PRINCIPLE OF PROPORTIONALITY, CRITERION OF LEGITIMACY IN THE PUBLIC LAW

A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state’s institutions. The legal behavior of the state’s institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen. The application and nonobservance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state’s functions assumes the discretionary powers with which the states authorities are invested, or otherwise said the ‘right of appreciation” of the authorities regarding the moment of adopting the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the state de jure. In this study we propose to analyze the concept of discretionary power, respectively the power excess, having as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time we would like to identify the most important criterions that will allow the user, regardless that he is or not an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. Within this context, we appreciate that the principle of proportionality represents such a criterion. The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjusting the measures ordered by the state’s authorities to the situation in fact, respectively to the purpose for which they have been conceived. In our study we choose theoretical and jurisprudence arguments according to which the principle of proportionality can procedurally be determined and used to delimit the discretionary power and power abuse

DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES

A problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse ofright in the state’s institutions activities. The legal behavior of the state institutions is being materialized by their right of appreciation, and the power excess yields in the violation of a subjective right or a legitimate interest of the citizen. The application and observance of the lawfulness principle in the activity of the state authorities is a complex problem because the exercise of the state’s functions assumes the discretionary power with which the state’s organs are invested with, or otherwise said the ‘right of appreciation” of the state’s authorities regarding the moment of adopting and the contents of the disposed measures. The discretionary power cannot be opposed to the lawfulness principle, as a dimension of the lawful state. In this study we propose ourselves to analyze the discretionary power concepts and respectively, the excess of power, having as landmark the legislation, jurisprudence and the doctrine in the matter. At the same time, we wish to identify the most important criterions that will allow the practitioner, no matter whether he / she is an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. In this regard, we appreciate that the principle of proportionality represents such a criterion. We consider that the law courts, by applying the principle of Constitution’s supremacy, can censor some juridical acts contrary to the constitutional norms, if the Lawmaker does not foresee the competence of the Constitutional Court in this matter. In our opinion, all law courts, within the limits of the competence granted by law, can control and censor the juridical acts of some public authorities issued by power excess. In order to demonstrate these assertions some theoretical and juridical practice arguments are being brought

THEORETICAL AND JURISPRUDENTIAL ASPECTS CONCERNING THE CONSTITUTIONALITY OF THE COURT APPEAL ON POINTS OF LAW

The institution of the appeal on points of law has the role to ensure a unitary law interpretation and enforcing by the law courts. The legal nature of this procedure is determined not only by the civil and criminal normative dispositions that regulate it. In this study we bring arguments according to which this institution is of a constitutional nature, because according to the Constitution, the High Court of Cassation and Justice has the attribution to ensure the unitary interpretation of the law by the law courts. Thus are analyzed the constitutional nature consequences of this institution, the limits of compulsoriness of law interpretations given by the Supreme Court through the decisions ruled on this procedure, and also the relationship between the decisions of the Constitutional Court, respectively the decisions of the High Court of Cassation and Justice given for resolving the appeals on points of law. The recent jurisprudence of the Constitutional Court reveals new aspects regarding the possibility to verify the constitutionality of the decisions given in this matter

Few aspects regarding the supremacy of the Romanian Constitution

The scientific basis of the supremacy of the Constitution is an important issue of the practice and theory of constitutionality. This preoccupation is related to the role of the Constitution in the normative system, in the hierarchization of the norms, as well as to the place of the constitutional law in the legal system. The supremacy of Constitution has as main consequence the compliance of entire law with the constitutional norms. Guaranteeing of the observance of this principle is essential for the rule of law, is primarily an attribute of the Constitutional Court of Romania, but also an obligation of the legislator to receive by texts adopted, within its content and form, the constitutional norms

