is not irrelevant if they are in perfect condition or have a certain degree of usage, the essential condition being that they are usable and visible. Also, in this variant of infringement, the material object can be represented even by roadway, as an essential element of public roads. The material object of infringement may be public roads themselves as mentioned in paragraph 3, Article 339 of the Penal Code. We believe that the legislator intended to include in the material object all the traffic signalization means, obliging drivers to make certain maneuvers or prohibiting the change of the driving directions. Any change in marking an intersection can endanger safety. The "road arrangement" means any object located on the roadway or in its area, designated to regulate traffic movement [19]. "Vehicle" [20] means a mechanic system moving on the road, with or without engine, normally used for transporting people and/or goods to perform services or works. The material object can be structured through the creation of obstacles on roadway. The obstacles that can be created were not individualized by the legislator, due to which any change in roadway may be considered obstacle if it endangers road safety. Subjects of infringements a) an active subject of infringement may be any natural person who meets the general conditions of penal liability, except those who have got the authorization issued by the competent authorities for such activities. Participation is possible in all its forms as follows: the same authors, instigation, complicity. Under the new Penal Code, active subject may be a legal person [21]. b) a passive subject of this infringement is the State as guarantor and permanent protector of social values protected by law. Also, the passive subject may be any person whose life, physical integrity or

4. Infringements regarding the organization, systematization and signalization of roads 4.1. Article 339 of the Penal Code 4.1.1. The legal content of infringement Infringement falling under the Article 339, paragraph 1 of the Penal Code consists in: "install road signals or change their position, without a permit issued by the competent authorities could mislead road users or hinder traffic on public roads". In paragraph 2, Article 339 of the Penal Code, it is provided another way of committing an infringement that is "drivers` participation at unauthorized vehicle competition on public roads". In paragraph 3, Article 339 of the Penal Code, it is provides that "the penalty provided in paragraph 2 can be applied to placing obstacles that hinder or put in difficulty the traffic on public roads, if it endangers traffic safety or affects the right of free movement of other road users". In paragraph 4, Article 339 of the Penal Code it is added a way of producing this infringement, namely: "leaving unsupervised on public roads a vehicle carrying goods or dangerous substances. This is penalized with imprisonment from 1 to 3 years." 4.1.2. Preexistent conditions Object of infringement [18] a) the specific legal object is represented by those social relations whose occurring, normal progress and development depend on security and safety on public roads. b) the material object of infringement is the organizational elements, signalization and systematization of traffic on public roads. Thus, as provided in paragraph 1, it is about the subject material and it consists of "traffic signalization means". In order to be considered a material object, these means must be legally placed, not undergo a change or injury in their substance, potential and possibility of usage.

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health is in danger or right to free movement is altered [22]. 4.1.3. Constitutive content [23] Objective side a) the material element of the objective side of the infringement falling under Article 339, paragraph 1 of the Penal Code, consists in either installing road signalization means or changing their positions, without a permit issued by the competent authority in this area. The installation or similar installations should not cover road signalization means, which could mislead road users. By changing road traffic signalization means, that do not have to correspond to their initial destination, thus, creating rights and obligations regarding public roads movement for other road users than those referred to when the installation was made. In the variant mentioned in paragraph 1, Article 339 of the Penal Code, the material element consists of either installing road signalization means or changing their position. The existence of infringement is conditioned by misleading road users, making traffic on public roads difficult, even producing a crash that may have been caused by the installation or change of the position of the traffic signalization means. As far as paragraph 2, Article 339 of the Penal Code is concerned, the material element is the participation, as a driver, at authorized competitions on public roads. The participation at an unauthorized competitions means that the latter take place on public roads to endanger road safety or affect the right of free movement of other road users. In paragraph 3, the material element consists of placing obstacles on the public road. The essential requirement is not to hinder or make difficult the movement on the public roads if this kind of obstacles endangers traffic safety or affects the right to free movement of other road users. As far as infringement stipulated in paragraph 4 is concerned, the material

element consists of leaving on the road unsupervised vehicles carrying dangerous goods or substances. b) essential requirements In order to reach the objective side of infringements stipulated in paragraph 1, Art. 339 of the Penal Code, action or actions of installing and modifying traffic signalization means should be carried out or done without the authorization issued by the competent authorities. If these activities are authorized by the competent authorities, the deeds will not be considered infringements. As far as the paragraphs 2, 3 and 4 are concerned, action or actions must take place on a public road in line with the content of Art. 75 of the Government Emergency Ordinance no.195/2002, republished. This requirement also applies to infringements stipulated in paragraph 1. The requirement mentioned in paragraph 4 is that vehicles should carry goods or dangerous substances. c) immediate consequence As far as infringement stipulated in paragraph 1, Article 339 of the Penal Code is concerned, the immediate consequence refers to a negative transformation of the means of organization and systematization of usage capacity they had before committing infringement and, thus, road users are misled, the traffic is hardened and safety of road traffic is endangered. The immediate consequence of infringement referred to in paragraphs 2, 3 and 4, Article 339 of the Penal Code, is putting in danger traffic safety by hindering traffic on public roads, by altering the free movement of road users by placing on public roads some objects or vehicles, by participating at unauthorized contests or competitions or by leaving unsupervised vehicles that transport goods or dangerous substances. d) casual relation Between any of the actions that can form the material element and the immediate consequence, there must be a casual relation so that an infringement occurs.

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Subjective side Infringement is committed only intentionally, directly or indirectly. If the deed is committed by fault, this is no longer an infringement, the legislator expressly providing the necessity of the intention in committing it. 4.1.4. Forms. Ways. Sanctions Forms a. Infringement, in all its variants, can exist in all imperfect forms of infringement, but the preparatory deeds and the attempt are not penalized by penal law. b. The committing of infringement. Infringement is committed when the action came to the end and the immediate consequence was produced, i.e. the safety of road traffic was endangered by misleading the traffic participants or hinder the traffic. Thus, there was a crash or the right to free movement of other road users was altered. c. Exhaustion. Infringement can be committed repeatedly, so the exhaustion occurs once with both committing the final deed of the penal activity and eliminating the exposure to danger. Ways. Infringement has several ways of achieving, i.e. installing or modifying traffic signalization means in paragraph 1; participation at unauthorized competitions in paragraph 2; positioning obstacles in paragraph 3; leaving on the main road an unsupervised vehicle carrying dangerous products or substances in paragraph 4. Sanctions As far as infringement referred to in all variants in Art. 339 of the Penal Code is concerned, penalty is imprisonment from three months to two years or fine. 4.2. Article 341 of the Penal Code 4.2.1. The legal content of infringement An infringement falling under Article 341, paragraph 1 of the Penal Code refers to "carrying out some building works, modification, modernization or rehabilitation of public roads or rearrangement of the access to public roads without a building permit issued in

compliance with law or without respecting the conditions stated in the permit." The form stipulated in paragraph 2 of the Penal Code states that "the placement of buildings, panels or advertisements on the road without building permit issued in compliance with law or without respecting the conditions stated in the permit, if, due to this, it is generated a danger towards the road traffic safety”. According to paragraph 3, Article 341 of the Penal Code, it is established a penalty for "person authorized by the administrator of railways who does not take the proper measures for the signalization of the railway level crossings". According to paragraph 4, it is established a penalty for "person authorized by the administrator of public roads or by the performer of works on the roadway, who does not take appropriate measures for signalization of obstacles or works on public roads, if due to this there happened a traffic accident." 4.2.2. Preexistent conditions Object of infringement a) the legal object of infringement is the social relations regarding legal provisions concerning the authorization or approval of issuing the permit for building, modernization or rehabilitation of public road or arrangement of the access to public roads; also, the legal object is represented by the location of buildings, panels or advertisements on the road, violating the conditions set by police specialized in arranging access to public roads and failing to take measures to signalize the railway level crossings or modifying this signalization without the approval of the specialized police. b) the material object of infringement consists of the authorization issued without the police specialized approval, the building sites placed on the road without respecting the conditions laid down by police specialized in arranging road access or the inadequate signalization at the

