2 Sanda Ghimpu, Alexandru Ticlea, “Dreptul muncii, curs universitar”, Ed. AII . Alexandru Ticlea, Tratat de dreptul muncii, 2nd edition, Editura Universul Juridic. codul muncii comendat ticlea. p. 1 / Embed or link this publication. Description. codul muncii comendat ticlea. Popular Pages. p. 1. ALEXANDRU ICLEA. Associate Professor, Center for European Studies, Alexandru Ioan Cuza University of Iasi, .. Ticlea Alexandru (), “Tratat de Dreptul Muncii – Legislatie.
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Skip to main content. Log In Sign Up. English and Romanian Contact data: Journal of Legal Studies, a professional academic journal, published twice a year, commits itself to promoting dreptl academic communication about laws of Romania and other countries, covers all sorts of researches on legal history, law rules, legal culture, legal theories, legal systems, questions, debate and discussion about law from the experts and scholars all over the world.
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The abstract and the key words must be written only in English. The Exclusionary Rule determines that evidence obtained in violation yratat constitutional rights cannot be used in trial. This theory was adopted in the United States of America in and has spread to other countries. In the United States the Rule has been applied mainly to criminal proceedings because its primary objective is considered to be police deterrence.
Influenced by the American doctrines, Spanish courts have adopted not only the Exclusionary Rule, but also some of its exceptions. However, the Spanish Constitutional Court has defined a different rationale for the suppression of evidence.
In Spain the Exclusionary Rule is viewed alexandri a safeguard that derives implicitly from the system of fundamental rights. For this reason its scope is wider and it can also be implemented in non-criminal proceedings civil, administrative and labor. Because the development of the Rule by the US Supreme Court has served as an example to other countries, like Spain, international scholars have continuously studied this topic.
Nonetheless, the application of the Exclusionary Rule in the United States to civil proceedings has seldom been analyzed because it is less common and sometimes even thought of as impossible.
This study shows that, as a matter of fact, the US Supreme Court has contemplated the possibility of applying the Rule to cases like One Plymouth Sedan, Janis and Lopez-Mendoza, which were forfeitures and deportation proceedings of civil nature.
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The study concludes that in the United States, exclusion of evidence in civil proceedings is exceptional and very limited when compared to the ampler application of the Exclusionary Rule that occurs in Spain, where it is effective in both criminal and non-criminal proceedings.
For instance, any limitation of the fundamental rights and liberties of the defendant must be authorized by a judge. Therefore, when evidence is procured through the violation of constitutional rights it cannot be used in trial. This Exclusionary Rule of Evidence has been adopted in different countries as an instrument that delimits governmental powers in criminal investigations when constitutional rights have to be intruded upon.
As a variation aleaxndru this classical approach, the Spanish Constitutional Court has determined that the Exclusionary Rule should be applied to all kinds of proceedings, both criminal and non-criminal, whenever a fundamental right has been infringed, regardless of the governmental o private origin of the violation.
This is a crucial distinction because it establishes a series of rules and standards that must be respected by official agents and private citizens when gathering evidence that will be presented in trial. The underlying question to be considered is whether fundamental rights are to be respected only by the government or also by private parties; more specifically, should the judiciary allow individuals to violate constitutional rights, obtain evidence at any cost, and benefit in trial from their illegal behavior?
Just like in criminal proceedings, in civil proceedings it is also common for fundamental guarantees to be violated, especially privacy rights. The Spanish Civil Procedure Act of establishes a specific mubcii for excluding unconstitutionally obtained evidence, in accordance to the Exclusionary Rule stated in the Organic Law on the Judiciary.
Although Spanish courts have been applying the Rule to civil proceedings for the muncui decades, their perspective and doctrine is yet to be made known in Common Law countries.
