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DECEMBER 10, 2012
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LAWYR.IT TEAM Ioana Stupariu Senior Editor Ioana is in her third year at Babes-Bolyai University Law School, being involved in numerous activities, such as Academic Debating, traineeships and organizing events. She decided to become part of the Lawyr.it project because she remarked that law students need more opportunities to invest in their academic skills and to be part of a more cohesive structure. In her view, a law review, which is created exclusively by students, fulfils this need.
Bianca Prunea Senior Editor Bianca Prunea is currently in her third year at Babeș-Bolyai University Law School, Cluj-Napoca. When it comes to academics, simply going to classes is not good enough for her. This is the main reason she is involved in activities like public debates, mock trial contests and ultimately, a peer-to-peer law review. She is proud to be one of the founding editors of Lawyr.it and is confident that this community will make a difference for ambitious law students.
Ioana Georgescu Senior Editor Ioana is currently studying law at Babeș-Bolyai University in ClujNapoca, Romania. Alongside her studies she is involved in debating, having taken part in numerous international competitions organised by some of the most renowned universities in the world, such as Oxford or Cambridge.
Calin Mureșanu Senior Editor Calin Mureșanu is a third year student at Babeș-Bolyai University Law School. He believes that law faculties in Romania focus too little on empowering students to make meaningful contributions to the development of law and thus decided to invest time and energy into Lawyr.it. He believes Lawyr.it will provide a fantastic platform for students to engage in meaningful debates on law-related topics, helping them shape opinions and ultimately leave their mark on the development of law.
Want to join the team? Write to us at firstname.lastname@example.org
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EDITORâ€™S NOTE By Bianca Prunea
Being a law student is not an easy task. Becoming a successful lawyer proves
to be even more challenging and there are no pre-established steps towards success. However, if there is one thing I have learned for sure in the last three years as a law student, it is that it is imperative to grab every opportunity in order to achieve your goals. Being created by students for students, this publication is a real and immediate opportunity to get noticed. It represents a chance for every law student to stand out and to share their views on the judicial system. Lawyr.it is designed to be more than just another law review. It aims to create a community for students and young lawyers through its connection with other European universities and law firms. We believe in offering more visibility to those interested in a legal career by creating a platform for debates and exchange of ideas. By engaging in such an activity, students have the chance to reveal their talent(s) and knowledge to potential future employers worldwide. We were quite excited when working on this first issue and we are glad to present our readers with a wide set of hot topics in our society such as the right to life of an embryo. Those more enticed with comparative law can read and comment on differences between common and civil law related to the institution of unjust enrichment or on the issue of the individual as a subject of international law. On the issue of human rights, one can read about the acceptance (or the lack of it) of homosexuality in Austria and Romania. Or, if criminal law is your thing, the legitimacy of abductions might give you some food for thought. Topics also cover domestic issues such as the institution of prescription under the current law. In our section of legal updates one can find out useful information on the changes brought by the New Code of Civil Procedure on the institutions of contesting delays of a trial and that of mediation. We were truly impressed by the positive feedback we received on the initiative and we were excited to see how many of you decided to take up this opportunity. We are hoping that more and more students will take on this chance to share their knowledge. We hope you will enjoy the read!
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IN THIS EDITION Domestic Focus The starting point of the extinctive prescription (p. 6) Legal update: contesting the delay of a trial in front of a court (p. 8) Mediation through the Lens of the New Code of Civil Procedure (p. 10) Inhuman and degrading treatment at the hands of police forces (p. 12) The car pollution tax (p. 14) Is Homosexuality truly accepted? A comparative analysis between Austria and Romania (p. 16)
Professional Spotlight Interview: Conf. Dr. Florin Streteanu - Dean of BabeČ™-Bolyai University Faculty of Law (p. 18)
International A case for legitimising abduction as a means of procuring the defendant (p. 22) The right to life of the embryo (p. 26) Individuals as subjects in International Law (p. 28) Human Trafficking in South Africa (p. 30) Brief remarks regarding the dominant five trending views over the concept of Unjust Enrichment in common-law (p. 32)
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DOMESTIC FOCUS The starting point of the extinctive prescription
This article aims to analyze
any complaint filed after the passing of the period of prescription shall be deemed tardy and dismissed the notion of extinctive pre- by the Court without analysing the legal dispute at scription, particularly in regard stake. to its starting point, in cases of contradictory jurisprudence The moment when the right to action is born is usudue to unclear legal provisions. ally when the underlying, subjective right, that the person wishes to defend in court, is overstepped, Time waits for no man, even in denied or challenged. However, there are situations the field of civil law. The notion when the law allows a lawsuit to be filed, even in of ‘period of prescription’, simi- lack of a disrespect of that particular right (e.g. in lar to that of statute of limita- the case of an illicit deed, a lawsuit can be filed in tions operating in common law order to obtain reparations as soon as the full extent systems, represents a period of time in which a law- of the damage is known by the plaintiff). suit can be filed. Generally, this moment is the birth of that particuIn Romanian law, Decree 167/1958 contained the lar right or, when it is affected by a term or condibaseline rules on this matter. Despite the entry into tion in order for it to be effective, the moment when force of the New Civil Code, which contains new the term is met or the condition fulfilled (Nicolae, provisions, the previous law is still applicable to the 2004). For instance, the right to action of a crediperiods of prescription that began before the date of tor wanting to obtain the execution of his debtor’s the new law’s entry into force. obligation is born at the time when that particular According to the doctrinarian interpretations of the obligation is due to be performed – i.e. the due date. law, the period of prescription has its starting point However, there are situations when the existence or at the time when the right to file a certain lawsuit the extent of a particular right is disputed, primaris born. This right to action has two dimensions: a ily due to the unclear legal provisions instating it, material and a procedural one. the jurisprudence being divergent. Therefore, there The procedural right to action refers to the physical possibility of each individual to register a memoir at the competent Court and thus sue another party, correlated with the obligation of those in charge to register the complaint and have it reviewed by a judge.
is no guarantee as to what the outcome of a lawsuit aiming at protecting or at harnessing such a right might be.
In such a situation, I would argue that the period of prescription has its starting point at the moment when a clear, unequivocal understanding of the law On the other hand, the right to action in a material is established, either by the means of an amendment understanding refers to the right of an individual to to the previous law or by an official interpretation have his/her complaint examined by a Court and of it (for instance, by a ‘referral in the interest of the receive a verdict, benefiting from the constraining law’ of the Supreme Court). power of the State to satisfy his/her claims. It is gen- Such an interpretation is justified for two main erally accepted that the prescription terminates the reasons: firstly, due to the purpose of the period of right to action in a material sense, which means that prescription, and secondly, in order to effectively reevery individual is free to file any lawsuit; however, spect the right to access to justice of each individual. 6
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The purpose of the prescription
with the state’s duty to deliver a sentence in the case’ (Chiriță, 2008). According to legal theory based on This aim is twofold: on one hand, setting a time limit the ECtHR’s rulings, establishing a period of prescripfor the exercise of a certain right encourages each per- tion is an acceptable breach of this right, as long as son to handle their affair as soon as possible, thus clar- the term is both proportional and reasonable (Chiriță, ifying the legal situation; on the other hand, it seeks 2008). to protect the security of the legal positions of parties, and prevent them from living in a constant state of Article 23 para. 12 of the Romanian Constitution enuncertainty as to when a lawsuit might be filed against shrines the legality of any incrimination, principle them, being constrained to the execution of a certain upheld by the ECtHR in its case law. By means of interpretation, it has gained a multilateral dimension, in(pecuniary) obligation. cluding the requirement that any legal provision must By this logic, ’from all points of view, the rule regard- be predictable to individuals, which is met when they ing the commence of the period of prescription at can determine in advance, relying on the legal texts once with the birth of the right to action is natural, and the existing case law on the matter, the manner the premises of applying the retributive effect of the in which a certain provision can be applied (ECtHR, extinctive prescription being the existence of the pos- case of Kokkinakis v. Greece, 1993). Although direct sibility to act in order to defend a certain right, clarify reference is only made to the field of criminal law, upa legal situation or harness a legitimate interest’ (Nico- holding the rule of law requires that any legal provilae, 2004). Therefore, a person filing the lawsuit after sion that infringes upon a person’s rights should meet the passing of the period of prescription is one that the same criteria, as it is absurd to demand of a person has neglected their own interest, being careless in that they obey a law that they cannot comprehend. their passive state. In light of this, when legal provisions are unclear, in Not the same can be said in the case currently ana- the absence of a well established jurisprudence, I belysed. For starters, it is important to mention the im- lieve that demanding a person to act as to defend a portant impact of the principle of res judicata in the right that is uncertain, thus possibly forfeiting their matter. Irrespective of the uncertainty of the law, if a chances, is an illegitimate act of the state. Therefore, lawsuit were to be filed in such a situation, the defini- sanctioning those that were not willing to subject tive solution given by the Court could no longer be themselves to the possible random outcome of a lawcontested, even if the law were to change. Therefore, suit by the means of prescription is an unreasonable any legal action implies a certain risk to the individ- infringement upon their right to access justice. ual, who cannot rely either on the legal provisions or the existing case law in order to predetermine the out- The period of prescription should only begin at the come of their trial. In such a situation, there can be moment when a clear interpretation of the law is esno presumption in the sense that the one missing the tablished. At this point only, the existence and the limperiod of prescription has done so out of negligence, its of a right are certain. Only once these conditions and thus should be sanctioned. On the contrary, the are met, is it fair to put the blame on the individual delay has resulted from the lack of an actual, effective for their lack of diligence in what concerns guarding possibility to act in order to defend the right, the out- their rights. come of such an act depending entirely on the interpretation of the matter given by the judge, therefore on what could be considered pure arbitrariness. By Ioana Georgescu
The access to justice According to Article 6 of the ECHR, the free access to justice refers to ‘the possibility of each person to file a legal suit, even one that lacks legal ground, coupled 7
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DOMESTIC FOCUS Legal update: contesting the delay of a trial in front of a court
The new Romanian Code of
