universitatea „spiru haret“ - CLPA-CT

Transcription

UNIVERSITATEA „SPIRU HARET“
FACULTATEA DE DREPT ŞI ADMINISTRAŢIE PUBLICĂ
CONSTANŢA
JURNAL DE STUDII JURIDICE
ŞI
ADMINISTRATIVE
JOURNAL OF LEGAL
AND
ADMINISTRATIVE STUDIES
VOLUMUL 3
Constanţa - 2012
JOURNAL OF LEGAL AND ADMINISTRATIVE STUDIES
JURNAL DE STUDII JURIDICE ŞI ADMINISTRATIVE
poate fi accesat on-line pe
www. clpa-ct.ro
ISSN 2069-2137
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COMITETUL DE RECENZORI / ADVISORY BOARD:
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Conf. univ. dr. Gheorghe ALECU, Universitatea “Spiru Haret”, Bucureşti
Prof. univ. dr. Alexei BARBĂNEAGRĂ, Universitatea Liberă Internaţională din Moldova
Prof. univ. dr. Liviu - Stelian BEGU, Academia de Studii Economice, Bucureşti
Prof. univ. dr. Alexandru BOROI, Academia de Poliţie „Alexandru Ioan Cuza”, Bucureşti
Prof. univ. dr. Tudorel BUTOI, Universitatea “Spiru Haret”, Bucureşti
Prof. univ. dr. Dragoş CHILEA, Universitatea „Petru Maior”, Târgu Mureş
Conf. univ. dr. Gheorghe DINU, Universitatea “Spiru Haret”, Bucureşti
Prof. univ. dr. hab. Alexandru GRIBINCEA, Universitatea de Stat din Moldova, Chişinău
Prof univ. dr. Romeo - Victor IONESCU, Universitatea “Dunărea de Jos”, Galaţi
Prof. univ. dr. Ştefan MINEA, Universitatea Babeş Bolyai, Cluj Napoca
Prof. univ. dr. Lavinia NĂDRAG, Universitatea Ovidius, Constanţa
Prof. univ. dr. Nicolae PUŞCAŞ, Universitatea “Spiru Haret”, Bucureşti
Conf. univ. dr. Adela VOICU, Universitatea “Spiru Haret”, Bucureşti
Lector univ. drd. Gabriel GRIGORE, Universitatea Ovidius Constanţa
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EDITORIAL BOARD/ COMITET DE REDACŢIE
Editor-in-Chief / Redactor şef
Conf. univ. dr. Roxana TOPOR, Facultatea Drept şi Administraţie Publică, Constanţa,
Universitatea “Spiru Haret”
Vice Editor-in-Chief / Redactor şef adjunct
Lector univ. dr. Patrick LAZĂR, Facultatea Drept şi Administraţie Publică, Constanţa,
Executive Editor/ Editor executiv
Lector univ. drd. Ingrid NICOLAU, Facultatea Drept şi Administraţie Publică, Constanţa,
Editorial Secretary/ Secretar de redacţie:
Lector univ. drd. Raluca LUPU, Facultatea Drept şi Administraţie Publică, Constanţa,
EDITORIAL BOARD / CONSILIU EDITORIAL
Lector univ. drd. Bogdan BARAŢĂ, Facultatea Drept şi Administraţie Publică, Constanţa,
Lector univ. drd. Cristina BOROIU DRAGOMIR, Facultatea Drept şi Administraţie Publică,
Constanţa, Universitatea “Spiru Haret”
Prof. univ. dr. Olga DUŢU, Facultatea Drept şi Administraţie Publică, Constanţa, Universitatea
“Spiru Haret”
Lector univ. dr. Tiberiu DUŢU, Facultatea Drept şi Administraţie Publică, Constanţa, Universitatea
“Spiru Haret”
Lector univ. drd. Bogdan GHIŢULESCU, Facultatea Drept şi Administraţie Publică, Constanţa,
Asist. univ. drd. Liliana MĂNUC, Facultatea Drept şi Administraţie Publică, Constanţa,
Asist. univ. Claudiu LESNI, Facultatea Drept şi Administraţie Publică, Constanţa, Universitatea
“Spiru Haret”
Lector univ. dr. Laura PATACHE, Facultatea Management Financiar Contabil, Constanţa,
Lector univ. dr. Ion M. ANGHEL, Facultatea Drept şi Administraţie Publică, Constanţa,
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CONTENT
THEORETICAL AND LEGAL REFLECTIONS ON CORRUPTION –
A REAL CALAMITY OF THE CONTEMPORARY WORLD.............................................. 7
Associate Professor Ph.D. GHEORGHE ALECU
Ph.D. Student CAMELIA DOINA MICU
HISTORICAL FORMS OF JUDICIAL PROCEDURE:
UNITY AND DIFFERENTIATION - I - .................................................................................. 12
Ph.D. Lecturer ION. M. ANGHEL
UNITY AND DIFFERENTIATION - II -................................................................................. 17
Ph.D. Lecturer ION. M. ANGHEL
EVOLUTION AND DEVELOPMENT OF MISSIONS FOR PEACE
KEEPING IN AREAS OF CONFLICT.................................................................................... 23
University Lecturer PhDc. ANA-MARIA BEJAN
THEORETICAL AND PRACTICAL CONSIDERATION ON
OFFENCE COMMITTED WHILE ON DUTY OR CONNECTED TO
THE DUTY.................................................................................................................................. 28
Ph.D. Assistant Professor COSTEL COSTAŞI
CRIME OF BRIBERY BRIEF REFERENCE TO THE ROMANIAN
LEGISLATION AND LEGISLATION OF OTHER STATES.............................................. 35
Ph.D. Assistant Professor ADRIANA NICOLETA CULEA
WITNESS PROTECTION Persons Heard As Witnesses
Ph.D. Lecturer TIBERIU DUŢU ............................................................................................... 42
LIMITS OF THE PERSON’S RIGHT TO IMAGE IN THE NEW
CIVIL CODE .............................................................................................................................. 47
Ph.D. Assistant Professor LILIANA MARILENA MĂNUC
FOUNDATION OF FOREIGNERS LAW IN FRANCE........................................................ 51
University Lecturer Ph.Dc. INGRID NICOLAU
University Lecturer Ph.Dc. RALUCA LUPU
EXERCISE OF PARENTAL AUTHORITY AFTER DIVORCE ........................................ 55
Associate Professor Ph.D ROXANA TOPOR
University Lecturer Ph.Dc. CRISTINA BOROIU DRAGOMIR
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THEORETICAL AND LEGAL REFLECTIONS ON CORRUPTION – A
REAL CALAMITY OF THE CONTEMPORARY WORLD
Associate Professor, PH.D. GHEORGHE ALECU
PH.D. Student CAMELIA DOINA MICU
Spiru Haret University
The Faculty of Law and Public Administration Constanta
Abstract
The phenomenon of corruption represents an important study object for most of law specialists,
theoreticians or practitioners, as it is a real calamity that worries nowadays both governments and
the public opinion throughout the world.
The corruption manifests itself on economic, administrative, legal and political field in any society,
as it is an abuse of authority and power, an use of public function for private interests by breach of
laws by various people through bribe, fraud, blackmail, traffic of influence or any facts or deeds
punished by law.
Key words: corruption, civil servant, calamity, legal, prevention, fight.
1. Preliminary thoughts
The corruption as phenomenon has been present in all fields of social and political life from
the oldest times, but today an extraordinary high frequency of bribe-taking deeds is noticed, which
is a negative issue.
That is why the law maker incriminated this crime and today a sustained campaign is led in
order to eradicate the corruption represented by bribery. Beside the bribe-taking, the traffic of
influence is often met, these two being the main corruption deeds committed by civil servants or
other private individuals, but they are also the most dangerous1.
Bribe-giving, unlike bribe-taking, is considered a job-related crime as by corrupting a civil
servant the image of a public institution or of a legal entity is stained, as well as the prestige of the
relevant civil servant.
The receiving of undue benefits was incriminated because the exercising of the job duties, the
actions a civil servant has to accomplish for his/her job should not represent a source of illicit
revenue for the relevant person. Nevertheless, the act is not as serious as the bribe taking, as in the
later case the civil servant receives benefits after he/she accomplished the act according to his/her
job duties and with no constraint on the act beneficiary.
Taking into account that such deeds are highly increasing, the Romanian legislation in force
tries to pay more attention to the corruption phenomenon at all levels.
2. Corruption forms
The corruption may have various forms2:
1. The political corruption – manifests itself especially under the form of pressure and even
blackmail of public servants in order to determine them to adopt illegal decisions or at the limit of
laws (breaching moral laws). The purpose may be the obtaining of material benefits or other kind of
benefits.
The political corruption is the one who creates the conditions for the phenomena we call
economic criminality or organized crime – meaning „offending activities of some groups created on
conspiring principles in order to obtain important illicit revenues”3.
Illicit deeds are committed especially in inter-relational forms, more or less complicated, that
illustrate the term of „crime organization” and the term of „white collar criminality”, because,
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according to the American criminologist Edwin Sutherland, „generally the job, the function creates
the context, the opportunity and sometimes even the reason why crimes were committed, the putting
into practice of illicit deeds being made directly or indirectly in a relational assembly. The person’s
social position as well as the social-economic-political context he/she is part of hinders the criminal
justice action”4.
In our country the problem regards the corruptness of some isolated politicians or of some
high-function clerks of the executive branch. Usually a politician is surrounded by a big number of
corruptors who wish to ensure through corruption a rich source of revenues.
2. The administrative corruption – the most common, spreading from the act of the civil
servant who claims a benefit from the drawing up of a document, which would actually be his/her
duty, until the misuse of public property, for personal interests, by people in key-position of the
state administration.
In general, civil servants elude the regulatory provisions for public tender announcements,
favor certain companies or societies when granting agreements (sometimes by getting a percentage
from their benefit as bribe), forge tender documents, illegally distribute plots of land or apartments,
persuade other civil servants to neglect law breaches etc.
3. The economic corruption – covers a very wide area, from „money laundering” meaning
reinvesting in licit affairs the money obtained from illicit affairs, by using complicated internal and
international financial circuits, to tax evasion, banking evasion, traffic of licenses, non-payment of
custom duties and taxes, forgery of checks and use of uncovered checks, big mark-ups, speculation
and other dissimulated transactions such as disloyal competition or goods smuggling5. The massive
and unscrupulous aggression related to thefts, fraudulent administration, dilapidation and other
forms of „economic vandalism” practiced by law-breakers through cunning methods is in most of
the cases accompanied by corruption deeds.
Thus, in the productive branches of the economy, the corruption encompassed the whole
privatization process, especially the illegal transfer of state property through underassessment, from
state trading companies and autonomous administrations to private entities6.
The conditioning of goods delivery, the acceptance of low quality products in exchange of
material advantages consisting in money, goods or percentages of the business conducted, all these
triggered material prejudices.
Representative for the generalized corruption in the transitional period of the latest years is
the situation in agricultural and forestry field, in the trade and services provision fields (where
corruption deeds are outright), in the banking and customs fields.
The positive change of the internal specific conditions as well as the intensification of the
international cooperation in the fight against crimes can decisively influence this trend in its longterm evolution, the removal of factors towards which the criminological research of the
phenomenon is heading to, while identifying and explaining objective and subjective reasons that
determine efficient measures and programs meant to prevent and fight the phenomenon7.
Like a real calamity that tends to erode the fundamental institutional bases of the state subject
to the rule of law, the corruption represents a phenomenon that worries nowadays both governments
and the public opinion throughout the world.
Starting from the studies conducted on the phenomenon of corruption, a single conclusion is
drawn, namely that it cannot be dissociated from the evolution and changes every human society is
subject to. The corruption manifests itself on economic, administrative and political field in any
society, being an abuse of authority and power, a use of public function for private interests by
breach of laws by various people through bribe, fraud, blackmail, embezzlement, traffic of
influence or any facts or deeds punished by law.
The phenomenon of corruption intensified and amplified itself along with the development of
the modern society and of the capitalist economic order, but it did not manifested itself only within
the capitalist system; it was also felt in the former states of the socialist system, among which
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Romania, but it was there minimized or even ignored by the political factors of the relevant period.
Thus, though during the communist regime many bribery, fraud, deceit, abuse of authority,
nepotism and favoritism deeds existed, they were considered only as job-related crimes committed
by various civil servants and the criminal law did not use the term of corruption for such deeds8.
The transition period the Romanian society is running for over 20 years is characterized y an
aggravation of the corruption phenomenon. Thus, the corruption is manifested both in public and
private sector, affecting the main state powers: culture, education, health sector, economy, justice,
financial-banking sector, public order and national security.
One of the most serious types of corruption in Romania is in the field of public
administration. The Romanian public administration is a potential corruption source because the
procedures for the issue of authorizations, permits etc. are subjectively interpreted by servants.
The legal practice shows many corruption cases whose subjects were civil servants. We will
analyze the most important ones.
The corruption at the level of the central public administration is known as “the big
corruption” and is represented by disadvantageous public procurements, fraudulent privatizations,
preferential issuing of authorizations and permits, as well as exemption or reduction of taxes, fees
or duties of a company.
The corruption at the level of the local public administration generally has the character of
"small corruption". Nevertheless, on the long run it can have negative effects that may affect the
good functioning of the local public administration.
The bribe-taking/giving and the traffic of influence became current practices for the obtaining
of an apartment, of business premises, authorizations, certificates, driving licenses or car
registration permits or for determining officials to put discriminatorily into practice the law of the
land law or the real estate retrocession law.
The granting of concession agreements or of public tender agreements related to works,
goods or services is quicker when officials of the local public administration are "stimulated".
The illicit transfer of resources from the public patrimony to the private patrimony by
perturbing the activity of autonomous administrations or of state-own trading companies or through
their fraudulent privatization rely on corruption deeds9.
Moreover, it was noticed that the various benefits people should have received had been
preferentially granted by local officials.
The controls performed on the methods the staff within the local public administration is
recruited showed that recruitment was made not based on competencies, but based on money,
nepotism or political criteria.
Illegal international adoptions were favored by the illicit deeds of some servants of the local
administration who, in exchange of money, forged documents on which adoptions were based10.
The customs authorities are seriously affected by the phenomenon of corruption. Thus, there
is already a habit of granting money or goods to customs officers in order for them not to duly
perform their control duties, which favors smuggling, traffic of human beings, of drugs and stolen
cars.
Scientific researches and the existence of relevant criminal files show that there is corruption
in the legal system as well, though it is the system meant to fight corruption. Thus, corruption deeds
are present at the level of each body involved in the law implementation, namely courts,
prosecutors' offices, judiciary police and other bodies that contribute to the performance of legal
acts and to the maintenance of public order.
“Presents blind wise men's eyes and change correct men's words”, said Jouss in “Traité de la
justice criminelle de France 1771”. That is why the justice corruption is, perhaps, one of the most
serious forms of crime11.
The bribe-taking/giving, the taking of undue benefits, the traffic of influence, the forgery, the
abuse of position are all common practices of servants in the legal system. This aspect determined a
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decrease of people's confidence in the Romanian justice, though the phenomenon of corruption has
not encompassed the whole body of magistrates.
The corruption in the legal field is related to deeds committed by certain magistrates,
prosecutors and judges, regarding the postponement of criminal deeds investigation, the taking or
revoking of preventive measures, absolution decisions or decisions for the application of soft undue
punishments, decisions of license supervision, granting or revoking of citizenship, of the refugee
statute, land and nationalized estate retrocession, approval of international adoption requests.
The corruption phenomenon is also present in simple causes such as divorces, partitions,
paternity files, adjudication of incapacity, when people whose responsibility was to obey laws made
decisions in favors of those who offered important amounts of money.
Forms of corruption are also found in the business field. The business corruption materialized
in Romania after 1989, because the period of the communist political regime did not permit private
initiative.
The phenomenon of corruption manifests itself on economic field in all its sectors: financialbanking system, industry (automotive field, metallurgy and ferrous metallurgy field, energetic
resources), agricultural and forestry field, marine, inland and fishing fleet sector, tourism.
The phenomenon of corruption manifested in the financial-banking system under the form of
forgery, fraud, abuse of position, bribe taking and giving, taking of undue benefits, traffic of
influence, money laundering, tax evasion.
The legal practice shows us various activities of the servants in the financial-banking field,
whose main object was corruption deeds such as: preferential granting or facilitating of credits,
without meeting the legal requirements and based on fictive guarantees, the issuing of uncovered
checks or promissory notes.
An important pillar of the national economy, the industry, has been affected by various forms
of the corruption phenomenon. The automotive field, metallurgy, ferrous metallurgy, energy
represent all attractive sectors for those who want to get rich quickly. Thus, in the companies acting
in these fields, the management concluded agreements with clearly disadvantageous provisions to
state companies, made inefficient investment and reengineering actions, with high costs for low
performance plants, in exchange for important fees; they made illegal privatizations by taking over
undervalued state patrimonies12.
Another strategic sector of the Romanian economy, agricultural and forestry field, was
seriously affected by the phenomenon of corruption. Thus, the activity of property right restoration
by breach of Law no. 18/1991, unauthorized land clearings, illegal exploitation of wood are only a
part of the corruption deeds present in this sector.
Seriously affected by the phenomenon of corruption have also been the marine, inland and
fishing fleets as well as the tourism sector, where bribe-taking/giving, traffic of influence and abuse
of power deeds were committed.
In conclusion, we consider that the specific aspect of the corruption phenomenon requires
special attention from authorities. That is why I consider that, in order for the corruption
phenomenon to decrease, efficient strategies for corruption prevention and fight are necessary. This
may be possible by knowing its causes, forms, features, amplitude at national as well as
international level.
In such conditions, the national and international authorities, individually or together, should
identify the most efficient fight methods by adopting strategies meant to prevent and fight
corruption; but in order to have positive results, the state authorities as well as the civil society
should get involved.
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Bibliography
1. A. Boroi, Gh. Nistoreanu, 2005, Drept Penal. Partea specială, IIIrd Edition, All Beck Publishing
House, Bucharest ;
2. C. Păun, Crima organizată sau organizarea crimei, in the Annals of the Police Academy ”Al. I.
Cuza”, Bucharest, 1993;
3. C. Voicu, A. Boroi, 2006, Dreptul penal al afacerilor, C.H.Beck Publishing House, Bucharest;
4. D. Ioan, D. Banciu, S. M. Rădulescu, 2005, Corupţia în România – realitate şi percepţie socială,
Lumina Lex Publishing House, Bucharest;
5. E. Cherciu, 2004, Corupţia – caracteristici şi particularităţi în România, Lumina Lex Publishing
House, Bucharest;
6. Gh. Alecu, 2010, Instituţii de drept penal. Partea generală şi partea specială, Ovidius University
Press, Constanţa ;
7. Gh. Nistoreanu, C. Păun, 1993, Criminalitatea financiar – bancară, Th symposium ”New forms
of criminality”, organized by the Romanian Society of Criminology and Criminalistics, Bucharest;
8. I. Pitulescu, 1996, Al treilea război mondial. Crima organizată, Naţional Publishing House,
Bucharest.
