Revista Journal of Law and Social Scienc PDF

The International Association of Law and Related Sciences
(IALRS)
Journal of Law and Social Sciences
Year I
No. 1/2014
1
Jurnalul de Drept i tiin e Sociale
Journal of Law and Social Sciences
ISSN: 2392 6112
ISSN-L: 2392 6112
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Editorial Board
EXECUTIVE EDITORIAL BOARD

Executive Editor: Nadia Cerasela ANIEI, BA, MA & Ph. D Andrei Rdulescu Institute of Legal Research,
Romanian Academy Ph. D, Professor at the Faculty of Legal, Social and Political Sciences, Dunarea de Jos University,
Galati, Romania.
Editor-in-Chief: Nadia Cerasela ANIEI, BA, MA & Ph. D Andrei Rdulescu Institute of Legal Research,
Romanian Academy Ph. D, Associate Professor at the Faculty of Law and Social-Political Sciences Dunarea de Jos
University of Galati
Managing Editor: Antonio SANDU, Professor Ph.D Stefan cel Mare University of Suceava and Chairman of the
Lumen Association, General Manager of Lumen Publishing House
Associate Editor: Roxana Alina PETRARU, Ph.D Lecturer at the Faculty of Law, Petre Andrei University of Iai
ADVISORY EDITORIAL BOARD
Gudmundur ALFREDSSON, Professor Ph. D, S.J.D., University of Akureyri, Island; University of Strasbourg,
France
Nadia Cerasela ANIEI, Professor Ph. D, Faculty of Legal, Social and Political Sciences, Dunarea de Jos University,
Galati, Romania
Teodor BODOASCA - Professor Ph. D, Faculty of Law Simion Brnuiu, Lucian Blaga University of Sibiu, &
Rector ,Dimitrie Cantemir University of Targu Mures, Romania
Sergiu BRNZ, Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova
Alexandru BURIAN, Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova
Florence BENOIT-ROHMER, Professor Ph. D, University of Strasbourg, France ; European Inter University Centre,
Venice, Italy
Emanuele CAL, Dirigente at Notaries National and International Board, Rome, Italy
Javier CARRASCOSA GONZLEZ, Professor Ph. D, University of Murcia, Spain
Alfonso- Luis CALVO CARAVACA, Professor Ph. D, University Carlos III, Madrid, Spain
Aurora CIUC, Professor Ph. D, Stefan cel Mare University, Suceava, Romania
Valerius M. CIUC, Judge at the High Court of EU, Luxembourg; Professor Ph. D, Faculty of Law, Alexandru Ioan
Cuza University of Iai, Romania
Silvia CRISTEA, Professor Ph. D, Law Department, Academy of Economic Studies
Olga DYUZHEVA, Professor Ph. D, Faculty of Law, Moscow State University, Russia
Nicoleta DIACONU, Professor Ph. D, Faculty of Law, Alexandru Ioan CuzaPolice Academy, Bucharest, Romania
Eckart KLEIN, Professor Ph. D, (em.), University of Potsdam, Germany
Dieter GRIMM, Professor Ph. D, Institute for Advanced Study, Berlin, Germany
Clina Felicia JUGASTRU, Professor Ph. D & Dean, Faculty of Law Simion Brnuiu, Lucian Blaga University
of Sibiu, Romania
Paul LEMMENS, Professor Ph. D, Institute for Human Rights, Katholieke Universiteit Leuven, Belgium
Dan LUPACU, Professor Ph. D, Faculty of Law, University Nicolae Titulescu of Bucureti, Romania
tefan Mircea MINEA, Judge at the Constitutional Court of Romania; Professor Ph. D. Faculty of Law, Babe Bolyai
University of Cluj, Romania
Doina POPA, Associate Professor , Ph.D, Gheorghe Asachii Politehnca of Iai, Romania
Frank S. RAVITCH, Professor Ph. D, College of Law, Michigan State University, S.U.A.
Tudorel TOADER, Judge at the Constitutional Court of Romania; Professor Ph. D, Faculty of Law, Alexandru Ioan
Cuza University of Iai, Romania
Alexandru TICLEA, Professor Ph. D Rector, Ecologica University of Bucharest, Romania
Olivier de SCHUTTER, Professor Ph. D, Universit catholique de Louvain, College of Europe, Belgium
Antonio Stefan SANDU, Professor Ph. D, Stefan cel Mare University, Suceava, Romania
Lynn D. WARDLE, Professor Ph. D, J. Reuben Clark Law School, Brigham Young University, S.U.A.
Adam CZAMOTA, Associate Professor , Ph. D, University of New South Wales, Sidney, Australia
Mihaela Laura PAMFIL, Prosecuting Attorney of the Prosecuting Departament by Deta Court of Justice; Associate
Professor, Faculty of Law, Petre Andrei University of Iai, Romania
Doina POPA, Associate Professor, Gheorghe Asachi Technical University Iasi, Laboratory of foreign languages
Thomas SKOUTERIS, Associate Professor Ph. D, American University in Cairo, Egypt
Olivier RIBBELINK, Senior Researcher, T.C.M. Asser Institute, The Hague, Netherlands
Vitalie STATI, Associate Professor Ph. D, Faculty of Law, Moldova State University Republic of Moldova
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Raluca-Oana ANDONE, Ph. D Lecturer, Faculty of Law, Petre Andrei University of Iai, Romania
Iolanda-Elena LUNGU, Ph. D Associate Lecturer, Faculty of Legal, Social and Political Sciences, Dunarea de Jos
University, Galati, Romania
Alina Mirabela GENTIMIR, Lecturer, Faculty of Law Alexandru Ioan Cuza University of Iai, Romania
Roxana Alina PETRARU, Ph. D Lecturer, Faculty of Law, Petre Andrei University of Iai, Romania
Roxana LAZR, Ph. D Lecturer, Faculty of Law, Petre Andrei University of Iai, Romania
Clina Andreea MUNTEANU, Ph. D Lecturer, Faculty of Law, Petre Andrei University of Iai, Romania
Ana STEFANESCU, Ph. D Lecturer, Faculty of Legal, Social and Political Sciences, Dunarea de Jos University, Galati,
Romania
Emanuel TVAL, Ph. D Lecturer Faculty of Law Simion Brnuiu, Lucian Blaga University of Sibiu, Romania
Alexandru TOADER, Asisstant drd. Faculty of Law, Faculty of Law, Petre Andrei University of Iai, Romania
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ABOUT US:
AIMS AND SCOPE:

Journal of Law and Social Sciences , a professional academic journal,
published twice a year, commits itself to promoting the academic communication about
laws of Romania and other countries, covers all sorts of researches on legal history, law
rules, legal culture, legal theories, legal systems, questions, debate and discussion about
law from the experts and scholars all over the world.
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Although it has been issued for four years now, the Journal of Law and Social
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interest: international law, European law, comparative law, Romanian law, case law
studies, scholarly books reviews, reviews of books on other areas related to law.
IMPORTANT DATES ROMANIA:

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DEADLINES:
The papers will be sent between:
February 1- June 15 for issues no. 1-2/January;
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Edition: English
CONTENTS:
Top highlights of the Journal of Law and Social Sciences :
I. Comunity Law. Comparative Law. European Law. International Law
II. Romanian Law
III. Law and Social Sciences
IV. Legal Practice
V. Book reviews
VI Editorial Signals
VII. Info
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accepted/accepted with minor amendments/accepted with substantial
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Kindest regards,
Executive Editor-in-Chief,
Nadia -Cerasela Aniei
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INSTRUCTIONS FOR CONTRIBUTORS
General instructions: The articles must be written both in English and Romanian for the
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institution
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spacing by the authors name.
The article:
It must be written at single space line by the key words with Garamond, 12, justified, single
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publication year as in the following example: Considerm c prin regim matrimonial nelegem totalitatea
normelor juridice, care reglementeaz relaiile sociale stabilite ntre soi, sau ntre unul sau ambii soi, pe de o
parte, i tere persoane, pe de alt parte, relaii ce au drept obiect bunuri existente n momentul cstoriei sau
dobndite pe parcursul acesteia precum i obligaii contractate n legtur cu aceste bunuri sau n vederea
ndeplinirii sarcinilor cstoriei. (Anitei, (2007), :37). We also mention that the titles of the books will
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Table of contents
European Law. International Law. Comparative Law.

HUMAN DIGNITY PROTECTION IN ROMANIAN AND IN FRENCH
CRIMINAL LAW ........................................................................................................ 13
Andra IFTIMIEI
BETROTHAL (FORMAL ENGAGEMENT) IN THE NEW ROMANIAN
CIVIL CODE ............................................................................................................... 25
Emanuel TVAL
EUROPEAN AND NATIONAL REGULATIONS IN THE FIELD OF
RACISM AND XENOPHOBIA .............................................................................. 39
Olga Andreea URDA
Romanian Law
CONSIDERATIONS REGARDING THE SPECIFIC ELEMENTS OF THE
REPURCHASE AGREEMENT (REPO) .............................................................. 55
Bujorel FLOREA
HISTORICAL HIGHLIGHTS ON THE MARRIED WOMANS
INCAPACITY IN ROMANIAN LAW................................................................... 71
Irina APETREI
LEGAL IMPLICATIONS OF THE FIDUCIA IN BANKING LAW ............ 83
Adriana Ioana PRVU
CONCEALMENT OF MATRIMONIAL AGREEMENT ................................ 89
Nadia -Cerasela ANIEI
CONSIDERATIONS ON PREDICATE OFFENSES FOR MONEY
LAUNDERING CRIME IN ROMANIA .............................................................. 97
Roxana-Elena LAZR
Vlad-Nicolae NEDELCU
Law and Social Sciences

RESOCIALIZATION OF WOMEN SUBJECTED TO PUNISHMENT BY
IMPRISONMENT ....................................................................................................111
Maria-Cristina BOROIU
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COMPARATIVE STUDY OVER THE PARTICIPATORY DEMOCRACY
IN ROMANIA, FRANCE, SWITZERLAND AND UNITED STATES OF
AMERICA ..................................................................................................................123
Marina-Irina LAZR
NATO`S PEACEKEEPING OPERATIONS IN ETHNOPOLITICAL
CONFLICTS ..............................................................................................................145
Ana-Maria BEJAN
THE DYNAMICS OF DECENTRALIZATION IN EAST-CENTRAL
EUROPE. APPLICATION ON FOUR MUNICIPAL COUNCILS..............153
Roxana MARIN
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European Law. International Law.
Comparative Law.
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Human dignity protection in Romanian and in French Criminal Law
HUMAN DIGNITY PROTECTION IN

ROMANIAN AND IN FRENCH CRIMINAL LAW*
Andra IFTIMIEI1
Abstract
Human dignity is a complex concept, whose definition is impossible to encompass the
entirety of its meaning. Criminal law as a whole and its functions contribute to the
crystallization of the concept.
The old Criminal Code (1969) consecrated by Chapter IV of Title II of Part special
offenses against dignity. Were included here insult, slander and verity. Insult consists of harm
to honor or reputation by words, gestures or any other means or by exposure to mockery variant
type and in par. (2) if there is a crime when a person suffers from a disease or disability which,
even if real would not be revealed. Slander imputing consists in affirming in public, by any
means, of a fact regarding a person who, if true, would expose that person to a penal,
administrative or disciplinary, or public contempt. The legislator renounced at the
criminalization of such acts, on the assumption that human dignity can be protected only by the
rules of civil law, giving greater freedom of expression guarantee. However, human dignity is
protected as a social value secondary content submission crimes such as ill-treatment, degrading
treatment component.
While the Romanian penal legislator remained passive on the criminalization of
insult and libel in the new Criminal Code, the criminal protection of human dignity is
extensive in France. French criminal legislator gave an important credit protection of human
dignity, both by location in the center of offenses against the dignity - Crime and offenses
against persons, and the variety of repressed material. Included in the category of offenses
against human dignity: discrimination; human trafficking; pimping and offenses thereunder;
recourse to prostitution of minors and vulnerable people; exploitation of begging; working
conditions contrary to human dignity and hosting; harassment; harmed respect the dead.
In this context, the article aims to analyze the place of human dignity in
Constitutions, and to identify points of comparison between the two legislations, so that the
purpose of article consist in making suggestions of law to improve the criminal law protection
human dignity.
Keywords:
dignity, criminal protection, comparate law.
* This work was supported by the strategic grant POSDRU/159/1.5/S/141699, Project ID

141699, co-financed by the European Social Fund within the Sectorial Operational Program
Human Resourses Development 2007-2013.
1 University Assistant at Alexandru Ioan Cuza University of Iasi, PhD Candidate in
Codirection at Alexandru Ioan Cuza University of Iasi and Bordeaux University, France.
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Andra IFTIMIE
1. PROTECTION OF HUMAN DIGNITY
1.1. Complexity of the Concept of Human Dignity

The concept of human dignity is not defined in the specialty literature of
constitutional law, although the Constitution guarantees, even in the first article,
the human beings dignity: Romania is a legal, democratic and social state
where human dignity (...) is guaranteed. The first author who used the concept
of human dignity was St. Theophilus of Antioch in his work Ctre Autolic (Ad
Autolicus) (Stan, (2008), :35). Human dignity devolves from the human beings
quality of being created as Gods image with the mission to attain the
resemblance with his/her Creator. Ontological dignity refers to all value
devolving from the human being itself, regardless of the characteristics related
to race, gender, age, religion, financial or health status. Another approach of the
concept is that according to which human dignity presupposes the respect of
the human body integrity materialized in the ban of researches on the human
embryo2. Human dignity is equally perceived as the value granting, to the right
to life, its sacred and inviolable nature (Vldoiu, (2006), :19). Criminal doctrine
judges that human dignity consists in the reputation, esteem and consideration
earned by the person on behalf of the other members of the community.
(Toader, (2012), :159 160)
Human dignity is characterized by the multiple significations it can be
equally granted through its broad spectrum of inclusion. Opinions expressed in
Romanian or French specialty literature are numerous and express various
viewpoints: defining of human dignity can be achieved either by referring to
humanity, or by referring to the inhuman (Saint-Pau, (2013), :108-109); human
dignity is a broad principle encompassing the right to life (Mathieu,
(1998), :1031); depending on the branch of law which includes human dignity, it
can be grated various, but complementary connotations (in French criminal law
we punish all forms of enslavement or human degradation, while in the French
civil law, through Art. 16 of the Civil Code we state the respect towards the
human being as of the beginning of life3); according to another opinion we state
that human dignity is difficult to define, but presupposes honesty, good faith
and a stainless reputation (Irinescu, (2012), :112).
We consider human dignity is characterized by versatility, the complexity
of the notion leading to distinct interpretations which ultimately mingle in a
whole, with heterogeneous structure. Criminal law as a whole and through its
2 The European Convention on the Protection of the Human Beings Rights and Dignity as
opposed to the applications of Biotechnology and Medicine; the Convention pertaining to the
Human Beings Rights and Biomedicine, ratified by the Romanian Parliament through Law no. 7
of 22.02.2001;
3 ***, La protection de la dignit et de l'integrit corporelle in Droit pnal, no. 9, September
2011, study 19.
14
functions contributes to the crystallisation of the concept, for instance

punishing inhuman or degrading treatments. We violate human dignity each
time we act against the human being, be it the acts are inflicted over the persons
body, over his / her psyche, or each time when a public institution, by applying
the law, establishes a treatment which should be the expression of disdain
towards the value granted to the human being by his / her very quality of
person4.
Defining the concept of human dignity led to the opportunity of the
constitutional courts of the two countries to contribute to the outline of the
constitutive elements of the notion, the constitutionalization of the criminal law
manifesting itself through the constitutional judges effort to thoroughly
interpret the concept herein, both vertically through the consecration of its
constitutional position, as well as horizontally, through its inclusion within the
protective structure of criminal law.
The concept of human dignity is more than recurrent in the
jurisprudence of the European Court of Human Rights (ECtHR), the vision of
the European Court on the notion being intimately related to the right to private
and family life. Art. 8 of the Convention is also dedicated to the right to dignity
and image; we aim at illustrating a few recent and pertinent examples to
discriminate the contours of human dignity. Consequently, among violations of
human dignity, one may count: the publishing of a front page article containing
intimate photos taken following a video material secretly recorded about the
plaintiffs so-called Nazi sexual activities (the case Mosley vs. the United
Kingdom, 10 May 2011) (Chiri, (2013),:170); the posting on a matrimonial site
of an advertisement of sexual nature on behalf of the plaintiff, aged 12, without
his knowledge, containing information with regard to his age, date of birth,
physical features, and pointing out that he was interested in a relationship with a
male. Following the advertisement herein, he received a mail message in this
respect (case K.U. vs. Finland, 2 December 2008) (Chiri, (2013),:189 - 190);
the publication of an article through which we accused a magistrates wife for
being involved in illegal operations in relation to a company (the case Polanco
Torres and Movilla Polanco vs. Spain, 21 September 2010) (Chiri,
(2013), :191).
1.2. Means of Criminal Protection of Human Dignity

Romania
The Criminal Code of 1969 sanctioned through the 4th chapter of the 2nd
Title of the Special Part, offenses against dignity. We included herein the insult,
the defamation and proving the libel. The insult consisted in the offense against
4***, Selecie de decizii ale Curii Constituionale federale a Germaniei, Konrad-Adenauer-Stiftung, C. H.

Beck Publishing House, Bucharest, 2013, p. 60.
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Andra IFTIMIE
a persons honour or reputation through language, gestures or any other means

or through the exposure at mockery, under the typical form, and in paragraph
(2) there is an offense when we attribute to a person a defect, disease or
infirmity which, although genuine, should not be highlighted. The offense of
defamation consists in the public statement or reproach, regardless of the
means, of a determined deed pertaining to a person, who, if it were real, would
expose that person to a criminal, administrative or disciplinary penalty, or to
public disdain (Chiri, (2013), 164 - 169). The lawmaker renounced to the
condemnation of these deeds, starting from the consideration that the persons
dignity may be guarded only through the standards of civil law, granting an
increased guarantee to the freedom of expression. From this perspective, the
provisions of Art.205, 206 and 207 of the Criminal Code were annulled through
the provisions of Art. I item 56 of Law no. 278/2006 (Chiri, (2013), 162).
Against the background of the relations between criminal law and the
Constitution, we consider that the annulment of these offenses stands for an
inconsistency among the principles stated by the Fundamental Law and the
Criminal Code. Accordingly, we highlight the existence of an independence
relation between the two normative provisions.
The Romanian lawmakers absolutely bewildering decision to be passive
with regard to the offenses against dignity only worsens the distancing of the
criminal policy from the requirements of the European guarantee framework
(states such as Germany, Italy, Great Britain conferring, to this right, multiple
means of criminal protection and not only (Boroi, Popescu, (2003),:163 - 168).
According to the new regulation cumulated to the tumult of the debates
generated by the need of their condemnation in the sphere of criminal law, the
offenses concerning the persons dignity can no longer be found in the New
Criminal Code. The scheme of the debates on this topic was ironically settled on
the occasion of two episodes. Firstly, the Constitutional Court of Romania
rendered, through decision number 62 of 18 January 2007: Regardless of the
way in which they are committed and of the persons who commit them, the
deeds forming the content of the offenses of insult and defamation severely
harm the human dignity, personality, honour and reputations of the assaulted
ones. If such deeds are not discouraged through the means of criminal law, they
would lead to the de facto reaction of the offended ones and to permanent
conflicts, to the extent of making social companionship impossible, which
presupposes respect towards each member of the community and the rightful
cherish of each members reputation.5 Given the non-unitary application of the
decision of the Constitutional Court of Romania, contrary to the principle of the
supremacy of the Constitution guaranteed by the constitutional court, in 2010
we submitted the appeal to serve the law pertaining to the consequences of the
5 http://www.ccr.ro/decisions/pdf/ro/2007/D062_07.pdf, website consulted on 9 January

2012.
16
decision of the Constitutional Court no. 62 of 18 January 2007 on the activity of

the provisions of articles 205, 206 and 207 of the Criminal Code. Decision no. 8
of 18 October 2010, admits the RIL in case and the United Sections render, as
follows: The standards of incrimination of the insult and defamation included
in Art. 205 and Art. 206 of the Criminal Code, as well as the provisions of Art.
207 of the Criminal Code concerning the proving of libel, annulled through the
provisions of Art. I item 56 of Law no. 278/2006, provisions declared
unconstitutional through decision no. 62 of 18 January 2007 of the
Constitutional Court, are not in force. Without analyzing the manner to affect
the supremacy of the fundamental law, we consider that the insult and the
defamation rest two offenses corollary to the legal state. We cannot guarantee
the respect of human dignity (so much stated and debated at European level
see the Constitution of Germany, which sanctions this fundamental value even
in the first article), without the condemnation of these deeds inclusively in the
Criminal law. The degree of social danger is sufficiently elevated, without taking
into account the fact that the lack of a series of criminal penalties in such
situations may have extremely severe consequences, particularly in a society
which does not exercise the respect of the sanctioned values of honour and
human dignity. We equally point out, on several occasions, that a series of
defamations may generate repercussions for the victims: loss of job, family
division, etc.
In the absence of a series of means of criminal protection, human
dignity is protected via civil law, Art. 72 of the Civil Code orders that each
person is entitled to the respect of his / her dignity, and according to
paragraph (2) we prohibit any prejudice caused to a persons honour and
reputation, without his / her consent without observing the limits provided
under Art. 756 . Is the invocation of civil liability enough to protect such an
important value? We consider that criminal liability should be set-up each time a
persons reputation is prejudiced, the preventive position being that which must
have precedence in this case. Civil liability does not cover all the effects of the
prejudice caused to human dignity, leaving room to a series of developments in
cascade in this respect; a potential criminal liability would impose a painstaking
and grounded research, before passing to the execution of the deed. From
another perspective, it is obvious that a certain restrictive conduct could harm
the freedom of expression, but equally this freedom must be exercised
according to moral standards, without interpreting it as an absolute right. A
shortcoming of criminal liability consists in the criminal lawmakers
6 Art. 75 of the Civil Code, with the marginal name of Limite (Limits), stipulates: (1) The rights
provided under this section are not violated by the prejudices permitted by the law or by the
international contraventions or pacts concerning the human beings rights of which Romania is
part. (2) The exercise of constitutional rights and freedoms with goodwill and by observing the
international pacts and conventions of which Romania is oart is not a violation of the rights
provided under the section herein.
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Andra IFTIMIE
identification of the deeds that prejudice dignity, thus presupposing their

accurate defining, or may create just a guideline standard, the material element
of the offense being thus conceived just under the form of an illustrating and
alternative enumeration of actions or component inactions.
France
As opposed to the Romanian lawmakers recent position, the criminal
protection framework is broad in France. The French lawmaker granted an
important credit to the protection of human dignity, both by placing the
offenses against human dignity in the core of the 2nd Book, Crime i delicte contra
persoanelor (Crimes and Offenses against Persons), as well as through the variety of the
repressed offenses. The French means of protection are identified both in the
civil law (through Art. 16 of the Civil Code), as well as in the criminal one, but if
in the civil law we state the respect of human dignity as of the beginning of life,
in the criminal law there is no such temporal delimitation.
The French criminal legislator dedicated an entire chapter to the
offenses against human dignity, without focusing on one of its singular
components. One may include in the category of offenses against human dignity
the following: discriminations; the traffic of human beings; procurement and
offenses resulting from it; resorting to the minor childrens and vulnerable
persons prostitution; the exploitation of mendicancy; labour and
accommodation conditions contrary to human dignity; harassment; prejudices
against the respect of the dead.
The analysis of the peculiarities of each offense in part leads to the
configuration of all aspects that human dignity encompasses from the French
lawmakers viewpoint. The 1st Section of the 5th chapter is dedicated to
discrimination, being punished all discrimination carried out among natural
persons7 on grounds of origin, gender, family situation, pregnancy condition,
physical appearance, health condition, handicap, genetic traits, customs, sexual
orientation, age, political opinions, trade union activities, belonging or non-
belonging, true or presupposed, to an ethnic group, nation, race or to a certain
religion8. Offenses of discrimination are, apart from a means of protection of
human dignity, equally an expression of the constitutional principle of equality.
In its most narrow sense, equality in criminal matter leads to the establishment
of no differences among justice seekers. But, the latter are often very different
one from another; if certain differences are not relevant whatsoever for criminal
7 Article 225-1 of the French Criminal Code is applicable to the same extent to natural persons,
according to paragraph 2, for the following grounds of discrimination: origin, sex, family
situation, physical appearance, health condition, handicap, genetic traits, costums, sexual
orientation, age, political opinions, trade union activity, belonging or non-belonging, true or
presupposed, to a certain ethnic group, nation, race or religion.
8 Cf. art. 225-1, paragraph 1, French Criminal Code.
18
law, others are important, since they can grant ridiculous or excessive
consequences to the principle of equality (Danti Juan, (1987), 61).
Article 225 1 lists no less than 18 grounds of discrimination. We
protect the persons exposed to discriminations on grounds of their belonging to
a community, often rejected because of racism, xenophobia, sexual
discrimination, homophobia, health prejudices or prejudices generated by
political or trade union opinions belonging to the author of the discrimination.
The crime is applicable if the discrimination was founded on the non-
belonging to one of the nations forming the European Community. The
persons physical belonging permits the punishment of a racial discrimination, as
well as of a discrimination founded on disgraceful physical appearance or on the
victims obesity. The reference to the persons gender protects both females and
males. In this respect, a decision of the Criminal Court of Morlaix of 20 January
1984 (Merle, Vitu, (1984), 961), ruled that the staff on board of an airplane
cannot be exclusively reserved to stewardesses, but must be equally opened to
male flight-attendants. Discrimination based on gender is also included in the
category regarding the pregancy and family situation to the extent in which an
employer can refuse a married candidate for fear of a future pregnancy, or if she
is already mother, because he considers her less available.
However, discrimination cannot always operate, but under certain
situations expressly and restrictively stated by the lawmaker. Article 225 2 of
the Criminal Code defines such situations:
Refusal to deliver a certain good or service;
Prevention of the normal exercise of a certain economic activity;
Refusal to hire, punish or license a person;
Subordination of the delivery of a good or service to a condition
founded on one of the elements envisaged under art. 225 1;
Conditioning of a labour offer, internship request or training period with
the enterprise by one of the motives detailed under Art. 225 1;
Refusal of a persons acceptance at one of the internships envisaged by
paragraph 2 of Art. L 412-8 of the social security code.
The discrimination is a deliberate offense which presupposes apart from
the consciousness to unlawfully act, a special wilful misrepresentation consisting
in the will to make distinctions. With regard to the attempt, the lawmaker did
not expressly stipulate its punishment. All forms of participation are common,
being accepted even the form of common law of the complicity. In this respect
the decision of JCP A 2007 retains the complicity of a mayor who forced an
administrator to renounce selling a land to a certain family, pressures grounded
on its belonging to another community.
Art. 225 of the Criminal Code completes the legislative sphere of the
offense of discrimination with paragraph 3, where we list the causes of
elimination of criminal liability:
19
Andra IFTIMIE
Punishments are not applicable to discriminations grounded on the

health condition, if they consisted in surgeries having as object the prevention
and elimination of the death risks, of the risks regarding the persons physical
integrity or risks of labour incapacity or invalidity. For instance, the French
insurer is permitted to refuse a contract or to subject it to a series of particular
clauses dictated by the health condition.
Discrimination grounded on the health condition or handicap cannot be
retained if they consisted in a refusal of employment or licensing based on the
medical incapacity ascertained either in the 4th title, 2nd book of the labour code,
or in the laws encompassing statutory provisions in relation to the public office.
The discrimination committed as opposed to natural or legal person is
punished with 3 years of imprisonment and fine of 45000 Euro. The last
paragraph of Art.225 stipulated an aggravating circumstance: the offense is more
serious if the discriminating refusal to deliver a good or service is committed in
a public place. In this situation the punishment is of 5 years of imprisonment
and fine of 75000 Euro.
The incitement to discrimination is condemned through the law of 29
July 1881, pertaining to the press. It punishes, under Art. 24, those who incite to
discrimination, hatred or violence, as opposed to a person or group of persons
on the grounds of their origin or belonging or non-belonging to an ethnic
group, nation or race or determined religion (according to paragraph 8) or as
opposed to a person or group of persons on grounds of gender, sexual
orientation or on the grounds of their handicap, or if they incited, in relation to
the same persons or group of persons, to discriminations provided under Art.
225 2 and 432 7 (according to art. 9) of the Criminal Code. The incitement
must be accomplished through one of the means envisaged under Art.23 (insult
and defamation). If the incitement to discrimination is not endowed with public
character, then it is just a contravention, and in this case we apply Art.625-7 of
the Regulation, which defines the incitement to discrimination under the same
terms as the Law of 1881.
One is not interested whether the incitement to discrimination was or
was not followed by execution; however, if the incitement deprived of public
character effectively determined a person to commit discrimination in the sense
of Art. 225 2, one must retain the complicity to this offense. Both the offense,
and the contravention are committed intentionally, they cannot be retained
unless the opinion was stated with a view to incite to discrimination9.
The incitement to discrimination as opposed to person on the grounds
of their belonging or non-belonging to an ethnic group, nation, race or religion
is committed although the discrimination act to which one incites is not
traceable among the manners listed by Art. 225 2 of the Criminal Code. It is
9 Two decisions of 7 December 1993 enacted that the publication of caricatures of some
religious symbols, even though they incited to hatred, is not an offense.
20
enough to incite to discrimination, regardless of its form, if it arises a sentiment

of hostility or rejection as opposed to a group of persons10.
The offense is punished with a year of imprisonment and fine of 45000
Euro or only with one of the two punishments. Complementary, the court may
order the listing or the dissemination of the rendered decision, as well as the
depriving of the rights listed at paragraph 2 and 3 of Art. 131 26 of the
Criminal Code for a maximum period of 5 years. Finally, this provision
stipulates the criminal liability of legal persons which envisages, in addition to
the fine multiplied by 5, the seizure of the good which served or which was
meant to serve for the commission of the offense or the thing which is product
of the offense.
Other categories of offenses with vulnerable passive subject are those
envisaging labour and accommodation in conditions contrary to dignity,
categories of newly-created offenses by the New Criminal Code of 1994. These
provisions were adopted with a view to eradicatemodern slavery. According
to Art. 225 13 of the Criminal Code, one punishes the deed to obtain, from a
person whose vulnerability or state of dependency are apparent or known by the
author, the delivery of unpaid services or in exchange of a remuneration
obviously without any relation to the importance of the conducted work. Art.
225 14 condemns the deed to subject a person whose vulnerability or
dependency condition are apparent or known to the author, to labour and
accommodation conditions incompatible with human dignity.
The two offenses included in Art. 225 13 and 225 14 are deliberate,
and demand the fulfilment of two conditions: the awareness of the vulnerability
or of the dependency condition, as well as the intention of not paying or
deficiently paying the victim; another condition envisages the incompatibility of
labour or accommodation conditions with dignity. The offense cannot be
fulfilled through negligence. For instance, we cannot retain the offense on
behalf of an owner who lives abroad and entrusting his good to a company, the
latter concealed the state of degradation of the building (Daury Faveau,
(2010), :374).
Attempting to encompass as much aspects of content of human dignity
as possible, the French criminal lawmaker condemned in the 5th chapter, Atingeri
aduse demnitii personae (Prejudices against the Persons Diginity) equally the following
deeds: traffic of persons (according to Art. 225-4-4 of the French Criminal
Code, the traffic of persons is the deed, in exchange of money or of any other
advantage or promise of a sum of money, to recruit a person, to transport
him/her, to transfer him/her, to accommodate him/her to welcome him/her,
to make him/her available for himself for himself or for another human being,
even anonymous, either with a view to oblige the person to commit the offenses
of procurement, aggression or sexual perversions, the exploitation of mendacity,
10 This jurisprudential position was adopted following a sudden change of 22 May 1989.
21
Andra IFTIMIE
labour and accommodation conditions contrary to his / her dignity, or to force

the person to commit any other form of offense or crime), procurement
(according to French criminal law11, procurement is the deed of any person to
help, assist or protect another persons prostitution, to derive profit from
another persons prostitution or to share the profit with the person hereinabove,
or to train, hire or embezzle a person to prostitute or subject the person to
constraints so as to prostitute or continue to prostitute), mendacity (consists in
the deed of any person to organize anothers person mendacity with a view to
derive profit, to derive profit from another persons mendacity, person with
whom he / she shares the obtained goods or to train, hire or embezzle another
person with a view to lead him / her to practise mendacity12), labour and
accommodation conditions contrary to human dignity, prejudices against the
respect of the dead (there are various means to commit the offense: any
prejudice caused to the integrity of a corps, by any means, the violation of
profanation through any means of tombs, family vaults, ash urn, or tombs
erected in the memory of the dead, if are accompanied by prejudices caused to
the integrity of corpses13), aggressions against persons taking part in the
educational process (Art. 225-16-1 stipulates that in this category fall the
submission or commission of humiliating or degrading act over a person on the
occasion of manifestations or reunions of the school and social-educative
environment, or in the event when the deeds hereinabove are committed on a
person finding himself / herself in a condition of vulnerability visible or known
to its author, given his/her age, disease, infirmity, physical or psychical
deficiency, or pregnancy condition).
CONCLUSIONS
De lege ferenda, in Romania we should reintroduce in the Criminal Code
the offenses against human dignity, so that the means of protection would
equally be of repressive nature;
De lege ferenda, n France, there should be an offense the legal object of
which should chiefly protect honour, by condemning the prejudices against it,
by any means, without violating the freedom of expression or inflicting any
form of censorship;
Both in Romania and France human dignity is protected through the
condemnation of a series of similar deeds, such as the traffic of human beings;
procurement or offenses resulting from it; the prostitution of minor children
and vulnerable persons; exploitation of mendacity.
11 Art. 225-5 French Criminal Code, 108e Edition, Dalloz, 2011, p. 722.
12 Art. 225-12-5 French Criminal Code, 108e Edition, Dalloz, 2011, p. 737.
13 Art. 225-17, French Criminal Code, 108 e Edition, Dalloz, 2011, p. 745.
22
Human dignity must occupy a central place in the texts of fundamental

laws and must be interpreted as touchstone of all rights and freedoms of the
person.
BIBLIOGRAPHY
Treatises, lectures, monographs

Chiri, R. (2013), Dreptul la via privat i de familie. Jurispruden CEDO,
Hamangiu Publishing House.
Danti Juan, M., (1987), L'galit en droit pnal, Cujas Publishing House, Paris
Daury Fauveau, M., (2010), Droit pnal spcial. Livres 2 et 3 du code pnal: infractions
contre les personnes et les biens, PUF Publishing House, Paris.
Irinescu, L., (2012), Comentarii i doctrin la art. 72 Cod civil romn Dreptul la
demnitate uman in Noul Cod civil. Comentarii, doctrin i jurispruden, vol. I.
Art. 1-952, Hamangiu Publishing House, Bucharest.
Merle, R., Vitu, A., (1984), Trait de droit criminel. Droit pnal spcial, Cujas
Publishing House, Paris.
Saint-Pau, J. Ch., (2013), Droits de la personnalit, LexisNexis Publishing House,
Paris, 2013.
Toader, T., (2012), Drept penal romn. Partea special, 6th edition revised and
updated, Hamangiu Publishing House, Bucharest, 2012.
Vldoiu, N. M., (2006), Protecia constituional a vieii, integritii fizice i a integritii
psihice. Studiu de doctrin i jurispruden, Hamangiu Publishing House,
Bucharest.
Scientific articles
Boroi, A., Popescu, M., (2003), Dreptul la intimitate i la via privat. Elemente
de drept comparat in Dreptul no. 5.
Mathieu, B., (1998), La vie en droit constitutionnel compar. lments de
rflexions sur un droit incertain in Revue internationale de droit
compar, vol. 50, no. 4.
Stan, N. R., (2008), Relaia dintre demnitatea uman i drepturile omului din
perspectiv ortodox in Review of Theological Studies, no. 2.
23
Andra IFTIMIE
24
Betrothal (Formal Engagement) In The New Romanian Civil Code
BETROTHAL (FORMAL ENGAGEMENT) IN

THE NEW ROMANIAN CIVIL CODE
Emanuel TVAL1
Abstract
The new Romanian Civil Code has brought some new elements to the field of Family
Law, which are also of great interest to the new discipline of Civil Ecclesiastical Law, one of
the most recent disciplines in the curricula of Law Schools. From this point of view, we would
like to highlight some aspects about marriage in general, as it is defined by the new Civil Code
and as it is seen by religious traditions in Romania. At the same time, the newly introduced
possibility of signing a prenuptial contract is also presented from a comparative perspective, as
is the new institution of engagement, which will be presented from a cultural and historical
point of view, starting with the Roman Law, and interpreting it from the perspective of
Christian and Jewish tradition. At the same time, the age limit for marriage will be analyzed
from the perspective of the 1865 Civil Code, pointing out the fluctuations of this limit and the
arguments which were taken into account for the current legislation. The paper also includes a
discussion of the religious age limit for marriage as stipulated by ecclesiastical law.
Keywords:
Civil Code, Family Law, Marriage, Engagement, Canon Law, Switzerland,
Romanian Civil Code.
1 Lecturer Emanuel Tval, PhD, Law School, Lucian Blaga University of Sibiu
25
Emanuel TVAL
1. INTRODUCTION
As we have grown accustomed to over time, the practice of legal
transplant has often been resorted to when major legislative projects were
drafted. If, so far, Romanian civil and constitutional law have been influenced
by Belgian, French, or Italian law, the new Romanian Civil Code is, in its turn,
influenced by Western (mainly German) law, though not exclusively. The new
elements that have entered the legislation are of the same origin, but in the case
of Romania, some of them have preserved a Christian shade, which was in fact
present in the legislation of the other European countries up to the twentieth
century. In European culture, Christian marriage and family traditions were
combined with Jewish influences, or influences from Greek philosophy, Roman
law or German legislation. Christianity influenced medieval theory and practice,
as well as early European history, because it was a monolithic source whose
influence was due to its logical nature, its values and strong tradition. In more
recent times, the influence of Christianity on legal systems has decreased and
elements opposing the presence of Christian values in contemporary legal codes
have emerged, especially since many members of the legal profession favour the
idea of increased autonomy of the law from any religious influence. Considering
these aspects, as well as the practical elements put forward by the legislation in
force, we wonder whether Christian values should still contribute to family law
in a secular society, as was the case in the past. Can legal arguments, filtered
through Christian sensitivity, pass the test of rationality so ubiquitous in all
current undertakings?
Family law theories today are not uniform, and are all influenced by
sociological trends in marriage and family, occurring as a result of the dynamics
of modernization. Professor Lawrence Friedman of Stanford University
provides a very good characterization of family law in contemporary society.
According to him, more and more, law, like the broader society, focuses on the wishes,
desires and needs of individual people, freely chosen, within a broad band of possibilities. Each
person is felt to have the right to select his or her own lifestyle, to craft his or her marriage and
divorce, even to make basic decisions about family affiliation in general. [...] the ideology of
choice is an important social fact. (Friedman, (2004), :146)
Built upon biblical precepts and divine providence, Christian tradition
considers marriage a sacrament (in Catholicism and Orthodoxy) and a covenant
(in Protestantism).
Up to the twentieth century, Western legislation in this area
impropriated many values of Christian tradition. As a consequence, Civil Law
regarded marriage as a status defined by society, by tradition and especially by
religion. The institution of marriage functioned traditionally as a legal
partnership characterized by mutual rights and duties which couples assume by
their own choice, but have no say in defining or creating. Although marriage as
a status is still perceived as such, in contrast to the idea of marriage as a contract
26
between two individuals, no-fault divorces and other changes in perception have
placed this viewpoint in a defensive position, both in theory and in legal
practice.
2. HISTORY OF ENGAGEMENT
Engagement has been known under the name sponsalia since Roman
times, when it consisted of a number of mutual questions and answers between
parents and their children inquiring about the firmness of their decision to
embark on marriage. (Hanga, (1977), :191). However, this ritual was not
compulsory, and engagement could be achieved by a mere verbal or written
agreement, called a pactum. In some parts of our country, the so-called Good-
Agreement Protocol is still preserved between bride and groom, who state
before a priest that they are not forced by their parents or driven by material
interests to get married, but do it willingly, urged by the pure love they feel for
each other. The parents appear before the priest on the same day and state that
they have not forced the young couple to get engaged and married against their
will. By Lex Iulia and Papia Poppaea, the Romanian engagement customs
somehow managed to become acknowledged, given that the two laws exempted
engaged people from fines if they broke the engagement. Thus, engagement
meant the fulfillment of commitments assumed by the two parties, but if one of
the parties no longer wanted it, the party who was true to the other could sue
and was entitled to claim back twofold, threefold, or fourfold the original
deposit. Moreover, the parties could not contract another engagement before
the dissolution of the former.
In the Byzantine Empire, the engagement was first regulated by the
state during the time of Leon the Philosopher by Novela 89, which stated that
the age limit for religious engagement should be the same as the age limit for
marriage, and prohibited dissolution of religious engagement for trivial reasons.
Therefore, Emperor Leon placed civil legislation in line with the spirit of
religious norms. The first to make prayer and ecclesiastical blessing mandatory
for betrothal and marriage was Alexius I Comnenus, in the Golden Bull of 1084,
which stipulated that the two sermons were not to be officiated concomitantly,
but at a certain time interval. Therefore, in eleventh-century Byzantium, under
the influence of imperial power, a blessing of marriage by the Church became
legally mandatory. The Church, therefore, took over some of the functions of
the state, the only possible form of engagement and marriage at the time being
the one performed by the church.
3. LEGAL REGULATION OF ENGAGEMENT