Romania (2008), the plaintiff had to wait 9 years in order for the State to recognize her as the exclusive Civil Procedure seems to be owner of a part of the house she was living in, which taking our legal system one step led to yet another conviction by the ECtHR. In all further towards respecting the these cases, the Court urged the Romanian state to right to a fair trial guaranteed act as to guard the warranties embodied in article 6. by Article 6 of the European Convention on Human Rights. In practice, the reconciliation of the reasonable lenght of proceedings with other warranties of a fair Alongside other warranties, trial can prove difficult. For example, it can conflict this right includes the reason- with the right to a sufficient time to prepare your able length of proceedings. defense. However, it is not impossible, given the Some of the signing states of the proper regulation. The problem of the current Code Convention have undertaken massive changes in of Civil Procedure is the lack of firm dispositions their legislation after being convicted multiple times to discourage the delay of a lawsuit. Such provisions by the European Court on the grounds of article are to be found in the New Code of Civil Procedure, 6. Romania is taking the same course of action by which is due to enter into force in 2014. instituting a procedure which will allow parties to contest certain measures which delay the ongoing On the changes trial. Under the current law, the parties are obliged to preIn this paper I will briefly present the events which vent unnecessary delays of the proceedings (Article led to this change in the Romanian legislation, ana- 10). According to Article 108¹, a party or a third parlyze the changes brought by the New Code of Civil ty can be sanctioned with a fine of 30 to 500 RON Procedure and, lastly, look at the impact of the new (7 to 120 EUR) for delaying the process by not carinstitution in terms of achieving the standards of a rying out certain obligations; Article 108³ provides fair trial. the judge with the possibility of granting pecuniary reparations to the harmed party whenever the other On what triggered change party, deliberately or by negligence, caused the delay Just as Italy, Greece, Turkey or France, Romania has of the trial. been convicted by the ECtHR for exceeding the rea- In all cases, during the proceedings, the judge has sonable length of a trial, required under Article 6 the freedom to decide if a person is responsible for of the Convention. In the case of Duță v. Romania the delay and choose whether to penalize him/her or (2008), the Court stated that a dispute over common not. However, in the absence of a mandatory sancproperty which lasted over 14 years was contrary to tion, the status quo proves that it is not efficient to the Convention, even if some of the delays had been leave this matter at the will of an overworked judge. caused by the complainant. In the case of Bercaru v. Romania (2008), the Court decided that a procedure The novelty of Law 134/2010 is the institution of the for the cancellation of a sales contract, which lasted complaint against the delaying of the process. Ar9 years, 2 months and 27 days is excessive in light ticle 520 states that ’each of the parties, as well as of Article 6. Lastly, in the case of Varvara Stanciu v. the attorney, by invoking the right to have their dis8
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pute solved in a reasonable and predictable term, can complain against delays and ask the Court to take the legal course of action in order to avoid the situation’. The legislator established four situations in which the procedure can be used:
become its own judge (the complaint is discussed by the same judges), but it also has to provide itself with the proper course of action. I cannot help but wonder: if the same court has to determine whether there has been an unnecessary delay, what are the odds of it ruling favorably in the last scenario (the wrongful a) When there is a legal term in which a certain pro- conduct of the court!); if this does somehow hapcedure must be carried out and it expires without a pen, what sort of immediate action is it going to take result; against itself for not complying with the proper length b) When there is a judicial term in which a certain of the trial? This last question remains for the cases in procedure must be carried out by a party and it ex- which the other party or a third party is responsible pires without a result and without the Court taking for the delay. any measure against that party; In terms of sanctions there is only an equivalent of Arc) When there is a judicial term in which a certain ticle 108³ of the current law in the New Code (pecuniprocedure must be carried out by a third party (e.g. an ary reparations). As some authors have rightly pointed out (Brumar, 2011), this compensation implies by expert or a local authority); or definition that the delay happened, so it appears that d) When the Court has neglected its duty of solving in terms of preventing delays it is quite unclear what the dispute in the term considered optimal, if it had the Court can do. Ultimately, it seems that the new sufficient time to do so; institution lacks precisely the type of firm dispositions the system needs.
To conclude, I cannot deny the one obvious benefit of the new procedure: it might incentivize the parties, be it indirectly, to adopt a conduct that allows the court to resolve the dispute in an optimal term. Why is that? Firstly, the decision to examine whether there has By knowing that the other party can file a complaint been a breach of Article 6 is not left entirely to the and invalidate the attempts to delay the finalization of Court. Should a party of the lawsuit believe that his/ the trial, one might adopt a fair behavior. However, in her interests are being affected due to an action with my opinion, this will only be the case if the Supreme unnecessary delaying effects, he/she has the option of Court issues a mandatory decision, clearly establishing what is to be understood by ‘immediate course of filing a complaint to the same Court. action’ and what can be done to prevent the delays, The Court must decide in no more than five days, rather than compensating prejudices resulted from without having the parties present. If the decision them. of the Court is favorable, it is communicated to the parties and there is no legal way to challenge it. If the Court dismisses the complaint as ill-founded, the By Bianca Prunea party can complain to the immediate superior court, which has to resolve it in ten days (Article 525). There are a number of changes under the new law of civil procedure which might be a step further towards a better enforcement of the right to a fair trial.
Secondly, in the case of a favorable solution to such a complaint, the Court is obliged to take immediate action in order to remove the situation that created the delay. This seems to be that extra mile which differentiates the new codification from the previous one. However, the outcome depends on what ‘immediate action of the Court‘ means. Not only does the Court 9
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DOMESTIC FOCUS Mediation through the lens of the New Code of Civil Procedure
It now appears that mediation
What does this obligation essentially finally has a real chance to come entail?
to the fore as an effective means To avoid misconceptions, some clarifications must of alternative dispute resolution be made. To begin with, mediation consists of two within the Romanian judicial main stages: system. a) the first stage, which has a purely informative In a legal circuit where convo- purpose, in which the mediator only introduces the luted private law disputes re- parties into the general principles of the institution volve at head-twirling speed, and explains how mediation can present a remedy mediation presents itself as an to their case - the parties can also intervene by askaffordable means of reaching a ing extra questions, but other than being present settlement from both a social and financial perspec- and listening, no obligation can be imposed on tive. Furthermore, it is an ambitious step to pave the them; and way for the celerity of justice, which the New Code of Civil Procedure (that is yet to enter into force) b) the second stage, which is the one in which the real dispute gets to be tackled. It commences with proclaims. a mediation agreement, through which the parties On October 1, 2012, Law 115/2012 came into force, agree to resolve their dispute through mediation. amending Law 192/2006. Essentially, this amend- In the light of these clarifications, it is beyond any ment suggests a shift in attitude towards this legal doubt that the legally instituted obligation of meinstitution. That is because Law 192/2006, which diation can only stretch to cover the first stage, the first introduced the concept of mediation in the informative stage. The second stage could never be Romanian legislation, had a merely procedural and upheld as mandatory for easily foreseeable reasons. organizational approach towards mediation by pro- It would trigger a breach of many important rights, viding definitions of the concepts involved, explain- both procedural and substantial in nature, such as ing the process, listing the people who can embrace the guarantees regarding the access to justice and a the profession, incompatibilities and other regula- fair trial. tory provisions of the kind.
What are the advantages that mediation What it did not include was a provision, of any kind, presents? in order to make it functional, not giving any reasons why the litigator should opt for the newborn and thus insufficiently popular institution. It was only six years later, in the context of the 2012 legislative intervention, that a clear utility emerged: the provision instituting the obligation of prior resort to mediation in several areas of litigation, contained in Law 115/2012. 10
It is important to observe that this newly imposed obligation, however, does not excessively burden the parties: that is because no fee is charged by the mediator for the informative stage. Another considerable benefit is that no stamp duty is due by the party filing a motion before the Court that is eventually resolved through mediation (with the notable exceptions of litigation regarding transfer of owner-
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ship over real estate, partition and inheritance). For these reasons, mediation can be considerably less costly in terms of money, but not only - it can also lead to significant savings in terms of time and emotions. Above these, the underlying advantage of mediation is that a party - uneasy over a problematic case and reluctant towards convoluted Court proceedings - can receive a predictable result. Mediation, in essence, means predictability in cases with a doubtful solution. Common sense has it, that no one would give a case to mediation when they file a petition for the win - mediation is the most adequate solution when the odds are uncertain and nobody can afford to lose or to waste time waiting for a sentence.
number of 1525 disputes have been resolved through mediation throughout 2011. Therefore, it remains to be seen whether this fortunate legislative intervention will lead to mediation being exploited at its full potential.
Why is mediation still underused? The general cause lies in the poor understanding of the basis and purpose of this institution. The common litigator does not hold sufficient information, and no one has interest to provide it. Attorneys have no motivation into dragging clients into amicable dispute resolution. They are understandably interested in the course of the trial itself, as a source of better remunerated legal services.
Which are the types of litigation in which On the other hand, even if the common litigator had mediation is compulsory in the light of Law the knowledge, there hardly was any motivation to opt 115/2012? for mediation: Law 115/2012 instituted the obligation, The main areas of litigation now bound to be subjected to mediation are: consumer protection, whenever the consumer claims prejudice arising from the purchase of a faulty product, when contractual breaches have occurred, when there are abusive provisions in the agreements between consumers and economic operators or whenever the case of other breaches in the consumer rights granted by the Romanian and EU legislation; in the area of family rights, in situations of divorce, partition, child custody, child support payments, or any other such misunderstandings within family relationships; in the area of litigation regarding assets: possession, ownership, boundaries or any other vicinity inconvenience; in cases of professional tort and malpraxis; in cases of labor litigation; in the case of criminal offences, for which the criminal proceedings have started due to the prior complaint of the victim; any other civil litigation with an overall value of maximum 50.000 RON (11.000 EUR), except for cases of insolvency.
but no legal sanction in case of infringement. And this obligation can be breached in many ways: no resort to mediation whatsoever, fruitless mediation because of passivity or lack of a real intent of the parties to reach settlement through mediation.