Reference
1
Al. Boroi, Gh. Nistoreanu, 2005, Drept Penal. Partea specială, IIIrd edition, All Beck Publishing
House, Bucharest, p. 348.
2
Ibidem.
3
C. Păun, Crima organizată sau organizarea crimei, in the Annals of the Police Academy ”Al. I.
Cuza”, Bucharest, 1993, p. 55; Gh. Nistoreanu , C.Păun, Criminologie, p. 254, apud E. Stuherland,
White Collar Crime , New York, Dryden Press Publishing House 1949, p. 9.
4
Gh. Nistoreanu, C. Păun, 1993, Criminalitatea financiar – bancară, The symposium ”New forms
of criminality”, organized by the Romanian Society of Criminology and Criminalistics, Bucharest.
5
I. Pitulescu, 1996, Al treilea război mondial. Crima organizată, Naţional Publishing House,
Bucharest, p. 378.
6
Gh. Alecu, 2010, Instituţii de drept penal. Partea generală şi partea specială, Ovidius University
Press, Constanţa, p. 411.
7
Gh. Alecu, 2010, Instituţii de drept penal. Partea generală şi partea specială, Ovidius University
Press, Constanţa, p. 412.
8
D. Ioan, D. Banciu, S. M. Rădulescu, 2005, Corupţia în România – realitate şi percepţie socială,
Lumina Lex Publishing House, Bucharest, p. 11.
9
C. Voicu, A. Boroi, 2006, Dreptul penal al afacerilor, C.H.Beck Publishing House, Bucharest, p.
6
10
E. Cherciu, 2004, Corupţia – caracteristici şi particularităţi în România, Lumina Lex Publishing
11
E. Cherciu, 2004, Corupţia – caracteristici şi particularităţi în România, Lumina Lex Publishing
12
E. Cherciu, Corupţia – caracteristici şi particularităţi în România, Lumina Lex Publishing
House, Bucharest, 2004, p. 64-65.
11
UNITY AND DIFFERENTIATION
-IPh. D. Lecturer ION. M. ANGHEL
Abstract:
Study of judicial procedure in terms of history, revealed that contemporary judicial
procedure derived from the old public institutions. The notion of law as a trial phase is very
important. Political bodies and extraordinary during the totalitarian regime violated the principle
of equality in face of the law. This is why the viability of judicial and law reform as an
indispensable component part of the society reform is widely recognized by modern civilization.
Keywords: judicial procedure; public institutions; law reform; modern civilization.
The mode of social organization, in which manifest a state, represents the primary values
system of the terrestrial domain, as well as the doctrine through which governs. The theorists and
practitioners of law have insisted in their research and studies on the rules and forms of ancient,
medieval and modern judicial procedure, analyzing numerous concepts, principles and rules that are
present in the contemporary civil and criminal procedure. So, the judicial procedure is considered as
a legal and historical element that appeared in antiquity. In its historical development, the court
procedure, had known in terms of structure and principles three distinct forms: the accusing form,
inquisitorial form and mixed form.
To understand the authentic essence of justice and of the process from different social
formations it is necessary to examine them not separately from other phenomens of the state and
juridical life, but in close collaboration with them. So, we will be unable to deepen ourself in the
essence of the studied phenomenon, and we will remain at their surface. Going through
the”democratic” forms of the judicial process from the slave state, accessible only to an
insignificant group of free people, we will neglect the germs of that simplified repercussions to
which slaves were subjected. So, beyond the pompous decorations of the heliast trial from Athens,
marked by archaic formulas of oath of the parties and speeches written for them by logographers,
we will see the activity simple as form, but quite evident as class orientation of the “terrible
eleven”, who was performing the surveillance on slaves, and the cruel procedure of torture and
execution of any slave suspected of actions or intentions which were dangerous to the owners
authorities of slaves.
Same wrong would be the examination of the justice and of the process in the era of
feudalism and to insist only on the “judgement of the equals”, to which were initially subjected the
feudal knights, and later the members of merchants corporations from the freed cities of senior
dependence. Then, should not be omitted the fact that enormous masses of peasants were subject to
another 'judicial orders' – the boyars court.These courts have remained unchanged for several
centuries, but does not entirely satisfy the appropriate authority and did not have the necessary
coercive force to intervene decisively in the social life. Along with the widening of the
humanitarian rights of seniors and with the amplification of the respect of which they benefited
from the residents, using the old form of court procedure, they become more subjective in
pronouncing the decision, exploiting litigious situations according to personal interests.The
judiciary power, in France and, not only, is monopolized later by feudal. Judges are now designated
from among persons with a respected social status in society. The count, the vicar or the centennial
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have convoked the Meeting of the free people of the hundred, situattion in wich these judges were
elected – rahinburgi. The panel of judges was led by an elected president, called tunghiu. 1
At debates had to attend all community members, “the free people of hundred”,mature men.
In the beginning, the representatives of the monarch have supervised the conduct and fairness of the
process and then they took the lead of the panels of judges, replacing the tunghinies. In this
situation the judges – “rahinburgi” are removed by the ‘missi”, and the obligation of free people to
participate in the process is canceled. 2
The situation of the serf had been insignificant different from that of slaves. If the noble
“senior” was not personally fighting with his own serf, which was entirely possible, then to trial,
which was accomplished by the old feudal, as a means for giving the decision to please the master
were the ‘tests’ of the hot iron, of the boiling water or the most refined tortures.In the period of the
developed feudalism, the french judicial organization has been totally modified, area in which
seniors have extended their rights, holding as a consequence an extra power over the peasants and
other classes of simple people.
Beginning from the finding that the legal procedure is contemplated as a historical and legal
element and that the legal proceedings form, during history, vary significantly, is changing and
develops gradually, in direct corroboration with the general evolution of society futher we will
analyze in detail the modern qualitative changes, which have been produced, first of all, in the
modern age and which have been constituted for the ending of an important stage in the evolution
of justice.Namely, in the Modern Age, justice organization corresponds, in general lines, equalities
of all citizens, equalities that were proclaimed in political life from Western European states, which
are derived from new production relations.
The specificity of this period consists in establishing by law the organizing of the judicial
instances, of their competence,the judging principles for criminal cases and civil trial, separation of
blaming,the procedural position of the parties, the active position of the trial for the parties.We can
also ascertain that during the investigated period is promoted the principle of delimitation of powers
in the states. I mean, the judicial power is separated from other powers of the states.Any judge is
invested with a competence of jurisdiction limited by law. Autonomy, independence and
immovability of of judges is guaranteed by delimiting the tasks incumbent upon the legislature and
executive. To solve criminal and civil cases the judicial authorities have the obligation to apply
precisely the criminal law and civile law. The violations rights of the parties attracts invalidity of
the acts that are made abusively. Respecting the law by developing and solving the civil and
criminal cause is assured by making procedural and other nature guaranties. Appear the procedural
and processual nullity of the acts made with violation of some essential provisions of the law of
criminal and civil procedure, for which is provided the absolute nulity, operational in all the cases.
We can highlight other guarantees also, such as the regulation of surveillance and judicial
control, either from officio, either on referal or on way of attack used by stakeholders, means which
ensure the discovery of the violations of law and by applying appropriate sanctions.The society
manifest a major preoccupation for the body of magistrates, which should correspond to the
professional exigency, experience of life, ethical necessary for exercising respective functions.Of
mention that many authors have been, at their turn,preocupied to make necessary delimitations
between this range of problems, institutes, and advanced scientific doctrines in the realization of
justice.Applying of positivism in law field,as also the legal socialism, has found the echo also in
Romania, under the shape of the function theory social of property, abuse of the law, the active role
of the magistrate, celerity of the procedure. 3
The entering and the circulation in Romanian Principalities of operas from progressive
writers from Great Britain, France, Italy and other European countries, have contributed largely, to
familiarize the people of culture, and not only them, with the visions of the enlightenment on the
principles of fairness, freedom and equality. 4
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One considerable beneficial effect have been held by translations and the publication in
romanian language of some of the major works of the Enlightenment. 5
The procedural criminal and civil procedural doctrine reflected, following the analysis of the
procedural legislation at European level, different opinions in the last three centuries. The solutions
formulated on the edge of juridical issues in the operas of doctrinaires: Grotius, Montesquieu,
Helvetius, Rousseau, Voltaire, Buffon, Diderot, D'Alammbert, Cezare Beccaria, etc. have
concretized in a doctrinal theme in european history effort to build an equal world. The French
criminal procedure code (1809) introduce the mixed process, respectively researching the case in
the initial phase, that is, until trial, performed secretly and in writing, the final phase being the final
judgment, that is based on the principles of oral verbosity, advertising and adversarial. In the
research case of the first phase have acted designated bodies by law, and at the trial phase, the
accusation was sustained by prosecutor, the lawyer having the right to reply.In some states these
new doctrines have been implemented with great suspicion, and stopped the reform of judicial
procedure. Thus, Lenin declared so unsatisfied by the accepting principles of civil and criminal
proceedings in Russia at the end of the nineteenth century early twentieth century. Lenin has
analysed erroneously the contradicting civil process from Russia, emphasizing on this part of the
problem, on the connection between the contradictory character of the process and private property.
This "progress" and this "culture" which the reformed Russia brought with it are, without doubt,
related with the "institution of private property"- this was promoted for the first time entirely by
creating a new civil trial “in contradictory” that ensures the same "equality" in court that portray life
in " free work' and by selling its to the capital. 6
According to General Rule, in bourgeois-democratic countries, do not function courts on
social categories and is not attest no special system for the process of subjected classes.The
contradictory, which emphasizes formal equality of disputes in the civil process or allegations of
state representative accused in criminal proceedings, consists in the bourgeois justice, most
convenient form for the governance class and therefore an universal one. 7
We will present examples and on the other principles that were rejected by the new
Bolshevik ideology. Bolshevik doctrine, tributary to accredited to the idea of Lenin, he did not
tolerated even the statements about the real essence of bourgeois justice, as independence of the
judiciary, constantly emphasized by theoreticians of the modern age and which, supposedly, was
protected by the immovability of judges. We do not doubt the correctness of the principle, because
Lenin, through some observations made, is printing the sense of class and anticipates the mission of
immovability of the judges in the bourgeois states. “The irremovability of of judges, however, of
which the liberals bourgeois, in general, and of our, russians in particular, are making so much case,
is only a division of the medieval privileges between owners of serfs and bourgeoisie…. In the
middle of the century appointment of the judge was exclusively in the hands of feudal and
absolutism. The bourgeoisie, obtaining now a wide access to the circle of judges, defend itself of
the feudal with the help of ' the principle of immovability" (because judges appointed,
in mostly, will inevitably be, in virtue of belonging to the most "trained" jurists by the
bourgeoisie). 8
Celtov-Bebutov M.A. considered, also, necessary to work with the observations mentioned
in the works of Lenin, specifying that an even greater importance in the theory of process, as a
means of masking of the true essence of bourgeois justice is possess by the institution participating
in the trial of so called "representatives of the people", institution that exist in the bourgeoisdemocratic states. Are known two forms of this participation. The Justice of Schoffen from
Germany was a less democratic form. The judge of the district and two Schoffen assessors during
the trial causes of contraventions have resolved in common, the problem of guiltiness and the
penalty. That's why, the permanent judge influence over " the representatives of the people" was
here very big. 9
14
A more democratic form was the Court of Juri, in which, 'the representatives of the people",
usually being twelve, have constituted one separate college of judges of the crown. This college
have independently solved the problem of demonstrating the criminal offense and the defendant's
guilt in accordance with the results of judicial investigation conducted under the lead of the
judiciary of the crown. Establishing the punishment, in case of the sentence for charges made by the
jury,was made by the judges of the crown.Doctrinarians of the judicial procedure, and the experts of
the constitutional law, considered the court of jury as an expression of people's sovereignty and
emphasized that this form of justice ensures, first of all, full equality of all citizens before the
criminal law, and secondly, denoted the subordination of the state, which was demanding
punishment of the guilty, the right spoken by the representatives of people.Compared with the
justice feudal - landowners, with the secret process and written process, in which the judges under
the analysis of evidence mentioned in the minutes, emphasized the best proof as being the accused's
confession, although it was obtained by torture, bourgeois justice was, without doubt, a progressist
phenomenon.That's why, the slogans launched by the bourgeoisie who acceded to power and,
especially, her programmed demands in the domain of justice, were supported by all the oppressed
classes by the feudal states.By taking over the information introduced by Lenin on the nature of the
modern legal procedure,Soviet theorists have argumented that, in fact, the new justice was created
exclusively for the defense of the bourgeois interest. The book of Friedrich Engels "The
Constitutional problem in Germany" as specified by Celitov Bebutov, made light on the issue so
controversial for the new type of property, because Engels reveals that the bourgeois needs in
safeguarding the new type of ownership formed the basis of its requirements to substitute the justice
and the old process with new ones. “The bourgeoisies have need for the processes related to
property, at least such a guarantee as it is the advertising, and for criminal trials also needs a court
with jury,a permanent control over the justice by the representatives from bourgeoisie”. 10
„But is completely clear, Celtov - Bebutov MA mentions, that two courts are made to satisfy
the bugeoisie interests ,they will be organized in such a way that these interests to be satisfied
permanently and fully”. And, indeed, in any bourgeois state, regardless of differences in details of
organization of courts and modes of procedure, the main purpose of class is always reached, wrote
Lenin. Also, the bourgeois-democratic forms, allows to the theorists to assert, and to many citizens
to believe that justice protects the interests of the whole society as a whole and the individual rights
of each citizen. 11
These particularities of the structure of bourgeois justice had been in mind of Lenin when he
affirmed that: “bourgeois justice portray the defense of order, but in reality was only a blind tool,
refined by ruthless repression of the exploited ones, a tool to defend the interests for the bag of
money. 12
Lenin did not neglect even the most democratic form of bourgeois justice - the court with
jury. Referring to the activities conditions of the courts in tsarist Russia, and continuous attacks on
its, he mentioned the progressionist role of the court with jury compared to court that were acting in
Russia with the participation of “the representatives of social strata”. Lenin also emphasized, that
jurors are not so interested by the articles of punishment Code,which were violated by the
defendant, but by the social conditions that caused the infractions. 13
Lenin was far from idealizing the court with jury. Examining its activity in terms of
component by the jury of class, he opines that those courts with jury could have been used by the
workers, If in bourgeois society would not have been arranged so that it "can not be jurors only
wealthy class people". 14
That jurors are chosen (and sometimes even selected) from medium and small classes of the
bourgeoisie is confirmed undoubtedly by the legislation of all Member bourgeois. In England has
been in force for a long time the law of 1825 which established the requirement of a high census of
wealth, as a condition for inclusion in lists of Jurors. 15
15
It is known that in 1949, the question of a member of the House of Commons if the
Government does not considers it necessary to democratize the court with jury by canceling the
census of wealth or by reducing it,the labour government representative responded negatively.
Bibliography
1. CELŢOV A., BEBUTOV M.A., 1995, Course of criminal procedural law. Studies about
the history of the criminal trial and criminal proceedings in workers, feudal and bourgeois state,
Ed. Alfa, Sankt Petersburg, Ravena
2. CETERCHI I., 1987, Coord. The history of the Romanian law, Ed. Acad. RSR, Bucureşti
3. GRAMA D., 2000, Trends od the legal doctrines evolution in Moldova (1774-1859),
Editura ACTAMI, Bucuresti
4. SMOCHINA A., 2006, The universal history of the state and law , „Bons Offices “,
Chişinău
References
1
A. Smochina, The universal history of the state and law, Chisina : “Bons Offices”, 2006,
552 p., p.127
2
Ibidem….., p. 162.
3
Coord.: I. Ceterchi The history of the Romanian law. Vol II (part two), I., Bucharest: Ed.
Acad. RSR, 1987, 501 p., p.215.
4
D. Grama, Trends od the legal doctrines evolution in Moldova. (1774-1859), Bucharest: Ed.
ACTAMI, 2000, 272 p., p.152.
5
A source of efficient spreading of the Western European Enlightenment concept ions for the
principles of justice, liberty and equality was “ Nakazul Ecaterinei a II –a “ from 1767, edited at
Sankt-Peterburg in 1770 in russian, latin, german and french, and in Iasi in romanian language.
“Nakazul” through art number 35, had familiarized the romanian scribes with the conceptions of
Montesquieu about the equality in law.
6
V.I. Lenin, About the appearance in court of the Bolshevik leaders” Operas, Tomul 25, p.
155-156.
7
Reffering to this problem is significant the honest recognition of the economist Max Weber,
according to which the capitalist circles prefer the universal unfolding of the process in
contradictory, which offers all the advantages of the strong business members of society.
8
V.I. Lenin “International Forum of Judges”, Operas, Tomul 18, p. 412-413.
9
A. Celtov, M.A. Bebutov, „Course of criminal procedural law. Studies about the history of
the criminal trial and criminal proceedings in workers, feudal and bourgeois state”, Sank
Petersburg, Ravena, Ed. “Alfa”, 1995, 846 p., p.11
10
F. Engels, „Constitutional debate in Germany” Marx K and Engels F., Operas, vol. IV,
p.58
11
A. Celtov, M.A. Bebutov, “„Course of criminal procedural law. Studies about the history of
12
V.I. Lenin, “Activity report of People's Commissars of the Union”, 11 (24) January,
Operas, Tomul 26., p.421.
13
A. Celtov, M.A. Bebutov, “„Course of criminal procedural law. Studies about the history of
14
V.I. Lenin, “About judged processes”, Operas, Tomul 4, p.278
15
Ibidem., p. 16-17.
16
UNITY AND DIFFERENTIATION
- II Ph. D. Lecturer ION. M. ANGHEL
Abstract:
Study of judicial procedure in terms of history, revealed that contemporary judicial
procedure derived from the old public institutions. The notion of law as a trial phase is very
important. Political bodies and extraordinary during the totalitarian regime violated the principle
of equality in face of the law. This is why the viability of judicial and law reform as an
indispensable component part of the society reform is widely recognized by modern civilization.
Keywords: judicial procedure; public institutions; law reform; modern civilization.
In modern times, judicial legislation of bourgeois states is characterized by partial or total
renunciation of bourgeois-democratic procedural guarantees that were essentially formal1
United States are not satisfied with the composition of the Court the jury. The selection was made
from among small and middle bourgeoisie, especially in the trial of criminal cases on crimes in
which are interested capitalist monopolies.
The report of ``National Commission for ensuring compliance of legality`` in the U.S.
shows that ``the jury was found not only falsifying the lists but and outright removal of the people
from jury who might have to show some independence of opinion, and intimidation of jurors also in
order to obtain court sentencing``. Relevant extracts from the mentioned report are publisched in
Prof.P. I. Liublinski`s workpaper.
