Tuesday, November 3, 2020

Domestic violence - notion and regulation at international and national level.

 

Violence against women


Violence against women is understood as a violation of human rights and a form of discrimination against women and consists of acts of gender-based violence that cause or may cause harm, physical, sexual, psychological or economic harm to women, including threats with such threats. acts, coercion or arbitrary deprivation of liberty, regardless of whether the acts occur in public or private life (Article 3 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in Istanbul).

Violence against women has its roots in the unequal power relations between women and men and in the social and cultural structures that lead to the subordination status of women in both the private and public spheres. Prejudices, customs, traditions or other practices based on the erroneous notion that women are inferior or on gender role stereotypes, serve to perpetuate violence against women, as the main reason behind violence is the sex of the victim.

European case law has also emphasized that any measures taken to prevent and combat violence against women must promote equality between women and men and that only substantial equality will prevent such violence in the future.

The various manifestations of violence against women regulated by the Istanbul Convention (Romania signed the Istanbul Convention in June 2014 and ratified it in 2016, the Convention entering into force in September 2016) are: psychological violence, taxation, physical violence, sexual violence, forced marriage, female genital mutilation, forced abortion and sexual harassment.

 

Domestic violence

Domestic violence refers to all acts of physical, sexual, psychological or economic violence that disproportionately affect women, but not only women. The term covers intimate partner violence between current or former spouses or partners, as well as inter-generational violence, for example between parents and their children. Domestic violence is one of the most serious and pervasive forms of violence.

Although the term "domestic" may seem to limit its application to acts that take place in a household, it is recognized that violence often occurs between intimate partners, couples who meet and do not necessarily live together. Therefore, a common residence is not necessary for domestic violence to occur.

The jurisprudence of the European Court of Human Rights has played an important role in shaping and strengthening the international framework on violence against women. The case law of the Court illustrates various ways in which the member states of the Council of Europe have failed to prevent, investigate / investigate and carefully sanction acts of violence affecting women and domestic violence.

In view of the articles of the European Convention on Human Rights, the obligations of the State in relation to violence against women stem from rights such as:

 

1. the right to life (Article 2);

2. prohibition of torture (Article 3);

3. the right to respect for private and family life (art. 8);

4. prohibition of discrimination (Article 14).

 

Impact cases in the case law of the European Court of Human Rights

 

In the 2009 Opuz v. Turkey case, the Court held that domestic violence is a form of gender-based violence and constitutes a form of discrimination, with Turkey failing to establish and implement a system for punishing domestic violence and protecting victims.

In the present case, the applicant claimed that the Turkish authorities had failed to protect the right to life of her mother, who had been killed by the applicant's husband.

With one exception, no criminal proceedings were instituted against the husband on the grounds that both women withdrew their complaints, despite the explanations they later gave, namely that the husband had harassed them in this regard, threatening them. them with their killing.

The Court found a violation of Article 2 of the ECHR Convention (right to life) regarding the applicant's mother, Article 3 of the Convention (prohibition of inhuman or degrading treatment), but also a violation of Article 14 of the Convention (prohibition of discrimination) , in conjunction with Articles 2 and 3.

For the first time in a case of domestic violence, the Court has ruled that gender-based violence is a form of discrimination because it mainly affects women and women have not been protected by law on an equal footing with men.

Since the national authorities abandoned the proceedings in order to avoid intervening in what they considered to be a 'family matter', without taking into account the reasons behind the withdrawal of the complainant's complaint

Tuesday, October 6, 2020

Protecting children from the perspective of human rights, criminal law and the GDPR in the digital environment

I. Legal framework and basic principles

At international and European level, there are a number of instruments that set out guidelines for the protection of children, especially in the online environment, including: Directive 2011/93 / EU of the European Parliament and of the Council of 13 December 2011 on combating abuse sexual harassment of children, sexual exploitation of children and child pornography and replacing Council Framework Decision 2004/68 / JHA; Articles 6 and 13 of the United Nations Convention on the Rights of the Child; Lanzarote Convention; Istanbul Convention; Human rights guide for internet users; Council of Europe strategy on internet governance; Convention on Cybercrime; Recommendation CM / Rec (2018) 7 of the Committee of Ministers of the Member States on Guidelines for the observance, protection and realization of children's rights in the digital environment; Strategy for the Rights of the Child (2016-2021).