To draw a conclusion, mediation, as a result of the recent amendments, has the chance to gain terrain and confidence as a real and effective method of dispute resolution. The way Law 115/2012 shapes mediation is courageous and also necessary, as an attempt at Court decongestion and litigation effectiveness. Moreover, it is also a visibly preparatory step for the New Code of Civil Procedure, of which entry into force at the beginning of the following year attempts to fiercely promote celerity and reasonable duration of trials. However, there is still great room for improvement: attitudes have to be shifted, confidence has to be gained and sanctions must be included in order to ensure enforcement. And, last but not least, time has to pass in order for the construction of the idea An impartial analysis at this moment can hardly pre- of litigation around new tenets to be assimilated and sent mediation as a glowing success in the battle for properly understood. Court decongestion and litigation celerity. The Report on the Status of Justice for 2011 is a rather dire statistic By Andrada Rusan in this sense. On the one hand, it shows an increase of 8% in the overall number of court proceedings, and on the other hand, it shows that only a symbolic 11
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DOMESTIC FOCUS Inhuman and degrading treatment at the hands of police forces
In the present article, I will
analyze, in the human rights context, the use of force by the police officers and point out the cases in which this becomes inhuman treatment. I pay particular attention to the Romanian system by summarizing the Court’s judgement in the case of Ghita v. Romania (2012). The case of Ghiţă v. Romania The applicant was arrested in May 2006 by two police officers who suspected him of having sexual intercourse with a prostitute in his car. In the applicant’s version of the events, the police agents checked his identity but then refused to return his papers, claiming that he was drunk. When he stepped out of his car, in order to prove that he was not drunk, one of the police officers pushed him and he fell to the ground. Then, the two agents became violent, hitting him in the stomach and his kidneys. The applicant was taken to the police station and after a phone conversation between his lawyer and one of the officers, the police allowed him to leave the station, asking him not to press any charges. Officials sustained that the applicant was under the influence of alcohol and refused to present his identification papers, threatening the police officers. He got out of the car and handed his identity papers to one of the officers, but started shouting that he was being abused by the police, then lost his balance, fell to the ground and injured himself. He became aggressive and the police agents had to use handcuffs to restrain him. On May 2006 the applicant lodged a criminal complaint against the two police officers. The police sent the file to the Prosecutor’s Office of the Bucharest District Court for further investigation of the accusation of abusive behavior, and to the District Court 12
regarding the applicant’s allegations that he had been hit and had suffered other forms of violence. As the Prosecutor’s Office decided not to prosecute, the applicant complained, without success, to the District Court about this decision. The District Court established that the applicant behaved aggressively that night, that he was under the influence of alcohol, thus disturbing public order, and that he had deliberately tried to hurt himself. Moreover, it reiterated that according to the law, police agents were not to be held responsible for minor injuries caused to a person during the lawful exercise of their attributions. The applicant appealed, but the Bucharest County Court upheld the District Court’s judgment. Relying on Article 3 of the Convention (prohibition of torture and of inhuman or degrading treatment) the applicant alleged in particular that he had been subjected to ill-treatment when arrested by two police officers and that the investigations carried out had not been effective. Firstly, the Court reiterated the principle that when a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment. It is incumbent on the State to provide a plausible explanation of how the injuries were caused. Failure to do so leads to a serious suspicion that article 3 has been breached. The Court also noted that the national authorities failed to explain how, in falling to the ground, or ‘deliberately hitting his head on the ground and on the van doors’ the applicant could have bruised both his eyelids and temporal bone but completely spared his nose and mouth. Even accepting the possibility that the applicant’s conduct might have necessitated the use of physical force to restrain him, the Court considered that there are no sufficiently convincing elements in the file to justify such a strong use of force as to necessitate up to nine days of medical care. Therefore, the applicant’s injuries amounted to treatment contrary to Article 3 of the Convention.
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As to the effectiveness of the investigation required by Article 3 of the Convention, the Court observed that there were discrepancies between the official versions of the events, the one offered by the police officers, and the information contained by the medial certificates regarding the injuries of the applicant. The investigators and courts took the police officers’ description of events as a proven fact and placed the burden on the applicant to prove otherwise. As his chances of doing so were practically non-existent, the Court held that there had been a violation of the substantive and procedural branches of Article 3 of the Convention. Note The above-summarized judgment focuses on a recurrent topic, namely police brutality. The Court’s decision of condemning Romania for violating the substantive and procedural provisions of Article 3 of the Convention, does not represent a ‘milestone’ in its case-law, as the Court had already established, through a range of other cases, that when an individual is under the control of the authorities and is injured, strong factual presumptions will indicate the guilt of the authorities. Moreover, the burden of proof rests on the authorities to provide a satisfactory and convincing explanation as to the cause of the injuries (see Boicenco v. Moldova, 2008). Furthermore, the Court mentioned more than once that if a person raises an arguable claim that he/she has been seriously ill-treated by police or other such agents of the State, then there should be an effective official investigation capable of leading to the identification and punishment of those responsible (Selmouni v. France 1999; Assenov and Others v. Bulgaria 1998, Velikova v. Bulgaria, 2000).
aggressive, not taking into consideration that the difference between brutality, on the one hand, and the legitimate use of force, on the other is delicate and unfixed (Babovic´, 2000). Neither in law nor in police science is there a definition of police brutality accepted on a large scale. It has been suggested that its establishment remains in the realm of police discretion, which appears to be the most important source of police brutality (Babovic´, 2000). In its case-law, the Court has offered numerous examples of police brutality, qualified as inhuman and degrading treatment. However, one could say that police agents are sometimes authorized to be aggressive: they are given the right to use force in some situations, but this legal authorization is limited by the concept of proportionality. This is the criterion used by the Court when establishing if an act is contrary to Article 3 of the Convention: unjustified and excessive force used by policemen. This conception has also been sustained in specialty articles, most of them referring to the fact that brutal police behavior during an arrest is measured by the degree of force or violence, as well as the illegality of a police response - in particular by the use of ‘unnecessary’, ‘excessive’ and therefore ‘unlawful’ force in subduing a suspect (Bouza, 1990).
In an attempt to explain the origins of police brutality, it has been outlined that police work in itself is brutal and dehumanizing, coupled with frustration, phobia and tension and the uncertainty about the outcome of an action or a conflict. Stress is common in dangerous situations and it makes the self-defensive reaction of the police officer stronger and intensifies its brutality (Babovic´, 2000). I strongly believe these factors do not apply in the case of Ghiţă v. Romania and it At the outset, it is important to point out that the remains to be seen what will be the reaction of the Court rulled against the Romanian State in cases of Romanian State to the Court’s judgment, if there will inhuman and degrading treatment by the police mul- be any. tiple times (Barbu Anghelescu v. Romania, 2004, Bursuc v. Romania,2004, Roşioru v. Romania, 2012, Ianoş I conclude by noting that in 2011 alone Romania was v. Romania, 2011). This leads to the conclusion that found guilty 11 times for the violation of Article 3 the Romanian authorities had not taken the appropri- of the ECtHR, which leads me to the conclusion that ate means of ensuring compliance with the Conven- “public order authorities are placed in a state of impution, perpetuating and encouraging abusive behavior. nity” (Popescu, 2012). In the context of this analysis I want to focus on the concept of ‘police brutality’. In my opinion, generally, people qualify certain acts of a police officer as being
By Ioana Seuche 13
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DOMESTIC FOCUS The Car Pollution Tax
there are more and more news regarding the socalled “first registration tax” in Romania.
Subsequently, negative criticism from mass media, court sentences unfavorable to the Government and also an infringement procedure opened against the Romanian state have determined the local authorities to replace this tax with the pollution tax. The new tax was regulated under Emergency Government Ordinance (EGO) 50/2008, in force since July 1st, 2008. This time, the tax was meant to ‘ensure environmental protection through the set up of programs and projects aiming at improving air quality and complying to specific European law’ as well as to ‘take into consideration the need to adopt measures to ensure the compliance to applicable Community law norms, including the jurisprudence of the Court of Justice of the European Union’.
Its incompatibility with European Union law is already a well-known fact, and this is mainly why its regulation has been repealed for the time being. Nevertheless, it seems that it will be enacted under a new format in 2013. Given the circumstances, it is difficult to imagine how it is going to be. This article aims at providing a short analysis on the legality of the new tax and finding out the viable solutions that Despite all this, in the cases of Tatu vs. Romania could ensure its legality. (2009) and Nisipeanu v. Romania (2010) the European Union’s Court of Justice stated that the pollution tax, as well, was contrary to the EU law. A Brief History of the Tax The tax was first established under Law 343/2006, which added the so-called “Special tax for motor vehicles” to the Fiscal Code. According to the arguments stated by the Ministry of Environment and by the Ministry of Public Finance, the introduction of the tax was dictated by the need to ensure environmental protection and to prevent pollution created by used cars imported from other EU Member States.
European Jurisprudence on the Subject
It is important to know that it came as no surprise for the Romanian Government the fact that the tax was declared contrary to article 90 of the EC Treaty. Thus, by the sentences of the European Court of Justice, of October 5, 2006, regarding the cases C-290/2005 and C-333/2005, the Court stated: Article 90, paragraph 1 of the EC Treaty ought to be interpreted as forbidding the establishment of a regThe most serious problem generated by the special istration tax imposed on motor vehicles, as long as: tax applied to vehicles on the occasion of the first a) The tax is applicable to used motor vehicles that registration in Romania was that it was contrary to are for the first time put into circulation in a MemEU law. Article 90 of the EC Treaty (currently artiber State; or cle 110 TFEU) states: “No Member State shall impose, directly or indirectly, on the products of other b) The amount of the tax is exclusively determined Member States any internal taxation of any kind in by the technical characteristics of the motor vehiexcess of that imposed directly or indirectly on sim- cle (type of vehicle, capacity of the cylinder) and the ilar domestic products. Furthermore, no Member classification from the point of view of the pollution State shall impose on the products of other Member level is calculated without considering the vehicle States any internal taxation of such a nature as to af- depreciation. Therefore, when applied to imported ford indirect protection to other products.” used motor vehicles from a Member State, it exceeds 14
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the value of the tax included in the residual value of similar used motor vehicles that have already been registered in the Member State in which they are imported. (Costas, 2006).