Such a selection of the jury from among those considered ``reliable`` was not always a
convenient tool for governance of monopolistic and reactionary bourgeoisie group. That is why, in a
number of states, in one form or another, the Court is dissolved or the legal sphere and the volume
of her work is drastically reduced. Thus, since 1924, in Germany's ``Weimar`` the reform of the law
was made reform which abolished the court with lawyers. It`s name was kept in the law but it was
referring to court composed of a single college, which together with so-called ``jury``, were part of
three permanent members of the court. Such a component of the college ``the Shoffen`` was
providing fully convenient handing down decisions for the permanent component judges, namely to
the ruling class. This explains how in the Weimar Republic remained untouched on their seats all
the judges of Kaiser.2
The same amending of court with jury was found in France which at that time was occupied
by Nazi Germany in 1940, by issuing a special decree throught ``the head of government`` which
was Petain. After the expulsion of the Nazis from France and the restoration of the republic, there
are only legal court existed only on paper. Under it`s name combined a mixed college functioned
college which was composed of three permanent judges (members of courts of appeal) and five
assessors. The aspirants for the position of ``jury`` had to possess a ``must have a home``.
Both England and the USA have been undertaken a series of measures limiting the
jurisdiction of the Court with regard to extending legal competence of single judges (court of
summary jurisdiction). In addition, in England the practice of applying criminal law on appeal
(1907), firstly subordinated the Court's legal work, supervision and management of the Court of
17
Criminal Appeals and secondly provided to the Court the opportunity to increase the punishment
punishment within the review of the disputed sentence of the convicted.3
In a number of countries in North America in 30 years of the twentieth century, it was
introduced the prosecutor `s right to appeal in higher courts sentences of acquittal pronounced by
the Court; this was the reason why the Anglo-American theory of the procedure was considered
unacceptable and also an attempt to rights of the accused and the rights of the people on whose
behalf jury verdict of acquittal pronounced. The scientist Celtov-Bebutov says that in all the
bourgeoisie states the governance class kep a possibility to change established law jurisdiction,
especially jury court`s competence. In continental European countries the possibility of removing
the Jury Court beginning with the examination of causes concerning a multiple number of the most
serious crimes ,the removal was related to the declaration of a state of emergency like
(``war``;``siege``, `èxception``).Once the declaration of a state of emergency, besides the
suspension of a series of citizens' rights (inviolability of person, home, privacy of correspondence,
freedom of meetings and demonstrations), it is canceled also the jurisdiction of Jury Court with
concerning political crimes trials, and sometimes the serious criminal trials too. Such an order exists
not only in Czarist Russia, where were working on a large scale the military courts (and during
1906 to 1907 also Martial Courts ), intented for the crackdown with the revolutionary movement.4
Changing the Court's jurisdiction by introducing the jurisdiction of military tribunals
belonged to Western Europe too, there, the specialists in science and constitutional law theory
lawyers proclaimed ``the right domination``. As an example, Bebutov and Celtov recall the lawsuit
intented to communists - Member of Parliament of France. In 1939 the government has pulled them
criminally liable for actions ostensibly aimed at undermining ``the security of France``, citing the
state of war with Germany, the government sent their files to military court.Among this kind of
examination, which took place behind closed doors of cource, there were used a number of
procedural violations of the laws, and governing class in France has tried to silence the communists
deputies who exposed the true sense of government policy that led France to an impending national
catastrophe.5
In modern literature, mainly the English one, it was said that England did not know ``the
exception state `ànd that ``supremacy of the law `ìn this country and enjoyment of civil rights for
all those ``who breathe the air of England `ìs provided by the supremacy of parliament and
subordinating of all officials administration, citizens, common law courts of jurisdiction``. Among
the means to guarantee the inviolability of citizens' real person, scientists and constitutional law
proceduristi usually specified 1979. This one, they said, provided every citizen detained by any
organ of government, the right to appear soon in court empowered to review the legality of
applicant grounds for withholding.6
But the appearance of HCA in 1969 to study history and practice of its application to the
First World War shows that the new class that came to power in England has set the task of
ensuring the inviolability not all those ``who breathe the air of England``, but only the bourgeoisie
and the inviolability of their property against attacks from the royal power with its absolutist
reflexes. Therefore the most serious political crimes and general criminal (who usually were not
committed by elite representatives of bourgeois society) were removed from the home in the range
of the Habeas Corpus Act. Further application of this act the procedure itself was provided with
legal prescriptions and economic order that also use real HCA procedure was designed only to
persons who belonged to wealthy class.7
Finally we must consider that action HCA may be suspended by a parliamentary act special.
Every HCA suspension was accompanied by numerous violations of democratic rights of citizens.
This is conclusive and easily confirmed by the fact that in each case the expiry of the term „
suspension HCA parliament adopt a bill on amnesty”. This extends to all the excesses committed by
government officials and military authorities and the citizens rights violations during the
suspension. Over several decades until the beginning of World War in England suspensions of HCA
18
occurred. In 1914 Britain entered a period of exceptional legislation to combat attacks targeted not
only to national security but also against the labor movement. Moreover, in the literature can be
found more opinions on the institution of judicial control of retained legality. Accounting all these
facts we consider that the principle of inviolability of person, that theory and reality, has become
much later in the history of society, actually imposed when it was considered that public authorities
primarily courts, must comply with general legal valid rules. Therefore, the fundamental trait of law
was to ensure to every citizen detained by any organ of administration which have the right to
appear once in court empowered to review the legality of the grounds for withholding the person is
the conquest, for the first time by the express will of English Parliament.
This has found appropriate judicial formula expressions in HCA of 1679. This way they
have been constituted legal guarantees for realization of this principle of personal freedom. In the
following pages we try to present conclusive historical forms and the importance of these
judgement forms. The importance of these forms of procedure can only be inferred by studying the
history and process of justice in conjunction with the universal history of each state. According to
Karl Marx's famous indication, the law as the religion has its own history. Systemic study of any
branch of law can not be isolated by studying the historical conditions that form the basis on which
to grow and generate the changes, the decline along with political and legal superstructure.
Indications to this problem are found in the modern theories of founders work. Starting from these
premises, we will try to identify the features of social life in those times, that approach can explain
the concrete ways of developing organs and forms of this coercion, in that period in which,
according to Engels claims - ``developed imperceptibly the State``. Only through such an approach
to studying the history of justice, criminal and civil process, we can avoid these schemes for the
development of civil and criminal law prevailing in modern legal and historical works which
distorts historical truth.
An almost global recognition among triers, enjoys such a historical scheme of developing
forms of criminal process. In the beginning it was necessary the prosecution process alone
particularly with the activism of the parties (victim and accused) and with the passivity of court.
Then, once with building-bases-statehood, and awareness of criminal offenders is in the name of
social interests. This follow-up, performed by the organs of power - by default - spur the
development process of investigation (or inquisitorial). In it, the parties lose their activism: accuser
gradually turns into a denouncer and the accused is transformed into an object of the judicial
research. Judicial court made the focus of the process it initiates and directs them around the way.
In its extreme manifestations, the inquisitorial process approaches by the Administrative Procedure
where people are removed from direct participation in the proceedings. Inquisitorial process is
characterized through a secret procedure, written and secluded by a wide selection of formal rules,
which it treats the torture procedure method of the accused as very important for obtaining evidence
of the crime committed by the association. Finally, the continuous development of process,
development related to the rule of law lead to contradictory pure or mixed form of procedure which
combines the foundation investigation and prosecution process (antithetical). Soviet jurists said that
these ideas have entered the Soviet procedural literature. Here the authors were based on Marxist
theory of the changing social formations. At the same time, it is identified that to the slave system
corresponds to the indictment, the feudal corresponds to the investigation, whereas the bourgeois
system corresponds to the mixed process. 8
Such a presentation of the historical development of judicial proceedings therefore falls in a
negative manner by excluding the justice and the judicial procedure from the entire state system that
created it, system state which, in its turn, depends on the entire economic basis of its society.
Instead notion such “court proceedings” that is all full of features characteristic of a particular social
formation takes the notion of “forms of the process” the sides which can change within the same
social formations, depending on concrete conditions of life of some states. The deficit of such
19
schemes can be identified in earlier works of academician Visinski A.I. 9,10 -and of Professor A.
Celtov. 11
About the evolution of judicial procedure known as there is another way to assess the
judicial procedure. It`s to point out that during the historical types of process, procedure-specific
charges, investigations and mixed, are included the procedures of the heliast from Ancient Greek
courts, and the duel in the early Middle Ages with the parties, and England and the United States
today who have kept the form because procedure. According to this theory, the process of
investigation includes the process of Imperial Rome, late feudalism and canonical process. Finally,
at the mixed type of process are reported not only the contemporary French court procedures, but
also other European countries that have built the legal procedure according the pattern of Hexagon.
It is presented the model construction of law procedure proposed by Professor M.S.
Strogovici as an example. In criminal procedure manual on the matter the author reminds either the
form of the process or the type of the process. Although large differences are specified in the
objectives and the orientation of class viewing law procedures of Greek and Roman slavery
civilizations, feudal France, contemporaneous England and United States of America, is still
considered as possible the unification in one form - the form of prosecution, starting from the
grounds that the proceedings in the above mentioned states begins with the victim`s complaint and
it result in the form of dispute in front of a passive trial. Insisting on further development of law
process in France, the author concludes that once the industrial bourgeoisie victory was gained, it
appears a new form of lae process - the mixed one. It is added also that the mixed form process is
dominant form in modern. states The author points out that England has become customised using
the prosecution form of the law process.Strogovici and Poleanschi are not denying the existence of
specific moments in criminal proceedings, enlightening moments of that time, and in their studies
they were saying that the false arguments were damaging the sovietic criminal proceedings in
opposition with modern law process from modern states and this fact could not be accepted in a
democratic society in which free will was above all.
We agree with Professor Ghe. Theodoru which mentions that the mixed criminal trial was a
reaction against the excesses and inequities of the inquisitorial trial, these methods were convicted
by the new ideas of the eighteenth century, ideas belonging to the preceding the revolution of
France. This process was formed by combining some features of the inquisitorial process, traits that
were maintained in the prior accusatory trial phase well-known in criminal law procedings. The
appeal to the trial organ is entrusted mainly to a specialized organ as „the Public Ministry” with
prosecutors attached to courts existing the possibility that injured parties may submit to the court in
some cases also. To discover crimes and identify criminals, to collect evidence from which it can be
concluded to dispose of proceedings, specialized organs, other organs than judges who judge, these
organs are doing a prior information and instructions that follow the rules of inquisitorial process,
this method being used mainly in a confidential, secret, wrote and non-contradictory manner; the
torture was official abolished. At the trial, the court composed of professional judges or jurors
(citizens), it debates the issue in front of the prosecutor, of the parties and their defenders, in a
public hearing, oral and contradictory manner, all these to ensure the right to a right defense. The
author mentions that this was the way throught which the positive elements of the prosecution
process were taken among the judgement phase of the law process in a trial. Instead evidence was
legally adopted rules of evidence free, their evaluation is done based on the intimate conviction of
the judges. There are overlap elements, some accusing elements entering in prior phase, by example
the existence of certain contradiction due to the presence of the defendant to some of prior training
acts, and also some elements can appear at the trial, and of course the secret court hearing.12
Inoculated for the first time in France by training criminal code since 1808, expanded joint
criminal in modern law and was adopted by the Romanian criminal procedure codes in 1864 and
1936. Regarding the Soviet law suit, M.S.Strogovici theacher mentions that this one was build on
20
the mixed law process and he undertakes an obvious analogy between the Soviet and the French
procedure. 13
In the work dedicated to Soviet criminal trial. N.N. Poleanschi reflected in the introductory
chapter the problem of „the types and forms of the criminal history” of exploiting states.14
Types of social phenomena, the author says, is characterized in full measure through
overlapping content and shapes of them. But what determines the type of phenomenon is the
content of it, which means the content of it’s essence. The fact that the Soviet criminal process
pursuits to safeguard the socialist relations makes it a Soviet-style process, radically opposed to the
process of modern states.15
The criminal prosecution, derives its name from the way he was brought before the court,
requiring a prosecutor to bring of any allegation to a person. The trial is characterized througha
public debate, spoken and contradictory. Today continues to function in England, United States of
America and in the countries that are under the influence of English law in criminal matters
accusers. Because of links between different forms of process (after Professor Theodoru), criminal
prosecution, is characteristic to the states where democracy developed through citizen participation
in public affairs and connecting broad for individual rights, of course under the privileges enjoyed
by some social classes.16
This kind of process has the advantage for the accused to benefit from guarantees his right to
defense, despite the atrocious cruelty of some of the means used „the judicial duel” (ordeal), but
also presented the disadvantage of not being effective in combating the crimes, because, in the
absence of the injured person initiative, the doer could not be brought before the court and in the
absence of preliminary researchfrom the specialized people, it was difficult to identify the
perpetrator.17
Appears in these conditions a question: when there is action to punish offenders formalizing
and when the settlement of the criminal trial on new principles. During the centralization of power
in the hands of absolute monarchy, the infractions were affecting not only the crime victims, and
also to the state, which is why it should be entrusted with the task of organizing the work of
criminal repression, punishment consisting of public reaction against the symbol of those who
committed criminal acts. This criminal process was called inquisitorial process, procedure of
investigation by name „ per Inquisitio” held by the persons responsible for official discovery and
investigation of crime.18 Literature, following the analysis of international procedural laws
considered necessary to contemplate the criminal process as a system, making the legislations either
in an accuser system or in the inquisitorial, more precisely in the mixed procedural system:
inquisitorial - accusers.19
Studied and analyzed essentially historical forms of judicial procedure, consider the
following:
- In the procedural law are essential tools developed by the law of its thought;
- Formal court procedure, in the course of history vary,change and develop, in direct
conjunction with the general evolution of society;
- Judicial procedure specific forms (accusing, inquisitorial and mixed) is given by the very
concrete social reality in which they appear and develop.
Also, court procedures will take in both content and form, the mark of the social will, that
will express the social norms of procedural law, criminal and civil. The principle of inviolability of
person as a theory and reality, was consecrated the first time in England by Habeas Corpus Act of
1679, and adopted by the Parliament. Designed to satisfy the interests of British citizens he worked
from the very begining in real mode, the courts being able to make decisions in complete
independence. Through formulas included in the HCA Legal, were established effective legal
guarantees recognized by doctrinaire as a source of inspiration. This finding is true for democratic
countries becoming a requirement in the European Convention for Human Rights and Fundamental
21
Freedoms in relation to the right custody of any person to request to be immediately presented
before a judicial authority to verify the legality of the arrest.
Bibliography
1. CELŢOV A., BEBUTOV M.A., 1995, Course of criminal procedural law. Studies about the
history of the criminal trial and criminal proceedings in workers, feudal and bourgeois state,
Ed. Alfa, Sankt Petersburg, Ravena
2. DERUJINSCHI V.F., 1985, Habeas Corpus Act and the interpretation of it in English law , Ed.
Iurev
3. ENGELS F., MARX K., The situation of England. Constitution of England , Opere, vol. I
4. VÎŞINSKI A.I., 1927, Course of criminal procedure , Moscova
5. CELŢOV A., 1928, Soviet criminal procedure, ed. I-a, Harcov
6. THEODORU G., 2007, Criminal Procedural Law Treaty, Ed. Hamangiu, Bucureşti
7. STROGOVICI M.S., Criminal procedure, Ed. Iurisdat, Moscova
8. POLIANSKI N.N., 1956, Theoretical aspects of Soviet criminal procedure, Ed. M.G.U.,
Moscova
References
1
A. Celtov, M.A. Bebutov, „Course of criminal procedural law. Studies about the history of the
criminal trial and criminal proceedings in workers, feudal and bourgeois state”, Sank Petersburg,
Ravena, Ed. “Alfa”, 1995, 846 p., p.13
2
Ravena, Ed. “Alfa”, 1995, 846 p., p.13
3
A. Celtov, “Soviet criminal procedure” First Ed., Harcov, 1928, p.14
4
N.N. Plianskii, “The epic of military processes”, Moscow, 1934, p. 89-99
5
Ravena, Ed. “Alfa”, 1995, 846 p., p.13.
6
V.F. Derujinschi, “Habeas Corpus Act and the interpretation of it in English law”, Ed. “Iurev”,
1895, p.101
7
F. Engels, “The situation of England. Constitution of England”,Marx K and Engels F., Operas,
vol I, p.635
8
Ravena, Ed. “Alfa”, 1995, 846 p., p.22.
9
A.I. Visinschi, “Course of criminal procedure”, Moscow, 1927.
10
A. Celtov, M.A. Bebutov, “Course of criminal procedural law. Studies about the history of the
Ravena, Ed. “Alfa”, 1995, 846 p., p.22.
11
A. Celtov, “ Soviet criminal procedure” First Ed., Harcov, 1928
12
Gr. Theodoru, Criminal Procedural Law Treaty, Bucharest : Ed. Hamangiu, 2007, 1020 p., p.
12-13
13
M.S. Strogovici, “Criminal procedure”, Moscow, Ed. ‘Iurisdat”, 1946, p. 33-34, 36-37, 42-43,
50, 53, 67
14
A. Celtov, M.A. Bebutov, “„Course of criminal procedural law. Studies about the history of the
Ravena, Ed. “Alfa”, 1995, 846 p., p.23
15
N.N. Polianskii, “Theoretical aspects of Soviet criminal procedure”, Ed. “M.G.U.” -1956, p.137138.
16
Gr. Theodoru, Criminal Procedural Law Treaty, Bucharest: Ed. Hamangiu, 2007, 1020 p., p. 11
17
Ibidem., p.11
18
Ibidem., p.11.
19
Ibidem., p.61
22
EVOLUTION AND DEVELOPMENT OF MISSIONS FOR PEACE KEEPING
IN AREAS OF CONFLICT
University Lecturer PhDc ANA-MARIA BEJAN
Abstract
UN does not posses its own military force, depending on Member States ' contributions.
Maintaining international peace and security is the primary objective of the United Nations. Over
time the peacekeeping operations in conflict areas have been developed and are in a continuous
development.
Keywords: operations, peace missions, international topics
Peacekeeping missions is a way to help countries torn by conflicts, to create conditions
conditions for sustainable development and peace. UN peace keeping soldiers and military officers,
police and civil officers and civil personnel in several countries monitored, in order to respect the
peace processes that emerge in post-conflict situations, as well as the ex-combatants for the
implementation of the peace agreements they have signed. Such assistance comes in many forms,
including confidence-building measures, power-sharing arrangements, electoral support,
strengthening the rule of law and economic and social development. All operations must include
action for solving of conflicts through the use of force to be considered valid in accordance with
the Charter of the United Nations.