If so far engagement has been more of a spiritual stage, without any legal
connotation, the new civil code has brought an element of novelty by regulating
the institution (art. 266-270), now under the influence of the older regulations
27
Emanuel TVAL
before 1954 and of the Swiss Civil Code which regulates it under art. 90-93.
Since ancient times, betrothal has been an important step in the lives of those
who understand it as a statement of feelings that will unite two destinies, proof
that romance is ingrained in human nature. In the course of time, engagement
has preserved its identity, even if it has lost some of its solemnity. Engagement
today no longer presupposes a dowry or wooing the future bride and asking her
parents for her hand in marriage; it is a modern type of engagement adapted to
the times and often simply materialized in a marriage proposal. Engagement was
mentioned in Romanian legislation before the current regulations, and was seen
as a mutual promise between two parties to marry each other. There is a Paris
Court of Appeal case dated September 6th, 1927 (Curierul Judiciar (1928), : 26-27),
which states that a fianc who has made public the wedding and implicitly the
engagement, as a promise of marriage, and has allowed all the preparations to be made,
including the sending of wedding invitations, commits a fault liable for civil damages if he only
informs the other party that he is no longer willing to marry a few days before the wedding date,
under the pretext that the dowry does not amount to the sum spoken for in advance, especially
if he provides no evidence to this effect. The girl and her parents, in their turn, are considered
to be at fault if they have failed to make the dowry amount explicit, leaving the matter
undecided. The explanation provided by Eugen Petit, counsel of Iasi Court of
Appeal, shows that the promise of marriage is not a civil contract whose failure
to be complied with results in liability for civil damages. However, if one of the
two fiancs is at fault, s/he will have to compensate the other party for
pecuniary (wedding preparations) and moral damages (for instance if unfounded
break of the engagement were to occur which would make people believe that
there were hidden reasons for refusal, and people would speculate on the
subject). Therefore, the joint fault system can be fully applied in this case of the
Paris Court of Appeal.
Mention should be made of the fact that old French legislation regarded
betrothal as a contract, producing two legal effects:
1. Given that it involves an obligation to do something, it makes the
party that breaks the contract liable for damages
2. It creates impediments to marriage between each fianc and the
relatives of the other.
The first effect is still stipulated today in the German and Swiss civil
code. In France, the Napoleonic Code created a controversy which lasted
approximately 30 years, until May 30th, 1838, when the decision of the civil
authority was passed, which considered responsibility for breaking the promise
of marriage when at fault not a contractual breach, but an offense. In these
circumstances, providing proof of breach of contract was incumbent on the
abandoned fianc (Pandectele Romne (1928), :36).2
2A case in point is that of interwar French deputy Rene Chavagnes, who was brought before the
Blois Civil Court by Antonia Rora, his former fiance. On their wedding day, when everything
28
The oldest record of engagement in Romanian writings dates from 1504,

and refers to the engagement planned between Bogdan III the Blind, son of
tefan cel Mare, and Elisafta, sister of the King of Poland, about which
chronicler Grigore Ureche said that his mother did not allow him to marry her
because they belonged to different religious denominations. During the time of
Matei Basarab, it was established that the age limit for engagement was 12 for
girls and 14 for boys (following the old Byzantine model). This engagement
ritual involved exchanging of the rings, cross connections, kissing and prayer
reading. In those days, betrothal was seen as a wedding and could only be
broken otherwise than by law. Moreover, betrothal to a person already engaged
was considered a sin (adultery), as we can notice from obligations arising from
the promise of marriage in nineteenth-century French legislation.
In the new Romanian legislation, engagement is seen as just a state of
fact, yet exhibiting legal connotations, provided that certain fundamental
conditions are met (such as the free and personal consent of both fiancs; minimum age of
18 or, for good reasons, 16, with the consent of the parents or legal guardian3 ,the fiancs must
be opposite-sex partners (engagement can only be concluded between persons of opposite sex);
engagement is prohibited between first-degree relatives (between parents and children or between
grandparents and grandchildren), as well as between relatives up to the fourth degree of kin), if
this be proven (by any means).
Therefore, if the engagement is broken, the gifts received by either of the fiancs
in view of the engagement or during it are to be returned, except for regular gifts. It is not
specified whether the gifts in question are gifts received by the fiancs from
other people, or gifts offered by the two of them to each other; given that there
is no such specification in the law, we consider that any such gifts must be
returned. Moreover, jurisprudence will have to decide on the criteria according
to which it will be uniformly appreciated which gifts can be considered regular
and therefore not returnable by law.
At this point, I would like to insist on terminology, with a view to
clarifying a number of terms, on the basis of national and international
jurisprudence.
By its decision of January 21st, 1938, the Italian Court of Cassation
stipulated that, if the engagement was broken, the party could claim restitution of the
was ready for the ceremony, Chavagnes sent her a telegram to let her know that he would rather
go on a trip to the colonies than marry her. Following that, she sued for damages, and the court
ruled in her favour on December 8th, 1927, and granted her the sum of 10,000 francs.
3 Acording to the Karlsruhe Court ruling, based on Article 3 of German Marriage Law, parental
consent for marriage of minors may be replaced by consent from a foster institution, if the
natural parents refuse to give their consent without good reason. The intent behind this ruling
was to expedite marriages of interest for the community even against the will of parents; the
ruling was based on the idea that refusal to give consent on the grounds that the young couple
would not marry in the Roman-Catholic Church was unfounded.
29
Emanuel TVAL
engagement ring, given that, in its nature and purpose, the ring had to be offered as promise of
marriage.
According to the provisions of Article 229 of the Civil Code, the French
Court of Cassation stated on July 18, 1933, that the spouse against whom the
separation was pronounced shall lose all the advantages in favor of the other spouse, advantages
either stipulated in the marriage contract or decided after getting married. However, these
advantages do not include the engagement ring, which must be considered as a regular gift, thus
escaping the rules that govern donations. This decision was widely commented in the
Revue Trimmestriel de Droit Civil by Rene Savatier (Pandectele Romne (1933), : 1254)
who opposes it and by Gaston Lagarde (Pandectele Romne (1933), : 121 and 220).
Rene Savatier claims that there are two texts in the French Civil Code which
entitle the spouse in favour of whom the divorce is pronounced to ask the other
spouse to return the engagement ring, invoking Article 831 which regulates
returning of donations on grounds of ingratitude, and Article 280, according to
which the spouse against whom the divorce is pronounced will lose all the
advantages granted by the other spouse either by marriage contract or during
the marriage. However, most authors and jurisprudence exclude this possibility.
Proponents of the latter view argue that Article 280 is inapplicable because,
according to them, it does not refer to advantages agreed upon under the
marriage contract and those prior to it. They also dismiss Article 83, by invoking
the provisions of Article 759, according to which the engagement ring is
included in the category of regular gifts. Savatier disagrees with this solution.
First he argues that there is much to say about the concept of regular gift and
about the soundness of jurisprudence, which exempts regular gifts from
donation rules, while the law, by Article 759, only exempts them from
restitution and reduction. In any case, Savatier argues, the concept of regular
gifts should be limited to gifts of modest value, given that, in a broad sense, all
donations between spouses can be considered regular gifts. More specifically, in
the case at hand, the engagement ring did not only have considerable value, but
it was a family jewel owned by the husbands mother and meant to be passed on
to the women in the family from generation to generation. Savatier therefore
concludes that the engagement ring, as well as the union, is not only subject to
donation, but more than that, a symbol or a token of the vows exchanged by the
spouses, who can no longer reach an agreement once the vows are broken. It is
this principle that certain courts have based their decision to return the
engagement ring on, even when the engagement was broken as a result of death
of one of the parties.
Romanian courts have not had the opportunity to rule directly on the
principles of French justice. They seem to have adopted Savatiers theory on the
concept of regular gift, given that they decided that a gift was not regular or
ordinary, unless it was excessively valuable; first instance courts were to decide
on that, according to the financial status and social position of the spouses (Cas.
I., Nr. 508/1905; Teleorman Court I Nr. 320/1924).
30
4. ENGAGEMENT IN THE SWISS CIVIL CODE

The Swiss Civil Code is said to have been the source of inspiration for
the current regulation of engagement in the Romanian Civil Code. Indeed,
engagement was first regulated in the Swiss Civil Code enacted on December
10th, 1907, after a period of about seven years of debates, which preceded its
enactment. According to the Swiss Civil Code, engagement is the first step
towards marriage and is placed at the beginning of family regulations, namely in
Articles 90 through 95. Although it is a step that precedes marriage, it is not a
sine qua non condition for it. As a legal institution, engagement only benefited
from scant practice. Swiss researcher Egen Huber analyzed the civil codes of
several Swiss Cantons and concluded that, throughout the Swiss civil law,
engagement was seen as a family contract (Huber, (1894), :316).
This shows that, even in Switzerland, the new engagement provisions,
reiterated by the amendments to the Swiss Civil Code made in 2000, are not
new, but a consistent evolution of civil provisions up to that point. Federal
provisions were anyway in line with the legal trend imposed by Canton tradition.
The engagement agreement brought about various obligations for both
parties, such as obligations of fidelity. This did not involve only moral, but also
legal principles, which, when breached, brought on some sort of responsibility.
Engagement actually implied a mutual promise of the fiancs that they would
marry in the future, without setting a deadline for the marriage, which is in fact
the ultimate goal of engagement.
However, the law regulates punishment in case of engagement breaking
only if there are no reasonable grounds for it (Article 91 of the Swiss Civil Code
of 1907). The promise of marriage was not concluded in a specific manner; it
could be based on any evidence since the partners, based on faithfulness, regard
this act as a promise of future marriage. The Swiss legislator stipulated as
conditions for engagement all the necessary conditions for marriage, which,
once pronounced, ended the engagement agreement.
On June 26th 1998, a series of amendments to the Family Code were
adopted, which are still in force to this day. Although in Swiss society the
institution of matrimonial engagement does no longer play a significant part, it
has been preserved on grounds of continuity and of emphasizing the
importance of tradition in society (Siffert, (2010), : 181). As has been pointed
out within the committee in charge of drafting the amendments, preserving the
legislation on engagement is indicative of the social relationships extant before
and during the twentieth century, which involve moral issues related to the
private sphere of each person, a departure of this institution from current
regulations which affect part of the society. However, it was stipulated that, if
the marriage was not pronounced, it could be resorted to legal provisions on
engagement, because, Article 90, paragraph 3 of the Swiss Civil Code clearly
31
Emanuel TVAL
states that an engagement agreement cannot be regarded as mandatory for

marriage. If the engagement is broken, except for cases when it occurs as a
result of death of one of the parties, either of the parties may request the return
of gifts made to each other, except for regular gifts offered on various
occasions. As stipulated in European and Romanian inter-war jurisprudence,
expenses made by either of the parties in view of the wedding, before the
breaking of engagement, can also be requested back (Art. 92). If this is not
possible, the person may fall within the provisions of unjust enrichment. If the
refund requests are not submitted within 1 year after engagement breaking, they
can no longer be relied upon.
5. ENGAGEMENT IN THE CHURCH

Engagement is a first step that shows a couples public intention to unite
into marriage, which some canonists describe as a reminder and promise of marriage.
The church blesses this ancient tradition through a short service, usually prior to
the marriage service; the two services are usually performed together. However,
the engagement service may be performed separately, before the marriage
service, in a different place and at a different time. The Church agrees to
perform the Engagement Service separately from the Sacrament of Marriage, if
the young couple wishes to seal their decision to live together forever, with the
blessing of Church (Lottin, (1975), :51).4 This does not mean that the
engagement service gives them the right to married life; many believe that the
engagement service serves as a substitute for the marriage service, which led the
Church to decide not to separate the two religious services. Religious
engagement, unlike civil engagement, is an impediment for either of the fiancs
in their potential decision to religiously marry another party. Therefore, if the
fiancs decide to break the engagement performed in the church in order to be
able to marry somebody else, they must first request the dissolution of religious
engagement. In the case of candidates for ordination (priesthood), if the church
engagement is broken and followed by marriage to another person, this
4 According to the decision of the Romanian Orthodox Church made public on October 25th
2011, which actually reiterated an older decision of the same institution made during the
interwar period, church engagement could only be performed during the same service as the
Sacrament of Marriage. The synodal decision also stated that the pronouncement of civil
engagement did not make it mandatory for the Church to officiate this service separately from
the Sacrament of Marriage, which could only be bestowed upon faithful Orthodox Christians
who could make proof of civil marriage. The Roman Catholic Church tried to reduce the time
span between engagement and marriage in order to avoid the young couples "falling into sin".
This would be accomplished through the decision taken by the Council of Trent (1545-1563),
which reduced this time span with the intention of eliminating it altogether, which however did
not enjoy a unanimous positive response. There is evidence, for instance from Corsica and
Western Pyrenees, according to which the engagement, once sanctioned by a contract and sealed
by a religious ceremony, is still far from marriage and marks the beginning of the young couples
sexual life.
32
constitutes an impediment to ordination, since religious engagement is

considered to be a first marriage. This is confirmed by canon 98 of the Sixth
Ecumenical Council , which states that he who gets engaged to be married to a woman
betrothed to another, and still living with her fianc, shall be indicted for adultery. This
demonstrates the importance of church engagement, given that it included the
mutual commitment to marriage of the couple getting engaged, commitment
equivalent to the consent needed for marriage. As a matter of fact, in his
comment on canon 98 of the Council in Trullo, Balsamon calls the fiancs
spouses.
6. ENGAGEMENT IN ROMANIAN LEGAL HISTORY

The aspects mentioned above regarding the elements and characteristics
of engagement from a legal, social, or canonical perspective should not seem
surprising, given that this institution is not in fact an absolute novelty in
Romanian society. Therefore, in what follows, we will present a number of
elements of Romanian legal history and legal sociology, viewed from the
perspective of the reception of norms that regulated engagement in the
eighteenth and nineteenth century society. Old Romanian legislation, more
precisely ndreptarea Legii or Pravila cea Mare (1652), chapter 172, mentions that
engagement has the same religious force as marriage if the following elements
are ensured: cross connection, deposit, and kissing of the young couple (ndreptarea Legii,
(2002), :256). Mention should be made of the fact that the term deposit is
mentioned in Pravila cea Mare, but not in other documents of the time, where
engagement was mentioned. The deposit is actually a Byzantine element, taken
over from Emperor Justinians code, which denotes the gift offered by the
fianc to his loved one in order to emphasise his commitment and desire. In
Legiuirea Caragea (Caragea Legislation) (1818), all engagement gifts regulated by
law are included in the category of deposit (Legiuirea Caragea, (1955), :72-73 )5.
The elements listed above are nothing but steps that must be followed and met
in order to talk about the legal value of engagement as set in chapter 172 of
Pravila cea Mare. Chapter 174 of the same document says that engagement
contracted by means of a letter is considered null and void (ndreptarea Legii,
(2002), :258). The importance of the social act outweighs that of the written
document. Witness testimonies are the only way to demonstrate such an event,
which, however, according to Chapter 174, does not become proof of an
unbreakable relationship before the religious ceremony of reading the holy
prayer.
5 It is indicated here that engagement is a prior agreement to marry; furthermore, mention is

made of the conditions that need to be met in order for the act to be valid. It is also mentioned
that should the engagement be broken, the deposits, that is the engagement gifts are to be returned, with or
without damages.
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Emanuel TVAL
In some parts of Europe the promise of marriage was made before a

priest; thus the young couple made public their intention to marry each other
(Vintil-Ghiulescu, (2011), :187). This practice was not unfamiliar to the
Romanian people, especially in Transylvania where the young couple would sign
a so-called Good-Agreement Protocol before a priest, in the company of their
parents and godparents, stating that they were not pressured into marriage and
that they had no ulterior motives to take this step not (wealth or physical beauty
of any of the parties). The parents or legal guardians of the future bride and
groom would appear before the priest on the same day to state that they had not
coerced the young couple in any way to take this step towards marriage and they
sign an agreement to this effect. All the parties would sign this Protocol, which
has been preserved to this day in some villages in Transylvania.
Engagement would often coincide with an agreement on the dowry that
was to be brought to the marriage, event also attended by witnesses or
matchmakers (the latter were characteristic for the regions outside the
Carpathians).
Indeed, during the Romanian Middle Ages, there could be a time
interval between civil engagement and religious engagement and marriage. A
series of rituals would be performed during this time interval, such as kissing or
hand kissing, exchanging of the rings and the promise of marriage. Kissing was
an important bridal gesture in the engagement ritual, mentioned in Chapter 177
of ndreptarea legii, but not so common in practice according to researchers.6 Not
even hand kissing was very common in practice. The ring was a symbol of
engagement par excellence, and was often included in the dowry document, its
value being, of course, influenced by the social position of the young couple.
The ring offering gesture was not unilateral as it is today, but bilateral, as
reflected in its name, ie: ring to be exchanged for engagement (in general), and, if
differentiated according to social class, diamond ring to be exchanged, or gold ring to be
exchanged for engagement (Vintil-Ghiulescu, (2011), :190). The gesture of offering
the engagement ring, even if it was not done personally, was seen as proof of
commitment to marriage, with obvious marriage symbolism.
Promises were also considered a pledge of marriage to be undertaken.
This type of commitment based on the promise of future marriage was more
common with the lower social classes, where the promise of marriage was
hardly ever kept, and often led to cases of seduction. The only way to prove the
promise of marriage was testimony by witnesses, this being the only proof
considered to have the force of commitment to marriage.
Exchanging of the rings was accompanied by another ritual, which
referred to the gifts offered unilaterally by the man to his fiance. These gifts
were different from those to be made later, before the wedding, which were
6 The kiss is actually an ancient practice of Christian origin, which demonstrates attachment to
someone. However, it is not the object of our interest in the present paper.
34
deemed as before-the-wedding gifts (Vintil-Ghiulescu, (2011), : 192). In this

respect, mention should be made of the case of a young girl who was found
guilty of breaking the engagement and lost both engagement rings, all the gifts
offered to her on the day of the engagement, as well as the gifts received the day
after the engagement. In some cases all the gifts were seen as before-the-
wedding gifts. Only after the fulfillment of all these rituals was the engagement
blessed in church.
7. BREAKING OF ENGAGEMENT
According to Chapter 178 of Pravila cea Mare (ndreptarea Legii), the
following are good reasons for breaking the engagement: young couples age
lower than the legal age for engagement (14 years old for boys and 12 for girls),
the girl being already pregnant by another, disparity of worship, one of the
fiancs going wild, their desire to take the monastic vows, or intervention of an
influential person to force the young couple to get engaged. For the purpose of
illustrating our point in this paper, we ought to mention the breaking of
engagement case of Rusin Caragic and Ilinca Bucneasca, opened on
December 9th, 1801 ((Vintil-Ghiulescu, (2011), :196-200). The fiance was the
daughter of a former third rank chancellor of Vlcea who sought justice in the
metropolitan (ecclesiastical) court, because the fiancs mother had broken the
engagement contracted years before between their children. As a sign of broken
engagement Ilinca sent back the dowry document accompanied by a request for
supplementation of the gifts offered, which was considered out of the question.
It is stipulated in Legiuirea Caragea (Caragea Legislation) that engagement
may be broken when it is contradicts the rules of marriage, when one or both
parties wishes to take the monastic vows, when one of the fiancs becomes ill
from an incurable disease, when either of them, while perfectly able to marry
each other, unduly comes up with a reason to prevent the marriage, or when
more than three years have passed between engagement and marriage (Legiuirea
Caragea, (1955), :72).
8. REGULATION OF ENGAGEMENT IN TRANSYLVANIAN LAW

The first compendium of engagement regulations, namely Compediul de
Drept canonic (Canon Law Compendium), written by Andrei aguna (Sibiu, 1868)
was published during the second half of the nineteenth century in Transylvania.
This first Family Law compendium states that engagement is the act by which
two people about to get married declare before a priest, their parents, their legal
guardians, or their relatives, their decision to marry each other. This statement
can be made either in writing or by word of mouth. Among the conditions to be
met in order for the engagement to be valid are: free consent of the fiancs,
parents consent, exchanging of the rings, a custom also common in the
Romanian regions outside the Carpathians, and the customary kiss (aguna,
35
Emanuel TVAL
(1913), :55), very clearly stated here, which shows that this ritual gesture was
absolutely natural in Transylvania, while not so much so in Wallachia.
In order for the engagement to be valid, the two parties have to be of
age and in full mental capacity. The legal form must be complied with, which
requires the presence of both parties who must declare their agreement to marry
each other before the brides priest and the future godparents, exchanging of the
rings and kissing. The dowry must also be agreed upon, which must be done in
writing (aguna, (1913), :56). The engagement period must not last more than
two years without it leading to marriage, unless the two fiancs do not live
together, in which case the engagement period may be prolonged to three years.
Upon engagement the fiancs exchange gifts known under the name of
deposit. These gifts may consist of money, precious objects, garments or
jewelry. Should one of the parties decide to break the engagement, he or she will
not be entitled to return of the gifts offered on the occasion of the engagement.
If one of the parties dies, the other party will receive the wedding deposit back
from the deceaseds family.
CONCLUSIONS
The information provided in this paper is intended to show, first and
foremost, that engagement is an institution regulated by law, which enjoyed
particular prominence in the Romanian and Swiss society before the twenty-first
century. These two systems, in which engagement was clearly regulated, have
been analysed in the current paper. Moreover, the institution of engagement has
been analysed from the perspective of Romanian law history, by identifying
cases relevant to our study, meant to demonstrate that engagement was a well-
regulated institution in family law, fairly common during the Romanian Middle
Ages. Mention has also been made of the casework and social outlook of the
time (quite materialistic in some cases), which influenced the institution of
engagement. Moreover, in the absence of a uniform state legislation, we have
discussed the legislation promoted by Andrei aguna in Transylvania through
his Canon Law works, in which engagement was regulated, and which were fully
consistent with the provisions made in the regions outside the Carpathians.
What we have found intriguing was the Romanian and European
legislation, which we have presented and analyzed based on the materials at
hand.
After this contrastive approach to comparative law, legal sociology and
jurisprudence, we have concluded that regulation by law of the institution of
engagement is not necessary in our country at this time, given that it is seen as
nothing but a step that can be taken, although it may not always be followed by
marriage. However, in this respect, it would have been auspicious to restrict the
engagement time to a period during which the two parties could have made a
decision as to whether they wanted to fulfill the ultimate goal of engagement,
that is, marriage. This is how the position of the Romanian Orthodox Church
36
should be understood, according to which the engagement service should not be

separated from the marriage service, in order not to create two separate family
law institutions, which may be seen as competing institutions against the
background of the current Romanian society, instead of being seen as
convergent. A return of engagement regulations in the Romanian Civil Code
only confirms that there was a tradition deeply rooted in the Romanian
consciousness up to World War II, which however lacked the necessary
clarifications and nuances specific to the 21st century; actually it would not solve
any of the problems of the Romanian society.
BIBLIOGRAPHY
N., C., Anitei. (2011), Marriage agreement undertheprovisions of the Romanian
Civil Code, Academic Publishing, Lambert, Germany.
V., Hanga, (463), Drept privat roman. Tratat, Bucureti, Editura Didactica si
Pedagogica, 1977.
L., Friedman. (1894), Private Lives. Families, Individuals and the Law, Harvard
University Press, 2004.
E., Huber. (1894), Geschichte des schweizerischen Privatrechts, Basel.
A., Lottin. La desunion du couple sous lancien regime. Lexemple du Nord, Universite de
Lille III, 1975.
R., Siffert. Verlobung und Trauung. Die geschichtliche Entwicklung des schweizerischen
Eheschliessungsrechts, Schulthess Verlag, Freiburg, 2010.
A., Saguna (1913) baron de, Compendiu de drept canonic, Ed. a III-a, Sibi.
C., Vintil-Ghiulescu. (2011), In salvari si cu islic, ediia a II-a. Ed. Humanitas,
Bucuresti.
Indreptarea Legii, (2002), Editura Pelerinul Roman, Oradea.
Legiuirea Caragea, (1955), Editura Academiei Romne, Bucuresti, 1955, p. 72-73
Curierul Judiciar, (1928), Anul VI8.
Pandectele Romane, (1928).
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38
European and National Regulations in the Field of Racism and Xenophobia
EUROPEAN AND NATIONAL REGULATIONS IN

THE FIELD OF RACISM AND XENOPHOBIA
Olga Andreea URDA1
Abstract
Managing the cultural, linguistic, religious or ethnic diversity that characterises
Europe is a challenge for the states as it is for the European Union. Although international
documents do not stipulate directly the existence of the law of national, ethnic, racial or
religious groups, they incriminate the acts that are aiming towards the destruction of these
groups.
Racism and xenophobia are direct violations of human rights and fundamental
freedoms, democracy and the rule of law, principles common to both the European Union and
the Council of Europe and the Member States.
Since the early '70s, the European institutions have stated on numerous occasions the
necessity to protect human rights and fundamental freedoms, condemning all forms of
intolerance, racism and xenophobia.
Suppressing this phenomenon by means of penal law is absolutely necessary, being an
aspect which emerges from the criminal policy of the European Union. Thus common
criminalization of these reprehensible deeds in the Member States aims to combat forms of
racism and xenophobia, individual member actions not being sufficient.
The future of Europe will be determined by its cultural, ethnic and religious diversity.
Mutual understanding and equal opportunities are the pillars of European unity, all linked by
human dignity and respect for human rights. Racism and xenophobia are diametrically
opposed to those principles and are threatening their very essence.
Given our integration in the European system, a criminal legislation was required
that would meet the requirements of European standards as well as approaching it tot that of
others EU states. Cession of sovereignty in this matter is fully justified by the need to repress a
alarming phenomenon that is detrimental to the underlying principles of any democratic society.
Keywords:
racism, xenophobia, european criminal law, European Union, human rights
1 University Assistant, PhD Candidate, Law Faculty, Alexandru Ioan Cuza University of Iasi
39
Olga Andreea URDA
1. GENERAL CONSIDERATIONS
The management of the cultural, linguistic, religious or ethnic diversity
characterising Europe constitutes a challenge, both for the States and for the
European Union. Even if the international documents do not provide directly
the right of the national, ethnic, racial or religious groups to existence, they
incriminate the actions intending the destruction of such groups.
The principle of non-discrimination was initially asserted in the
Universal Declaration of Human Rights of 1948, which provided the fact that
All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.
Racism and xenophobia constitute direct violations of the fundamental
rights and freedoms, of the democracy and of the state of law, common
principles of the European Union, of the Council of Europe and of the Member
States.
Still from the beginning of the 70s, the European institutions asserted on
many occasions the need to protect the human rights and the fundamental
freedoms, condemning any form of intolerance, racism and xenophobia.
The repression of such a phenomenon by means of Criminal Law is
mandatorily imposed, an aspect which also results from the criminal policy of
the European Union. Thus the common incrimination of these reprehensible
facts at the level of the Member States has the objective of combating racism
and xenophobia forms, because the individual actions of the States are not
sufficient.
The future of Europe shall be determined by its cultural, ethnic and
religious diversity. The mutual understanding and the equal opportunity are the
pillars of the European unity, all of them being linked to human dignity and
respect for human rights. Racism and xenophobia are diametrically opposite and
threat these principles.
Our integration with the European system required the existence of a
criminal legislation complying with the European standards and able to get it as
closer as possible to that of the other states of the European Union. The
assignation of sovereignty in this issue is fully justified by the need of repressing
an alarming phenomenon and which reflects on the principles which are at the
basis of any democratic society.
40
2. THE REGULATION OF RACISM AND XENOPHOBIA AT

INTERNATIONAL LEVEL
By cancelling the frontiers, xenophobia started to manifest not
necessarily by a hostility relating to the foreigners, but especially because of the
regret relating to the loss of communities, as they were formed before the
globalisation process. This recent history indicated though that the racist and
xenophobe manifestations are a clear threat for democracy (Shore, (1997), :256;
Brems, (2002), :495.)
Racial discrimination supposes any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin which has
the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life2.
Both the Council of Europe and the European Union put into practice
different strategies, in order to repress racism and xenophobia and in order to
harmonise the legislations of the Member States in this area (Bell, (2004), :213)
2.1. Racism and xenophobia in the regulations of the Council of Europe

The Council of Europe treats the issue of racism and xenophobia in a
global manner, in order to cover all the issues that they generated.
The key role of the Council of Europe was highlighted by the
Declaration and the Action Plan in combating racism, xenophobia, anti-
Semitism and intolerance it is associated with, documents which are adopted
with the occasion of the Summit of the Heads of State and of Government of
Vienna of the 19th of October 1993. The States appeared to feel concern about
these racist, xenophobe and anti-Semite actions, which developed an
environment of intolerance and violence, especially against the immigrants, such
actions being frequently accompanied by degrading and discriminatory
practices3.
The European conference against racism We are all different, we are
all equal: from theory to practice of the 11-13th of October 2001 took place in
Strasbourg, under the auspices of the Council of Europe, gathering 500
participants, among which Heads of State or of Government, the
representatives of the Council of Europe, of the European Union and of the
United Nations, non-governmental organisations, as well as other
representatives of the civil society. Following this conference, a Political
2 Article 1 of the International Convention on the Elimination of All Forms of Racial

Discrimination, prepare under the auspices of the UN and published in B. Of. No. 92 of June
28, 1970, available at http://www.irdo.ro/file.php?fisiere_id=84&inline, consulted on
02/15/2014.
3 Council of Europe, the Committee of Ministers the Vienna Declaration, October 9, 1993
available at http://cm.coe.int.
41
Olga Andreea URDA
Declaration was adopted by the ministers of the Member States of the Council
of Europe. By signing this Political Declaration, the Member States undertook
to adopt a series of legal, political, as well as educational and formation
measures.
The legal measures provided by the Declaration refer to the adoption
and application in practice of several national legislative and administrative
measures, in order to repress racism and racial discrimination within all the areas
of public life; the guarantee of equality for every person, without distinction, in
order to be ensured the equal opportunity; bringing to justice the persons guilty
for racist actions and not least combating all the forms of incitement to racial
hatred, by adopting measures against the diffusion of racist materials in Mass
Media, in general and on the Internet, in particular.
According to the criminal law, the Member States are asked to adopt
measures in order to combat expressly racism, xenophobia, anti-Semitism and
intolerance, by incriminating the incitement to hatred, discrimination or
violence, expressed orally, in writing, by Mass Media or in other forms, oriented
against groups of persons on grounds of race, ethnicity, nationality or religion4.
An important institution with competences in this area at the level of the
Council of Europe is represented by the European Commission against racism
and intolerance (ECRI)5, created on the occasion of the Summit of the Heads of
State or of Government of the Member States of the Council of Europe, which
took place in Vienna, in 1993.
The role of the ECRI according to the first article of its statute is to
combat racism, racial discrimination, xenophobia, anti-Semitism and
intolerance at the level of Europe, from the point of view of human rights
protection, in the light of the European Convention of Human Rights, of its
additional Protocols and of the related jurisprudence.
ECRI adopted eight general policy recommendations addressed to the
governments of the Member States of the Council of Europe. In the General
Policy Recommendation no. 7 on the national legislation relating to combating
racism and racial discrimination, the ECRI recommends to the Member States
to adopt a law against racism and racial discrimination, if at national level, there
are still not efficient provisions in this way6.
4 European Commission against Racism and Intolerance, ECRI General Policy

Recommendation no. 1 "Combating racism, xenophobia and intolerance", Strasbourg, October
4, 1996, available on Compilation of ECRI's General Policy Recommendations, Strasbourg, January
2001, published by the Council of Europe.
5 On 13 June 2002 was adopted The Res (2002) 8 relative resolution on the Status of the
European Commission against Racism and Intolerance (ECRI) by the Committee of Ministers,
as amended by resolutions CM / Res (2013) 12 and CM (2014) adopted in September October
2013 respectively in the February 19, 2014, strengthening its position as an independent
institution.
6 According to paragraph 18 of General Policy Recommendation no. 7 a key component of
national legislation to combat racism and racial discrimination constitutes the obligation on
42
Another important instrument adopted in this issue, at the level of the

Council of Europe, apart from the multiple recommendations of the Committee
of Ministers, is represented by the Additional Protocol to the Convention on the
cybernetic criminality, relating to the incrimination of the racist and xenophobe
nature actions made by means of the information systems.
Relating to the European Convention of Human Rights, non-
discrimination is elevated at the degree of principle and by the provisions of
Article 14 of the Convention, approving the exercise of the rights and freedoms,
without any difference especially based on sex, race, colour, language, religion,
political opinions or any other opinions, national or social origin, appurtenance
to a national minority, fortune, birth or any other situation.
If the application of Article 14 of the Convention is limited to the rights
and freedoms recognised in its text, a significant step in this regard was the
editing of the Protocol no. 12 of 2000 at the Convention for the Protection of
Human Rights and Fundamental Freedoms, Protocol which provides the
general interdiction of discrimination, by insuring by the signatory States the
exercise of any right provided by the law without any discrimination based
especially on sex, race, colour, language, religion, political opinions or any other
opinions, national or social origin, appurtenance to a national minority, fortune,
birth or any other situation7. Romania ratified this Protocol in 2006, by Law
no. 103/20068, providing an additional guarantee relating to the exercise of any
right provided by the internal law, without any discrimination.
The European Court of Human Rights also ruled9 that Article 1710 of
the Convention forbids the denial of some important historic events which were
member states in criminal matters, to establish as criminal offenses the following conduct, when
committed deliberately: a) public incitement to violence, hatred or discrimination, b) public insults and
defamation or c) threats against a person or group of persons based on race, color, language, religion, nationality or
national or ethnic origin; d) public expression, with a racist aim, of an ideology hat asserts the superiority or
depreciates or denigrates, a grouping of persons on the grounds of race, color, language, religion, nationality or
national or ethnic origin) the denial, minimization brutal, justification or public discourse, with a racist aim, of
genocide, crimes against humanity or war crimes; f) the dissemination or public distribution, production or storage
for circulation or public distribution, with a racist aim, of written, pictorial or other material containing
manifestations covered in paragraphs a), b), c), d) and e) ; g) the creation or management of a group which
promotes racism, support group or participation in its activities in order to contribute to the offenses referred to in
paragraphs 18 a), b), c), d), e) and f); h) racial discrimination in the exercise of a function or a profession.
7 Article 1 of Protocol no. 12 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, adopted in Rome on 4.11.2000, available at

http://www.echr.coe.int/Documents/Convention_RON.pdf, consulted on 22/02/2014.
8 Published in the Official Gazette of Romania, Part I, no. 375 of 02.05.2006, available on
http://lege5.ro/Gratuit/ha2taojx/legea-nr-103-2006-pentru-ratificarea-protocolului-nr-12-la-
conventia-pentru-apararea-drepturilor-omului-si-a-libertatilor-fundamentale-adoptat-la-roma-la-
4-noiembrie-2000, consulted on 22.02.2006.
9 ECHR, Section II, Case Chauvy and Others v. France, 29 June 2004 64915/01
10 Article 17 of the European Convention on Human Rights stipulates that Nothing in this
Convention shall be construed as authorizing any State, group or an individual any right to
engage in any activity or perform any act aimed at the destruction of the rights or freedoms
43
Olga Andreea URDA
firmly established such as the Holocaust and the claimers searched for the
historic truth, making abstraction of any trace of historic method, as correctly
argued the internal instances and proceeded to certain extremely serious
insinuations relating to firmly established facts as being real. Consequently, there
is not breach of the freedom of speech.11
2.2. Racism and xenophobia in the regulations of the European Union

The new provisions against the discrimination of the Treaty of
Amsterdam demonstrate an increase of the EU concern relating to the
discrimination issue in a multicultural Europe.
In 1995, the European Commission presented a communication about racism,
xenophobia and anti-Semitism and a year later, the European Council of
Florence proposes the creation of a European Monitoring Centre on Racism
and Xenophobia12 in order to provide to the Community and to its Member
States objective, credible and comparable data at European level relating to the
phenomena of racism, xenophobia and anti-Semitism to provide support as long
as they adopt certain action directions within their competence areas
(Oudenaren, (2005), :245; Brems, (2002), :489).
The year 1997 was declared the European year against racism and in
March 1998, the Commission published an Action Plan against racism, an action
plan which contained concrete proposals leading to the change of the position
of the large public by education (Oudenaren, (2005), :246).
Until 1996, at the level of the European Union, there is no criminal law
instrument to repress the acts of xenophobia and racism. The common action
96/443/JHA of the 15th of July 199613, adopted by the Council under Article
K.3 of the Treaty of the European Union on the measures on combating racism
and xenophobia, establishes a series of common rules in order to prevent the
authors of these crimes to be advantaged by the differences existing at the level
of the laws of the Member States.
recognized in this Convention or bring limitations of the straights and freedoms other than
those provided by this Convention, from the interpretation of those provisions resulting the fact
that art. 17 of the Convention prohibit denial of historical events that have been firmly
established.
11 In the present case the applicants have questioned the veracity of historical events, suggesting
that the French Resistance was a fable, in a paper published by them, one as author and one as
editor.
12 Regulation (EC) no. 1035/97 of 2 June 1997 establishing a European Monitoring Centre on
Racism and Xenophobia, published in Of. J. L 151/1 of 10.06.1997.

13 Published in Of. J. L 185 from 24.07.1996, available on http://eur-lex.europa.eu/legal-
content/RO/ALL/?uri= CELEX:31996F0443, consulted on 15/02/2014.
44
An important role in this regard was represented by the adoption of the

Council Directive no. 2000/43/EC on the application of the principle of equal
treatment between the persons, with no racial or ethnic origin discrimination14.
Since at the level of the European Union it is imposed the definition of a
common approach in the area of the criminal law relating to this phenomenon,
in order to insure the incrimination of the same facts in all the Member States
and effective sanctions to be provided, the 28th of November 2008 it was
adopted the Council Framework Decision 2008/913/JHA on combating certain
forms and expressions of racism and xenophobia by means of the criminal law15.
There are punishable according to the Framework Decision
2008/913/JHA, which establishes two types of crimes:
public instigation to violence or hatred against one group of persons or
one member of such a group defined on criteria of race, colour, religion,
succession or national or ethnic origin, including by the public diffusion or by
the distribution of documents, images or other materials representing
manifestations of xenophobia and racism;
public apology, denial in a public way or the visible mitigation, publicly,
of the severity of the genocide crimes, of the crimes against humanity and war
crimes, such as they are defined at Articles 6, 7 and 8 of the Statute of the
International Criminal Court, as well as at Article 6 of the Charter of the
International Military Tribunal, attached to the London Agreement of the 8th of
August 1945, made against a group of persons or a member of such a group
defined on race, colour, religion, succession or national or ethnic origin, when
that behaviour is able to instigate to violence or hatred against such a group or a
member of such a group.
The Member States have yet the possibility to choose to punish only the
facts which are either capable of disturbing the public order or constitute
threats, injuries or insults.
The adoption of a directive in this area seems to be impossible, at least
for the next future, as long as between the cultural and legal traditions of the
Member States, there are noticeable differences, so a full harmonisation of the
criminal law does not seem to be achievable.
14 Published in Of. J. L 328/55, available on http://www.dri.gov.ro/directiva-200043ce-a-

consiliului-din-2000-de-punere-in-aplicare-a-principiului-egalitatii-de-tratament-intre-persoane-
fara-deosebire-de-rasa-sau-origine-etnica/, consulted on 15/02/2014.
15 Published in Of. J. L 328/55, available on http://eur-
lex.europa.eu/legalcontent/RO/TXT/PDF/?uri=CELEX :32008F0913&from=RO, consulted
on 15/02/2014.
45
Olga Andreea URDA
3. TRANSPOSING THE STANDARDS IN THE AREA OF RACISM

AND XENOPHOBIA IN THE INTERNAL LEGISLATION
3.1 Internal regulations in this area

The Constitution of Romania asserts in the article 4 par. 2 the equal
rights and the equality before the law without any discrimination on grounds of
race, nationality, ethnic origin, language, religion, sex, opinion, political
appurtenance, fortune or social origin. Under article 52 of the Constitution of
Romania, the exercise of certain rights or of certain fundamental freedoms may
be also limited only by law and only if it is imposed, as applicable, for: defending
the national security, the order, the health or the public morality, the rights and
freedoms of the citizens, the performance of the criminal formation, the
prevention of the consequences of several natural calamities, of a disaster or of
an extremely severe sinister. In all the cases, such a limitation could be disposed
only if it is necessary in a democratic society, and the measure must be
proportional with the situation which imposed its adoption, to be applied in a
non-discriminatory way and without reflecting on the existence of the right or
of the freedom.
The Criminal Code of Romania contains a series of incriminations which
have the role to protect the equal rights of all the persons, against all the racial
or xenophobe manifestations.
The G.E.O. no. 137/2000 relating to the prevention and penalisation of
all the forms of discrimination16, which transposes the Council Directive no.
2000/43/EC on the application of the principle of equal treatment between the
persons, without any discrimination of racial or ethnic origin.
The G.E.O. no. 31 of the 13th of March 2002 on the interdiction of the
organisations and symbols with fascist, racist or xenophobe character and of the
promotion of the cult of guilty persons committing crimes against peace and
humanity17.
In a decision where it pronounced on the existence of any exceptional
case justifying the adoption of an emergency ordinance in the area of forbidding
the fascist, racist or xenophobe organisations and symbols and the promotion of
the cult of guilty persons committing crimes against peace and humanity, the
Constitutional Court decided the fact that preventing the proliferation of the
fascist, racist or xenophobe type extremist manifestations constituted and still
constitutes a constant concern of the international community, both at the level
of the European and international bodies and at the level of the international
laws. Preventing and combating the instigation to national, racial or religious
16Republished in The Official Gazette of Romania no. 99 of February 8, 2007

17Published in The Official Gazette of Romania no. 214 of 28 March 2002, approved with
amendments by Law no. 107/2006.
46
hatred comply with the requirements of the European Union in this area,
constituting at the same time a positive signal given by the Romanian State to
combat racism, anti-Semitism and xenophobia18 (Toader, Stoica, Cristus,
(2007), :631).
3.2. Public instigation to violence or hatred