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railway level crossings, all of these being elements of organization and systematization of the road traffic. Subjects of the infringement a) the active subject of infringement referred to in paragraph 1, Article 341 of the Penal Code can be any person who meets the general conditions of penal liability and who is involved in building site works, modification, modernization or rehabilitation of public roads or arrangement of access to public roads without building permit issued in compliance with law or without respecting the conditions mentioned in the permit. Also, the active subject can be a qualified subject. This quality is specific only to the persons authorized by law to issue permit for building site works, modification, modernization or rehabilitation of public roads or arrangement of the access to public roads. These persons are the representatives of the Ministry of Transport, county or local councils, in their capacity as administrators of public roads. In line with the variant provided in paragraph 2, an active subject may be any person who meets the general conditions of penal liability and who places building site panels or advertisements on the road without building permit issued in compliance with law or without respecting the conditions of the permit, if, by this, road traffic safety is endangered. Participation is possible in all its forms (the same perpetrator, instigation, complicity). An active subject of infringement as referred to in paragraph 3, Article 341 of the Penal Code is a qualified subject and he can only be authorized person who has among job responsibilities the measures taking to signal railway level crossings. Referring to paragraph 4, the active subject of infringement is also a qualified one represented by an agent of the public road administrator, be him the authorized person or the building site work performer who breaks the law by lack of action or by

not taking appropriate measures for signalization of the obstacles or building site work on public roads. b)the passive subject is the state as guarantor and protector of social values protected by law. At the same time, the passive subject may be any natural or legal person who was harmed as a result of infringement. 4.2.3. Constitutive content Objective side a) the material element of the objective side of infringement referred to in paragraph 1, Article 341 of the Penal Code, is the act of "performing building works, rearrangement, modernization or rehabilitation of public roads or arrangement of the access to public roads without building permit issued in line with law or without respecting the conditions mentioned in the permit”. Issuing a building permit is expressly regulated by law and requires, at its turn, a series of permits and authorizations from public institutions such as the authorities administrating energy, gas, water, sewerage, sanitation, environmental protection, etc. An important and also a fundamental condition is that of obtaining the permit and traffic police approval. The issued permit must be for building site works, rearrangement, modernization or rehabilitation of public roads or arrangement of the access to public roads. The material element of infringement provided in paragraph 2 is materialized by placing buildings, panels or advertisements on public roads without building permit issued in compliance with law or without respecting the conditions stated in the permit, if, thus, safety road is endangered. This can be achieved only through action. The material element of infringement referred to in paragraph 3 may be accomplished both by action and lack of action. The action materializes in the change of the signalization of the railway level crossings without the permit of traffic police.

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Also, the material element is achieved even if there is the specialized police consent, but, changing the signalization in another way than the one the consent was given for. The lack of action materializes in not taking measures for signalization of the railway level crossings. The signalization by different means does not eliminate the production of the material element of infringement. In this case, it falls under paragraph 1, Article 339 of the Penal Code. Only one activity from those mentioned above is sufficient so that an infringement occurs. The material element of infringement referred to in paragraph 4 is similar to the one mentioned in paragraph 3. The only difference between them refers to the road administrator or a person authorized by the administrator, who can be an authorized person or a performer of building works. The action materializes in the signalization of the obstacles or of works on public roads without the traffic police approval, if, thus, a crash occurs. b)essential requirements. In order to reach the objective side of infringement as referred to in paragraphs 1and 2, Article 341 of the Penal Code, it is mandatory that the activities foreseen in the legal text to be done without the existence of the building permit. The permit issued by traffic police must be in writing, clearly stating the activities, the way and their deadlines for which the consent is issued. Exceptionally, on emergency situations, the consent may be given verbally in order to start the activities. Afterwards, it will be confirmed in writing. If the activities that represent the material element of the objective side develop with the consent of traffic police, the deeds are not considered infringements. This requirement shall not apply to infringements referred to in paragraph 3 and in the first sentence of paragraph 4 of the Article.

c) immediate consequence of infringement referred to in paragraphs 1 and 2 is the danger of the traffic flow and safety due to the conditions imposed by the building site permit for the access to public roads in case of building sites located in the road area. The consequence is conditioned by a permit that enables the performance of building works, rearrangement, modernization or rehabilitation of public roads, arrangement of the access to public roads, placement of panels or advertisements on the road. It occurs when the performer of such works gets the permit, thus gaining the right to perform such work. In line with the variant mentioned in paragraph 3, the immediate consequence is the existence of a railway level crossings unmarked or improperly flagged. In line with the variant mentioned in paragraph 4, the immediate consequence is the production of a crash lest law should distinguish expressly the seriousness or consequences of the crash. d) casual relation Between any of the actions that can form the material element and the immediate consequence, there must be a casual relation referring to the production of infringement. The specific actions of infringement do not always produce immediate consequence. In this case, they represent contraventions, being prosecuted and penalized in line with the contravention law [24]. Subjective side In all the variants of infringement referred to in Article 341 of the Penal Code, the committing of infringement must be intentional, direct or indirect. The activities that form the material element of infringement are not likely to be committed with fault. 4.2.4. Forms. Ways. Sanctions Forms a)Infringement, in all its variants, can take of all forms of imperfect infringement, but

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As far as infringement mentioned in Article 341, paragraph 1 of the Penal Code, penalty is imprisonment from six months to three years or a fine. For any of the variants specified in paragraphs 2, 3 and 4, penalty is imprisonment from three months to one year or a fine.

the deeds of preparation and the attempt are not punishable under penal law. b) The committing of infringement. Infringement is committed when the execution of criminal deed came to its end and the immediate consequence occurs. This means that the permit for one of the works listed above was issued, the flow and security of traffic was endangered or there was a railway level crossing unmarked or incorrectly signaled. c) Exhaustion. Infringement can be committed repeatedly, in which case exhaustion occurs once with committing the final part of the criminal deed or eliminating the exposure to the created danger. Ways Infringement has several legal ways, namely: performing some building works, rearrangement, modernization or rehabilitation of public roads or arrangement of the access to public roads; placement of buildings, panels or advertisements on the road; not taking appropriate measures for the signalization of railway level crossings; not taking appropriate measures for the signalization of obstacles or of road works. Each of these legal ways can meet a variety of factual ways. Sanctions

5. Conclusions Coding traffic infringements supposes and generates such a thinking which is homogeneous, correct and related to principles and rules clearly defined, interrelated and harmonized with legal instruments, concepts and international standards in this field. In our opinion, this new regulation is a good and also efficient in terms of research and achievement of resolution, and the main consideration for which they were transferred to a special law and introduced the new Penal Code is that of treating them as the deeds of a high social danger. The experience has shown that in the Penal Code should be included only those accusations that should be less amended. Some of the deeds that are against laws concerning the organization, systematization and signalization of road traffic represent a serious danger to road safety and flow, which leads that they should be established and penalized as infringements.

References [1]

Gliga, I., Aspects Concerning the Definition of Legal Liability, in Studia Univesitatis, Babes Bolyai, Series jurisprudentia, Cluj Napoca, 1970, p. 98-99; [2] 9RLFX &RVWLFă 9RLFX $GULDQD &DPHOLD General Theory of Law, Universul Juridic Publishing House, Bucharest, 2013, p 257; [3] Ibidem, p. 257; [4] Ibidem, p. 258; [5] 'REULQRLX93DVFX,/D]ăU91LVWRUHDQX*KH0ROQDU,%RURL$Penal Law, General part, Atlas Lex Publishing House, Bucharest, 1994, p. 96; [6] Ibidem, p 103; [7] Ibidem, p 103; [8] The Supreme Court , Penal Section, sentence no. 434 from March, 5th, 1987. [9] 9RLFX&RVWLFă9RLFX$GULDQD&DPHOLD, cit.ed, p 259; [10] 'REULQRLX93DVFX,/D]ăU91LVWRUHDQX*KH0ROQDU,%RURL$Penal Law, General part, Atlas Lex Publishing House, Bucharest, 1994, p. 316;

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[11] [12] [13] [14] [15] [16] [17] [18]

[19] [20] [21] [22] [23] [24]

Art. 15, paragraph. 1 of the Penal Code; Art. 15, paragraph 2 of the Penal Code; Title II, Chapter II, art 18-22 of the Penal Code; 9RLFX&RVWLFă9RLFX$GULDQD&DPHOLDcit.ed, p 262; art 135, paragraph 1 of the Penal Code; art 135, paragraph 2 of the Penal Code; art 135, paragraph 3 of the Penal Code; Tarnu, Lucian Ioan, Legal Aspects legislative of Systematization and Signalization of Road Traffic in Romania, „Lucian Blaga” University in Sibiu Publishing House, 2016, p. 115; Turianu, C., Road Traffic Infringements, All Beck Publishing House, Bucharest, 2000, p.119. Breban, V., Dictionary of the Romanian Language for Internal Usage ùWLLQĠLILFă úL (QFLFORSHGLFă3XEOLVKLQJ+RXVH%XFKDUHVWS See the section above refering to legal liability of legal person; art. 25 of the Constitution of Romania; Tarnu, Lucian Ioan, cit.ed, p. 116; The Government Ordinance no.2/2001, regarding the legal regime of contraventions;

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International Conference KNOWLEDGE-BASED ORGANIZATION Vol. XXIII No 2 2017 CONTRAVENTION LIABILITY CONCERNING THE REGIME OF ORGANIZATION, SYSTEMATIZATION AND SIGNALIZATION OF ROADS Vasile TUDOR Police Inspectorate of Sibiu County, Romania [email protected] Abstract: The guideline explains how to prepare your paper in printer-ready format for the 23rd International Scientific Conference “Knowledge Based Organization” (KBO), so that its appearance is clear and consistent with the other papers in the proceedings. It includes guidance on layout, illustrations, text style and references, presented exactly as your paper should appear. It is highly advised to use KBO template and strictly follow the instructions to prepare your paper in Microsoft Word format (.DOC). The abstract portion is a narrative presentation without references. The abstract should give a concise and informative description of the paper, in 200 words, written to interest the reader as well as for information retrieval.