The Charter of the United Nations give power and responsibility of the Security Council to
initiate a collective action to maintain international peace and security. For this reason, the
international community, the Security Council in order to authorise peace keeping operations. Most
of these operations are established and implemented by the United Nations Organization, itself with
troops serving under his command operational. In other cases, where direct UN involvement is not
feasible, the Council authorizes regional organizations such as the North Atlantic Treaty
Organization, the Economic Community of West African countries or coalitions who want to put
into effect certain peace keeping missions or to execute functions to keep the peace.
Maintaining international peace and security is the primary objective of the United Nations.
UN operations maintain peace were released in 1948, during the cold war as a means of achieving
the intended purpose, as a way of resolving conflicts between States, through the sending of
unarmed personnel or bearing on their only light weapons. The troops were under UN command
and got involved in between the two armed forces in the conflict. Troops were called upon when the
powers of the international mandated the United Nations to intervene to stop the conflict threatening
regional stability, international peace and security.
Peacekeeping troops were not to answer fire with fire. As a general rule, their role was to
intervene when the cease fire and when the two parties involved agree on their presence. Evaluating
the situation on ground troops and impartially reported that ended the cease-fire, if insurgents
withdrew their troops and were met and other elements of the peace agreement. All these efforts
provided the diplomats pause to remove the causes of the conflict.
Throughout the cold war, the number of missions launched has been limited, but its
conclusion precipitated a reorientation of the role of the UNITED NATIONS operations for
maintaining peace. In this sense, it is about maintaining cease fire and chased the stabilisation of the
region, while a final settlement of the conflict has followed the path of political negotiations. Such
23
increased cooperation among States and has boosted Security Council desire to turn it into a center
of conflict situations and control initiatives.
In the new spirit of cooperation, the Security Council has set up broader missions and more
complex, often having a mandate to impose peace agreements between protagonists of conflicts
inside countries. Moreover, the notion of keeping peace began to include more and more nonmilitary elements precisely to ensure the sustainability of peace. UN Department of maintenance
operations of peace was created in 1992 just to support the growing demand for complex
operations.
New missions were not only components and tasks, but also military and civil components,
namely a variety of tasks of a social, economic, humanitarian, political or judicial, for the purpose
rules of conflict.
Overall, the operations were successful. In El Salvador and Mozambique, for example, the
missions have contributed substantially to ensuring a sustainable peace. But not everything went
according to plan, perhaps due to a valuation and over-valued optimistic of results expected. During
the fulfillment of missions in Cambodia and Mozambique, the Security Council delegate operations
in other areas of conflict such as Somalia, the country had not neither the fire any beligerents or not
reached to a consens. Such operations have not enjoyed the political support of both necessary in
fulfilment of his mandate. Failures - the most painful being the 1995 massacre of Srebenita (Bosnia
and Herzegovina) and the 1994 Rwandan genocide led the United Nations to examine and
reconsider its former operations.
But despite the difficulties encountered in the former Yugoslavia and in Rwanda, most of
the States have continued to regard the United Nations as the most representative body that could be
responsible ensuring peace and international security. And this conviction stems from the fact that
these States are represented in the General Assembly and in the Security Council, having faith in
the values of the United Nations peace mission and carried out under the aegis of his.
The United Nations has continuously developed its capabilities in terms of Peace
Operations. Thus, 27 States have called "moving fast friends" thought travelling support for the
formation of a Rapid Intervention Force (RDMHO), and in 1995 was created in Standby Force
System (a Stand-by Arrangement System) in an effort to enter quality, planning and preparation
resources available offered to the Department of Operations for maintaining peace.
Since 1990, nationwide, most countries that contribute with troops or police effectively,
strengthened their capacities to respond to any requests of the United Nations. Romania had signed
in 1998, the agreement with the United Nations forces in addressing and tunes (military and police)
ready to be deployed in any area of the world crisis.
In 1999 it was decided that the reformation of the peacekeeping missions is absolutely
necessary. And so, the Secretary-General of the United Nations, at that time, Mr. Kofi Annan, has
started a deep assessment of the events which led to the failures laid down previously and called for
an independent inquiry on the actions conducted by the United Nations during the 1994 genocide in
Rwanda. Analyses have shown the need to improve the capacity of the United Nations to conduct
peace keeping operations, in particular, to ensure fast and allow detaching depending on the
demands on the ground. Peace keeping missions needed clear rules of engagement for better
coordination between the UNITED NATIONS Secretariat in New York and its agencies regarding
planning and detaching the troops in the theater of operations. In addition, the United Nations was
supposed to protect the interests of the civilians in the face of conflict, as well as better cooperation
between the UNITED NATIONS and regional organizations.
Applications for intervention UN missions have continued and unfortunately continue to
grow both in quantity and quality: peacekeeping missions began to handle and law enforcement,
administration, economic development or human rights. In 1999, was mandated by the United
Nations interim administration in East Timor, setting the way to independence for the region. In the
same year, the United Nations took over the administration of the mission and transition of Kosovo
24
after NATO's air raids ceased on Yugoslavia. In 1999 and 2000, the Security Council would decide
the establishment of three new operations in Africa (Sierra Leone, Democratic Republic of the
Congo and Ethiopia).
In March 2000, the UN Secretary-General, Mr Kofi Annan, asked a group of international
experts led by Lakhdar Brahimi (former algerian Foreign Minister) to analyse peace keeping
operations and to identify where and when would they be able to be more efficient and, especially,
in what manner. Report of the experts (known as the Brahimi report, A/55/305-S/2000/809) was
published in mid-2000 and provide a broad set of measures to increase the operational capacity of
the United Nations. He is an x-ray of the minimum requirements for a mission to be successful – to
have a clear mandate, to enjoy the consent of the parties in conflict and sufficient resources.
Following the report, the United Nations and Member States have taken some measures to
improve peacekeeping operations. Department of resort (DPKO) was authorized to enhance the
number of employees in New York so that could provide the necessary assistance to field missions.
DPKO offices strengthened with police and military advisers and established a Best Practices Unit
to analyze lessons learned from previous missions and to provide advice on gender issues, the
conduct troops, planning for disarmament, demobilization and reintegration programs, and
compliancewith the law, etc. It was put into practice a funding mechanism prior to getting the
mission mandate, so that the budget is already available at the time of approval of the mandate. In
addition, the Logistics Division from Brindisi (Italy) to obtain necessary financing received
strategic interventions stocks. He put emphasis on training staff and was reorganized into the United
Nations system Stand-by arrangements (UNSAS) a group of specialists (military and civilian) of
member countries, all materials and equipment, to the United Nations. The new system has the
ability to send in ground forces within 30-90 days for any new operation created.
In 2004, DPKO operations had 17 in administration throughout the world (peace keeping 16
and one policy, including those in Cote d'Ivoire, Burundi and Haiti) and few land for at least one
mission (the Sudan). These are: Africa: UNMIS (Sudan); ONUB (Burundi); UNOCI (Ivory Coast);
UNMIL (Liberia); MONUC (Democratic Republic Of The Congo); UNMEE (Ethiopia and Eritrea);
MINURSO (Sahara Occidental). America: MINUSTAH (Haiti) Asia: UNMIT (East Timor) and
UNMOGIP (India and Pakistan) Europe: UNFICYP (Cyprus); UNOMIG (Georgia) and UNMIK
(Kosovo) Middle East: UNDOF (Golan Heights); UNIFIL (Lebanon) and UNTSO (Middle East).
As a consequence, the number of employees in such missions has increased within a few
months of the year 2004 to 51 000 (at the beginning of the year) up to about 78 000, assisted by 25
000 troops, 2,500 policemen and 1,500 military observer. It would have been nearly 42 high rank
high (civilian, military and police) to lead the field missions, along with 6 500 civilian personnel (in
addition to those already 9 700 working in theatres of operations). All these people needed material
resources (vehicles, communication equipment, Office) and DPKO budget would have almost
doubled since the additional tasks required the 2.38 billion dollars in addition to the preceding
budget (US $ 2.65 billion for 2004-05).
In the year 2012, the Labor Department's resort (DPKO) is made up of: 84,582 troops and
military observers; 14,335 police personnel; 5,493 international civilian staff (29 February 2012);
12,500 local civilian staff (29 February 2012); 2,424 UN Volunteers.
Thus, 116 countries have contributed military and police personnel. What must be stressed
is the fact that the UN military force does not possess its own, depending on Member States '
contributions.
UN peacekeeping operations are very expensive. However, the United Nations allocated
annually for worldwide operations amounts smaller than New York City Hall budget for fire and
police departments. In addition, peacekeeping operations are substantially cheaper than the
alternative to war. In 2002, these operations have cost the UNITED NATIONS almost 2.6 billion
dollars. In the same year, the world's Governments spent over $ 794 billion for weapons figure
represents 2.5 per cent of world gross domestic product. In 1993, the annual cost of maintenance of
25
the peace agreements has been under financial terms, a peak of 3.6 billion dollars, the sum of the
planned costs of the missions in the former Yugoslavia and in Somalia. Until 1998, the costs fell to
less than 1 billion US dollars, but rose again because of the extent of the new operations, in 2001 to
us $ 3 billion.
The approved budget for 2004-2005 was $ 8.2 billion, but due to the demands of new
operations (Sudan) or to supplement of existing mandates, have been necessary since 2.38 billion
u.s. dollars. All Member countries have legal liability to pay the proportion of the costs of these
operations, settlement incident being extremely complex and accepted by States. In spite of this, the
debt obligations towards countries of the maintenance budget of peace missions was around 1.2
billion dollars.
For 2012-2013, the 193 Member States have reached an agreement for a budget of Hasselt
lies about 5 billion dollars, compared to $ 1.07 billion for 2010-2011. But this amount does not
include maintenance of peace missions which have loans worth $ 7 billion for the period comprised
between 1 July 2011 and 30 June 2012, any financing costs of international tribunals.
Romania is a major contributor to international peace and security. The contribution of
Romania to the UNITED NATIONS-led operations (without participation of the SPP), from 1
January 2012, includes 64 participants, occupying the place 72 of 115 Member States contributing
and is divided as follows:
I. The PARTICIPATION of STAFF FROM the MINISTRY of NATIONAL DEFENSE of
PEACE KEEPING OPERATIONS: 31 military observer and staff officers of the
Ministry of national defense missions for maintaining peace in DR Congo:, MONUSCO
(19); Kosovo (UNMIK) (1); Liberia, UNMIL (2); Sudan, UNMIS (3); Cote d'Ivoire,
UNOCI (6).
II. PARTICIPATION by STAFF of the MINISTRY of INTERIOR and
ADMINISTRATION to the PEACE KEEPING OPERATIONS 33 cops of the Ministry:
Administration and Interior in maintaining peace missions to Haiti, MINUSTAH: in
(13), MONUSCO, Dr Congo (11); Timor-Leste, UNMIT (8); Kosovo (UNMIK) (1).
III. PARTICIPATION by STAFF PROTECTION and GUARD SERVICE (SPP) in PEACE
KEEPING MISSIONS: protection and Guard Service participates with direct protection
officers in Sudan/Darfur: UNAMID (12) and Afghanistan, UNAMA (12), under the
leadership of the Department of safety and Security, a DSS.
IV. CONTRIBUTION of ROMANIA to the UN-MANDATED OPERATIONS: represents
about 2000 troops.
On May 5, 2012, President of Romania has approved sending five observers within the UN
Mission came to monitor the situation in Syria UNSMIS. The decision of the Romanian authorities
show commitment to contribute to peace and security in the Middle East, as well as support for the
full implementation of the peace plan in the six points of the special Envoy of the UNITED
NATIONS and the League of Arab States in Syria, Kofi Annan.
References
1) G. Geamănu, 2001, Public International Law, EDP, Bucharest
2) A. Bolintineanu, A. Nastase, B. Aurescu, 2000, Contemporary International Law, All Beck
Publishing House, Bucharest
3) Cornel CUCU, 2006, Peacekeeping operations - topical and trends, National Defense,
University "Carol I", Centre for Defence and Security Strategic Studies, Bucharest
4) Nicholas Neagu, 2005, Public international law, international law applicable to armed
conflicts and peace operations, Ed Bren, Bucharest
5) Gabriel Naghi, 2010, European Security, CHBeck Publishing House, Bucharest
26
6) www.mae.ro
7) www.igpr.ro
8) www.mapn.ro
9) www.onuinfo.ro
10) www.un.org / en / peacekeeping
11)www.ro.wikipedia.org
Footnote
1. www.onuinfo.ro (accesed on 12.05.2012).
2. Dr. Nicholas Neagu, Public International Law, Ed Bren, Bucharest, 2005, pag.357
3. In the first week of deployment, rebel groups have captured 500 soldiers from international
forces, even in the capital, Freetown.
4. View M.Mattieu, "Brahimi Report" article published in News and International Law,
October, 2000.
5. www.un.org/en/peacekeeping (accesed on 15.05.2012).
6. UN General Assembly has 193 members. Member Pakistan, Morocco and Guatemala were
elected non-permanent members of UN Security Council for 2012-2013.
7. Negotiations on the budget "is always difficult. But this year was very complicated, "said UN
Secretary General Ban Ki-moon. "Worldwide, governments and peoples difficulties"
financial, he added. Joseph Torsella U.S. negotiator talked about an agreement "historic".
"This is the first time since 1998 - and only the second time in 50 years - when the UN
budget is reduced," he said. In his opinion, this budget "will strengthen the United Nations,
its efficiency and savings of millions of dollars to American taxpayers." Ban Ki-moon
acknowledged the UN must "tighten the belt". At headquarters in New York, the organization
already outsource some activities. Budget cuts relating in particular to UN missions, as is the
case of Côte d'Ivoire.
8. www.mpnewyork.mae.ro (accesed on 17.05.2012).
9. Information on participation in Romanian Ministry of Defense personnel to UN operations
and directly led international operations in the Western Balkans, Iraq and Afghanistan are at:
http://www.mapn.ro/indexro.php
10. Details on participation in Romanian Administration and Interior Ministry personnel in
international
operations
can
be
found
at:
http://www.jandarmeriaromana.ro/pagini/ci_misPace.
11. For information on participation in Romanian Protection and Guard Service personnel in
international operations please see http://www.spp.ro/SPP_in_misiuni_ONU.pdf.
12. Additional information is available at http://www.mapn.ro/indexro.php.
27
THEORETICAL AND PRACTICAL CONSIDERATION ON OFFENCE
COMMITTED WHILE ON DUTY OR CONNECTED TO THE DUTY
PhD. Assistant Professor COSTEL COSTAŞI
Keywords:
Misconduct in office, neglect, crime, tort act, a civil servant.
Need to define misconduct in office as a crime, involving both legal clarification of tort such
as name and explicit operative nature of this crime, or, in other words, contextual description of the
nature of operational service claims of negligence.
The offense is defined in art. 17 of the Criminal Code.
Under this definition, a feat that social threat, being committed by guilt and learning
between the provisions of criminal law, meets the legal existence of the criminal act.
Consequently, the offense can be identified in only some circumstances in which the
criminal law qualifies as a crime an act determined, its corresponding certain penalties.
Criminal law covers only acts that pose a significant threat to society, the damage resulting
from the basic values of social structure.
Offense involves guilt expressly existents.
Thus are revealed the three active components of the definition, namely the illegality of the
act, the dangerous nature and guilt.
The three basic elements are established jurisprudence potentiating interactive links.
More detail, specification notion of crime can be described by the following features:
a) present a significant social danger, serious or particularly grav. Art. 18 of the Criminal
Code sets and set conditions that must be met to be in danger of social presence is regulated by the
legislature in that act that social threat is any action or inaction which affect one of the values
specified in Art. 1 of the Criminal Code, namely Romania, sovereignty, independence, unity and
indivisibility of the state, individual rights and freedoms and rule of law throughout.
To act endangering social stationary apply a criminal penalty.
b) is committed by guilt.
This condition is specifically approved by the legislature in art. 19 of the Criminal Code,
this article showing the two forms of culpability: intention and negligence.
The intention of the legislator is regulated via two ways.
The first is the direct intention. This is subject to the provisions of art. 19, para. 1, point 1,
lett. of the Criminal Code which states that the offender provides the result of his having motivated
offenders obtain that result by committing the offense charged.
Indirect legislative intent is the subject of art. 19, para. 1, point 1, lett. b of the Criminal
Code, which states that in this case, the offender requires the result of his act and actually does not
follow this result supports the possibility of yet.
Fault, the second form of guilt, knowing look with foresight or temerity fault or negligence
easily look simple.
Fault with foresight art subject. 19, point 2. of the Criminal Code and is fulfilled when the
offender provides the result, but there is support, believing that he does not easily happen.
28
Simple fault, called fault-free provision, committed through negligence or mistake, is
described in art. 19, point 2. a, of the Criminal Code offenders act as the offender that his act does
not provide results even in his power and be required to provide.
c) and punishable under the criminal law.
This is a reflection of the fundamental principle of legality required by art. 2 of the Criminal
Code.
The law is one which sets criminal nature of an act, providing, however, penalties will apply
criminals and measures can be taken for the criminal.
Simultaneously is the embodiment of the principle of non-retroactivity of criminal law as
provided in art. 11 of the Criminal Code, which states that criminal law does not apply to the facts
at the time of their commission, were not included in the context of the body of law as a crime.
Offenses related service or legal service concern the social relations which approves generic
natural evolution of employment relationships, based on the request of a certain behavior of the
officials or, in other situations, any person who, voluntarily or involuntarily, can affect these
relationships.
Category of civil witnessed lately, considerable quantitative growth, leverage and
specialization of the state administrative activities, but also because of the imposition of additional
administrative structure that arises from the productive private sector development.
Profession, charged with responsibility functionaries a very complex structure, the state
imposes many requirements whereas the functions satisfied: and the authority that holds the
professional category is required to cover the wide range of public service responsibility, but it is no
less true that by ignoring some of these requirements, the professional class of officials can cause
many serious disadvantages and even public, sometimes causing irrecoverable damage to the state
and its citizens.
The main duty of civil servants is to strictly observe the laws of the country, independent of
the function they perform.
Presumption of violation of this fundamental principle was that, in criminal law, in addition
to provisions that protect the civil servant status, to be inserted and penalties that are active in
breach of the obligations arising from the scope of the profession, by this category of officials.
The civil servant is held in accordance with Art. 147 of the Criminal Code by a person who
exercises permanently or temporarily, with any title and any kind of investing, an assignment of any
kind, paid or not in the service of one of the units specified in art. 145 of the Criminal Code
Traditional meaning of this article is a gesture of shading imposed by the historical
evolution of society.
Thus the term'' universal'' is replaced by the'' legitimate'' public, referring to everything that
the public authorities, public institutions, institutions or other bodies of public interest and the use
or exploitation of publicly owned , public services, and any other goods which, by law, the public
interest.
For the purposes of art. 147, para. 1 of the Criminal Code, an official public official duty,
there must be an institution in fact, following the conclusion of an employment contract with one of
the operational entities shown in the law, after which the subject actually exercise powers of
functions, permanently or temporarily.
