Mihaela Pamfil

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Papers by Mihaela Pamfil

Judicial Cooperation Based on a European Evidence Warrant

SSRN Electronic Journal, 2009

The assurance of a better judicial cooperation between European Union Member States is a constant... more The assurance of a better judicial cooperation between European Union Member States is a constant preoccupation of the Council of Europe, taking into consideration that the European Union has set itself the objective of maintaining and developing an area of freedom, security and justice. The achievement of this objective is only possible if among EU Member States there is a high level of confidence and a mutual recognition of the decisions issued by the competent judicial authorities. The European arrest warrant was the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as cornerstone of judicial cooperation. It was followed by other measures designed to create the legal framework of the judicial cooperation; some of these measures concerns the fight against corruption, terrorism, cross-border criminality, racism and xenophobia while others are applicable in any case, such as the order of freezing the property and the evidence. On 18 December 2008, a new instrument was created in order to improve the judicial cooperation between the Member States: the European evidence warrant. Its purpose is to assure the obtaining of the objects, documents and data which may be used as evidence in proceedings in criminal matters in issuing State, from another Member State. So, the aim of this Framework Decision is to complete the provision of the Decision on the execution of orders freezing property and evidence which is not talking about the transfer of the evidence after the freezing. Romania, like the other European Union Member States must transpose the provision of this Decision in the national law by 19 January 2011. That is why we would like to analyse the procedures and the safeguards provided by this Decision and to show the way we see the European evidence warrant settled in our legislation.

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The Procedural Provisions for the Computer Related Offences in Romania

SSRN Electronic Journal, 2009

The main goal of this paper is to highlight the procedural provisions which apply in cases where ... more The main goal of this paper is to highlight the procedural provisions which apply in cases where the prosecution and the trial have as their object a cyber crime offence or an offence committed by means of a computer system. By taking into consideration the fact that the information technology connects people and systems from different countries, on different continents, I have analyzed not only the procedural provisions governed by the Romanian law, but also the provisions of some international documents.

Abandonment of Family. Issues of Legal Practice

The purpose of this paper is to analyse the crime of abandonment of family and the legal issues t... more The purpose of this paper is to analyse the crime of abandonment of family and the legal issues that this crime poses, starting from a concrete deed that represented the object of file no. 1637/333/2018 consecutively pending before Vaslui District Court, the Iași Court of Appeal and, again, the Vaslui District Court. The object of the case was represented by the most common form found in the judicial practice of the crime of abandonment of family, respectively the one provided by S.378 (1) (c) Criminal Code, according to which the failure to pay, in bad faith, for 3 months, of the child support established by court, by the person who has the legal obligation of support, to the one entitled to support, is punished by imprisonment from 6 months to 3 years or by a fine. In case of this form of the crime of abandonment of family, the factual element referring to the moment of committing the crime is vital as the existence of the crime is conditioned by the failure to pay the child suppo...

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SAFETY MEASURE OF MEDICAL HOSPITALIZATION REQUIREMENTS IMPOSED BY THE PRINCIPLES OF JUDICIAL COOPERATION (English version)

Jurnalul De Studii Juridice, 2011

... Author Info. Mihaela Laura PAMFIL () (Faculty of Law of Petre Andrei University of Iasi, Ro... more

SAFETY MEASURE OF MEDICAL HOSPITALIZATION REQUIREMENTS IMPOSED BY THE PRINCIPLES OF JUDICIAL COOPERATION (English version)

Jurnalul de Studii Juridice, 2011

... Author Info. Mihaela Laura PAMFIL () (Faculty of Law of Petre Andrei University of Iasi, Ro... more

The Admission of Guilt and its Consequences in the Romanian Legislation

Procedia - Social and Behavioral Sciences, 2013

The admission of guilt has always had an attenuation effect on the punishment, meant to encourage... more The admission of guilt has always had an attenuation effect on the punishment, meant to encourage the persons which have committed a crime to admit their deeds and to cooperate with the authorities in order to find out the truth of the case. In the last years, the legislator has used the admission of guilt to obtain a diminution of the duration of the trials and a relief of the courts of law. The Law no 202/2010 known as Small Reform Law has brought a simplified procedure for judgment the cases regarding the defendants which admit their deeds. The new settlement was a success, the procedure being used quite often. The new Criminal Procedure Code comes with a new regulation also known in other legislations as Plea bargaining. The simplified procedure for judgment is also stipulated. That is why we have to ask if admission guilt agreement has a change to succeed in our legislation and to be used in the legal practice or is meant to fall into disuse ab initio. The main aim of this paper is to examine how the conception of the legislator has evolved over the time and which legal stipulations are the most suitable for our legislation.

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Solutionarea plangerii impotriva masurilor si actelor de urmarire penala [The Solution of the Complaint against the Acts and the Measures of the Criminal Prosecution]

The possibility of using a complaint against the acts and the measures of the criminal prosecutio... more The possibility of using a complaint against the acts and the measures of the criminal prosecution is an important guarantee of the legality respect during the criminal prosecution. At the same time, through the complaint addressed to a court under the circumstances of an act that ends the criminal trial in the stage of criminal prosecution, the right of a person to subject his/her cause to the examination of an independent and impartial court of law is achieved. This right is inherent to the right to a fair trial. The aim of this paper is to raise some questions about the way in which the legislator has regulated the complaint against the measures and the acts of the criminal prosecution and to offer (provide) some answers that can help solving the problems that might appear in the judicial practice.