Some considerations on the principles of law

Any scientific intercession that has as objective the understanding of the significances of the “principle of law” needs to have an interdisciplinary character, the basis for the approach being the philosophy of law. In this study we fulfill such an analysis with the purpose to underline the multiple theoretical signifi cances due to this concept, but also the relationship between the juridical principles and norms, respectively the normative value of the principle of the law. Thus, extensive references to the philosophical and juridical doctrine in the matter are being materialized. This study is a pleading to refer to the principles in the work for the law’s creation and application. Starting with the diff erence between “given” and “constructed”, we propose the distinction between the “metaphysical principles” outside the law, which by their contents have philosophical significances, and the “constructed principles” elaborated inside the law. We emphasize the obligation of the law maker, but also of the expert to refer to the principles in the work of legislation, interpretation and applying of the law. Arguments are brought for the updating, in certain limits, the justice – naturalistic concepts in the law

Zanclean Gilbert-type fan deltas in the Turnu Severin area (Dacian Basin, Romania). A critical analysis

Abstract. The critical analysis of the Gura Văii – Turnu Severin – Izvoru Bârzii Gilbert-type deltas concentrated on the deltaic architecture and the age of the deltaic deposits, referring especially to the conglomeratic sediments considered the proximal foreset unit of the Gilbert-type fan deltas. It reveals the lack of evidences necessary to demonstrate the existence of the three units (foreset, bottomset and topset beds) which define a Gilbert-type delta. Although there are convincing data for its tectonic origin, the homoclinal structure of these deltaic deposits was considered, with no argumentation, as a primary structure generated through the deltaic progradation. The age of the rudaceous deposits in the area Gura Văii – Turnu Severin – Izvoru Bârzii, representing the core of the two outlined Gilbert deltas, was considered Zanclean (Bosphorian) by Clauzon et al. (2005) and Suc et al. (2011), rejecting the Badenian – Sarmatian (s.l.) age formerly attributed (Marinescu, 1978 and the references herein). The critical examination of these two concepts pointed out the paleontological and stratigraphic proofs which substantiate the Badenian-Sarmatian (s.l.) age, in contrast with the lack of evidences in favor of the Zanclean age. The Gilbert-type fan deltas figured by Clauzon et al. (2005) and Suc et al. (2011) in the area of the present-day Danube River course (area Gura Văii – Turnu Severin – Izvoru Bârzii), closely downstream of the Iron Gates, represents one of the main arguments of these authors for the action of the Messinian crisis in the Dacian Basin. Taking into consideration the importance of this concept for the understanding of the Dacian Basin evolution, this paper undertakes a critical analysis of the factual data which generated the concept of the Gilbert-type fan deltas in the Turnu Severin area

Lymphopenia: A predictive marker of disease severity in COVID-19 infection

Background. With the latest COVID-19 deaths reported to WHO now exceeding 3.3 million, COVID-19 has developed into a milestone of our medical generation, causing disruption in communities and hospital services. With complications raging from respiratory failure to inflammatory complication and even thrombotic events, we wanted to establish if lymphopenia is a predictive marker of disease severity in patients infected with SARS-CoV-2. Material and methods. 152 patients were included from 4 different departments of Colentina Clinical Hospital in this retrospective observational study beginning with July 2020 to March 2021. All of these patients were confirmed with COVID-19 by real-time reverse transcriptase polymerase chain reaction test for nasal and pharyngeal swab samples. As including criteria we have set the patients hospitalized confirmed with COVID-19, with at least 10 days of hospitalization. The data in demographic, basic clinical and laboratory characteristics and particular evolution was obtained from electronical medical records from each department involved in the study, by maintaining personal data confidentially. We set up criteria for lymphopenia as absolute lymphocyte count below 1.5 x 1000/µl, based on the laboratory reference values. The study group was divided into several groups: male and female, ICU (Intensive Care Unit) and non-ICU, deceased and released, lymphopenia at day 1 (day of admission to hospital) , lymphopenia at day 10 (10 days after hospital admission). Results. The age of the patients ranged from 17 to 92, with the median age of 57.62. Enrolled were 73 (47.4%) female patients and 79 (52.6%) male patients, with an ICU admission rate of 35.71% (55 patients), and a mortality rate of 21.43% (33 patients). Patients who have a severe form of COVID-19 and are admitted to the ICU for mechanical ventilation did not recover and died (p < 0.001). Male patients may have higher risk of requiring admission in ICU (p value = 0.357) and higher risk of death (p value = 0.241). Even in our small group of 152 patients, the elderly patients suffered a more severe form of the disease, which was reflected on the number of admission days (p = 0.07). In our specific population, based on the statistics, if we take the number of lymphocytes on the day of admission as the dependent factor, we can safely say that there is a statistically significant correlation between lymphopenia at day 1 and the ICU admission (p < 0.001) or death (p = 0.014). The number of lymphocytes following 10 days of admission is another prognostic marker as we can see from the results of statistic tests: there is a statistically significant correlation between lymphopenia at day 10 and the ICU admission (p < 0.001) or death (p < 0.001). Age is another predictive factor regarding the number of lymphocytes following 10 days of admission (r = -0.078 and p = 0.356). Conclusion. Lymphopenia is an easy-to-determine, efficient and reliable biomarker to establish the disease evolution in patients with COVID-19