This quality can not be revealed unless that person falls under the collective work of one of
the units listed in art. 145 of the Criminal Code, obeying the rules of procedure specific structure
and integrates the official governing organization and work discipline.
The civil servant is not in any way affected, its content jurisprudence and the nature of
professional assignment that the person was invested by election, appointment, assignment or other
legal means of adjudication of that function.
29
This indicates that it is sufficient that the active subject of an offense committed while
exercising a public function to actually perform a task in the service of such public authority,
institution or a legal person of public interest, and, moreover, any public service.
The term'' invested'' matter as contained in the text of the law, leads to the same conclusion.
The legislature intended this statement to emphasize that it is irrelevant validity of the
employment or appointment, the relevant fact is sufficient exercise of the powers and functions
effectively justifying punishment offender for an offense committed during the performance of their
duties.
Exercise and in fact actually public servants of specific tasks can not be in any of the
operative or public administration appointed by law, unless there is express consent of oral, written
or implied leadership of that entity.
By comparison, statements concerning the scope of criminal law, civil servant status are
more numerous, covering areas larger than those embodied in administrative law.
In labor law, the notion of employee or employee is identical to that of civil, criminal aspect
considering both function and conferring legal retribution.
Field crimes known to exist within public services incorporating such functions physical
object.
Often the error is committed to place within the physical object of crimes within the
jurisdiction of public service values that the law is not, ab initio, under protection, but are the means
used to commit crime.
For example, if bribery, coercion can not be treated as things of the physical object of the
act, because they care not subject to criminal as opposed to acts of service.
Around this casuistry, the literature has shown some controversy that the Supreme Court
found both decisions and the writings of theorists of criminal law.
In most cases, active subject crimes in the sphere of public services is qualified, is usually a
public official or other officer.
Certain offenses, such as, for example, bribery and trading in influence, may anyone who
meets the conditions required by law to be classified as the subject of a crime.
Offenses such as abuse of office, qualified art. 246, 247 and 248 of the Criminal Code,
negligence in work, abusive behavior, negligence in preserving state secrets, bribery and receiving
undue benefits have only status as agency officials.
Participation is possible for all offenses, regardless of the forms it takes.
In defining the offense of misconduct in office constituientelor often appear elements or
hinder this process, be it moving towards the end which are themselves illegal.
From this case, criminal law envisages a fatologica hypothesis, low frequency that governs
the legal norm in order to eliminate the possible problems to solve.
This is where the celebrant offenders act does not act directly in achieving the goal, but uses
other people you include in the scenario planned crime.
For example, the offender enter into a database and implement a public official in a
program, especially for a particular purpose, erroneous data that uses the official said a project in
unknowingly.
Once fully operational, the project can actually infect a situation detrimental to a passive
subject, without real celebrant can be identified, even if the project errors are eventually found.
In this case negligent conduct criminal use of a civil, not verified the data before its
validation project, put it in a position directly and immediately savarsitor the offense and which,
among other things it creates the right conditions to do without vigilance.
It's possible that the person through which the subject actively commit the offense to act
without guilt.
For example, the main celebrant conceals erroneous data in a file that usually has no official
reason suspected him.
30
In this situation it is clear that the official acted unknowingly and unintentionally bad,
especially since the crime was especially so suspicious of the data to be void.
In both cases, whether the mediator acting negligently or with intent, one that led,
facilitated, helped with intent to commit crime in this manner shall be responsible for the criminal
act under the same conditions that would be answered if the result not would be produced from fault
or guilt of the offender, but it would have committed the crime with guilt.
Consequently, if the celebrant to incite the commission of a murder committed by a person
without guilt, author incitement to criminal responsibility for his deed.
In the same way things are for complicity or coautoratului.
He can not claim that the deed is not guilty because, apparently, did not act directly on the
victim.
As such, the law treats criminal act of incitement to commit a crime directly
Passive subject is usually represented by the unit which has been reflected consequence of
the law, either as a state of danger.
May be subject to passive public unit or any other institution with legal personality.
Direct or indirect intention, and only exceptionally fault, can be subjective side of crime, as
revealed in art. 249 and Art. 252 of the Criminal Code.
Forms of criminal liability which the law did not bind to the provisions, training and any
attempt.
Offense punishable consumption depends on the material element and hypostasis producing
specialized follow devote fault or negligence as a form of guilt attributed to not antisocial deed
provides results that could be prevented by following normal rules of professional and the rules of
jurisdiction under which it acquired the status of civil servant, officer, employee or employee of a
productive or administrative entity or organizational insubordonate state.
Establishes common facts of numerous crimes committed by negligence, from traffic
accidents to minimum damage to heritage conservation measures by negligence of it.
The effects increase with poorly controlled bureaucracy and poor handling of official
documents to the specialist, psycho-volitional reasons, commits the offense of malpractice
incidents.
Here he would find no place and those who use their technical means responsibility in
performing certain works, causing damage to the employer and, equally, the beneficiary was in
building objective by damaging equipment and materials assigned.
One can easily see that in these examples wrong, so fault occurs after weakening sense of
responsibility towards work and its object.
The system of penalties applicable to offenses committed by negligence, the legislature
clearly intended educational purpose.
Criminal law punishes only those crimes that could be prevented by focusing on the
perpetrator full service obligations, is carefully and responsibly.
In this circumstance, the law allows for the possibility of predicting the consequences of the
perpetrator of the act of negligence and to prevent the simple tasks involved in the structure
provided by the job they occupy.
Mistakes can be exemplified by the difference between managing a medical treatment and
inadequate a person suffering under the pressure of time, empirical treatment of people affected by
a health crisis.
Naturally, the court will classify two different types of offenses, from the professional
qualifications of the celebrant and the nature of the circumstances in which the offense.
Criminal law contains a limited number of penalties for offenses committed by negligence,
the basic principle is that of punishing acts committed with intent.
In the structural elements of the error of fact, negligence in service, the tort act, is interested
in detailing to national factors determining errors of fact and possibility of avoidance criteria.
31
Thus, depending on factors that may cause error error which can be distinguished by
ignorance, signified by the low intellectual level of active subject or strictly specialized areas of
competence, and error by deception characterized in that the product of an action deception of good
faith, the speculation of it, by a person at the expense of another.
Criterion requires the possibility to avoid, also, two aspects, namely one that is the fatal
error that occurs when ignorance was so profound that the person involved in a crime could not use
skills or analysis psihovolitive that real objective to prevent crime, the most common example of
this scenario is confusion between identical elements but different owners, and the error is removed,
the aspect involved in a crime that did not show sufficient attention in the analysis of objective
reality, issues that could have led to commit the error and certain that operational approach is
positive and free from error.
All these components require notional but a raid in the structure of criminal motivation that
often finds its explanation pertinent psychological history of the celebrant.
Knowing this history, by using scientific instruments offered by the psycho-sociological,
and chronic forms of the psychiatric, is, in terms of correct legal classification of the offense, the
inevitable.
Negligence in service stimulates the kind of crime maintained by individuals who profit
from this crime.
The lack of clear evidence in a fraud or theft stimulates management of patrimonial table.
Premises for storage of goods become a paradise of offenders if the guard is not doing his
job responsibly.
Beyond the administrative aspect of negligence, criminal law criminalizing the same extent,
damage, negligence, the legal interests of a person.
In the context of social evolution of the last time, new incriminating criminal issues arising
from compliance with the rights of children and elderly dependents, for neglecting their duties with
specific serious effects.
Of the same category is part of the reckless behavior of people involved in institutional or
private education for children and students, if this behavior has serious consequences, whether for
surveillance, whether the conduct of the educational process.
The phenomenon is relatively common in rural areas where the percentage of qualified
teachers is still high.
Case studies often mentioned perpetration case of negligence in conducting services through
direct negotiation between the injured and damaging, issue, in terms of solving the case why not
qualified to act but to determine how to compensate the person affected, the more since the act can
be both pecuniary and in moral terms.
Appropriate,'' forgetful courier, commissioned by a friend to return a person borrowed a
good value, good looks you somewhere along the way.
Concluding negligence as its associated bow down to carelessness, special consideration is
required of the individual psychic structure in the center of allegations of negligence, and an
analysis of its social behavior in terms of understanding and respect for social norms, the generally,
are even structural rules of society, and how particular professional area are specific rules it
operates.
Bad faith can often be hidden behind the negligence, acts with greater severity and thus
disguised as a mitigating.
An example is that of theft of documents facilitated by leaving the office unattended cases
by or a cabinet, or by service.
Need to define more precisely how the case is justified by a certain degree of interpretive
instability that can bring the offender guilty.
Negligence may also be defined and by reference to carelessness, indifference, neglect and
even oblivion.
32
They say it's usually neglect when a human health or safety are endangered by negligence or
inattention care management required.
Laxity is a phenomenon that shows us the total lack of attention to a man.
Attention deficient based on deficient interest to another.
Of signs of neglect that may occur in children's games, for example, you can see if they
think more about themselves than others.
Phenomena like this are an obvious tool to evaluate the collective sense, the sense of social
communion of man.
If the sense of social communion is poorly developed, even under threat of punishment a
man would be of interest to others only with difficulty, while a man with a strong collective sense it
will be effortless.
Forgetfulness, and loss of important objects are achieved by a reduction in attention.
There are, of course, the possibility of a stronger emphasis concentracte interest, but not
without shortcomings, but suffering from a certain aversion disruption that brings favor or cause
loss or forgetfulness.
It is, for example, children often lose their manuals.
Most times it is easy to settle the fact that they still have not adapted to school life (this
weight adjustment characterizes the new employees, that excluding the continuing failure to adapt
to the individual and the survival of the position they occupy only absorbtion rutiniere. In principles
of negligence is potential danger both cases).
There are also household that always get lost or lose their keys.
And in this case confirms that there are individuals employed who can not reconcile with
domestic occupation.
Uitucii are people who openly revolt, but by forgetting turn out a certain lack of interest in
their duties.
It therefore seems obvious that people who socialize easily and at the same time have a very
empathetic professional performance will not commit acts of negligence will commit as much as
those who have emotional ties to work.
In addition to actively represented factor appears naturally, and a passive factor signified by
the entity injured by negligence.
It is entitled to claim compensation for damages, specific methodology study encourages us
to consider briefly the mechanism used in civil law.
Moreover, criminalizing negligence in service is the boundary between the two areas
jurisprudence, acts of negligence in civil or criminal obtaining a classification according to severity
of the consequences.
Thus, the legal nature of the right to damages of the injured, if negligence of duty,
generated, as in the other case, doctrinal controversy, placing the question whether if we are in
presence of the performance or her and forced the initial obligation, or whether the performance of
another obligation that is damage.
For example, to see if an agent is not taught a postal address negligence, will be obliged to
surrender or compensate the recipient for damage caused by its non-delivery on time.
In other words, is to determine if the compensation to be paid affected entity is a means of
enforcing the obligation or liability form, or if the right to compensation is a result of professional
duty or a result of default.
The answer given is worth also considering the consequences it generates this qualification
on the scope of other legal institutions such as the time at which legal mechanism through which
transformation takes place or replace the original obligation, duty spring up, guarantees that
affected entity is available to recover the damages, the birth right to damages, and the date on which
the injured party may seek cover the damage, the time at which commences right prescription and
others.
33
In the literature, the issue of compensation is discussed in the context of the emergence of
new obligations arising from failure or service obligations are carried out incorrectly, special
contractual obligation initial looks in that employee exercises powers up under service contract
work, which appears as Annex operative job description of it.
It is shown that by performing the equivalent aims to obtain a sum plan to replace the
injured party heritage, value is the performance he was entitled to it by calling the provider.
Seeking a conclusion can be said for non-imperative tasks, the right to damages is a form of
civil liability and not a means of enforcing the initial benefit.
The task falls a new requirement that the provider is to repair the damage caused to the user,
the owner of a new monetary claims that the equivalent of material damage and moral damage
suffered.
So there can be no initial performance of the obligation but a duty whose object is to give an
amount of money regardless of the initial benefit was subject, whereas it has not been carried out
and resulted in a loss that the beneficiary heritage required to be covered.
The money is not equivalent to the initial benefit from the service provider is engaged but is
intended to cover damage caused by the negligent failure of the service contract.
This can have a monetary value greater than, less than or equal to the contracted benefit.
Misconduct in office, despite appearances it presents as a case Bening offenders is actually
one of the main sources of social stress, if not the most feared.
Ordinary, I forgot to put the stamp on the signature'' can trigger dramatic time-consuming
and bureaucratic avalanche flowing away frenatorie in many initiatives that announced fertile and
melt some of the civil rights of the poor fate often hangs.
34
CRIME OF BRIBERY
BRIEF REFERENCE TO THE ROMANIAN LEGISLATION AND
LEGISLATION OF OTHER STATES
Ph.D. Assistant Professor ADRIANA NICOLETA CULEA
Abstract
Offense of bribery crimes in part of the service, the Criminal Code Rumanian, Title VI
“Offenses against the public interest activities regulated by law” chapter “Offenses service or
related service”. Crime of bribery activities presents active side of bribery, distinct incriminated as
a standalone crime.
1. Crime of bribery in the Criminal Code Rumanian.
Offense of bribery crimes in part of the service, the Criminal Code Rumanian, Title VI
“Offenses against the public interest activities regulated by law” chapter “Offenses service or
related service”.
Crime of bribery activities presents active side of bribery, distinct incriminated as a
standalone crime.
According to art.255 of the Criminal Code Rumanian, in effect, a bribe eas to dear the
promise, offering ar giving money or ather benefits, in ways and goals shown in art.254 Penal Code.
Regarding criminalization in the structure, we see that art.255 C.P. provides only actions
that made the material element of the crime, referring to the appointment of ways in which to
commit the act (directly ar indirectly) and the purposes to which there is bribing officials (in order
to perform, not perform, ar tary of the performance of on act concerning the duties of their
employment, or in order to do an act contrary to these duties) the provisions of art. 254 of the Penal
Code.
Criminalization of the content rule that bribery is the act of him who to determine a public
officer ori official to perform, not perform or delay performance of on act concerning the duties of
their employment, or to do an act contrary to these duties, promises, offers or gives, directly or
indirectly, money or other benefits which it is entitled.
Reason criminalization of bribery is the need to combat acts affecting social relations on the
conduct of the service. Civil servants or officials demanding certainty in the performance of service,
the law provides them at the same time, effective protection against acts of corruption thet could be
exposed.
By tackling corruption actions attempled or committed by individuals, provides decrease in
the extent of active corruption and passive corruption in the extent of default.
Bribery, unlike bribery, crime is not a service, but a crime about the service, it is
characterized by an act corruption by an individual on an official or “other employee”.
If taxes and bribery, as a rule, is facing two correlative actions, which, from the
psychological, subjective passions correspond to two also combined with each other. Shares of
offering and giving of money or benefits from bribery, it corresponds to taking bribes, an act of
delinery and action of a promise of money or other advantage, from active corruption, corresponds,
in the case of passive corruption, acceptance or rejection of the promise. On the other hand, the
subjective aspect, while the briber seeks to persuade the bribe to a specific, behavior related to his
service duties, the latter receiving bribes, deliberately accept to have the desired behavior, and this a
situation of dependency on corruption.
35
He said “ sometimes ethical seriousness of the offense bribery may be greater than the one
corrupt why, when the frist advantage of the needs of others” and even “that this offence is more
capable bilateral briber than the corrupt, for that is because of the violation and civil rights”.
It is view that apparently do share our legiutorul, if we cousider the limits of punishment
prescribed by law for the two offenses. Bribery is essentially an act of participation in bribery in
relation to the system established by the Criminal Code parification punishment people that the
briber could be punished with the same punishment as the bribed official. However, in reality, the
law provides criminal penalties for bribery higher than for bribery, which proves that our legislature
in desing, passive corruption has a greater social danger than the active one, because, of course, the
quality of the subject, that traffic its function.
2. Crime of bribery in the German Crimanal Code.
In Capther XXIX entitled “ Crimes of service” German Criminal Code criminalizes, in art.
333, “Providing benefits officer”. Commit this crime he who gives, promises or of any official,
particularly public service employee or a federal militarly army. As a reward, it use to meet future
act entering his duties, the offense is punished with imprisonment up to two years or a fine.
Whover offers, promises or give benefit to a judge or an arbitrator, as a reward for it to
fulfill an action within its remit court, shall be punished with imprisonment up to three years or a
fine.
The act is not sanctioned in accordance with paragraph 1, it the competent authority within
its powers, or as a benefit has approved before acceptance by the recipient whather it has approved
this communication without delay by the recipient.
Another serios crime is incriminated in art 334 active corruption “ Giving a bribe” omit this
crime he who gives, promises or of any official, particulary public service employeear a federal
military army, as a reward, a use that has done an act within its remit ar service will fulfill it in the
future and thus has violated or will vioate obligations; offense shall be punished with imprisonment
from 3 months to 5 years and in less serious cases, shall be punished with imprisonment up to two
years or a fine.
Whoever offers, promises or a judge or an arbitrator awarded a material benefit, as a reward
for it: a) perform any act that the powers come into court and thus broke the powers of judicial,or b)
it will perform in the future and thereby will violate his judicial duties, the first case is sanctioned
with imprisonment from 3 months to 5 years and in the second case with impresionment from 6
months to 5 years. Attempt shall be punished.
If the perpetrator offers, promises or benefit grantet as a reward for a future action, anly
then will apply paragraphs 1 and 2, when the treis to determine another like this: a) the action to
violate its obligations service and b) the extent to which the action depends on its assessment, to
leave in fluientat, by use, in formulating this assessment.
The observed peculiarities of the German law regulating the matter of bribery (passive
corruption).
Frist German law regulates distinct bribery in the commission by an act concerning civil
service but not a breach of its duties toits service (art.333), unlike the case where the giving of
bribery is alleged to violate the civil service obligations, this latter fact is criminalized bribery are
distinct and (art.334).
Such a distinction does not and Rumanian criminal law (art.256 Code penal) penalizing
non-distinctive bout hypotheses in the same offense, athough it is evident that the social danger of
the facts is different in each of these situation.
Secondly, German law more severely sanctioned bribery (in bath ways normative) it is
commited to commission a judge or arbitrator, aggravating that Rumanian law does not know.
36
Thirdly, German law criminalizing bribery (including the provision of benefits officer)
when he meets the act concerning the function of briber asked, while the Romanian law does not
criminalize the act of one who gives, offers, undul benefits officer (at the tip).
Faurth, German law provides that a cause of punishment of one who corrupts the official
(but anly when the act done by clerk, received because of usefullness is not an unlawful act) it he
civil servant who received the usefulness of the notified authority and it has approved the receipt of
usefulness.
This means that the be haviar of the servant (ie his personal circumstances) will influence
and criminal liability of briber.