The digital environment is extremely complex and rapidly evolving and changing children's lives in many ways, leading to many opportunities (such as education, socialization, expression, play and inclusion), but also significant risks to their well-being and improved rights. human rights (risks of violence, exploitation and abuse and risks to safety and confidentiality).

Every child, as the holder of individual rights, should be able to exercise his or her human rights and fundamental freedoms both online and offline. The rights included in the European Convention on Human Rights apply to all people, including children, and apply in the digital environment.

Children's rights in the digital environment have been identified as one of the five priority areas for guaranteeing children's rights in the Council of Europe's Strategy on the Rights of the Child (2016-2021). On 4 July 2018, the Committee of Ministers adopted a recommendation on guidelines for the observance, protection and fulfillment of children's rights in the digital environment [2018 (7)].

There are several principles to consider in the digital environment:

1. the best interests of the child - in all actions concerning children in the digital environment, the best interests of the child are the first thing to be taken into account. This will often require balancing and, where possible, reconciling the child's right to protection with other rights, in particular the right to freedom of expression and information (for example, internet filters may prevent children from being exposed to harmful content, but may, also interfere with the child's right to receive information);

2. children's cognitive ability - stakeholders (state, institutions and authorities, parents, civil society, etc.) should recognize the ever-evolving abilities of children and ensure that policies and practices are adopted to address those needs in relationship with the digital environment;

3. All rights in the digital environment must be granted without discrimination - targeted measures may be needed for children in vulnerable situations, as the digital environment has the potential to increase the vulnerability of these already exposed categories;

4. the right of every child to express his or her opinion and to be heard - children should have the right to express themselves freely, including through information and communication technologies, and their opinions should be given due weight in accordance with with their age and maturity;

5. States have a primary obligation to respect, protect and fulfill the rights of every child in their jurisdiction and must engage all relevant stakeholders in this process (parents, legal guardians, public institutions, education and child protection and care systems, etc.). ).

II. Restrictions on the child's right to freedom of expression in the digital environment

 

Digital restrictions can come in many forms, but the main categories are:

a. Internet filtering or blocking mechanisms (in schools, libraries, etc.);

b. removal of content (images, videos or text) posted by a child on an online service platform;

c. policies or standards regarding hate speech or intellectual property infringements on platforms.

 

Restrictions must respect international and European human rights conventions and standards and take into account the evolving capacities of children. Two essential cumulative conditions must be met: children must be aware of the restrictions and must also have a remedy available to address the restrictions that they consider to be illegitimate (

Monday, September 7, 2020

The chronic problem of the Romanian business environment - the negative net asset. New measures and their fiscal implications

After the official launch of the National Investment and Economic Recovery Plan, the Romanian Government comes with concrete measures for its implementation. These include the approval of the emergency ordinance which intends to grant bonuses to companies that increase and / or improve their equity. The measure is welcome and can be a starting point in encouraging companies to align with normalcy and comply with applicable legal regulations. In addition, the draft also provides for a significant change in the annual income tax return and payment deadline.

A poorly capitalized company does not have the financial strength to grow on its own, much less in crisis situations, and at the same time does not have access to external financing, given that financial stability is a key criterion for financial institutions. , and not only, in granting loans. Given that, in Romania, according to official data, approximately 280,000 companies (around 40% of the total) have negative equity, SME Invest financing programs cannot prove their effectiveness because, beyond the fact that the loan it is guaranteed by the state for the most part, and the interest is subsidized, the financial situation of a debtor with debts higher than his own funds is precarious and cannot guarantee the repayment of the loan. Moreover, a company with limited access to financing usually resorts excessively to supplier credit (delays the payment of invoices to suppliers), a practice that can lead to chain blockages and even insolvencies or bankruptcies.