Keywords: liability, contravention, road safety, systematization, signalization By defining contravention, it is established the rule of law under which any deed that will be prosecuted as such must meet the characteristics which differentiate it from other antisocial deeds, i.e. criminal infringements or misconduct. From the definition of specified provisions of the Government Ordinance no. 2/2001, concerning the legal regime of contravention, there are mentioned the following essential features [4]: a. commitment of deed is done with guilt Guilt reflects the perpetrator`s subjectivity refering to both the committed deed and its consequences. Guilt is the result of interaction of two factors: consciousness and willingness. As an essential characteristic of contravention, guilt has, in the same parameters as in the criminal law, two main forms, namely: intention and fault. Intention is the main form of guilt as defined and provided in art.16, paragraph 3, of the Penal Code and it represents the perpetrator`s psychological attitude towards

1. Introduction Considering the importance of the legal institution of contravention under amendments of the contravention law, the legislator defines this act by its essential characteristics. Thus, according to art.1 of the Government Ordinance no. 2/2001 as amended and approved by the Law no. 180/2002 [1]: Contravention Law defends social values, which are not protected by criminal law. Contravention is defined as being: "the deed committed with guilt, established and penalized by law, by the Government Ordinance or by the decision of the Local Council of the village, town, city, the sectors and the Municipality of Bucharest, the County Council or the General Council of Bucharest"[2]. Therefore, by defining the general term of contravention, the legislator highlights the aspects that characterize this antisocial deed, as follows: a. material, Humanc, social, moral, and legal, because it represents a violation of legal rules [3].


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the deed and its outcome. Within the doctrine and legislation, intention is known in two ways: direct and indirect. Fault is the second form of guilt and it is manifested under two ways: ease and negligence. b. the second main characteristic is that the committed deed must be foreseen and penalized as a contravention by law, by the Ordinance or Decision of the Government, of the Local Councils of villages, towns, cities, of sectors and of the Municipality of Bucharest, of the General Council of Bucharest, as a requirement of the principle of legality of incrimination and penalty of a deed. c. the third characteristic, which, although it does not result from the definition stipulated in the Government Ordinance no.2/2001, refers to the social danger that distinguishes it from infringement.

contravention, there can be applied one main penalty and one or more complementary ones. Warning and contravention fine could be applied to any perpetrator, be him natural or legal person. Making an activity in the benefit of the community can be applied only to individuals and not to legal persons. Contravention fine has an administrative character. Making an activity in the benefit of the community can be established only by law and only for a period that cannot exceed 300 hours. The penalty provided above sets alternatively with the fine. 3. Regulation of contraventions related to organization, structure and systematization of road traffic Legal regulation of the deeds that violate regulations regarding organization, systematization of road traffic is given by the following legal documents: - the Government Ordinance no. 43/1997 regarding the legal regime of roads, updated [8]. - the Government Emergency Ordinance no.109/2004, updated, regarding road transportation [9]. the Government Decision no.1777/2004 introducing traffic restrictions in some sectors of European roads (E) for vehicles other than those carrying only people on Saturdays, Sundays and official holidays; - the Government Ordinance no.15/2002 regarding the usage and transit on the national road network in Romania; - the Government Decision no.525/1996 for approval of the General Urban Planning Regulation; - Methodological Norms concerning the conditions of closing or imposing restrictions on movement in order to execute works on the public roads and/or to protect the road, approved by Joint Order of the Ministry of Domestic Affairs and the Ministry of Transport no.1112/411/2000; - Guidelines for preventing and combating snow blocking on public roads

2. Classification of penalties According to law [5], contravention penalties are main and complementary. The main contravention penalties are [6]: a. warning; b. contravention fine; c. perpetrator`s obligation to work for community; The complementary penalties are [7]: a)seizure of goods intended for, used or resulted from contraventions; b)suspension or cancellation, when appropriate, of the approval, agreement or authorization to get involved in an activity; c) closure of the institution; d)block the bank account; e)suspend the operations of the stakeholder; f)withdrawal of license or approval for certain transactions or/ for foreign trade activities, temporarily or permanently; g)dissolution and bringing the grounds to the initial estate. By special laws, there may be established other main or additional penalties. Complementary penalties are applied depending on the nature and how much serious the deed is. For the same

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with the indicative AND 525 - 2005, approved by Joint Order of the Ministry of Domestic Affairs and the Ministry of Transport no.1945/ 2005 - 1265/2006; - Norms concerning the arrangement of road junctions, published by the National Company of Motorways and National Roads in Romania S.A. in the Technical Road Bulletin year VI / no.4 / 2010; - the Government Ordinance no. 2/2001 updated, regarding the legal regime of contraventions [10]. These laws replaced in time the Decree no. 328/1966 [11], republished in 1984, regarding the access on public roads, thanks to the new socio-economic conditions after 1989, as the deeds stipulated by this Decree were no longer current or obsolete. New legislation on road traffic, however, took much of contraventions which were provided and penalized by the previous legislation, setting, meanwhile, other penal deeds and contraventions, and more severe sanctions as well. To these laws there are applied the principles and provisions of the Government Ordinance no.2/2002 regarding the legal regime of contraventions [12], amended by the Law no.180/2002 [13]. In the spirit of these legal rules, one considers contraventions of the regime of systematization and signalization of roads, those antisocial deeds committed with guilt, that violate social relations that protect the safety and the flow of road traffic through means of organization and systematization of road traffic. If they are not committed in such conditions, according to criminal laws, they are considered infringements.

and objective side, subject and subjective side. Object of contraventions [14] The overall objective of these contraventions refers to the social relations regarding the organization, systematization and signalization of road traffic. In case of committing any contravention by damaging or endangering their social relations, it is endangered the conduct in terms of flow, security and safety of road traffic, and, implicitly, the damage of the interests of all road users. Specific object of each contravention results from their content which is apparently legal. It can consist of the good development of the activities of the traffic police on: the documents authorizing works and building sites in the area of public roads, the road signals appropriate for the purposes of good flow of road traffic, thus keeping public roads in perfect viability conditions, etc. Objective side The objective side of these contraventions is the illegal action or lack of action that leads to endangering the road traffic in terms of flow and safety. Illegal action consists of committing a deed against law. Examples may include: placing, on public road, buildings, panels or devices that may be confused with road signs; gluing posters, signs or inscriptions on either road signs or devices for road signalization, or on their piles, etc. Illegal lack of action occurs when a person does not comply with his obligations according to the rule of law. Subject of contraventions [15] The subject of contraventions related to organization, systematization and signalization of road traffic can be both natural and legal person who commits a contravention deed. So that a person would be the subject of such contraventions, he must fulfill the following general conditions: to be already 14 years old; to be responsible; to have freedom of decision and action.