Studies in Law. Research Papers

Słowo wstępne: "Drodzy Czytelnicy, Prezentujemy Państwu kolejny numer naszego periodyku. W tym bogatym zbiorze wypowiedzi przedstawicieli doktryny prawa i praktyki prawniczej znalazło się miejsce dla prac autorów z różnych dziedzin prawa. Analizowane zagadnienia odnoszą się w szczególności do problematyki prawa konstytucyjnego, prawa cywilnego, prawa pracy, prawa karnego. Zgromadziliśmy cenne spostrzeżenia autorów z różnych ośrodków akademickich – tak z Polski, jak i z zagranicy. Obok interesujących artykułów naukowych oraz glos przedstawiamy też niemałą liczbę innych tekstów, przede wszystkim recenzji publikacji naukowych i sprawozdań pokonferencyjnych. Mamy nadzieję, że ten, jak i przyszłe numery czasopisma stanowić będą dla Państwa interesującą lekturę, skłaniającą do refleksji nad poruszanymi tematami i prowokującą do tworzenia kolejnych prac naukowych. Liczymy, że zechcą Państwo publikować je – jak do tej pory – na łamach czasopisma „Studia Prawnicze. Rozprawy i Materiały”. Życzę inspirującej lektury!"(...

REASONS CONCERNING THE RESTRICTION OF SOME RIGHTS IN COMPLIANCE WITH THE PROVISIONS OF ART. 53 OF CONSTITUTION

An essential dimension of the lawful state is represented by the consecration and guaranteeing of the fundamental rights and liberties, the ensuring of the optimum conditions for their exercising. The state authorities have the negative obligation to restrain from any arbitrary or excessive requirement that may restrict or condition the exercise of the constitutional right. In order to be legitimate and constitutional, any restriction of the exercise of the fundamental rights and liberties through the measures prescribed by the state’s authorities, needs to have the character of exemption, not to affect the substance of the law and to fulfill all conditions stipulated by article 53 of Constitution. In relation to these premises we analyze in this study the constitutional institution of restraining some rights’ exercising and the relevant aspects of jurisprudence. The observance of the principle of proportionality is one of the constitutional requirements in order that such a restrictive measure be legitimate. The main particularities of the principle of proportionality applied in the matter of restraining some rights’ exercising are analyzed with reference to the jurisprudence of the Constitutional Court and the European Court of Human’s Rights

THE CONSTITUTIONAL PRINCIPLE OF EQUALITY

The equality in human rights and obligations, the equality of citizens before the law are fundamental categories of the theories on social democracy but also conditions of the lawful state, without which constitutional democracy cannot be conceived. In Romanian Constitution, this principle is consecrated in the form of equality of the citizens before the law and public authorities. There are also particular aspects of this principle consecrated in the Fundamental Law. The equality before the law and public authorities cannot imply the idea of standardizing, uniformity, enlisting of all citizens under the same legal regime, regardless of their natural or socio-professional situation. The constitutional principle of equality requires that equal treatment be applied to equal situations. This social and legal reality implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and diversity, the principle of pluralism, principle of unity and, in particular, the principle of proportionality. In this study, by using theoretical and jurisprudential arguments, we intend to demonstrate that, in relation to contemporary social reality, equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter one expresses in essence the ideas of: fairness, justice, reasonableness and fair appropriateness of state decisions to the facts and legitimate aims proposed