Rumanian law provides that a cause of violation of the criminal nature of the offense when
the briber was constrained by any mifloace, the one who took bribes (hypothesis unknown by
German law) and as a cause of punishment if the briber and the official not mitut that German law,
the authority before denounce facts prosecution bady has been notified for that offense.
3. Crime of bribery in the Criminal Code American model and traditional Anglo-Saxon law.
According to traditional Anglo-Saxon law “comman law” American model and the
Criminal Code making and bribery (bribery), shall be punished in the same legal provisions, in its
successive alternatively bath claiming, accepting cash benefits (passive corruption) as well as
providing, transmitting benefit officer (active corruption) in this respect reference is made to the
explanations given in section VII point II.
In the case of active corruption an important element is the purpose for which the officer
give different benefits, namely to persuade him to act in a certain sense, to perform ar not perform
an act concerning the duties of their employment. Bribery can be promised or given, for exemple, in
order to protect against a briber on going criminal investigation, or to prevent the discovery of
illegal operation of a hause of prostitution, casinos, or organizations out side the law of gambling or
selling alcohol without authorization.
Also promised or offered bribes may by in order to determine a person’s appointment or
removal from office, or for cheking operations obstacularea payment of taxes.
Note that American criminal law describes the offense that much more analytical
understanding to criminalize (American practicality is present in this case), listed more detailed
categories of illegal acts that may be incurred as a result of own interests received. Such official
may be corrupt to make a certain decision, or to express a certain opinion, or give a specific
recommendation, or to exercise the right mood guess a certain way, briber favorably in all these
ways manifest as a result of receipt of the official activity of the briber own insert.
Note that U.S. law makes no distinction between the licit and ilicit act required briber
officer (as there is a tendency in modern legislation European tam) considers itself as offering
simple, pledge, transfer of benefits officer to capture good will by sufficient to attract criminal
liability. As shown, the provisions of art.240 point 1, enumerating the various assumptions
mentioned bribery and favors those you receive it aims to determine the officer to violate legal
obligations which have knowledge hypothesis is mentioned, among others, whithout having to
provide a separate of criminaly and sanctions (as is German law, for exemple).
We should also note that U.S. criminal law criminalisez the act of bribery only aboute
future public servants wark, favors granted are designed to induce the official to act in a way
favorable briber, it does not refer to work past officer.
American criminal law in this respect is closer to the Romanian criminal law to distinguish
between the favors accorded before or after he has done an act regarding its function.
In fact, U.S. law provides a separate text (art.240, point 3) punishment of the crime in
which the performance is rewarded for his past, namely for taking a decision, he expressed on
opinion, made a recommendation or exercised, in a favorable way of interest, right or promision in
a particular matter.
37
4. Crime of bribery in the Portuguese Penal Code.
The Portuguese Penal Code, art. 423 of Chapter IV, entitled “ Crimes commited in the
exercise of public function”, Section I,” about corruption”, criminalizing active bribery. Commit
this crime he who gives or promises an official himself or through another person, money or other
benefits which it is entitled, in any of the purposes showen in art.420 and 421, will be punished, as
appropriate, the penalties provided in these provisions.
If the offense was committed to prevent the perpetrator, or affinity relatives up to third
degree, to be at risk of being punished or be subject to criminal prosecution for an offense, the court
may, upon its discretion, to mitigate the punishment or I graduate the offender from punishment.
Will benefit from the penalty under section 4 of art.420 and author active corruption if,
voluntarily, promise or offter or accept repudiation refund or economic usefulness the he did ar
gave them.
The authorwill be exempt from punishment in cases wehe the offense committed as the
result of the request or the request officer as a condition to perform and if said act farthwitf
authorities.
Note that Portuguese criminal law provides a cause of mitigation of punishment, unknown
by the Romanian law, namely when bribery was committed in order (even if the purpose was not
achieved) to avoid serious injury to the offender, relatives and his affinity up to grade III injury
consisting in danger of being connicted or subject to prosecution for a crime. In this case the court
may mitigate the punishment or graduate him from punishment briber.
Briber constraint (which according to art.255 paragrapf 2 of the Romanian criminal law) is
a cause that remaves the criminal nature of the offense, in criminal law only Portuguese is cause
exemption from punishment if they manifest as conditioning the operation of the act until awn
interest and are taught only reduired if the perpetrator has a nnounced the immediate authairities.
Exemption from punishment, as a result of termination by deed mituitor is provided in Romanian
criminal law, but not in the context abone.
Finally, Portuguese law provides a provision exempting from punishment briber interesting
by expanting and on to the benefit enjoyed by the officer who, voluntarily, rejected the offer or
promise of bribery or usefulness returned receined fulfillment or failure before the act. The offiter’s
personal circumstances extends to briber if he willingly accepted by the official repudiation of the
offer or promise or retund or other economic benefits which he had made (promise) or gave them
(usefulness).
5. Crime of bribery in the French penal Code.
In Capther III of the new French penal Code, entitled “Illegal acts committed by individuals
against public administration”, Section 1 is devoted to “active Corruption and influence trafficking
committed by individuals”.
According to art. 433-1 of this section shall be punished with 10 years in prison and a fine
of one million frans to do the deed, without righit, directly or indirectly, ofter promise or giving
gifts, gifts or benefits to abtain a person holding public authority or exercising a public service or is
invested whith a public elective office, it either to perform or refrain from an act to perform its
function or service, or the mandate or facilitated as a result function, service or mandate, or to abuse
his real or supposed influence to obtain from an authority or a public administration honorary signs,
posts, outlets or other favorable decision or what.
According to paragraph 2, shall be punished with the same punishment deed claims to give
a person holding public authority or exercising a public or elective office is invested with a public
request, without right, directly or indirectly, offer, promise, gifts, gifts or any benefits to perform or
38
refrain from performing any act, refered to in the preceding paragraph, or to abuse its influence in
the conditions shown in paragraph previous.
Note some features of the criminalization of active corruption in French criminal law.
Frist, French law criminalizing the same provisions besides bribery and influence of the
civil traffic, which the Romanian penal law criminalizing them separately, in art. 257 Penal Code,
together with the influence of the particular traffic (Romanian law makes no distinction in terms of
the active subject of influence trafficking offense is criminalized).
Second, French criminal law criminalizes and giving benefits officer for an act which,
although not incluted in the powers of esrvice was facilitated as a result of these duties, the
hypothesis unknown Roman criminal law.
Finally, French criminal law that criminalizes bribery, so as a from of active corruption and
crime the person who gives different benefits neccumbing officer’s request, which, in the Romanian
law, if the from of constraints exerted on a person who gives things of, may constitute grounds for
removing the criminal nature of the offense.
6. Crime of bribery in the Spanish Penal Code.
Spanish Penal Code criminalize bribery in Title VII “Crimes committed by public officials
in exercising their duty”, Chapter IX, “About bribery”’ art.391.
According to art. 391 of the same chapter commits this offense in one that the gifts, gifts,
offers or promises or tries to corrupt a corrupt public official to accept his claims, he shall be
punished with the same punishment as the officer, less sanction inability special.
According to art. 392, when corruption accurs, to intervene in a criminal case in favor of the
defendant, by husband/wife ar by an ancestor, descendent, brather/sister ar clase to the same degree,
the briber will apply anly to a fine eqvivalent to value of the gifts or gifts, without the sightest of
100.000 pesetas.
Finally, article 393 provides that all gifts or gifts hat azure will be confiscated.
Note that Spanish law criminalizing the act in the same text bath consumers and attempts
(attempt) to active corruption. Romanian law does not refer to attempled bribery as wall as bribery
offenses are conceived as early consumption, offering and promising modality that, in fact,
constitute acts of execution of the decision to consume enough delinquent offense. Ther fore, for
these crimes attempled crime is assimilated consummate.
Also, because Spanish law provides for a mitigation of punishment unknown Romanian
Lage, namely when there is corruption of the criminal case to facilitate a close relative.
7. Crime of bribery in the Italian Criminal Code.
Italian Penal Code of 1931, criminalisez the act of any person to art. 322 provide or promise
money or other benefits, as a reward not due to a cleark or other person exercising a public service
with public exploee quality of the determan to perform an act of the function or service; deed is
punished, if the offer ar promise was not accepted the penalty provided in art. 318 Penal Code (Up
to three years imprisonment and fine, provided the act of taking advantage of official maney ar to
perform an act of the function) reduced by one third.
If the offer ar promise is made to determine the officer or person exercising a public service
to omit or delay an act of the function ar service or to commit an act contrary to his duties, thye
author will be punished, if the offer or promise is not accepted, the penalty provided for art. 319
paragraph 1 (imprisonment from 2-5 years and the fine provided for the act of making money ar
benefits the official to perform any act contrary to the function) reduced by one third.
39
According to art.321, art. 318 apply penalties prescribed in paragraph 1 and art.319
paragraph 1 and the person who gave ar proposed civil servant or person exercising a public service
money or ather help (if the offer or promise has been accepted).
Subsequently the Law no. 86 of 26 April 1990, changed rules on corruption, in the sense
that through art. 322 Penal Code not only to criminalize active bribery committed by on individual,
but the person committed the offense of inciting public officials or perform certain functions in
public administration.
However, the signals ineffective regulations concerning corruption in relation to the scale of
the phenomenon and needs arising from this to proceed to appropriate regulation of the matter.
8. Crime of bribery in Chinese Criminal Code.
Chinese Criminal Code, which entered into forseor 1 January 1980, criminalizes Chapter
VIII, “The crime of abandonment of duty in art.185 both passive corruption (bribery of officials)
and active corruption (bribery).
According to Article 185 paragraph 3 shall be punished with imprisonment up to three
years to one that provides a useful servant. If the deed above damage accurred numerous state and
nationals the official shall be sentenced to not less than 5 years in prison.
9. Crime of bribery in the Criminal Code of the Russian Federation.
The Crimanal Code of the Russian Federation, adopted on October 27, 1961, and amended
in 1962 and 1972, bribery is criminalized, even under this name, in art. 174, is considered a crime
of service.
In terms of the material element, giving the offense consists of the civil benefits. This does
not mean that the offering or reveinging of uses remain unpunished, they are punishable as
attempted bribery offenses and punished as such. Bribery is considered consumed upon receipt by
an official mall.
Active subject can by any person, if the bribe is given representatives of state organizations,
believing that in this way protect the best interests of the company, the subject may be a cleark.
Although the text does, not refer, to art. 173,174 (bribery) is widely accepted as a bribe is given to
the civil service act which is the subject of active bribery.
Regarding the subject of bribery, that text does it indicate the literature shows that it can not
consist only in the nature of the material benefits: money, goods, right to property, tickets to
sanatariums and rest homes, houses bonuses, salary increases, etc (character material benefits).
In case you can get things of non-property, the deed is framed in art.170 - abuse of power or
service.
Offense has some aggravating farms: bribery several times ar by a person who has been
convicted of bribery (giving, takingor medium of the bribe). Simple form is punished with
imprisonment from 3-8 years and qualifiedforms with imprisonment from 7 of 15 years.
The law provides two reasons for removal of criminal liability: the person who gave the
bribe is exempled from liability if the alleged bribe was voluntarily terminated or if the act of
bribery.
Mediation in criminal offense of bribery is separate in art.174 (punishment of imprisonment
from 2-8 years), intermediate in the crime of bribery. This act commited several times or by a
person who has been convicted of bribery shall be punished with imprisonment from 7 to 15 years
and confiscation of property, with or without the obligation to live in a place within the 2-5 years,
after serving their sentences of imprisonment. “ The intermediary can act in the interests of the
briber, as well as briber interest, but must be about both”.
40
Bibliography
1. Constantin Sima - Codul penal adnotat - practică judiciară 1969 - 1995, Ed. Atlas Lex,
Bucureşti, 1996;
2. Codul Penal , actualizat 15.07.2006, Ed. CH Beck
3. Gh. Alecu, ,,Criminalistică’’, Ed.Ex.Ponto,Constanţa, 2008,
4. Gh.Nistoreanu şi colaboratorii - Drept penal - partea specială, Ed. Continent XXI,
Bucureşti, 1995;
5. Gh. Nistoreanu, Alexandru Boroi - Drept penal - partea specială, Ed. All Beck, Bucureşti,
2002;
6. G.Antoniu, C. Bulai - Practica judiciară penală, Ed. Academiei, Bucureşti, 1993;
7. Mihai Adrian Hotca, Noul Cod penal şi Codul penal anterior, Ed. Hamanagiu, Bucureşti
2009;
8. Tudorel Toader - Drept penal român. Partea specială. Culegere de probleme din practica
judiciară pentru uzul studenţilor, Casa de Editură "Şansa", Bucureşti, 1996;
9. Theodor Mreju, Dumitru Petre Andreiu Florescu, Dan Safta, Marieta Safta - Infracţiunile de
corupţie. Aspecte teoretice şi practice, Ed. All Beck, Bucureşti, 2000;
10. V.Dobrinoiu - Traficarea funcţiei şi a influenţei în dreptul penal, Ed. Ştiinţifică şi
Enciclopedică, Bucureşti, 1983
11. V.Dobrinoiu - Corupţia în dreptul penal român, Ed. Atlas Lex, Bucureşti, 1995;
12. Vintilă Dongoroz si colaboratorii, Noul Cod penal si Codul penal anterior, prezentare
comparative, Editura Politica, Bucureşti, 1969.
41
WITNESS PROTECTION
Persons Heard As Witnesses
Ph. D. Lecturer TIBERIU DUŢU
Abstract
I have chosen the above title for the present paper starting from the idea that the new code
of criminal procedure, unlike the previous regulations, has a number of provisions – we may call
them special - concerning the protection of two categories of persons, being witnesses. It concerns
threatened witnesses and vulnerable witnesses. In expanding the above idea, I have considered that
the material below is enough, without needing to reproduce other aspects comprised in the
forthcoming course.
Key words: threatened witnesses, vulnerable witnesses, witness protection, distorted voice
and image
“Witness evidence is also called in literature and judicial practice testimonial evidence;
witnesses’ depositions (statements) constitute the mutual way to inform the judicial bodies of what,
rightly, came to be called, after Benthan’s famous expression – the eyes and the ears of the
justice”.1
Witness evidence constitutes the rule in the criminal trial, (and the exception in the civil
one) being one of “the means of evidence used with increasing frequency because in many
situations there are no material traces to allow the use of other means of evidence”; a witness being
that person who knows of any fact or circumstance of a fact which may serve to find out the truth in
a certain case, precisely determined.
This point of view is unanimously considered by most of the authors who have been
interested in studying that institution.
It is not without interest to reproduce here a statement made by a prestigious former law
practitioner, reputed university professor now, Ioan Griga, who retake and complete an assertion of
the famous professor Vintilă Dongoroz (Curs de procedură penală, II-nd Edition, Bucureşti, p. 199);
referring to witness deposition, in his work Criminal Procesual Law, at page 281, he fully supports
the topic, justifiable, that “although highly important, this means of evidence is, often, very fragile,
because of the multiple factors which act and sometimes alter the statement of a witness
(conditions, the medium of perceiving the related facts and circumstances, the level of culture, bad
faith etc.).” And he went on: “that is why the judicial bodies have to adopt the suitable tactical
means and to evaluate with attention and prudence their degree of truthfulness”.
It is a truth that it can hardly be ignored.
In principle, any natural person can be called as witness in the criminal trial, no matter
his/her physical state.
As a rule, witnesses have the following obligations: to be present at the place, day and time
shown in the summons, to take an oath or solemn declaration before the court and to declare the
truth, respectively everything that they know about the facts and the circumstances which make up
the object of the case.
Not respecting these legal and express provisions may bring administrative or criminal
penalties.
Being a witness comes first to being an expert, a mediator, a representative of one of the
parties or of a main procedural subject, as regards the facts or circumstances on which that person
actually knew them before they acquire that capacity. This is normal because – in a certain case – a
42
witness can be replaced, if necessary, from the capacity that he/she has had as an expert, lawyer,
mediator or representative, without any problem, while from the capacity of witness, it is not
possible.
The persons who have prepared reports, as finding bodies (state inspections, control bodies,
bodies of public policy, commanders of ships and aircrafts, referred to in the texts art. 61 and 62
Code of Criminal Procedure (CCP), can be heard as witnesses.
It should be said that although, as a rule any person may be summoned and heard as a
witness, with the exceptions that we shall mention below, still, the judicial authority is required to
establish with certainty that the person called to be a witness has full capacity to make a conscious
testimony that the facts and circumstances actually reported are according to reality. In such cases,
the judicial authority is required to have any due diligence required by law (psychological,
psychiatric, medico-legal examination, for example).
The following categories cannot be heard as witnesses:
*Persons bound by professional secrecy (physicians, notaries, lawyers, priests), under
penalty of committing a crime;
Those who are exempted from this requirement are the persons receiving permission from
the competent authority or the holders, and also if this is another reason for removing the legal
obligation of secrecy or confidentiality, such as, for example, the existence of data, facts or
circumstances that relate to a crime against state security or against peace and humanity.
*The suspect, the injured person, the defendant, the civil party or the civilly responsible
party cannot be heard as a witness.
The following categories have the right to refuse to give evidence as witnesses:
*Spouse, ascendants and descendents in direct line, and also siblings of the suspect or
defendant, as well as persons who had acted as a spouse, so that the judicial authority must
communicate, at the same time with showing the other rights and obligations that they have.
But is these persons consent to give evidence, they assume the same rights and obligations
as any other witness. (Article 117, paragraph 3 CCP).
Another clarification has to be made: in cases in which more suspects or defendants appear,
if one of the persons, who are not obliged to give evidence, however agrees to make statements,
he/she is exempt from making confessions against the other suspects or defendants, if that statement
cannot be confined only to the latter.
A witness has the right not to accuse himself or herself. Thus, according to the provisions of
the article 118 CCP, “a witness statement witness cannot be used during a criminal trial held against
himself or herself”.
Witness Protection
Special Means of Hearing Witnesses
1.
Protection of threatened witnesses
Before we examine the texts which regulate this institution, it is interesting to quote a point
of view expressed more than 10 years ago by an appreciated academic, a former renowned
practitioner of law, as a prosecutor and then a lawyer, Ioan Doltu:
“As far as I am concerned, I am worried about the essential problem related to testimonial
evidence namely, on the one hand I think that the witnesses who lie should be punished more
severely in terms of criminal law and on the other hand I think that our law should include
provisions to protect the witnesses who give evidence in good faith and who may be subjects to
hazards”.
43
As if sensing, the same author proposes to our legislature the establishment of a special
witness protection program, as well as the possibility of changing their identity data. 33
Another renowned specialist – professor and prcatician of fame - Gheorghiţă Mateuţ, in
2003, welcomes a new witness acknowledged procedural law, namely his/her right to protection,
based on the finding that our legislation has begun to rally the Community one, so that the Law no.
682 of 2002 on protection of witnesses was adopted, by establishing “special ways of listening to
the witness by means that would allow him/her to not be physically present in court or through an
audiovisual network, with the distorted image of the person so that he/she could not be recognized”.