The new Criminal Code incriminates the instigation to hatred or
discrimination in Article 369, so the instigation of the public by any means, to
hatred or discrimination against a category of persons shall be punished by
prison from 6 months to 3 years. The former Criminal Code used to
incriminate in Article 317 the instigation to discrimination, punishing by prison
from 6 months to 3 years the instigation to hatred on grounds of race,
nationality, ethnicity, language, religion, genre, sexual orientation, opinion,
political appurtenance, convictions, fortune, social origin, age, disability, non-
contagious chronic disease or HIV/AIDS, incrimination which at its turn
replaced, by Law 278/2006, the infection of nationalist-chauvinist propaganda.
The legal objective of the crime is constituted by the relationships
relating to social cohabitation, aiming at impairing the good cohabitation
between the citizens by the chauvinist or racist national propaganda, by
instigating the race or national hatred (Ciuncan, (2002), :154).
Both the old and the present regulation regulate in an explicit way only
the notion of hatred, without relating specifically to violence. Under this aspect,
it is imposed the change of the internal standard in order to ensure the
transposition of the framework decision in an efficient way.
In the new Criminal Code, the legislator does not show any more which
are the discrimination criteria, their sphere of comprehension not being limited
anymore and there is also as a novelty item that the internal norm relates now to
the fact that the victims of instigations are represented by a category of persons
(Toader, Michinici, Criu-Ciocnt, Dunea, Rducanu, Rdule, (2014), :566),
joining in this way the other twenty Member States of the European Union
which relate explicitly to groups and individual members of the groups in
compliance with the framework decision19.
The protection against discrimination on racist or xenophobe criteria is
yet made also by means of other provisions of the criminal law.
Thus, the Criminal law in force provides that the aggravating
circumstance of Article 77 item h) committing the crime on grounds of race,
nationality, ethnicity, language, religion, genre, sexual orientation, opinion or
18 Constitutional Court Decision no. 293 of 28 March 2006 published in the The Official
Gazette. No. 343 of April 17, 2006.
19 European Commission, Report of the Commission to the European Parliament and the
Council on the implementation of the Framework Decision 2008/913/JHA combating certain

forms and expressions of racism and xenophobia by means of criminal law, Brussels,
01.27.2014, COM (2014) 27 final
47
Olga Andreea URDA
political appurtenance, fortune, social origin, age, disability, non-contagious

chronic disease or HIS/AIDS infection or for other similar circumstances,
considered by the perpetrator as causes of the inferiority of a person compared
to the others. Thus, it is given effect to the provisions of Article 4 of the
Framework decision providing the obligation of the Member States to insure
that the racial and xenophobe motivation in committing crimes is considered as
aggravating circumstance, either legal or judicial. In our internal law, this
aggravating circumstance has a correspondent also in the former Criminal Code,
with the mention that the new regulation completes the list of the reasons
enounced by introducing the phrase other similar circumstances, in order for
the enumeration to become exemplifying (Paca, (2008), :66; Toader, Michinici,
Criu-Ciocnt, Dunea, Rducanu, Rdule, (2014), :165).
The new Criminal Code incriminates, in Article 297 par. 2 the abuse of
office made by the public servant who while exercising the office charges,
limits the exercise of another persons right or creates for this an inferiority
situation on grounds of race, nationality, ethnic origin, language, religion, sex,
sexual orientation, political appurtenance, fortune, disability, non-contagious
chronic disease or HIV/AIDS infection. The former Criminal Code provided
at Article 247 the abuse of office by limiting several rights, regulation
undertaken without significant changes by the new Criminal Code.
By this incrimination, there are protected the social relationships relating
to the office activity, whose performance is conditioned by the absence of any
limitation of the exercise of the rights of a person.
The Article 166 of the former Criminal Code, which incriminated the
propaganda in favour of the totalitarian State, represented also a guarantee for
complying with the equal rights of all the persons, against all the manifestations
of racial discrimination, as long as the propaganda action in favour of a
totalitarian State has this character when consisted in sharing ideas or concepts
belonging to the fascist, communist ideology, such as the idea of superiority of a
race, the race or national hatred (Toader, (2010), :20). But this incrimination in
no longer provided by the new Criminal Code, even if it offered protection to
some fundamental values, which were all over the time violated, in a very severe
way by the apology of some totalitarian ideas or concepts.
3.3. The public sharing or the distribution of documents, images or other

materials instigating to violence or hatred
The framework decision provides that the public sharing or the
distribution of documents, images or other materials representing
manifestations of xenophobia and racism, the acts of public instigation to
violence and hatred must also be incriminated, adding the fact that not only
spoken communication should be covered.
The Article 369 of the new Criminal Code incriminates the instigation to
hatred or discrimination, made by any means, thus including also the
48
committing way provided by the Framework Decision. Thus, at least formally,

our internal legislation complies with the European standards.
The Article 4 of the Ordinance no. 31 of the 13th of March 2002
incriminates at par. 1 and 2 the manufacturing, the passing or the possession
for passing of fascist, racist or xenophobe symbols, as well as the public use of
such symbols.
In a sentence of the Tribunal of Buzau it was established that the fact
of the minor defendant to bear visibly, in public, a tattoo representing the
insignias of the Nazi SS army the 20th of October 2004 meets the constitutive
items of the crimes of public use of the fascist symbols provided by Article 4
par. 2 of the GEO no. 31/2002 20.
The trade of materials containing xenophobe and nationalist and
extremist inscriptions, slogans and symbols meet the constitutive items of the
crime provided at Article 4 par. 1 of the GEO no. 31/200221.
The Law no. 187/201222 modified the ordinance, by adding the par. 2
penalising the distribution or the provision to the public, in any way, by means
of an information system, of racist or xenophobe materials.
Nevertheless, since the majority of the Member States of the European
Union provided explicitly the specific means of diffusion of the materials
representing manifestations of xenophobia and racism and other than by using
information means, it would be desirable for our internal law to contain more
detailed provisions in this regard23.
3.4. The public apology, the public denial or the obvious public
mitigation of genocide, of crimes against humanity and of war crimes, as
well as of crimes defined in the Charter of the International Military
Tribunal
Articles 524 and 625 of the G.E.O. no. 31 of the 13th of March 2002
penalise the public apology, the public denial and the mitigation of genocide, of
20 The criminal sentence no. 1709 of 19.09.2006 the Law Court of Buzau, Penal Section,
available at http://legeaz.net/spete-penal/penal-infractiuni-prevazute-de-o-2008, consulted on
15/02/2014.
21 Sentence passed by Law Court of Miercurea Ciuc, Penal Section, in file no. 5864/258/2012 of
06.18.2013, available on
http://portal.just.ro/258/SitePages/Dosar.aspx?id_dosar=25800000000032635&id_inst=258,
consulted on 02/15/2014.
22 Published in Official Gazette no. 757 of 12 November 2012.
23 European Commission, Report of the Commission to the European Parliament and the
Council on the implementation of the Framework Decision 2008/913/JHA combating certain

forms and expressions of racism and xenophobia by means of criminal law, Brussels,
01.27.2014, COM (2014) 27 final.
24 Article 5 of GEO. 3/2002 criminalizes the promotion of the cult of personalities found guilty
of a crime against peace and humanity or promotion xenophobic propaganda perpetrated by any
means, in public.
49
Olga Andreea URDA
crimes against humanity, of war crimes, as they are defined in the international
law, as well as their effects.
By the criminal sentence no. 1709 of the 19th of September 2006,
previously mentioned, the Tribunal of Buzu condemned the defendant T.Z.M.
also for having committed the crime provided at Article 5 of the Ordinance no.
31/2002 noticing that the fact of promoting the fascist ideology, showing on the
Internet the images of Hebrews, advising those who see them to attack the
enemy with all the costs, giving the exact address, may endanger the physical
integrity or even the life of these persons and constitutes the crime
commission26.
According to Article 3, a crime constitutes the initiation or constitution
of a fascist, racist or xenophobe organisation, the adhesion or support, under
any form, of such a group.
As an additional measure of protection, the new Penal Code forbids the
application of the mitigating circumstance provided by Article 75 par. 1 item d)
of the Criminal Code27, in case of crimes on forbidding the fascist, racist or
xenophobe organisations and in case of the promotion of the cult of guilty
persons committing crimes against peace and humanity.
Nevertheless, any international document in this area does not
recommend the penalisation of denial of the effects of crimes against humanity
in such a general way as made by the Romanian legislator. It is thus
objectionable the judicial construction insufficiently rigorous, too general and
generating such confusions. The precarious jurisprudence in this area may be
also the proof of application difficulties of a too vague provision and thus the
particularisation of the actions which must be sanctioned or at least the
definitions of clear criteria would have the role to understand what the effects of
the crimes against humanity and of the war crimes concretely refer to, thus
removing the arbitration from the law application.
25 According to art. 6 of Ordinance no. 31/2002 The denial, challenging, approval or

justification of the obvious minimization, by any means, publicly, of Holocaust, genocide, crimes
against humanity and war crimes as defined by international law in the Statute of the
International Criminal Court and the Charter of the International Military Tribunal established
by the London Agreement on August 8, 1945, and recognized as such by a final decision of the
International Criminal Court, the International Military Tribunal for the Former Yugoslavia, the
International Tribunal, Rwanda or any other international criminal court established by relevant
international instruments, whose jurisdictions recognized by the Romanian state, or their effect,
shall be punished with imprisonment from six months to three years or with a fine.
26 The criminal sentence no. 1709 of 19.09.2006 the Law Court of Buzau, Penal Section,
available athttp://legeaz.net/spete-penal/penal-infractiuni-prevazute-de-o-2008, consulted on

15/02/2014
27 Art 75 para. 1 lit. d) of the Criminal Code provides for a mitigating circumstance the full
coverage of the material damage incurred through the offense in the course of the criminal
prosecution or trial until the first hearing, if the offender has not benefited from this
circumstance within 5 years prior to committing the deed.
50
CONCLUSIONS
The unity in diversity means at the same time the respect for diversity.
The elaboration of Criminal Law norms, protecting this guarantee, was a natural
step which had to be made by the Member States of the European Union and of
the Council of Europe.
Our internal legislation transposed the European norms in this area,
with certain slowness, undoubtedly. The appreciation margin in the area of
racism and xenophobia is pretty large, which is visible also at the level of our
legislation, adapted at the national specificity, sometimes even there where it
would have been desirable to keep the line drawn by the European norms.
The adoption of a directive could represent a solution, at least at the
level of the European Union and consequently, the differences between the
criminal legislations of the Member States in the area of racism and xenophobia
would fade.
BIBLIOGRAPHY
Treatises, lectures, monographs

Oudenaren, J., V., Uniting Europe: an introduction to the European Union, Second
Edition, Rowman & Littlefield Publishers, INC. Lenham USA, 2005.
Toader, T., Stoica, A., Cristu, N., (2010), Codul penal i legile speciale: doctrin,
jurispruden, decizii ale Curii Constituionale, hotrri CEDO, Hamangiu
Publishing House, Bucharest, 2007.
Toader, T., (2010) Drept penal romn. Partea special, Hamangiu Publishing House,
Bucharest.
Toader, T., Michinici, M. I., Criu-Ciocnt, A., Dunea, M., Rducanu, R.,
Rdule, S., (2014) Noul Cod Penal. Comentarii pe articole, Bucharest,
Hamangiu Publishing House.
Scientific articles
Bell, M., (2004) Setting standards in combating racism: a compensation of the
European Union and the Council of Europe in The development of
legal instruments to combat racism in a diverse Europe, Jan Nilssen and
Isabelle Chopin (Eds.), Martinus Nijhoff Publishers, p. 213-235.
Brems, E., (2002) State regulation of xenophobia versus individual freedoms:
the European view, in Journal of Human Rights, vol. I, no. 4, p. 213-
235.
Ciuncan, D., (2002) Propaganda naionalist-ovin i sancionarea oricror alte
forme de discriminare, in Revista Dreptul, no. 4, p. 153-160.
Paca, V. (2008), Consecinele penale ale actelor i faptelor de discriminare in
Revista de Drept Penal, no. 1, p. 63-70.
51
Olga Andreea URDA
Shore, C., Ethnicity, Xenophobia and the Boundaries of Europe, in

International Journal on Minority and Group Rights, Kluwer Law
International, Holland, 1997, p. 247-262.
European Commission against Racism and Intolerance, Recommendation of
general policy of ECRI no. 1, Combating racism, xenophobia and
intolerance, Strasbourg, the 4th of October 1996, in Anthology of the
ECRI general policy recommendations, Strasbourg, January 2001,
published under the auspices of the Council of Europe.
Bodies of law
European Commission, Report from the Commission to the European
Parliament and the Council on the implementation of the Council
Framework Decision 2008/913/JHA on combating certain forms and
expressions of racism and xenophobia by means of the criminal law,
Brussels, 27.01.2014, COM(2014) 27 final
Council Directive no. 2000/43/EC on the application of the principle of equal
treatment between the persons, with no racial or ethnic origin
discrimination
Web pages
www.irdo.ro
http://cm.coe.int
www.eur-lex.europa.eu
52
Romanian Law
53
Olga Andreea URDA
54
Considerations Regarding the Specific Elements of the Repurchase Agreement
(Repo)
CONSIDERATIONS REGARDING THE SPECIFIC

ELEMENTS OF THE REPURCHASE
AGREEMENT (REPO)
Bujorel FLOREA1
Abstract
The current article focuses on the specific elements of the repurchase agreement, as they
are regulated in the new Civil Code (Law no. 287/2009). In the beginning the author makes
a general characterization of this type of contract, from the perspective of the specific elements
regarding the contracting parties, the object of the contract and the moment of fulfilling certain
obligations assumed by the parties. Then, the study defines the notions of repo and reverse
repo and differentiates the repurchase agreement (repo) from other similar contracts,
configuring thus more clearly the analyzed convention. A specific element of the contract is
represented by its legal nature of sui-generis contract, which the author explains by the fact that
in the doctrine there is no unanimous opinion concerning this aspect. At the same time, the
specificity of the repo is highlighted by presenting its main effects: the double transfer of property,
the transmission of the accessory rights, the original buyers obligation to exercise his option,
and the original sellers obligations to make available for the original buyer the funds necessary
for exercising the right of option and for making the payment. Last but not least, the specificity
of this type of contract is revealed through reflecting the differences between the liquidation,
prorogation and renewal of the debated convention. The study presents the viewpoints expressed
in the literature, as well as the authors opinions as regards the controversial legal problems in
the studied field.
Keywords:
repurchase agreement (repo); reverse repo; the original seller; the original buyer;
immediate payment; settled sum; financial instruments and/or securities; obligation to
exercise the option; liquidation, prorogation and renewal of the repo.
1Associate Professor at the Faculty of Law and Public Administration,Spiru Haret University,
Bucharest
55
Bujorel FLOREA
1. NOTION AND GENERAL CHARACTERIZATION OF THE

REPURCHASE AGREEMENT (REPO).
In compliance with the provisions of art.1772 Civil Code, the repurchase
agreement represents the convention through which a party, named original
buyer, buys from another party, named original seller, with immediate payment,
financial instruments and securities 2, trading on the market and commits at the
same time to resell to the original seller the financial instruments or securities
from the same kind, at a certain maturity, in exchange for settled sums. The
legislative base is found in Book V (About obligations), Title IX (Different
special contracts). Chapter IV (The repurchase agreement) in the Civil Code.
From the beginning we criticize the fact that the law-maker, in the
mentioned text of law, expressed the object of the repurchase agreement only in
a cumulative way: financial instruments and securities.
The coordinating conjunction and designates the circumstance that
the financial instruments and securities can represent the object of the
repurchase agreement only together.
In reality there is no reason for which the law-maker aimed only at the
cumulative variant and eliminated the possibility that the object of the contract
should be represented by any of the two goods, separately. Thus, in our opinion,
the object of the repurchase agreement can be either only the financial
instruments, or only the securities, or the financial instruments and securities
together, cumulatively. As the law-maker formulated only the cumulative way,
although his intention could not be this, we propose de lege ferenda that the
text of law [art.1771 para.(1)] should be formulated by using and/or
(Ungureanu, Baias, Chelaru, Constantinovici, Macovei, (2012): 948). Hence, it
would be eliminated the mentioned fault and it would be provided a more
rigorous regulation.
The specific elements that configure the identity of this convention are
those referring to: a) the capacity of the parties, b) the object of the contract and
c) the moment of the payment.
a) as regards the contractual parties, the specificity of the repurchase
agreement consists of two aspects:
On the one hand, the repurchase agreement is different from the sales
contract through the name of the parties: the original buyer, the person who
buys financial instruments and/or securities and who commits to resell them
and the original seller, the person who sells the financial instruments and who
commits to repurchase titles from the same kind (Ungureanu, Baias, Chelaru,
Constantinovici, Macovei, (2012): 1089).
2 And conjunction connects grammatically coordinate words, phrases, or clauses see

Dicionarul explicativ al limbii romne (The Explanatory Dictionary of the Romanian Language) (DEX),
2nd ed., Univers Enciclopedic Publishing House, Bucharest, 1998, p.1055.
56
(Repo)
On the other hand, unlike the sales, the transfer in the case of the
repurchase agreement is double, in a way and in the opposite way, having as
object the financial instruments and the sums of money. The double transfer is
done between the same persons, at different maturities and for a settled sum3.
b) The object of the repurchase agreement4 consists of two successive
juridical operations: buying first financial instruments and/or securities trading
on the market5 and then reselling financial instruments and/or securities of the
same kind.
The literature unanimously considers that if there is no contrary
stipulation the repurchase agreement is applied the rules for the sales6. At the
same time, the validity of the repurchase agreement is also conditioned by the
compliance with some requirements specific for the object of the main
obligations of the parties (Dinc , (2013) :78).
The object of the obligation is represented7 by the services to which the
debtor commits, but, as it results from the definition of the repurchase
agreement, the object of the essential obligations of the original buy is to pay
immediately the financial instruments and/or securities and to resell to the
original buyer the financial instruments and/or securities of the same kind, and
the object of the essential obligations of the original buyer is to transfer the right
on the financial instruments and/or securities and to pay the settled sum.
The goods are objects derived from the essential obligations: financial
instruments and/or securities on the one hand and the payment of the price on
the other hand.
The financial instruments and/or securities have to be susceptible of
trading on the market, and it is not necessary to have stock exchange quotation.
If at the maturity the original buyer does not resell to the original seller
the financial instruments and/or securities of the same kind, but financial
instruments different from those established at the conclusion of the contract,
this is the case of objective novation8.
3 See Codul comercial adnotat (The Annotated Commercial Code), 2nd ed., vol.I, Tribuna Publishing
House, Craiova, 1994, p.133.
4 According to art.1225 para.(1) Civil Code: The object of the contract is represented by the
legal operation such as sale, lease, loan etc., established by the parties, as it results from the
totality of the contractual rights and obligations.
5 In compliance with art.2 pt.33 of Law no.297/2004 regarding the capital market, the securities
are: a) stocks issued by corporations and other equivalent securities, negotiated on the capital
market; b) bonds and other debt securities, inclusively government bonds with a maturity higher
than 12 months, negotiable on the capital market; c) any other common negotiable financial
instruments, which confer the right to purchase the securities by taking up shares or change,
leading to a clearing, except for the payment instruments.
6 See Codul comercial adnotat (The Annotated Commercial Code), op. cit., p.10.
7 See art.1226 para.(1), Civil Code
8 In compliance with art. 1609 para.(1) Civil Code, Novation takes place when the debtor
contracts against the creditor a new obligation, which replaces and extinguishes the initial
obligation.
57
Bujorel FLOREA
The repurchase agreement is included in the financial guarantee

contracts with transfer of property9, thus the provider of the guarantee transmits
to the beneficiary the full property on the guarantee, with the view of
guaranteeing or insuring in a different way than that of carrying out guaranteed
financial obligations (art.2 lett.e) of G.O. no.9/2004).
As concerns the obligation of the original buyer to pay the price
(immediate payment), this cannot be affected by modalities. The immediate
payment belongs to the essence of the repurchase agreement, which means that
including a term in the contract would lead to creating another juridical nature
and the rules specific to the repo would not be applied anymore.
At the same time, the obligation of the original buyer to resell the
financial instruments and/or securities of the same kind is affected by a
suspensive term, while the repurchase agreement is not affected by a suspensive
condition.
The promise to resell made by the original buyer, at a price previously
established, gives the right to the original seller to request to the court to
pronounce a sentence meant to replace the contract of resale, in the case when
the original buyer does not fulfill in time the obligation to resell.
c) Another element specific to the repurchase agreement is represented
by the moment when are fulfilled the obligations of immediate payment of the
financial instruments by the original buyer and of payment of the sum settled by
the original seller.
Thus, the immediate payment of the financial instruments and/or the
securities has to be done by the original buyer at the conclusion of the
repurchase agreement, and the price cannot be affected by modalities, as we
have already mentioned.
At the same time, the payment of the settled sum representing the
counter value of the reselling of the financial instruments and/or the securities
of the same kind will be done at the value settled at the moment of the
conclusion of the repurchase agreement.
The price established at this moment is meant to prevent the
fluctuations of the financial instruments according to their market value.
We consider that from the text of art.1772 Civil Code it results,
unequivocally, the fact that in the case of the repurchase agreement there are
two prices: the first one, the immediate payment, paid by the original buyer to
the original seller at the date of the conclusion of the contract, and the second,
the settled sum which the original seller commits to pay to the original buyer at
9 In compliance with O.G. nr.9/2004 regarding certain financial guarantee contracts, published
in The Official Journal of Romania, Part I, no.78 on 30.01.2004, which transposes the
directive 2002/47/EC of the European Parliament and of the Council on 6 June 2002
concerning the financial guarantee contracts.
58
(Repo)
the date of the maturity (Crpenaru, (2001) :459); Petrescu-Ercea,
(1948) :77,78,79,80).
2. THE NOTIONS OF REPO AND REVERSE REPO

The repurchase agreement finds its application in the situation in which
a person, owning some financial instruments, needs urgently cash, but does not
want either to alienate them for good, or to gage them, because he would obtain
a disadvantageous loan in comparison with the value of the financial
instruments.
Consequently, that person can choose to conclude a repurchase
agreement. On the basis of this contract the person (the original seller) sells
financial instruments to another person (the original buyer) for a certain
nominal sum (immediate payment), which he receives at the moment of the
conclusion of the repurchase agreement. Through the same convention, the
parties agree that, at a certain date, the original buyer should resell to the original
seller the same number of stocks, of the same kind, for a settled sum, usually
higher than the nominal price. The difference between the settled sum paid by the
original buyer at the maturity and the immediate payment, given by the original
buyer at the conclusion of the contract is called repo. The repo behooved to the
original buyer and represents the profit (Crpenaru, Stnciulescu, Neme (2009):
408), the reward10 for the fact that he was deprived of his money capital for the
period of time settled in the repurchase agreement.
According to the above mentioned, the repurchase agreement offers
advantages for the both contractual parties. Thus, the original seller obtains a
sum of money (immediate payment) for his financial instruments that is higher than
in the case of a gage contract and at the same time he does not renounce at
them definitively. At his turn, the original buyer has the advantage that he keeps
the repo and that for a period of time he becomes the owner of the property
right on the financial instruments and/or securities and can exercise absolutely
the attributes of the property (Vivante (1912): 260).
The reverse repo is the reverse operation of the repo and emerges and is
carried out when a person needs financial instruments and/or other securities
for a certain period of time (Crpenaru, Stnciulescu, Neme (2009): 408). In
this case that person (the original buyer) buys those financial instruments and
commits to resell after a certain period of time, at a settled price, to the person
who sold them (the original seller) the same amount of financial instruments, of
the same kind.
In this case, the operation is in the advantage of the owner of the
financial instruments (the original seller), who will sell them at a nominal price,
but at the maturity will pay the settled sum to the original buyer that cannot be
lower than the nominal price.
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Bujorel FLOREA
The difference between the nominal price (immediate payment) and the
price of the resale (settled sum) is called reverse repo (Finescu, 2002): (423).
Such a contract is governed by the same legal norms like in the case of
the repurchase agreement (Petrescu-Ercea, (1948): 76).
In conclusion, the repurchase agreement is concluded in the favour of
the person who agrees to give a helping hand to the other person in urgent
need, which cannot be postponed. Consequently, in the case when the original
seller needs sums of money for solving certain necessities, then he has to
support the repo in the favour of the original buyer.
Symmetrically, if the original buyer needs financial instruments and/or
securities, then he will support the reverse repo in the favour of the original
seller.
In other words, the person who has the immediate need will pay more
(the repo or the reverse repo, according to the case) to the other party, because
the latter agreed to the conclusion of the repurchase agreement.
3. THE DIFFERENCES BETWEEN THE REPURCHASE

AGREEMENT AND OTHER CONTRACTS
The specific features of the repurchase agreement are useful to
differentiate this contract from other similar contracts: contract of sale with
buyback clause, gage contract and bailment agreement.
Thus, in comparison with the contract of sale with buyback clause, the
repurchase agreement differentiates first of all through the fact that the option in
the case of the former is a facility given to the seller (Florea, (2013) :88;
Crpenaru, Stnciulescu, Neme (2009) :60), which he can exercise or not, while
the resale of the financial instruments and/or securities in the case of the repo is
compulsory.
Secondly, in the case of the contract of sale with buyback clause the object is
represented by the same good or right transmitted to the buyer, while in the
situation of the repurchase agreement the object of the resale is not represented
by the same financial instruments purchased from the original buyer, but by
other financial instruments and/or securities of the same kind (Ungureanu,
Baias, Chelaru, Constantinovici, Macovei, (2012) :1611).
Thirdly, the two contracts differ through their legal nature. While sale with
buyback clause is a contract affected by a resolutory condition (Safta-Romano
(1999) :59, 60; Crpenaru, Stnciulescu, Neme (2009) :60), the repurchase
agreement is the expression of a sale, doubled by a promise of resale
(Ungureanu, Baias, Chelaru, Constantinovici, Macovei, (2012) :1611).
Fourthly, the buyback in the case of the contract of sale is done at the
price settled by the seller (to which are added the expenses for the conclusion of
the contract and the formalities of publicity, if the case). On the contrary, in the
situation of the repurchase agreement, the resale price is a sum settled by the
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(Repo)
parties, which is different from the nominal price that the original seller received
at the conclusion of the contract.
Eventually, the two contracts differ as regards their duration. Thus, in the
case of the sale, the buyback option has to be expressed in a term of maximum
5 years since the date of the conclusion of the contract, while the resale of the
financial instruments in the case of the repurchase agreement is not conditioned
by a certain term, but has the maturity at the date established by the contractual
parties.
As concerns the gage contract11, the ground for the differentiation is the
fact that at this contract the creditor obtains the possession of the pledged good
and has to return the same thing, while the original buyer does not have to resell
the same financial instruments and/or the same securities, but only of the same
kind.
Also, in the case of the gage contract, the creditor who possesses the
good is not liable for its loss when the cause is a force majeure, the age or the
normal and/authorized use of the good12. On the contrary, in the situation of
the repurchase agreement, the original buyer, who obtains the property of the
financial instruments and/or the securities, supports the risk of their loss, like
any owner.
The differentiation of the repurchase agreement from the bailment
agreement is clarified by the text of law that regulates the latter. Thus, in
compliance with art. 2146 Civil Code, the bailment agreement is the free
contract through which a party, called bailer, gives a movable or immovable
asset to the other party called bailee, to use this good, with the obligation to
return it after a while.
Hence, a first difference between the two contracts is that the return of the
good in the case of the bailment is free, while in the case of the repurchase
agreement the resale of the financial instruments and/or of the securities takes
place on the condition of an immediate payment, being an onerous contract.
The second difference consists of the fact that the object of the bailment is a
good that has to be returned in its individuality, while the object of the resale of
the repurchase agreement is represented by other financial instruments and/or
securities.
The third difference consists of the fact that in the case of the bailment can
be returned also a chattel, while the repurchase agreement can have as object
only goods of such a nature.
12 See art.2490, Civil Code.
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Bujorel FLOREA
4. THE LEGAL NATURE OF THE REPURCHASE AGREEMENT

In the legal literature there is no unanimous opinion regarding the legal
nature of the repurchase agreement.
Thus, one opinion (Petrescu-Ercea, (1948) :77,78,79,80) considered that
the legal nature of the repurchase agreement is of the type of a guaranteed loan
having as object certain financial instruments and in which the original seller is
the guarantor debtor, while the original buyer is the garantee creditor.
This orientation was criticized (Crpenaru, Stnciulescu, Neme
(2009):409) with the argument that in the case of the guaranteed loan, the
guarantee creditor does not become the owner of the financial instruments
received in guarantee and consequently cannot use them. On the contrary, in the
repurchase agreement, the original buyer can dispose exclusively of the financial
instruments, of the capacity of owner, being forced to resell at the maturity
financial instruments of the same kind.
Another opinion (U (2012):163) considered that in the case of the
repurchase agreement there are two sales: an immediate one, pure and simple
and the other one affected by a term.
Eventually, in the doctrine (Ungureanu, Baias, Chelaru, Constantinovici,
Macovei, (2012): 1811), it was expressed the opinion according to which the
repurchase agreement has the legal nature of a single sale, doubled by a promise
of resale, for a price settled before.
Most of the authors consider that the two operations (sale and the
promise of sale) do not have to be separated as they form a whole, being the
inseparable elements of a unique contract concluded between the same persons
and having the same object (financial instruments of the same kind). The
mentioned features made this contract to be considered a sui-generis contract (U
(2012):163).
The notion of sui-generis (Crjan (2013):188) 13 is used rarely in the
doctrine and in the content of the legal regulations. This designates the
specialty, originality, particularity and unicity (Anechitoaie, Casapu, Stan
(2007) :33) of a legal institution. The legal nature of the repurchase agreement as
a sui-generis contract expresses the juridical features of a kind of contract
different from any other (C. Toporu, E. Creu (2013) :71).
5. THE JURIDICAL CHARACTERISTICS OF THE REPURCHASE

AGREEMENT
a) The repurchase agreement is a synallagmatic contract as the obligations
of the parties are interdependent and mutual. Thus, the original seller sells the
financial instruments and/or the securities in considering the immediate
payment that he will receive from the original buyer and vice versa. The non-
13 From Latin: Of its own kind/genus.
62
(Repo)
execution of the obligation by one of the parties would lack of cause the
obligations of the other one (Stoica, (1997): 22, 23).
At the same time, the mutual obligations of the parties have the source
in the same repurchase agreement and are not generated by different sources.
b) Repurchase agreement is an essentially onerous contract as each party
aims at obtaining a gain equal to the deprived patrimonial value (Dinc, (2013):
25).
Therefore, the original seller aims at obtaining immediately a sum of
money because he needs cash, on the condition of regaining the property on the
financial instruments. The original buyer, at his turn, aims at capitalizing
advantageously the cash available liquidities, cashing the repo.
c) The repurchase agreement has commutative character because, at the
moment at its conclusion, it is certain both the existence of the rights and
obligations and their extent. The certitude of the extent of the rights and
obligations derive from the fact that the random element does not govern
them, as long as the sale with the immediate payment of the financial
instruments, as well as the resale at the maturity are done at the quantum
established at the moment of the conclusion of the contract.
d) The repurchase agreement is a real contract as it is concluded validly
only if the agreement of will is accompanied by the return of the financial
instruments and/or the securities; if these are registered shares it is required to
be fulfilled the formalities necessary for transmitting them. The only exception
aims at the situation of the shares to bearer, if they are already in the possession
of the acquirer, then the repurchase agreement is valid without the material
consignment of the financial instruments.
e) As the repurchase agreement involves two operations of sale, it has
the character of a translative contract of property. The contract operates a double
transfer of the property right on the financial instruments and/or the securities
that represented its object.
The two transfers take place at different moments: the first transfer
occurs at the date when the contract is concluded, while the second at the term
established in the contract. In the first transfer, the transmitter is the original
seller, and the acquirer is the original buyer, while in the second transfer the
operation is the other way round with other financial instruments of the same
kind.
6. THE CONDITIONS OF VALIDITY OF THE REPURCHASE

AGREEMENT.
In order to be validly concluded the repurchase agreement has to
comply with some conditions (Crpenaru, Stnciulescu, Neme (2009): 409; U
(2012): 164), such as:
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Bujorel FLOREA
a) it should be an agreement between the original seller and the original

buyer, as regards the sale with immediate payment and the resale at a certain
maturity;
b) the manifestation of the agreement as concerns the sale and resale
between the same persons should take place simultaneous, and not at different
intervals of time;
c) the object of the sale and resale is represented by the financial
instruments and/or securities trading on the market;
d) the resold financial instruments and/or securities should not be the
same with those that represented the object of the sale, but only of the same kind;
e) the sold financial instruments and/or securities have to be effectively
remitted by the original seller to the original buyer, except for the shares to
bearer, if they are in the possession of the acquirer;
f) two prices of the financial instruments and/or securities should be
mentioned in the contract: one representing the value of the titles transmitted by
the original seller to the original buyer (immediate payment) and another one
designating the value of the financial instruments and/or securities of the same
kind (the settled sum), which will be resold by the original buyer the original
seller at the maturity.
7. THE EFFECTS OF THE REPURCHASE AGREEMENT.

Like any other synallagmatic contract, both parties assume obligations,
these being mutual and interdependent. As the repurchase agreement is a sui-
generis contract, according to the above mentioned, its effects are special. They
aim mainly at: the double transfer of property on the financial instruments
and/or securities; the transmission of the accessory rights; the obligation of the
original buyer to exercise the option; the obligation of the original seller to give
to the original buyer the amounts of money necessary for making the payments.
7.1. The transmission of the property right on the financial instruments

and/or securities.
As a double translative contract of property, the repurchase agreement
requires that both parties should transfer the property right on the financial
instruments and/or securities that represent its object.
The transfer operates at distinct moments (Crpenaru, Stnciulescu,
Neme (2009): 410) at the date of the agreement the first transfer occurs, when
it is transmitted the property right on the financial instruments and/or securities
from the original seller to the original buyer, and at the maturity the second
transfer takes place the other way round, from the original buyer to the original
seller, on some financial instruments and/or securities of the same kind. Both
transfers are subject to the rules of common law.
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(Repo)
7.2. The transmission of the accessory rights.
At the date of the transfer of the right on the financial instruments
and/or securities from the original seller to the original buyer, there are also
transmitted, if there is no other contrary stipulation, the accessory rights
conferred by them (art.1773 Civil Code).
The right to collect the fruits produced by the financial instruments
and/or securities is a consequence of the transfer of property right on these
goods, conferring the prerogative to use them. Thus, according to art.1692 Civil
Code, if it was not established otherwise, the fruits of the sold good behooved
to the buyer since the day of obtaining the property.
Therefore, the interest and the dividends that reached the maturity
during the repurchase agreement will be collected by the original buyer, if the
parties did not settle otherwise.
7.3. The obligations of the original buyer to exercise the option.

Although it may seem a paradox the fact that the same effect produced
by the repurchase agreement for the original buyer is formulated by the
lawmaker both like right and obligation, the things are not at all confusing.
Thus, in compliance with art.1774 para.1 Civil Code (The obligation of the
original buyer to exercise his option), the original buyer has the obligation to
exercise his option upon the original seller during the repurchase agreement, if
the financial instruments grant such a right, under the conditions of the special
law.
It is natural to ask the question: is the original buyer the debtor of the
obligation to exercise his option conferred by the financial instruments or is he
the owner of the right to exercise that option? The answer is very simple: the
right to option belongs to the original seller, emerged from the special law, and
is transmitted to the original buyer, temporary, together with the financial
instruments. During the repurchase agreement, the original buyer has the
obligation to exercise the right of option of the original seller, granted by the
financial instruments. In other words, the interest that the original buyer should
exercise the right to option is of the original seller (Ungureanu, Baias, Chelaru,
Constantinovici, Macovei, (2012): 1814).
7.4. The obligation of the original seller to make available to the original
buyer
The necessary funds derives from his interest that the latter should exercise
the right conferred by the transmitted financial instruments during the repo.
Consequently, the original seller has to make available to the original buyer the
funds necessary to exercise the right to option, with at least three days before
the maturity. In the case in which the original seller does not fulfill this
obligation, the original buyer has, at his turn, to sell the right to option on the
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Bujorel FLOREA
behalf and on the expense of the original seller, under the conditions of the
special law (art.1774 para.(2) Civil Code).
7.5. The obligation of the original seller to make available to the original
buyer the amounts of money necessary for making the payments
In the account of the financial instruments and/or securities has to be
fulfilled if, during the repurchase agreement, emerges the obligation of making
the payments. Hence, in compliance with the provisions of art.9 of Law
no.31/199014, in the situation of an integral and simultaneous taking over of the
registered capital by all the subscribers of the constitutive act, the difference
between the subscribed capital will be paid after the date of matriculation, in a
term established by the text of law15.
If the obligation to make the payments reaches the maturity during the
repurchase agreement, the original buyer, who is the owner of the stock, will
have to make the payments using the necessary sums that the original seller has
to provide with at least three days before their maturity.
For the left payments, the original buyer can be summoned, according to
art.100 para.(1) and para.(2) din Law no.31/1990.
If the original seller does not fulfill hi obligation to provide the original
buyer the amounts of money necessary for the payments, with the view to be
protected from the summon that the society can claim against him, the original
buyer can proceed to the forced liquidation of the contract [art.1175, 2nd sentence,
Civil Code]. The forced liquidation of the repo means that to the original buyer
will be returned by the original seller the sum paid for the financial instruments
and/or securities as well as the repo premium. In exchange the original seller
will receive the stocks and will become the debtor of the obligation to make the
payments that reached the maturity (Ungureanu, Baias, Chelaru,
Constantinovici, Macovei, (2012): 1815) .
8. LIQUIDATION, PROROGATION AND RENEWAL OF THE

REPURCHASE AGREEMENT.
The liquidation of the repurchase agreement means its termination as a
consequence of its effects (art.1776 para.(1) Civil Code). The operation of
liquidation takes place the second day after the maturity. It consists of the fact
that the original buyer transmits the property on some financial instruments
and/or securities of the same kind, and the original seller will pay the settled
sum.
14 Republished in The Official Journal of Romania, Part I, no.1066 on 17 November 2004 with the
further completion and amendments.
15 For the shares issued to capital contribution in cash, the subscribed registered capital will be
paid in 12 months since the date of the matriculation of the society, and for the shares issued for
a contribution in kind, in at most 2 years since the same date.
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(Repo)
Although the current Civil Code does not stipulate anymore the
possibility of prorogation of the repurchase agreement, like the old regulation did16, we
consider that its prorogation is possible with the agreement of the parties.
The parties could be interested to prorogate the repurchase agreement,
either because the original seller would need more money for a new period of
time, and the original buyer would want to capitalize the sums of money, or
because any party expects that at the new term of prorogation of the contract
the difference of exchange rate should be in his favour.
The prorogation of the repurchase agreement involves the fact that the
operations should be done on financial instruments of the same kind and at the
same amount, and the price of the resale should be the same like that
established in the initial contract.
The renewal of the repurchase agreement is a legal operation distinct from
prorogation (Eftimie (2012): 140), which can be done at the maturity, after
liquidation. Thus, according to art. 1776 para.(2) Civil Code, if at the maturity of
the repurchase agreement, the parties liquidate the differences, making the
payment and renewing the repo, either on some instruments and/or securities
that differ by their amount or kind, or on other price, then it is considered that
the parties concluded a new contract.
The difference between the prorogation of the repo and its renewal is
obvious: at the prorogation of the repurchase agreement the object of the
contract remains the same like in the original, initial contract and it is not
necessary a new remittance of the goods that represent the object of the
repurchase agreement, while at the renewal it is needed a new effective
consignment of financial instruments and/or securities from the original seller
to the original buyer.
9. CONCLUSIONS.
In the legal framework of the special civil contracts, the repurchase
agreement has its own characteristics, which define it as such. This study
presented some of these features. The analysis invites to further debates, the
author being convinced that any new regulation is not meant to throw away the
old regulations, but on the contrary, it must preserve what is traditional and
valid, in order to harmonize the national past with the European present17.
16 See art.75 in Codul commercial (Commercial Code), abrogated by the coming into force of Law
no.287/2009 regarding the Civil Code.
17 In this regard see M.Duu, Cuvnt nainte. Noua legislaie penal n ecuaia cercetrii stiinifice
(Foreward. The New Penal Legislation in the Equation of the Scientific Research), a study
presented at the International Conference Noua legislaie penal etap important n
dezvoltarea dreptului romn (The New Penal Legislation An Important Step for the
Development of the Romanian Law), 21 March 2014, organized by Acad.Andrei Rdulescu
Institute of Scientific Research of the Romanian Academy, p.8.
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Bujorel FLOREA
BIBLIOGRAPHY
St. D. Crpenaru, (2001) Drept comercial romn (The Romanian Commercial Law), All
Beck Publishing House, Bucharest.
R. Dinc, (2013). Contracte civile speciale (Special Civil Contracts), Universul Juridic
Publishing House, Bucharest.
M. Eftimie, (2012), in the collective work Noul Cod civil. Comentarii, doctrin i
jurispruden (The New Civil Code. Comments, Doctrine and Jurisprudence),
vol.III, art.1650-2664, Hamangiu Publishing House, Bucharest.
I. M. Finescu, (2002), Drept comercial romn (The Romanian Commercial Code), vol.I,
All Beck Publishing House, Bucharest.
B. Florea, (2013), Drept civil. Contractele speciale (Civil Law. Special Contracts),
Universul Juridic Publishing House, Bucharest.
C. Petrescu-Ercea, (1948), Curs de drept comercial (Commercial Law Course), vol.I,
Lito Schildkrant Publishing House, Cluj.
D. Ungureanu (2012), Contractul de report (The Repurchase Agreement), in the
collective work, eds. Fl. A. Baias, E. Chelaru, R. Constantinovici, I.
Macovei, Noul cod civil. Comentarii pe articole (The New Civil Code. Comments
on Articles), C.H.Beck Publishing House, Bucharest.
L. U, (2012), Contracte speciale n noul Cod civil (Special Contracts in the New Civil
Code), Hamangiu Publishing House, Bucharest.
C. Toporu, E. Creu, (2013), Dicionar de cuvinte i expresii latineti i eline n contexte
literare romneti. Abrevieri latineti (Dictionary of Latin and Greek Words and
Phrases in Romanian Literary Contexts. Latin Abbreviations), Humanitas
Educaional Publishing House, Bucharest.
E. Safta-Romano, (1999), Contractele civile. ncheiere, executare, ncetare (Civil Contracts.
Conclusion, Execution, Termination), Polirom Publishing House, Iai.
V. Stoica, Rezoluiunea i rezilierea contractelor civile (Resolution and
Annulment of the Civil Contracts), All Educational SA Publishing
House, Bucharest, 1997.
Vivante, Trait Le dr. Com., Ed. Giard, Paris, 1912, vol.IX, pag.260, apud Codul
comercial adnotat.
Article
C-tin Anechitoaie, M. Casapu, M. Stan, (2007)Drepturile sui-generis ale fabricanilor
de baze de date (I) (The Sui-generis Rights of the Database Producers) , in Revista
Romn de Dreptul Proprietii Intelectuale no.2.
M. Duu, (2014) Cuvnt nainte. Noua legislaie penal n ecuaia cercetrii tiinifice
(Foreward. The New Penal Legislation in the Equation of the Scientific Research), a
study presented at the International Conference Noua legislaie penal
etap important n dezvoltarea dreptului romn (The New Penal Legislation
An Important Step for the Development of the Romanian Law), 21
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March 2014, organized by Acad.Andrei Rdulescu Institute of
Scientific Research of the Romanian Academy, p.8.
A. Nicolae, N. Crciun, (2004), Consideraii asupra valabilitii actuale a contractului de
vnzare-cumprare cu pact de rscumprare (Considerations on the Current Validity
of the Purchase Agreemnt with Buyback Clause), in Dreptul no.1.
Dictionary
Dicionarul explicativ al limbii romne (1998), The Explanatory Dictionary of the
Romanian Language (DEX), 2nd ed., Univers Enciclopedic Publishing
House, Bucharest.
L. Crjan, (2013), Dicionar de cultur juridic latin (Dictionary of Latin Juridical
Culture), Universitar Publishing House, Bucharest.
Legislation
Codul comercial adnotat (The Annotated Commercial Code), 2nd (1994), ed., vol.I,
Tribuna Publishing House, Craiova.
O.G. nr.9/2004 regarding certain financial guarantee contracts, published in
The Official Journal of Romania, Part I, no.78 on 30.01.2004, which
transposes the directive 2002/47/EC of the European Parliament and
of the Council on 6 June 2002 concerning the financial guarantee
contracts.
69
Bujorel FLOREA
70
Historical Highlights On The Married Womans Incapacity In Romanian Law
HISTORICAL HIGHLIGHTS ON THE MARRIED