Treaty, seeing it is still based on the same takeover mechanism. Consequently, the full refund of the fees thus paid is obviously required. Even more, as the above quoted author had also noticed, fairly, in our judgment, since there is no legal basis for collecting Consequently, the Romanian state should have tak- these pollution fees, the Romanian State should not en measures in order to ensure the compliance with be able to retain any fraction of the already paid taxes, EUCJ’s decisions before even establishing the first tax. contrary to some of the existent practices when the Despite all this, the tax came into force and continues legislation had been modified. to exist up to present times. In both of the cases mentioned above, the Court has established that: ‘Article Viable Solutions 110 TFEU ought to be interpreted as forbidding to Member State the establishment of a pollution tax im- a) Regarding the refunding of already paid taxes , the posed on motor vehicles on the occasion of their first best judicial remedy would be a simple administraregistration in the respective Member State whenever tive procedure instead of lawsuits in front of courts, the respective tax should be shaped in such a way that which can take up to several months, if not years, to it would impeach the placing in circulation in the re- be solved. spective Member State of second-hand vehicles pur- This option is also preferable in order to avoid overchased in other Member States, yet without discour- crowding the national courts. In this regard, we refer aging the purchase of second-hand vehicles bearing to the fact that, according to statistics, between 2011the same manufacturing year and technical condition 2012 there have been about 80.600 cases registered for on the domestic market.’ repaying the pollution and vehicle tax. In this case, The Romanian Government had sustained in front of the Court that the purpose of this law is the protection of the environment. In regard to this observation, Mr. Tatu has stated, correctly, in my opinion, the following: ‘the protection of the environment, that has been used as an argument by the Government, is being materialized by stopping, through the application of a deterrent tax, the circulation of highly polluting vehicles in Romania, like those who correspond to the Euro 1 and Euro 2 values and those which have a high displacement capacity, on one hand, and, on the other hand, by using the incomes generated by this tax for financing some of the environmental projects, when this purpose may be better and more coherently realized by applying this tax to any vehicle which belongs to those categories and which are being put forth in Romania. Such an approach, which could be enforced by applying an annual motor vehicles’ fee, is perfectly possible and wouldn’t discriminate in favour of the national market for used vehicles. Moreover, this would assort with the principle: Those who pollute, pay!’ (Costas, 2011). In conclusion, considering the analysis presented above, we believe it has become obvious that any form of this tax is incompatible with Article 90 of the EC
we believe action must be taken as fast as possible because there does not seem to be any other way to improve the situation.
b) In any case, we consider that the only way to make sure that such problems will be avoided in the future is exactly the one quoted before, namely, by enforcing the pollution tax on any polluting vehicle already in circulation for the reasons stated above. Even more, this tax could replace the current vehicles’ toll, by being in full compliance with Article 110 TFUE which does not restrain the freedom of every member state to build a tax system which differentiates between certain products, even if it is about similar ones, based on certain objective criteria like the origin of raw materials used or the production process applied. At the moment, however, the only existing judicial remedy is notifying the administrative and fiscal courts (the Romanian specialised courts) which have already formed a constant jurisprudence of refunding the illegal fees by directly applying the EU’s law. By Madalina Stancu
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DOMESTIC FOCUS Is Homosexuality truly accepted? A comparative analysis between Austria and Romania
Over the last years, issues that
Countries that recognize the existence of same-sex couples and regulate some components of their unused to be regarded strictly as ions can be divided into three groups: matters of national policy have gained an international dimen- a) full equality of rights between same and oppositesion. Family law is not isolated sex couples but no access to a marriage certificate; from this phenomenon. b) recognition of same-sex couples as partners with Traditionally, family law has ample recognition of material rights and a narrow been treated as a local construct access to building family ties; or which was meant to ultimately c) recognition of same-sex couples as a lawful asreflect the most intimate cultursociation between two individuals, narrow or no acal values of a nation. Forty years cess to family ties and limited material rights. ago, same-sex couples were not legally accepted in any country. In the last thirty years, however, around I will take one country from the first group (Aus20% of countries have granted some rights to same- tria) and another from the last group (Romania). sex couples. Countries that have decriminalized These two countries have different opinions and sexual relations between individuals of the same sex legislation regarding homosexuality and the rights have shortly thereafter seen a rise in the public de- of same-sex couples. bate about formal recognition of same-sex couples. Austria joined the European Union in 1995. While Most countries reach recognition of same-sex mar- sexual acts between homosexuals/lesbians have been riage after a gradual recognition of same-sex cou- legal in Austria since 1971, Austria then started folples which starts with the granting of partial materi- lowing the original registered partnership model of al rights. The recognition of marriage as the symbol other European countries. of full equality is the culmination of these processes. Austria has provided rights for de facto same-sex The first and most common difference between op- unions since 2003, following the decision of the Euposite and same-sex couples regards the purpose ropean Court of Human Rights in Karner v. Austria. of marriage, in the latter case it being seen as the The recognized status - called unregistered cohabigateway to forming a legally recognized family. Even tation - gives same-sex couples living together the some of the countries that were willing to allow same rights as unmarried cohabiting opposite-sex marriage between two people of the same sex were partners. The Austrian Constitutional Court afnot ready to recognize same-sex couples as a legiti- firmed that the legal definition of a marriage as a mate parental unit. Many countries have opted for union between a man and a woman was not uncona regime of registered partnership as an institution stitutional and it did not violate the right to a family that recognizes a union between two same-sex peo- set forth in Article 12 of the European Convention ple. Another difference between same and opposite- of Human Rights. The court, however, admitted that sex marriages concerns the treatment of these two same-sex couples should be protected by the right concepts within private law. Yet another difference to privacy and, thus, be granted the same rights as stems from the symbolic connotations of marriage. heterosexual unmarried couples. A point of debate has been whether same-sex marriages should be subjected to the same procedures In December 2004, the SPĂ–, then in opposition, adopted a major policy decision on the issue of equal as opposite-sex marriages. 16
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treatment of same-sex couples. A 2006 European Un- mosexual intercourse, at 15 years of age. ion poll surveying up to 30,000 people showed Austrian support for same sex marriage at 49% (higher The Romanian Parliament enacted a law that explicitly outlawed discrimination on the basis of sexual orithan the EU average of 41%). entation in a variety of fields, including employment, Registered partnerships (Eingetragene Partnerschaft) the provision of and access to goods and services, have been legal in Austria since the 1st of January 2010, housing, education, health care, audiovisual programbut there still are many distinctions between this and ming, the justice system, other public services and sotraditional marriage. Firstly, in the case of marriage, cial security. Romania currently bans men who have the PStG refers to the name taken by the couple in had sex with other men from donating blood, due to common as the ‘family name’, whereas in the case of a presumed higher risk of infection with STDs. Howpartnerships, it is simply referred to as ‘the last name’, ever, in September 2007, Romania’s National Counthus keeping parental rights as an exclusive preroga- cil for Combating Discrimination ruled that this ban tive of marriage. Secondly, married couples become a was illegal, constituting discrimination on the basis of unit called family. Registered partners are instead two sexual orientation and creating a ‘hostile, degrading, people associated through a legal contract with lim- humiliating and offensive atmosphere for homosexuited effects. Consistent with this rationale, registered als’. The Council ordered the Ministry of Health to repartners do not have access to joint or stepchild adop- move the ban on donating blood. tion. Assisted reproductive technologies are open to None of Romania’s major political parties explicitly unmarried couples, but only those of different sex. support same-sex marriage or registered partnerships, Alongside Greece and Italy, Romania is among the or has proposed any law regarding it. Consequently, European Union countries that provide no rights to the debate about this issue in the political sphere was same-sex couples. However, the Council of Europe less vehement than in civil society and the media. A and the ECtHR encourage the recognition of same- civil partnerships bill was introduced by a Democratsex couples. These countries, therefore, should soon ic Liberal Deputy at the beginning of 2011, providing move towards some type of recognition of same-sex same-sex and opposite-sex couples with some of the couples, even if they grant them only limited rights rights of marriage. It received a favorable recommenfor now. dation from the Legislative Committee of the Chamber of Deputies. However, the bill was opposed by the Romania has joined the EU in 2007 and has been re- Government, which stated that the Civil Code only quired ever since to ‘facilitate’ and recognize same-sex recognizes one form of relationship in Romania and relationships registered in other EU member states. that is the marriage of a man to a woman. In Romania, consensual acts between same-sex adults Things did not change with the introduction of the in private were legalized in 1996. It was not so long New Civil Code. In dealing with the ‘Prohibition of ago, however, that the last anti-gay law was repealed. forms of cohabitation and of their equivalence with This happened in 2001 and it was only due to pres- marriage’, Article 277 states: ‘(1) Same-sex marriage is sure from the European Council. The aforementioned prohibited. (2) Same-sex marriages concluded or connorm, Article 200 of the Penal Code, read: ‘Sexual tracted abroad, either by Romanian or foreign citizens, relations between people of the same sex, committed are not recognized in Romania. (3) Civil partnerships in public or producing a public scandal, are punish- between persons of the opposite sex or same sex, conable by a prison term between one and 5 years’, which cluded or contracted abroad, either by Romanian or criminalized public manifestations of homosexuality. foreign citizens, are not recognized in Romania.’. Since 1996, it is possible for someone who has gone through sex reassignment surgery to legally change their sex in their official documents. Since 2002, the age of consent is equal for both heterosexual and ho-
By Diana Feldrihan
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Interview: Conf. Dr. Florin Streteanu Dean of The BBU Faculty of Law
Conf. Dr. Florin Streteanu is
in the teaching staff of BabeșBolyai University, being also an associate professor at the International Faculty of Comparative Law, Strasbourg. He also has had a rich non-academic experience, being an ad-hoc Judge at the European Court for Human Rights (2009-2012), Trainer and Head of the Criminal Law Department of the National Institute of Magistracy, Bucharest, since 2007, and member of the Ministry of Justice Commission that drafted the New Criminal Code, Founder and Director of Criminal Law Writings and chief editor of the law journal Studia Universitatis Babeș-Bolyai - Serie Iurisprudentia.