4. Components of contraventions regading organisation, signalization and systematisation of road traffic Analyzing the contraventions related to organization, signalization and systematization of road traffic, there can be distinguished objective and subjective aspects that are reflected in every deed having four components, as follows: object

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The subject to these contraventions can be a legal person, especially the Ministry of Transport through the National Company of Motorways and National Roads, county or local councils in their capacity as administrators of public roads. Since most of these contraventions relate to the activity of legal persons with responsibilities in the organization and systematization of road traffic, these activities could be summarized as follows: - installation, implementation and maintenance of both road traffic signs and equipment for traffic safety and keeping their statistics; maintaining permanently road viability in standard technical estate; - order the immediate measures to eliminate the causes of road incidents due to inadequate technical equipment configuration or condition of the road; - clearing up, cleaning and restoring the road to its initial condition in case of traffic events; appropriate signalization and achievement of road arrangements in case of execution of works on roads that require movement restrictions and removing all obstacles that may affect the safety and flow of road traffic. Subjective side As a component of contraventions, the subjective side refers to the perpetrator`s mental attitude towards the committed deed and its consequences. The main component of the subjective side is guilt with its forms. As far as contraventions related to the organization, systematization and signalization of road traffic are concerned, this component takes the form of direct or indirect intention, these contraventions may not be committed with fault.

Causes that eliminate the contravention character of deed. Since to contraventions related to the organization, systematization and signalization of road traffic there can be applicable the provisions of the Government Ordinance no. 2/2001 regarding the legal regime of contraventions, the causes that eliminate the contravention character of deeds are the following: self-defense; unexpectedly occurred event; the state of emergency; physical or moral constraint; error of fact; irresponsibility; infirmity; complete accidental involuntary intoxication with alcohol; minority. These causes eliminate one of the essential characteristics of contravention, but they are identified only by the Court. Causes that eliminate the perpetrator`s legal liability These causes are exceptional circumstances when perpetrator`s legal liability and a sanction cannot be achieved. The causes eliminating perpetrator`s liability according to the law regulating the legal regime of contraventions in Romania are the prescription of the application of contravention sanction. The limitation period for applying the sanction is 6 months from the date when the deed was committed. If contraventions continue, the period of 6 months starts from the date infringement was established. The execution of contravention fine shall be prescribed if the report of contravention was not handled to the perpetrator in one month from the date of application of the penalty. 6. Practical aspects of the application of the legislative provisions concerning the systematization and signalization of roads None of the legal provisions offer participants to the traffic, especially drivers, clear and precise information on certain particularities of public road traffic. One such example is that of the traffic in

5. Causes that eliminate the contravention character of deed or the perpetrator`s legal liability in case of contraventions refering to organization and systematisation of road traffic

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roundabouts. The large-scale implementation of these intersections in our country began approximately 5-7 years ago. From the outset, traffic in these types of intersections has posed great problems both to drivers and traffic officers. The most common situation and, at the same time, the one that generates the most traffic events is that of giving priority to changing direction. This situation, illustrated in Figure 1, unfortunately has different interpretations and not a few times, the one who thinks he is right is actually guilty of producing the event and vice versa.

roundabout intersections in Sibiu, new road surface markings appeared as they are also shown in the following picture.

Fig. 2. Example of marking at Sibiu roundabout intersections Source: [17] The effects of applying these new road markings appeared immediately. The majority of drivers positively appreciate the new markings because they approach logically the way of circling in the roundabouts. Also, in a very short time (2 months), road traffic events in these intersections have dropped by approximately 30%. As a first conclusion, it can be stated that the implementation of clear rules in legislation as well as the standardized adoption of explicit road markings will certainly lead to the reduction of road events and implicitly to increased traffic safety.

Fig. 1. Example of situation at the roundabout intersections Source: [16] What is really worse, in addition to the fact that there are no clear legal provisions for this situation, is that neither the driving schools, nor the traffic officers have a united approach. Analyzing this situation after last year, when the Romanian Standards Association issued a new technical regulation on road markings, markings that once applied would serve to clarify the classification better before entering a roundabout intersection, in which there are several traffic lanes, Sibiu Traffic Police initiated a meeting with the representatives of the national roads, the local administration and the representatives of the driving schools. Following the discussions, a new type of road surface marking has been agreed to reduce the legislative gap, to guide road users and, last but not least, lead to the reduction of road events. Thus, at the

7. Conclusions In addition to the change of the legal system concerning contraventions, it is required the emergence of a specialized body having the role of both coordinating and managing this stage, meaning the execution of contraventions, and representing the State regarding contraventions within the international cooperation. Thus, there raises the need to elaborate a strategy involving the stakeholders who have the role of prevention and control of antisocial deeds. This kind of strategy aims both the theoretical, legal and technical approach regarding the efficiency of the

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contravention system in Romania and its because any illegal action or lack of action adjustment to the requirements of the or the guity person will be legally European Union. responsible and, thus, he can be penalized. Contravention is an illegal deed, i.e. a deed The deed is and represents a material against the legal provisions. Establishing or substance of contravention. Without its prohibiting a particular conduct or behavior, existence, there is no contravention. Not legal rules target the achievement, defence every deed may constitute a material or guarantee of general or personal interests substance of contravention, but only the one that must be protected by the State. which presents specific features of this All the members of society are absolutely violation of law. obliged to obey these legal provisions, References [1] The Law 180/2002, published in the Official Gazette of Romania no. 410/25 .07.2001; [2] The Government Ordinance no.2/2001, regarding the legal regime of contravention, art. 1; [3] Legal norm of conduct with general and mandatory character, ellaborated and recognised by the state power in order to ensure social order that can be achieved by force of constraint of the State, if needed; [4] Tarnu, L.I., Legal Aspects of Systematization and Signalization of Road Traffic in Romania, „Lucian Blaga” University, Sibiu Publishing House, 2016, p. 173; [5] The Government Ordinance no.2/2001, regarding the legal regime of contravention, art. 5, paragraph 2; [6] Voicu, C., Voicu, A.C., General Theory of Law, Universul Juridic Publishing House, Bucharest, 2013, p 264; [7] Ibidem [8] The Government Ordinance no. 43/1997 regarding the legal regime of roads, updated, published in the Official Gazette of Romania no. 221 /29.08.1997 and approved by Law 82/15.04.1998; [9] The Government Emergency Ordinance no.109/2004, regarding road transportation, updated, published in the Official Gazette of Romania no. 1115/ 27.11.2004; [10] The Government Ordinance no. 2/2001 updated, regarding the legal regime of contraventions, approved by the Law no.180/2002 and published in the Official Gazette of Romania no.410/25.07.2001; [11] Decree no. 328/1966, regarding the access on public roads, republished in 1984; [12] The Government Ordinance no.2/2002 regarding the legal regime of contraventions, approved by the Law no.180/2002 and published in the Official Gazette of Romania no.410/25.07.2001; [13] Law no.180/2002, published in the Official Gazette of Romania no. 268 /22.04.2002; [14] Tarnu, L.I., Cit.ed., p. 174; [15] Ibidem, p. 17. [16] http://adevarul.ro/locale/brasov/marian-godina-explica-prioritate-giratoriu-schimbabenzile-ce-1_57a9fe745ab6550cb89c40e8/index.html [17] http://www.turnulsfatului.ro/2017/04/05/ce-spune-politia-despre-noile-marcajepremergatoare-sensurilor-giratorii-cum-se-circula-corect/

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CONFLICTS OF JURISDICTION IN CRIMINAL PROCEEDINGS – PRECONDITIONS AND POSSIBLE SOLUTIONS Ralitsa VOYNOVA “Neofit Rilski” South-West University, Blagoevgrad, Bulgaria [email protected] Abstract: The article examines issues, related to the conflicts of jurisdiction in criminal proceedings within the European area, where several countries simultaneously have the competence to conduct a criminal prosecution of the same facts. There have been studied several international legal instruments, postulating the compliance with the Ne bis in idem principle, respectively the prohibition of a second judgment towards the same person and for the same act. Discussed are various preconditions for conflicts of jurisdiction in criminal matters and possible solutions, according to the existing legal mechanisms in this field. Keywords: jurisdiction, conflict, cross-border crimes, transfer, Ne bis in idem principle orientation against the peace and security of humanity (genocide, wars of aggression and serious acts of terrorism), the transnational crimes are deeds, which beginning of performance, time of completion, results and perpetrators are linked to more than one country.” [3] In this sense, several countries, in which crimes or part of them are committed, are potentially interested in prosecuting criminal acts that affect their national security or other rights, protected by their national law. The Ne bis in idem principle has to comply with the mandatory prosecution principle, which is an expression of the sovereignty and which the countries could hardly give up.