WOMANS INCAPACITY IN ROMANIAN LAW
Irina APETREI1
Abstract
It is well-known that in human history the relations between women and men have
not always been under the sign of equality.
Thus, during matriarch the mother established the rules within the family, while
patriarchy has given man the prerogatives of the majority.
The rights that the man has had on the woman and children have evolved throughout
history, according to the different stages of social development and implicitly to the rules of those
historical periods.
This paper analyzes the married woman's incapacity in the regulation of the
Romanian Civil Code of 18642, which has as primary source of inspiration the French Civil
Code (Napoleons Code) 1804.
The Constitution of 19483 brought important changes in family relationships,
through the consecration of new principles, among which that of gender equality.
Subsequently, the equality between women and men in all areas of social life has left
its mark on the relations between spouses, so that the legislative changes to the Civil Code and
afterwards to the Family Code of 19544 balanced the relationship between spouses.
The current Romanian Civil Code5, which entered into force on October 1, 2011,
reaffirms and strengthens the equality between spouses, both in terms of relations between them
and of the exercise of parental authority.
Keywords:
married womans incapacity, marriage approval, the Civil Code of 1864
1 PhD Univ.Lecturer Irina Apetrei, Faculty of Law, Mihail Koglniceanu University Iasi;
contact: ireneapetrei@yahoo. com
2 The Civil Code of 1864 (or Cuzas Civil Code), published in Official Gazette no. 271 of
December 4, 1864, entered into force on December 1, 1865, as amended and supplemented,
repealed after the entry into force of the current Civil Code.
3 Published in the Official Gazette, Part I, no. 87 bis of April 23, 1948 and entered into force on
the same date. It was implicitly repealed on September 24, 1952, after the entry into force of the
Constitution of 1952.
4 Law no.4/1953 on the Family Code, published in Official Gazette no. 1 of January 4, 1954, as
amended and supplemented, repealed after the entry into force of the current Civil Code.
5 Law no.287/2009 Law on the Civil Code, published in the Official Gazette of Romania, Part I,
no.511 of July 24, 2009.
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Irina APETREI
1. INTRODUCTORY ARGUMENTS
As it is well-known that the understanding of the present is not
complete without a thorough analysis of the past, at a time when many countries
in the world adopt controversial legislation in matters of same-sex marriage and
even of adoptions made by homosexual couples, we believe that a travel back in
time regarding the legal relationship between spouses, as well as their
relationships with their children would offer the possibility of assuming certain
viewpoints based on historical considerations regarding certain bold regulations
in the field of family relations.
While currently legal relations between spouses are under the sign of full
equality, the history of these relations was marked by deep inequality between
men and women both in terms of their relationships and in terms of their
relationships with their children. In this respect, we considered it useful to carry
out an analysis of the married womans incapacity in the regulation of the
Romanian Civil Code of 1864, and to point out the further development of
property relations between spouses, reaching the current regulation of the Civil
Code (Law no.287 / 2009).
According to the Civil Code of 1864 the wife was in a position of
subordination to her husband, a relation consecrated by art.195, according to
which "man is obliged to protect the woman and the woman to listen to the
man."
Considering that the husband is the head of the family, man exercises
parental power over children and under the same quality, his authority is
exercised over his wife.
In the classical doctrine of civil law (Hamangiu, Rosetti-Blnescu,
Bicoianu (1996):490) the marital power was regarded as an abstract legal concept,
developed as a result of a long historical development. It is appreciated
(Hamangiu, Rosetti-Blnescu, Bicoianu (1996):490) that although there was no
reason for the spouses not to be equal to each other during marriage, the
historical evolution of these relations was of paramount importance for the
purposes of acquiring a position of subordination of woman to man, on the one
hand, and for the idea of the married womans incapacity, on the other hand,
due to the protective role of the man.
Also, it was considered (Hamangiu, Rosetti-Blnescu, Bicoianu
(1996):490) that there was a practical reason which required man to take a
decision in the event of a conflict between him and his wife: if it had been
found that spouses were in a position of full equality, it would have been
assumed that the differences between them had to be resolved by a superior
forum which could only be the court, but it was considered that the judicial
intervention in resolving conflicts between spouses was deemed incompatible
with the institution of marriage.
72
Such were interpreted the provisions of Article 195 of the Civil Code,
under which the wife "had to obey" her husband.
2. THEORY OF THE MARRIED WOMANS INCAPACITY

The married womans incapacity, as was established in the Civil Code of
1864, had its origins in the old French law, under which a married woman was
"en puissance de mari" and her husband as seigneur et matre de la
communaut" had very extensive powers regarding the administration of
common property. The French Civil Code of 1804, the main source of
inspiration for the previous Romanian Civil Code, founded the theory of the
married womans incapacity on the woman's lack of experience and on her need
for protection.
Some authors of the classical doctrine of Romanian civil law
(Alexandresco, (1925):737) even thought that the relations between spouses
were so disproportionate, that man was hailed as an absolute ruler, and woman
almost as a slave.
In fact, art. 950 of the Civil Code of 1864 listed the wife amongst those
unable to contract. According to the 1864 legislature incapacity represented the
general rule6 of public policy regarding married women and their capacity the
exception, to the extent that the law contained a special provision. Article 1224
of the Civil Code allowed the conclusion of any marriage agreements between
spouses, provided that it did not affect the rights of the husband as head of the
family. The judicial practice of the time (Hamangiu, Rosetti-Blnescu,
Bicoianu (1996):494) 7 ruled that husbands could partially derogate from the
rules regarding the wifes incapacity within the restrictions of the law, but could
never fully remove it. In this regard, they conceived the provisions of art.206 of
the Civil Code according to which a general approval given to the wife by the
husband would have been sanctioned by nullity.
The limits of the married womans incapacity varied according to the
matrimonial regime that spouses would chose. Thus, in case of the dotal8
regime, incapacity was more extensive (the wife had the right to administer, use
6 The married womans incapacity was regulated within art. 197-208 of the Civil Code.
7 Cas.I, April 29, 1916, J.Rom. 1918, n.390.
8 The dotal regime was established within art.1233- 1293 of the Civil Code, being the only
conventional regime that the spouses could adopt in the regulation of the Civil Code of the
1864, the common law matrimonial property regime is that of the separation of property.
According art.1233 of the Civil Code, the dowry was the "wealth that is brought to man by or
on behalf of the woman to help him support the tasks of marriage". The husband exercised
alone the right of management and use over the dotal property, while the wife could dispose of
the movable property from the dowry only with the husband's approval, the immovable
property being inalienable and imprescriptible.
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Irina APETREI
and dispose of the paraphernal property9), while in case of the matrimonial

regime of separation of property the wife enjoyed greater freedom.
In fact, the married womans incapacity produced two important effects:
the need to obtain approval from the husband in order to conclude a valid legal
document and, where appropriate, the relative nullity of the legal documents of
the wife concluded without approval.
In matters of extrajudicial documents (concluded outside of the court),
the wife needed the husbands approval regarding the documents of
management of her own property (a lease or hire agreement), and also in order
to sign legal documents with more important effects (concluding a loan
agreement, suretyship transaction, etc.). As an exception to this rule, according
to art.1265 of the Civil Code., the wife who has acquired the separation of
goods by court no longer needs the husbands approval, as she was free to
manage her own property.
Wifes incapacity was also applied to legal documents concluded by her
with the husband or in this case the approval implied the participation of the
husband in the preparation of documents, according to article 199.
Regarding trade relations, the wife needed her husband's consent to
exercise a separate trade (art. 15 and 16 of the Commercial Code.). Once the
wife obtained her husband's approval to this effect, she could stand alone in
court and could assume obligations regarding her trade, for which she could
mortgage and alienate all her assets10 without her husbands consent.
In matters of documents of disposal, a married woman could not
alienate, mortgage or grant a dismantling of her real property (the establishment
of a right of usufruct or servitude) or acquire for good and valuable
consideration or free of charge, without her husband's participation in the
conclusion of the document or without his written consent.
Thus, art.199 of the Civil Code forbade the married women to alienate
her property free of charge by means of legal documents concluded between the
living11. Regarding the legal documents of alienation of movable property for
good and valuable consideration, the classical doctrine (Hamangiu, Rosetti-
Blnescu, Bicoianu (1996): 497) expressed the idea that the husbands
approval was mandatory, with the exceptions12 provided by law.
9 Property that was created as dowry was called paraphernal property.

10 According to art.16 of the Commercial Code, the dotal property could be mortgaged or
alienated by the merchant woman, only in cases and respecting the forms provided by the Civil
Code.
11 These provisions related to the paraphernal property (if the dotal regime is adopted) and not
to dotal property, which were inalienable and to the wifes property, in case of the adoption of
the regime of separation of property.
12 For example, the exception provided by art.1265 regarding the wifes capacity of separation of
property regime that allowed the married women to dispose of her movable property, for the
alienation of the immovable property the consent of her husband being required.
74
The same art.199 forbade the wife to acquire property without her
husband's approval, without making any distinction between legal documents
free of charge and legal documents for good and valuable consideration. Also,
the wife could not get without the approval of her husband, any payment owed,
regardless of the nature of such payment (capital or income). In this sense, for
the validity of the receipt as proof of payment, spouse's signature was necessary.
However, to pursue a profession, the wife needed her husbands
approval.
Regarding the judicial documents under art.197 of the Civil Code.,
"woman cannot sue without the husband's approval" (the rule was applicable
irrespective of the matrimonial regime chosen by the spouses). Starting from the
idea of the experience and protection of which the wife had to benefit from her
husband in the classical legal literature it was appreciated that (Cantacuzino,
(1998) :708) if the wife had the procedural capacity of defendant or intervener,
she needed marriage approval, regardless of the competent court or the stage of
the dispute. Marriage approval had a special character, being valid only for the
case concerned and not for other dispites. Where the wife filed a legal claim
against her husband she needed his approval or, in case of refusal the consent of
the court except in case of the divorce proceedings that would have been
submitted by the wife.
But marriage approval was not necessary for the merchant wife who
could stand alone in such a dispute, provided that the dispute may extend to the
commercial activity of the woman.
3. EXCEPTIONS TO THE INCAPACITY RULE

The married womans incapacity was smaller compared to the incapacity
of others in the same category of incapable individuals (minors and the ones
under court ban). Thus, the theory of the married womans incapacity, analyzed
above, knew exceptions arising from the express legal provisions or from rules
relating to persons lacking legal capacity.
In matters of extrajudicial documents, first of all, the will, a legal
document which by its nature took effect only after the death of the married
woman, when the marriage was also terminated, was an exception to the theory
of the married womans incapacity. Therefore, it was considered that
(Hamangiu, Rosetti-Blnescu, Bicoianu (1996):500) "the powers of marital
authority could be infringed by the provisions of the womans independent and
uncontrolled will". Being able to dispose by the will alone, the married woman
could even cancel it, without the consent of her husband and cancel the
donation made to him during marriage.
Secondly, legal documents relating to the exercise of parental authority,
in cases where a husband could not exercise those powers (he was absent, he
was under court ban, he served a sentence of imprisonment, he was in a state of
mobilization or was deprived of parental rights) were also an exception to the
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Irina APETREI
rule incapacity. In these cases, the mother exercised parental authority alone,
including in economic matters regarding the stewardship on minors because she
acted in this case as the legal owner of their property, and not in her own name.
A third exception to the theory of the married woman's incapacity was
represented by the legal documents of conservation, documents which did not
harm the wife, but rather aimed to preserve or prevent the loss of her rights. In
fact, in principle, these documents could be concluded by the people deprived
of the legal capacity.
The fourth exception in question consists in the obligation of the wife to
account with her goods for the damages generated by her offenses and quasi-
offenses. Although the Civil Code of 1864 did not provide for such an
obligation, it results from the application by analogy of the rule established by
art. 1162 of the Civil Code regarding the minor, and also from the principle
established by art.998 of the Civil Code, according to which any person who
caused to another person any damage was required to repair it. In this matter,
the case law of the time, applying art.1159 of the Civil Code by analogy, held
that the mere statement of the woman that she was not married did not hold her
liable, however, if she had used deceptive means to create the impression that
she was not married, she was sanctioned with the impossibility of invoking the
nullity of the legal act concluded, estimating that the most appropriate solution
for the harm that could result from the cancellation of the document was to
prevent her from requesting the nullity of the legal act in question13.
The fifth exception to the wifes incapacity was represented by the
unjust enrichment, a principle enshrined in art.1164 of the Civil Code, under
which juveniles, those under court ban or married women who could pursue
legal action for rescission against legal documents that they have concluded, did
not refund the goods they received unless it was proved that they took
advantage of what was given to them (in the sense that their property would
have been increased).
A final exception in this matter was represented by business
management. According to art.991 of the Civil Code, the woman, whose affairs
were conducted by a third party negotiorum gestor, has to indemnify it for all useful
and necessary expenses that it did.
In criminal causes the wife did not need approval, unless it was the
injured party. While in civil matters the need of an approval was based on
considerations to protect the wifes rights and to control the civil actions which
she could exercise, in criminal cases public action was above the individual will.
If the wife was called by the injured party in civil court for damages or was itself
a civil party then she needed her husbands approval (Alexandresco, (1925):749;
Cantacuzino, (1998):708).
13 Ilfov Court, March 26, 1924, Pandectele Romne, 1924.2. 203, note by A.Strelicescu.
76
4. MARRIAGE APPROVAL AND JUSTICE APPROVAL

For the validity of the legal documents signed by the wife, the husband
could give her an express or implied approval.
In matters of extrajudicial documents the express approval should take
the written form (ad probationem) excluding therefore the possibility to prove the
approval by witnesses or presumptions, but being possible to prove it by means
of the husband's confession, or by oath(Cantacuzino, (1998):695). So, the
husband's approval as a document under private signature was sufficient, even if
the document that the wife had to conclude was a genuine one. Regarding
extrajudicial documents, the law allowed a single tacit approval - which resulted
from the husbands participation itself as party in the conclusion of the legal
document, binding himself together with his wife or jointly with her. If the
husband only assisted his wife in the conclusion of the document, without
signing that document as a Contracting Party, in the judicial practice it was
admitted that14 the tacit approval of the husband may result from acts such as:
participation of the husband together with wife in the acquisition of an
immovable property by public auction or the participation of the husband in the
deliberations of the family council who gave the guardian the permission to put
up for sale a property on which the wife was part owner in the form of
severalty.
Regarding the judicial documents, the law does not impose any formal
condition for the marriage approval, which means that the approval could be
express or tacit. It was appreciated, however, that in judicial matters a tacit
approval, resulting from the participation of the husband in the court together
with his wife was sufficient. When the husband filed a claim against his wife to
the court, it was presumed that the filing of the action signified the wifes
approval for her participation in the court pleadings.
Besides the legal documents of administration and disposition, with
significant effects on the married womans property and for the valid conclusion
of which she needed her husband's approval (for each legal document), the wife
concluded a series of current legal documents (such as for instance, daily
shopping) without the prior approval of her husband and which were not
disputed by anyone. Although in classical literature not all the authors (Colin et
Capitant (1920):637) have agreed in terms of the legal nature of those rights
granted in exceptional cases to the wife, most authors have concluded the fact
that she acted as the agent of her husband, being tacitly empowered by him.
Both the doctrine (Hamangiu, Rosetti-Blnescu, Bicoianu (1996):500)
and jurisprudence have established that the limitations of the tacit mandate were
not set by means of the presumed will of the husband, but were given by facts
such as: the wealth of spouses, procurement utility, social position of spouses,
etc..
14 High Court of Cassation, April 25, 1908, Bulletin of the High Court of Cassation, 1908, p.651.
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Irina APETREI
This legal fiction of the tacit mandate only lasted where the spouses had
a normal family life, but it could not work if the spouses were separated in fact.
As the husband was entitled to give his consent for the conclusion of
valid legal documents by his wife, he could also revoke it. Withdrawal of marital
approval was possible only if it was given before the conclusion of the legal
document, the revocation of approval being unconceivable if the husband
himself participated in the conclusion of the legal document concerned (in
which case the approval was given concurrently with the conclusion of the
document).
In exceptional circumstances, marital approval could be complemented
by justice approval. These cases concerned the refusal of the husband to give his
approval, the loss, the husbands incapacity (the husband was minor, placed
under court ban or under judicial control) or his conviction for an offense
classified as a crime.
5. THE SANCTION OF THE LACK OF MARITAL APPROVAL

Given that the aim of the marital approval was the completion of the
wifes incapacity, if she concluded legal documents without the consent of her
husband, those documents were sanctioned by nullity. While in the old French
law this was considered an absolute nullity, the Romanian Civil Code of 1864
has turned it into a relative nullity, transforming the principle of marital
authority, previously based on the womans inferiority into a principle of
defense of the interests of the family (Cantacuzino, (1998):695).
According to art.207 of the Civil Code, they could invoke nullity: the
married woman, her husband and the heirs of the married woman. It was also
found that women's creditors could exercise such action, as these were
economic interests.
Following the admission of the action for annulment, the third party
contractor was obliged to refund, instead the married woman was required to
refund only within the limits of the benefit achieved.
In case of the legal actions that the wife promoted without approval,
nullity could not be invoked without reforming the court judgment by ordinary
and extraordinary means of appeal.
Since this is a relative nullity, it could be subsequently covered by
confirmation or ratification by all persons who could invoke the nullity of non-
approved legal acts: the wife, the husband and the wifes heirs.
Regarding the limitation period, the action for annulment was
prescriptive within 10 years, a term that began from the dissolution of marriage
(Article 1900, paragraph 2 of the Civil Code), during marriage the limitation
being suspended as far as the wife is concerned. Regarding the husband, most
authors believed that the limitation period did not operate, the period running
from the date of conclusion of the legal document or from the date on which
the husband took notice of the conclusion of that document.
78
6. SUBSEQUENT LEGISLATIVE EVOLUTION OF THE

RELATIONSHIP BETWEEN SPOUSES
An important moment in the evolution of relations between spouses
was the adoption of the Constitution of 194815, which included regulations on
family relationships and which established the equality between spouses. Article
105 of the Constitution of 1948 expressly provided the revision of codes in
order to correlate them with the constitutional provisions and stated that from
the moment of its the entry into force all provisions of the Civil Code inimical
to the principle of equality between spouses in terms of exercise of parental
rights were repealed16. Also, the provisions restrictive to the woman on the
protection of incapable individuals were repealed.
The 1952 Constitution17 stated equality between men and women in all
areas of economic, political and cultural life and gave the opportunity of family
law to establish as a distinct branch of law, through the adoption of the Family
Code. The 1965 Constitution18 and the one from 199119 reiterated the principle
of equality between spouses.
Family Code was speaking about the equality between women and men
in the wording of Article 1, paragraph 4, art.25 and art.97 paragraph 1. The texts
enshrined the equality of spouses, both in terms of their personal relationships
and in terms of their economic relations and the equal exercise by parents of
their personal and property rights in relation to the minor children. Under the
Family Code, the woman who married at the age of 16, and under certain
conditions even at the age of 15, gained full legal capacity of exercise in order to
have equal rights with her husband (who could marry starting from 18 years
old). By Law no. 288/2007 Law amending and supplementing the Family Code
they eliminated discrimination on grounds of sex at the conclusion of marriage,
increasing the minimum age for the conclusion of marriage for women to 16
15 Published in the Official Gazette., Part I, no. 87 bis of April 13, 1948 and entered into force
on the same date implicitly abrogated on September 24, 1952 by the enactment of the
Constitution of 1952.
16 See Tr. Ionascu, Modificrile aduse Codului civil de principiul constituional al egalittii
sexelor (Amendments to the Civil Code by the Constitutional Principle of Gender Equality), in
Justiia Nou no.2/1950, p.58.
17 Entered into force on September 24, 1952, published in the Official Bulletin, no. 1 from
September 27, 1952 and repealed by the entry into force of the 1965 Constitution.
18 Entered into force on August 21, 1965, published in the Official Bulletin, no.1 from August
21, 1965 and repealed by the entry into force of the 1991 Constitution.
19 In its original form, the current Constitution of Romania was adopted in the Meeting of the
Constituent Assembly on November 21, 1991, published in Official Gazette Part I, no. 233
from November 21, 1991 and entered into force on December 8, 1991. It was amended and
completed by the Law revising the Constitution of Romania no. 429/2003 and republished in
the Official Gazette Part I, no. 767 of October 29, 2003.
79
Irina APETREI
years old and also by allowing both women and men20 to conclude their
marriage at that age (under certain conditions) 21, when both spouses acquired by
marriage full legal capacity. The current Civil Code reiterates almost identically
the previous regulation regarding the marriage of the minor (regardless of sex)
exceptionally from 16 years old22 and the acquirement in this way of the full
legal capacity [(Article 39 paragraph (1)].
Also, the current Civil Code expressly stipulates in art.258 paragraph (1)
that "Family is based on marriage between the spouses, on their full equality ...".
However, the new provisions of the Civil Code which establish the freedom of
choice of the matrimonial regime, the freedom of the married spouses under the
community of goods regime to conclude themselves documents of
conservation, management and acquisition of joint assets, joint exercise of
parental authority (including the divorce as a rule) and so on, come only in
support of strengthening the principle of equality between spouses and their
equality in relations with underage children.
CONCLUSIONS
Human history has been marked by the legal inequality between spouses,
an expression of the inequality between men and women in all areas of social
life and based on man's superiority from an economic point of view.
Taking over this legislative concept of the French Civil Code of 1804 the
Civil Code of 1864 established the principle of the married womans incapacity,
the husband being the one who compensated for the marital approval the legal
inexperience of the wife and checked the appropriateness of the legal
documents signed by her. In special circumstances, as we have shown, marriage
approval was replaced by court approval.
Slowly but surely, the subsequent regulations have replaced the principle
of married womans incapacity as a result of gender equality in general, the
internal regulations reflecting the documents adopted internationally in the
field23.
20 This decrease of the marriage age for men is contrary to the recommendation of the
Committee for Children's Rights, which found that the equalization of the legal age of marriage
must be done by raising the age of marriage for women and not by lowering the age for men.
21 According to Article 4 paragraph (2) of Law no. 288/2007, "For good reasons, the minor who
turned sixteen can marry under a medical opinion, with the consent of his parents or, where
applicable, of the guardian, and with the approval of the General Directorate of Social
Assistance and Child Protection in whose jurisdiction the minor has its domicile. "
22 In regulating the current Civil Code the approval of the General Directorate of Social
Assistance and Child Protection is replaced with the approval of the guardianship court.
23 Womans equality with men in different areas is established in article 16 paragraph 1 of the
Universal Declaration of Human Rights, in Article 3 of the International Covenant on Civil and
Political Rights, in article 23 paragraph 4 of the International Covenant on economic, social and
cultural rights, in art.l and II of the Convention on the political rights of women and other
international conventions regarding the fight against discrimination.
80
The analysis of these regulations from a historical perspective gives us a

deeper understanding of the current legislation in this matter, of the
appreciation of its superiority in terms of relations between spouses under the
sign of full equality. Also, we want this historical approach to be an opportunity
of reflection for the legislators, who will have to adopt appropriate,
substantiated rules, and historical arguments, in respect to the challenges to
which we will be subjected as a result of the inevitable transformations of the
contemporary society.
BIBLIOGRAPHY
D. Alexandresco, (1925), Explicaiunea teoretic i practic a dreptului civil
romn n comparaiune cu legile vechi i cu principalele legislaiuni
strine (Theoretical and Practical Explanations of Romanian Civil Law
as Compared to the Old Laws and the Relevant Foreign Law) 2 nd
edition, 1st vol., Atelierele Grafice Socec, Bucharest.
M. B. Cantacuzino, (1998), Elementele Dreptului Civil (Elements of Civil Law),
All Educational Publishing House, Bucharest, 1998.
Colin et Capitant, (1920), Cours Elmentaire de Droit Civil Franais, ed.2, vol.I,
Dalloz, Paris.
Hamangiu, Rosetti-Blnescu, Bicoianu (1996) Tratat de drept civil roman
(Traite of Law Civil Romain), Editura All Beck, Bucuresti.
Journal
Tr. Ionacu, (1950), Modificrile aduse Codului civil de principiul constituional
al egalittii sexelor (Amendments to the Civil Code by the Constitutional
Principle of Gender Equality), in Justiia Nou no.2.
Legislation
The Civil Code of 1864 (or Cuzas Civil Code), published in Official Gazette no.
271 of December 4, 1864, entered into force on December 1, 1865, as
amended and supplemented, repealed after the entry into force of the
current Civil Code.
Commercial Code.
Law no.4/1953 on the Family Code, published in Official Gazette no. 1 of
January 4, 1954, as amended and supplemented, repealed after the entry
into force of the current Civil Code.
Law no.287/2009 Law on the Civil Code, published in the Official Gazette of
Romania, Part I, no.511 of July 24, 2009.
Constitution of Romania was adopted in the Meeting of the Constituent
Assembly on November 21, 1991, published in Official Gazette Part I,
no. 233 from November 21, 1991 and entered into force on December
8, 1991. It was amended and completed by the Law revising the
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Irina APETREI
Constitution of Romania no. 429/2003 and republished in the Official

Gazette Part I, no. 767 of October 29, 2003.
Universal Declaration of Human Rights, in Article 3 of the International
Covenant on Civil and Political Rights, in article 23 paragraph 4 of the
International Covenant on economic, social and cultural rights, in art.l
and II of the Convention on the political rights of women and other
international conventions regarding the fight against discrimination.
82
Legal Implications Of The Fiducia In Banking Law
LEGAL IMPLICATIONS OF THE FIDUCIA IN

BANKING LAW
Adriana Ioana PRVU1
Abstract
Fiducia, although it is a new institution brought to the practicians attention by the
new civil code, it is in fact an old institution. Its origins are found in the Roman law from
which the English-Saxon law took over the regulation.
Its adoption in the Romanian civil code wanted to be a cautious one, because, besides
its many advantages, the fiducia can be easily misapplied from its aims recognised by the law, it
can be transformed by ill-willed persons in a tool for money laundry or a tool for hideing tax
evasion.
They say that fiducia broke the unity of the patrimony. The effect of the fiducia is
to create different assets from the personal assets of the trustee, assets that are affected in order
to accomplish the aim specified in the fiduciary (trust) agreement.
Fiducia can be used as an effective guarantee for banks when they act as creditors. It
is estimated that fiducia could even replace the banking mortgage in the future.
Fiducia can be also used as a management way of a component of the constitutors
assets who also becomes the beneficiary of the trust property. Thus, fiducia can be used a
management tool of the assets or as a cooperation tool among banking institutions.
The banks are those who are to host the fiduciary trust accounts which are meant
for the deposition of the fiduciary trust funds. Although different bank offers regarding such
accounts have already been launched on the market, it is to be seen to what extent they will be
accessed by trustees.
As the title announces, this article aims to examine, briefly, the main legal effects that
the fiduciary regulation will produce in banking law matters. The experience of other law
systems regarding fiducia is not unitary, but it represents a starting point in order to establish
the possible legal effects of the fiducia, respectively, to identify the main banking operations that
will interact with fiducia.
Keywords:
fiducia, trust, bank, management, mortgage.
1Universitary Assistant PhD., The Faculty of Law and Administrative Law, The University of
Pitesti.
83
Adriana Ioana PRVU
1. INTRODUCTION
Fiducia (trust property), although it is a new institution brought to the
practicians attention by the new civil code, it is in fact an old institution. Its
origins are found in the Roman law from which the English-Saxon law took
over the trust regulation.
In the English-American system, trust is part of the category of
gratification deeds, but is rather used in economic purposes. Most frequently,
trust assures not only the separate administration of patrimonial assets, but also
the rights of some creditors Forti (2011:37). In the Romanian civil law, by
fiduciary trust agreement, we cannot achieve any direct liberality, the law
specifying liberalities in a limited way: donation and will (Buciuman, David
(2012): 61).
The continental law systems took over the trust regulation in part, trying
to adjust it to its new purposes. The regulation of trust in these law systems, and
especially its use, vaguely reminds of the old trust, as conceived by the Romans.
The regulation of trust (fiducia) in the Romanian civil law wanted to be a
cautious one, because, besides its many advantages, the trust can be easily
misapplied from its aims recognised by the law.
2. USE OF FIDUCIA (TRUST) IN BANKING LAW
2.1. Use of fiducia (trust) as guarantee

They say that fiducia broke2 the unity of the patrimony. The effect of
fiducia is to create the patrimonial assets different from the personal assets of
the trustee, patrimonial assets that are affected in order to accomplish the aim
specified in the fiduciary (trust) agreement. At the same time with the division of
the assets in trust assets, there is also a division of creditors 3, who will only
pursue the assets related to the birth of their right of receivables (art. 786 of
New Civil Code NCC).
Although the English-American trust is mainly used to create distinct
patrimonial assets in order to be managed separately, in the continental law
systems, such as the French one, trust (fiducia) is mainly used to offer a creditor
the possibility to use and manage, in its own interest, a patrimonial asset that
does not belong to him, but to his debtor.
This is also the point of view of the specialised doctrine, which
appreciates that this separation of the trust patrimonial assets is decided by the
2 Ion Turcu, Se poart fiducia [Trust is in trend] , http://www.juridice.ro/244256/se-poarta-

fiducia.html, accessed on 07.04.2014, time 19.20
3 Eugen Constantin Iordachescu, Implementastion of trust in banking practice. Ways and
institutional cooperation, http://www.iordachescu-law.ro/Studii-de-caz/Implementarea-

fiduciei-in-practica-bancara-Modalitati-si-conlucrare-institutionala---avocat-Eugen-Constantin-
IORDACHESCU--eID81.html, accessed on 07.04.2014, time 14.35
84
lawmaker in the interest of trust creditors because they can also satiate
themselves from the trust assets subsequently to their transfer to the beneficiary
or constituent, within the same conditions as before the transfer4. Moreover,
although the trust creditors cannot pursue the beneficiary or the constituents
own assets, too, they have the advantage of the protection offered by the
lawmaker over the trust assets, i.e. also the beneficiary or the constituents
creditors will not be able to pursue the assets derived from them.
Trust can be used as an efficient guarantee for banks when they have the
capacity of a creditor. They estimate that trust could even replace the banking
mortgage in the future.
Trust can be seen in two forms:
one where the trustee meets the capacity of a beneficiary in case of
failure to perform the guaranteed obligation;
another one, where the beneficiary is a creditor of the constituent
coming from a pre-existing legal relation, and in such way the previous
obligation shall be paid up. (Buciuman, David (2012):60, 61).
In the trust agreement, the bank can be both trustee, the beneficiary
being the debtor from the obligation relation (who is also the constituent; and
trustee and beneficiary, when the debtor does not pay his debt arising from the
obligation relationship.
It is in the banks interest to benefit from patrimonial assets and manage
them in its advantage, even if such situation takes place for a determined period
of time, than to have a mortgage.
In its activity, the bank permanently needs money and assets to circulate
on order to get a profit. Therefore, trust fits more with the bank financial needs
than the mortgage. Also, it could reduce significantly the exposition and risks to
which a bank is exposed.
They have identified other advantages of using the trust in the banking
activity, such as: short time of execution and more reduced costs of execution
and, generally, more effective and fast formalities by which the bank can execute
the guarantee established5. In practice, in case a debtor fails to execute its
obligation assumed to the bank, the time for capitalizing the asset placed as
guarantee through the trust agreement is much shorter. Regarding trust from
such a perspective, the specialists consider that if banks do not use trust
instead of mortgage in the future, it means that they are perhaps wrongly
advised and do not understand the benefits of this legal instrument6.
4 Eugen Chelaru, Civil Law. Ancillary real property rights in regulating the NCC, Editura
C.H.Beck, Bucuresti, 2013, p.16
5 Daniel Moreanu, quoted by Rzvan Enache, Trust, a legal instrument that could become
deadly in the banks hands, http://www.wall-street.ro/articol/Legal-

Business/157776/fiducia-daniel-moreanu-banci-ipoteca.html, accessed on 07.04.2014, time
12.25
6 D.Moreanu, cit. de R. Enache, op.cit.
85
Adriana Ioana PRVU
2.2. Use of trust as a management way

Trust can be used as a management way of a component of the
constituents assets, who also becomes the beneficiary of the trust.
The trustee has a great liberty of movement regarding the operations he
can achieve over the trust assets. They appreciate the amendment of the original
text of art. 773 NCC, regulating the trust, as good omen, by Law no. 71/2001
meaning that the phrase <<manage them>> was replaced by <<exert
them>> (Constantinovici, Baias, Chelaru, Constantinovici, Macovei (2012):
823), because such phrase better represents the powers of the trustee, who can
achieve deeds of decision regarding the assets from the trust assets, too.
Thus, trust can be used as a management instrument of assets. By means
of trust-management, the constituent can put aside a fraction of his assets, in
order to provide constant incomes from the administration /management of
some excluded assets, at least temporarily, from the area of the general pledge
right of creditors7.
2.3. Use of trust accounts

As mentioned above, the bank should not be the object of the trust
agreement all the time. It can only be an intermediary that the contracting
parties use in exerting their obligations.
The banks are those who are to host the trust accounts which are
meant for the deposition of the trust funds. Although different bank offers
regarding the opening of such accounts have already been launched on the
market, it is to be seen to what extent they will be accessed by trustees.
As a bank product, the trust account can be defined as a current account
(Anitei, Layar (2011),:81)8, opened by the trustee at a bank, meant to deposit
trust funds, representing either the amount initially trusted by the constituent, or
the amounts resulted from the capitalization of the trusted assets.
Tracing the trust funds and their separate management represents a
necessity for the trustee, who, by using a trust account, can achieve a better
monitorization of them.
The account is opened on behalf of the trustees client (lawyer, notary
public, credit institution, investment and investment management company,
financial investment service company, insurance or re-insurance company).
By means of the trust account, they can achieve deposits and
withdrawals of cash, intra and inter banking payments and collections, as well as
filing of deposits on behalf of the holder of the trust account.
7E.C.Iordchescu, op.cit.
8The current account is defined by the doctrine as the agreement concluded intuit personae by
which usually a bank and its client, named current account agreement parties, agree that all their
mutual receivables and debts merge into a unique balance that should define the position of one
party toward the other one, as debtor or creditor.
86
The trust-management can involve complex operations that can only be

achieved by professionals. In this regard, there is a mutation of jobs, one of
these being the job of a lawyer that can become an escrow trust agent. The
escrow account placed at the parties disposal by the banks is replaced by
lawyers who exert the same functions, but offering additional guarantees, by
means of their legal knowledge. When the trust parties choose such a formula,
any payment between the parties, conditioned by the registration of a property
transfer, passes through the lawyers accounts and under their responsibilities,
through the trust account, respectively. They say that this way, the banks risk
is eliminated, regarding the appreciation of the validity of the property transfer
title9.
CONCLUSIONS
Trust is a recently regulated institution in our law system, being
approached reservedly. Once they discover the mechanisms and the advantages
of trust, it will surely become a useful instrument, capable of offering many
benefits to those accessing it.
Banking law seems to make its first steps into this direction. The
international experience of banks offers the professionals in this field important
information regarding the way trust has been used and can be used in the banks
advantage.
BIBLIOGRAPHY
N., C., Aniei. R., E., Lazr. Drept bancar si valutar, (Banking and currency law),
Editura Universul juridic, Bucureti, 2011.
A., Buciuman. M., David, Drept civil. Drepturile reale. Culegere de texte. Probleme
practice. Grile, (Civil law. Real property rights. Collection of texts. Practical
problems. Multiple choice exercises), ed. a II-a, Editura Hamangiu, Bucureti,
2012
E., Chelaru. Drept civil. Drepturile reale principale n reglementarea NCC, (Civil law.
Ancillary real property rights in regulating the NCC), Editura C.H.Beck,
Bucureti, 2013.
D., Moreanu. quoted by R., Enache. Fiducia, un instrument juridic ce are potenial s
devin mortal n minile bncilor, (Trust, a legal instrument that could become
deadly in the banks hands), http://www.wall-street.ro/articol/Legal-
Business/157776/fiducia-daniel-moreanu-banci-ipoteca.html
R., Constantinovici. Comment, in Fl., A., Baias. E., Chelaru. R., Constantinovici.
I., Macovei (coordinator). Noul Cod civil. Comentariu pe articole (art.1-2664),
9Florian Niu, av, cit. in The first exclusive services of business lawyers, http://www.capital.ro/primele-
servicii-exclusiviste-ale-avocatilor-de-afaceri-23581.html, accessed on 07.04.2014, time 16.30
87
Adriana Ioana PRVU
(New Civil Code. Comments on articles (art.1-2664)), Editura C.H.Beck.

Bucureti, 2012.
V., Forti. Comparing American Trust and French Fiducie, in The Columbia Journal of
European Law, n.28/2011, http://www.cjel.net/online/17_2-forti/
E., C., Iordachescu. Implementarea fiduciei n practica bancar. Modaliti i conlucrare
instituional, (Implementation of trust in banking practice. Ways and institutional
cooperation), http://www.iordachescu-law.ro/Studii-de-
caz/Implementarea-fiduciei-in-practica-bancara-Modalitati-si-
conlucrare-institutionala---avocat-Eugen-Constantin-IORDACHESCU--
eID81.html
Fl., Niu. lawyer, quoted in Primele servicii exclusiviste ale avocailor de afaceri, (The first
exclusive services of business lawyers), http://www.capital.ro/primele-servicii-
exclusiviste-ale-avocatilor-de-afaceri-23581.html
I., Turcu. Se poart fiducia (Trust is in trend), http://www.juridice.ro/244256/se-
poarta-fiducia.html
88
Concealment of Matrimonial Agreement
CONCEALMENT OF MATRIMONIAL
AGREEMENT
Nadia -Cerasela ANIEI1

Abstract
According to the provisions of art.331 of the new Civil Code "The secret act, by
which another matrimonial regime is chosen or by which the matrimonial regime for which the
publication formalities provided by law changes, shall take effect only between spouses and
cannot be opposed against third parties in good faith."
Research literature (Chivu (2001) :10, Popescu (1968): 124) defines the concealment
as the operation whereby, by an apparent contract a legal situation different from the true one is
created and included in the hidden but real act.
Given the purpose of the parties, it has been emphasized that for the existence of
concealment, two operations which juxtapose are necessary: the first is the expression of the real
will that determined the conclusion of the legal act, and the second expresses the desire to hide,
to the third parties, the true face of the legal act and to create a seemingly constant but
inconsistent appearance (Jugastru (2002) :62).
The fact that the matrimonial agreement has a civil legal nature, means that in this
case the common law simulation conditions should be applied; namely the secret act must be
contemporaneous with the apparent act, previously or at least simultaneously with it, because if
it occurred later, it would only amend a previous document, agreed in reality, which in case of
the matrimonial agreement can be made only by a new agreement; the agreement must be secret,
this means that its existence should not be mentioned either in the apparent act or by various
forms of publication (transcription, tabulation), the parties must agree on the concealment,
which implies common intention to simulate (animo simulandi), embodied in the concealing
agreement (Sttescu. Brsan. (2008) :97).
In essence, the mechanism of concealment takes into account the cases when the parties
publicly (apparently) conclude a matrimonial agreement and choose a matrimonial regime
matrimonial, fulfilling all the formalities of publicity for opposability against third parties, and
on the other hand (concurrently or previously) make an agreement, in fact, to apply between
them another matrimonial regime (secret). The solution is that of the common law meaning
that the secret matrimonial regime will take effect only between spouses, without being opposed
to third parties in good - faith, in relation to whom only the matrimonial regime for which
publicity formalities have been met takes effect.
If in the ordinary civil contracts the concealment may take one of three known forms:
fictivity, disguise and interposition of people, we see that in relation to the marriage agreement,
1 Professor PhD, Dunarea de Jos University of Galati, Faculty of Law, e-mail:

ncerasela@yahoo.com
89
Nadia Cerasela ANIEI
the third form is excluded due primarily to the intuitu personae character of these agreements,
in which only spouses may be parties, no other intermediaries.
Keywords:
matrimonial agreement, matrimonial regime, Civil Code.
1. CONCEALMENT IN THE GUISE OF FICTIVITY WITHIN

MATRIMONIAL AGREEMENTS
A contract is usually fictional, when the public act is concluded only
formally, but in reality, it hides another legal act, and even if there is no such act,
the parties do not admit between them any legal effect, or any power of the
apparently fictional document. However, they have no intention to make anyone
think that the public document produces specific effects, according to the
nature of the agreement thereto. Therefore, even if there is no secret act
concluded, for the public act there is animo simulandi (Banciu (2011) :80-83).
Such concealment may arise, for example, in a matrimonial agreement by
which future spouses or spouses would derogate from the legal community
regime, establishing a conventional regime of separation, but in reality, they
accomplish their marriage tasks by community rules. Specifically, if the parties
for example would agree that all property acquired after the contracting of
marriage would be own property of a particular spouse, though in secret,
spouses, would stipulate that the property is common, we would be dealing, we
think, with a fictional public document adopted by the spouses with the purpose
to avoid the suit of the creditors or of the heirs of one of them. This agreement
is legally valid because it is concluded by a notary, according to the rules
stipulated by the law which allow spouses, in the separation of property regime
to conclude any documents between them. In reality, the concealing intention of
the spouses, their internal psychological reason, which is neither declared nor
perceived from outside, is a false, fictitious cause, which cannot be opposed to
third parties in good - faith, but which will produce effects between spouses.
Sometimes even the ficitivity of the apparent act, by which the
matrimonial regime applicable to spouses is concealed in order to create the
impression of a fictional marriage, considering even that it was completed due
to pecuniary interests, without being actually consumed, is possible. In such
circumstances, even the cause of the marital agreement is unlawful if the
marriage is based on a false cause, since the matrimonial agreement is an
accessory to a marriage otherwise invalid.
90
2. DISGUISED CONCEALMENT IN MATRIMONIAL

CONVENTIONS
Disguise is a form of relative concealment. As shown in theory (Chivu
(2001) :10, Popescu (1968):124; Gherasim (1981) :280), it differs from the
fictivity, and it is characterized by the lack of any legal support in reality; in
disguise, the parties of the concealed agreement in the apparent or public act are
in reality bound by a legal relationship based on a secret document whose legal
effect they admit, but under another name, so that the parties agree to disclose
this act in another form.
Disguise is complete when by the public act the true nature of the secret
act is hidden, in which case the concealment refers to the cause of the legal act,
and partial when by means of the public act, only some effects of the secret act
are hidden, in which case the concealment refers to the subject of the legal act
(Sttescu. Brsan. (2008) :125)..
An example of concealment by disguise in the matrimonial agreements,
is when the spouses in the conventional community regime they choose,
determine that certain assets considered by law according to art.340 of the new
Civil Code as own property (eg property intellectual rights regarding creations
and registered signs) should be considered common property, but the secret act
provides that these assets remain own property of the spouse, titular of
ownership. In this case, as the concealment is without prejudice to the public
order, morals or to the rights and interests of others, it remains a valid operation
(Banciu (2011) :83).
3. THE LIMITS OF CONCEALMENT

