Clauza culturală în jurisprudenţa penală din România : cazul mariajelor timpurii în comunităţile rome tradiţionale

Abstract

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.