Positive equity, a basic condition for accessing tax credits

According to the draft ordinance, companies that will maintain their own positive capital and at a level of at least half of the share capital will benefit from a reduction of profit or income tax, in the case of micro-enterprises, or of specific tax, in the case of companies from the hospitality industry, of 2% annually. In addition, companies will be able to benefit from a bonus of between 5% and 10% of the profit tax due, for the annual increase of equity, depending on the evolution compared to the previous year (from 5% to over 25%). For a period of three consecutive years, starting with 2022, the project also provides for a 3% reduction in tax depending on the minimum percentage increase of equity compared to the level reported by the annual financial statements for 2020.

It is important to note that the total tax reduction that a company can benefit from is determined by cumulating the said percentages, as the necessary criteria are met. The application period of the measure is 2021-2025.

Compared to the expectations created by the introduction of the measure in the National Investment Plan, there is a welcome diversification of the applicable bonuses, the tax reduction being directly proportional to the share of capital increase registered by the company.

In addition, the draft ordinance proposes a specific way of calculating equity, different from the accounting definition. It is noteworthy that the revaluation reserves related to fixed assets (mainly real estate) are not included in the calculation of adjusted equity used in the application of tax credits.

This "reward" is, in fact, a tool to stimulate the improvement of liquidity at the level of companies, which, implicitly, should also lead to a healthier financial structure for the business environment. Similar measures are in force in other EU countries, known as the 'notional interest deduction', and allow companies applying the corporate tax regime to deduct a nationally valid interest calculated on the basis of the increase in equity.

Expected changes in the tax return and payment deadline

A notable change contained in the draft normative act, derived from the need to determine the annual equity, is the one regarding the deadlines for submitting the declarations and paying the taxes concerned, during the application of these facilities. Thus, the established deadlines (in most cases, January 25 and March 25, respectively) will be extended until June 25, which is, in most cases, after the closing date of the balance sheet and, therefore, with all the more appropriate.

In conclusion, granting tax reductions to increase equity is a measure that could have beneficial effects on companies, individually, but also on the economic environment in general, because a solid company from the point of view of

Tuesday, August 4, 2020

The procedure for submitting a complaint to ANSPDCP regarding the processing of personal data



Any citizen, in his capacity as data subject, can file a complaint with ANSPDCP if he considers that the processing of his personal data is done in violation of the law by an operator / authorized person. The citizen must have his usual residence or dwelling or work place on the territory of Romania or at least the violation must have taken place on this territory.

The legal framework regarding the procedure for receiving and resolving complaints is regulated by Decision no. 133/2018 of ANSPDCP, published in the Official Gazette. no. 600 / 13.07.2018.

I. Conditions for submitting a complaint to the ANSPDCP

Complaints submitted by data subjects to the ANSPDCP must meet a number of conditions, namely:

1. to be formulated in writing, in Romanian or in English, in compliance with the conditions provided by GDPR;

2. be sent by post, e-mail or by using the electronic form, available on the official website of ANSPDCP (noting that there are situations in which some fields in the form have become problematic for the persons concerned in the sense that they did not allow the completion their);

3. may be submitted in person or by proxy (the person's agent may be a spouse or relative up to and including the second degree, in which case a declaration on his / her own responsibility signed by the petitioner is attached, and in the case of other persons the notarial power of attorney is attached);

4. where the complaint is lodged through a non-profit body, organization or association or foundation, they must prove that: they have been legally constituted and are active in the field of protection of the rights and freedoms of data subjects with regard to protection of their personal data;

5. the complaint must contain at least the following identification data of the petitioner: name, surname, postal address of domicile or residence (and if the complaint is sent by e-mail, and the e-mail address of the petitioner). If the complaint does not contain the identification data of the petitioner ANSPDCP will file it;

6. when the complaint is sent through the representative, the following data will be provided: name and surname / name, postal address / headquarters, e-mail address, telephone number, registration number in the register of associations and foundations, if any applicable;

7. all the information that the petitioner knows and that serves to identify the operator or the authorized person who is guilty of the alleged violation, respectively: name and surname / name, address / registered office, etc .;

8. contain the handwritten or electronic signature of the data subject;

9. must refer to the steps already taken by the petitioner with the requested operator or proxy;

10. contain or have attached conclusive evidence of a breach of the provisions on the processing of personal data (if the petitioner has evidence);

11. Infringements may involve, for example: failure to take appropriate organizational or security measures by the controller / authorized person regarding the processing of the petitioner's personal data; the fact that the latter was not provided with any response to a request (by which he exercised his specific rights as a data subject) or was provided with an incomplete response or in violation of the mandatory term (one month, respectively 2 months), etc.