Law r Lawyr.it: What was different in Law School when you were a student compared to how you see it today? FS: Firstly, there were only 65 students per year, plus the 10-15 foreign students, grouped in 4 groups of around 20 people, which lead to a stronger cohesion and closeness of the students. There was a much more personal relationship with the professors, as the seminars and courses were, very often, held by the same professors. Secondly, the examination was fairer, as most of the exams were oral. Lastly, given the political and historic context, most of the existing law books were outdated, being strongly influenced by the communist principles. Therefore, we had no written courses or books in accordance with, at that point, newly introduced legislation.
Being one of the most appreciated theoreticians of the moment in Criminal Law in Romania, Florin Lawyr.it: When did you discover your passion for Streteanu is, since 2012, the Dean of the Faculty of criminal law? Law at Babeș Bolyai University. Lawyr.it: First of all, we would like to know who Florin Streteanu is. What made you choose a legal career? FS: In comparison to other students’ decision, who knew what they wanted since they were kids, in my case this was a late decision made at the beginning of the last year in high school. Given the fact that my studies and interests were based on mathematics, the normal next step would have been attending the Technical University or the Faculty of Mathematics. However, given the general context, based on the fact that the judicial system, deeply affected by communism, was in an urgent need for a change after the Revolution, the Faculty of Law turned out to be a challenge for every graduating student at that moment. Therefore, I decided to accept that challenge, despite the fact that, until then, I had never had any contact with the judicial world. 18
FS: Quite early - I must say. It was at the end of the second year when I published my first article in a publication. Also, although I had some contacts with civil law, I found criminal law closer to my formation, as the thought process in criminal law required skills that are more similar to the ones developed in mathematics. Lawyr.it: Why did you choose an academic career and decided not to work in the practice area, being a lawyer, a judge or a prosecutor? FS: When I started my university studies, I thought I was going to be a judge. I had this wish even after I started an academic career, although soon I realized a career as a judge and an academic career are not fully compatible. At the same time, the experience gained during the few years in which I did work as a lawyer made me
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Law r .it
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Law r .it
realize that I could not excel both in the academic and of them find a job in the practice area in the first one in the private practice sphere, so I decided to focus on or two years after graduation. the former. Lawyr.it: Very often, students are told that there are Soon after that I started to have an increasing number major differences between how criminal law is taught of responsibilities in the faculty, making a hypothetic in school and how it actually applies in court. What switch to another career even more difficult. do you think about it?
“A positive aspect of nowadays’ students is that they are much better informed, given the plurality of books and publications that they can access, both written and via Internet.” Lawyr.it: As a professor, if you were to compare the students you see now with ‘90’s students, what would you highlight as major differences? FS: In spite of the fact that each generation is different, there are some similarities. A positive aspect of nowadays’ students is that they are much better informed, given the plurality of books and publications that they can access, both written and via Internet. On the other hand, a negative aspect is that they no longer feel that they belong to a community. However, I do think that this is in the nature of progress and can be explained through the existence of a greater number of students and groups.
FS: Theory and practice, in my opinion, should not differ too much, given that both are based on the same laws. However, there are some differences that derive from the interpretation that both academicians and judges offer to the law, but this is a repercussion of the uncertainty of the law in some cases. I also believe that the way in which the judicial system is conceived can contribute to this general impression that people talk about. For example, in school we teach students that the right of a lawyer to have access to the case file is fundamental, but in reality there are numerous procedures that have to be undergone, making the qualification of that right as fundamental utterly questionable. Lawyr.it: You are also, currently, the Dean of the Faculty of Law. What do you see as the most relevant problems that the faculty is dealing with in everyday life? FS: There are many issues that I could talk about, but the most important concern the infrastructure, the insufficiency of didactic personnel and the diminished visibility in the international legal area.
Everybody can certify that currently, because of the large number of students, the lecture theatres are very Lawyr.it: What are the most frequent problems that often too crowded and the small library cannot suplaw students usually deal with after graduation? ply the demand for both books and places to study. A major consequence is the fact that professors have to FS: The most significant problem is probably the diffi- cover more classes that they should have, being forced culty of finding a job. This is primarily the cause of the to diminish their research. fact that, nowadays, there is a stringent competition in the legal field. At the same time, although academically our articles and studies are widely appreciated at a national level, However, in the last few years the results of the Na- there is still an insufficient degree of visibility outside tional Institute of Magistracy and Bar exams have the Romanian borders. proven that our students are well qualified, thus most 20
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Law r .it
One way of improving that would be to try to study and write more on the currently discussed themes in the legal field or to become part of international mixed research and studies groups.
â€œOne way of improving that would be to try to study and write more on the currently discussed themes in the legal fieldâ€?
as it is based on a continuous exchange of ideas and challenging debates. Obviously, there are compromises that you must assume, given the fact that decisions concerning different legislative choices are rarely made unanimously, but I do believe this is something necessary for the achievement of a result, which in this particular case, though perfectible, is rather satisfactory. Lawyr.it: What major perspective changes come along with the New Criminal Code?
Lawyr.it: We have just found out that the faculty council has just decided to introduce two important FS: The most important innovation can be observed exams, representing a drastic change for students. regarding the punishments. Firstly, there was an inCould you tell us more about it? clination to reduce the punishment for the crimes against the property and goods of the citizens, conFS: Practically, there will be two different exams. The comitant with an aggravation of the sanctioning treatfirst one regards the admission to college and consists ment for concurrence of offences or recidivism. in a written exam aimed at evaluating the logical skills of potential students. The test will be similar to the Furthermore, there are important changes both in the one passed by the National Institute of Magistracy. regime applicable to minors and in the supervision of criminalsâ€™ behavior in case of suspension of their senWe have chosen this type of exam firstly because in tence or when they are released on parole. the legal area it is absolutely necessary to have good logical skills, in every single branch, and secondly be- Lawyr.it: When should we expect a new book written cause we do not want to force students to buy various by you? books or to pay teachers to prepare them, as previous experiences shown it would be likely to happen. FS: Provided that the New Criminal Code will start to be applicable next year, I hope to rewrite the first The second exam is for those that finish all four years volume of the Criminal Law Treaty according to the and conditions the graduation. The exam was imposed new legislation and to write the second volume. Also, by the Ministry a year ago, and will consist, starting I intend to write another book regarding the legal this year, in a written exam with multiple choice ques- problems posed by the incidence in time of the two tions from civil and criminal law. The exam will have codes. Hopefully, these books will be published by the a 50% influence on the final degree of the student, end of next year. alongside with the grade obtained by submitting a final work paper on a theme chosen by the student. Lawyr.it: Lastly, what advice would you offer to your students? Lawyr.it: Recently the Parliament adopted the New Criminal Code, which is due to become applicable in FS: I could give many pieces of advice, but I think 2013. Being part of the commission charged to con- the most important, from my experience, is to live and ceive the new law, how was the experience of having enjoy the beauty of being in college as much as they to collaborate with theoreticians with various per- can, at every level, both professionally and personally, spectives? and take advantage of every opportunity they get. FS: Team work is always a mutually beneficial and perspective-widening experience for academicians,
By Ioana Stupariu 21
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International A case for legitimising abduction as a means of procuring the defendant
In a world where international law revolves around states, government officials abducting a person from another state without his/her consent is a violation of that stateâ€™s sovereignty.
Conditions for validating the abduction In order to have a legitimate action and validly exercise jurisdiction over the offender, several conditions need to be fulfilled.
Firstly, the state that tries the offender must have However, we believe that it is jurisdiction over the alleged crimes on the basis of legitimate for a state to take the principles applicable in the matter, namely prosuch action when done with the tective, nationality, passive, territorial and universal purpose of instituting criminal (Carter, 2008). procedures against a person charged with crimes against humanity under inter- Of these, given the nature of the crimes prosecuted national law. We acknowledge that some reparation (offences that can qualify as crimes against humanmight be due, but for the purposes of effective pros- ity), more often than not, the basis will be universal ecution, jurisdiction of courts should not be denied. jurisdiction (Lotus). Since the only legitimate purpose for an abduction is trial, we hold that jurisdiction is a prerequisite for such action.
For the purposes of this article, we will refer to abduction as the act of Government officialsâ€™ forcefully taking away a criminal offender from a different state and bringing them against their will within the state of trial. Although we acknowledge an interesting discussion can be held around the situation when the abduction is perpetuated by private individuals, with no apparent link to any state, the purpose of this article does not provide the space for this.
Secondly, we believe that the offender should be tried for crimes against humanity. As kidnapping constitutes an infringement to the sovereignty of another state, we believe that not all crimes justify such action. Crimes against humanity are particularly grave, therefore we believe that sovereignty pales in importance when put in balance.
Even if reparation would be due through other means (Constantin, 2010), sovereignty alone should never justify holding someone accused of such seThere is no unitary point of view on the matter in in- rious offences from prosecution. Modern internaternational law practice. Scholars, as well as courts, tional law is, and should be, focused less on statism have notably adopted the vision according to which and more on offering effective protection for indijurisdiction should not be denied on the basis of il- viduals against genocide, torture and other similar legally procuring the defendant, thus promoting the acts (Dâ€™Amato, 1995). male captus bene detentus policy (Eichmann, 1961). Despite this, recent decisions ruled against it (R. v. Thirdly, the state where the defendant is located at Hartley, 1978). the time of the abduction should be either unable or unwilling to prosecute them. Unwillingness of 22
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trial is incident in cases when, even if not explicitly or through the aid of Government officials, a state offers protection or shelter from prosecution to the defendant. This was the situation in the Eichmann case, where the Argentinian authorities have failed to prosecute General Eichmann, thus justifying an incursion by the Israeli Special Forces.
Firstly, we believe that this critique can be removed by our fourth condition, namely the one stated by the Toscanino principle.
