FSP - Human Rights

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Clauza culturală în jurisprudenţa penală din România : cazul mariajelor timpurii în comunităţile rome tradiţionale
(Centrul de Studii Internationale, 2011) Constantin, Măriuca Oana
The study raises the question of whether the cultural clause is applied in Romania despite the absence of a legal framework and shows that it operates de facto in criminal jurisprudence, being invoked before the courts and influencing verdicts and individualized sentencing. The research focused on 'early marriages' practiced by some traditional Roma communities, with criminal consequences. We developed an outline of the ethical-legal reasoning of judges in solving this problem and related it to the ethical criteria of admissibility of cultural derogations established by the theories that have tried to decipher the conflict between norms and customs. We have shown that in Romania an illiberal multiculturalism operates in relation to some cultural practices of certain traditional Roma minorities, customs that affect the freedoms and rights of some of their members. Through the conclusions of the study, signals are given to raise awareness of the profound and less visible effects of these patterns of verdicts, in the socio-political field.
Doctrina internationala a tratarii trecutului comunist
(C.H. Beck, 2016) Andreescu, Gabriel; Botău, Diana; Constantin, Măriuca Oana
Twenty-five years after the collapse of European communism, attitudes towards the former criminal system remain divergent. It is the wish of a doctrine of dealing with the communist past to support the creation of a current of authority, based on an ethic of memory, which refuses to dilute and trivialize what happened. The present volume is intended to contribute to the promotion of such a current of authority, by identifying the standards of the current international doctrine on the subject.
Identitatea culturală : o posibilă circumstanţă atenuantă? : Admisibilitatea clauzei culturale în procesele penale din România
(Centrul de Studii Internationale, 2015) Constantin, Măriuca Oana
The paper defines the concept of cultural defense and identifies the challenges of its use in practice. Cultural defense means that the judge considers arguments related to cultural identity, in both criminal and civil trials, when either the parties or the facts are directly connected to a cultural background. The study only focuses on the cultural defense in the context of Romanian criminal law, where, despite the absence of a formal cultural defense, it might arise de facto as a request to mitigate or even to exonerate the lawbreaker from punishment. The paper examines the consequences of the indirect use of this defense and whether its formal regulation is ethically justifiable. Taking into account the fact that cultural identity is often used as an excuse for oppressive traditions against the most vulnerable members of certain communities, the study argues that the use of cultural defense in criminal law implicitly legitimizes the abusive practices and the proliferation of internal vulnerabilities.
Minori şi minorităţi : religie şi tratament medical
(Centrul de Studii Internationale, 2013) Constantin, Măriuca Oana
The study looks at religiously motivated refusals of medical treatment by parents in the name of their underage children, starting from an individual case. The internal restrictions of a cultural-religious minority come into conflict with an external, superior restriction – to not violate a non-derogable fundamental right. The hypothesis that the cultural exception clause operates in a Romania was only partially confirmed. The legislation doesn’t create mechanisms for turning such medical and moral situations into cases before a court. Hence, there is no jurisprudence of refusal of medical treatment by parents in the name of underage children under their guardianship. Potential cases disappear before getting to the courts, either because the parents are persuaded to consent to medical treatment, or the child dies and those responsible are not prosecuted when there is a link between this death and the refusal. Public authorities have a difficult time identifying cultural customs and hence can respond only to a limited extent. Only an extensive quantitative study can provide a global image of the situation in Romania, an image needed as a basis for the elaboration and promotion of a draft law that addresses the issue of cultural customs with negative consequences on the integrity of children.
Tipare de aplicare a legii penale în jurisprudența din România conexă cutumei mariajelor timpurii
(Centrul de Studii Internationale, 2016) Constantin, Măriuca Oana
The study focuses on the relationship between justice and diversity in Romania. More specifically, I investigate the recent criminal jurisprudence derived from the custom of child marriage practiced by some Roma communities. The purpose of the analysis is to discover potential patterns in how the judges deal with cultural identity when a tradition appears to be relevant for the case prima facie, but at the same time it represents a violation of children's rights, personal autonomy and gender equality. In an interdisciplinary approach, I determine if the verdicts are in favor or against the tradition, and if they lead to a de facto use of the cultural defense. I explore the Romanian case-law on child marriage, through the lenses of liberal multiculturalism and liberal feminism, focusing on the consequences of applying the cultural defense in this specific controversial situation. As a conclusion, I attempt to find and propose a solution de lege ferenda with the potential of clarifying priorities when there is tension between the legal system, the preservation of cultural identity and the rights of the most vulnerable members of traditional communities.

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Browsing FSP - Human Rights by Author "Constantin, Măriuca Oana"