1. Introduction The removal of borders within the European area, after adoption of the Schengen Agreement [1], facilitates the free movement of persons, services and goods. However, these positive globalization processes led to some negative phenomena, such as the appearance of organized criminal groups and increased transnational criminality. The crimes with an international element are acts that threaten and violate both the national and the International law, and therefore they are characterized by extremely high level of public danger. The necessity of appropriate mechanisms for countering criminality, going beyond national borders, laid the foundations for the development of an international criminal justice and transnational criminal justice. [2] In the theory, cross-border crimes are seen as a subject matter to the domestic criminal law with an international element. "Unlike international crimes, characterized by a global scale, due to their

2. Preconditions for conflicts of jurisdiction in criminal proceedings European practice in the criminal justice certifies that countries often face with situations, in which two or more of them have the competence to initiate criminal proceedings for the same or related crimes.


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In some cases, the criminal jurisdiction of the country is based on the principle of territoriality, e.g. when the crime is committed on its territory or, even if committed abroad, the harmful consequences have occurred in its territory. A duplication of jurisdiction may also occur in cases, where the offense is committed on the territory of several countries. These are the so-called “cross-border crimes”, such as human trafficking [4]; smuggling; money laundering; trafficking and distribution of drugs, etc. Of the same kind are the crimes, where the negative consequences have occurred in two or more countries, e.g. cyber-attacks, the use of nuclear, chemical or biological weapons. In other cases, the country is competent to apply its criminal law based on personal principle, e.g. when the crime is committed by a national or by a permanent resident in its territory. Conflicts of jurisdiction are possible also in cases of dual nationality of the alleged offender. There are also cases, where a country has jurisdiction to prosecute according to the universal principle, e.g. when the crime violates the peace and humanity, which are globally shared values. Thus, the countries’ criminal jurisdiction is based on different legal principles of applicability of their national criminal law. The right of every sovereign country to administer justice, in accordance with its national legislation, is limited by the obligation to respect and apply the international principles and legal rules in the criminal justice. Therefore, it is true that “Each right is placed into a system of legal obligations that determine the boundaries of its implementation in the legal reality. Their existence depends on the willingness of the right holder, of that of third parties and the state, and it is a consequence of their mutual respect.” [5]

Since the national law of the most European Countries does not always grant a res iudicata effect to foreign judgments, the main purpose of the European Institutions was to approve a multilateral treaty, in order to avoid the risk of double jeopardy in criminal matters. An explicit legal regulation of the principle of Ne bis in idem appeared first in Art.9 of the 1957 European Convention on Extradition, Art.53 of the 1970 Convention on the International Validity of Criminal Judgements and Art.35 of the 1972 European Convention on the Transfer of Proceedings in Criminal Matters. Later on, the provisions of Title III, Chapter III of the European Convention on the Implementation of the Schengen Agreement of 14 June 1985 (CISA) [6] were entirely dedicated to the prohibition of a second judgment towards the same person and for the same act. According to Art.54 of CISA: “A person, whose trial has been finally disposed of in one Contracting Party, may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” The European Court of Justice in its preliminary ruling decisions ruled that Art.54 of CISA introduces as a corollary to the freedom of movement a “negative” meaning, i.e. that the right to move from one State to another should not have negative consequences, i.e. multiple prosecutions towards the same person for the same act. According to the independent interpretation of idem factum, given by the European Court of Justice: the only relevant aspects are material acts, understood in the sense of the existence of a set of concrete circumstances, which are inextricably linked together. However, the definitive assessment belongs to the competent national court, which has the jurisdiction to determine whether the material acts

3. International legal instruments addressing the issue of resolving conflicts of jurisdiction

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constitute a set of facts, linked together in time, in space and by their subject matter. The Court stated that the concept of “same acts” should not be different in each Member State. On the opposite, an autonomous and uniform interpretation within the European Union needs to be provided. [7] In its following decisions, the Court ruled that a lack of complete identity of the material facts does not prevent the effect of the Ne bis in idem principle. In order to limit the effects of the growing international and cross-border criminality, the European legislator takes a series of improved measures towards the establishment of a single area of criminal justice, which is characterized by mutual trust and support among the national enforcement and judicial authorities. A fundamental factor in this direction is the introduction of the principle of mutual recognition of judgments, which is seen as a cornerstone of the judicial cooperation between EU Member States. [8] The successful implementation of this principle requires mutual trust between Member States, in particular - trust in their criminal justice systems. This level of confidence should be high enough to allow the refusal of the national court to apply its criminal law in favour of the law of another Member State. [9] The entry into force of the Treaty on the Functioning of the European Union (TFEU) [10], and the removal of the pillar structure opens the path to a European Common criminal area. The latter combines on one hand - EU law in the field of criminal justice, on the other - the cooperation between countries in criminal matters, without prejudice to the national sovereignty of each of them. The competence in “the area of security, freedom and justice” becomes a shared competence. EU Member States have the possibility to apply their national jurisdictions in these areas, as far as the EU has not exercised its competence or has decided to provide its exercise. [11]

The processes of institutionalization and harmonization inevitably lead to some difficulties in law enforcement, which are mainly caused by differences in the various legal systems. So, in the theory is stated that: "in the EU legal system there is an extremely complicated combination of jurisdictions from three legal orders, such as international law, EU law and national law of the Member States.” [12] After the Tampere program and the subsequent Hague Program, the European Council endorses the new multiannual program for the area of freedom, security and justice for the period 2010-2014, i.e. the Stockholm program. Its key objective is to improve judicial cooperation in criminal matters within the European Union, focusing on expanding the activities of the European Judicial Network, Eurojust, Joint Investigation Teams, and the exchange of magistrates between European countries in countering the serious cross-border crimes. [13] According to Art.82, §1, letter “b” of TFEU, the Union is competent in preventing and solving conflicts of jurisdiction among Member States. However, specific rules on prevention and resolution of conflicts of jurisdiction were lacking by that time. A next step was taken with the 2005 Green Paper on Conflicts of jurisdiction and the Principle of Ne bis in idem in Criminal Proceedings, published by the European Commission. The Green Paper provides three stages: 1) exchange of information between competent authorities about pending criminal proceedings, 2) consultations among countries involved, 3) agreement in order to resolve the conflict of jurisdiction. In comments to the Green Paper are stated opinions that the Ne bis in idem principle does not prevent conflicts of jurisdiction between countries, but it rather plays the role of "a safety net", in cases, where there are preconditions the same person to be punished twice for the same crime. [14]

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The consultations, opened on the Green Paper, result in the 2009/948/JHA Framework Decision on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [15], that Member States were expected to implement before 15th June 2012. It should be noticed that regardless of its title, there are no rules on prevention of conflicts - it provides only rules, concerning resolution of conflicts. The Framework Decision introduces a complete procedure for mandatory exchange of information and direct consultations between competent authorities of EU Member States, aiming to prevent infringement of the principle of Ne bis in idem, referred to in the provision of Article 54 of CISA.

the reassignment of jurisdiction from one country to another, resp. the concentration of the criminal proceedings in a single country, which is able ensure the most favourable conditions for prosecution. Undoubtedly, its application is generally based on the mutual trust between countries, resp. in their criminal justice systems. In its part IV "Multiple criminal proceedings" the 1972 Convention rules the "parallel criminal proceedings", which are also a subject of regulation in Framework Decision 2009/948/JHA. Thus, according to Art.30, Para.1 of the 1972 Convention: "Each Contracting State, which before initiating or during the proceedings for an offense for which it considers that the is not of a political or a military nature, becomes aware for the proceedings pending in another Contracting State against the same person for the same offense, shall consider whether to terminate or temporarily suspend its proceedings, or transfer it to another country." The envisioned consultation procedure helps the countries to find a common acceptable solution in the so-called “positive conflict of jurisdictions”, i.e. when two or more of them have the competence to conduct criminal proceedings for the same facts. If the interested parties manage to reach a consensus, they must transfer the results of the criminal prosecution, conducted by their competent authorities and gather them in one single criminal proceeding. Thus, the prosecution of the crime is entrusted to the country, which based on the factual circumstances of the case, could guarantee the most successful completion of the proceedings. Obviously, the 1972 Convention and Framework Decision 2009/948/JHA have an identical objective, which they achieve through a similar procedure of direct consultation between the interested parties. It should be noticed that, as an EU instrument the Framework Decision 2009/948/JHA binds only the Member