Should the prosecuting state act just as if the defendant has been extradited, treating them with the proper respect for human rights, and offering them all the safeguards against human rights abuses, such Often, protection is offered by some states on the as habeas corpus, the rights of the defendant are sufbasis of immunity, as some of the perpetrators of ficiently protected. crimes against humanity are former heads of states or Government officials (Pinochet). We believe that Secondly, we believe that exceptions to the inviolain such circumstances it is legitimate for a third- bility of the rights of the defendant can be sustained, party state to take action into its own hands, as oth- if justified by an imperative need. Such a justifying erwise justice would not be done. This is a conse- need may be, in our case, that of upholding the rule quence of a principle accepted in international law: of law. If the refusal to try or extradite the defendaut dedere, aut judicare (Streteanu, 2008) - try the ant leads to them avoiding the legal consequences of their action, abduction is necessary for justice to offender, or surrender them to others that will. be served. A fourth condition that we believe should be instituted is that of an acceptable conduct of the kidnapEffects regarding the jurisdiction of the pers towards the abductee, meaning that Government officials should be treating the defendant no national court if the manner in which the accused is brought before is considered ledifferent from a person that has been extradited. This train of thought has been expressed by the American courts with the occasion of the Toscanino trial, an exception to the well known Ker-Frisbie principle establishing that the manner an accused was brought before the court is not relevant to the jurisdiction. Therefore, the conduct should be ‘shocking’ or appalling like that in the Toscanino trial in order to render the court unable to judge; this appreciation will be made ‘in abstracto’ as compared to the extradited person as stated in the Lujan case.
Contrary opinions Probably the most pertinent critique that has been brought to this opinion is that formulated by human rights activists, who argue that abduction goes against the very principle of the extradition procedures - to protect the right of the defendant (Selleck, 1985). To this we have two responses.
To begin with, it should be noted that there have been enough decisions in international practice to sustain that there is a strong practice of abduction not interfering with jurisdiction (Harris, 2004). Apart from the pre-cited Eichmann and Lotus cases, there have also been the Alvarez-Machain case, where US courts tried the defendant for murder of a DEA member and drug-trafficking, after they have procured him through abduction from Mexico; the Mordechai Vanunu case, where Israeli officials abducted an Israeli citizen from Italy and prosecuted him for revealing state secrets; Abrahams v. Ministry of Justice, where South African forces kidnapped the defendant from nowadays state 23
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International of Botswana and charged him under the Law for suppressing Communism; Dragan Nikolic case, with the defendant forcefully removed from BosniaHertzegovina by SFOR forces and put on trial by the ICTY; Öcalan v. Turkey case, in which ECtHR found no breach of Article 5 of the Convention even though Turkish authorities exercised jurisdiction outside territory as they kidnapped the terrorist from Nairobi airport; and the Carlos the Jackal (Ilich Ramirez Sanchez) case, where French officials abducted the defendant from Sudan and prosecuted him for acts of terrorism.
rent against international criminals. We find it unacceptable that serious offenders can easily seek shelter in certain states that have constant practices of refusing extradition, or in states where they can hide behind various immunities offered by the Government. We believe that taking a firmer stand against this type of behaviour would lead to a more cohesive approach toward fighting crime, and towards individuals being deterred from committing such acts as they would know they can find no legal means of avoiding the consequences of their action.
Contrary opinions argue that the primary effects of abduction would be a breach of sovereignty, a breach of human rights, and a lack of jurisdiction. We have already shown why the imperative need to In all of these cases Courts ruling that they have try the defendant primes over the first two (rationno basis to refuse jurisdiction due to the means of ale also expressed in Nikolic). procuring the defendant. Furthermore, Sir Fawcett wrote that jurisdiction should not be denied, and With regards to a lack of jurisdiction, as we have that ‘the State must accept reparation’ in another argued before, we believe it would be severely detrimental to the process of effective prosecution, form. (Fawcett, 1987) without having any rational justification (as we have The primary effect of considering abduction a le- shown that sovereignty and human rights cannot be gitimate means of procuring the defendant is that such justification). Courts have jurisdiction to prosecute him in. This means that International Criminal Law gains in effectiveness, and that it is borderline impossible for By Irina Negrutiu international criminals to find legal protection and avoid the consequences of their action. The rule of Together with Calin Muresanu & Dan Morosan law is upheld and international law takes a great leap forward into providing effective protection for individuals against serious offences. Furthermore, this leads to the fact that the means of reparation for such ‘illegality’ will not be judicial, but rather political. As happened in the Eichmann case, Israel issuing public apologies to Argentina for the abduction was sufficient, meaning that justice did not suffer from the situation at hand. Lastly, we believe this would act as a strong deter-
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International The right to life of the embryo
an international level, multiple conventions regarding human rights enshrine the principle of absolute protection of human life. However, only one of these Conventions (the American Convention on Human Rights) sets a precise moment at which life begins (i.e. at conception), thus protecting the embryo. In the rest of the world, however, Courts have been reluctant to grant the embryo the right to life, the purpose of this article being to analyse the diverging jurisprudence in the matter. The protection of human life is fundamental in most legal systems around the globe. Article 2 of the European Convention on Human Rights, Article 2 of the Charter of Fundamental Rights of the EU, Article 3 of the Universal Declaration of the Human Rights, Article 4 of the American Convention on Human Rights, Article 4 of the African Charter of Human and Peoplesâ€™ Rights, and the National Constitutions of all democratic states establish that all human beings, without any distinction, have the right to life, therefore the law has to protect it. However, the moment when human life - and, intrinsicly, its right to protection - begins is unclear in these texts. At the same time, Jurisprudence offers heterogeneous solutions. The biological beginning of life is the embryo, the earliest stage of human development, but only the American Convention on Human Rights granted the embryo the status of a person, stating in its Article 4 that the Right to Life shall be protected from conception.
Therefore, the Courts which had to decide on this matters tried to offer nuanced solutions that did not come in conflict with other generally accepted fundamental rights, such as the Right to Privacy or the Right to have a Family. The European Court of Human Rights declined granting an embryo the status of a person twice, leaving this decision to the signatory states of the European Convention of Human Rights. In the case of Vo v. France, Thi-Nho Vo, a French citizen went to the HĂ´tel-Dieu Hospital in Lyon for a regular consultation, as she was pregnant in the sixth month. The same day, at the same hospital, ThiThanh Van Vo was going to have her intrauterine device removed. Accidentally, without any previous consultation, the doctor started the procedure of removing the intrauterine device on Thi-Nho Vo, injuring the fetus and, as a result, the woman had to undergo a therapeutic abortion (Allard, 2008). Thi-Nho Vo sued the doctor and, in 2004, the case reached the High Chamber of the ECtHR. The Court decided that the states are responsible for determining when human life begins, mainly because the countries that ratified the Convention could not find a common solution to this problem. However, the potentiality of the pre-natal being and its capacity to become a person have to be protected in the name of human dignity, without necessarily considering it a person in the sense of Article 2 (Berger, 2008).
In the case of Evans v. Great Britain, Natallie Evans and Howard Johnston, an engaged couple, decided to follow an in vitro fertilisation procedure because Ms Evans was diagnosed with ovarian cancer and wanted to store the resulting embryos until she would recover and be able to carry a pregnancy Granting the embryo the legal status of a human be- again. ing has deep implications in matters such as aborAfter two years the couple split and Johnston wanttion, in vitro fertilisation and stem cell research. ed the embryos destroyed. Evans wanted to con26
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tinue the in vitro fertilisation, but she needed her exfiancée’s consent for that to happen. As a result, she began her legal challenge. In 2005 the case reached the ECtHR and in 2007 the Grand Chamber ruled against Evans (Allard, 2008).
The Court decided that women can obtain abortion without the intervention of the State in the first trimester of pregnancy, thus denying the embryo the Right to Life and giving priority to women’s Right to personal Freedom and Privacy (Roe v. Wade Decision of the Supreme Court).
The Court once again stated that the member states are entitled to determine when human life begins. The states that ratified the American Convention on Thus, in accordance with the law in the UK, the right Human Rights agree that the Right to Life starts at to life of the embryos was not threatened. conception. Consequently, in the light of Article 4, Costa Rica forbids in vitro fertilisation processes, beThe ECtHR avoided recognising the right to life of cause, by default, some embryos would be left unused the embryo because this issue has many implications and eventually destroyed. Even though Costa-Rican in different fields and the Court considered that the legislation does not breach the American Convention countries should have the autonomy to choose the on Human Rights, the American Commission on Humost suitable method to determine a solution to this man Rights, sued Costa Rica in 2011 because it resituation, in accordance with their social, religious peatedly denied the Right to have a Family to the couand cultural inheritance. ples that were not biologically able to have children. On the other hand, the Court of Justice of the EU, in its decision in the case of Greenpeace v. Brűstle, banned the embryonic stem cell patents because the practice implied the destruction of embryos. The decision refers to both in vivo and in vitro embryos, stating that human embryos should not be used for scientific purposes.
The case of Artavia Murillo and others v. Costa Rica is now being debated in front of the Inter-American Court of Human Rights, proving that South America might change its perspective on this issue (Resolution of the President of the Court).
Taking everything into consideration, the jurisprudence at an international level tends to decline grantEven if the CJEU does not recognise the right to life ing the Right to Life to the human embryo, mainly of human embryos and it does not ban the research because it comes in conflict with other rights that have on human embryonic stem cells, it indirectly admits to be protected, such as the right to privacy or freethat human life begins after conception and that inter- dom. rupting pre-natal life would be ‘contrary to ethics and public policy’ (Judgment in Case C-34/10 CJEU). States, despite generally protecting the potentiality of human life, still do not consider it superior to the right On the other side of the Atlantic, the countries of of freedom which is regarded as sacred in a democratNorth and South America stand for complete oppo- ic society. site opinions in regard to the right to life of the embryo, with only Latin American states having ratified the American Convention on Human Rights. By Andreia Moraru In the case of Roe v. Wade, in 1969, Norma L. McCorvey, from Dallas, Texas, discovered that she was pregnant and wanted to obtain a legal abortion, claiming that she was raped. Since she was not able to prove the alleged rape, after she attempted to obtain an illegal abortion, she decided to file a suit under the alias of Jane Roe. The case reached the Supreme Court in 1970 and it ruled in favour of Roe.