12. to specify whether other steps have been taken, such as the bringing before the courts of an action with the same object and with the same operator or authorized person (in this case ANSPDCP having the right to order the suspension and / or filing of the complaint, in depending on the specific data of the case);

13. for the violation of the right to privacy, family and private life in the field of electronic communications and electronic commerce, it is mandatory for the petitioner to specify '' telephone or fax number (s), e-mail address (es) or IP address (es) which are related to the subject of the complaint '';

14. for infringements concerning the “violation of the right to privacy, family and private life by the transmission of unsolicited commercial communications, by electronic communications services intended for the public, it is mandatory to attach the original messages received by the petitioner by a method to identify to the sender of that communication, messages which must be preserved, as far as possible, in the electronic system used by the petitioner. ''

II. The procedure for receiving and resolving complaints

The data subjects who lodge complaints with the ANSPDCP may request that certain personal data provided by them in the complaint be kept confidential, except where the identification data of the petitioner must necessarily be disclosed.

Wednesday, July 1, 2020

Legal conditions for identifying abusive clauses in loan agreements


Legal conditions for identifying abusive clauses in loan agreements

1. Abusive clauses in credit agreements have not been negotiated;

The bank is obliged to offer the possibility to negotiate the contract, thus removing the abusive clauses from the credit agreements.

Although a contract can be concluded by the simple agreement of will, in the banking financial field the negotiation is also essential, including especially regarding the abusive clauses. Once notified the competent court, from the evidence to be administered in the process, it will result that there was no negotiation, contrary to the task of art. 4 para. 3) of Law 193/2000.

The negotiated character of a contractual clause is not given by the fact of knowing the existence of this contractual clause, or more precisely by the bank / IFN policy regarding the respective clause, but by the possibilities of the consumer to effectively negotiate the elements of the clauses.

2. The inserted clauses are contrary to the exigencies imposed by good faith;

In this sense, as the specialized doctrine has shown, the verification of the abusive character of a clause presupposes the existence of a contract signed by the parties, so the conclusion of the contract itself cannot, at the same time, exclude the applicability of consumer protection norms.

3. Clauses considered to be abusive create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties.

If the banking institution has inserted in the contract a series of clauses regarding the bearing of foreign exchange risk, variable interest, analysis fee, risk fee and annual credit fee, their consequence being to burden the consumer with some additional amounts of money. , which do not have any consideration from the Bank, it is obvious the imbalance that has been created in the consumer's patrimony, he owing as a result of the clauses mentioned above a huge amount.

4. The clauses are not limited to the notion of "main object of the contract" so that they allow the intervention of the court regarding the restoration of the contractual balance.

Solutions to fight against abusive clauses

The most important solution should result from the Case of the Court of Justice of the European Union C40 / 08 Asturcom and from the national Civil Code:

Directive 93/13 on unfair terms in contracts concluded with consumers must be interpreted as meaning that a national court seised of a request for enforcement of an arbitral award which has acquired the authority of res judicata, rendered in the absence of the consumer, is bound as soon as possible. has the necessary legal and factual elements for this purpose, to assess ex officio the abusive nature of the arbitration clause contained in a contract concluded between a seller or a supplier and a consumer, insofar as, according to internal rules of procedure, it may such an appreciation in similar actions of an internal nature.

Therefore, the courts are obliged to verify ex officio the legality of all the clauses in the credit agreement.

There are a dozen legal norms, found in Directive 93/13 / EEC, Law 193/2000, Law 296/2004 and GEO 21/1992, which allow and oblige judges to restore the contractual balance, on the grounds that the forced executions of receivables increase the imbalance.

BUT, in practice this does not happen, the active - mandatory - role of judges is missing.
Whoever expects a judge to invoke ex officio defenses in favor of the debtor, ie the observance of a legal and professional obligation under the judge, will have a serious depression.