86 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 1/2012
phenomenon lead to new regulations or, in other words, to special regulations in this area, being an
additional reason for these statistics to develop and to lead to new regulations.
Regarding the scientific-juridical analysis of family violence, in Romania we have found
several psychological, epistemological debates, but few pure juridical debates, based on the law and
In exchange, in Spain there are many juridical studies, presenting the phenomenon under all
its possible aspects: historical, phenomenological, juridical, sociological etc.
To start the debate of this subject, we must state that nowadays, at the European and
international level, as well as in Spain, is made the differentiation between family violence and
gender based violence. Thus, family violence comprises all forms of violence within the family
(physical, psychical or sexual committed with intention) against women, men, children, elder persons
or against any close relative3, while gender based violence, as defined in Spain, represents violence
as the result of discrimination, inequality and of domination of men over women, exercised against
the latter one by her actual or ex concubine (the notion also includes the quality as husband), or by
the person to whom the women was or is in an affective relationship, even if they do not share a
household together4. Therefore, our study will refer to family violence to analyze the Romanian
penal framework, and both to family violence and to gender based violence to compare the
Romanian5 and Spanish situations.
This is why we strongly consider that such a comparative analysis will enrich our juridical
area with new perspectives on this phenomenon.
I. International awareness of the problem – a few legislative landmarks
The awareness of the existence of a problem on family violence occurred at an international
and European level at the end of the 1970s, so that in the next decade there were elaborated a series
of judicial documents aiming the protection of women against domestic violence. Thus, on 26 March
1985 the Council of Europe drafted its first Recommendation R (85)4 on violence in the family6.
Internationally, the General Assembly of the United Nations on its plenary meeting adopted
Resolution 40/36 of 29 November 1985 on domestic violence7 and Resolution 44/82 of 8 December
1989 proclaiming 1994 as International Year of the Family8. Another special interest for knowledge
and combat of this phenomenon was expressed by the Recommendations of the World Conference of
the UN held in Nairobi on 15-16 June 1985, by the Recommendations on family violence drafted by
a group of experts reunited in Vienna on 8-12 December 1985 or by the Resolution 46/8 March 1993
of the Commission on Human Rights incriminating violence and violation of human rights,
especially referring to women9. This first decade of positive reactions was followed by numerous
international measures which, with the spreading of the phenomenon, aimed and determined an
important involvement of the world states.
3 According to Art 2 and 3 of Law No 217/2003
4 According to Art 1 of the preliminary title of the Spanish Law 1/28 December 2004 on the mea sures for
protection against gender based violence, published in the Boletín Oficial del E stado (the official Spanish state bulletin)
No 313/29 December 2004 and republished with modifications in B.O.E. No 87/12 April 2005
5 Such statement is necessary because, after the entrance into force of Law No 1/2004 also the autonomous
communities have adopted their own regulations as a completion of the national law. Due to the fact that the analys is of
such subject is extremely comprehensive, it cannot be the subject of our study, but remaining opened to a sub sequent
debate. 6 See the official Council of Europe website http://www.coe.int/lportal/web/coe-portal
7 See the official UN website http://www.un.org
9 Ortansa Brezeanu, Aura Constantinescu, Violena domestic. Reflecii in the Romanian Penal Law Review
No 2/2007, p. 68