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International Individuals as subjects in International Law
Overlooking the endless doc-
is bound to change, especially since the aim of the agents who first envisaged the European Union was trine that embodies the states to eventually arrive at some kind of European Fedinto the motif of the interna- eration similar to that in the United States. tional system, I found myself in need of drawing attention upon Individuals have become limited subjects in interthe individuals’ status in this national law because the latter has provided them with certain obligations, the violation of which divery framework. rectly implies international criminal responsibility. Given the acute flourish of glo- Although an International Criminal Code does not balization, it comes as no sur- exist yet, a systematisation of the crimes is included prise that the need for change in the Rome Statute of the International Criminal is the one that characterizes Court. In order for conventional incrimination to nowadays’ international legal environment. It can be part of the general international law, the univerbe briefly said that the novelty at stake implies the salization of the treaty is of absolute necessity. emergence of an International Criminal Code. Along with the development of the incriminaThe phrase ‘international law’ basically means the tions and the establishment of certain international system of law regulating the inter-relationship of courts, a judicial regime covering the criminal resovereign states and their rights and duties vis-à-vis sponsibility of the individual in the public internaone another. During the 20th century, however, in- tional law should naturally emerge. This particular ternational law underwent a process meant to turn regime would be a mixture of general principles of it into a legal system which viewed the individual as law and of specific rules of public international law. one of the central subjects of its endeavours. Thus, In international law, the individual criminal responnowadays, international law can be defined as cov- sibility is the institutive norm of the international ering not only state sovereignty, but also the rights personality of the individual, who remains a subject of persons within the territory and dominion of one of international law as long as the rules of the crimination, by reason of acts, private or public, done nal international law have applicability upon his/her within the dominions of another nation. behaviour. While pondering the question ‘Why have we arrived Referring to the international applicability of the at a new definition of international law during the principle non bis in idem, it should be pointed out 20th century?’ I came to the realisation that it was that this treaty is of strict applicability only when a precisely in the 20th century that the process of glo- person is judged for the same crime by the courts of balisation began to flourish. Therefore, this article is the same state. meant to provide an overview not only of the changes that globalisation has already brought about, but Moving forward to the specific rules of international also of the possible future developments that this law, the first to be mentioned is universal competrend might facilitate. The focus of international tence, a rule of customary law which recognises the law in the previous century was enlarged to include competence of internal courts to judge international other entities apart from the states, but individuals crimes perpetrated abroad, regardless of the place are still only limited subjects of the international where they have been committed, the nationality of legal system. It is my firm belief that this situation the author or of the victim. 28
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The rule that establishes the primate of the international incrimination derives from the international criminal’s quality of being a subject in the international law. It is an aspect that regards centralization in the international system because it limits the principle of the state’s personal competence.
of political parties into the category of public workers or measures aimed at achieving the repression of corruption in the private system. However, the great majority of stipulations are characteristic to so-called ‘non-binding agreements’. From this point of view, the UN Convention is, apparently, a complete framework, but it still has to prove its effectiveness.
The imprescriptibility of the international crimes emerges as an international standard, taking into ac- The overview presented above offers a clear image of count the fact that various systems of internal law the state of judicial affairs at an international level in have stuck to the opposite rule. Europe. Whereas there are some obvious foundations for the construction and development of a sound inJudicial efficiency can sometimes be obtained only ternational legislative body, the lack of proper instruthrough centralization. The fact that the repression ments that might be effectively employed in a majorof international criminals underwent the process of ity of cases involving international crimes and felonies centralization transformed the individuals accused of is clearly affecting international security. Therefore, I international crimes into limited subjects of interna- strongly believe that international law is in dire need tional law. The customary rules and the general prin- of improvement. ciples of law, several treaties and resolutions of the UN Security Council, constitute the judicial ground First of all, we need a comprehensive International of incrimination. Unfortunately, the encoding has not Criminal Code that sets the grounds for international been done systematically. According to Article 5 in incrimination, comprising of a list of all the crimes the Statute, there are four international crimes: geno- that fall under the incidence of international law. It cide, crimes against humanity, war crimes and crimes should also yield a judicial regime able to determine of aggression. the criminal responsibility of the individual in the public international realm. Secondly, it should offer a According to international law, two international clear-cut definition of the crimes of aggression, as well crimes are of particular importance, international ter- as a legal definition of terrorism. Thirdly, this code rorism and corruption, both of them having found a must stipulate that terrorism is a crime, not a political favorable ground in globalization. The major problem action, so that it will no longer be exempt from the in what concerns terrorism is the absence of a legal application of extradition conventions. Moreover, the definition, its justification lying in the fact that terror- code must include corruption among the crimes punism is thought to be a political crime and terrorist vio- ishable at an international level, since not all national lence has been traditionally accepted or tolerated for systems can be relied on to firmly incriminate and efsome - as terrorism can be associated with the fight ficiently prevent bribery attempts. for liberty or self-determination. The judicial consequence of qualifying terrorism as a political crime has In my opinion, globalization was the trigger that set in been extremely serious - the exemption of the crime motion all the developments which now require that from the area of application of extradition conven- mandatory alterations be made to international law. tions. The process of globalization is not likely to cease, and the only certain thing bound to mark the evolution On the other hand, market globalization achieved of international law is change itself. The future Interthrough the liberalization of product, commerce and national Criminal Code is knocking on our present services has pointed out the limitations that mark any society’s door, demanding to be let in. attempt to get rid of corruption through the systems of national law instruments alone. The Organization for Economic Cooperation and Development has been By Andrada Florea working on various projects concerning the extension of regulations, such as the inclusion of the workers 29
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International Human trafficking in South Africa
Right from the start, we must
to other countries (Songolo, 2000).
ask ourselves what organized According to Bermudez (IOM, 2008), Nigerian orcrime and human trafficking ganized crime groups operating in Pretoria, Port Elizabeth, Johannesburg and Bloemfontein are inare? volved in the trafficking of local black South African In order to answer the first females into commercial sexual exploitation and the question, we might look at the recruitment of men and boys for exploitive labor hundreds of definitions which use. have different levels of support, internationally. The Nether- Within the country, smaller, less well-organized lands rely on the one provided crime groups have established themselves as faciliby Bovenkerk (Fijnaut et al., tators of these larger international groups and are 1998), which defines organized crime as it follows also involved in the trafficking of human beings ‘when a group looks only for economic gain, does within South Africa and from South Africa to other systematic crimes that have serious consequences African countries (Allais, 2010). over the society and are able to shield their activities The confidence with which international organized from the government, especially with violence and crime groups use South Africa as a transit route is corruption’. evidence of how political instability has led to corFurthermore, when it comes to human trafficking, rupt governments: officials are either involved or for the purposes of this article the definition in the have turned a blind eye to the events. UN Transnational Organized Crime Protocol to The two main forms of human trafficking in South Prevent and Suppress Trafficking in Persons (UN, Africa - trafficking for sexual exploitation and traf2000) will be used. ficking for forced labor - can be seen as key examThe present article will focus on the problem of ples of how political and economical instability have organized crime groups which are involved in hu- contributed to the problem of human trafficking. man trafficking and the political and economical Although sexual exploitation can and does involve incentives that they may have to become involved the trafficking of males, it is mainly women who are in such activities. It will also discuss the main forms trafficked for such purposes. There is a large market of human trafficking in South Africa, including the for under-age girls. In their 2005 Report, UNICEF increasing use of child-soldiers during times of congave examples of how cultural norms can contribute flict and how the victims of such forms of traffickto the spread of trafficking. It evidenced that early ing have been affected by the political and economic marriage contributes to this because it often leads to instability. limited education, abuse and poverty as a result of For organized crime groups, South Africa can be divorce and abandonment (UNICEF, 2005). considered a country of low risk and high profit Within South Africa, the cultural norm of having (Fitzgibbon, 2003). On an international level, Bulsexual intercourse with young girls as a cure of HIV/ garian, Russian, Chinese and Nigerian syndicates AIDS appears to have contributed to the growth of appear to have utilized South Africa’s geographical trafficking of young females for sexual exploitation position as a transit route and are sometimes in(Lang, 2012). volved in the trafficking of South African residents 30
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Although the Constitution of South Africa states, in Section 13, that ‘no-one may be subjected to slavery, servitude or forced labor’, the high rate of unemployment and lack of social protection has led to the recruitment of people into these trades often with the use of force, or deceit (ILO, 2011).
military innovation on the part of combatants, child soldiers were used by both government and rebel groups (Tyner, 2007), indicating the unstable political situation and highlighting the corruption within the government and the armed forces (Singer, 2006: 95).
The International Labor Organization reveals (ILO, 2012) that 21 million people worldwide are trapped in jobs by means of coercion or deceit and UNICEF estimates that 1.2 million children are enslaved in forced labor, bonded labor, forced recruitment for use in armed conflict, prostitution and pornography, at any given time around the world (UNICEF, 2007).
The economic instability developed a cult in which children are perceived as cheap labor and expendable (Silva, 2008: 125). Driven by a false impression of stepping forward to a better life, parents and sometimes even children would often give their consent to being recruited. In this particular situation, the consent is not valid, being an inconceivable infringement of the Universal Declaration of Human Rights.
Given the poor state of the economy in South Africa, the economic incentives to become involved in such a lucrative business are obvious; an African child trafficked to the US might net a trafficker $10,000 to $20,000, according to the US Immigration and Naturalization Service (O’Neill, 2000).
The government of South Africa is fully complying with the minimum international standards for the elimination of trafficking. In the U.S Department of State 2012 Trafficking in Persons Report South Africa was listed as a Tier 2 country; however, it is making significant efforts to comply. (US, 2012)
The economic state of the country also provides the traffickers with a high level of compliance, both from the victims themselves and the victim’s families, who are increasingly involved with the traffickers (Allais, 2010:22).
Research has indicated that cultural traditions continue to play a large role in human trafficking in South Africa (UNICEF, 2005): the sexual exploitation of young girls based on cultural beliefs and the trafficking of young people from rural to urban areas based on cultural traditions (UNICEF, 2005).