Research literature argues that concealment itself is not sanctioned by
nullity. The limits of concealment and consequently the specific sanction of
concealment is inopposability against third parties of the legal situation created
by the secret act and, where appropriate, the removal of the concealment via the
concealment action (Sttescu. Brsan. (2008) :137).
The issues must be dealt with differently. When the concealment does
not comply with legal imperative rules, with the public order and morality, it will
be sanctioned by absolute nullity (Banciu (2011) :85).
When the concealment is valid one has to make certain distinctions: for
example between spouses and their universal heirs or by universal title, the
concealment of the matrimonial agreement will give rise to effects caused by the
real will of the spouses, a will reflected in the secret document. In relation to
marital agreements, the same rule is applied when it comes to universal heirs or
to heirs by universal title of the parties, as long as the matrimonial regime may
also be terminated by the death of one spouse. In such a situation, the secret act
shall take effect in relation to the universal heirs or to the heirs by universal title
of the deceased spouse, because they are the followers of the author's
91
personality, but they will become third parties in relation to the secret document
when the author the contracting party- by stipulation tried to fraud their
interests. The idea is supported by art.1289 of the new Civil Code, which states
that "the secret agreement takes effect only between parties, if the nature of the
contract or the stipulation of the parties does not indicate otherwise, between
their universal heirs or heirs by universal title (paragraph 1). However, the secret
contract produces no effects between the parties unless it meets the substantive
conditions required by law for its valid conclusion"(paragraph 2).
In relation to third parties, the secret act cannot have any effect, its
sanction being its inopposability. Although between parties only the secret act
will take effect, third parties will be opposed only the legal situation born of the
apparent or public act, although it does not correspond to reality. In this
respect, art.331 of the new Civil Code provides: "the Secret Act, by which
another matrimonial regime is chosen or the matrimonial regime for which the
publication formalities provided by law are met, changes, shall take effect only
between spouses and cannot be opposed against third parties in good faith".
Consequently, the spouses cannot appeal in relation to third parties to the
existence and content of the secret act, only third parties are entitled to appeal,
for their benefit and against the parties, to the effects of the secret act,
renouncing to the inopposability against them of this act. Thus, the third parties
in good faith, have the right to appeal to the apparent or secret act. But if the
spouses prove that the third party appealing to the act was apparently in bad
faith, the secret act would be opposable to him/her as well ( Banciu (2011) :85-
86).
A special situation (Banciu (2011) :85-86) is the one in which there is a
conflict between several parties, meaning that some have an interest to appeal to
the apparent act, while the others have an interest to appeal to the secret act. We
believe that for these reasons of equity and to make the principle of appearance
in law efficient, it is necessary to go in favor of the party in good faith that will
invoke the apparent act, but only in favor of those who have been in good faith
in the very moment their rights were established, in the sense that they didnt
learn in other way, the content of the secret act and the concealing nature of the
matrimonial agreement. This solution is required in terms of art.335 paragraph 1
of the new Civil Code which states: "the matrimonial agreement cannot be
opposed to thirds parties regarding the acts concluded by them with either
spouse, unless the publication formalities provided by art.334 have been met or
if third parties have met it otherwise."
92
4. THE PROCEDURAL MEANS OF DEFENSE OF THE RIGHTS

AND INTERESTS OF THIRD PARTIES IN CASE OF
MATRIMONIAL AGREEMENT CONCEALMENT
Regarding the procedural means by which third parties in good faith, can
protect their rights in case of concealment in the field of matrimonial
agreements, we consider the provisions of art.369 paragraph 3 of the new Civil
Code which provides that "creditors prejudiced by the change or liquidation of
the matrimonial regime may introduce the revocatory action within one year
after the publication formalities were met or, where appropriate, when they
learned about these circumstances otherwise.
In addition to the revocatory action art.369 paragraph 4 of the new Civil
Code provides that "creditors referred to in paragraph (3) may appeal at any
time, by way of exception, to the inopposability of the matrimonial regime
change or liquidation made in fraud of their interests. "But, in order to invoke
this exception, the main condition is the existence of litigations already brought
before the court. Research literature considers that this exception can be used by
creditors in any existing action between creditors who suffer prejudices, on the
one hand, and spouses, parties of the matrimonial agreement, on the other. This
opinion is based on the provisions of art.1562 of the new Civil Code, which by
defining the revocatory action provides that, if a prejudice is proven, the
creditor may ask for the legal documents signed by the debtor in fraud of
his/her rights, such as within the matrimonial agreements, the acts by which
spouses create or increase their state of insolvency to be declared non-invocable.
By reference to the provisions of art.1565 paragraph 1 of the new Civil Code,
we note that, following the admission of the revocatory action the contested act
will be declared non-invocable both to the creditor who brought the action
before court, and to all other creditors who may have brought the action before
the court.
Given the fact that other people - not only the prejudiced creditors -
may be affected by the existence of matrimonial agreement concealment,
logically and naturally, the following question arises: which is the procedural
means that third parties in good faith can use when they suffer prejudices due to
the existence of matrimonial agreement concealment? The answer can be found
in the provisions of art.1290 and art.1291 of the new Civil Code, texts
containing provisions on the concealment action.
Thus, according to art.1290 of the new Civil Code "the secret agreement
cannot be invoked by the parties, by their universal heirs, by heirs with universal
or particular title or by the creditors of the seller apparently against third parties
who, by relying in good faith on the public contract, acquired rights from the
apparent purchaser (paragraph 1). Third parties may use against the parties the
existence of a secret contract, when it brings prejudice to their rights"
(paragraph 2) and, according to art.1291 of the new Civil Code the existence of
93
the secret contract cannot be opposed by parties to the apparent acquirers

creditors who, in good faith noted the beginning of prosecution in the land
book or forced seizure of property that have been the object of concealment
(paragraph 1). If there is a conflict between the creditors of the apparent seller
and the creditors of the apparent acquierer the former are preferred, if their
claim is prior to the secret agreement (paragraph 2).
Research doctrine defines the concealment action as that action asking
the court to declare the existence and content of the secret act, in order to
remove the apparent act or those clauses that annihilate or mask the real act.
So we see that the concealing action is not aimed at dissolving the secret
act, at determining or pronouncing the nullity of concealment but at determine
the innoposability to third parties of the secret act; the secret act will be kept
and will take effect in all those situations when it has been validly concluded.
Sometimes there are situations when the concealing action may be
doubled by a nullity action namelty when the concealment was done in violation
of mandatory provisions of law or contrary to public order and morality.
We believe that the concealing action, even in case of the marital agreements,
may be exercised by any interested person to appeal to the secret act. Usually,
the action in concealment will be introduced by third parties which suffers
prejudice due to the apparent act and who has therefore the interest to invoke
the secret act; but if the third party intends to benefit from the apparent
contract he has no interest to bring an action in concealment. In this case,
another interested person may introduce the action in concealment, for
example, the creditor of one spouse, who suffered prejudices due to the
matrimonial agreement which provides that immovable property acquired by
spouses during marriage will be passed on to the spouse who is not the debtor.
In such circumstances, the interest of the creditors is to bring to the table of
common property all assets that are acquired during marriage by both spouses,
and then, by way of oblique action, they can ask for their division, to recover
his/her claim from spouse who is his/her debtor. The creditor will ask the court
to declare the existence and content of the secret act which provides that these
assets belong to both spouses and will request the acknowledgment of absolute
nullity of the apparent act and will require the division of property acquired by
both spouses either in the same action, or separately, by oblique action (Banciu
(2011) :85-86).
Given that the new Civil Code provisions do not specify any statute of
limitation, or the fact that the action in concealment is a declaratory that may be
exercised at any time, mainly or by way of exception, we conclude that it is an
imprescriptible action. In support of this view we can appeal to the principle
according to which the appearance in law can be removed at any time, the
concealing legal document being unlikely to strengthen with time (Banciu (2011)
:85-86). .
94
With regard to the evidence in matters of concealment art.1292 the new

Civil Code provides that the evidence of concealment may be made by third
parties or by the creditors by any means. Furthermore, the quoted text states
that when parties claim that the concealment is unlawful, they can prove this by
any means of evidence.
5. NON-COMPLIANCE WITH PUBLICITY FORMALITIES (THE

INOPPOSABILITY OF THE MATRIMONIAL AGREEMENT)
The absence of the publicity formalities attracts the inopposability
against third parties of the matrimonial regime established by the matrimonial
agreement, spouses being considered as married under the legal matrimonial
regime. It should be noted that the absence of the publicity formalities can only
be invoked by third parties against spouses, and not by one spouse against the
other spouse or by the spouses against a third party.
According to art.335 of the new Civil Code "the matrimonial agreement
cannot be opposed to third party in relation to acts concluded by them with a
spouse if the publicity formalities provided by art.334 have been met or if third
parties have met it otherwise (paragraph 1). Also, the matrimonial agreement
cannot be opposed to third parties in relation to the acts concluded by them
with either spouse before marriage" (paragraph 2). The non-compliance with the
publicity formalities causes spouses to be considered in relation to third parties
as married under the legal matrimonial regime. On the other hand even when
the publicity formalities are met, the matrimonial agreement cannot be opposed
to the creditors of either spouse, with respect to the acts conclued before
marriage. The general pledge of the unsecured creditors of each spouse, for
claims arising before marriage cannot be thus limited by matrimonial agreement,
as they are entitled to suit the debtor spouse's property, regardless of the nature
that property acquires by the effect of matrimonial agreement (Vasilescu. (2009)
:239-242; C., M., Crciunescu. M.,G., Berindei. (2011) :428-429; M., Avram. C.,
Nicolescu. (2010) :110; Al., Banciu. (2011) :98-99).
BIBLIOGRAPY
M., Avram. C., Nicolescu. (2010), Regimuri matrimoniale (Matrimonial Regimes),
Hamangiu Publishing House, Bucharest.
Al., Banciu. (2011), Raporturile patrimoniale dintre soi (Property Relations between
Spouses), Hamangiu Publishing House, Bucharest.
C., M., Crciunescu. M., G., Berindei. (2011), Convenia matrimonial. Consideraii
critice (Matrimonial Agreement. Critical Considerations), Coordonator M.,
Uliescu. Noul Cod civil. Comentarii (The New Civil Code. Comments), 3rd
edition revised, Universul Juridic Publishing House, Bucharest.
95
G., Chivu. (2001), Simulaia n teoria i practica dreptului civil (Concealment in Civil Law
Theory and Practice), Argonaut Publishing House, Cluj- Naopca.
D., Gherasim. (1981), Buna credin n raporturile juridice civile (Good Faith in Civil
Legal Relations), Academy Publishing House, Bucharest.
C., Jugastru. (2002), Drept civil. Obligaiile (Civil Law. Obligations), Argonaut
Publishing House, Cluj- Naopca.
T., R., Popescu. (1968), Teoria general a obligaiilor (General Theory of Obligations),
The Scientific Publishing House, Bucharest, 1968, p. 124.
C., Sttescu. C., Brsan. (2008), Drept civil. Teoria general a obligaiilor (Civil Law.
The General Theory of Obligations), C.H. Beck Publishing House, Bucharest.
P., Vasilescu. (2009), Regimuri matrimoniale. Parte general (Matrimonial Regimes.
General Part), 2nd edition revised, Universul Juridic Publishing House,
Bucharest, 2009.
96
Considerations on Predicate Offenses for Money Laundering Crime in Romania
CONSIDERATIONS ON PREDICATE OFFENSES

FOR MONEY LAUNDERING CRIME IN
ROMANIA
Roxana-Elena LAZR1
Vlad-Nicolae NEDELCU2
Abstract
Money laundering offense is an important part of the broad concept of economic-
financial crime. This type of offenses is extremely serious for any economy as a whole
endangering the social, politic, economic and cultural development of society. But, another
offense is prerequiste from money laundering crime. This crime is called primary offense or
predicate offense, a relatively new concept, introduced by The Convention of the Council of
Europe in Strasbourg (1990) on laudering, search, seizure and confication of the proceeds from
crime.
In time, the sphere of predicate offense has considerably expanded. If initially the
predicate offense was limited to drug trafficking UN Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988) at present time, without being
exhaustive, we consider several possible predicate offenses: terrorism, corruption, tax evasion,
smuggling cultural and art work or theft followed by the illegal sale of second-hand cars, human
trafficking etc.
The tendency of legal literature is to analyze separately the predicate offense and the
offense of money landering. Our opinion is that only a combined analysis - by applying an
integrated methodology - can offer the real size of money laundering.
Keywords:
money laundering, predicate offense
1 Phd. Lecturer, "Petre Andrei" University from Iasi.

2 Assistant PhD. Candidate, "Petre Andrei" University from Iasi.
97
Roxana Elena LAZR, Vlad Nicolae NEDELCU
I. INTRODUCTION
Money is the main reason for committing most of the crimes covered in
the laws of different states. Money laundering is the method by which persons
guilty of crimes disguise the origin of profit as a result of committing those
crimes, so they do not keep the tracks from which crime and gain a certain
legitimacy.
The national law of any offense, regardless of the seriousness of the
offense, could be predicate offense for money laundering. If the original
national law contained a list of offenses defined as predicate offenses for money
laundering, currently Law. 656/2002 provides that any offense may have the
features required for a predicate offense. Unlike the laws of other states,
Romanian legislation does not provide that predicate offenses to be serious.
II. NATIONAL REGULATION OF MONEY LAUNDERING

Because of the complexity and problems that it involves, money
laundering is more than a crime - it is a globalized phenomenon.
Money laundering offense is an important part of the broad concept of
economic and financial crime. This type of crime is of most serious for the
economy, considered as a whole, endangering the social, economic, political and
cultural life of society. Starting from the origin (probably apocryphal) of the
concept of money laundering (related to Al Capone history and money
launderer from smuggling alcohol during Prohibition by setting Laundries,
hence the term money laundering), the term has made a career from Watergate
in 1970 (Chaikin, David, Scharman, J. S., (2009), :14).
In Romania, the offense of money laundering was initially regulated by
Law no. 21/1999 on preventing and punishing money laundering. Since 1999,
there where no rules for recycling offense of money in national laws. The law in
force governing the offense of money laundering is Law no. 656/2002 on
preventing and punishing money laundering and the establishment of measures
to prevent and combat terrorism financing, as renamed and amended by art. 111
of Law no. 187/2012 for the implementation of Law no. 286/2009 on the
Criminal Code. In light of the new criminal legislation, art. 23 - defines the
offense of money laundering - has a number of changes:
The maximum of penalty is reduced from 12 to 10 years. The money
laundering offense is currently punishable with imprisonment from 3 to 10
years;
Knowing the origin of the object / objects and purpose can be derived
and further from objective factual circumstances; intention is excluded;
A new element is the introduction by par. 5of a new, non-discriminatory,
regime of the placeof predicate offense, it is equal if it is committed in the
country or in anothe country.
98
In terms of the new amendments to the Law no. 656/2002 is suprising

that the enactment in question is not changed by the new Criminal Code, but by
the Law no. 187/2012 for the implementation of Law no. 286/2009 on the
Criminal Code. In other countries (Canada, for example) money laundering
regulation is the Criminal Code3. Moreover, many lawyers from Romania
expressed the view by stipulating money laundering in the new Criminal Code,
but Romanian legislature disregarded this opinion.
Although it seems a matter of form, this type of change is substantive.
The Romanian legislator exclude again criminalizing money laundering by
organic law, leaving it further in a special law. We are talking about a unitary
vision of legislator and we appreciate that the Romanian legislator leaves the
regulation of economic and financial crime in a particular plan without mixing it
with ordinary crimes. Economic and financial crime have a special character, not
only by the seriousness of the alleged, but by infringement that can bring in
confidence in financial institutions of the state, in the proper functioning of the
market economy, which are indispensable to the rule of law.
III. THE CONCEPT OF "PREDICATE OFFENSE" IF THE

OFFENSE OF MONEY LAUNDERING
Prerequisite money laundering is another offense. This offense is called
the predicate offense, premise offense etc. The notion of "predicate
offense" is relatively new. Convention of the Council of Europe in Strasbourg,
the 1990 Convention on Laundering, Search, Seizure and Confiscation of Crime
- ratified in Romania by Law no. 263/2002 - defines the predicate offense,
meaning any offense from which the products are likely to become the subject
of one of the offenses referred to in art. 6 of the Convention4.
At international and European level, FATF Recommendations and
Directive 2005/60/EC on the prevention of the use of the financial system for
money laundering and terrorist financing, establish the criteria by which
Member States may designate categories of predicate offenses and the principles
imposed by these laws are complied with national legislation. First, we
distinguish the recommendation that each state should take the necessary
measures so that the criminalization of money laundering to comply with the
1988 U. N. Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (the Vienna Convention) and the United Nations
Convention of 2000 on Crime Transnational organized (Palermo Convention).
FATF Recommendations suggests that states are imposing their laws as
3 What is money laundering" available at

http://www.moneylaundering.ca/public/law/what_is_ML.php (accesed by 06.03.2014)
4 Transparency International Romania, Preventing and combating money laundering in relation
to politically exposed persons, p. 5, available at

http://www.transparency.org.ro/proiecte/proiecte_incheiate/2007/proiect_1/PoliticiPublice.p
df (accesed by 05.03.2014)
99
predicate offenses, be represented by all offenses, or even consider serious

crimes often target a limit approach (imprisonment applicable to the predicate
offense), being admitted even a list of predicate offenses.
In the Romanian laws there is no list of possible predicate offenses; any
offense may be prerequisite to obtaining dirty money. The common element is
that all listed predicate offenses involve getting a benefit materials and prior to
their use, it involve "washing" the money. There can be no exhaustive list of
predicate offenses, because there is a possible danger to forget some offenses
which their possible result is the increasing production of dirty money.
Therefore, the formula chosen by the Romanian legislature is welcome (e.g.
knowing that the assets of criminal provenience - art. 23 par. 1). Otherwise, we
have the situation thet we have an entire list of almost all offenses covered by
the legislation in force.
Difficulties are possible in conditions which often subject material of
money laundering of money derived not from one, but from several predicate
offenses. Practice has proved that people who currently receive dirty money
from a crime (e.g. drug trafficking) in the future will expand their criminal
activities in other areas (Lilley, Peter, (2006), :3).
In Romania, as in the case of money laundering - for which the
regulation is a special one - usually all predicate offenses are covered by special
legislation, emphasizing once again the importance of the regulation of money
laundering by a special law. The offense of money laundering can be
independent of the predicate offense, but equally there is a possibility that a
person who committed the predicate offense may be author, accomplice,
instigator, committing the criminal offense of money laundering, with some
exceptions expressly provided incriminating text - art. 29 par. 1 lit. thesis II and
art. 29 par. 1 lit. c.
Over time, the scope of the predicate offense to money laundering
offense has expanded considerably. If the initial predicate offense is limited to
drug trafficking - the Vienna Convention on Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (1988), now without being exhaustive, we consider
several possible predicate offenses, including: terrorism, corruption, tax evasion,
smuggling, theft, human trafficking and drug trafficking.
III.1. Terrorism
Acts of terrorism are now a consequence and a constant of globalization
process. Individuals or groups involved need money to create and develop the
infrastructure, but also to acquire weapons or other tools to terrorist activities.
Regulating the crime of terrorism in Romania is given by Law no. 535 of
2004 on preventing and combating terrorism. This law is defining the terrorism
offense by art. 1 as the set of actions and / or public danger and threats
affecting national security, with the following characteristics: a. are committed
premeditated by a terrorist entity, motivated by extremist beliefs and attitudes,
100
hostile to other entities, against which they act by violent ways and / or
destructive; b. their aim is to achieve specific political objectives; c. concern
human and / or material from the authorities and public institutions, the civilian
population, or any other segment belonging to them; d. they produce a state of
strong psychological impact on the population, meant to draw attention to the
aims pursued.
Normative act incrimining terrorist incidents occurred in close proximity
to the U.S. September 11, 2001 and the European response - Framework
Directive 2002/475/JHA of 13 June 2002 on combating terrorism that targeted
the laws of the Member States of the E.U. concerning terrorist offenses.
Crime of terrorism is affecting the economy of a state, as well as the
global economy.
Together, these two crimes may have negative effects on the reputation
of the financial sector of the state where they were committed (Chatain, Pierre-
Laurent, McDowell, John (2009), : XXIII ). Directly related to the prevention of
the use of services provided by financial institutions, the FATF
Recommendations prohibit the opening of anonymous accounts or accounts in
obviously fictitious names are, while taking measures to identify customers and
their identity verification and further action border financial transfers. By FATF
Special Recommendations on Terrorist Financing, both the financial institutions
or other entities subject to anti-money laundering obligations - to when they
suspect or have serious grounds to suspect that certain funds are linked, or used
for terrorist acts terrorism or terrorist organizations - are required to report
promptly their suspicions to the competent authorities.
National authorities of EU Member States are considering this aspect,
aiming to increase public confidence in the banking system, particularly, in the
financial sector, in general.
In this direction is the Directive 2005/60/EC of the European
Parliament and of the Council on preventing the use of financial services for
money laundering and financial terrorism. Nationally, the direct application of
the aforementioned directive is the BNR Regulation no. 9/2008 CDD to
prevent money laundering and terrorist financing.
The combination of traditional money laundering and terrorist financing
has three main purposes(Chatain, Pierre-Laurent, McDowell, John (2009), : 3 ):
Preventing the use of the financial system for illicit purposes for those
who are guilty of the offense of money laundering and terrorist financing;
Disclosure offenses of money laundering and terrorist financing at the
time and place of their commission;
Punish those involved in committing these crimes.
Typically, the money behind terrorist financing have the most various
origins. Disguise the origin of funds that will be the basis of future terrorism is
101
not a priority, but the main objective of concealing activities undertaken is the
destination and, also, the purpose for which it was collected.
III.2. Corruption
Civil servants, tempted by a quick gain and impossible otherwise, accept
bribes. The money obtained from such crimes get in the real economy through
money laundering.
Corruption is a concept with a very wide range of coverage: from bribes
given to a public official to the phenomenon of high-level corruption, especially
in the political area. This latter form of corruption is the most dangerous,
because it has a strong negative impact on economic growth, undermine
fundamental human rights, democracy and the rule of law. Political clientele - as
a result of the funds involved in supporting political parties which come to
power - promotes its own economic interests and develop an application
directed to the protection in case of committing crimes. In these circumstances,
the corrupted politicians get material to handle an entire legislative authority for
personal uses; hence the high degree of social danger of the crime of corruption
associated with the offense of money laundering.
Remote decade when the main combination of dangerous crimes were
considered terrorism and money laundering, now corruption and money
laundering are the main attention of European Legislator. Thus, in March 2012,
the European Parliament has set up a special committee to tackle organized
crime, corruption and money laundering. By Resolution of 23 October 2013, the
European Parliament proposed a number of recommendations on actions to be
taken on corruption and money laundering. The proposed action plan covering
the period 2014-2019. The problem identified concerns that money laundering
and corruption costs the EU approximately 120 billion annually5.
At international level, there is a constant concern to fight against
corruption and money laundering. Recommendations F.A.T.F. in this area
respect and impose the principles of transparency, good governance, achieving
the highest ethical and professional criteria, respect for the integrity of public
supply facilities, protection against abuses of private. In Romania corruption
offenses are covered by the new Penal Code (art. 289-294) and Law no.
78/2000 on preventing, discovering and punishing corruption.
The offenses of corruption and money laundering are interdependent: if
corruption occurs earnings which need to be washed, corruption may facilitate
money laundering considering the fact that corrupt officials can influence the
5European Parliament Resolution of 23 October 2013 relating to organized crime, corruption

and money laundering: recommendations on actions and initiatives to be taken (Final Report),
available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P7-TA-2013-0444+0+DOC+XML+V0//RO (accesed la 10.03.2014).
102
process by which money can be recycled and that guilty persons can escape
controls and sanctions.
III.3. Tax evasion

In all the forms it takes in practice, is the example par excellence of the
renovation of crimes, of adapting to everyday crime by the indissoluble bond
that is established between it and money laundering (Anitei, Nadia Cerasela,
Lazr, Roxana Elena, (2013), :578). Tax evasion is currently growing at the
global level, especially because of the negative consequences of the economic
crisis.
In Romania, the regulation of the crime of tax evasion is found in Law
no. 241/2005 on preventing and combating tax evasion, with subsequent
amendments. The analysis acts regulating tax evasion and money laundering
offenses presents them as completely separate and yet related. Thus, if tax
evasion involves getting illegal money as a result of avoiding or partial payment
of taxes, money laundering process involves placing money by recycling the
legal economy, since the money is properly registered and taxed accordingly. So,
if the person who is guilty of tax evasion does not declare all or a part of his
legal or illegal income, that one whi commits the offense of money laundering
always seeks to hide the source of his illegally earned money. Hiding the source
of illegally obtained money by using multiple jurisdictions - for example by
opening offshore companies - may be a similar feature both tax evasion and
money laundering. Differentiation is that by offshore companies can be held as
well legal trade operations.
Removing some money - over a certain legal limit from a state and
their lack of declaration - pose problems in terms of how they were obtained
and those trying their recycling. At international level, law is different. Countries
like Hong Kong, Macau, Liechtenstein, Switzerland, Paraguay, Uruguay,
Pakistan, Kuwait, Katar, Panama, Bahamas, Turkey does not impose restrictions
on the amounts of meoney carried.
An internationally consistent regulation is desirable. The regulation
FATCA wants to create a much better cooperation between financial
institutions, globally, involving both developed economies and emerging
economies. Although advertised as a special event, FATCA should have had
entry into force of 1 January 2014, but the term was extended by six months, at
least until July 1, 2014. FATCA is related to the prevention and combating of
what is considered to be unfair competition, by creating private capital in a state,
then stored outside the country of origin. Given the persistence of global
economic crisis, the fact that national budgets are still subject to strong
pressures in meeting the commitments signed new global regulations on fees
sufficient signals that FATCA will be implemented at internationally level.
103
III.4. Smuggling
Art. 270 and art. 271 of Law no. 86/2006 on the Customs Code provide:
introduction into or out of the country, by any means, of goods or
merchandise, using other places than those for customs control;
introduction into or out of the country through customs control areas
established by lae, by evading customs control of goods or goods to be placed
under a customs procedure, where the customs value of the goods or the goods
stolen is more than 20,000 lei in products subject to excise duty case and more
than 40,000 lei in the case of other goods or merchandise;
introduction into or out of the country twice in a year, using the places
established for customs control, by evading customs control of goods or goods
to be placed under a customs procedure, where the customs value of the goods
or stolen goods is less than 20,000 lei in products subject to excise duty case
and less than 40,000 lei for other goods or merchandise;
alienation in any form of goods under customs transit;
collection, possession, production, transportation, acquisition, storage,
teaching, marketing and sale of goods or goods to be placed under a customs
procedure, knowing that they come from smuggling or intended to commit a
sumggling offense;
Introduction into or out of the country without law, weapons,
ammunition, explosives, drugs, precursors, nuclear or other radioactive
substances, toxic waste, hazardous waste or chemical materials;
From the text of the law it is not excludes any good and any category of
goods that may be material object of the crime of smuggling, but the practice
shows some goods / commodities which are the favorite subject of smuggling:
alcohol and cigarettes are notoriously, add icons and works of art of great
importance (such practice existed in relation to such objects in the former
USSR).
Smuggling important artworks subscribes to the idea of a major
business. In most of the states are imposed restrictions on the export of cultural
goods. In Romania, according to H. G. No. 518/2004 for approving the
methodological norms for permanent or temporary export of movable cultural
property, movable cultural property can be removed from the country only on
the basis of an export certificate. The importance of protecting European
cultural goods subject to uniform regulations at EU level - Regulation C.E. No.
116/2009 on the export of cultural goods, which imposes the obligation to
obtain an export license when a European cultural exceeds the EU customs
territory.
Very often, their sale beyond the home state involves illegal exports of
this state, and then the money obtained from the illegal exploitation of works of
art and heritage involves a washing operation.
104
III.5.
The number of theft and illegal sales of new or used cars are growing
as predicate offenses regarding money laundering. Romania has experienced this
phenomenon once entry into the E.U. Typically, stolen cars have the state of
origin, in order, Italy, Germany and Hungary. Stolen cars are divided into two
categories: luxury and middle class.
The routes most used for trafficking in stolen vehicles are: Italy - Austria
- Hungary - Romania, Italy - Slovenia - Hungary - Romania, Italy - Greece
Bulgaria - Romania; Germany - Austria - Hungary - Romania, Germany - Czech
Republic - Slovakia - Hungary Romania6.
For yhe traffic of cars new and second-hand Romania there is not a
special regulation, as is the case with other predicate offenses analyzed above.
Thus, regulation of traffic cars subscribes the burglary offense - as art. 228
Criminal Code. Usually it enters in the contest with offenses as fraud, forgery
and use of forgery.
Money laundering arrangements are different, depending on the mode
of traffickers. Thus one of the methods initially aimes the consent of the owner
and fraud by insurance. Basically, with the consent of the owner, the car is taken
from his possession and the money are laundered through successive sales.
Finally, the original owner announces insurance and he is compensated.
III.6.
Human trafficking and child trafficking are predicate offenses for money
laundering. Starting this year these offenses are covered by the Criminal Code -
art. 210 and art. 211. Both offenses give contemporary form of slavery, an issue
that brings into question the fundamental violations of human rights especially
for vulnerable groups: women and children. Every 30 seconds in the world, a
person falls victim of trafficking and / or juvenile trafficking.
The European Union is concerned to take effective measures to prevent
and combat human trafficking, one of the latest regulations is the Directive
2011/36/EU of the European Parliament and of the Council establishing
minimum common rules relating to the definition and penalties applied
trafficking offenses7.
6 General Inspectorate of Romanian Police, "Stolen vehicles and international trafficking with
stolen vehicles", available at file:///C:/Users/Rox/Downloads/03_2%20-
%20Alin%20Popescu%20-%20Romania%20-
%20Stolen%20Vehicles%20Trafficking%20(1).pdf (accessed on 18.03.2014).
7 Directive no. 2011/36/E.U. of European Parliament and Council on preventing and
combating of trafficking and protection of the victims and replacing the Framework Decision
2002/629/JAI of Council, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:RO:PDF (accesed on
18.03.2014).
105
Regulating new Criminal Code offenses criminalizing trafficking and

trafficking in minors comply faithfully guidelines set by the EU by virtue of the
definition of these crimes: the recruitment, transportation, transfer, harboring or
receipt of persons / minor exploitation of its / his defining conditions are
imposed at a European level.At the same time withholding the victim's consent
is irrelevant offense.
European regulation insists on measures to assist and protect victims.
Annual profit illegally trafficking offenses is between ten million and 32
million annually (Shelley, Louise, (2010), :138). All this huge amount money
should make its way into the legal economy. A part of the money thus obtained
takes the form of business legal claim: nightclubs, strip clubs.
III.7. Drug trafficking

Is a growing criminal activity. The fall of communism in Eastern Europe
has meant new markets drugs, new traffic methods practiced. In the U.E.
Member State policy on drugs is not uniform. if Italy tolerate a heroin 0.3 grams
/ day, Netherlands - 0.5 g / day (Guilhem, Fabre, (2003), : 2), other countries -
including Romania are intransigent to drugs.
The amount of drug used, the degree of purity of the drugs used, the
number of young people enrolled by the problem are growing. Consequently,
the profit derived from these crimes are also increasing.
In Romania regulation and illicit drug trafficking are regulated by Law
no. 143/2000 on preventing and combating illicit drug trafficking and
republished.
The literature identifies that particular ways of laundering money from
drug trafficking and crimes called generic drugs - ways that do not involve
money laundering financial services, namely the acquisition of the means then
used to transport drugs - aircraft and cars, purchased with cash, derived from
drug trafficking.
CONCLUSIONS
Predicate offenses and the offense of money laundering induce danger
of accumulation of funds and illicit financial purchases distort legal economic
circuit itself, causing damage to appropriate national budgets, the EU budget
and a negative effect of the economic and social global.
The offense of money laundering is more common in countries with
weak financial systems. Prevalence in a state of economic and financial crimes,
in general, and money laundering, in particular, constitute a sufficient
prerequisite for increasing the number of predicate offenses, in order to ensure
the success of money laundering operations.
Money laundering has negative effects on economic growth. If funds
from legitimate activities are reinvested, money originating from criminal origin
106
are placed in sterile areas, so they to keep intact as much as possible the value
while being easily transferable, so they do not bring added value to the
economy.
In the regulation from Romania, we note that is positive maintaining
regulation of money laundering through special legislation and not by an organic
law, because they criminalize the particular and specific social values protected,
and because the most common predicate offenses for money laundering are also
regulated by special legislation.
Theimplementation of a civic culture oriented to compliance standards
imposed by the fight against money laundering is the necessary condition for
discovering and punishing the majority of predicate offenses.
Wrongly, the trend is to analyze separately the predicate offense of
money laundering. But only a combined analysis by applying an integrated
methodology can give money laundering their actual size.
In tandems offenses (terrorism and money laundering, corruption and
money laundering, tax evasion and money laundering, smuggling, money
laundering, theft and money laundering, human trafficking, money laundering,
drug trafficking and laundering money), the constant is represented by money
laundering, involve not only their coexistence, but that one presupposes the
other and vice versa, that implies a money laundering predicate offenses and a
predicate offense attracts another crime - money laundering.
Although all offenses outlined above, are seen as money laundering
predicate offenses, the active measures for the control and punishing of money
laundering offenses have a direct effect on premise offenses. Fight against
money laundering equivalent to very actively fighting predicate offenses.
REFERENCES:
Treaties, courses, monographies:

Anitei Nadia Cerasela, Roxana-Elena Lazr, "Regimul juridic al infraciunilor
propriu-zise de evaziune fiscal" n Revista "Curierul fiscal" nr. 12/2013,
Ed. C.H.Beck, Bucureti.
Chaikin David, Scharman J. S., Corruption and money laundering, 2009.
Chatain Pierre-Laurent, McDowell John s.a., Preventing money laundering and terrorist
finanicing, The World Bank, 2009.
Guilhem Fabre, Drug traffixcking, money landering and finacial crises after the Cold War,
Ed. LaserScript Ltd., 2003.
Lilley Peter, Dirty dealing: the untold truth about global money laundering, international
crime and terorism, Ed. Kogan Page Limited, Londra, 2006.
Shelley Louise, Human trafficking: a global perspective, Cambridge University Press,
2010, p. 138.
107
Webography:
Directive no. 2011/36/E.U. of European Parliament and Council on preventing
and combating of trafficking and protection of the victims and replacing
the Framework Decision 2002/629/JAI of Council, available at
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011
:RO:PDF (accesed on 18.03.2014)
European Parliament resolution of 23 October 2013 relating to organized crime,
corruption and money laundering: recommendations on actions and
initiatives to be taken (Final Report), available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P7-TA-2013-0444+0+DOC+XML+V0//RO
(accesed la 10.03.2014).
General Inspectorate of Romanian Police, "Stolen vehicles and international
trafficking with stolen vehicles", available at
file:///C:/Users/Rox/Downloads/03_2%20-
%20Alin%20Popescu%20-%20Romania%20-
%20Stolen%20Vehicles%20Trafficking%20(1).pdf (accessed on
18.03.2014)
What is money laundering" available at
http://www.moneylaundering.ca/public/law/what_is_ML.php (accesed
by 06.03.2014)
Transparency International Romania, Preventing and combating money
laundering in relation to politically exposed persons, p. 5, available at
http://www.transparency.org.ro/proiecte/proiecte_incheiate/2007/proi
ect_1/PoliticiPublice.pdf (accesed by 05.03.2014)
108
Law and Social Sciences
109
Mariana Cristina BOROIU
110
Resocialization of Women Subjected to Punishment by Imprisonment
RESOCIALIZATION OF WOMEN SUBJECTED TO

PUNISHMENT BY IMPRISONMENT
Mariana-Cristina BOROIU1
Abstract
The article addresses the problems of correction and re-education of women sentenced to
prison in terms of international and national law governing the treatment of detainees.
According to the author, in the execution of the sentence, the focus should be on psychosocial
programs and activities adapted to the realities of life and applied to prisons, contributing to the
gradual recovery of the ability to live in society. Finally, some measures are proposed, that
should be part of the prevention of relapse in women who have committed criminal acts.
Keywords:
Crime prevention, recidivism among women, imprisonment, socio-educational programs,
correcting convicted women.
1 Lecturer PhD, Spiru Haret University, cristinaboroiu3@yahoo.com.
111
INTRODUCTION
Crime prevention does not only imply preventing the perpetration of a
criminal offense for the first time, but also preventing the repetition of the
offense by the same author. The tertiary strategy is mainly aimed at preventing
recurrence; the target being made up of people who have already committed
crimes. This type of prevention, in which the subjects are qualitatively different,
is achieved by post-prosecution social rehabilitation and reintegration measures
for persons who have committed criminal acts for which they received a
conviction. [1, p. 224]
At present, the mechanism of intimidation through punishment plays an
increasingly smaller role for the recidivists criminal behaviour. Increasing
emotional indifference, it, therefore, leads to the permanent degradation of the
educational element; the absence of which causes the occurrence of frequent
loopholes in the whole socialization process. Consequently, the punishment
worsens the process instead of correcting it, if it does not aim at re-socializing
the female offender. [2, p. 73]
As a consequence, enforcing hasher punishments where women are
concerned is, by no means a solution for the prevention or a socio-educational
balancing. Firstly, one must take into account the fact that, most of the times,
the female criminal offenders are themselves victims; having been abused
physically, psychologically or sexually, years in a row, usually by the one they will
eventually victimize.
On the other hand, one ought to bear in mind that, as a confinement
space, the prison is an extremely harsh environment, which does not solve the
issues of those imprisoned, but rather worsens them, especially in those cases
where the female convicts are themselves the victims of social exclusion.
Then, there is the issue of health; many of these women facing difficult health
problems, including mental issues, which the prison (self sufficient
establishment and one of the most stressful environments) highly aggravates. In
this case, women could especially and easily become a real threat to themselves.
[3, p. 12]
Given these conditions, setting about solving the issues of correction
and re-education of women sentenced to prison is a rather difficult subject to
address, given the nature of the object of influence. At the same time, it is
necessary to keep in mind the fact that the increase in female criminality is
characterized not just by the increase in numbers, but also by the expansion of
the area of crimes committed by women, to that of criminal acts which were,
not long ago, considered to be specific only to men. This tendency indicates the
necessity to prepare prisons in view of future possible modifications regarding
the contingency of female convicts.
In this respect it is necessary to develop the forms and methods of
educational work with the said convicts and prevention of antisocial actions
112
during the execution of the sentence. It is necessary to study their environment

