FSP - Human Rights

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Browsing FSP - Human Rights by Subject "Cultural defense"

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    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.
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    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.