Identitatea culturală : o posibilă circumstanţă atenuantă? : Admisibilitatea clauzei culturale în procesele penale din România

Abstract

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.