carefully, the connections between them and administration, and the basic
socio-psychological processes. Some correction measures require a few changes
in areas such as: labour, diet and education. It is necessary to not lose sight of
the female specific physical nature.
International law which dictates the treatment applied to detainees must
take into account the basic human rights and, as far as possible, to take into
account, in their application, the particular needs and problems of women.
One of the most important rules contained in United Nations Standards
regarding the Minimum Rules for the Treatment of Prisoners, is the R-60, which
states: "The penitentiary system shall seek to minimize any differences between
life in prison and that outside the prison walls, which would lead to the decrease
in the prisoners responsibility or the respect due to human dignity." [4] This
should be considered while keeping in mind the fact that the detainees,
especially women, are sufficiently affected by imprisonment. They should lose
only those rights that are required to be lost due to the loss of freedom and
must retain the other rights and have a life as similar as possible to that outside.
European Prison Rules (EPR (2006) 2) in section 34 establish that, in
addition to the specific provisions of these rules, in making decisions affecting
the women prisoners custody issues, the authorities must respect their needs,
paying particular attention to the physical, vocational, social and psychological
aspects. In the same manner, special efforts need to be made in order to enable
detainees who have special needs to benefit from special services.
Prisoners will be allowed to give birth outside prison, but if a child is
born in prison the authorities will provide necessary support and facilities.
Young children may remain in prison with a parent detainee only if it is in their
best interest. They will not be considered "detainees". A small child is allowed to
remain in prison with one of the parents, only if the prison disposes of a nursery
with qualified staff, where the child is placed when the parent is involved in an
activity inappropriate for young children. [5, pct. 34, 35]
Recommendation 1469 (2000) of the Council of Europe, entitled
"Mothers and children in prison", [6] shows that, although Recommendation
1257 (1995) of the Parliamentary Assembly, concerning the conditions of
imprisonment in The Council of Europe member states, [7] predicts a limitation
of the use of prison sentences, dictated by the number of women in the Council
of Europe. Most women are imprisoned or convicted for relatively minor
offenses that do not pose a threat to the community.
Given the adverse effects children suffer when their mothers are
deprived of liberty, the assembly recommended that member states establish
and enforce penalties, for mothers with small children, within the community,
avoiding detention as much as possible; organize, for those working in the
criminal justice system, training courses in maternal and child problems, which
are based on the European Convention on Human Rights; recognize the fact
113
that detention should not be used in the case of pregnant women and mothers
of young children, with the exception of the case where this is considered as a
last resort; when women are considered guilty of very serious crimes and are a
danger to society; to create small enclosed or semi-enclosed units, assisted by
social services for the few mothers who have to remain in detention facilities
where children can be cared for in a welcoming environment, which may take
into account the child's interests, meanwhile ensuring public safety; ensure that
the fathers right to visit is provided in a flexible way, so that the child be able to
spend a part of the time with both parents; ensure that the staff are
appropriately trained in childcare.
Set of rules of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) has devoted a
chapter of the 10th general report of said Organization (2001) to women
deprived of their liberty, in order to indicate to national authorities its views on
how they should be treated. [8]
Many women in prison are the sole support for their children or for
third persons whose welfare may be compromised by their imprisonment. In
this context, a delicate issue is to know whether you can allow mothers and their
young children to stay together in prison and, if so, for how long. This is a
difficult problem to solve since, on the one hand, prisons are not, obviously, a
suitable environment for child rearing and, on the other hand, the forced
separation of mothers from their children is not an acceptable solution. [1, p
169]
Women, in general, represent 50% of the population in different
countries and only 5% of the inmates. However, in most countries, the female
population in prisons is growing rapidly and, in some regions of the world,
much faster than that of the male. In countries like the U.S. and Britain the
number of women in prisons is soon expected to double the number of men. [9
p 42]
The basic characteristics of the female prison population are similar in
all countries. Thus, just as men, women in prison are mostly under 30, the
overwhelming majority poor, uneducated, unskilled, working and unemployed at
the time of arrest. Minorities are over-represented both in prisons for women as
well as those for men. In most countries women are in prison for nonviolent
crimes; such as those against property or drug offenses, they are there for those
crimes known as "crimes of poverty". When a violent crime is committed by
them, it is most often committed against someone close to them. Unlike men,
women in prison are often single parents, most of them having children who
depend on them; they are less likely to repeat offenses. Between one third and
two thirds of them were mentally or sexually abused before their entry into
prison. When women are single parents, their children are more likely to end up
in children's homes than men prisoners. [9, p 42]
114
In many countries where there are prisons only for women, there is only
one unit in a very wide geographical area. Sometimes there is only one women's
prison across the country and many categories of detainees are mixed together.
Thus, geographic isolation, being far from home, means fewer visits and more
abandonment. In view of the fact that many times women have children who
depend on them, social isolation is a problem far more difficult from the point
of view of the women. Because there are so few female detainees, medical,
educational and professional programs rarely address their needs because they
are designed for male prisoners. [9, pgs. 43-44]
Currently, in Moldova there is only one prison for women.
Internationally, the general trend is that women prisoners are housed in
locations as close as possible to home, in view of the fact that it is paramount
for the female prisoners to keep in touch with their families and their home.
This is difficult given the fact that Prison no.7 Rusca is the only prison for
irrevocable female convicts in the entire country.
Under the provisions of the criminal executive legislation [10, Art. 255]
of the Republic of Moldova, convicted women can serve the sentence in
separate sections of the prisons for men, however, in the conditions required by
women's prisons. Females who have not come of age serve the sentence in the
prison conditions designed for juveniles.
Conditions of detention in the penitentiary for women abides by the
regime set for the minimum, medium or high security prison, in accordance with
Article 72 paragraph (2), (3) and (4) of the Criminal Code of the RM. [11]
Pregnant women and mothers who have children with them cannot be
held in high security prisons. These detainees do not receive the disciplinary
sanctions such as solitary confinement.
According to art.256 of the Criminal Law Enforcement Code of the
Republic of Moldova, prisons must arrange special care nursery rooms for
pregnant women and nurseries for children. Women are provided with an
opportunity to give birth in hospitals that do not belong to the Prison
Institutions Department. If the child was born in prison, this fact shall be
indicated on his birth certificate. After childbirth, women are provided
specialized medical care under medical prescription. Upon request, mothers with
children aged up to three years of age, can share with their child a specially
designed room for joint living. In this case, the prison administration provides
continuous surveillance, including medical, of both child and mother.
At the age of three years, with written consent from the mother and with
the consent of the guardianship, the child is left in care of a person specified by
her, or a specialized institution for children. The prison administration must
ensure that the mother is able to maintain contact with her child, provided this
does not prevent the normal development of the child and has no negative
effects on him/her. At the request of the female convict, prison administration
115
may extend the time limit given to the mother and the child to live together to
up to six months.
To ensure the normal development and child safety, on the basis of a
reasoned decision of the head of the prison with the consent of the
guardianship, the child may be given to a person or specialized children care
institution before the age of 3 years. Pregnant women and nursing mothers are
provided with a supplementary food ration. They have the right to purchase
unlimited food using money from their account in the prison.
Since the primary purpose of punishment is rehabilitation of convicts,
social reintegration and prevention of committing new crimes, the focus should
be placed on psychosocial programs and activities implemented and tailored to
the reality of life in prison, and aimed at countering the ability, which
incarcerated people gained by living in the world of the detainees and, also
aimed at helping them gradually regain the ability to live in society.
In this sense, the process of planning the serving of the sentence starts
at the arrival in prison; quarantine-observation period playing an important role
in assessing the female detainee and of the factors which caused the person to
commit crimes, to have a "deviant behaviour" towards social norms. The focus
is on motivation, on purpose, emotional peculiarities, the social component and
the values that are representative for each person.
The essential elements of an effective planning of the punishments of
women in custody are:
Well trained, well chosen, motivated personnel;
Appropriate security measures to the potential risk;
Reception based on need and process of incorporation;
A structure for safety and survival;
Opportunities for frequent contact with family;
Adequate conditions for health care, nutrition and exercise;
Filling time, which includes a full day of work, education and leisure
opportunities;
Programs on criminal behaviour and preparation for release programs
that are designed to meet the needs of women. [9, 73]
For all female inmates, regardless of custody arrangements, an important
part of the daily program is taking part in rehabilitation programs in family and
society. These programs are a very extensive and a very complex category and
also a challenging area of work in prisons. Educational, cultural, therapeutic,
psychological activities, as well as social assistance activities are held in every
prison and aim at the social reintegration of persons sentenced to imprisonment.
Their role is so important that it came to the attention of both
international and European organizations, which have developed various
recommendations in this area: the European Prison Rules, Recommendation no.
116
R (87) 3a of the Council of Europe, [12] European Prison Rules - EPR version
(2006) 2. [5]
The focus of socio-educational activities will be, as much as possible, on
helping detainees reintegrate in their families and community after their release.
Therefore regimes and prison rules should not limit the freedoms of detainees,
external social contacts and opportunities for personal development more than
is absolutely necessary. The focus is on providing support and opportunities to
develop their individual potential and to be able to cope positively upon their
return to society, which is often very difficult and problematic for them. By
including effective psychosocial intervention programs both during the serving
of the sentence in prison, and upon release, major goals will be achieved such as
public protection, crime control; by lowering the rate of recidivism, and
successful integration into the community.
Recommendation Nr. 89 (12) adopted by the European Council on
October 13th, 1989 states that: "Education in prisons must set objectives as
important as those set in the education system of the community outside
prisons. The primary goals of the education services in prisons should facilitate
the right of all people to learn; that being the key to their human
development."[12]
Building the Rule of Law directly is linked not only to proclaiming the
rights and freedoms of man and citizen as a matter of supreme importance, but
also to applying them. Measures aimed at raising the legal culture of citizens are
of particular importance in preventing crime among women. Working with
convicted women has indicated that they often motivate their actions through
ignorance of the law. Of course, that does not imply that they will not be held
accountable. However, proper legal information, in many cases, could help
persons with moral deviations to refrain from such behaviour, thus helping to
decrease the number of crimes.
Traditionally an important role in the education of women detainees was
played by labour. The inclusion of women in the production processes ensures
the solving of complex problems in terms of overcoming defects and complexes
in communication and in terms of subsequent employment in the workforce.
For a positive result, a different approach is required in dealing with the
education of different types of women's, taking into account their social and
moral degradation, the presence of certain specialties, the level of training, skills
and inclinations. The environment of the prison renders this objective rather
difficult to achieve, because, usually, the basis for production has a very narrow
profile. Vocational training is oriented mostly towards preparing professionals
for the production of personal objects and, often, does not take into account
labour market needs or the desire of the convict. Thus, training prisoners for a
wider area of professions that will be required on the labour market becomes
necessary. It will result in them finding work after their release from prison.
117
For people who find themselves sentenced to serve time in prison,

contact, both with the family and the community, is limited by a number of
strict rules. As a socio-educational institution, the prison has to prepare the
individual for a qualitative reintegration into society and is, in doing so, obliged
to provide the maximum number of facilities, in view that, this contact is not
interrupted, because the inmate is isolated, but not excluded from society.
Since the family is the most important and most significant micro group
which an individual can have, it is understandable why everyone feels a special
connection to this micro group; and, for some, parting with their family
members is really traumatic. So the shock of imprisonment is especially
poignant for the female population of prisons and especially for the category of
detainees who are mothers and who continue to worry about the children who
depend on them. For many women, entering a prison for the first time triggers a
state of confusion and anxiety. Many have health problems due to drug abuse,
domestic violence, etc. Unlike male prisoners, who seem to adapt to the
practical realities of incarceration, many women do not leave their worries
outside of prison. This is a logical consequence of the role of women, of the fact
that they tend more to their home and their sense of identity is based on their
relationships with others. [9, pg 68]
In order to preserve family relations, the current Imprisonment Code of
the Republic of Moldova has considerably broadened the opportunity to meet
with relatives and close friends, has widened the set of reasons for short trips
outside of prison.
The task of granting psychological assistance to sentenced women
deserves a special attention. It is obvious that a professional psycho-pedagogical
influence is capable of reducing the number of excesses that occur in prisons to
the minimum; namely suicides, interpersonal conflict, mass riots, irritability
cases. At present, there are professional psychologists working in prisons for
women and special sessions for persons requiring special assistance are
conducted. They are aimed at reducing stress, mood stabilization and
stimulation of self-control.
A certain percentage of convicted women is made up of the people who
suffer from various mental disorders that do not exclude criminal responsibility.
The sentence in these cases pursues the same goals as with other convicts. The
specificity lies in the treatment of women, in ensuring enhanced re-socialization,
adapted to their mental health. People with such abnormalities usually are
conflicting, frequently violate the rules, adapt with more difficulty to the new
environment and work processes, often cannot perceive and correctly respond
to educational measures. [14]
Relapse, among people who have already served a criminal sentence, is an
indicator of the effectiveness of sanctions in terms of special prevention. Some
basic problems of the inefficiency of criminal penalty on women can be
highlighted as follows:
118
1) The modern practice of fixing the penalty is recognized as inefficient

because it does not contribute to the reduction of crime among women in
general, nor in the case of the most serious types of crimes;
2) The penalty of imprisonment does not contribute to correcting a
considerable group of women, instead, it increases the danger they pose,
breaking from society and relapse;
3) Society has to finance several means, both for the execution of the
penalty, as well as to mitigate the consequences of the enforcement of the
penalty; in particular for the re-socialization of the individual, the ensuring of
the minimum living standards;
4) The interests of the injured parties are not sufficiently protected by
the sentencing because it is either geared toward restoring order in society, or
toward the condemned;
5) The penalty contributes to the criminalization of society, in which the
share of women facing criminal prosecution is increasing. Said women have
been exposed to criminal subculture and are in great measure dissatisfied with
the existing order of the state. [15, p 378]
According to some authors in The Republic of Moldova, in order to
avoid relapse, it would be reasonable to implement a complex system of both
psychological and pedagogical influence on the female detainees, using
autogenously trainings, individual self-education programs in group sessions etc.
They aim to lead the detainee to self-knowledge, developing skills, the control of
emotions and the creating a positive vision. This will help reduce tension and
aggression, to adapt to the conditions of execution of the sentence, it will
motivate them to review their role and place in their future life. The condition is
that such measures be based on respect, affection and kindness. [16, p 342]
The findings of studies conducted in prisons in Romania [17] indicate
dissatisfaction among inmates, regarding both the quality of prison life (food,
comfort, health care, hygiene) and fundamental aspects of the social
reintegration process: access to work, educational, training and leisure activities.
Considering all the above, the following measures are proposed to
become part of the relapse prevention strategy for women who have committed
crimes and have been sentenced to imprisonment:
1. Educational programs tailored to the characteristics of women
prisoners. Thus, programs for women should include work, education and
special programs for the reduction of crime. Besides the fact that women are
significantly less violent than men and show more understanding for the
programs developed in prisons, they have fewer opportunities to take part in
them due to lack of opportunities.
2. Female labour must have a didactic effect;
3. Education, in all its components: school, for parenthood, for an
independent living and health.
4. The training of the personnel working in womens prisons.
119
For an effective prevention of female criminality, other measures are

also required concerning: the establishment of a specific legal framework for
women; the setting up of measures in the open environment and, only by way of
exception, the implementation of the measures in confinement; the
diversification of the penalties applied, either by combining a short-term penalty
in confinement with a penalty in the open environment, or by replacement of
criminal sanctions with extra-criminal liability. [1, pg 225]
Furthermore, the emphasis should also be placed on the granting of
actual aid at the expiry of the sentence (temporary accommodation,
employment), on the continued surveillance of the released individual and on
the application of non-custodial measures, which may lead to the achievement
of the set goal of the penalty, without making use of imprisonment. Obviously,
the detainee would be given less time to serve for homicide, depending on the
deed, the legal classification, the consequences of the offender's actions and the
identity of the accused.
BIBLIOGRAPHY
A., Blan. (2008), Criminalitatea feminin cauze i efecte sociale. Strategii de
prevenire i control, (Female criminality - causes and social effects.
Strategies for prevention and control), C:H: Beck Publishing House,
Bucharest.
M., Brgu. (2010), Criminologie. Curs universitar. Institutul de relaii
Internaionale din Moldova, Ed. a 2-a revizuit i completat, Chiinu,
Criminology. University course. Moldavian Institute of International
Relations, Second edition, revised and completed, Kishinev.
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1. , 1998. c.73-75.
Lazr Marius, (2012), Femeia criminal n penitenciar. Autor i victim, Tez de
doctorat. Rezumat. (The criminal woman in prison. Perpetrator and the
victim, PhD Thesis. Summary) Bucharest, 2012.
Trandafirescu Zinica. (2010) Discriminarea femeii. Tez de doctorat. Bucureti,
(Discrimination against women. PhD thesis). Bucharest.
LEGISLATION
Ansamblul de reguli minime pentru tratamentul deinuilor, adoptate prin
Rezoluia din 30.08.1955 de primul Congres al Naiunilor Unite pentru
prevenirea crimei i tratamentul delincvenilor.
120
(Minimum Rules for the Treatment of Prisoners, adopted by Resolution of

08.30.1955 of the first United Nations Congress on the Prevention of
Crime and Treatment of Offenders.)
http:/www.anp.gov.ro/
Regulile Europene pentru penitenciare, Recomandarea REC (2006) 2 a
Comitetului de Minitri ctre statele membre, adoptat la 11.01.2006,
pct. 34, 35.
(The European Prison Rules, Recommendation REC (2006) 2.a. of the
Committee of Ministers to The Member States, adopted on 11.01.2006,
line 34, 35.)
http: // www.coe.ro/down_pdf.php?.../regulile%20pen.
Recomandarea R(2000)1469 privind mamele i copiii din nchisori, discutat de
Adunarea Parlamentar a Consiliului Europei la 30 iunie 2000.
(Recommendation R (2000) 1469 on mothers and children in prisons, discussed
by the Parliamentary Assembly of the Council of Europe on 30 June
2000.)
http: // www. eur-lex.europa.eu/.../LexUriServ.do?uri...RO
Recomandarea 1257 (1995) asupra condiiilor de detenie n statele membre ale
Consiliului Europei,
(Recommendation no. 1257 (1995) on imprisonment conditions in Member
States of the European Council)
http://www.penalreform.ro/.../Standarde%20Internati.
Ansamblul de norme al comitetului European pentru Prevenirea Torturii i
Pedepselor sau Tratamentelor inumane sau degradante (CPT).
Set of rules of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT).)
http://www.cpt.coe.int/lang/rom/rom-standards.pdf
Codul de Executare al Republicii Moldova din 24.12.2004, n vigoare din
01.07.2005. Monitorul Oficial al Republicii Moldova nr. 32-35/112 din
03.03.2005.
Enforcement Code of the Republic of Moldova of 24.12.2004, in force from
01.07.2005.
Official Gazette of the Republic of Moldova no. 32-35/112 from 03.03.2005.)
Codul penal al Republicii Moldova din 18.04.2002, n vigoare de la 12.06.2003.
Monitorul Oficial al Republicii Moldova nr. 128-129/1012 din 13.09.2002.
The Criminal Code of the Republic of Moldova of 18.04.2002, effective from
12.06.2003. Official Gazette of the Republic of Moldova no. 128-
129/1012 of 13.09.2002)
Recomandarea Nr. R (87) 3 a Comitetului Minitrilor ctre statele membre, referitoare la
Regulile Europene ale Penitenciarelor adoptat de Comitetul Minitrilor la 12
februarie 1987, n cadrul celei de-a 404-a reuniuni a Delegailor Minitrilor.
(Recommendation Nr. R (87) 3.a. of the Committee of Ministers to member
states on the European Prison Rules adopted by the Committee of
121
Ministers on February 12th, 1987, as part of the 404th meeting of the

Ministers' Deputies.)
http://www.coe.ro/down_pdf.php?abs_path.../cj1.
Recomandarea Nr. R (89)12 a Comitetului de Minitri al statelor membre cu
privire la educaie, adptat de Comitetul de Minitri la 13 octombrie
1989 n cadrul celei de a 429-a reuniuni a Minitrilor Adjunci
(Recommendation Nr. R (89) 12.a. of the Committee of Ministers to member
states on education, adopted by the Committee of Ministers on October
13, 1989 as part of the 429th meeting of the Ministers' Deputies)
// http://www.epea.org/uploads/media/Educatia_in_penitenciar.pdf
..
http://old.tisbi.org/science/vestnik/2007/issue4/Low3.htm
. ., .., .. .
: : -, 1998. . 1. 624 .
Ministerul Justiiei, Administraia Naional a Penitenciarelor, Sondaj de opinie
la nivelul persoanelor private de libertate din sistemul penitenciar,
Raport de cercetare realizat n perioada 21.09-10-10-2007, pe un
eantion de 681 persoane
www.anp-just.ro
Ministry of Justice, National Prison Administration, Survey of the inmates in the
prison system, Research Report conducted during 21.09-2010 and 21.10-
2007 on a sample of 681 persons
122
Comparative Study over the Participatory Democracy in Romania, France,
Switzerland and United States of America
COMPARATIVE STUDY OVER THE

PARTICIPATORY DEMOCRACY IN ROMANIA,
FRANCE, SWITZERLAND AND UNITED STATES
OF AMERICA
Marina-Irina LAZR1
Abstract
In the lastly decades, all the European countries were involved into the movement of
democratization of public administration. One of the pillars of this reforming process suits
the necessity for direct involvement of citizens in the administrative decision-making. Thus was
born the concept of participative democracy, whose regulation and achievement differ from state
to state, being influenced by the juridical culture, the historical context and the relation
decentralization- integration into the national administrations.
The idea that the democracy and the participation of citizens at the social life is
learned in the local collectivities is historically rooted, the local collectivity being perceives as a
hotbed of democracy, because the local administrative authorities are the most anchored into
the daily problems of the citizens. The European states have understood these realities and they
created different mechanisms for the cooptation of citizens into the decisional process.
Our study aims to analyze on a first step the procedures that different European
countries with a different tradition in this field had implemented the participatory democracy:
France, which has a long experience into the democratization of public administration and
Switzerland which, through the functioning of its judicial system is a landmark in this area.
The comparative dimension is enriched by the analyze of the participatory democracy in the
U.S.A. Although there is no unique recipe of it, by sharing knowledge and existing practices
in other countries, we can generate solutions for the problems faced by each state.
The valuing (or rather, the upgrading) of citizens participation is very discussed lately
in Romania, in the context of territorial administrative reorganization and the Constitutional
revision. One real thoroughgoing and implementation of participatory democracy will lead to
profound changes in the public sphere, in the functioning of public administration and last, but
not least, in the collective mentality.
Keywords:
public administration, local democracy, local autonomy, administrative reforms,
participative procedures for citizens
1PhD., Associate Assistant, Faculty of Law and Social Science, University of Craiova, Romania
This work was supported by the strategic grant POSDRU/159/1.5/S/133255, Project ID
133255 (2014), co-financed by the European Social Fund within the Sectorial Operational
Program Human Resources Development 2007 2013.
123
Marina Irina LAZR
1. WHY THIS COMPARATIVE STUDY?

Deeply versed in the ancient Athens, direct democracy spread all over
the world. The first form of direct democracy began approximately into the
years 508 BC, with restrictive participation (male citizens excluding slaves) in a
small Greek population. The Greek sample of direct democracy was followed by
the Roman democracy (circa 449 BC) which invented two types of procedures:
the citizens formulation and passage of law and citizens veto of legislature-
approved law. Modern forms of participation in lawmaking began in the towns
of Switzerland in the 13th century. In 1847, Switzerland added the statute
referendum to their national constitution. Nowadays, the majority of the states
provide multiple mechanisms which permit the citizens involvement in the
constitutional or legislative amendment process.
Our research about the participatory democracy will inverse the order of
analyzing these countries, following a red thread of influences and connections
between them, in the next order: United States of America, Switzerland, France
and Romania, and it will emphasis the specificity for each of them, as
crystallized during the years.
At the moment of adoption of the first proposed American constitution,
much famous debates took place in 1787 and 1788, about how indirect or direct
American democracy should be shaped. France's Baron de Montesquieu has had
a huge influence on America's founders, especially in aspects such as liberty or
separation of powers. At the time, the debate between Federalists and Anti-
Federalists has had been also transposed on ground of choosing between
indirect or direct democracy: the Anti-Federalists made a populist case for a
direct democracy in which citizens participated actively while the Federalists
considered this view naive and dangerous. The Federalists won the debate, and
America's constitution (though much amended) remains the most durable in
existence today. It balances not only minority factions, as well as populism and
elitism, but also the federal and state governments.
In the 19th century, Switzerland took an interest in the American system
of participatory democracy, although, from an historical point of view, it was the
first country that adopted a primitive form of participatory democracy, in order
to legitimize a new territorial order. The referendum was used as a diplomatic
tool between different cantons before becoming prevailing during the
nineteenth century. After the Napoleonic wars, Switzerland faced a situation
quite similar to America's a generation earlier. Several independent states
(cantons) needed to band together in a stable confederation that preserved both
unity and diversity, and thus freedom. After a small but traumatic civil war
between Protestant and Catholic cantons the Swiss decided in 1848 to import
America's constitution almost wholesale. Influenced by the French Revolution
and by the United States Constitution and due to its constitutional arrangement
and its diverse structure, Switzerland offers today a unique case of participatory
124
democracy, often discussed and considered as a reference point when discussing
about reform and success of participatory democracy.
In a worldwide comparison, these two countries stand out for their
longstanding and extensive experience with direct-democratic procedures. Of
course, there are some particularities for each system, according to its historical,
social and political background: while the American system can be be
characterized as an unmediated, populist form of direct democracy (Hug &
Kriesi 2010), the Swiss system is more organized and more tightly controlled by
the political elites; direct-democratic procedures are closely linked to the
procedures of representative democracy and parties have a full role to play (Hug
& Kriesi 2010).
Another European country with a longstanding tradition in participatory
democracy and which served as a model for other states (including Romania) is
France, where the first direct consultation was registered in 1793. Since then the
participatory procedures gain field, both in legislation and in Constitution. At
March 2, 1982 it was adopted a law which regulated in its first article the
principle of citizens participation, but this principle found a concrete application
and appropriate procedures only in the Law of 6 February 1992 and also in the
Law of 27 February 2002 regarding the proximity democracy. This legislative
reforms were followed by a constitutional amendment from 2003 when it was
introduced the article 72-1 about the right of the citizens to petition the public
authorities (alin.1), the decisional referendum at every territorial level (alin.2) and
the mechanisms of consultation for creating a territorial collectivity with a
particular statute (alin.3) either to obtain their consent before a change of status
for communities located overseas (article 72-4). Since then, participation became
more and more popular among citizens and representatives. The local level was
the most appropriate and interested in implementing participatory democracy,
especially after the express regulation of the right to free experimentation of
territorial collectivities (introduced also as a principle in the French
Constitution).
The French model of participatory democracy was inspiring the
Romanian legislator during the years, in most fields of law. This was the case
also for the administrative reforms. After the falling of the communism in 1989,
the opening process of public administration was made very slowly. In the
Constitution of 1991 it were introduced the general principles of democracy,
free election for the Parliament and local representative authorities and also the
principles of decentralization and local autonomy. After a long period of the
communism reign (1948-1989), the first law of local public administration (Law
no 69/1991) has been a breath of fresh air for the suffocated administration for
nearly fifty years of centralism. This law was amended several times (by Law no
24/1996, Law no 50/1997, Law no 215/2001 and Law no 286/2006) and also
was adopted the Law no 3/2000 of referendum and Law no 339/2004 of
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decentralization. The content of these laws was inspired by the similar French
laws, already existed for several years, and which have proven their efficiency.
At the moment, the citizens participation in Romanian democracy can
be made eighter at national and local level. At national level it is possible for the
citizens to participate through the mechanisms of legislative initiative article 74
of Romanian Constitution, referendum for the dismissal of the President
article 95, consultative referendum in a problem of national interest article 90
and the referendum for Constitution amendment articles 151-152 of the
Romanian Constitution). At local level citizens can be involved into the
deciosionary process through local initiative and the referendum - which can
have three objects: consultation for a problem of local interest, for the dismissal
of the mayor and of the local councilors and the referendum about the
organization of new communes or changing the territorial limits of some
communes. Our study will be focused on the participatory mechanisms at local
level, by enlightening the common aspects with the French system (which
served as a model) but also particularities of the Romanian system.
A general conclusion of this study would be that participatory
democracy has become a popular tool for policy-making for all countries around
the world (Albastroiu, 2011). Into this continuous process of identifying
participatory methods under which the electors are allowed to propose and/or
vote on certain types of legislation, the states are analyzing each others practices
and try to adapt the national ones (either that would be at federal, departmental
or communal level) to the necessities of the citizens and to the architecture of
the political and administrative system.
2. THE CURRENT STATE OF AMERICAN PARTICIPATORY

DEMOCRACY
2.1. Historical background

The participatory democracy was not envisioned by framers of the
United States Constitution from 1789 as a form of governing the state.
Moreover, it was perceived as a danger, as a threaten for the American
democracy itself. We will quote several important personalities of the period, in
order to have a complex picture of the general perception over direct
democracy, which, at the time was called pure democracy. James Madison, in
Federalist No. 10 advocates a constitutional republic over direct democracy
precisely to protect the individual from the will of the majority: pure
democracy, by which I mean a society consisting of a small number of citizens,
who assemble and administer the government in person, can admit no cure for
the mischiefs of faction. A common passion or interest will be felt by a majority,
and there is nothing to check the inducements to sacrifice the weaker party.
Hence it is, that democracies have ever been found incompatible with personal
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security or the rights of property; and have, in general, been as short in their
lives as they have been violent in their deaths (Zagarri, 2010). John
Witherspoon, one of the signers of the Declaration of Independence, said "Pure
democracy cannot subsist long nor be carried far into the departments of state
it is very subject to caprice and the madness of popular rage" (idem). Also,
Alexander Hamilton, one of the Founding Father of the United States,
advocates that "A pure democracy if it were practicable would be the most
perfect government. Experience has proved that no position is more false than
this. The ancient democracies in which the people themselves deliberated never
possessed one good feature of government. Their very character was tyranny;
their figure, deformity(idem).
2.2. Typologies of American participatory procedures

Despite the precautions from the beginning, the participatory
democracy emerged, especially at a sub-state level. The historical origin of
participatory democracy in America is inextricably tied to the political reform
movements of the Progressive Era (Piott, 2003). This was a period of social
activism and political reform in the United States, that flourished from the
1890s to the 1920s, who wanted to set free the American democracy from the
entrenched interests, to eliminate corruption by exposing and undercutting
political machines, to destroy the political power of local bosses, to modernize
and to make more efficient every sector of the public sphere. Moreover, the first
United States Supreme Court ruling in favor of the citizen lawmaking was in
Pacific States Telephone and Telegraph Company v. Oregon, in 1912.
One of the mechanisms for institutional functioning optimization
consisted to delegate responsibility to individuals charged to exercise decisional
authority on its behalf. Thus, many state constitutions amended or adopted
during this era provide for a variety of forms of direct democracy, with a large
number of specific mechanisms for direct statutory or constitutional lawmaking,
one of them persisting into the present.
In 1898 South Dakota became the first state to amend its constitution to
give its citizens the option of the initiative, in which a given percentage of voters
may propose a law, which then must be approved at the polls-and the
referendum, in which a law proposed either by initiative or by the lawmaking
body must then be approved by a given percentage of voters. These measures,
also known as direct legislation, were seen by both voters and legislators as a
way to reform democracy by making it more responsive to the people. The
initiative and referendum didnt have a great success from the beginning, one
possible explanation, aside from the novelty of the proposals, could be the
reluctance to break with the traditional two-party culture and abandon any
possible political future in the dominant Republican Party.
Although it was surrounded by criticism, the new form of direct
democracy proliferated also to other American states, so that all of them created
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some mechanisms of direct democracy, with a widely divergent nature and

extent of citizens involvement. Thus, in October 1911, California adopted the
three tools of modern direct democracy: referendums (in which voters approve
or reject laws already passed by a legislature), recalls (in which voters remove
elected representatives and even judges) and initiatives. Soon after, Utah,
Oregon, Montana, Oklahoma and other states had begun mixing their own tools
of direct democracy from the three ingredients and so, the fever of participatory
democracy embraced all the federate states of America.
On a general manner, we can divide the mechanisms of participatory
democracy into three categories: the referendum process, the initiative process and the
recall.
The first one comprises two types of participatory mechanisms: a so
called Popular Referenda available in twenty-four states, where citizens have the
power to refer, by collecting signatures on a petition, specific legislation that was
already enacted by their legislature to the people to either accept or reject and
a Legislative Referendum which is a combination between the indirect end of the
direct democratic spectrum, as it is the legislature and not the citizens who
determines which set of policy offerings will be placed upon the electoral ballot.
So, citizens must approve or not the proposals to enact new laws or
constitutional amendments or repeal existing laws or constitutional. Depending
upon the nature of policy change in question, Legislative Referendum has two
distinct forms: Statutory Legislative Referenda available in in twenty-three
American States, where legislators from the federate states permit to placed a
statutory proposal before voters for acceptance or rejection and a Constitutional
Referenda available in every state, where federate legislators permit to place a
constitutional amendment before voters for acceptance or rejection. The key
distinction between each form is the level of substantive state law.
The second mechanism of participatory democracy is the initiative process,
which consist in the fact that citizens, collecting signatures on a petition, place
advisory questions, memorials, statutes or constitutional amendments on the
ballot for the citizens to adopt or reject (Krislov & Katz, 2008). The initiative
processes subdivides along the division between statutory and constitutional
change, and also reflects the extent of the state legislatures involvement in the
process (Ellis, 2002). It is becoming common in many states for the citizens to
reclaim government from politicians by signing a petition to put an initiative on
the ballot and then voting on it. During the past decade alone, Americans voted
on nearly 500 statewide initiatives, especially on the West Coast where direct
legislation increasingly defines and dominates the political agenda. Both
statutory and constitutional initiatives have a direct and an indirect dimension.
In a direct statutory/constitutional initiative, citizens, without any legislative
involvement, place statutory proposals/ submit a constitutional amendment to
the voters for their acceptance or rejection. This form of participatory
democracy does not require any involvement by the executive or members of
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the legislature. The procedure is accomplished of citizens that collect the
required threshold number of signatures, provided in each state. In a indirect
statutory/constitutional initiative (which is allowed in 2 federate states), citizens must
submit a statutory proposal to the state legislature/ a constitutional change to
the state legislature for its consideration, before it can be placed on the ballot
for voter approval or rejection (Krislov & Katz, 2000). As an element of
statistics, for constitutional amendments, 16 states allow direct initiatives and
two allow indirect initiatives. For statutes, 11 states allow direct initiatives for
statutes, seven allow indirect initiatives, and two states (Utah and Washington)
allow both direct and indirect initiatives.
The recall is a procedure that allows citizens to remove and replace a
public official before the end of a term of office. It has been used most
frequently at the local level. By some estimates, three-fourths of recall elections
are at the city council or school board level. This brief, however, focuses on the
recall only as it applies to state officials. Recall efforts against state legislators are
more common, but still unusual. Recall attempts against legislators have
gathered sufficient signatures to trigger an election just 38 times, and eleven of
those occurred in a single year, 2011. Fifty-five percent of all legislative recall
elections have succeeded in unseating a legislator, and additionally two
legislators resigned after petitions with sufficient signatures were submitted.
Seventeen recall attempts have failed, and the legislators subject to the recall
remained in office. While there have been more legislative recall elections in
recent years (45 percent have taken place in the years 2011-2013), they have
been less successful than in the past: just eight of the 17 recalls attempted
between 2011-2013 succeeded in unseating a legislator, a 47 percent success
rate.
As for the first two participatory mechanisms, we can summarize that
the Constitutional and Statutory Referendum historically dominates all other
lawmaking methods, but in the past decades they declined and Direct
Constitutional and Statutory Initiative have nearly doubled.
2.3. Criticism
Although United States of America appears to be a territory where
citizens voices can be heard through several channels there are a lot of critics
about its real efficiency. Some argue that initiatives and referendums undermine
representative government by circumventing the elected representatives of the
people and allowing the people to directly make policy (Gamble, 1997) they fear
excessive majoritarianism (tyranny of the majority) as a result, believing that
minority groups may be harmed (Hajnal, Gerber & Hugh, 2002).
A further criticism is that an excessive number of propositions makes
ballots too long and too incomprehensible to voters with only an average or less
interest in the process and makes the entire voting procedure take too long, with
very long lines forming as voters attempt to read initiative after carefully worded
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initiative (Gray & Russell, 2008). Other criticisms are that competing initiatives
with conflicting provisions can create legal difficulties when both pass or, by
contrary, voters have passed initiatives that were subsequently repealed or
drastically changed by the legislature both situations turn the participatory into
a big disappointment, or even worst, put democracy at risk. Ellis shows the
"dark side" of direct democracy - specifically the undemocratic consequences
that result from relying too heavily on the initiative process. He provides
historical context to the development of initiatives - from their Populist and
Progressive roots to their accelerated use in recent decades - and a comparative
context in which to understand the variations among states in their initiative
processes (Ellis, 2002).
One other criticism is that today's initiative process is dominated not by
ordinary citizens but by politicians, perennial activists, wealthy interests, and
well-oiled initiative machines. The importance of ballot titles in shaping the
electoral outcome means that initiative elections often tell us more about the
values of those who sponsor and frame initiatives than it does about the citizens
who vote on them. In such cases signature gathering has become a niche
industry in the role of politics. One other problem arise when the political actors
manipulate the initiative agenda (Kousser & McCubbins, 2005). One of the
most pernicious is that of sequential elimination agendas: alternatives are offered
one at a time, in a sequence (Ordeshook & Schwartz, 2003). The core problem
with sequential elimination agendas is that they do not allow citizens to compare
directly all of the alternatives and, therefore, do not allow them to make
tradeoffs among their options (Garrett & McCubbins).
It was also stated that proponents of initiatives, referendums, or recalls
now pay individuals to collect signatures. To combat the growing presence of
signature gatherers, some states have passed bans on paying signature gatherers
by the signature, and Oregon most notably declared signature gatherers
employees and enforced labor laws on the petition proponents.
All these reasons leaded the opponents of direct democracy to the
conclusion that the participatory procedures must be used carefully and
sparingly. More than that, we consider that a real and efficient participatory
democracy must be nourished by correct information of the voters (preferably
low cost), such as to such to increase the legitimacy of the collective choice
obtained.
3. SWITZERLAND, A WAY OF LIVING PARTICIPATORY

DEMOCRACY?
Switzerland is often described as the country where the roots of direct
democracy lie (Kobach 1993). The origins of direct democracy in this country
can be structured into two categories: archaic forms (assemblies of the electorate
discussing and deciding political issues - have been practiced in parts of the
country since the founding of the Old Swiss Confederacy in 1291 and modern
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forms of participatory procedures. Joseph A. Schumpeter stated that direct
democracy might work in Switzerland, as [t]here is so little to quarrel about in a
world of peasants which, excepting hotels and banks, contains no great capitalist
industry, and the problems of public policy are so simple and so stable that an
overwhelming majority can be expected to understand them and to agree about
them, but fails to deliver sound solutions for more complex, industrialized
societies asking for great decisions (Schumpeter, 1947). Also, Giovanni Sartori
argued that not only would direct democracy quickly and disastrously founder
on the reefs of cognitive incompetence, but it would inevitably lead to a zero-
sum mechanism, extremism, and majority tyranny (Sartori, 1987). We
consider that this type of arguments, accompanied by others like complexity of
public affairs submitted to the peoples opinion or the dimension of the
community, are not valid nowadays, when the modern technique can facilitate
the return to the citizens in all type of countries, not only in the small ones.
Against this backdrop, the case of Switzerland provides some puzzling
insights. More than half of the worlds referenda held at the national level during
the 20th century have taken place in Switzerland, a small country with a
population less than 8 million. As a result, Swiss citizens are called to the ballots
to vote on a federal bill, a constitutional amendment or a treaty approximately
every three to four months.
The insertion of participatory democracy in Switzerland may be a
consequence of the characteristics of its political system. Swiss is a federal
country with three levels of direct legislative institutions: the federal level, the
cantonal level, and the communal level. This deliberative function is doubled by
a very strong fiscal decentralization, meaning that each level in the state its own
tax sources. Therefore, a direct institutional link exists between the power to tax
and the direct legislative institutions that provide local citizens with the political
means to influence both sides of the budget equally (Kirchgssner, 2002). Each
level of the federation has its own degree of direct democracy laid down in its
constitution.
3.1. Mechanisms of participatory democracy

On a general approach, the mechanisms of participatory democracy can
be divided into three categories: mandatory referendums, optional referendums and
popular initiatives, which have some particularities, according to the level where
they are applied (federal, cantonal or communal). At federal level, the mandatory
referendum was introduced in 1848 and it concerns the amendments of the
Constitution or the relation of Switzerland with different international
organizations, such as North Atlantic Treaty Organization or United Nation
Organization. In order to pass such a referendum a double majority is needed:
majority of cantons and the majority of people.
The optional referendum was introduces several years later (in 1874) and it
is used in order to validate a law adopted by the Parliament. Usually, the vast
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majority of laws and legislative acts enter into force uncontested. As an

exception, it is possible for the citizens which disagree with an act of Parliament
to oppose to it, by launching an optional referendum. If enough signatures are
collected to support the referendum (50 000), the contested law or other form
of legislation as set out in the Constitution is put to popular vote. A
referendum can also be requested by a minimum of eight cantons. As a matter
of consequence, the contested law will only enter into force only if the citizens
approve it by referendum. For validation of such referendum it is necessary only
the peoples majority.
In relation with their object, referendums can be classified into statutory
referendum - for laws and decrees (Gesetzesreferendum), administrative referendum -
for administrative acts (Verwaltungsreferendum), referendum for treaties
(Staatsvertragsreferendum) and the fiscal referendum (Finanzreferendum). In
theory, all referenda could exist in both a mandatory and optional form: a
mandatory referendum triggers a popular vote automatically following a decision
by the representative body, whereas an optional referendum must be held only if
some specific requirements have been met by the electorate usually a signature
requirement (Fischer, 2005). In theory, all referenda can also exist in an ordinary
or extraordinary form. If a referendum is ordinary, its (potential) application is
directly stipulated in the constitution; it is, in a sense, part of the daily political
process. An extraordinary referendum can be held if a minority of the
representative organ of the cant on demands it: in this case, the requirements for
taking this extraordinary optional referendum will be stipulated in the legal act
to which it refers. In general, not all types of referenda exist in one canton, and
there is a huge variation in requirements between the Swiss states (Fischer,
2005).
The popular initiative was introduced in 1891 and it gives the possibility to
the citizens to demand an amendment to the Federal Constitution a
constitutional initiative or the cantonal law a statutory initiative. As a general
requirement for any type of initiative is that a specific number of signatures
must to be collected from among the electorate, and the number of signatures
increase proportionally to the importance of the legislative act which is the
object of the popular initiative. We must also add that it can be launched by all
members of the Swiss electorate including Swiss living abroad.
The first procedural step is to form an initiative committee, composed
of between seven and twenty-seven persons who are entitled to vote. The
committee draws up the text of the initiative (which can be a proposal
formulated in general terms or the final draft of a specific project) in German,
French and Italian, along with a title. On request the Federal Chancellery will
provide the committee with sample signature lists. The text is submitted to the
Federal Chancellery, where it is translated into the two (possibly three) other
official languages. After the translations approval it is checked the legality of the
initiative and it is sent to Federal Gazette in order to be published, from which
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date the committee has 18months to collect at least 100 000 signatures, have
them validated by the communes and submit them to the Federal Chancellery.
The popular initiative is not voted on immediately: up to several years may pass
between the initiative being submitted and the popular vote taking place (Golay,
2008).
If the initiative is successful and is not subsequently retracted, the
amendment to the Constitution will be put to the popular vote and needs to be
approved by a majority of the electorate and the cantons (a double majority of
people and cantons) in order to be made. Since 1987, the Federal Council and
the Federal Assembly may propose a direct counter-proposal to the initiative
(usually a more moderate proposal), in the hope that the initiative committee
will retract the original initiative and that the electorate and cantons will support
the counter-proposal. If the initiative (or the direct counter-proposal) is
approved at the ballot box, in most cases parliament then has to draw up
legislation on the basis of the amended article or articles in the Constitution.
The object of a federal popular initiative could be only the amendment of the
Constitution and not the revision or introduction of a new federal law.
However, a request to amend a law, which is called a legislative initiative, is
permitted in several cantons.
In practice, the mechanisms of participatory democracy have a different
insertion in cantons and communes. At the cantonal level, the Swiss federalism
is based on a large political organization autonomy, which is transposed into
twenty-six analogous sub-systems (Kriesi, 1998). As a general remark based on
Swiss statistic, the German cantons are more actively on the field of
participatory democracy than the Latin ones, both because of the citizens
involvement (measured through the presence in the decisional process) and of
the competences and rights of the citizens to propose different laws or
amendments. In communes, the participatory system is even more interesting.
There are two types of communes: a category which has a system of communal
assembly (of all citizens) so-called, ordinary, and a system where the
communes have an own Parliament so-called, extraordinary system. As an
exception, there are several communes who dont belong to any of those
categories, and where all the local decisions are taken by citizens votes (Micotti,
2003). The system of communal assembly can be interpreted as the most pure
form of direct democracy, its immediate expression. The citizens gathered in an
assembly dont limit to voting, but take part at decisions, by intervening into a
public debate or ask questions about the communal competencies (idem).
3.2 A possible expanding of the Swiss model at European level?

