Forest legislation's role in the protection of romanian forests
| Author | Dogaru Lucretia |
| Position | University of medicine, pharmacy, sciences and technology from Târgu-Mures, law and public administration department, Romania |
| Pages | 66-75 |
66 DOGARU LUCREŢIA
FOREST LEGISLATION’S ROLE IN THE PROTECTION
OF ROMANIAN FORESTS
Dogaru Lucreia
UNIVERSITY OF MEDICINE, PHARMACY, SCIENCES AND
TECHNOLOGY FROM TÂRGU-MUREŞ, LAW AND PUBLIC
ADMINISTRATION DEPARTMENT, ROMANIA
dogaru_lucretia@yahoo.com
Abstract
In this article, we will analyze the main normative acts elaborated in the field of forestry from a
historical and evolutionary perspective, with the aim of emphasizing their role and importance to the
protection of Romanian forests. In order to ensure a consistent approach, we will briefly present the
main forest laws adopted and applied in Romania, starting with the nineteenth century.The legal
approach to the concept of forest protection implies presenting all the legal means offered to the
individualsthat are engaged in forest related social interactions with the purpose of protecting the
social values that are closely connected to this good.The legal forestry mechanisms that ensure that
these extremely important goods are lawfully protected have an essential role among forest protection
instruments.The legal regulations that impact the forest fund include both the forest codes adopted in
Romania and all the legal regulations relevant to the forest protection field and contained in
numerous other normative acts.
The main methods used in tackling this subject were: the logical method, the historical method
and the comparative method.
The current study attempts to outline evolution of the Romanian legislator’s concern to regulate
the forest social relations and to establish the basic rules of development, conservation and
sustainable management of the Romanian forests. All together, we will highlight the tendencies of the
historical periods in which these normative acts were adopted and applied.
Keywords: Public law, legislation, forest codes, forest protection, sustainable management,
forestry.
1. Preliminary considerations
The legal protection forests as legal assets are composed of a set of the legis-
lative measures aiming to protect, conserve and manage. From this standpoint, the
legal approach to forests’ protection is the sum of legal means and instruments
offered by the Romanian legal system to the individuals who possess subjective
Law Review vol. VIII, issue 2, July-December 2018, pp. 66-75
Forest legislation’s role in the protection of Romanian forests 67
rights and are engaged in social relations that aim to safeguard the social values
that are closely related to this category of goods1.
Considering the complexity of the forest’s function, the legal field comprises
numerous judicial means that may be specific to the forestry or to other branches
of law2.
The legal feature of forest protection can be distinguished and structured
judging by the interests being served, namely it either serves the interests of the
entire Romanian society or it serves private interests. A balance is needed between
these two categories of interests, and this balance is generated by the importance of
the historical, economic, social, cultural and political categories that concern the
national forest fund.
Economic needs determine the adoption of the rules regarding the forest’s
exploitation and management, but there are other needs as well, such as social,
historical, cultural or ecological needs, whose achievementsdepend on the
adoption of appropriate protective measures.
Of course, in order to identify the legal dimension of forest protection, is
necessary to deepen the law areas and reveal those legal means specific to certain
branches of law that ensure the protection, conservation and management of the
forest in its entire complexity. In the following, we will illustrate and analyze the
forestry legal means used over time to this purpose.
2. Legal means of protecting Romanian forests
Firstly, we need to stress that the forests’ legal protection is a concept that has
wide-ranging valences precisely because of the importance given to the forests by
the social process participants.
Sure enough, the importance of forest protection is also given by the global
economic development as well as the political transformations phenomenon
related to legal globalization, which is present in relations focused on this category
of essential goods. The crucial significance of the forest and the complexity of its
functions imply the existence and the establishment of a set of adequate protection
means, which harmonize the economic, social and ecological field.3
1 Specialty literature established that there is a narrow interpretation of the concept of legal
protection, which is assimilated to the notion of legal defense implying the legal means system used
for the restoration of some violated rights; see, Zinveliu, I. (1971), Legislaia forestier în România,
Ceres Publishing House, Bucharest, pp. 183.
2 For details related to the need of forest protection, see, Lupan, E. (2009), Tratat de dreptul
proteciei mediului, C. H. Beck Publishing House, Bucharest, pp. 337-345.
3 See details related to the forests functions in Dogaru, L. (2002), Regimul juridic al pdurilor,
“Petru Maior” University of Tîrgu-Mureş Publishing House, pp.18-21.
68 DOGARU LUCREŢIA
From the vast category of the forest protection legal means, the forestry legal
instruments, which are meant to ensure the legal protection of these goods, have a
focal role.4Still, regardless of the means by which the legal protection of forests is
achieved, they must guarantee the protection of the environment, its development
and its sustainable management. Obviously, the whole set of forests legal
protection means relates to a wider set of legal means of legal protection of the
environment.5
3. The regulation of forest protection through forest law
The Romanian forestry legislation adopted over time provides numerous
warranties that constitute a legal shield around the existence, continuity and
sustainable development of Romanian forests. The Romanian lawmaker has been
regulating this matter and establishing the basic rules according to the concepts of
management, conservation and the sustainable development of forests. On the
other hand, social, economic and judicial evolution, have also influenced the
forestry laws, highlighting the tendencies of the historical periods they were
applied in, the structure of property law and the subjects of forestry law.