4. Possible solutions for conflicts of jurisdiction in the conditions of multiple criminal proceedings There are various reasons why the conduct of criminal proceedings would be more successful in another country than in the country, where it was originally initiated. For example, when during the period of consideration of criminal proceedings in one country, the alleged offender resides on the territory of another country or he is a national of the second; when the first country experience difficulties in securing evidence on its territory, but lots of or most important evidence can be collected in the territory of another country; when in the other country against the alleged offender there is already a pending criminal prosecution for the same and/or for a different criminal offense; or the suspect is already serving a sentence of imprisonment there. [16] One of the oldest mechanisms for international cooperation in criminal matters is the transfer of criminal proceedings, which primary legal framework is established by the European Convention on the Transfer of Proceedings in Criminal Matters of the Council of Europe. [17] Its essential characteristic is

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States of the Union, which have adopted it. On the other hand, only the countries, including those outside the Council of Europe, that have ratified it, are required by the provisions of the 1972 Convention. Unlike the 1972 Convention though, the Framework Decision 2009/948/JHA does not contain an explicit rule, requiring the preparation of a formal request for transfer of the gathered evidence to the accepting country. The transfer of the results from the pending criminal proceedings is a logical consequence of the consultation procedure, following which the parties concerned have agreed the prosecution of the criminal case to be concentrated on the territory of one country. [18] There is no doubt that both considered international instrument regulate different legal procedures, but it is also clear that under certain conditions these procedures lead to the same legal result, namely the transfer of criminal proceedings. Regardless of the semantic distinction between the used terms "transfer" and "concentration" in both regulations, the same does not justify a difference in the result sought. The legal consequences of both procedural activities lead to a "transfer of criminal jurisdiction” of one or more countries in favour of another. Furthermore, if the Contracting Parties fail to reach a mutually acceptable solution for concentrating the prosecution of the crime in one country, under the provision of Article 12(2) of Framework Decision 2009/948/JHA, each of them may refer the matter to Eurojust. [19] In accordance with the Article 13 (7) of Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust, Member States are required to inform Eurojust about any case of conflict [1]

[2]

of jurisdiction or the possibility of such a dispute. However, the role of Eurojust is limited in scope to the cases, in which it is competent to act. Eurojust is entitled to give its help, only when Member States voluntarily refer their dispute to it, if they cannot resolve it on their own and if it is appropriate, taking into account the subject matter. Under the provisions of Article 7 (2) of the EU Council Decision 2009/426/JHA, Eurojust as a collegial body, may give written opinions about the method for resolving the conflicts of competence between EU Member States, but these opinions do not have binding effect. They serve only as recommendations and their execution depends on the free will of the countries. The Eurojust’ request, expressed in its opinion on the Green Paper, that the Member States should be obliged to seek its arbitration, if they cannot reach consensus about the criminal jurisdiction, is rejected. The argument for this rejection was that it is better for Eurojust not to possess simultaneously the authority of a mediator and a decision-making body, where such a delicate matter is concerned. 5. Conclusion It should be recognized that a lot of work has been accomplished in order to ensure the compliance with the principle of Ne bis in idem within the European area. Nevertheless, further steps in direction to more effective solutions between countries, conducting parallel criminal proceedings for the same fact and against the same person, are needed. This could be achieved by a new European law on prevention of conflicts of jurisdiction in criminal matters.

References Signed on 14 June 1985 in Schengen, Luxembourg.Its full implementation starts from July 1995 with the abolition of border controls between six of the signatory countries. Later on, it covers other European countries, including not members of EU. Pakes, Fr. Comparative Criminal Justice, Devon, Willan Publishing, 2004, pp. 141-168.

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[3] ɋɚɥɤɨɜɚȿɉɪɟɤɪɚɬɹɜɚɧɟɧɚɧɚɤɚɡɚɬɟɥɧɨɬɨɩɪɨɢɡɜɨɞɫɬɜɨɋɎɟɧɟɹɫ. [4]Chankova, D. Combating Trafficking in Human Beings in Bulgaria: Achievements, Problems, Perspectives,Victimological Advances in Theory, Policy and Services, ed. by Tod Tollefson, 2015, pp. 27-37. [5] Stanin, M. Rights within Obligations and Responsibilities,in: scientific collection “Economic, social and administrative approachesto the knowledge-based organization”, Volume II, Land Forces Academy ”Nicolae Balchesku", Sibiu, Romania, 2016, p.150. [6] 2-/ɪS-62. [7] See ECJ decision of 16 November 2010, C-261/09, Gaetano Mantello; ECJ decision of 22 December 2008, C-491/07, Vladimir Turanský; ECJ decision of 28 September 2006, C-467/04, Giuseppe Francesco Gasparini and Others. [8] The principle of mutual recognition of judgments was adopted by the Tampere European Council in October 1999 as a part of measures to improve the cooperation between MemberStates in the field of criminal justice. [9] Suominen, A. The principle of mutual recognition in cooperation in criminal matters. Astudy of the principle in four framework decisions and in the implementation legislation in the Nordic Member States. Bergen, 2010. [10] Signed on 13.12.2007in Lisbon, entered into force on 01.12.2009. [11] Ȼɟɥɨɜɚ-Ƚɚɧɟɜɚ Ƚ ɉɨ ɜɨɩɪɨɫɭ ɨ ɜɟɪɯɨɜɟɧɫɬɜɟ ɟɜɪɨɩɟɣɫɤɨɝɨ ɩɪɚɜɚ ɇɚɭɱɧɵɣ ɜɟɫɬɧɢɤȾɢɩɥɨɦɚɬɢɱɟɫɤɨɣɚɤɚɞɟɦɢɢȼɵɩɭɫɤɍɤɪɚɢɧɵ Ʉɢɟɜɫ-119. [12] Ɇɚɪɢɧ ɇ ɘɪɢɫɞɢɤɰɢɹ ɧɚ ɋɴɞɚ ɧɚ ȿɜɪɨɩɟɣɫɤɢɹ ɫɴɸɡ ɜ ɩɪɨɫɬɪɚɧɫɬɜɨɬɨ ɧɚ ɫɜɨɛɨɞɚɫɢɝɭɪɧɨɫɬɢɩɪɚɜɨɫɴɞɢɟɍɂÄɇ. Ɋɢɥɫɤɢ³Ȼɥɚɝɨɟɜɝɪɚɞɝɫ-169. [13] Savona, E. Trends and Causes of Cross-Border (Organized) Crime in Europe, in: Criminal Justice Co-operation in the European Union after Tampere, Series of publications by the Academy of European Law in Trier /ERA/, Vol. 33, 2002. [14] Fischer, Juliette. Comments on the Green Paper on Conflicts of Jurisdiction and the principle of Ne bis in idem in criminal proceedings, The Max Planck Institute for )RUHLJQDQG,QWHUQDWLRQDO&ULPLQDO/DZɪ. [15] Signed in Brusselson 30.11.2009, OJ L 328, 15.12.2009. [16] Bassiouni, M.Cherif. IntroductiontoInternationalCriminal Law, Secondrevisededition, Leiden;Boston: Martinus Nijhoff Publishers, 2013, pp. 510-512. [17] Signed in Strasbourg on 05.15.1972 [18] Peers, Steve. “The proposed Framework Decision on conflict of jurisdiction incriminal proceedings:Manipulating the right to a fair trial?”,in:Statewatch Analysis, 2009. [19] Established by Council Decision 2002/187/JHA of 28 February 2002, with a view to reinforcing the fight against serious crime, OJ L 63, 06.03.2002; amended by EU Council Decision 2009/426/JHA on Strengthening Eurojust of 16 December 2008, OJ L 138 of 04.06.2009.

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DESIGNING A LEGAL ENGLISH COURSE FOR MASTER OF LAWS STUDENTS Simina BADEA University of Craiova, Craiova, Romania [email protected] Abstract: Over the last years, universities have diversified their educational offer, understanding and emphasizing the role of foreign languages in enhancing both personal and professional growth. Study programmes at undergraduate level have a mandatory foreign language component and there is a tendency to provide master’s programmes in foreign languages especially in the field of law, business, political sciences, international relations, etc. In this framework, the paper attempts to identify and present the steps to be taken in designing a legal English course for students who complete their Master of Laws (LLM) degree in Human Rights. The focus is on the development of such a course as an essential element of a syllabus. The paper discusses the subject content of the course, i.e. the areas within each topic meant to improve and expand the students’ specialist vocabulary which will further enable them to operate effectively in the field of human rights, the language content and the language skills which must be practised, while also analyzing subject-based materials and language materials.

Keywords: educational offer, syllabus and course design, LLM students, legal English course, human rights for students who complete their LLM (Master of Laws) degree in Human Rights.