The provisions of Law no. 682 of 2002, which came into force on 28 January 2003 and the
Law no. 281 of 2003 amending and supplementing the Code of Criminal Procedure are to be found,
largely, in the code that we are examining in this paper. Where there is reasonable suspicion that the
life, physical integrity, freedom, property or occupation of the witness or of a member of his family
could be jeopardized as a result of the data which were provided to the judicial bodies or of the
statements made before them, that person may be granted the status of threatened witness and
therefore the benefit of one or more protective measures, of the ones that you can find in article 126
CCP, measures that are to be examined as it follows:
- during prosecution, the prosecutor has the right and even the obligation to have home
security and monitoring and to ensure temporary housing for the witness or temporary housing, if
this is more useful; to accompany and protect the witnesses or their family members while they
move; the protection of the identity data, by allowing the witness to use a pseudonym, with which
the witness will sign; hearing the witness without having him/her present, by using audiovisual
means of broadcasting, with distorted voice or image, if it is considered that the other measures are
not enough;
- these measures are available ex officio by the prosecutor or at the request of the witness, of
one of the party or of a main procedural subject, by a reasoned order, which is kept in complete
safety;
- when the home and identity of the witness are protected, the address and real data are
recorded in a special register to which access is limited only to the prosecuting authority, the judge
of rights and liberties, the judge of preliminary chamber or the court, under the strictest confidence;
- the prosecutor is obliged to check regularly, at reasonable intervals if the conditions which
determined to take the protective measures still remain, and otherwise, will ask, also by reasoned
order, to have them terminated;
- the protective measures can be maintained throughout the course of the criminal
proceedings if the state of danger that led to taking them has not come to an end.
If the threatening condition occurred while the case was in the preliminary chamber
procedure, the court room judge, ex officio or at the prosecutor’s request may order the protective
measures to which we referred above. Such a request shall be handled in closed session in the
council chamber, the prosecutor’s presence being mandatory. The court shall give a reasoned
conclusion, decision which is not subject to any appeal.
Another remark should be made: in order to be able to produce the expected results, the
extent of protection (concerning surveillance and home security and accompany insurance cover
and witness protection) is communicated, compulsory, either by the prosecutor or by the judge of
the preliminary chamber (depending on the body that ordered it), to the designated authority to
enforce it.
- during the trial, at the request of the prosecutor, of the witness, of the parties or of the
injured party, the court may order the awarding of threatened witness status to a person.
If the proposal is made by the prosecutor, it must include the witness’s marital status and the
actual motivation of the seriousness of the danger to which the witness is subjected, as a
justification for of the necessity to order that measure.
44
If the request is made by a person other than the prosecutor, the court may order him to
make a series of such checks to see if the request is justified or not.
Once the court has ordered the status of threatened witness, it is required to determine
permanent surveillance and home security of the witness’s house or - if this is necessary – to
provide temporary housing. It may also order that the witness and his family members (if any) to be
accompanied during travel. At the same time the court takes measures that the court be free of
advertising, on hearing the witness. It can also be ordered by the court that a witness to be heard
without him/her being actually present in court by audiovisual means of broadcasting, with distorted
voice and image, if that is necessary and the other means of protection are not enough. The person
with threatened status will have protected identification data and he/she may be given a pseudonym
with which to sign.
The request for the status of threatened witness shall be decided in closed session, without
the participation of the person who made it.
The prosecutor’s presence is mandatory, under penalty of nullity.
The court decides in the end, decision which is not subject to any appeal.
This decision, which shall be kept in strict confidence, shall be communicated to the
competent bodies to carry out the measures ordered.
2. Hearing of the protected witness
Hearing of the person with threatened witness status takes place under special
circumstances, specifically established by article 129 CCP, as follows:
- the judicial body which is to hear the witness in question, whether the prosecutor, the judge
of rights and liberties or the court, shall make the statement without the person actually be present
in front of those who are to listen to him/her, by audiovisual means of broadcasting;
- in making the statement a probation counselor can participate, too - when this is required
by the judicial body or by the witness - to whom attention is drawn that he is bound to secrecy on
the data, facts or circumstances of which he became aware during the hearing;
- the witness is made aware that he is entitled to be assisted by a psychologist and to the
extent that he requests the presence of the person in question, the court shall take measures as a
consequence;
- through the judicial body, the suspect, the injured person, the defendant, the civil party, the
civilly responsible party, their attorneys can question the witness, the court being required to act in
such a manner as to not get to the identification of the person;
- the statement recorded under the use of audio and video means is then rendered, entirely,
in written;
- during prosecution stage, the witness statement is signed by the criminal investigation
body, the prosecutor or, where appropriate, by the judge of rights and liberties, who was present at
the hearing, and then it is submitted to the case file. The transcribed statement shall be signed by the
witness as well, and then it shall be stored in the file of the prosecution, in complete security and
confidentiality;
- if the hearing takes place in the court, the statement shall be signed by the chairman of the
panel;
The medium, on which the witness statement has been recorded, in original, sealed with the
seal of the judicial authority before which the deposition has been made, shall be kept in strict
confidence, mentioning that the case file will follow.
3. Protection of vulnerable witnesses
Such status may be granted by the prosecutor in the first phase of the trial or by the court
before which the matter is, to the witness who has suffered a trauma as a result of the offense,
because of the behavior subsequently inadequate of the suspect or of the defendant, as well as to
45
child witnesses, who generally are more sensitive, easier to impress, more influential, under certain
conditions.
Once a person has acquired the status of vulnerable witness, the judicial body that ordered
this must also take a series of protection measures, from the ones that we have examined when we
referred to threatened witness.
Thus, vulnerable witness and/or family members, where appropriate, will be accompanied
during their movements, the hearing shall be made without the physical presence of the witness
before the judicial body, by technical means of audiovisual broadcasting, and the court will not be
open to the public during the hearing of the witness, whose identity data will be protected.
In fact, the procedure to be followed is the same as the one for threatened witness and is to
be found in the provisions of the article 126-128 CCP.
It should also be made clear that the sentences of threatened or vulnerable witnesses, signed
by the representatives of the judicial body before which they have been recorded, have the same
evidential value as any other evidence and they will be judged in the context of all the evidence
given in that case.
Bibliography
1. Romania’s Constitution
2. The Code of Criminal Procedure, Official Gazette. No. 485, 15 July 2010
3. Doltu, Ion – Witness Statements, Evidence in Criminal Proceedings, Editura Dobrogea, Constanţa,
1999
4. Duţu, Tiberiu and Dărângă, Niculae Alin – Roman Criminal Procedure Law Institutions, Editura
Europolis, Constanţa, 2008
5. Nistoreanu, Gheorghe and Boroi, Alexandru – Criminal Law and Criminal Procedure, Selectiv
coursebook, Editura All Black, Bucureşti, III-rd edition
6. Jidovu, Nicu and Bică, Gheorghe – Criminal Procedural Law, Editura Fundaţiei România de
Mâine, Bucureşti, 2007
7. Griga, Ioan – Criminal Procedural Law, General Part, Editura Oscar Print, Bucureşti, 2004;
8. Mateuţ, Gheorghiţă – Witness Protection. Use of Anonymous Witnesses in front of the Criminal
Trial, Editura Lumina Lex, Bucureşti, 2003
9. Poenaru, I. – Crimainal Law Issues, Editura Lumina Lex, Bucureşti, 1999
References
1
Doltu, Ion - Declaraţiile martorilor, mijloc de probă în procesul penal, Editura Dobrogea Constanţa, 1999,
p. 9;
46
LIMITS OF THE PERSON’S RIGHT TO IMAGE
IN THE NEW CIVIL CODE
PhD. Assistant Professor LILIANA MARILENA MĂNUC
Abstarct‫׃‬
The legal protection against harm to the person’s image is called “the person’s right to image”. The person’s
right to image is a personality right, qualified as such by art. 58 of the New Civil Code, a primary right of the person,
next to the right to life, physical and mental integrity, to dignity, honour, reputation and respect for the private life. The
voice is included in the right to image and it is considered a personality attribute. By word and voice, a sound picture of
the personality is being created.
Exercising the right to image can not be absolute. The order and public interest bring restrictions to the
person’s right to resist capture, reproduction or use of his/her image; it happens the same with the freedom of speech.
The New Civil Code regulates, through article 75, the limits for exercising personality rights.
Keywords: personality right, the right to voice, order and public interest, freedom of expression, image
capture, image reproduction, image use, image-source, image-reproduction.
The image of a person, as well as the name, is an identifying element for the person. The
word image derives from the Latin word imago and the French word image and its meaning in the
analyzed situation reveals the representation of physical features of the person, the external
dimension of man.
The legal protection against harm to the person’s image is called “the person’s right to
image”.
The person’s right to image is a personality right, qualified as such by art. 58 of the New
Civil Code (called Personality Rights, included in Chapter II “The respect due to the human being
and his inherent rights” of Book I “About Persons”): “(1) Everyone has the right to life, health,
physical and mental integrity, to dignity, to their own image, to privacy, as well as other rights
recognized by law. (2) These rights are not transferable.”
The right to image is a particular right because it does not align perfectly with the general
character of these rights which are not patrimonial. Since the image can be sold, and therefore the
patrimonial aspect is recognized, the extra-patrimoniality of this right is only relative. It may be
specified that we are witnessing a shift of the right to image, from an absolute right to a relative
right and that, over time, it will be replaced by the right to dignity. [1]
Under art. 73 of the New Civil Code, entitled “The right to one’s own image”, “(1) Every
person has the right to his/her own image. (2) In exercising the right to his/her own image, the
person can prohibit or hinder the reproduction, in any manner, of his/her physical appearance or
voice or, where appropriate, the use of such reproduction. The provisions of art. 75 remain
applicable”. [2]
Under art. 253, paragraph 1 of the New Civil Code, the natural person whose nonpatrimonial rights have been violated or threatened, can always ask the court: to forbid the illegal
offence, if it is imminent, to stop the breach and to prohibit it in the future, if it still lasts, to find the
illicit nature of the offence, if the disorder that it has produced, still lasts. Paragraph 3 of the same
article states that “the one who has suffered a violation of such rights can request the court to order
the author of the deed to perform any action deemed necessary by the court, to get to restore the
violated right, such as compelling the author, at his expense, to publish the sentence, or any other
measures deemed necessary to end the illegal act or to repair the damage caused.
The victim can claim damages or, where appropriate, a pecuniary compensation even for the
non-patrimonial damage which was caused, if the harm is attributable to the author of the harmful
47
deed; in these cases, the right to action is subject to the extinctive prescription. (art. 253, paragraph
4, New Civil Code).
As noticed, the voice is not distinctly mentioned among personality rights listed in art. 58,
but it is included in the right to one’s own image, because the legal regime applicable to the latter,
as regulated in art. 73 of the New Civil Code, includes also accurate references to the voice.
The voice is considered a personality attribute, by word and voice creating a sound picture
of the personality. This image must be protected against any unauthorized listener, even in the
absence of a recording or broadcasting, but also against any use of the voice with the purpose of
recording or broadcasting it without the authorization of the issuing person. [3]
Exercising the right to one’s own image can not be absolute. The order and public interest
bring restrictions to the person’s right to resist capture, reproduction or use of his/her image.
The restriction for exercising the right to image, in particular and the fundamental rights and
freedoms in general, is an exception. Limitations on fundamental human rights must meet the
following requirements: to be necessary in a democratic society and expressly provided by law, to
protect the national security, public order, health or public morals, rights and freedoms of others, to
be established exclusively to foster general welfare in a democratic society, to be imposed for
members of armed forces and police. [4]
Internal and international regulations when guaranteeing human rights do not preclude the
possibility of their limitation because, on the contrary the existence of unconditional rights can not
be allowed in a democratic constitutional system. If the limitation and conditioning of the
exercising prescribed by law to fundamental rights and freedoms are missing, then this can lead to
abuse of rights. In his paper “About limits”, Gabriel Liiceanu emphasized that freedom made sense
only in the context of limitations, because in order to be expressed, it must depend on something,
circumscribe to some coordinates (“The human freedom is interpreted in a bundle of limitations
which, in fact, represent the condition for its exercise”). [5]
The issue of fundamental human rights in the context of new realities of the contemporary
world, considered to be “the holy religion of the third millennium” and the requirement for the rise of
the general interest of society in the context of state abuse, consider necessary to review the relation
between the man’s general interest and the fundamental human rights, from the perspective of the
proportionality principle. The man’s general interest and the fundamental human rights, in general, are
fundamental values found on top of the pyramid of values, and we live in a society where this
competition between interests and values begins to acquire sometimes dramatic accents. [6]
Nowadays, the cultural pluralism stands every day stronger and we need to reconsider the
principle of human dignity and to understand man as a unitary system, in all aspects of his life and
history, because, as the great Professor Mircea Djuvara stated, “the fundamental idea that grounds
the right is ... the respect for human dignity, the man’s respect for the man, the sympathy for others,
therefore the respect for all his legitimate rights, that is, those rights which do not represent
violations of others’ freedoms”.
Thus, the recording and transmission of images captured on the road for speeding or for
regulating the traffic or the use of means of video surveillance by public authorities to protect public
institutions or to prevent or find the harm done to the security of persons and goods in places at risk
of assault and theft are lawful, but only if the law allows the use of these means. In all cases, video
surveillance operations of public places should be made so as not to be able to view images from
inside homes or those of their entry, and the public must be kept informed of the existence of the
video supervision system and of the person responsible for its installation. Under art. 226, par. 5 of
the new Criminal Code, placing illegally technical means of audio or video recording represents an
offence. Also permitted is to proceed, in a criminal investigation, to reproduce the image of a
person without his/her consent, in order to preserve his/her morphological characteristics or in the
situation where a crime could be, in this way proved. [7]
By art. 8 of the European Convention on Human Rights, the right to privacy and, implicitly
the right to image are being protected. Under paragraph 2 of this article, the interference by a public
48
authority with the exercise of this right shall not be admitted, unless this interference is required by
law and if it represents a measure which, in a democratic society, is necessary for the national
security, public safety, economic well-being of the country, prevention of disorder or crime, the
protection of health or morals or of rights and freedoms of others.
It follows that a state action affecting the person’s right to privacy must meet certain
conditions (the interference should be prescribed by law, the interference should be necessary in a
democratic society, the interference should have a legitimate purpose) and the European Court
rigorously verifies their existence. The failure of positive obligations of the state, which resulted in
limiting the right to respect for private and family life, may constitute a violation of art. 8 of the
Convention. [8]
In the case of Peck v. the United Kingdom, decided by the European Court, the applicant argued
that the disclosure, by the municipal council, of footage filmed through a closed television circuit and
representing the consequences of his attempted suicide represented a violation of his right to privacy.
The applicant admitted that those images filmed without his knowledge, saved his life, because they
allowed rapid intervention by the police, but he only complained of their distribution on public
television channels, which led to his identification by many people who knew him. [9]
Another limitation of the right to image is the freedom of expression.
The freedom of expression is of paramount importance in a democratic state of law and it is
the essential foundation of a democratic society and one of the primary conditions of progress and
fulfilment of each person. The State must provide a free flow of information, ensure the
maintenance of the pluralist character of information and all information should be provided
through technical means. Protecting the freedom of expression, according to the European Court,
not only protects those opinions or information received favourably or with indifference, but also
those that may offend or shock state authorities or part of the population”. A feature of the freedom
of expression is that it protects certain activities with a significant risk of harm to the interests of
others or to the public interest. Thus, it is essential to strike a balance between protecting the
freedom of speech and other interests and values, so that any abuse of this right to be punished. [10]
The freedom of expression stipulated in art. 10 of the European Convention on Human
Rights includes not only the expression through words, but also through images or gestures. [11]
The European Court has in most cases preferred the freedom of expression to other purposes
and interests desired to be protected. [12]
The primary criterion of the European Court in establishing measures to limit a right or
another, in the analyzed situation, is that of proportionality. In all cases, the image must be accurate
and legitimate, and the choice of image must be relevant in relation to the information.
But in all cases, the principle of dignity must be followed precisely. The case Hachette
Filipacchi et Associes v. France had as object the publication, by the French magazine Paris Match
(1998), of some photos taken immediately after the assassination of the prefect Erignac, in Corsica,
in February 1998, and in which appeared images of the body at the attack place. The prefect’s
relatives obtained the sanction of the applicant company which was compelled to publish a “judicial
release” through which it had to apologize for harming their feelings. Although the photos matter
was of general interest, how and especially when they were released (during the mourning period)
had as consequence, in the Court’s view, “the revival of trauma suffered by the victim’s relatives, as
a result of the assassination. Therefore, these publications harmed these people’s right to privacy”.
The right to privacy, in this case, took precedence over the freedom of expression; there was no
breach of art. 10 of the Convention.
Under the New Civil Code, art. 75 regulates the limits governing the exercise of personality
rights (i.e., including the right to one’s own image) as it follows: “ (1) Harms that are permitted by
law and international conventions and covenants on human rights, to which Romania is a party,
represent no violation of rights provided in this section. (2) The exercise of constitutional rights and
freedoms in good faith and in compliance with international covenants and conventions, to which
Romania is a party, does not represent a violation of rights provided in this section”.
49
Finally, we can conclude that one of the problems that humanity must solve is to create a
civil society able to smoothly and fairly manage the right, to limit the individual’s freedom in order
to provide for his neighbour’s freedom, to protect and respect the personality rights and
fundamental freedoms, but also to ensure the promotion of the general interest.
Bibliography
1) Ungureanu, O., Munteanu, C., 2010, “Personality Rights. The right to one’s own image
in the New Civil Code” in Acta Universitatis Lucian Blaga, no. 1 / 2010, Rosetti Publishing House,
Sibiu;
2) Ungureanu, O., Jugastru, C., 2007, “Civil Law. Persons. 2nd Edition, revised”, Hamangiu
Publishing House, Bucharest;
3) Coca, N., G., 2009, “The general interest and fundamental human rights”, Legal
Universe Publishing House, Bucharest;
4) Selejan-Gutan, B., 2008, “The European Protection of human rights. Edition 3”, C.H.
Beck Publishing House, Bucharest.
