Abstracts Nr 4, 2017


Măriuca Oana Constantin, A point of view on the role of magistrates in the issue of cultural diversity

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

Keywords: cultural identity, cultural exceptions, ethical dilemmas, judge, public prosecutor


Felicia Waldman,  Ignorance, denial and forgetfulness: the perfect recipe for the perfect crime

Abstract: It is quite well known that shortly before invading Poland Hitler gave a speech in
which he said: "Who speaks today of the extermination of the Armenians?" Indeed, although the Armenian genocide was quite well documented as it happened, it was not long before the first attempts not just to forget it, but also to deny it ever took place, started emerging, much like in the case of the Holocaust 30 year later. This paper traces how denial of the Armenian genocide and Holocaust denial influenced and fed each other through time, by constantly borrowing and exchang­ing various elements, sometimes chronologically but sometimes also in reverse or­der (with Armenian genocide deniers using arguments taken from their Holocaust denying counterparts).

Keywords: Armenian genocide, Holocaust denial, Turkey, Germany, massacre, international crimes


Gabriel Andreescu, The case of Perinçek v. Switzerland: suggestions on the social construct of the memory of genocide

Abstract: The study exploits the exchange of arguments between the parties, third parties and judges in the case of Perinçek v. Switzerland. Associated with studies such as Jared Diamond’s and their conclusion: "Genocide has been a part of the human and pre-human heritage for millions of years," with the twentieth-century evolutions that have defined genocide and banned it through the Convention on the Prevention and Punishment of the Crime of Genocide, all these argue about the nature of the "social construct" of the memory of genocide. The interpretation also explains the paradox that the international system on the prevention and punishment of the crime of genocide has a limited power, contrasting with the activism of the national systems that rule the memory of the genocide. Answers to questions like: "Do States have the same margin of appreciation in limiting freedom of expression in the matter of genocide denial?"; "Is is relevant whether an international court had established the genocidal nature of events?" "Do ECtHR decisions on denialism imply historical and conceptual assessments?"; "Did the acts of Doğu Perinçek represent a chauvinistic or racist attitude?"; "Is the suffering of the Armenians triggered by the denial of ‘their’ genocide similar to the suffering of the victims of other genocides?" are relativistic and conventional. This "variable geometry" argues for the ”social construct” nature of the memory of genocide.

Keywords: Armenian genocide, Holocaust, denial, social construct, memory, Convention for the Prevention and Punishment of the Crime of Genocide, ECtHR