1. Introduction A few decades ago, the major role of English as the international language of legislation, politics, trade, tourism, marketing, etc. was disregarded, especially at the academic level [1]. Fortunately, a radical change has occurred in the role of universities and, over the last years, they have also understood the importance of foreign languages, in particular of English, in enhancing both personal and professional growth. This has led to a diversification of their educational offer, which means that study programmes at undergraduate level have a mandatory foreign language component (and most often a second optional such component) and there is a tendency to provide master’s programmes in foreign languages in the field of law, business, political sciences, international relations, etc. In this framework, the paper attempts to identify and present the steps to be taken in designing a legal English course

2. Context and premises: a master’s programme in human rights The master’s programme in the field of human rights, in the French language, is a new study programme at the Faculty of Law, University of Craiova. In general, master’s programmes may be of three types: 1. professional programme, mainly aiming at developing professional skills; 2. research programme, focusing on the development of research skills; 3. didactic programme [2]. The programme in question is preponderantly a research one. As stated in the educational offer, most members of the teaching staff have the right to coordinate PhD theses, which opens the way to advanced research, to completing doctoral studies. In the first semester, students study (in French) disciplines relating to the


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philosophy of human rights, protection of civil and political rights, international criminal law, freedom and security, discrimination, conflicts of jurisdiction and of laws. They also study legal French or legal English. During the second semester, the areas of study cover the protection of economic, social and cultural rights, humanitarian law in crisis situations, conflicts between human rights and domestic law, conflicts at European and international level regarding human rights. Optionally, students may participate in European contests or in international seminars.

1990, a more genre-analytic perspective opened the way to a more empirical research into student needs. After 2000, we have witnessed a tendency to use task-based needs analysis to collect quality data and to resort to expert knowledge [6]. The structure of an ESP syllabus highly depends on the assessment of students’ purposes and needs and the functions for which English is required. Linguists and teachers are more and more concerned with students’ motivation and the analysis of their needs, because this will lead to the selection of the methods, techniques and materials used in class. Considering that, within the master’s programme in human rights, ‘Legal English’ is a seminar with the status of a practical course, the designing of such a course should harmonize with the overall characteristics and objectives of the programme and should contribute to the improvement of the students’ language skills, as well as the enhancement of their specialist vocabulary and research skills which will further enable them to carry out advanced research at PhD level. An important step in this direction refers to the acquisition of the terminology covering various aspects of human rights so that students can consult academic materials, i.e. books, articles, treatises, monographs, or international legislation and case law, which involves the development of reading skills. They also need to understand an interlocutor or lecturer if they participate, for instance, in an international conference, and to speak to such an interlocutor, in other words, to communicate in a professional legal environment (i.e. developing listening and speaking skills). Communication in writing is a capital need at the academic level. LLM students attend courses at partner universities abroad, take part in international conferences or contests, and, according to the profile of master’s programmes in foreign languages which generally focus on the research component in Romania, they need to develop academic

3. Designing a legal English course for LLM students 3.1. Stages Graves identifies six steps in the development of a systematic ESP syllabus: x conducting needs analysis x determining the goals and objectives of the course x conceptualizing the content x selecting and developing materials and activities x organizing the content and activities x evaluating [3]. The focus of this study is on the development of a legal English course as an essential element of a syllabus. We will insist on the first four steps out of the six mentioned by Graves. 3.2. An insight into needs analysis “Such factors as the reasons for learning, anticipated place and time of usage, those whom the speaker will likely interact with, activities involved, skills needed (e.g. listening, speaking, reading, writing, translation) are all taken into consideration in what could be called a ‘needs analysis’” [4]. Lesiak-Bielawska notes that over time, the concept of needs analysis has been enlarged, including besides target situation analysis, a series of extra elements, such as subjective needs analysis, present situation analysis, learning needs analysis, discourse/ genre analysis and means analysis [5]. After

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literacies for research purposes and second language thesis and dissertation writing. 3.3. Objectives of the course After an overview of the students’ needs, a teacher usually establishes a set of objectives which should be defined and generated in accordance with the quality of the skills and competences that students should acquire. This will influence the selection of the means for the attainment of these aims, i.e. teaching methods, materials, activities. Before setting the objectives of the ‘Legal English’ course, it is appropriate to take into account that, at the end of the programme, students must acquire the following competences, which are consistent with those provided by the study of each discipline within the programme: a) Professional competences: 1. Linguistic skills at the academic level for the appropriate use of legal concepts, theories, paradigms and methodologies. 2. A level of academic proficiency in the English language. 3. Knowledge of specialist vocabulary in the field of human rights. 4. In-depth understanding of grammatical structures specific to legal English. 5. Ability to analyze relevant texts related to the studies. 6. Oral and written communication skills. b) Transversal competences: 1. Specific skills for teamwork and for the implementation of effective teamwork techniques (with interdisciplinary elements). 2. Oral and written communication skills in English and effective use of communication and information resources, as well as professional training resources. 3. Ability to identify the rules applicable to a specific legal situation in order to achieve a practical objective and to present orally and in writing the legal analysis of a relevant situation. The general objective of the practical course is the development of the linguistic skills necessary to communicate in English

at the university level, in the field of law, and, more specifically, in the area of human rights. At the professional level, the specific objectives are to develop the capacity to organize legal knowledge and to use specific techniques of interpretation, a process favoured by the acquisition of the specific language skills required for academic studies. At the transversal level, the specific objectives are to deepen and broaden the knowledge of legal English, both written and spoken through practical vocabulary exercises, analysis of legal texts and documents on human rights topics, while implementing effective teamwork techniques and making use of communication resources. Although one of the objectives relates to the understanding and use of specific grammatical structures that deepen the knowledge of legal English, in terms of language content, a prerequisite of the course is a language level of B2 (upper intermediate), or at least B1. Students are expected to operate with the basic verb tenses, conditionals, the passive voice, modal verbs, quantifiers and determiners, linking words, etc. As far as language skills are concerned, the prerequisites refer to the students’ ability to keep up a simple conversation and follow a talk on a legal topic, to scan less complex legal texts for relevant information and understand the main ideas, to make notes and express opinions orally and in writing starting from a text of medium difficulty. The students’ evolution will be reflected in their ability, at the end of the programme, to handle a wider range of conversational situations and contribute effectively to courses and seminars, to understand more sophisticated materials, especially those in the field of human rights, to write on academic topics with few errors in structure and spelling and with idiomatic ease of expression, to carry out research in English.

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practice of new vocabulary, and finally, by discussions, debates and written assignments. The practice of grammatical structures specific to legal language is usually integrated into the practice of language skills in such a course. It is necessary to practise both receptive skills (reading and listening) and productive skills (writing and speaking) in the context of human rights. It would be very difficult to prioritise one set of skills above another, but the primary criterion is that the activities should mirror real-life and career situations. Students should be helped to overcome certain difficulties that prevent them from enhancing their language skills. They should identify the causes that make them reluctant to speak, especially during a seminar or tutorial. If at undergraduate level, more precisely in the 1st and 2nd year of the bachelor’s programme, students become familiar with the core vocabulary of the main law branches, at LLM level, they evolve and the development of a wide range of skills involved in research becomes essential. They should be taught how to produce a dissertation or a paper in a foreign language, namely how to: x select a topic which will be converted into a research question x organize the production of the dissertation into stages x find statutory instruments, case reports, legislation, either domestic or European, in a library and online x find out whether there is any law on a particular topic x determine whether a piece of legislation is in force x locate the official texts of treaties, conventions, etc. x avoid plagiarism x use online library catalogues and legal bibliographies x make reasoned choices about the language and style used in writing an

3.4. Conceptualizing the content of the course The subject content of the course may be structured as follows (for two hours a week during one semester): A Human Rights Approach (legal framework, background, fundamentals); International Institutional Framework (international human rights law v. domestic law; regional mechanisms for the protection of human rights; international instruments and standards); European Convention on Human Rights (human rights in terms of specialist vocabulary and specific grammatical structures); European Court of Human Rights (general presentation, composition of the Court, judges, sections, general practice, Grand Chamber, case-law analysis, translations, research reports, hearings, applications, rules, delivery of judgments); Remedy in Human Rights Law (practices, grievance mechanisms); Defending Civil Rights, Women’s Human Rights (international human rights framework for guaranteeing women’s rights; economic, social, political rights of women; violence against women); Children’s Human Rights (international human rights framework for protecting children’s rights; development of international child law; current issues); Freedom and Its Limits; Third Generation Rights. 3.5. An overview of activities Activities should be designed and structured so that students will be encouraged to think independently and express their own opinions. Subject-based materials used in class should be authentic and rely on prestigious academic writings, case law and legislation, case reports, press releases and even official sites of institutions. All these materials are usually selected and explored in compliance with the content areas of the course. The reading stage is necessarily followed by the clarification of legal terms or other words and phrases that students are not familiar with, by quizzes and exercises that ensure the proper understanding of the text and the

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x

academic paper, in preparing coursework provide references accurately, etc [7].

students’ motivation and be realistic when setting the objectives of the course, conceptualizing the subject content, selecting and organizing the materials and activities used in class, because students need guidance, but they should also preserve their independence and remain creative, they should experience the exploration of their own resources.