Consideraţii privind reglementarea arestării preventive în noul Cod de procedură penală (Some Consideration on the Regulation of the Preventive Arrest in the New Criminal Procedure Code)

The new Criminal Procedure Code proposes a new regulation for preventive measures that can be tak... more The new Criminal Procedure Code proposes a new regulation for preventive measures that can be taken during the criminal proceedings: it was governed a new preventive measure - home arrest, the interdiction of leaving the country or the town is not longer regulated, the content of other measures has changed, such as the judiciary control and the bail. The preventive arrest suffered some changes so as to ensure compliance with both the right of defence and the principle of guaranteeing individual freedom and the pursuit of criminal process in good condition. The aim of this paper is to analyse the provisions of the new Code regarding the preventive arrest compared with the current regulation of the arrest in order to identify the existing inadvertences which may cause problems in the legal practice such as controversies and contradictory solutions.

The Right to Petition of the Detainees. Limitation of the Abuse of Law

One of the problems which judicial system is facing nowadays is determined by the detainees’ abus... more One of the problems which judicial system is facing nowadays is determined by the detainees’ abuse of the right to petition. The right to petition is recognized and guaranteed both by the national and international law. Using the right to petition, detainees make various requests, which it submits to the courts in various parts of the country. They claim initially that these requests are intended to defend legitimate interests, but all they want is to be transferred to another prison. So when the detainee comes in front of the judge he claims that he is not the author of the application. These applications make courts to spend time and determine a high cost to the state. The aim of this paper is to analyze the possibility to improve the national law in order to limit the abuses of the detainees and to respect the right to petition in the same time.

Theory and Legal Practice Concerning the Executing of a European Arrest Warrant in Romania

The aim of this paper is to highlight the procedure regulated for the execution of a European arr... more The aim of this paper is to highlight the procedure regulated for the execution of a European arrest warrant in Romania and the way of applying this procedure in the legal practice. The European arrest warrant is designed to replace the current extradition system by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution, executing a custodial sentence or executing a detention order. In Romania, the European arrest warrant was regulated for the first time in 2004 by 302nd Law. Two years later, the law was modified by 244th Law in order to transpose the disposals o...

Security Measure Of Hospital Care. Decriminalization Of The Offence

The aim of this paper is to analyze the legal provisions governing the procedure for checking the... more The aim of this paper is to analyze the legal provisions governing the procedure for checking the safety measures of a medical nature ordered in criminal cases, considering the nature and purpose of security measures, referring ourselves mainly to the measure of hospital care and also to show the manner of interpretation and application of the law by the courts of justice in a certain case. We may say as a conclusion of your study that even if there is no special provision to that effect in the text of Article 569 Code of Civil Procedure (the text imposing as shown above, only the checking of the health status of the patient) it is necessary, in the context of legislative changes in criminal matters, decriminalizing all or part of certain facts, to verify the provision in criminal law of the offense said to be committed by the patient.

Compensation to Crime Victims in Cross-Border Situations

Compensation to crime victims is a new element in Romanian law and it was legally regulated in 20... more Compensation to crime victims is a new element in Romanian law and it was legally regulated in 2004. The right to submit an application for and receive such compensation was initially recognised only to people living in Romania and only for crimes committed on Romanian territory. The scope of this law was extended after Romania’s accession to the European Union. Nowadays, according to this law, Romanian citizens who are crime victims on the territory of another Member State and foreign citizens who, although not residing in Romania, are crime victims on Romanian territory currently have the right to compensation. What we wish to present in this paper is the procedure to be followed in order to get the compensation in cross-border situations. Thus, European citizens or foreign or stateless persons legally residing in the states of the European Union may benefit from the same kind of protection on the whole territory of the Union.

Titularii dreptului de apel in cauzele penale - The Right to Appeal in Criminal Cases (Romanian Version)

Research Papers in Economics, 2007

What we proposed in this study was to examine the laws which grant the right to wear the appeal o... more What we proposed in this study was to examine the laws which grant the right to wear the appeal of the various participants in criminal proceedings and, in particular those that have undergone recent changes, highlighting the appropriate arguments for us to agree or not with the legal regulations. No.pg. 85

The Death Penalty – the Past and the Present: What About the Future?

The death penalty has been constantly regulated by the criminal laws for a long time. The primiti... more The death penalty has been constantly regulated by the criminal laws for a long time. The primitive people as well as the people of The Middle Ages widely applied the capital punishment as a “reward” for the crime. All the same, the death penalty was considered as an efficient way (means) to prevent crimes and to ensure the safety of the community and state. The death penalty remained to a great extend part of legal systems until the end of the XVIIIth century, but the attempts to oppose it started to be many and important. The discussions about the legitimacy of the death penalty have continued till today. Nowadays, as always, there are people who fight against the application of the death penalty and people who agree to this extreme penalty; each of them may bring multifarious reasons to sustain his own belief. The question if the death penalty should or should not be permitted is back on top when the re-echo of a crime frightens or horripilates the community. Is the right to life...