The US Supreme Court has in fact examined the possibility of implementing the Exclusionary Rule in non-criminal proceedings. The cases discussed in this article are meant to introduce the reader to a theoretical and historical frame of how the Court has dealt with this issue. Nonetheless it must be observed that the doctrine of exclusion has evolved significantly during the last decades. This study analyzes the particular application of the Exclusionary Rule to non-criminal proceedings, comparing the doctrines of the United States Supreme Court and the Spanish Constitutional and Supreme Courts, and shows how the exclusionary doctrine could also be admitted, up to certain extent, in proceedings of civil nature in the United States.
The Origins of Exclusion When it comes to the suppression of unconstitutionally seized evidence, it has been recognized that, in the United States, such doctrine was created in through the case of Weeks v. Before the trial took place, Weeks made an application to the court for the return of his documents, but the order was ultimately denied. While analyzing Weeks, the Supreme Court referred to a previous case in which evidence was obtained in violation of the Fourth Amendment rights.
Interestingly, Boyd was not a criminal case, but a civil forfeiture. The suppression doctrine was adopted in Spain 70 years after Weeks, in a non-criminal case. In addition, there is an independent Constitutional Court with jurisdiction in all of the country.
The Evolution of the Exclusionary Rule The understanding and application of the Exclusionary Rule in the United States has evolved dramatically during the last century. As stated in Weeks, the doctrine appeared to be simple and clear: Soon, the Rule expanded through the adoption of the Fruit of the Poisonous Tree Doctrine, which required the additional exclusion of secondary or derivative evidence. First, it made the Exclusionary Rule applicable to the States.
Finally, the Supreme Court acknowledged the imperative of judicial integrity as a secondary rationale for evoking the Exclusionary Rule.
Soon, the Court observed that the exclusion of reliable evidence led to the liberation of guilty defendants. The conflict between Criminal Law enforcement and the protection of constitutional rights became more obvious with each new case that raised the issue of exclusion.
During the next years, the Supreme Court continued defining —that is, reducing— the scope of the Exclusionary Rule and, at one point, it began creating different exceptions to the suppression theory.
The Organic Law on the Judiciary is available in English at: United States, U. The total exclusion mandated by the Organic Law on the Judiciary, which also extended to secondary evidence fruit of the poisonous treestarted being diminished a decade after its creation.
What we find so compelling is that both the Spanish Supreme Court and the Spanish Constitutional Court kept referring to the American doctrines throughout the years and, eventually, adopted most of the exceptions developed by the Supreme Court of the United States.
As a consequence, exceptions to the Exclusionary Rule were introduced in Spain by case law, even when they openly contravened the legal disposition established in article This is a troublesome situation when it happens in a Civil Law country, where the courts are bound by the laws and are not free to create precedent that contradicts a valid law that is in force. In Civil Law countries, written laws are the predominant source and courts must respect and apply such laws in their judgments.
On the contrary, in Common Law systems, the primary source is case law and it is up to the courts to define legal issues through the establishment of precedent in their judgments. Therefore, it would be expected that the Spanish courts would directly apply article The reasons are probably related to criminal policies and social exigencies, but the situation is bizarre and has been criticized by Spanish scholars because it diminishes legal and constitutional procedural guarantees.
This is because the Exclusionary Rule has a positive legal base article This probably occurs because the public interest of truth-finding is less strong when the process is strictly related to private matters. As a result, the need of protecting fundamental prevails and unlawful evidence is excluded by the trial courts or by the courts of appeals.
The Purpose of Suppression As originally stated by Weeks, the exclusion of unlawfully seized evidence was meant as a protection that would make the Fourth Amendment effective. According to article of the Spanish Civil Procedure Act, in order for evidence to be admissible in trial, other than pertinent and lawful it must also be useful meaning that it has to be suitable for the purpose of demonstrating what the party contends. The translation to English of the Spanish Constitution is available at http: In order for the Rule to apply, the benefits of deterrence must outweigh the social costs of exclusion which mainly are the suppression of reliable evidence and the liberation of a guilty defendant.
In contrast, the protection of constitutional rights is the exclusionary rationale that has subsisted in Spain. The suppression of unlawfully obtained evidence serves as a way to protect the substantive and procedural fundamental rights that have been violated through the seizure of the evidentiary sources.