A lack of evidence and research makes it difficult to estimate the level of trafficking taking place in South Africa; however, in 2011, the government convicted two sex trafficking offenders and began five prosecutions (US, 2012). The US department of State 2012 Trafficking in persons report indicated that, despite considerable financial resources being available, antitrafficking law enforcement and protective services lacked adequate funds (US, 2012).
It would, therefore, be of interest to see further research on the topic of human trafficking for the purposes of organ removal, as investigations have revealed the trafficking of body parts for multi-murders and religious rituals in South Africa.
All in all, despite evidence that the country is struggling to be on the path towards greater stability (US, 2012), it remains placed on the lists of concerns by the Victims are often afraid of retaliation from traffick- international agencies. ers or recrimination within their families and villages: ‘Fear and mistrust of police, the lack of documentation and fear of complicity also play a part in mainBy Cristina Brad taining the victim’s silence’ (UN, 2003). Together with Elizabeth Chick & Sjera Sijahailatua Political instability and apartheid policy (Nigel, 2001), known as the racial segregation and political and economic discrimination against black South Africans, until 1994, has contributed to near constant violence and the eruption of civil wars. This has led to the use of children in armed conflicts. Seen as a technical
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International Brief remarks regarding the dominant five trending views over the concept of Unjust Enrichment in common-law
The vagueness of a moral principle. According to the first view, unjust enrichment is perceived as a moral principle, mainly because it is easy enough to make references to equity. Burrows (1998) fiercely supported such a function of the concept by recognizing a law of restitution based on reversing unjust Out of simple academic curi- enrichment. osity, the purpose of this pa- The issue with this view is that, if intended to be used per is to shed light upon the in order to shape the law, it would not be capable of common-law scholars’ efforts doing so, simply because the law must have some of theorizing and justifying certain precision (Hadley, 2006, p. 401), a quality the concept of Unjust Enrich- that a legal principle cannot provide. ment. Due to the fact that the notion is inextricably linked to the matter of Restitution, the two concepts Introducing some criteria. Within this underare always sadly and inefficiently explained through standing of the concept, scholars have overcome each other. Maybe even more relevant for a civil the strongly moralistic phase and asked themselves system scholar is the fact that, despite the identity what the enrichment consist of, in which way it is name, the common-law concept of Unjust Enrich- unjust, in what sense it is at the expense of an indiment and the Romanian one have nothing in com- vidual and whether there are any relevant defenses. mon. Such an interpretation is wide enough, but lacks In this order of thoughts, it is opportune to present coherence: the idea of injustice can be very differthe dominant five interpretative trends of the men- ent when we compare, for example, a murderer who tioned concepts in order to understand the contro- is unjustly enriched by seeking to inherit under his victim’s will versus a recipient who is unjustly enversial debates in common-law legal literature. riched through a mistaken payment (Hadley, 2006). The five views on the concept of Unjust Thus, a misleading apparent unity of unjust enrichEnrichment and their subsequent critics ment discloses too many disparate concepts of enrichment. Due to the flexibility of the concept, two commonlaw scholars discussing unjust enrichment may both The unjust factors approach. The third, and probuse English, but still be speaking two completely dif- ably the most rigorous, approach was introduced by ferent legal languages (Hedley, 2006). In this par- Birks (1985), who comprehensively analyzed it in ticular context, following the efforts of figuring out his work in connection with the matter of restituhow the concept can shape the law, five views have tions. He considered noteworthy the fact that the come out to describe unjust enrichment. While the relationship between the matter of restitution and first of them involves a great dose of imprecision unjust enrichment is an inclusion one, the first inand vagueness, advancing through the succession of corporating the second, unjust enrichment being a views, a culminating ‘civilianization’ process of the particular causal event that gives rise to restitution. concept can be observed (Hedley, 2006). there is something that common-law scholars are in particular doubt about, those are the concepts of Restitution and Unjust Enrichment.
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In this context, the model used (Hadley, 2006) to identify an unjust enrichment hypothesis is the following: (1) is there any enrichment?; (2) is it unjust or not?; (3) is it at the expense of the plaintiff?; (4) is there any relevant defense? The structure apparently provides rigor, except for the unjust factors that still vary significantly. Thus, there are too many situations that can be qualified as unjust factors: it becomes difficult to describe restitution for wrongs (Webb, 2000) because it includes all situations of torts, except strict liability - the equivalent of objective liability in Romanian civil law. This inconvenience resulted in the exclusion (Birks, 1985) of the mentioned restitutions from the scope of unjust enrichment.
cusing on the only relevant criterion - the lack of justification or an explanation to the enrichment (Birks, 2003).
Involuntariness. Paradoxically, the fourth approach is also a Birksâ€™ interpretation (1985; 2003), prior to the unjust factors approach. Initially, the model that he proposed was much more precise. However, being aware of the fact that it would be almost impossible to offer more precision than that, he organized unjust factors the following way: a series of these factors can be addressed as being connected to the concept of mistake; others would contain an element of external pressure (unlawful pressure, duress), etc. Nevertheless, all of these situations can be classified within the involuntariness category (Hadley, 2006).
From a judicial point of view, the theory is rarely relevant for actual disputes. The abundance of innovation within legal matters resulted into a side effect - an emphasized conservatism (Hadley, 2006). The second and the third approach will hardly be abandoned by the judges: why would you rule that there is no factor of mistake or no factors at all, only to favor a completely abstract and esoteric concept?
Even if this approach represents the culmination of the proximity to the continental system, this view did not gain much recognition, due to the fact that the theory is not considerably simplifying the law since the absence of the voluntariness can be attributed to multiple legal rules (such as whether or not we are discussing a voluntary gift or a valid contract).
The academic and judiciary reality
Clarity regarding unjust enrichment can be gained exclusively through a theoretical abstract description, a The unity provided by this approach is weak enough, result that is not necessarily delightful (Hadley, 2006). due to the fact that the criteria are so diverse that they However, this kind of clarity can be achieved only if we refer to different bodies of law. Despite all these de- neglect the same desired clarity regarding other legal ficiencies, this view is the dominant one and many situations. As a consequence, the glorious confusion of the polemics unfold themselves based on this in- will dominate the common-law system long enough. terpretation, the really debated issue being the wide category of unjust factors. As a result, both academ- Academically, the third approach prevails, since movics and judges â€˜inventedâ€™, depending on the litigation ing forward to the fourth or fifth approach would circumstances, an embarrassingly long list of unjust mean a drastic change in terminology that does not necessarily bring out significant results. factors (Hadley, 2006).
Despite the seductive logic it provides, the issue of unjust factors becomes highly unpopular among academics and judges especially because it leaves no space for diversity, a fundamental characteristic of the common-law system (Hadley, 2006), giving more room to abstract description - a deeply continental law feature.
Change will be slow, as unjust enrichment theories may be a complex and worthy cause, but perhaps not a very important one. By Xenia Burghelea
Unjustified enrichment. The last dominant approach eliminates entirely the unjust factors classification, fo33
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of Human Trafficking in Southern Africa, Research Report, p. 6, Available at: http://www.hsrc.ac.za/Document-3562. phtml [Accessed on 22.10.2012] Bermudez, L., 2008, No Experience Required: The Internal Trafficking of Persons in South Africa, Pretoria, International Organisation for Migration (IOM) Fitzgibbon, K., 2003, MODERN-DAY SLAVERY? The Scope of Trafficking in Persons in Africa, African Security Review, p. 85 ILO, 2011, Trafficking in Persons Overseas for Labour Purposes, Available at http://www.ilo.org/public/english/region/ afpro/addisababa/sro/pdf/ilotipethiopia.pdf [Accessed on 26.10.2012] ILO, 2012, Global Estimate of Forced Labour [online]. Available at http://www.ilo.org/global/about-the-ilo/newsroom/ news/WCMS_181961/lang--en/index.htm [Accessed on 26.10.2012] Lang, J., Curnow, R., 2012, Girl brides abducted as fabled HIV cure, CNN, available at: http://thecnnfreedomproject. blogs.cnn.com/2012/05/27/girl-brides-abducted-as-fabledhiv-cure/ [Accessed on 26.10.2012] Nigel, W., 2001, The Making of Modern South Africa: Conquest, Apartheid, Democracy, publisher Wiley-Blackwell O’Neill, A., 2000, International trafficking in women to the United States: A contemporary manifestation of slavery and organized crime, Centre for the Study of Intelligence, Washington DC, p. 22 Robert, T., Bryan R., 2011, Early Tactical Innovation and the Use of Child Solders in Civil Wars, pdf source, available at www.ssrn.com, accessed on 24.10.2012 Songolo, M., 2000, The Trafficking of Women into the South African Sex Industry, p. 1 Silva, S., 2008, Trafficking in Human Beings: Modern Slavery, Oxford University Press, p. 125 UNICEF, 2005, Trafficking in Human Beings Especially Women and Children in Africa UNICEF, 2007, Report, Available at http://www.unicef.org Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948 US Department of State 2012 Trafficking in Persons Report, pp. 315-316
Brief remarks regarding the dominant five trending views over the concept of Unjust Enrichment in common-law. • Birks, P., 2003, Unjust Enrichment, Oxford, Oxford University Press • Birks, P., 1985, An introduction to the Law of Restitution, Oxford, Clarendon Press • Burrows, A., 1998, Understanding the Law of Obligations. Essays on Contract, Tort and Restitution, Oxford, Hart Publishing. • Hedley, S., 2006, Unjust at Common Law: So Many Concepts, So Little Clarity, European Review of Private Law, 14 (3), pp. 399-408 • Webb, C., 2000, What is Unjust Enrichment, Oxford Journal of Legal Studies, 29 (2), pp. 215-243
WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS FIRST EDITION: Biana Prunea Ioana Georgescu Andrada Rusan Ioana Seuche Madalina Stancu Diana Feldrihan Ioana Stupariu Irina Negrutiu
Dan Morosan Calin Muresanu Andreia Moraru Andrada Florea Cristina Brad Elizabeth Chick Sjera Sijahailatua Xenia Burghelea
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Published on Dec 17, 2013