4. Conclusion A Master Degree’s programme in a foreign language represents a great enhancer of career opportunities. Designing a course for such a programme is a complex process that requires, first of all, a careful needs analysis. Teachers should understand their

References [1] E. Alcaraz Varó, B. Hughes, Legal Translation Explained, Routledge, 2014, p. 1. [2] ,RDQ &LRFKLQă-Barbu, Dreptul muncii. Curs universitar, %XFXUHúWL Editura Hamangiu, 2012, pp. 39-40. [3] K. Graves, Teachers as Course Developers, Cambridge, Cambridge University Press, 1996. [4] Jane Lung, A blended needs analysis, in Vijay Bhatia and Stephen Bremner (eds.), The Routledge Handbook of Language and Professional Communication, pp. 257-273, Routledge, 2014, p. 257. [5] (OĪELHWD 'DQXWD /HVLDN-Bielawska, English for Specific Purposes in Historical Perspective, English for Specific Purposes World, vol. 46, pp. 1-23, 2015, p. 6. [6] M.H. Long, Methodological issues in learner needs analysis, in M.H. Long (ed.), Second Language Needs Analysis, pp. 19-76, Cambridge, Cambridge University Press, 2005; R. Gilabert, Evaluating the use of multiple sources and methods in needs analysis: a case study of journalists in the Autonomous Community of Catalonia (Spain), in M.H. Long (ed.), Second Language Needs Analysis, pp. 182-99, Cambridge, Cambridge University Press, 2005. [7] Emily Finch, Stefan Fafinski, Legal Skills (second edition), Oxford, Oxford University Press, 2009.

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MULTIDIMENSIONAL DIAGNOSIS OF OCCUPATIONAL PRESSURE PERCEPTION FOR THE MEDICAL STAFF OF AN INTENSIVE CARE UNIT (ICU) Elena-/XPLQL‫܊‬D BOULEANU, Adrian Tudor BRATE “Lucian Blaga” University of Sibiu, Romania [email protected], [email protected] Abstract: Intensive Care Units (ICU) medical staff is frequently subject of great amount of psychological and physical occupational pressure. There are three main sources of pressure: professional responsability for the medical act, organizational requirements and interpersonal/intrapersonal relationships. Materials and method: The paper presents a study on the multidimensional diagnosis of occupational pressure/stress perception of the medical staff of an ICU (N=34). The romanian form of Pressure Management Indicator (PMI) [1][2][3][7] was applied to all participants. The instrument is designed for multidimensional evaluation of occupational stress. The objective was to identify specific indicators of occupational pressure and formulate predictions regarding the different variables. Results and conclusions: Data analysis showed, for example, that Influence and Control (as personality factors/individual differences) are good predictors for the resilience level in the studied ICU medical staff. We can conclude that individual differences regarding personality factors are the main variables that significantely influence the occupational stress coping for ICU medical staff. The PMI-RO diagnosed profile, resulted for the ICU medical staff showed many differences comparing with general population, including sources of pressure, coping strategies, personality factors, organisational satisfaction and self evaluation of performance. Further implications of the study and intervention strategies for medical personnel in ICU are discussed.

Keywords: Pressure Management, ICU medical staff relatives of the patients. Moreover, many patients in the ICU lack decision making capacity; therefore, the healthcare professionals depend on communication with relatives for decision making, which can complicate the communication process. In addition, the ICU work environment has become increasingly technical, which requires extended skills in advanced life sustaining medical therapies” [6, p.2]. The intense stress environment that ICU professionals practice in, are highly demanding on cognitive level (loss of attention concentration, errors in decision making, irritability or hostility, low selfconfidence), on physical level (sleeping disturbances, headaches, low back pain)

1. Introduction Intensive Care Units (ICU) medical staff is frequently subject of great amount of psychological and physical occupational pressure, due to stressful situations for patients, relatives and other professionals. “A growing body of evidence suggests that burnout among ICU nurses and ICU physicians is a remarkable result of the demanding and continuously high stress work environment. It has been suggested that ICU professionals could be emotionally affected by end-of-life issues, ethical decision making, observing the continuous suffering of patients, disproportionate care or medical futility, miscommunication, and demanding


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and on emotional level (emotional burnout, compassion fatigue, guilt or helplessness). The purpose of this study was to offer a multidimensional diagnosis of the perception of occupational pressures at individual and group/department level for Romanian medical staff in an ICU, for improving professional life and proposing specific intervention/ management strategies.

scores, we obtain a profile/graph for the studied ICU staff, that can be compared to other profiles or to the adapted cultural standard. The graph that figure the profile of the related indicators and scales of occupational stress for the particpants of this study, will be presented in the results section. 3. Results The data were processed through a specialized statistical program. In the first stage of data processing, descriptive statistical values have been obtained, then, by examining significant relationships between the measured variables, correlation analysis was processed. For examining the role of possible significant predictive variables, regression analysis was used. 3.1. Descriptive analysis We have selected some significant descriptive data. Regarding the motivation for performing overtime work hours of the medical staff, Table 1 shows the frequencies for each type of motivation. It is also important that all 34 participants declare they work overtime every week (an average of 49.65 hours/week). The tipe of motivation shoes that an important amount of overtime working hours is due to complete the work and the fact that it is expected from them. This can be interpreted as task overload, lack of efficiency and/or a high level of obeisance to authority.

2. Methodology 2.1. Participants As participants for this research, we included 34 health care professionals from an ICU (doctors and nurses), with the following demographic characteristics: 11 males (32.4%), 23 females (67.6%), average age in organization 15.47 years, with a standard deviation of 8.87; type of occupation / position: 21 nurses (61.8%) and 13 physicians (38.2%), 25 of the participants have university diploma. 2.2. Instruments The participants have completed the romanian translated and adapted version of the Pressure Management Indicator (PMIRO [1,2,3,7], that includes a biographical questionnaire, eight scales and 24 subscales, that measure the sources and effects of socio-professional pressures, coping strategies and individual differences. After filling out the questionnaire, scoring it and transforming the data in percentile

Table 1 The motivation for performing overtime work (hours) Type of motivation Frequency Percent Personal/ own choice 10 29,4 It is expected from me 12 35,3 Valid To complete the work started 12 35,3 Total 34 100,0 perceived evaluation of occupational performance indicates a trend of positive relative high level of self-assessment.

Self-evaluation of performance is shown in Figure 1, with an average of 85.74 and a standard deviation of 11.66: the self-

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Figure 1: Self-evaluation of occupational performance

x

3.2. The profile of pressure management indicator for the ICU medical staff After calculating the scales and subscales scores of the PMI questionnaire and transforming them into percentiles we obtained the resulting profile shown in Figure 2. The following aspects, we are particularly interested in the study: x The ICU staff perceive relatively high levels of sources of pressure regarding: recognition, daily hassless, workload, organisational climate and managerial role, and relatively low pressure came from home/work balance and personal responsability; x As coping strategies, they use more the life/work balance (this explains the low score on this aspect as pressure source showing in the previous paragraph) and the problem focus strategies, and they tend to use less the social support;

Analysing the role of personality and individual differences, the profile shows lower levels of perceived personal influence and control than the occupational standards, and above mean scores on drive A and impatience. x Regarding the perceived effects of occupational stress/pressures we can observe that the participants declare low levels of organisational satisfaction and confidence, medium level of job satisfaction, lower levels of physical well-being and energy level, but surprisingly high levels of resilience, organisational commitement, state of mind and organisational security. This findings will be discused more in the conclusion section of the paper.

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Figure 2: The profile of pressure management indicator for the ICU medical staff

x

3.3. Correlational analysis and predictors of the effects of occupational pressures We present a selection of interesting significant correlations between the measured variables:

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Gender with energy level: r=-.48 (p