MĂSURILE DE SIGURANŢĂ CU CARACTERMEDICAL ÎN NOUL COD PENAL ȘI NOUL COD DE PROCEDURĂ PENALĂ (Medical Safety Measures in the New Romanian Criminal Code and the New Romanian Criminal Procedure Code)

The main aim of this paper is to analyze the provisions of the New Penal Code and New Penal Proce... more The main aim of this paper is to analyze the provisions of the New Penal Code and New Penal Procedure Code regarding the medical safety measure in order to identify the issues which may cause problems in the jurisprudence after the enforcing of the New Codes. The paper analyze both the proceedings settled for the provisional application of a medical safety measure during the criminal pursue, during the preliminary chamber and during the judgment of the case and the proceedings settled for the application of these kind of measures based on a final decision.

Trial in Absentia: Theoretical and Judicial Practice Aspects

The right to apply for a retrial of the case and to be present at the judgment are one of the mos... more The right to apply for a retrial of the case and to be present at the judgment are one of the most important guarantees for the person who is the subject of an European arrest warrant issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia. The right to apply for a retrial had been issued by the 2002/584/JHA Council Framework Decision of 13 June 2002 and had been inforce in the Romanian Penal Procedure Code in 2003. The main aim of this paper is to analyze the proceeding regulated by the art. 5221 and to offer a suggestion for the improving the legal text.

The Appeal Regarding The Length Of Criminal Proceedings

Among the innovations brought by the new Criminal Procedure Code in force as of February 1, 2014,... more Among the innovations brought by the new Criminal Procedure Code in force as of February 1, 2014, they included the appeal regarding the length of criminal proceedings, appeal by means of which the parties and the main subjects of proceedings may request the acceleration of the development of proceedings during prosecution and judgment. The new procedure is meant to provide persons who exercise or against whom a legal action is exerted an effective tool to ensure the celerity of criminal proceedings so that the number of cases in which Romania is convicted of violations of the parties’ right to resolve their case in a reasonable time decreases. The main aim of this paper is to present the new regulation and to highlight the weakness of the regulation which may lead to consider the appeal regarding the length of criminal proceedings as an ineffective remedy.

DECISION ISSUED BY A MILITARY COURT. REVIEW. COMPETENT COURT (English version)

The aim of this paper is to determine the competent court to hear the application for review made... more The aim of this paper is to determine the competent court to hear the application for review made by a civilian convicted by a military court for a felony committed while he was a military, taking into consideration a specific case treating a similar object. The paper shows the way that different courts, including the Supreme Court, and different prosecutors had considered this legal issue together with the argued opinion of the author.

Pre-Trial Chamber. Finding the Nullity of the Indictment and of the Criminal Prosecution Acts Due to the Breach of the Defendant's Right of Defence

Jurnalul de Studii Juridice

The purpose of this paper is to analyze the limits within which the judge of the pre-trial chambe... more The purpose of this paper is to analyze the limits within which the judge of the pre-trial chamber may order the restitution of the case to the prosecutor, starting from a concrete deed that was the subject of case file no. 5609/245/2018 / a1 pending before the Iaşi District Court and the Iaşi County. In this case, the Pre-Trial Chamber judge considered that the suspect was not given the necessary time to prepare his defense as he was heard as defendant on the same day when he was also heard as a suspect, although when he was heard as a suspect he requested a break for the preparation of the defense, the report on the termination of the criminal prosecution was drawn up on the same day when he was heard, and his request for a forensic examination in question was rejected by the prosecutor, without the court waiting for the submission of the objectives of the expertise. For these reasons, the pre-trial chamber judge considered that it is necessary to find the nullity of all criminal ...

Considerations on the Criminalization of the Offense of Leaving the Scene of an Accident

Anuarul Universitatii Petre Andrei din Iasi Fascicula: Drept, Stiinte Economice, Stiinte Politice, May 21, 2019

The purpose of this paper is to analyze the offense of leaving the scene of a road accident focus... more The purpose of this paper is to analyze the offense of leaving the scene of a road accident focusing on the fulfillment of the typical conditions of the objective side and the subjective side of the offence. In the judicial practice, the main issue faced by the judicial authorities in cases involving offenses of leaving the scene of an accident is related to establishing, the perpetrator's form of guilt at the time of the act, either intent or basic intent or whether has acted guiltily or without guilt. The delimitation of the forms of guilt is very important as the perpetrator's liability can only be traced if it is established, beyond reasonable doubt that he acted intentionally-directly or indirectly-at the time he left the scene of a road accident.

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Judicial Cooperation Based on a European Evidence Warrant

SSRN Electronic Journal, 2009

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The Procedural Provisions for the Computer Related Offences in Romania

SSRN Electronic Journal, 2009