References
[1] Ungureanu, O., Munteanu, C., 2010, “Personality Rights. The right to one’s own image in the
New Civil Code” in Acta Universitatis Lucian Blaga, no. 1 / 2010, Rosetti Publishing House, Sibiu,
p. 18;
[2] Art. 75 of the New Civil Code regulates the limits of personality rights;
[3] Ungureanu, O., Jugastru, C., 2007, “Civil Law. Persons. 2nd Edition, revised”, Hamangiu
Publishing House, Bucharest, p. 51;
[4] Article 4 of the French Declaration of Human and Citizen Rights of 1789 states:” Freedom is the
ability to do whatever does not harm the others. Thus, the exercise of natural rights of each man has
no limits other than those that provide other society members to use the same rights. These limits
can be determined only by law”;
[5] Coca, N., G., 2009, “The general interest and fundamental human rights”, Legal Universe
Publishing Law, Bucharest, p. 196-198;
[6] Coca , N., G., op. cit., p.11-13;
New Civil Code”, op. cit., p.26-27;
[8] Selejan-Gutan, B., 2008, “The European Protection of human rights. Edition 3”, C.H. Beck
Publishing House, Bucharest, p. 170-171;
New Civil Code”, op. cit., p. 27;
[10] Selejan-Gutan, B., op. cit., p. 181-182;
[11] Art. 10 of the European Convention on Human Rights provides: “1. Everyone has the right to
the freedom of expression. This right includes the freedom of opinion and to receive and impart
information and ideas without interference by public authority and regardless of frontiers. This
article shall not prevent States from requiring broadcasters, cinematography and television to
impose a licensing regime.
2. The exercise of these freedoms implying duties and responsibilities may be subject to such
formalities, conditions, restrictions or penalties as prescribed by law in a democratic society, which
represent necessary measures for the national security, territorial integrity or public safety,
prevention of disorder or crime, protection of health, morals, reputation or rights of others, for
preventing the disclosure of confidential information or for maintaining the authority and
impartiality of the judiciary power”.
[12] The European Court gave priority to the freedom of expression in the debate over the last
illness of the former French president Francois Mitterand, terminal illness, kept secret for over 20
years and revealed by his personal doctor in the book banned by authorities and object of the
dispute from Strasbourg, “Le Grand Secret” (ECHR, Societe Plon v. France, 2004).
50
FOUNDATION OF FOREIGNERS LAW IN FRANCE
University Lecturer Ph.Dc. INGRID NICOLAU
University Lecturer Ph.Dc. RALUCA LUPU
Abstract
Is there a constitutional statute of the foreigner in French law? Does the foreigner have the
same rights as French nationals? Are there any “fundamental rights” inherent to the human nature
which therefore are applicable regardless of the nationality? 1
It would be reasonable to consider that there are human rights, therefore inherent in human
nature and thus independent of the nationality criteria, and others which would be reserved to
French nationals.
Key words: foreigner’s rights, European Convention for human rights, citizen, Geneva Convention.
Foreigners law point out the importance of public freedom law thus constituting a field
depending on law competence.
In the eve of war, as a reaction against the actions of the Vichy government, the ordinance
from 2 XI 1945, coded today, set out the goal to “to reintroduce during the following years with
method and intelligence, good elements of the migration inside French collectivity” (Charles de
Gaulle). Consequence of the depopulation due to the war, it was estimated that France needed
approximately 5 million persons. Therefore foreigners access is eased on the job market, any forms
of national preference being removed (foreign labor is generally more docile, less exigent and less
or not at all organized in syndicates.
At the same time ordinance from 19 XI 1945 with the nationality Code is issued, enforcing a
true assimilation policy: French nationality is thus considered to be the common purpose of the
foreigners who maintained connections with France.
The issue changes 30 years after the war ended: growth is slowing down, unemployment
increases and the foreigner becomes a suspect to the nationals in terms of jobs. It is the beginning of
a reflux movement, expressed through Bonnet law dated 10 January 1960: tougher conditions to
enter France, effective removal measures from the territories, attempt to legalize administrative
detainment and extradition, perfection of the expulsion procedures 2.
After 1981 foreigners law will be modified back and forth, depending on the various
governments; 2 principles will be maintained permanently: border closing and integration policy of
the foreigners which already entered France.
This law inflation explains the importance acquired by the constitutional principles; it is
noted the increasing importance of the international resources extracted from applying the European
convention for human rights and a notable communization of the foreigners law.
Constitutional fundaments
It is possible to use various notions to characterize the real connection between a person and
a state: first national is the one which possesses the nationality of the state and it is assimilated as
citizen, placed under the jurisdiction of the state.
While the citizen, is compulsory a national one, having his civil and political rights, too.
This is the cause for a certain ambiguity maintained by various constitutional texts, luckily
overtaken by the Constitutional Council Law.
51
Constitutional texts
Is there a constitutional statue of the foreigner in French law? Does the foreigner have the
same rights as French nationals? Are there any “fundamental rights” inherent to the human nature
which therefore are applicable regardless of the nationality? 3
It would be reasonable to consider that there are human rights, therefore inherent in human
nature and thus independent of the nationality criteria, and others which would be reserved to
French nationals.
The texts use the most various presentations without any other value than a “literary” one.
Constitution text is not more explicit either, it uses the word “citizen” in hypotheses where
guaranteed rights are not limited to nationals; for instance it the case for equality in front of the law
(art. 1) or law competence regarding the fundamental guaranties granted to citizens to exert their
public liberties.
It is true that there are hypotheses, where the generic field of applicability of the law is
attested using expressions as “men”(Declaration from 1789 art. 1 – equality in rights), “every one”
(Declaration from 1789 art. 9 – presumption of innocence – Preambles from 1946, syndicate action)
or “no one” (Declaration from 1789 art. 10, freedom of opinion).
From this point of view the Preamble from 1946 refers to generic categories (equality
between men and women), rights recognized for every workers, individuals and family; every one
has the right to work and the right to obtain a job, every human being has the right to obtain from
the collectivity adequate means of existence, equal access for children and adults to education.
Constitutional jurisprudence
Considering the multiple modifications of Ordinance from 1945 suffered over the recent
years, Constitutional Council became a full time actor in the evolution of the foreigner’s rights,
creating, as some say, a “constitutional statute” of the foreigners in France.
Constitutional Council considered that the entry and stay conditions in France for foreigners
are subject to a legal regime which confers to the administrative authorities extended powers. If
defending the public order constitutes a constitutional objective, the legislator can, referring to the
applicable measures for the foreigners stay in France, to decide that the enforcing methods for these
objectives will be based on personal sanctions regime or on their continuity.
Constitutional Council mentioned also that the fight against illegal immigration is part of the
public order which is an exigency of constitutional value. This mention could be interpreted as
pointing out that the Constitutional Council considers entry and illegal stay affecting the public
order.
This jurisprudence was developed first in connection to the equality principle. In the
decision from 22 January 1990 the Council indicated that the “legislator may take specific decisions
regarding the foreigners”; it is deduced that the exclusion of the benefit of a social work performed
by foreigners residing illegal in France does not recognize the equality principle.
In the decision from 13 August 1993, constitutional jurisdiction stated clearly that foreigners
are in a different situation than nationals. This difference combined with the objective of public
order will justify the specific regulations applicable to the entry refusal and identity verification.
Therefore no principle and no rule of constitutional value do not guarantee general rights
and absolute access and stay rights on national territory (22 April 1997) for foreigners.
The Council stated that there are freedoms and fundamental rights of constitutional value
that are recognized for all those that stay on the Republic’s territory, independent of their legal
situation, legal or not; amongst those rights, individual freedom and safety are included (and
freedom to come and go), freedom to marry and the right to a normal family life4.
52
If the Constitutional Council states the existence of such fundamental rights, inherent to the
human nature, it recognizes for the legislator also the faculty to enforce these dispositions regarding
the foreigners.
Thirdly, the foreigners residing in France benefit of “extra” rights, meaning they are of the
same nature as those of the nationals; it is the case of the right to social protection.
In consequence, excepting the rights expressly reserved to nationals, there is equality
between French citizens and foreign citizens which have a legal situation.
Supranational foundations5
Having a profound impact over public freedom, foreigners law is based on numerous and
important international sources.
There is an abundance of universal international sources, such as international pacts
referring to civil and political rights and to socio-economic and cultural rights adopted by the
United Nations on 19 December 1966 and ratified by France in 1981, international convention over
the elimination of any form of racial discrimination (United Nations Resolution from 21 December
1965) or the Convention against torture and other cruel punishments, inhumane or degrading
treatment (United Nations Resolution from 10 December 1984).
1. Foreigner specific international instruments
Beside the “general” international instruments, certain conventions apply only to foreign
nationals.
A. Geneva Convention from 28 July 1951, referring to the refugee statute.
This convention defines the refugee as “any person which in justified fear of persecution due
to its race, religion, nationality, association to certain social groups, political opinion is outside of
its own country and due to this fear cannot or does not want to claim the country protection.”
It establishes principles of “non rejection”: the one who request asylum cannot be
prosecuted for entering and staying providing he is from a country where is threaten and him
notifying the authorities without any delay; second of all, only necessary restrictions will be
applicable to the refugees movement; finally the refugee cannot be rejected at the border where his
life or freedom may be in danger.
Geneva Convention is completed in France by book VII of CESEDA. It is the French office
for refugee protection and (OFPRA), which has competence to decide the acknowledgment of the
refugee statute and to provide subsidiary protection. The decision constitutes an administrative
document susceptible of appeal in cassation in front of the State Council.
B. New York Convention from 28 September 1954 referring to the stateless person statute
This convention defines the stateless person as a person who is not considered by any state
its citizen, according to legislation.
The stateless person is the person who cannot benefit from real protection from state
authorities.
Unlike the Geneva Convention regarding the refugees, the New York Convention does not
determine a protective statute for the stateless person, who are not already threatened as far as their
life or freedom are concerned, if not, they can claim refugee statute.
53
C. European Convention for extradition
Signed on 13 December 1957 in Paris, in the European Council, this convention defines the
extradition conditions between participating states and establishes a certain number of general rules:
obligation to proceed to extradition when the conditions established by the Convention are
fulfilled.; lack of extradition when the situation of the claimed person is at risk of being aggravated
due to race, religion, nationality or political opinion.
III European Union Law
European Union Law remained for a relatively long time indifferent to foreigners law,
beside the issue of free movement for workers who has nowadays the privileged statute of European
citizens and members of their families (A).
U. E. treaty states that, in order to achieve the Union objectives (especially free movement
of persons), the member states consider as common interest issues like asylum policy, rules for
opening the borders, immigration policy, entering and movement conditions for foreigners, stay
conditions, family regroup, access to jobs for foreigners and fight against illegal immigration, stay
and work.
The issue of legal value of the UE law is complex. Indeed, first we have to distinguish if is
the case or original law (treaty) or derived (rules and directives).
Inside the original law, a special treatment has to be granted to the articles mentioned in the
Constitution (art. 88-1C) which receives, due to this fact, constitutional value. If the communitarian
regulations are directly applicable after their publication at JOUE, is not the case with directives
that are subject to national measures of transposition.
Bibliography




Aubin E., Droit des etrangers, Ed.Gualino, coll. Master Pro, Paris, 2009;
Barou J., Europe, terre d’imigrations, PUG, 2006;
Cournil C., Le statut interne de l’etranger et les normes internationales, coll. Logiques
juridiques, Paris, 2005;
Vandendriessche Xavier, Le droit des etrangers, Ed. Dalloz, Paris, 2010.
References
1
Aubin E., Droit des etrangers, Ed. Gualino, coll. Master Pro, 2009, Paris, p.25
Vandendriessche Xavier, Le droit des etrangers, Ed. Dalloz, Paris, 2010, p.6
3
Aubin E., Droit de etrangers, Ed. Gualino, coll Master Pro, 2009, Paris, p.25
4
Barou J., Europe, terre d’imigrations, PUG,2006, p.35
5
Vandendriessche Xavier, Le droit des etrangers, Ed. Dalloz, Paris, 2010, p. 11
2
54
EXERCISE OF PARENTAL AUTHORITY AFTER DIVORCE
Associate Professor Ph. D ROXANA TOPOR
University Lecturer PhDc CRISTINA BOROIU DRAGOMIR
Abstract: The parental authority represents the ensemble of rights and obligations that
regard the child’s person, as well as his possessions and they equally belong to both parents.
Married parents exercise together and equally the parental authority.
Key words: divorce, child, legal guardianship
In case of the parents’ divorce the parental authority shall be exercised according to the
provisions of the Civil Code regarding the effects of the divorce on the relationship between parents
and children. These provisions also apply in case the marriage of the parents of the minor child has
been cancelled or seized as a consequence of a conclusion, in good faith, of a new marriage by the
spouse of a deceased person who later proved to be alive.
In common language the phrase “children custody” is customarily used, as a phrase adopted
from other law systems which does not perfectly overlap with the exercise of the parental authority
after divorce but however used in a series of international documents such as the European
Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on
restoration of Custody of Children from 1980.
The parental authority over the minor child is not only a parent’s right but a child’s right as
well which the child may be deprived of only in special circumstances related to his best interest
and, on the other hand, the parental authority over the minor child implies many obligations for the
parent concerned.
In this respect the court must carefully inquire on the transactions or agreements presented
by the parents involving the fact that one of the parents wants to willingly give up his parental
authority. The court must agree to such a transaction provided that there are well substantiated
reasons as regards the child’s higher interest which could convince the Court that keeping the
parental authority by that parent would harm the child’s interests.
Apart from the provisions of the New Civil Code regarding the consequences of the divorce
in the relationship between the children and the parents, one must bear in mind the child’s rights
stipulated by Law 272/2004 regarding the protection and promotion of the child’s rights.
The consequences of the divorce regarding the relationship between parents and their
minor children
Exercise of the parental authority by both parents
There are situations when after the divorce or the separation of the parents the joint custody
is not in the best interest of the child. Although the rule imposed by the New Civil Code is to start
from the presumption joint parental authority, in case the child’s higher interest requires it, the
judge may chose a parental authority exercised only by one of the parents (meaning sole custody).
From this point of view the jurisdiction of the states that implemented the joint custody 10-20 years
ago, such as Holland, becomes important.
- The rule is that after the divorce the parental authority goes jointly to both parents (in customary
language – “joint custody”).
55
- The exception: for well substantiated reasons regarding the child’s higher interest, the Court
may decide the parental authority to be exercised only by one of the parents (custodian parent). In
this case the other parent (non-custodian parent) keeps his right to watch over the way his child is
being raised and educated, as well as the right to consent on his adoption.
- In a totally exceptional situation the guardianship court may decide on placing the child to a
relative of his or to another family or person or to a guardianship institution. These exercise the
rights and obligations of the parents as regards the child. In such case the court establishes whether
the rights over the child’s belongings shall be exercised jointly by the parents or only by one of
them.
The child’s home after the divorce
- Parents may agree on the child’s home after the divorce;
- In case the parents do not agree and decide against the child’s higher interest, the guardianship
court on pronouncing the divorce shall decide that the home of the minor child shall be with the
parent already settled in a home (resident parent). If the child lived with both his parents until
the divorce, the court shall decide that the child’s home shall be with one of them, considering
his higher interest;
- Exceptionally and only if it is in the child’s higher interest the court may decide that the child
shall live with his grandparents or other relatives or persons, with their consent, or with a
guarding institution.
- In case the exercise of the authority or other parental rights is affected by the child’s home, this
cannot be changed without the consent of both parents. In case the parents do not agree on such
issues the court shall decide whether a change of the child’s home is suitable or not.
The child’s personal relations with his parents and other significant persons in his life
- The child has the right to maintain direct contacts and personal relations with his parents,
relatives, as well as with other persons the child developed affectionate connections with.
- The parent or, as the case may be, the parents separated from their child have the right to have
personal connections with him;
- In case of misunderstandings between the parents the guarding court decides with regard to the
means of exercise of this right.
- The child has the right to know his relatives and to have personal relations with them as well as
with other persons that the child enjoyed a family life with;
- The parents or another legal guardian of the child cannot hinder his personal relations with his
grandparents, brothers or sisters or other persons the child enjoyed a family life with, only in
case the court decides in this respect, considering that there are were substantiated reasons that
may endanger the physical, psychological, intellectual or moral development of the child.
The personal relations may be developed by:
a) Meetings of the child with his parent or another person having the right to personal relations
with the child;
b) Visiting the child at his home;
c) Accommodation of the child for a certain period of time by the parent or another person the
child does not usually live with;
d) Correspondence or another form of communication with the child;
e) Transmitting information to the child with regard to the parent or other persons who hat
have the right to maintain personal relations with the child;
f) Transmitting information regarding the child, including recent photographs, medical or
educational evaluations, by the parent or other persons having the right to maintain personal
relations with the child.
56
Parents’ contribution to the raise, education, study and professional preparation expenses
of the children
- Parents may agree on their contribution to the raise, education, study and professional
preparation expenses of the children, agreement that may be brought to the notary
public’s attention in case of notary divorce or to the guardianship court by the decree of
divorce;
- In case of misunderstandings, the guardianship court establishes the contribution of each
parents to the raise, education, study and professional preparation expenses of the
children;
- The obligation of support consists in ensuring in kind all necessary means for a good
living and, as the case may be, the expenses for education, school and professional
preparation;
- Only in case the obligation of support is not willingly executed in kind the guardianship
court disposes its execution through payment of alimony, established in cash. The
alimony may be established as a fixed amount or a percentage of the net income of the
parent owing the alimony. The alimony established in a fixed amount shall be legally
adjusted with the inflation rate on a quarterly basis;
- The alimony owed by the parent shall amount up to a quarter of his net monthly income,
a third for two children and a half for three or more children. The amount of the alimony
owed to the children together with the alimony owed to other persons, according to the
law, cannot exceed half of the net monthly income of the parent in case.
- The alimony is paid in regular payments at the established due dates or, in case of lack
of agreement on these dates, at the dates established through court order.
- The parties may agree or for well substantiated reasons the court may decide that the
alimony should be paid by advance payment of an aggregate amount that covers the
living expenses of the one entitled to it for a longer time or for the entire period the
alimony is owed in the extend the payer of the alimony has the necessary means for
covering this obligation.
- If any change occurs as regards the financial possibilities of the parent paying the
alimony and as regards the child’s needs, the guarding court, depending on the
circumstances, may increase or reduce the alimony or may decide on seizure of its
payment.
In conclusion, starting with 2011 separated parents shall have equal rights regarding their
child. They shall be able to spend equal time with him and all decisions regarding the child shall be
taken by both parents. Even in case of their separation the parents must remain present in their
child’s life and involve in the decisions regarding him despite the popular preconception and the
social customs that consider that a child develops nicely with both his parents but if they break up
he shall be better taken care of and protected if he stays with his mother. It is considered that the
maternal instincts are more powerful than the paternal ones and that the mother-child affection is
beyond any reason. In this equation the father has a secondary part. However the modern society is
trying to balance this situation so that fathers are given the same chance as mothers to get involved
after the divorce in raising the child.
The entrustment of the child to both parents which is possible in Romania starting with 2011
entitles the parents, among other things, to the right to spend equal time with the little one. The joint
entrustment means tighter and more frequent connections with the child but it is very important that
the relationship between the former spouses is normal and without conflicts that may affect the
minor child in a socio-psychological manner.
It still remains to be seen whether the new Civil Code shall manage to heal the Romanian
mentality or to bring new possibilities to amiably solve the problem in case the parents are enraged
by a divorce which is not always easy or comfortable.
57

universitatea „spiru haret“ - CLPA-CT

Transcription

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