Considerations on Judicial Liability of the Romanian Diplomatic and Consular Corps' Members as Regulated by Law no. 269/2003
| Author | Jana Maftei, PhD |
| Position | Senior Lecturer. "Danubius" University of Galati |
| Pages | 68-78 |
Page 68
Judicial liability, as a specific form of social liability, interferes in case of violating norms of law. It is distinguished from the other forms of social liability (moral, political etc.) by the fact that it determines the obligation to support a judicial sanction (Humă, 2007, p. 152).
The content of the judicial liability represents a complex of related rights and obligations that, according to the law, derive from illicit actions and constitute the frame for state constraint by applying judicial penalties with the purpose of reestablishing social reports and respect of law order (Costin, 1974, pp. 31-32). InPage 69the doctrine there are specific categories analyzed for each branch of law: criminal, civil, labor etc. (Bobo, 1994, pp. 257-258).
The judicial institution of liability has specific forms in what concerns the members of the Romanian diplomatic and consular corps, determined by their special statute, by the attributions and the tasks they have according to the general regulations. The analysis of these specific aspects of judicial liability of the Romanian Diplomatic and Consular Corps' members requires first the analysis of other elements, such as the definition of the quality of "member of the Romanian Diplomatic and Consular Corps" and the nature of the labor judicial relation of the Romanian diplomatic and Consular Corps' members.
The period of time following the events in 1989 has registered modifications in the legislative frame regarding the diplomatic and consular domain. There was a high necessity of modern legal regulations, reflecting the realities of that time. Accordingly, a number of normative acts have been adopted, to ensure the creation of a legal frame adequate to the accomplishment of external Romanian policy after the change of the political regime, taking in consideration of course the mutations at international level.
One of these documents was the Government Decision no. 1070 on October 6, 1990 on the approval of the Statute of the Romanian Diplomatic and Consular Corps1 that in 26 articles tried to reform an important professional segment in the development of the new Romania. Even the term "statute" used to name the normative act was meant to draw the attention on the special regime granted to this category of personnel. Used for the fists time in 1847, when the "Statute of the police clerks in the capital" (Ranta, 2008, p. 82), the concept of "statute" defines the ensemble of judicial norms regulating the rights and obligations, conditions of being admitted, attributions, incompatibilities, penalties etc. for some professional categories (teachers, deputies, senators, magistrates and lawyers etc.).Page 70
These dispositions have proved to be insufficient to ensure the special professional frame of the members of the Romanian Diplomatic and Consular Corps. It was only 13 years later that the Government Decision no.1070/1990 is abrogated, together with the adoption by the Parliament of a new normative act regarding the statute of the Romanian Diplomatic and Consular Corps, namely Law no. 296/20032. The elaboration of "complete norms regulating different aspects of these activities" became necessary, as presented in the Explanatory memorandum to Law on the Statute of the Romanian Diplomatic and Consular Corps; the new regulations were imposed following the new valences acquired by the diplomatic and consular activity in the context of Romanian integration within NATO and the EU; these regulations were meant to ensure the stability of the diplomatic and consular personnel, their promotion on professional and competence criteria, considering the "specific attributions, the importance and role within the state administration".
Accordingly, the Romanian legislator established in the first article the special character of these regulations, conferring the members of the Romanian Diplomatic and Consular Corps a specific socio-professional statute, determined by the attributions and the responsibilities related to the accomplishment of the external Romanian policy (article 1, al. 2).
This "professional elite corps", as it was named in the doctrine (Le, 2004, p. 3) comprises, according to the listing in article 2, al.1: the minister of foreign affairs, state secretaries and sub-secretaries with the Ministry of Foreign Affairs, general secretary and deputy general secretary with the Ministry of Foreign Affairs, diplomatic and consular personnel working within the central administration of the Ministry of Foreign Affairs, the embassies, permanent missions with the international organizations and the consular offices of Romania, including the individuals coming from the Department of External Trade and other ministries and institutions, during their sending to missions outside the state, with diplomatic or consular ranks. Interpreting al.2 of the same article we notice that the minister of foreign affairs, state secretaries and sub secretaries, general secretary and deputy general secretary are righteously part of the Romanian Diplomatic and Consular Corps, during the exertion of the corresponding tasks (Maftei, 2007, p. 178).
The members of the Romanian Diplomatic and Consular Corps are as a rule, following the wording of article 1 (b), career diplomats. They can acquire, accordingPage 71to the provisions of article 4 of the same normative act, the following ranks: ambassador, plenipotentiary minter, counselor- minister, diplomatic minister, 1stsecretary, 2nd secretary, 3rd secretary, diplomatic attaché (diplomatic ranks), general consul, consul, vice consul, consular agent (consular ranks).
Therewith, the members of the Romanian Diplomatic and Consular Corps occupy diplomatic and consular functions within the central administration of the Minister of Foreign Affairs and the diplomatic missions, that are equivalent to the diplomatic and consular ranks they hold (article 5).
If we take into consideration all these dispositions, as well as the provisions in article 17, al. 1 (a) that establish that the quality of member in the Romanian Diplomatic and Consular Corps can be acquired by the individual "who has the right...
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