When discussing about participatory democracy, all the European
countries have a look at the Swiss system. Moreover, the European Unions
institutions are more and more interested in these mechanisms of citizens
cooptation into the decision-making procedure.
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At European level, we can say that the participatory mechanisms can be

structured on two periods: before and after the entry into force of Lisbon
Treaty. The "before" period refers to the position and rights of the individual
based on the national citizenship and, in particular, developed by the political
status of Member State citizens in their additional identity as citizens of the
European Union (Pernice, 2009). The channels of direct communication and
participation were mostly based on the representation mechanisms (as we will
analyze in the next section of this study).
The entry into force of the Treaty of Lisbon represents a significant step
forward in European integration. Its provisions on democratic principles state
that functioning of the Union is based on representative democracy, and
that this in turn consists of public participation, both indirect and direct. The
European democratic model is expended and strengthened by participatory
democracy, as enshrined in the Treaty. Specifically, the provisions relating to
participatory democracy (Article 11) include: horizontal civil dialogue (Article
11.1), vertical civil dialogue (Article 11.2), the Commissions already existing
consultation practices (Article 11.3) and the new European Citizens Initiative
(Article 11.4).
On the basis of Article 11(4) of Lisbon Treaty and following the trend
set by the European Commission on the way of deepening the participatory
democracy (a White Paper on European Governance (2002), in order to
reinforce the culture of consultation and dialogue in the EU and a Green Paper
published on November 2009) it was adopted the Regulation no 211/2011,
which was published in the Official Journal on 11 March 2011. Member states
had 12 months to prepare their national legislation for the ECI, so the first
citizen initiative could have been registered starting from 1st April 2012.
To ensure that ECIs are "well-founded and have a European
dimension", a so-called "citizens' committee" of at least seven members coming
from seven member states will be set up to register an initiative. The organizers
shall designate one representative and one substitute (the contact persons),
who shall liaise between the citizens committee and the institutions of the
Union throughout the procedure and who shall be mandated to speak and act
on behalf of the citizens committee. It is forbidden for the Members of the
European Parliament to be counted for the purposes of reaching the minimum
number required to form a citizens committee.
Once the one million of signatures are successfully collected during the
available 12 months, signatures are submitted to the member states which have
to verify the authenticity of signatures and governments will be free to decide
how to do so. Organisers will be granted a public hearing with representatives of
all three EU institutions and then the Commission will adopt a formal response
spelling out what action it will propose in response to the citizens' initiative, if
any, and the reasons for doing or not doing so. The response, which will take
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the form of a communication, will be formally adopted by the College of
Commissioners and published in all official EU languages (Lazar, 2014).
The next step is that Commission must decide within three months if it
will propose a new law and it will have to make public its reasons for (not)
doing so. That means that the Commission is under no obligation to translate
the will of the people (it has an absolute discretion), as expressed in an ECI into
European law, as this depends on whether or not it has the power to do so and
we shall not forget either that the monopoly of initiative of the Commission
remains. If the Commission decides to put forward a legislative proposal, the
normal legislative procedure kicks off: the Commission proposal is submitted to
the legislator (generally the European Parliament and the Council or in some
cases only the Council) and, if adopted, it becomes law. On 19 March 2014 the
Commission decided to react positively to the first ever successful European
Citizens' Initiative, the Right2Water ECI.
There are several opinions in the European countries (Kuafmann, 2012)
which consider the the new European citizens Initiative is a transposition to the
transnational level of the EU of a direct Swiss democracy, where the Member
States would be the equivalent to the Swiss cantons. There are also discussions
in Brusselsinstitutions about the opportunity of deepening and enlarging the
sphere of citizens participation in the field of financial issues, starting also from
the Swiss model.
4. THE PERPETUAL SEARCH OF PARTICIPATIVE DEMOCRACY

IN FRANCE
The French revolutionaries introduced a certain form of direct
democracy as a technique to help achieve their revolutionary goals. The Jacobins
invented the plebiscite which, from the first, was a device to assist governments in
totalitarian democracies to achieve legitimacy. They would have the people vote
on a single issue when it arose to provide backing for the revolutionary regime.
The modern forms of participatory democracy emerged in the 1970s,
when some politicians have called for the use of referenda at national and local
levels. The local level, as a level of proximity between local representatives and
electors, is often seen as appropriate to encourage a local participation. Since
then, the participatory democracy was used as a cure against the decline of the
representative system.
4.1. Typologies of national referendums after the last Constitutional

amendment
At the moment, in France there are several procedures of participatory
democracy. The most significant is the referendum, which can be implemented
at national or local level, as an exceptional instrument whereby citizens are asked
to vote directly on a draft organic law, on a draft statute law or on a draft
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constitutional revision. The Constitutional basis for the development of

participatory procedures is the Article 3, which states that National sovereignty
shall belong to the people, who shall exercise it through their representatives or
by means of referendum.
The national referendum can have two general objects: the amendment of
the Constitution the Constitutional referendum and the change of different laws
legislative referendum. The Constitutional referendum is regulated by the Article 89,
which states that "the President of the Republic, on the recommendation of the
Prime Minister, and Members of Parliament alike shall have the right to initiate
amendments to the Constitution. The amendment shall take effect after
approval through referendum. However, a Government Bill to amend the
Constitution shall not be submitted to referendum where the President of the
Republic decides to submit it to Parliament convened in Congress; the
Government Bill to amend the Constitution shall then be approved only if it is
passed by a three-fifths majority of the votes cast. The Bureau of the Congress
shall be that of the National Assembly. No amendment procedure shall be
commenced or continued where the integrity of national territory is placed in
jeopardy. The republican form of government shall not be the object of any
amendment.
An important innovation was made to the article on legislative
referendums by the constitutional revision of 23 July 2008, when it was
introduced the minority referendum. According to the new article 11(1) these may
be held on the initiative of one-fifth of the Members of Parliament, supported
by one-tenth of registered voters. This initiative shall take the form of a Private
Members Bill. If the Private Members Bill has not been considered by the two
Houses within a period set by the Institutional Act (loi organique), the
President shall submit it to a referendum. The result is binding. These bills must
be reviewed by the Constitutional Council to check their conformity with the
Constitution before they are submitted to referendum. Bills for the Institutional
Act and ordinary law required to regulate this provision were only presented on
22 December 2010. A period of three months is proposed for collection of
signatories, using electronic methods, once the initiative is declared to be in
conformity with the constitution. The Constitutional Council is to rule on
constitutionality once the Parliamentary signatures have been given. A period of
12 months is proposed for consideration of the initiative by at least one of the
Chambers of Parliament.
A part of the doctrine (Diemert, 2009) criticized this form of
referendum, even before its putting into practice, by arguing that it does nothing
to help or to support popular initiatives since the initiative is in fact
parliamentary; the role of citizens is simply to support an initiative; and the
whole process can come to nothing if one chamber of parliament considers the
initiative, in which case no referendum is held. However, although the law
allows for binding referendums, they appear in practice to be more of a
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consultative than a decision-making nature. The future of this procedure is
opened in order to observe its practical effectiveness and efficient.
4.2. Local democracy a fertile field of experimentation in France

Maybe the most spectacular and constant evolution was registered for
the local referendum. While the first consultative referendum was made in 1992, in
1995 the legislator created the the possibility for 20 per cent of the voters to
request a (non-binding) consultation on planning and development decisions
(Law No. 95-115 of 4 February 1995). The constitutional revision from 2003
introduced the local rights of petition - citizens can ask for a matter within the
powers of the community to be entered on the agenda of its Deliberative
Assembly - and referendums that may be held, on the initiative of the local
authorities, on draft decisions or acts within the powers of a territorial
community (article 72). According to the Article 72(1) Referendums may also
be called on the creation of a special-status territorial community or
modification of its organization, and changes to the boundaries of territorial
communities. Special provisions apply to overseas populations.
The General Code of Territorial Communities (GCTC) has detailed the
constitutional articles on local referendum. The articles LO1112-1, LO1112-14,
R1112-1 to R1112-17 states that only the local executive is competent to
propose to the deliberative assembly organizing a referendum on an act within
its jurisdiction. Only voters, not all people can vote. European voters can
participate in referendums organized by their commune. The representative of
the State may oppose any proposed referendum on an object not within the
jurisdiction of the organizing commune. Referendum cant be held within six
months before the full or partial replacement of the deliberative assembly. It
cannot be organized on the same day as other local or national elections or
statutory consultations. The organizing deliberation and purpose of the
referendum cannot interfere with the exercise of a public or individual freedom.
The expenses related to the organization of the referendum are the
responsibility of the host community. The project submitted to local
referendum is adopted if at least half of registered voters participated in the poll
and if it meets the majority of votes cast. If this last condition is accomplished,
the referendum is a decision that the local host community must legally follow.
Otherwise, the referendum has the value of an advisory opinion.
In general, the local referendum allows the electorate to replace the
council to make a decision on a communal affair, while consultations with
electors occurs upstream of the decision process to inform the council called to
deliberate. The municipal council may decide to submit to local referendum any
deliberation on a matter within the competence of the local authorities. Equally,
the mayor can propose to the council to submit any proposed local referendum
act within the powers it exercises on behalf of the town, with the exception of
projects individuate acts (articles L.O. 1112-1 et L.O. 1112-2 GCTC). After this
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proposition, the municipal council establishes the calendar and put into practice
the organization of the local referendum. The law provides several mandatory
procedural terms during this procedure (e.g. the mayor must transmit to the
municipal council the deliberation of organizing a referendum in maximum
eight days; the state representative in the collectivity can appeal to the
administrative tribunal the decision of organizing a referendum, if he considers
it to be illegal, in ten days, etc.). The mayor contributes to the organization of
the referendum.
The adoption of the law of 13 August 2004 (in its article 122 also
introduced and developed by the Articles L1112-15 and L1112-22 of GCTC)
created the possibility for all the territorial community (not only for the
commune, as it was regulated in 1992) to consult the citizens on every particular
problem of the community. This type of consultation is a complementary form
of the referendum and can be applied before taking the decision for the whole
collectivity, or just for one part of the community. The procedure of
consultation is bi-directional, meaning that also the citizens (fifth of registered
voters on electoral rolls) can request that a local problem is to be placed on the
agenda of the local representative authorities. The law limits the possibility of
the signatory citizens to introduce more than one initiative per year. In
quantitative terms, that means that this type of initiative can be used maximum
for 5 times per year (considering that all the voters participate actively at the
democratic life of the community). Another restriction is introduced by the law
when it creates a filter for the mayor to appreciate the opportunity to put the
request to the agenda of the deliberative assembly, being argued the right to
petition of the citizens (as regulated by the Article 72-1 of the Constitution and
GCTC) refers to ask, but not to obtain the registration of a case to the agenda
of this meeting. At this point, the procedure is commune with the one of
referendum, described above.
In the last years the French local participatory democracy was
decentralized, being implemented at neighbourhood level through the creation
of neighbourhood councils. At this level, it is a matter of engaging citizens in debates
on day-to-day issues and on their living environment, which call upon their
expertise as users of urban spaces. However, the injunction to participate has
now moved beyond this micro-local scale and spread to all forms of local
government. The French local democracy law of 2002 requires only those
towns and cities with more than 80,000 inhabitants to set up neighbourhood
councils, in whatever form they feel most appropriate to their areas.
Each neighbourhood has such a council whose name, composition and
working procedures are established by municipal council. These councils can be
consulted by the mayor and can make suggestions on any matter concerning the
neighborhood or the city. In addition, the mayor may associate them to the
decisional process, especially related to the policy of the city.
138
Equally, in the last years, regional councils in France have proved to be a
key arena for innovation and often project an image of being new democratic
laboratories (Sintomer and Talpin 2011). They propose the development of
measures(Gourgues 2012) of an original nature and build new audiences for
participation on new territorial bases (Mazeaud 2012). The new form of
participation is made through citizen juries that have been created in certain
regions, in order to make it possible to reach out to lay citizens (by randomly
selecting names from the electoral register) and seek to reconcile numerical
factors (or at least representativeness) and rationality (through the
implementation of procedures that follow the model of deliberative
democracy) (Lefebvre, 2013). Councils have started to allocate budgets for
these participatory measures, with the effect of involving citizens or high-
school students in decision-making processes from which they were
previously excluded (idem).
The latest reform in the field of participatory democracy in France took
place in 2010 when the participatory mechanisms have been left to the
discretion of local authorities, so that the local representatives can use it in any
king they considered to be most appropriate. One of the paradoxes of
participatory democracy is that it has developed at a time when one might
perhaps challenge the existence of a real social demand for participation, which
is typically implemented by elected officials in order to give legitimacy to their
measures rather than being truly citizen-led (Lefebvre 2010).
5. LOCAL PARTICIPATORY DEMOCRACY IN ROMANIA IN ITS

EVOLUTION AND WEAKNESSES
In Romania, the citizens participation in local decision-making process is
not expressly regulated in the constitutions, although it can be indirectly
deduced from some constitutional principles, like people sovereignty (Danisor,
2008), principle of decentralization related to the local autonomy. In these
conditions, the legislator is the only authority capable to shape the profile of
participatory procedures and the local authorities are encharged to put them into
practice on a most appropriate manner for protecting the citizens rights
(Albastroiu, 2014).
Most of the doctrine, the politicians, the functionaries and the citizens
support the idea of having more democratic decisionary procedures, although
there are isolated voices stating that participatory democracy exceeds the
constitutional principles in Romania and as a matter of consequence, it
shouldnt exaggerate with the role of citizens in the public administration, and,
in any case, participation shouldnt be full and permanent (Manda, 2008). This
sort of reticence is transposed into the practice of local administrative
authorities, although there are some mechanisms that could have been used,
such as citizens initiative or the local referendum.
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The citizens initiative was regulated by the law no 215/2001, which gives
the possibility to the citizens to propose to the local councils or to the county
councils in whose territorial jurisdiction they live, draft resolutions for debate
and adoption. Promotion of such a draft resolution may be initiated by one or
more citizens eligible to vote, if it is supported by signatures of at least 5% of
the voting administrative-territorial unit. Lists of supporters can be signed only
by the citizens entitled to vote who are resident in the administrative-territorial
unit radius whos local or county council is expected to discuss the draft
resolution. After the deposition of the signature list and of the draft project and
the verification by the secretary of the administrative-territorial structure, the
project will be introduced on the agenda of local/county council. Although the
law created this mechanism of participation it is almost never used in practice.
The second participatory instrument for the citizens is the local
referendum, regulated by the Law no 3/2000 which creates two types of
referendum: mandatory (the referendum on the organization of new communes
or on the modification of territorial limits of the commune/city/county) and
facultative (which comprises the referendum on a local problem and the
referendum for the dismissal of local representatives). This categorization of the
law has generated confusion in practice, meaning that the authorities have
interpreted the law in different ways, according to their interest in each
particular situation. We consider that the sense and the spirit of law should be
interpreted only in terms of having the initiative of organizing a referendum,
and not related to the results of a referendum, which should be mandatory for
the local authorities.
Although the Romanian legislation in referendum was inspired by the
French one, we can say that the Romanian legislator has created a more
complex procedure. While in France, after the final legislative and constitutional
reforms there is an approximately legal regime for all types of referendum, in
Romania for each type of referendum there are several particular aspects. For
example, for the referendum related to local problems, the initiator can be the
mayor, the president of county council or 1/3 of the number of local councilors,
respective, county councilors, while for the referendum of dismissal the
initiative belongs to at least of the electors in the administrative-territorial
community. For the referendum on territorial delimitation changing, the
initiative belongs to the neighbor local or county councils. The law is quite
restrictive when establishes the three categories of referendum and its limits of
initiation. For example, the most accurate way that citizens can vote on a daily
problem of the community is the referendum for local problems, but in this case
the initiative belongs to the representatives and into a local context of
contradiction between the two parts, the citizens voices would never be heard,
because if the authorities want to avoid the citizens voices they have all the
discretion in that. According to the starting point of a participatory mechanism,
we can consider that the only way that citizens can express a proposal is through
140
the local initiative but, also in this case, the initiation of a project does not
guarantee its approval.
One other possible filter and also a limit for the organization of a
referendum is the fact that after the validation of the proposal, the final decision
belongs to a deliberative authority: for the referendum on a local problem, the
decision belongs to the local/county council, while for the referendum for
dismissal of the mayor or of the local councilors it belongs to the states
representative in the territorial collectivity, the prefect. This authority is charged
by the law to organize a committee - with a representative of the mayor, a
representative of the local and of the county council and also a judge from the
court in whose jurisdiction will be held the referendum that will procedurally
organize the referendum. The next step would be the organization of the
referendum and the analyze of its result, meaning the reception of citizens
expressed will into an administrative act. Unfortunately, the incoherence of the
law does not oblige the local authority to take into account the results, prevailing
by the fact that the referendum has a consultative value. In such cases, the
efficiency of the participative procedure not only that it doesnt exist, but also it
may ridicules and frustrate the citizens.
If it would be to make a general radiography of the local participatory
process in Romania, its main feature would be the lack of a unitary and coherent
procedure of consultation and dialogue, fact that is reflected in practice on
consultation quality and effectiveness of participatory procedures. Although we
can appreciate the tendency from the last decade of the Romanian legislator to
gain field for the participatory democracy (at list at the principles level), there are
still a lot of problems that persists, sometimes the legislation is to complex,
incoherent and the norms from different laws are not well correlated.
We consider that this regrettable deficiencies of the legislation can be
overpasses by a fair and democratic-oriented attitude of the local authorities,
which can create different channels of communication with the citizens, even
starting from the principles of local autonomy, from the interpretation and the
application of the existing legislation in a manner that valorize the citizens
rights. The process of building a solid system of participatory democracy is very
complex and structured by several levels, one of the firsts being accomplished
by correct, objective and active information of the citizens about their rights, the
way they can valorize them and the decisions that are to be taken at every
deliberative level. Only in this way we can avoid that the democracy is to be
captured by the representatives (Hlin, 1995) and the participatory procedures
does not become a ghost (Zavioli, 2000).
The main idea of a healthy participatory democracy is not to find, to
discover or to import different models of participation, but to give to the
citizens more space and time to express themselves, to determine them to
participate in the political, social and administrative life of their community, to
exercise this popular sovereignty which founded democracy. The dynamic, still
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Marina Irina LAZR
unfound of the classic democracy, can find today in participatory democracy a

new level of its evolution (Falise, 2003).
CONCLUSION
We can say that the success or rather, the problems that it encounters
the participatory democracy from a social standpoint depends to a large extent
on the uncertainty of its objectives, the heterogeneity and plasticity of the
worlds of meaning that it mobilizes, and the ambiguous relationship that exists
between participation and decision-making. It is as if we are celebrating the
advent of a right to participation without specifying exactly what one has the
right to participate in (Blatrix 2009). This is why citizens education,
information and the building of a civic attitude oriented towards participation
are the premises of a healthy participatory democracy, which remains a fertile
filed for exploring in the next administrative reforms all over the world. The
future of participatory democracy is open and it depends on the logic and
orientation of the process of modernizing the public administration, doubled by
the impulses received from the civil society.
Acknowledgment:
This work was supported by the strategic grant POSDRU/159/1.5/S/133255,
Project ID 133255 (2014), co-financed by the European Social Fund within the
Sectorial Operational Program Human Resources Development 2007-2013.
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Nato`S Peacekeeping Operations in Ethnopolitical Conflicts
NATO`S PEACEKEEPING OPERATIONS IN

ETHNOPOLITICAL CONFLICTS
Ana-Maria BEJAN1
Abstract:
This paper aims to present and analyze briefly peacekeeping operations conducted by
the North Atlantic Treaty Organization in the areas of ethno-political conflict.
North Atlantic Treaty Organization (NATO) has acquired unique experience in
conflict prevention and crisis management, its new strategic concept of the Alliance enshrining
the idea that security is inextricably linked to the security of other countries in Europe and
recognizing the potential risks to the security of the Alliance lies in the first instance, the
negative consequences of the instability of states in terms of economic, social, political and even
ethnic rivalries and territorial disputes.
North Atlantic Treaty Organization is involved daily in a wide range of projects
aimed at strengthening international security environment.
From the multitude of issues that could be examined tried to determine a causal link
exists between the organization and conduct of peace operations and ethnopolitical conflict
resolution practice.
The researches are devoted to peacekeeping operations in ethno-political conflicts,
conducted by the North Atlantic Treaty Organization.
Keywords:
North Atlantic Treaty Organization, ethnopolitical conflicts, operations, peace.
1 Spiru Haret University, Faculty of Law and Public Administration, Constanta, Romania,
bejanana_maria@yahoo.com
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Ana Maria BEJAN
1. INTRODUCTION
The Washington Treaty of April 4, 1949 (NATO's fundamental
institutional act) does not contain express provisions to serve as a legal basis for
mandating future operations in the hot field, but contains a number of general
clauses on basic concepts of international peace and security.
Thus, according to art. 2 of the North Atlantic Treaty in Washington,
the parties will contribute to the further development of peaceful and friendly
international relations by strengthening free institutions by facilitating a better
understanding of the principles upon which these institutions are founded, and
by promoting conditions of insurance stability and welfare. They will seek to
eliminate conflict in their international economic policies and will encourage
economic collaboration bilateral or multilateral. According to art. 3 of the
Treaty, in order to more effectively meet the objectives of the parties, separately
or together, through self-help and mutual support continue, will maintain and
develop their individual and collective capacity of resistance to an armed attack.
According to art. 5 of the North Atlantic Treaty, the Parties agree that
an armed attack against one or more of them in Europe or North America shall
be considered an attack against them all and consequently they agree that, if
such occurs armed attack, each of them, in exercise of the right of individual or
collective self-defense recognized by Article 51 of the Charter of the United
Nations, will assist the Party or Parties attacked by conducting forthwith,
individually and in concert with the other Parties, such action as the it deems
necessary, including the use of armed force, to restore and maintain the security
of the North Atlantic area. Any such armed attack and all measures taken as a
result thereof shall immediately be reported to the Security Council. These
measures shall be terminated when the Security Council shall adopt the
measures necessary to restore and maintain international peace and security.
Thus, although the organization and conduct of peace operations finds
no direct consecration in the text of the North Atlantic Treaty Organization,
peace and collective security is defined by him as one of the basic tasks of the
organization, naturally referring to the prevention and resolution ethnopolitical
conflicts including the origin.
The conflict prevention includes different activities that range from
diplomatic initiatives to preventive deployment of troops and intended to
prevent disputes from escalating into armed conflicts. Conflict prevention can
include defining missions, advisory, alarm, inspection and monitoring. In turn,
preventive deployment, normally consisting of civilian forces and / or military
are sent to avoid a crisis.
The preventing conflict can never be guaranteed. Military resources used
for these missions must attend basic political and diplomatic efforts to resolve
the dispute sparked.
146
NATO is involved daily in a wide range of projects aimed at

strengthening international security environment. These include support for
reforming the armed forces, strengthening programs for conversion of former
military officers to improve civil activities and assistance in mine clearance and
destruction of stocks of ammunition depleted.
For a mission carried out by NATO allied forces in the settlement of
ethno-political conflict to end with success, it needs to be analyzed and tuned
aspects of information and communication system, specialized information and
intelligence, logistics, healthcare operations training, sufficient and qualified
administrative staff, financial aspects.
2. NATO`S PEACEKEEPING OPERATIONS

The Strategic Concept adopted in Lisbon in 2010, reflected a
transformed Alliance, highlighting the experience of crisis management in the
Balkans or in Afghanistan and the importance of cooperation with partners
around the world have led to reassessment and revision of NATO permanent
actions.
Under the new Strategic Concept, NATO adopted a comprehensive
approach to crisis management, committed, to the extent possible and
necessary, both in the prevention and management, as well as in stabilizing post-
conflict situations and support reconstruction.
Currently, the North Atlantic Treaty Organization conducted five
operations and missions in various regions of the world, namely in Afghanistan,
Kosovo, Mediterranean coasts of Africa and African countries in the field
operations in support of the African Union, several major operations
undertaken by the allied forces (in Bosnia and Herzegovina, Serbia, Macedonia,
etc.) already completed.
The NATO's mission in Afghanistan established by the United Nations
Security Council Resolution no. 1510 in August 2003; constitutes the major task
forces deployed Unified Organization, currently consisting of over 87 000
soldiers of the world 49 countries deployed throughout the territory of
Afghanistan. The main goal of the mission is to assist the Afghan government in
creating a climate conducive to the functioning of democratic mechanisms,
establishing public order and ensure the rule of law. The mandate of the
operation of the Taliban fight terrorist groups in order to build a foreign war,
and economic and political disaster. We can not overlook the fact that the
activities of the NATO mission in Afghanistan also includes the preparation of
the national armed forces able to meet the challenges of the field.
As for the new mission, Resolute Support, it will be training, advice and
assistance to local security forces, is expected to be completed in late 2014.
Already now unified under NATO forces gradually transmit national army and
police responsibilities insurance sector and maintaining peace and order.
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Ana Maria BEJAN
Following completion of the mission, NATO forces will occasionally

provide further assistance training Afghan national forces and organize military
experiences in the field.
The NATO operation in Afghanistan, unfortunately did not end with
the establishment of lasting peace and real security, there is still uncontrolled
territories administered by the Taliban and actual constitutional authorities.
While Afghanistan remains the primary theater of military operations
NATO Allies deploys troops in other parts of the world particularly hot as a few
years ago was the Kosovo region. Currently, over 5500 soldiers are deployed in
the Balkans as part of NATO forces in Kosovo (KFOR) in 1999 after entering
the region.
In the case of Kosovo, domestic violence escalated during late 1997 -
early 1998, at that stage the international community are interested and to take
quick action and strong, given the tragic events that occurred earlier in Bosnia
and Herzegovina. Authorities Federal Republic of Yugoslavia and the Kosovo
Albanian representatives were invited by the UN Security Council to urgently
seek a political solution as appropriate, which, however, was not achieved, with
frequent clashes between civilians heterogeneous internally displaced persons by
Yugoslav Army resulted in the massive flow of Albanian refugees in neighboring
countries and distant. (Simma, 1999)
The KFOR forces have been core objectives multiple stopping violence
and the humanitarian disaster, although they were made over a decade and a half
Allied presence in the area is still quite strong in its primary focus on promoting
and supporting dialogue opened between Belgrade and Pristina to normalize
relations and resolving Kosovo Serb political impasse in which the northern part
of Kosovo with Serbian inhabitants multiples.
KFOR is thus responsible for deterring potential hostilities, establishing
a safe and secure environment demilitarization of the Kosovo Liberation Army.
In addition, the NATO-led force supports international humanitarian efforts
and cooperate with UNMIK international civilian presence to create a stable
security environment favorable to the future development of the province.
In fact, NATO operations are not limited to areas of ethno-political
conflict, religious or any other kind, including Allied forces being held to give
new dimensions to the global fight against terrorism even in marine areas. Since
2003, NATO naval forces continuously monitor vessels in the Mediterranean
basin, focusing on the discovery of traces of terrorist activity at sea in
accordance with recognized norms and principles of international law.
Follow so to point out that, as a result of increasing NATO naval
activity in the Mediterranean unquestionably increased the overall level of
security in the area, especially in the region of Gibraltar, which delimits the
continent of Africa.
148
The NATO naval operations is based on four basic principles, namely

deterrence and collective defense, crisis management, security cooperation and
maritime security.
Fighting piracy around the coast of Africa is the most recent mission
conducted dating to August 17, 2009, and aims at strengthening collective
international efforts to combat piracy in the territorial waters of related free
along the African coast. Also, the mission to assist allied forces littoral states to
combat piracy activities recorded nationally, but also in strengthening the
capacity of the countries concerned to intensify naval battles with pirates.
Besides the Euro-Atlantic region, NATO forces assisting in building
peace and promoting international security on various parts of the world,
separately supporting peacekeeping operations carried out under the AU African
territory, for example joint mission in Somalia in 2007. Specifically NATO
forces provide security airspace armies regional African organizations in the
implementation of humanitarian activities, Somalia is a poor country affected by
the crisis and tribal ethno-political conflicts have been since 1960, even high-
level conflicts internal civil war.
As with a mandate ended assignments carried out by NATO forces in
Bosnia and Herzegovina remember the (completed in 2004), Macedonia (2002),
Iraq (2011), Pakistan (2006), Sudan and Darfur (2008), Libya ( 2011) etc.., states
mentioned the regions mostly affected by ethnic and religious conflicts.
In this context, with special mention was SFOR mission deployed in
Bosnia and Herzegovina, established by the UN Security Consliului Resolution
no. 1088 of 12.12.1996, now completed, which effectively ended the bloody
ethnic conflict between Serbs, Croats and Bosniaks. The core mission
successfully referred to the NATO operation "Deliberate Force", which aimed
to stop hostilities and bringing stakeholders to the table, causing the December
1995 signing of the Dayton Peace Agreement between Serbian President
Slobodan Miloevi, the President of Croatia Franjo Tudjman and Alija
Izetbegovi Bosnian leaders. It is striking that this mission has been criticized by
the Russian Federation, which required the intervention of the immediate
cessation of operations and continually challenged the legality of SFOR.
(Gazzini, 2001)
Strongly criticized NATO's mission was and held in Serbia (then Federal
Republic of Yugoslavia), when they conducted aerial bombing of Belgrade since
it was organized without the express consent of the UN Security Council. In this
case, NATO's strategic objectives were related to injury Serbs capability to
conduct any military action in Kosovo and in neighboring countries (Fenrick,
2001) so as to neutralize the administrative and military potential of Belgrade.
Although Allied forces put forward arguments for maintaining international
peace and security by stopping the ethnic conflict between the Yugoslav
nationals, the transactions in land naturally caused casualties among the civilian
population and spending conditioning absolutely specific incidents.
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Ana Maria BEJAN
Thus, the bombing of Serbia in the wake of NATO forces have suffered
more civilian casualties on April 12, 1999 being attacked passenger train in the
town Grdelica Gorge therefore were killed 14 Serb civilians including children
and pregnant woman and seriously injured 16 civilians; on 14 April 1999
following the air attack on convoy escort Serb refugees in the town of Djakovica
Albanians were killed 73 Kosovo; On 23 April 1999 the building was bombed
Belgrade Serbian television and radio, causing the death of 16 employees; 5 May
1999 destroyed the Chinese embassy in Belgrade in an air strike, was killed three
Chinese nationals and 27 wounded, including diplomats. (Benvenuti, 2001)
Subsequently, on May 14, 1999, NATO air forces bombed the village
Koris pursuing the objective of destroying Serb military deployment point in the
result but killing at least 87 Kosovo refugees and wounding 60 civilians.
(Krieger, 2001)
What would seem paradoxical, but the Committee established by the
Prosecutor International Criminal Tribunal for the former Yugoslavia to the
analysis carried out by NATO air campaign against the Federal Republic of
Yugoslavia, found no evidence of qualification of acts committed as crimes
within the jurisdiction of the court, disregarding many civilian casualties and
providing evidence presented reveals that as allies, ordered juveniles incorrect
information on a target of organized later, unaware of the presence of civilians
or, where appropriate, the deployment of diplomatic representatives of other
states. It is worth noting that the conflict arose with the official Beijing was
settled after paying a repair of 28 million. U.S. $ and 4.5 million by the Chinese
government. dollars victims' families.
3. CONCLUSION
As a conclusion, we can say that the whole evolution of NATO`s
peacekeeping operations can demonstrate that the Alliance is working to an
autonomous system of collective security without constraints, with a flexible
approach from its threats to international security.
However, despite some failures, NATO actively contribute effectively
and to promote peace and security on the broadest scale its operations
undertaken by demonstrating a willingness to act both as a positive driving force
capable of producing qualitative changes in the relations interstate and
demonstrating institutional real possibility to meet the new challenges of peace
and security features of the XXI century.
BIBLOGRAPHY
P., Benvenuti. (2001). The ICTY Prosecutor and the review of the NATO
bombing campaign against the Federal Republic of Yugoslavia. In:
European Journal of International Law, no. 3 :520-526.
150
B., Simma. (1999). NATO, the UN and the use of force: legal aspects,: European
Journal of International Law no. 10, :6.
W. J. Fenrick. (2001), Targeting and proportionality during the NATO bombing campaign
against Yugoslavia, European Journal of International Law, no. 3, :497.
T., Gazzini. (2001), NATO coercitive military activities in the Yugoslav crisis (1992-
1999).European journal of International Law, no. 3 : 404.
H., Krieger. (2001). The Kosovo conflict and international law. Cambridge: Cambridge
University Press.
Web
Lessons learned in Peacekeeping Operations [On-line]:
http://www.nato.int/docu/peacekeeping_lessons/peacekeeping-
lessons-eng.pdf
Final Report to the Prosecutor by the Committee Established to Review the
NATO Bombing Campaign Against the Federal Republic of Yugoslavia.
[On-line]:
http://www.icty.org/x/file/About/OTP/otp_report_nato_bombing_e
n.pdf
NATO operations and missions. [On-line]:
http://www.nato.int/cps/en/natolive/topics_52060.htm NATO Naval
Operations. [On-line]:
http://www.nato.int/cps/en/natolive/topics_70759.htm
The North Atlantic Treaty, Washington D.C.- 4 April 1949 [On-line]:
http://www.nato.int/cps/en/natolive/official_texts_17120.htm
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152
The Dynamics of Decentralization in East-central Europe. Application on Four
Municipal Councils
THE DYNAMICS OF DECENTRALIZATION IN

EAST-CENTRAL EUROPE. APPLICATION ON
FOUR MUNICIPAL COUNCILS
Roxana MARIN1
Abstract
The present paper constitutes an attempt at critically examining the dynamics of
decentralization in the countries of former Sovietized Europe. Concretely, the study focuses on
the experiences of four countries of East-Central Europe (Romania, the Czech Republic,
Poland, Bulgaria), in terms of legislation change after 1989, and the practical impact of these
changes upon four distinct local communities, four small-to-medium sized towns, i.e. Tecuci
(Galai county), esk Lpa (Liberec region), Olenica (Lower Silesia voievodship), and
Targovishte (Targovishte county). This empirical endeavor employs the legal acts adopted in
these countries following the communist breakdown (Romania, 2001; the Czech Republic,
1990 & 1994; Poland, 1998; Bulgaria, 1998 & 2004), and uses these legal foundations
in order to establish the de facto level of decentralization characteristic for each country, and to
inquire into the outlook and the priorities of the elites governing the three communities. The
local political elites is operationalized here positionally, taking into consideration the
members of the Municipal Councils, on whom written questionnaires, document analysis, and
participatory observation are applied. The results gathered thus far point to a series of
hypotheses: (H1) The more significant the level of decentralization, the more isolated the local
political elite becomes, the higher the degree of localism it presents in cultural-geographical
identification. (H2) The more considerably the level of decentralization prevails in the system of
local government, the more reserved, stoic, partly realistic, the attitude manifested by the local
political elites towards the benefits of the decentralization panacea. (H3) The lower the
degree of decentralization, the higher the tendency of elites to assume an active, decisive role
especially in the decisions in those less problematic, soft spheres. (H4) The more the degree of
administrative decentralization increases, the more satisfied the political elite feels inhabiting
the town which it represents.
Keywords:
local political elites, decentralization, East-Central Europe, priorities, elite models,
local autonomy (P48)
1 PhD candidate, Doctoral School of Political Science, University of Bucharest
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1. THEORETICAL ASSESSMENTS. DECENTRALIZATION:

DEFINITION, TAXONOMIES
The problmatique of the decentralization of public services towards the
local communities has represented a perennial preoccupation on the agenda and
within the programmes of the postcommunist governments, while its legislative
realization and, further, the implementation of such a policy have generated
remarkably diverse here and there, controversial outcomes: on the one hand,
observers and decision-makers praise the benefits of local autonomy and
independent public policy at the local level, accompanied by a more meaningful
citizens participation, on the other hand, contestations are voiced through the
prism of what is seemed to be a gradual impoverishment of the small-to-
medium sized municipalities, in the absence of the financial support provided by
the state budget. The question of decentralization is much more conspicuous in
periods of crisis, as it puts a considerable pressure on the financial situation of
the local communities which, in a decentralized and devoluted administrative
system hence in the absence of the significant sums recouped from the state
budget , find themselves obliged to collect appreciable taxes in the local budget
from a population increasingly impoverished by the effects of economic
fluctuations. In this sense, the degree of de facto decentralization is probably the
most relevantly illustrated by the average proportion from the local budget of all
the administrative-territorial units on the area of a state, ensured out of its own,
independent sources, by the municipalities themselves: within those state with a
decentralized administrative tradition, the budgetary proportion resulting from
the al of the municipalitys budgetary revenues (e.g. in the case of Poland); on the
other hand, countries administratively centralized are situated, encompassing
those municipalities exposing serious problems in the management of local
finances, collecting approximately 30-40% of the budgetary revenues, while the
rest of the income emanates from the state budget. This is the case of Romania,
as well, where the successive attempts of decentralization and devolution failed
to prepare the small communities (i.e. the communes, the small-to-medium sized
towns) in efficiently collecting and effectively administering the local taxes.
Meanwhile, after the 1989 momentum, the local communities have been entrusted
with increasingly broad administrative attributions (e.g. the administration of
schools and hospitals, the management of public security, social welfare, etc.),
without them improving somehow the capacity of collecting taxes in an
autonomous fashion. Such municipalities confronted an impoverishment of the
local political elites abilities to initiate and implement local development
projects (particularly, in the sphere of infrastructural development and of
economic growth through investments and attraction of private capital); such a
circumstance has the unfortunate merit to constitute itself into a fertile soil
for unprofitable public vendue, for the exercise of personal influences at the
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Municipal Councils
local level, for corruption and the perpetuation of patron-client-styled
relations (cf. Grzymaa-Busse, 2007).
The notion of decentralization, as antagonistic to the Janusian notion
of centralization, that is the tendency towards unity, suggests the tendency
towards diversity, the diminution and not the opposite of centralization,
the reduction of power concentration, administrative decentralization
connotes the existence of some local public persons, appointed by the
territorys community, with their own attributions, who directly intervene in the
management and the administration of the collectivitys problems, involving local
autonomy, consequently the local communities are guaranteed and are reserved
the task of solving their own problems and of satisfying their own specific
interests (Apostol Tofan, 2008: 253-255 [italics in original, translation
mine]).Therefrom ineluctably appears the problem of the degree of
decentralization propitious to a democratic construct and to an efficient
administration, considering undoubtedly different factors (e.g. the traditions and
the history, the area and the population of the state, the dispersion degree of the
inhabitants, the economic conditions and the political context, etc.); equally
dilemmatic remains also the convenient operationalization of the concept of
decentralization. Adverting on the major discrepancies between
administrative decentralization and political decentralization (that is,
federalism, the most profound form of decentralization, a major
constitutional option, often associated to some exceptional historical
circumstances Frge, 1991: 38), from a legal perspective, Dana Apostol
Tofan (2008: 255) discriminates between (a) territorial decentralization (i.e.
the existence of some elected authorities, at the level of the territorial-
administrative units, authorities that dispose of general material competence),
and (b) technical decentralization or decentralization through services (i.e.
the existence of some moral persons of public law, that perform specific public
services, distinct from the bulk of public services provided for by the state
authorities). Finally, in the studies concerning local governance and local public
administration, the variety of forms that might be established between the
center and its peripheries, i.e. between central, national authorities and local/
regional ones, is beautifully detailed, in practice. Virgil Stoica (2003: 63-66)
distinguishes firstly between centralization (i.e. that form of organization in
which the national unity is of paramount importance, thusly considering that a
strong center can assure the observance of the interests of all groups (either
regional, sectorial or ethnic), [while] a weak one would lead to rivalry and
disharmony, and perceiving particularly significant the legislative uniformity
and equality of resources available to each of the peripheral units), and
decentralization (i.e. the local organization which opposes centralization,
stressing on the specific interest of local communities and insuring much more
possibilities of citizens participation and information and concern regarding
public affairs and governance). Concretely, decentralization needs the
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Roxana MARIN
simultaneous fulfillment of the following prerequisites: the existence of a local

community with its own necessary material means (i.e. a local budget), the
existence of local decision-making bodies elected by the community (not by the
central authorities, which otherwise exert some sort of administrative
endorsement for the limit between local problems and those of general interests
not to be breached.) (Fesler, 1968: 370-379). A notion that frequently
accompanies the discussions regarding the systems of local governance and
administration, de-concentration describes the situation in which in a
centralized society, decision-making is conferred to those agents of the central
authority localized at the local level (as opposed to decentralization, which is
the situation in which decision-making and the prerogatives of the central
authority are conferred to those functionaries who are territorially close to the
citizens they govern) (Stoica, 2003: 64); subsequently, de-concentration is
the distribution of power within a group of similar interests, the political
structure constituting hence the interest of a particular group, while
decentralization is the distribution of power among groups of different
interests, in which at least one group represents the central body (Mawhood,
1983). The different types of decentralization bear as fundamenta different
criteria: organizationally, (1) vertical (i.e. the power dispersion to bottom on
the chain of authority), and (2) horizontal (i.e. the transfer of some
responsibilities to particular organizations outside the central administrative
structure); structurally, (1) functional (i.e. the recognition of some autonomy
of the institutions and public services situated at the local level), and (2)
territorial (i.e. the recognition of some autonomy of the local communities
per se). Generally, according to Stoica (2003: 65-66), decentralization is defined as
comprising two steps: (a) de-concentration (in its tern, being either of
vertical structure, with an unintegrated local administration, or of
prefectorial structure, with an integrated local administration), and (b)
devolution (i.e. the power transfer from the central government to the
regional institutions, as an intermediary stage between the central governance
and the local one; in its turn, devolution can be either administrative i.e. the
regional institutions only implement the policies decided upon at the center ,
or legislative i.e. the establishment of elected regional assemblies, invested
with political responsibilities and with a certain fiscal independence, a situation
which confer them a high degree of maneuver and decision-making in their area
of responsibility) (Heywood, 1997).
The problem of defining, operationalizing and measuring the concept of
decentralization has constituted a perennial one in the sphere of
administrative studies, primarily due to the difficulties in gathering data at the
local level. The de facto degree of decentralization has been measured employing
a series of complementary indicators: (1) the level of proclivity towards
decentralization (Dunn & Wetzel, 2000); (2) the share of subnational
government to the public consumption or to the GDP level (IMF, 2001); (3)
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Municipal Councils
other qualitative indicators, such as: government credibility, social capital (de
Mello, 2000), soft or hard budget constraints (Janos Kornai, 1979, 1980, 1986),
levels of corruption, administrative capacity (Gargan, 1981), the magnitude of
bureaucracy, etc.
The paper assumes that the fashion in which the concept of
decentralization is operationalized and instrumentalized in studies concerning
the local-central relations has been frequently founded on a de jure perspective,
taking into consideration the ways in which each East-Central European country
has constructed the legal fundaments on which a process of decentralization has
been undertaken. Surely, the pieces of legislation constitute important indicators
for establishing a series of traits or different levels of decentralization to be
subsequently identified and measured throughout the region. Nevertheless, the
legislation in each case has presented and continues to present significant
contingencies in actual implementation, driven primarily by the autonomous
administration of local finances. The de facto degree of decentralization and its
effective measurement represent a cumbersome topic for both political
scientists and policy-drafters. Thusly, besides the pieces of legislation
establishing the functioning of the mechanisms presupposed by the said
administrative process, additional markers and indicators should be equally
considered, in order to determine the manner and the extent in which the legal
framework is put into practice, is implemented and developed in the field.
Probably the most commonly employed form of operationalizing the concept of
decentralization is the one currently utilized by the World Bank and the IMF
in the issuing of their annual reports. Along a series of domains of considerable
interest at the local level (infrastructure, education, healthcare, public security,
transportation, social services (including housing and unemployment relief),
cultural and recreational activities, etc.), it evaluates the extent to which they are
dealt with nationally, regionally and locally. This evaluation is constructed
primarily based on pieces of legislation, bylaws, internal regulations of different
administrative and executive bodies, as well as on some empirical endeavors
undertaken by the World Bank and the IMF expertise. The present paper
employs the World Bank/ IMF averages indexes of subnational share of general
government expenditure in the operationalization of decentralization, by
establishing thresholds thusly: (a) a significant level of administrative and fiscal
decentralization describes the countries whose average subnational share of
general government expenditure is higher than 50%; (b) a standard level of
decentralization is specific for those countries with an average local and regional
share of general government expenditure is higher than 30%, but lower than
50%; and (c) a low level of decentralization characterizes the countries with a
subnational share of general government expenditure lower than 30%.
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Social Transpor-
Public Housing &
Educa- Security Recreation tation &
order & Health Communal Average
tion & & Culture Communi-
Safety Amenities
Welfare cation
BULGARIA 2.17 59.53 44.11 8.30 68.95 26.69 12.19 31.70%
CZECH 17.20 17.22 5.98 8.03 68.47 61.89 46.53 32.18%

REPUBLIC
HUNGARY 6.86 46.99 44.83 11.99 74.10 43.97 27.64 36.62%
POLAND 34.30 72.47 87.36 17.49 86.92 76.13 65.34 62.85%
ROMANIA 4.80 9.23 0.36 2.97 83.01 34.74 17.55 21.80%
SLOVAKIA 5.69 2.40 0.26 0.49 56.74 27.00 18.78 15.90%
(Source: International Monetary Fund, Government Finance Statistics Yearbook, IMF, Washington,
D.C., 2001. The data is selected only for the countries of East-Central Europe, former satellites
of USSR.)
Significant level of decentralization: > 50%;
Standard level of decentralization: > 30%;
Low level of decentralization: < 30%.
2. TAXONOMICAL APPLICATIONS ON FOUR CASE-STUDIES.

