JOURNAL ARTICLES

• A point of view on the role of magistrates in the issue of cultural diversity, The New Review of Human Rights, no. 4/2017, ISSN: 1841-4710

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This paper formulates a double plea regarding the relation between cultural diversity and justice. First, it emphasizes the need to clarify the role of the judge and of the public prosecutor in this equation. A few assumptions serve as a starting point: (1) multicultural jurisprudence is a social phenomenon which has become more frequent in contemporary societies, intersecting both civil and criminal law; (2) when cultural identity is part of the circumstances of a case, it can be relevant for the decision, and it can lead to the admissibility of cultural exceptions or to the application of mitigating circumstances based on culture; (3) the indictments and the verdicts have a deeper social impact, beyond the case. Consequently the role of the judicial authority in managing diversity is important, although not visible. The second plea focuses on the idea that traditional legal instruments are not adapted to multicultural contexts. More specifically, it proposes: (1) formulating a specific legal vocabulary; (2) identifying ethical principles to guide the reasoning of the magistrates; (3) creating new legal institutions that address diversity and (4) implementing educational programs to familiarize future judges and prosecutors with the topic. The fact that countries like Italy, France, Germany, and Romania face the same ethical dilemmas, in spite of having different jurisprudential challenges from different minorities, proves the need of a common vision on this matter at EU level. The study is also an invitation for the Romanian judges and prosecutors to debate these topics.

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• Patterns of the application of the criminal prescriptions in the Romanian case-law connected to the custom of child marriage, The New Review of Human Rights, no. 4/2016, ISSN: 1841-4710

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The study focuses on the relationship between justice and diversity in Romania. More specifically, I investigate the recent criminal jurisprudence derived from the custom of child marriage practiced by some Roma communities. The purpose of the analysis is to discover potential patterns in how the judges deal with cultural identity when a tradition appears to be relevant for the case prima facie, but at the same time it represents a violation of children's rights, personal autonomy and gender equality. In an interdisciplinary approach, I determine if the verdicts are in favor or against the tradition, and if they lead to a de facto use of the cultural defense. I explore the Romanian case-law on child marriage, through the lenses of liberal multiculturalism and liberal feminism, focusing on the consequences of applying the cultural defense in this specific controversial situation. As a conclusion, I attempt to find and propose a solution de lege ferenda with the potential of clarifying priorities when there is tension between the legal system, the preservation of cultural identity and the rights of the most vulnerable members of traditional communities.

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• Perspectives for a sustainable world: the social contract in the context of multiculturalism in Governing the Future – Interdisciplinary Perspectives for a Sustainable World (ISI proceedings), Medimond publishing Company, 2016, pp. 223-22

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Human rights and individual liberties are essential indicators for the quality of a democratic system. At the same time, the equitable distribution of rights has been at the core of social contract theories. I start with the assumption that multiculturalism is a challenge for democratic sustainability when neglected, and for this reason, it cannot be the object of simplification. On the contrary, it justifies the adaptation of the social contract to diversity. The aim of this paper is to discuss the possibilities of including the multicultural reality in the fictive social contract, focusing only on (1) the contractual parties and (2) on the content of rights and obligations. First, I debate if minorities can participate in the social contract as parties, based on their quality of potential moral agents. In this context, I provide a short overview of the different social contract theories, but I include other theories that capture in a more detailed manner the issue of diversity in the context of democracy. Second, I argue that a scheme of rights is not equitable until it includes solutions for the multicultural tensions. In an attempt to provide a solution for these conflicts, I analyze the right of continued existence of minorities and the right to community privacy by confronting them with the democratic requirement of prioritizing individual freedoms. In this course of action, I propose a multicultural social contract that aims to preserve balance and the sustainable application of democratic values for, beyond and within the communities.

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• The cultural identity - a potential mitigating circumstance? The Use of cultural defenses in Romanian criminal trials, The New Review of Human Rights, no. 4/2015, ISSN: 1841-4710

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The paper defines the concept of cultural defense and identifies the challenges of its use in practice. Cultural defense means that the judge considers arguments related to cultural identity, in both criminal and civil trials, when either the parties or the facts are directly connected to a cultural background. The study only focuses on the cultural defense in the context of Romanian criminal law, where, despite the absence of a formal cultural defense, it might arise de facto as a request to mitigate or even to exonerate the lawbreaker from punishment. The paper examines the consequences of the indirect use of this defense and whether its formal regulation is ethically justifiable. Taking into account the fact that cultural identity is often used as an excuse for oppressive traditions against the most vulnerable members of certain communities, the study argues that the use of cultural defense in criminal law implicitly legitimizes the abusive practices and the proliferation of internal vulnerabilities. 

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• Minors and minorities. Religion and medical treatment, The New Review of Human Rights, no. 4/2013, ISSN: 1841-4710

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Starting from an individual case, the study looks at religiously motivated refusals of medical treatment by parents in the name of their underage children. In these situations, the internal restrictions of a cultural-religious minority are in tension with an external, superior restriction – the inviolability of fundamental rights. The thesis that the cultural defense operates in this particular context in Romania was only partially confirmed. Since there is no specific legislation regarding the refusal of medical treatment by parents in the name of underage children, there is no following jurisprudence. Potential cases disappear before getting to the courts, either because the parents are finally persuaded to consent to medical treatment, or the child dies and those responsible are not prosecuted even if there is a link between this death and the refusal. Public authorities have a difficult time identifying cultural customs and hence can respond only to a limited extent. Only an extensive quantitative study could provide a general view of the Romanian context. This image is required as a basis for the elaboration and promotion of a draft law addressing such medical and moral challenges in the courtroom order to discourage the cultural customs with negative consequences on the integrity of children.

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• The cultural defense within the Romanian criminal law system. An interdisciplinary study of early marriages in traditional Roma communities, The New Review of Human Rights, no. 3/2011, ISSN: 1841-4710

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The research raises the issue of whether the cultural defense is applied in Romania in spite of the fact that there is no legal framework in this regard. It also investigates the legal effects of child marriage practiced by some traditional Roma communities. The study outlines the theoretical and ethical debate behind the issue of the conflict between legal norms and traditional customs. I show that the jurisprudence on child marriage in Romania is a reflection of an illiberal multiculturalism. This conclusion aims to raise awareness on the profound impact of such verdicts at a social and political level.

EDITED BOOKS

with Andreescu Gabriel, Botău Diana (2016), Doctrina Internațională a tratării trecutului comunist [The International Doctrine of Managing the Communist Past], Polirom, Iași

The book is a detailed introduction in the topic and a guide to deal with the communist past through national policies which are aligned to present international criteria. The book includes relevant political documents and a synthesis of case-law (more than 30 cases from the European Court of Human Rights), tackling the following topics: the acknowledgement and punishment of communist crimes; the imprescriptibility of communist crimes; lustration; freedom of association and the creation of communist; the use of communist symbols; the access to the personal file from the communist regime.