METHODOLOGICAL NOTES
The present study bears, as its prime scope, the exemplification of the
theoretical considerations discussed above, regarding the level of
decentralization of the administrations of the East-central European states, and
their impact upon the outlook of the local political elites. For achieving its
objective, the present endeavor employs the positional approach of identifying and
analyzing the local political elites, alongside the case-study as the main research
method, using as populations the members of the Municipal/ Local Councils in
four small-to-medium sized towns (approximately 35,000 inhabitants), similar in
terms of developmental strategies (i.e. food industry and service development,
with commercial dominant), localized in four countries of the region: Tecuci
(Galai county, Romania), esk Lpa (Liberec region, the Czech Republic),
Olenica (Lower Silesia voievodship, Poland), and Targovishte (Targovishte
region, Bulgaria): 19 persons in Tecuci, 33 persons in Targovishte, 25 persons in
esk Lpa, 22 persons in Olenica.
From the utilization of the specific research methods (preeminently,
through the administration of the questionnaire to the members of the
Municipal Councils, document analysis on the national pieces of legislation and
on the Councils decisions, participative observation), a series of tendencies are
observable, which the present study associates and correlates with the degree of
administrative decentralization of the three systems of local government
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Municipal Councils
discussed here (cf. Marin, 2013a: 29-56; Marin, 2013b: 363-379): (H1) The more
significant the level of decentralization, the more isolated the local political elite
becomes, establishing preponderantly local relations, and closing its access to
the administration and the elite at the central level, the higher the degree of
localism it presents in cultural-geographical identification. (H2) The more
considerable the level of decentralization prevails itself in the system of local
government, the more reserved, stoic, partly realistic, the attitude manifested by
the local political elites towards the benefits of the decentralization panacea.
(H3) The lower the degree of decentralization, the higher the tendency
presented by the elites to assume an active, decisive role especially in the
decisions in those less problematic spheres (the so-called soft spheres of
administration, such as education, the cultural, recreational, sports and youth
activities, the interethnic relations, pollution and ecology, etc., as opposed to the
hard domains of administration, such as the economic development and the
attraction of investments, the improvement of infrastructure, public safety,
healthcare, social services, etc.); at the opposite pole, when the degree of
decentralization increases, the local decision-makers pragmatically assume also
the leadership in what concerns those domains of major importance at the local
level, essential for the survival of the town. (H4) The more the degree of
decentralization of administration increases, the more satisfied the political elite
feels as inhabiting the town which it represents.
Firstly, the paper inquired into the pieces of legislation, for the four
respective countries, regulating the form and the substance of decentralization
and administrative organization: Law No. 215/2001 on Local Public
Administration, for Romania; the 1990-1994 legislative series Constitutional
Act No. 294/1990 Col.; Act of the Czech National Council No. 367/1990 Col.
on Municipalities, amended as 410/1992; Act of the Czech National Council
No. 425/1990 Col. on District Offices, the Regulation of the Sphere of Their
Activities; amendments to Acts of the Czech National Council No. 266/1991,
No. 542/1991, Act No. 21/1992, Act No. 403/1992, Act No. 152/1994 and
Act No. 254/1994 , for the Czech Republic; Law of March 8, 1998 on Local
Self-government, for Poland; and the Regional Development Act of 1999
(amended for the period 2000-2006), and Local Self-government and Local
Administration Act of September 1991 (amended in 2001), for Bulgaria. From
the study of the pieces of legislation for the three states under scrutiny, the
following types of systems of local government are highlighted: (1) For the
municipalities of Tecuci (Romania) and Targovishte (Bulgaria): from the
standpoint of the vertical relations, a system of local government that is
mixed, Southern-styled (hybrid, in fact, as the local elite is paradoxically
largely isolated), with the dominance of the clientelistic/ patronage model,
based on support, completed by the market-enabling model (for it exists a
imbrications between the political elite and the economic one), of Central-East
European type; from the standpoint of the horizontal relations, a system of
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local government that is accentuated dualist (for both the Council and the
Mayor are popularly elected) and consociational, out of which resulting a
model of semi-presidentialism type. (2) For the municipality of esk Lpa
(the Czech Republic): from the standpoint of the vertical relations, a system of
local government that is fused, Northern-styled, with the preponderance of
the economic-development model, founded on partnership, alongside the
market-enabling model (with a pragmatic-technocratic approach), of Central-
East European type; from the standpoint of the horizontal relations, a system
of local government that is moderate-to-weak dualist (for the popularly
elected Council appoints the Mayor, who is hence responsible towards the
council) and majoritarian (with the Councils dominance in decision-making),
out of which appearing a model of hybrid presidentialism type, with
parliamentarism tendencies (for the appointed Mayor elects his executive
committee by himself). (3) For the municipality of Olenica (Poland): from the
standpoint of the vertical relations, a system of local government that is dual,
Northern-styled, with the prevalence of the welfare state model, sustained
on social empathy (sensitivity), and juxtaposed to the market-enabling
model (with a special emphasis on local investments), of Central-East
European type; from the standpoint of the horizontal relations, a system of
local government that is accentuated dualist (for both the Council and the
Mayor are popularly elected) and consociational, the combination of which
cumulatively determining a model of semi-presidentialism type.
2.1. Results: H1 A localized and isolated political elite

Two indicators are employed in measuring the level of isolation of the
local elite in respect to the center authorities: the predominance of locally-based
contacts and interactions with other groups and institutions, and the cultural-
geographical identification with the town they govern. In this respect, it is
important to note that the local elite of Olenica the most decentralized
community is the most localized group, as compared to the other three cases,
in terms of the networks of power and interactions with elite groups at the
national level. None of the members of the Municipal Council of Olenica
establishes contacts with members of the central administration; only 2.63% of
the respondents in the Polish case have interactions with political
representatives at the level of the voievodship (regional). The frequency of
interactions with other local elected officials is similar: 2.63% of the councilors
in Olenica establish such relations, the lowest percentage among the four cases
analyzed: 11.11% in the case of esk Lpa and more robust 19.51% in Tecuci
and 19.48% in Targovishte. Overall, the members of the Municipal Council in
Olenica are the most isolated group in terms of the networks of power and
elite interactions, hence being the most circumscribed elite group among the
four cases, only 5.26% of the local councilors establishing contacts with other
groups transcending the limits of their constituencies, as opposed to 31.68% for
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Municipal Councils
Tecuci, 25.95% for Targovishte, and 12.69% for esk Lpa. The increased
isolation with the Czech and the Polish local political elites is to be explained
through the prism of the more and more significant degree of decentralization,
hence confirming the first hypothesis: in both the Czech and the Polish cases,
the local elite focuses primarily on the immediate issues their communities face,
linking their interests to those of the groups acting within these communities,
while the contacts with elites outside the town they represent become increasing
sporadic and improbable. On the other hand, the most important relations the
local political elite in Olenica entertains within the community are those with
the neighborhood groups 39.47% of the responses and, more significantly,
with the civic and reform groups 21.05%. Comparably, the percentage and
thusly, the importance assigned to the relations of elites with the
neighborhood is the highest in the Polish case and, overall, the highest among
all types of groups considered here and among all four cases; this percentage is
discrepantly higher as compared to the Romanian (12.19%), the Bulgarian
(16.88%), and the Czech (only 7.93%) cases, a situation which points to the
closeness between the members of the Municipal Council and their immediate
constituency. Such type of relations, though they may appear trivial and
insignificant in the entire political dynamic, bears a particular role especially in
the process of reelection of the local leaders in small-to-medium communities.
Such an interaction is non-mediated, immediate and probably the simplest form
the local leaders can establish with their constituency. The Polish local elite seem
to have understood this key aspect the best. To a considerable distance from the
value assigned to the relation with the neighborhood groups, the increased
frequency of the links between the Council and the civic and reform groups
represents a conspicuous and telling feature of good local governance and of
democratic development at the community level: the Polish percentages in this
area are similar to the Czech ones (21.05% to 25.39%) and dissimilar to the
Romanian and Bulgarian cases (only 4.87%, and 6.49%, respectively). In the case
of contacts with local media, esk Lpa presents an outliner, since the contacts
with the local media represent 15.87%, three to four times higher than the other
three cases. Regarding the local councilors interaction with close friends and
supporters, such contacts should be cumulatively discussed with those with the
neighborhood: 49.99% for Olenica, 29.26% for Tecuci, 20.77% for Targovishte
and 20.62% for esk Lpa. The repercussions of the dominance of those
groups among the municipal councilors links are twofold. On the one hand, it
suggests a profound isolation of the members of the Council to their immediate
constituency, with the almost complete neglect of the networks of power at the
central or regional level (possibly explainable through an increased degree of
decentralization after 1998 that determined intrinsically a local elite more
focused, almost circumscribed to the community they represent, due to the
increased authority and capacity to actually implement changes, rather than
pushing and negotiating for them with the central administration). It is among
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Roxana MARIN
these groups that the Municipal Council extracts grievances, problems to be

dealt with, issues to be solved. On the other hand, the conspicuous prominence
of this type of contacts, rather informal and non-formalized, non-
institutionalized, is prone to generate a general absence of critique in respect to
the political performances of the municipal councilors or, more precisely, a
sort of autism from the part of the members of the Council towards (otherwise
immanent) criticisms and to bear the seeds of phenomena located at the margins
of political structure particularly recurrent in the political compendium offered
by East-Central Europe , such as patronage and clientelism. While, indeed, the
growing frequency of relations with neighborhood groups, with close friends
and supporters is instrumental in taking the pulse of the local demands and
expectations, these forms of interactions are, at the same time, unlikely to
produce criticism directed towards the performances of the Municipal Council
and, more often than not, the local councilor has to respond somehow to the
unconditional help and support he receives from these groups, strategically
placing individuals belonging to such groups within the local administration
apparatus. Clientelistic practices of this fashion are rather commonplace for
Tecuci and Targovishte, where the political elite largely coincides with the
economic one; frequently, members of the parties represented in the Council are
seen to colonize the local administration, generally undertaking petty jobs, but
secured with the very incumbency of their patrons in the Council. Expectedly,
the consensual type of relations dominates among the interactions with close
friends, supporters and neighbors.
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Municipal Councils
Graph no. 1.
Local political elites interactions: To which of the following groups do you have the
most numerous contacts and interactions?
The geographical identification of the local political elite was considered

in order to correlate it with the level of localism and isolation of the ruling
groups of small-to-medium communities. Stronger links and power networks
formed and maintained at the local level suggest localism and, subsequently, a
more pronounced focus on the local priorities and, conversely, an isolation with
respect to the national concerns. Similarly, it might be hypothesized that a
geographical identification inclined towards localism (i.e. the cases in which the
local councilors identify primarily with their native municipalities, with the town
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Roxana MARIN
they presently represent or with the region which they inhabit) is prone to
generate an emphasis on local problems, perceived as taking precedence over
the national interests. Considering these observations, the Municipal Council
in Olenica expectedly exposes a high degree of localism, as 50% of the
members of the Council identify first and foremost with the municipality they
politically represent and govern, the town of Olenica; another 15% of the
councilors bear a particular attachment towards the native town/ village, thus
making localism in geographical identification a characteristic pertaining to 65%
of the Council. Part of the discrepancies among the four cases in respect to the
cultural-geographical identification springs from the very administrative
arrangements of each country under scrutiny. But the differences lie also in the
degree of openness each elite group inquired here actually display. Indeed, the
level of localism is dominant for all cases, though quite dissimilar as numerical
value: 65% in Olenica, 72.72% in Tecuci, 86.1% in Targovishte, 92.29% in
esk Lpa; it results that, as a matter of fact, the local elite in Olenica is the
least isolated, which would, to a certain extent, stand against the isolation of the
same group when considering their overwhelmingly local connections and
networks of power. All in all, the average level of localism among the three cases
is 76.67%, that of regionalism mounts to 11.87% of the entire population
comprised in the three Municipal Councils, while that of nationalism is 11.06%.
Graph no. 2
Q13: Which of the cultural and territorial entitites do ou identify yourself with firstly?
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Municipal Councils
2.2. H2 Attitudes towards decentralization

Measuring the perceptions of the local elite towards larger local
autonomy and decentralization is instrumental because it provides an insight
into the acknowledgement of various levels of authority in the leadership of the
community. The largest palette of attributions belongs to the Municipal Council
which undertakes the regulation tasks in most of the spheres of the community
life, including social services, public improvements, education, healthcare,
cultural and recreation activities. Inversely, there is a side effect to a more
comprehensive and extended decentralization: larger local autonomy and
decentralization means primarily an effective say of the municipality on the local
budget; as a consequence, it lies in the capacity of the local municipality to
properly collect taxes and to efficiently administer the budgetary revenues thusly
collected in order to actually effect changes in the various domains of
competence under its direct supervision. With greater decentralization come
greater authority and the ability to have a tremendous say in the conduct of the
communitys affairs, but, conversely, it also comes a great deal of responsibility
in handling the ever-increasing problems the community confronts with.
Balancing the advantages with the drawbacks of decentralization and autonomy
at the local level, the members of the Municipal Council of Olenica position
themselves somewhere in between the enthusiasm of the local elite in Tecuci
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Roxana MARIN
(100% approval of greater decentralization, with a core of 64.7% approving and

another 11.76% strongly approving decentralization) and in Targovishte
(93.53% general approval), and the rather cautious pragmatism of the local elite
in esk Lpa (experienced in both the good points and the disadvantages
decentralization presupposes, with 77.26% approving or partially approving and
another 22.72% disagreeing with larger local autonomy and decentralization).
The Polish local political elite displays a sense of realism, properly
understanding the mechanisms encapsulated by decentralizing a greater range of
responsibilities in the local authoritys sphere of competence, as 43.75% of the
municipal councilors generally agree with decentralization. The acceptance of
the Polish elites towards decentralization is significantly less than the cases of
Tecuci (64.70%) and Targovishte (58.06%), but slightly higher than the Czech
case (40.9%). Relevant, as well, in Olenica, the municipal councilors display the
highest proportion of strong acceptance of decentralization and the perspective
of autonomous entities in the Polish administrative arrangement: 25% of the
respondents, as opposed to none in the case of esk Lpa, 16.12% for
Targovishte, and only 11.76% in the case of Tecuci. Decentralization worked its
charms in Poland, while being partially contested in the Czech Republic and
unaccomplished and high problematic in Romania and Bulgaria. In Olenica,
decentralization produced positive effects and a more suitable management at
the local level; consequently, the attitudes of the local elite towards it mirror
generally the experience this elite has had with the reality of increased
devolution and growing array of authority and responsibility.
Graph no. 3
What do you think about a larger local autonomy and decentralization, granted by the
central authorities? (Q11)
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Municipal Councils
2.3. H3 Satisfaction with the life in the town
The satisfaction of the municipal councilors of being inhabitants of the
municipality they represent might constitute an indicator of the fashion in which
they evaluate their political performance in managing the towns problems. Not
surprisingly, the unrestrained enthusiasm of the members of the Municipal
Council in Olenica transpires in the evaluation of the satisfaction felt by
inhibiting the town: an impressive 47.05% of the councilors feel very satisfied
living in Olenica and another equally impressive 52.94% declare they are
satisfied inhibiting the town. Actually, the entire Council concentrates around
higher degrees of satisfaction of living in Olenica. This enthusiasm is
unparalleled by any of the other three cases: although the members of the
Councils in Tecuci, Targovishte, and esk Lpa show high levels of satisfaction
as inhabitants of their communities (fairly satisfied is characteristic for 58.82%
of the councilors in Tecuci, 64.12% in Targovishte, and for 72.72% in esk
Lpa), cumulatively it is the Municipal Council of Olenica that accounts for the
highest percentage of very satisfied elites in respect to the outlook of their
community. The Romanian case further displays a sentiment of profound
dissatisfaction among the elite inhabiting the town (11.76%), in contrast to the
other three cases, in which no such strong dissatisfaction is encountered within
the elite groups. The strong satisfaction of the Polish local elite towards
inhabiting the town and towards the conditions, advantages, benefits and
privileges the town can offer is intimately correlated with their assessment of the
positive direction in which the town is heading and with their evaluation of their
own political performances in crucial, focal areas and sphere of competence at
the local level (e.g. public improvements, infrastructure, healthcare, education,
cultural & youth & sports activities, social services and public security).
Moreover, the confidence and the enthusiasm of the local political elites in
Olenica are revelatory for a dynamic community. There is also some form of
local pride among the members of the Municipal Council that nurtures in this
enthusiasm, a propensity towards localism and immediate proximity that stresses
on the achievements and the accomplishments the community registered
through local governance after the initiation of the decentralization process after
1998.
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Roxana MARIN
Graph no. 4
Q15: How satisfied are you as an inhabitant of the town of Tecuci/ es Lpa/
Olenica/ Targovishte?
2.4. H4 Prioritization and policy responsibility at the local level

Policy- and domain-prioritization appears essential to the study of the
impact of decentralization on the outlook of local leadership. Four indicators
have been measured: (a) spheres to which a special importance should be
granted (policy prognosis), (b) spheres in which considerable measures can be
taken at the local level (policy power and responsibility), (c) spheres in which
effective measures had already been taken (policy diagnosis), and (d) spheres in
which the local councilor exerts a personal influence (policy responsibility). A
special attention should be paid on those indicators of policy prognosis and
policy power/ responsibility. Hence, though the elites in Tecuci and Targovishte
assign an increased importance to the so-called hard spheres of competence
in local government (public improvements 16.98% and 15.5%, respectively;
public safety 16.98% and 16.65%, respectively, and economic development
24.52% and 25.5%, respectively), the said consider that there resides power to
implement changes locally only in such rather soft domains as: culture, sport
and recreation/ youth activities (20.33% for Tecuci, and 19.65% for
Targovishte) and social services (18.64% for Tecuci, and 19.05% for
Targovishte). A sentiment of political impotence among those cases of less-
decentralized elites is persistent: although they identify quite clearly and
pertinently the spheres in which important measures should be taken locally,
they are either unwilling or irresponsible to operate changes for their
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Municipal Councils
communities in key spheres, vital for the development of the two constituencies.
Conversely, for both esk Lpa and Olenica the two cases in which
significant degrees of decentralization improved the level of responsibility at the
level of local policy and comprehensive and effective prioritization , the local
political elites tend to confound the spheres in which a special importance
should be granted with those spheres in which considerable measures can be
taken at the local level: public improvements (24.19% to 6.98%, for esk Lpa,
and 11.9%, for both indicators, in the case of Olenica), social services (30.64%
to 23.8%, for esk Lpa, and 16.66%, for both indicators for Olenica),
economic development (22.58% to 14.28%, for esk Lpa, and 16.66%, for
both indicators in the case of Olenica). Measures already operated have been
undertaken in hard spheres, as well: public improvements and social services
(23.07% and 25%, respectively, for esk Lpa; 21.19% and 19.04%,
respectively, for Olenica). Once more, the policy responsibility and
prioritization are indicated as higher for the highly decentralized local political
elites.
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Roxana MARIN
Table no. 1. Policy prioritization and responsibility of local political elites
Spheres to which a special importance Spheres in which considerable measures Spheres in which effective measures had Spheres in which the LC exert a personal
should be granted can be taken at the local level been already taken influence
Tecuci esk Olenica Targovishte Tecuci esk Olenica Targoviste Tecuci esk Olenica Targovishte Tecuci esk Olenica Targovishte
Lpa Lpa Lpa Lpa
Public
16.98% 24.19% 11.9% 15.5% 13.55% 26.98% 11.90% 12.65% 14.58% 19.23% 21.19% 13.55% 33.33% 35.48% 21.62% 32.35%
improvements
Education 15.09% 9.67% 21.42% 16.65% 13.55% 4.76% 21.42% 16.75% 10.41% 0% 19.04% 10.65% 9.09% 12.9% 21.62% 19.65%
Health care 11.32% 4.83% 9.52% 12.25% 10.16% 3.17% 9.52% 9.55% 2.08% 0% 4.76% 2.65% 3.03% 9.67% 2.7% 2.5%
Public safety 16.98% 3.22% 4.76% 16.65% 11.86% 19.04% 4.76% 12.55% 8.33% 23.07% 4.76% 9.05% 12.12% 3.22% 16.21% 3.55%
Social services
(including
7.54% 30.64% 16.66% 8.55% 18.64% 23.8% 16.66% 19.05% 20.83% 25% 19.04% 23.75% 9.09% 19.35% 8.10% 11.65%
unemployment
and housing)
Economic
24.52% 22.58% 16.66% 25.5% 5.08% 14.28% 16.66% 4.55% 6.25% 7.69% 0% 5.55% 21.21% 9.67% 2.7% 23.75%
development
Pollution 1.88% 1.61% 4.76% 1.05% 0% 1.58% 4.76% 0% 6.25% 1.92% 2.38% 1.95% 0% 3.22% 0% 0%
Minorities
rights and
3.77% 1.61% 0% 4.55% 6.77% 1.58% 0% 7.55% 10.41% 0% 0% 12.65% 6.06% 0% 0% 12.55%
interethnic
relations
Culture, sport,
recreation and 1.88% 1.61% 14.28% 7.65% 20.33% 4.76% 14.23% 19.65% 20.83% 23.07% 23.8% 22.55% 6.06% 6.45% 27.02% 30.75%
youth activities
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Municipal Councils
CONCLUSIONS. TENTATIVE EXPLANATIONS

Three types of local political elites appear distinct from the study of the
Municipal Councils in the four case-studies. This paper advances a threefold
classification of local political leadership, constructed employing mainly two
explanatory trajectories, one of the being discussed at some length here: (a) the
level of administrative-fiscal decentralization specific for each country under
scrutiny, and (2) the legacy of the former communist regime, expressed
through the type of elite political culture (Jowitt, 1999). Thusly, the study
favors the differentiation among three types of elites, underpinned on the
specific content of elite political culture and on the set of attributions provided
by a certain degree of decentralization: (1) predominantly elitistic (e.g. Tecuci
and Targovishte), (2) democratic elitist (e.g. esk Lpa), and (3)
predominantly democratic (e.g. Olenica) (cf. Marin, 2013a, pp. 29-56). The
logic of this distinction is that different levels of decentralization (and the
specific inheritance of the ancien rgime) influence the gap between the elites and
their constituencies, creating specific types of local elite distinctiveness.
Generally, the four hypotheses tend to validate in the four cases: the lower the
level of decentralization, the higher the level of acceptance for decentralization
and greater autonomy; the higher the level of decentralization: (a) the higher the
level of responsibility of the local elites, and their capacity to pinpoint key
domains of interest at the local level; (b) the more isolated the political elite; and
(c) the more localized the political elite, in socio-geographical identification.
There are also results that, from the breviloquent analysis for only three
cases, it is clearly premature to be subscribed to a tendency, as it is the case with
the attitudes towards the economic equality and the political conflict, as two
aspects defining a democracy, and with the degree of monolithism/
fractionalism of the local elite group, with the attitudes towards the citizens
participation (paradoxically, the elites of those decentralized communities are
less enthusiastic about the value of citizens participation in decision-making,
probably also as an effect of the consolidation of a pragmatic and
technocratic model, of the illusion of professionalization of the Municipal
Councils...). Such open questions remain to be answered by future research.
BIBLIOGRAPHY
D., Tofan. (2008). Drept administrativ (Vol. I, ed. a 2-a, rev.), C. H. Beck,
Bucureti.
H., Bck. (2005). The institutional setting of local political leadership and
community involvement, in: Urban Governance and Democracy. Leadership
and Community Involvement (Haus, Michael, Heinelt, Hubert, and Stewart,
Murray, eds.), Routledge, London.
171
Roxana MARIN
R., J., Bennett. (1989), Territory and Administration in Europe, Frances Pinter,
London.
R., J., Bennett. (1993). European Local Government Systems, in: Local
Government in the New Europe (Bennett, Robert John, ed.), Belhaven Press,
London & New York..
J., W., Fesler. (1968), Centralization and Decentralization, in: International Encyclopedia
of the Social Sciences (vol. 2) (Sills, David L., and Merton, Robert K., eds.),
Macmillan & Free Press, New York & London.
X., Frge. (1986), La dcentralization, ditions La Dcouverte, Paris.
M., Goldsmith. (1992), Local Government.Urban Studies, Vol. 29, Nos. 3-4 (May).
Grzymaa-Busse, Ana. 2007. Rebuilding Leviathan: Party Competition and State
Exploitation in Post-communist Democracies, Cambridge University Press,
Cambridge (UK) & New York.
Heinelt, Hubert, and Hlepas, Nikolaos-Komninos. 2006. Typologies of Local
Government Systems, in: The European Mayor. Political Leaders in the
Changing Context of Local Democracy (Bck, Henry, Heinelt, Hubert, and
Magnier, Annick, eds.), VS Verlag Fr Sozialwissenschaften (Urban and
Regional Research International), Wiesbaden & Berlin (Germany).
J., J., Hesse. L., Sharpe. (1991). Local Government in International Perspective: Some
Comparative Observations, Local Government and Urban Affairs in
International Perspective. Analyses of Twenty Western Industrialized
Countries (Hesse, Joachim Jens, ed.), Nomos Verlagsgessellschaft,
Baden-Baden (Germany.
Heywood, Andrew. (1997). Politics, Macmillan, London.
John, Peter. 2001. Local Governance in Western Europe, Sage Publications, London
& Thousand Oaks (California).
R., Marin. (2013) Democratic Elitism at the Local Level and Local Governance in East-
Central Europe. A Comparative Assessment on the Elites of Tecuci (Romania),
esk Lpa (the Czech Republic) and Olenica (Poland), in: Political
Science, International Relations and Security Studies. International
Conference Proceedings, the VIIth Edition, Sibiu, 24-26 May 2013
(Scuna, Stelian, Tabr, Vasile, and Eugen Struiu, eds.), Department
of International Relations, Political Science and Security Studies (Faculty
of Social Sciences and Humanities, Lucian Blaga University of Sibiu),
Sibiu.
R., Marin. (2013) Incomplete Modernization and State Socialism in East-Central Europe.
A Framework of Analysis of Post-Communist Local Political Elites,: Economy
and Society in Central and Eastern Europe: Territory, Population,
Consumption. Papers of the International Conference Held in Alba
Iulia, April 25th-27th, 2013 (Dumitran, Daniel, and Moga, Valer, eds.),
LIT Verlag, Wien (Austria), Zrich (Switzerland) & Berlin & Mnster
(Germany), pp. 363-379.
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P., D., Mawhood. (1983), Local Government in the Third World, Chichester-Wiley,
London.
E., C., Page. M., J., F., Goldsmith. (1987), Central and Local Government Relations:
A Comparative Analysis of Western European Unitary States, Sage
Publications, Beverly Hills (California) & London.
Stoica, Virgil. 2003. Cine conduce Iaul?, Editura Fundaiei AXIS, Iai.
H., Wollmann. (2004) Urban leadership in German local politics: the rise, role and
performance of the directly elected (chief executive) mayor, International Journal of
Urban and Regional Research, Vol. 28, No. 1 (March).
H., Wollmann. (2004) Local Government Reforms in Great Britain, Sweden, Germany
and France: Between multi-function and single-purpose organizations, Local
Government Studies, Vol. 30, No. 4 , Winter.
Legislation on administrative organization:

*** Law No. 215/2001 on Local Public Administration (Romania).
*** Constitutional Act No. 294/1990 Col. (the Czech Republic).
*** Act of the Czech National Council No. 367/1990 Col. on Municipalities,
amended as 410/1992.
*** Act of the Czech National Council No. 425/1990 Col. on District Offices,
the Regulation of the Sphere of Their Activities; amendments to Acts of
the Czech National Council No. 266/1991, No. 542/1991, Act No.
21/1992, Act No. 403/1992, Act No. 152/1994 and Act No. 254/1994.
*** Law of March 8, 1998 on Local Self-goverment (Poland).
*** Regional Development Act of 1999 (amended for the period 2000-2006)
(Bulgaria).
*** Local Self-government and Local Administration Act of September 1991
(amended in 2001) (Bulgaria).
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Roxana MARIN
Roxana MARIN
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Municipal Councils
IV. LEGAL PRACTICE
What law applies to the formal conditions required for the conclusion of the matrimonial
agreement when two foreign spouses of the same citizenship (for example the spouses have
French citizenship) have their habitual residence on the territory of Romania?
Corroborating the provisions of art.2594 with those of art.2590 of the Civil

Code we note that in terms of the formal conditions, future spouses or spouses
may choose one the following laws:
-the law of the State where one of them has his/her habitual residence at the date of
election;
-the law of the State whose citizenship each one of them has at the date of election;
-the law of the State where they establish their first common habitual residence after
marriage celebration
-the law of the place where the matrimonial agreement is concluded.
When two foreign spouses of the same citizenship (for example the spouses have French
citizenship) have their habitual residence in Romania and want to conclude a matrimonial
agreement, the formal conditions of the matrimonial agreement shall be governed by one of
the following laws:
1. the law of the State where one of them has his/her habitual residence at the date of election,
namely the Romanian law in this case;
2. the law of the state whose citizenship any of them has at the date of election, so in our case,
the French law because both of them have French citizenship;
3. the law of the State where they establish their first common habitual residence after marriage
celebration, in our case: either the French law if after marriage celebration they had their first
common habitual residence in France, or the Romanian law if after marriage celebration they
had their first habitual residence in Romania, or the law of any other state (for example
Belgium) if after marriage celebration they had their first common habitual residence in that
state (Belgium).
4. the law of the place where the marriage agreement is concluded (in this case the Romanian
law because they reside in Romania and this is the place where they want to conclude the
matrimonial agreement).
175
Roxana MARIN
176
Municipal Councils
ASOCIAIA INTERNAIONAL A CERCETTORILOR N DREPT
/ INTERNATIONAL ASSOCIATION OF LAW RESEARCHERS
(AICD/IALR)
n luna mai 2014, la iniiativa subsemnatei Nadia-Cerasela Aniei, a luat

fiin ASOCIAIA INTERNAIONAL A CERCETTORILOR N
DREPT/ INTERNATIONAL ASSOCIATION OF LAW RESEARCHERS
(AICD/IALR.
n acest sens, pentru toi cei interesai de un astfel de proiect, voi ataa
extras din Statutul Asociaiei.
Extras - STATUT
ASOCIAIA INTERNAIONAL A CERCETTORILOR N
DREPT/ INTERNATIONAL ASSOCIATION OF LAW
RESEARCHERS (AICD/IALR)
Art. 8 Scopul AICD/IALR

AICD/IALR are drept scop promovarea excelenei i creativitii
tiinifice fundamentale i aplicative, n domeniul tiinelor juridice i tiinelor
conexe prin stimularea colaborrii cu diferite instituii din ar i strintate, a
schimbului de idei, a organizrii de cursuri post-universitare, work-shop-uri,
coli de var, etc. precum i valorificarea rezultatelor obinute prin publicarea n
colaborare cu edituri din ar i strintate de cursuri, monografii, studii, articole,
culegeri de practic judiciar.
Art. 9 Obiectivele AICD/IALR
Obiectivele sunt:
1. colaborarea cu cercettori, specialiti i practicieni din spaiul romnesc,
european i internaional n domeniile tiine juridice i conexe;
2. cooperarea cu instituii, organizaii, asociaii, universiti, din ar i
strintate, pentru dezvoltarea cercetrii tiinifice fundamentale i aplicative
n domeniile tiine juridice i conexe;
3. accesare de fonduri europene n vederea dezvoltrii i ndeplinirii scopului
AICD/IALR;
4. promovarea, susinerea i mbuntirea proiectelor i a legislaiei;
5. propunerea unor programe de formare postuniversitar sau continu n
domeniile tiine juridice i tiine conexe, n colaborare cu instituii publice,
universiti de nvmnt superior din ar i strintate i/sau institute de
cercetare;
6. organizarea de coli de Var;
177
Roxana MARIN
7. organizarea de conferine, simpozioane, work-shopuri pe diverse teme

specifice domeniilor tiine juridice i tiine conexe;
8. organizarea de conferine, simpozioane, work-shopuri pe diverse teme
specifice domeniilor tiine juridice i tiine conexe pentru masteranzi,
doctoranzi i tineri cercettori;
9. iniierea i dezvoltarea contactelor directe ntre organizaii similare cu acelai
scop conform art.(6) din ar i strintate;
10. colaborarea cu organele administraiei publice centrale i locale pentru
coordonarea politicilor publice n domeniul cercetrii, dezvoltrii i inovrii,
n special n vederea atragerii investiiilor private, naionale i internaionale,
n cercetarea tiinific n domeniile tiinte juridice i tiine conexe;
11. participarea n consorii sau reele interregionale, i/sau internaionale, ce au
ca scop consolidarea parteneriatului n dezvoltarea cercetrii tiinifice
fundamentale i aplicative, formarea profesional, schimb de experien i
specializarea n domeniile vizate;
12. parteneriate cu diverse universiti, instituii, organizaii, asociaii din ar i
strintate;
13. parteneriate cu edituri din ar i strintate;
14. parteneriate cu diverse publicaii tiinifice;
15. schimburi de experien pe diferite teme specifice domeniilor de interes, n
vederea realizarea scopului AICD/IALR.
Art. 11 Categorii de membri ai AICD/IALR

AICD/IALR are urmtoarele categorii de membri:
a. membri titulari ai AICD/IALR. Pot fi membri activi cadrele didactice,
cercettorii, doctoranzii, masteranzii, studenii i toi cei interesai de cercetarea
tiinific n domeniile tiine juridice i tiine conexe dac au cel puin 5 articole
sau studii publicate n reviste sau n volume ale conferinelor indexate ISI, BDI,
reviste de prestigiu sau publicate la edituri de prestigiu din ar i strintate i au
participat la cel puin 3 conferine, simpozioane, congrese, sesiuni de comunicri
tiinifice n ar sau strintate;
b. membri de onoare ai AICD/IALR. Pot fi membri de onoare specialitii i
personalitile vieii publice i tiinifice n domeniile tiine juridice i tiine
conexe att din ar i strintate, care doresc s contribuie la dezvoltarea i
recunoaterea naional i internaional a AICD/IALR;
c. membri asociai ai AICD/IALR. Pot fi membri asociai persoanele juridice
i practicienii specialiti n domeniile tiine juridice i tiine conexe care doresc
s contribuie la dezvoltarea i recunoaterea naional i internaional a
AICD/IALR;
d. membri colaboratori ai AICD/IALR. Pot fi membri colaboratori alte
persoane juridice i fizice cu prestigiu recunoscut din ar i strintate care
178
Municipal Councils
doresc s contribuie la dezvoltarea i recunoaterea naional i internaional a
AICD/IALR.
Art. 12 Dobndirea, piederea i retragerea calitii de membru
1). Calitatea de membru se dobndete prin exprimarea dorinei de a
face parte din AICD/IALR completnd cererea tip de intenie. Cererea tip se
depune personal sau on-line, fiind adresat Preedintelui AICD/IALR care o va
supune analizei Consiliului Director i Consiliului tiinific dup caz, care o va
analiza, iar dup analiza acesteia, cererea va fi acceptat sau respins.
2). Calitatea de membru al AICD/IALR se retrage ca urmare a neplii
cotizaiei.
3). Calitatea de membru al AICD/IALR se pierde n situaia n care prin
atitudine, prin comportament sau din orice alte motive dac respectivul membru
pune n pericol ori prejudiciaz imaginea AICD/IALR.
4). Retragerea unui membru se poate face fr acordul expres al Adunrii
Generale, dar n mod obligatoriu pe baza unei cereri n acest sens, n care este
exprimat voina proprie a membrului care dorete s se retrag, cerere care va fi
depus cu 15 zile nainte;
Art. 13 ncetarea calitii de membru
Calitatea de membru al AICD/IALR poate nceta prin:
a) n situaiile prevzute la art. (12);
b) decesul persoanei.
179
Roxana MARIN
180
Municipal Councils
In May 2014, at the initiative of the the undersigned Nadia-Cerasela

Aniei, ASOCIAIA INTERNAIONAL A CERCETTORILOR N
DREPT / INTERNATIONAL ASSOCIATION OF LAW Researchers (AICD/
IALR) was born.
In this regard, for all those interested in such a project, I will attach
extracted.
Excerpt THE STATUTE OF

THE INTERNATIONAL ASSOCIATION OF LAW AND RELATED
SCIENCES (AIDSC/IALRS)
Art. 9. AIDSC/IALRS objectives

(1). The objectives are:
1. Collaborating with researchers, experts and practitioners from the Romanian,
European and international are in the field of legal science and related sciences;
2. Cooperating with local and foreign institutions, organizations, associations,
universities in order to develop fundamental and applied scientific research in
the field of legal science and related sciences;
3. Accessing national structural and European funding for the development and
fulfilment of the AIDSC / IALRS goal;
4. Promoting, supporting and improving projects and legislation;
5. Suggesting postgraduate or continuing training in the field of legal science and
related sciences in collaboration with public institutions, local and foreign higher
education universities and / or research institutes;
6. Organizing Summer Schools;
7. Organizing conferences, symposia, workshops on various topics specific to
the field of legal science and related sciences for Master and PhD students and
young researchers;
8. Initiating and developing direct contacts between similar organizations with
the same purpose according to art. (6) in the country and abroad;
9. Cooperating with central and local government bodies in order to coordinate
public policy in the field of research, development and innovation, especially in
order to attract private, national and international investment in scientific
research in the field of legal science and related sciences;
10. Participating in interregional and / or international consortia or networks,
aimed at strengthening the partnership for the development of fundamental and
applied scientific research, professional training, exchange of experience and
specialization in the areas concerned;
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Roxana MARIN
11. Partnerships with various universities, institutions, organizations,

associations in the country and abroad;
12. Partnerships with publishers in the country and abroad;
13. Partnerships with various scientific publications;
14. Exchanges on various topics specific to the areas of interest in order to
achieve the AIDSC / IALRS goal.
(2). AIDSC / IALRS undertakes to respect the intellectual property
rights of its members in accordance with Romanian law. Each member of the
Association undertakes to respect the intellectual property rights of other
members of the association in accordance with Romanian law in effect.
Art. 10. AIDSC / IALRS activities

(1). In order to achieve the purpose and fulfil the objectives for which it
was founded, AIDSC / IALRS carries the following main activities:
1. Bringing together researchers, specialists and practitioners in the country and
abroad, at conferences on various topics in order to increase the international
visibility of fundamental and applied scientific research by: exchange of views,
sharing scientific and practical experience, cultural exchanges, etc. .;
2. Partnerships with various universities, institutions, organizations, associations,
in the country and abroad in order to organize conferences, congresses,
scientific sessions, workshops;
3. Organizing lectures held by experts in the country and abroad on various
topics of interest for the transfer of information and in order to obtain
scientific, national and international professional and academic visibility;
4. Developing various teaching and information materials (classes, collections of
legal practice, leaflets) to conduct Summer schools, training courses;
5. Organizing courses and lectures held by experts in the country and abroad
within the "Summer schools" for continuous improvement;
6. Participation of AIDSC / IALRS members with scientific articles and studies
in various national and international conferences;
7. Involving AIDSC / IALRS members in the organization of national and
international conferences either as organizers or in the scientific committee, or
as partners;
8. Submitting and implementing research projects within competitions
conducted by national, European and international bodies
9. Coordinating and editing new magazines, books, studies, monographs,
collections of legal practice in the field of sciences and related sciences.
(2). As sole organizer or in collaboration with various universities, institutions
and organizations in the country and abroad AIDSC / IALRS will issue
"certificates of participation" in national and international conferences, training
courses, etc..,.
182
Municipal Councils
(3). Participants in events organized by AIDSC / IALRS will receive the
"organized event map" that will include leaflets, brochures, conference
proceedings, etc. depending on the event.
183

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The International Association of Law and Related Sciences

Journal of Law and Social Sciences

Cover Design: Roxana Stratulat, Lumen Publishing House

Copyright Journal of Law and Social Sciences

EXECUTIVE EDITORIAL BOARD

ADVISORY EDITORIAL BOARD

AIMS AND SCOPE:

IMPORTANT DATES ROMANIA:

SELECTION AND PUBLICATION:

OUR TARGET PUBLIC:

Nadia -Cerasela Aniei

European Law. International Law. Comparative Law.

Law and Social Sciences

HUMAN DIGNITY PROTECTION IN

* This work was supported by the strategic grant POSDRU/159/1.5/S/141699, Project ID

1. PROTECTION OF HUMAN DIGNITY

1.1. Complexity of the Concept of Human Dignity

2011, study 19.

functions contributes to the crystallisation of the concept, for instance

1.2. Means of Criminal Protection of Human Dignity

4***, Selecie de decizii ale Curii Constituionale federale a Germaniei, Konrad-Adenauer-Stiftung, C. H.

a persons honour or reputation through language, gestures or any other means

5 http://www.ccr.ro/decisions/pdf/ro/2007/D062_07.pdf, website consulted on 9 January

decision of the Constitutional Court no. 62 of 18 January 2007 on the activity of

identification of the deeds that prejudice dignity, thus presupposing their

Punishments are not applicable to discriminations grounded on the

enough to incite to discrimination, regardless of its form, if it arises a sentiment

labour and accommodation conditions contrary to his / her dignity, or to force

Human dignity must occupy a central place in the texts of fundamental

Treatises, lectures, monographs

BETROTHAL (FORMAL ENGAGEMENT) IN

3. LEGAL REGULATION OF ENGAGEMENT

The oldest record of engagement in Romanian writings dates from 1504,

4. ENGAGEMENT IN THE SWISS CIVIL CODE

states that an engagement agreement cannot be regarded as mandatory for

5. ENGAGEMENT IN THE CHURCH

constitutes an impediment to ordination, since religious engagement is

6. ENGAGEMENT IN ROMANIAN LEGAL HISTORY

5 It is indicated here that engagement is a prior agreement to marry; furthermore, mention is

In some parts of Europe the promise of marriage was made before a

deemed as before-the-wedding gifts (Vintil-Ghiulescu, (2011), : 192). In this

8. REGULATION OF ENGAGEMENT IN TRANSYLVANIAN LAW

should be understood, according to which the engagement service should not be

EUROPEAN AND NATIONAL REGULATIONS IN

Olga Andreea URDA1

2. THE REGULATION OF RACISM AND XENOPHOBIA AT

2.1. Racism and xenophobia in the regulations of the Council of Europe

2 Article 1 of the International Convention on the Elimination of All Forms of Racial

4 European Commission against Racism and Intolerance, ECRI General Policy

Another important instrument adopted in this issue, at the level of the

Fundamental Freedoms, adopted in Rome on 4.11.2000, available at

2.2. Racism and xenophobia in the regulations of the European Union

Racism and Xenophobia, published in Of. J. L 151/1 of 10.06.1997.

content/RO/ALL/?uri= CELEX:31996F0443, consulted on 15/02/2014.

An important role in this regard was represented by the adoption of the

14 Published in Of. J. L 328/55, available on http://www.dri.gov.ro/directiva-200043ce-a-

3. TRANSPOSING THE STANDARDS IN THE AREA OF RACISM

3.1 Internal regulations in this area

16Republished in The Official Gazette of Romania no. 99 of February 8, 2007

3.2. Public instigation to violence or hatred

Council on the implementation of the Framework Decision 2008/913/JHA combating certain

political appurtenance, fortune, social origin, age, disability, non-contagious

3.3. The public sharing or the distribution of documents, images or other