The most important collection of forest legislation includes basic and
representative normative acts which have been edited starting with the 19th
century and are still being applied in Romanian territories. In this context we will
mention the following: The Forest Order for Bucovina, The Normative Act issued
by the Emperor Joseph II in 1786, the Romanian Forest Codices of 1881, the
Romanian Forest Code from 1910, the Forest Code from 1962, the Forest Code from
1996 and the Forest Code from 2008 that was amended and republished in 2016.
We will start with the Forest Order for Bucovina6, a normative act that has
been mentioned in the doctrine as the oldest Romanian forestry Code and has
often been called The Forestry Ordinance of Joseph II. The law of 1786 is the first
forestry legacy of Bucovina that synthesizes scientific knowledge serving the
purpose of efficiently managing the forests of Bucovina, insisting on clear and
4 In this respect, our country has ratified several international normative acts which establish the
principles and the guidelines of forest preservation and protection and its sustainable management
and has also adopted several laws and normative acts aiming to further harmonize the legislation
with the community’s legislation.
5 Moreover, the concept of environmental protection, the idea of nature’s protection and of forest
domain, are closely linked related, with the notion of environmental protection comprising the others,
the latter having a wider, more comprehensive range.
6 For details, see, Dogaru, L. (2008), Codul silvic român-prezentare evolutiv, 2nd edition,
Risoprint PublishingHouse, Cluj-Napoca, pp. 13-20; Gheorghe T Kirileanu, Gh., T. (1908), Cel mai
vechi cod silvic românesc: Orândueala de pdure pentru Bucovina dat de Împratul Iosif al II-lea în
1786, RSR PublishingHouse, Bucharest.
Forest legislation’s role in the protection of Romanian forests 69
efficient regulation in the field of cutting and regenerating of Bucovina’s forests.
The old Bucovina Forest Code includes a system of general principles and rules
which regulated forest management. Of course, one can notice that at that time, the
Bucovina forest legislation was given in the interest of the dominant social class, as
it stipulated, among other things, that the property right to the forests belongs
solely to landowners who can claim the forests from other people and from village
communities.
This early forest law includes: general principles relating to the forest’s
preservation, maintenance and rational exploitation; rules related to the
requirement of tree marking; rules on the transmission of obligations and also on
the legal liability in the field of forestry. Furthermore, the notion of
forestmanagement planning was introduced for the first time and the threats to the
forest were analyzed, with the prohibition of activities affecting the integrity of the
forest (for example: grazing in forests was prohibited as well as the location of
settlements in the immediate vicinity of forests). Moreover, these laws also strictly
stipulated the rules for the management of communal and freeholders’ forests.
The final part of the forest law mentions the actions that constitute forestry
misdemeanors, investigation techniques of delinquencies and their punishment. At
the same time, one can notice that the choice of the punishments was reliant on the
social status and on the author’s guilt, but also on the amount of damage
sustained.
Although the application of the rules contained in this forest law is
questionable, its importance mainly resided in the democratic nature of the period
the forest code’s enforcement, the law’s statement of reasons being a genuine
commandment addressed to those who have a responsibility in this respect.
The first framework law regulating and ordering the forestry relations in the
Old Kingdom was promulgated in June 1881, being the first law on the forestry
field that emerged after more than two decades from the Union, reflecting the
needs of the Romanian society in that time. The Romanian Forest code from 18817
is largely inspired by the French Forest Code from 1827, mainly due to certain
Romanian politicians at the time (for instance, The Minister of Finance, I.C.
Brtianu and the King Carol I). The opening part of the forest lawpresents the legal
enforcers responsible with the exertion of forestry control and enforcement of the
forestry code itself, following the norms that provide that the forests are submitted
to the forestry regime. Although the law provides a guarantee for the safeguard of
the Romanian forestry property, it still leaves freedom to the individuals,
especially to the association of forest owners, further determining the devastation
of the forests.
7 Promulgated by the King Carol I, on June 19, 1881, was based on the Law for the Protection of
Monastic Forests from 1843, it remained in force for 30 years.
70 DOGARU LUCREŢIA
On a more positive note, The Romanian Forest Code introduced the notion of
”forestry regime” for the first time, requiring that any forest owner is free to
request the submission of his forest or forests to this forestry regime. At the same
time, the Romanian legislator requested the set-up of forest management plans,
without which the forest exploitation was prohibited, and which had to take
protection and preservation into account. In Title II of The Forest Code, the issue of
deforestation was also approached, having been introduced in Romanian code as
an inspiration from the French Code.
Although the deforestation of the forests that are subject of the forestry regime,
it is not strictly prohibited, the Romanian legislator allows it only after the issue of
a reasoned opinion, the landlords having the right to cut forests that were not
subjected to the forestry regime with some restrictions.
Towards the end, The Code specifiesthat the actions that constitute forest
crimes are the onesbeing committed in the forests subjected to the forestry regime.
However, from our point of view, the final provisions that establish the sanctions
for forestry crimes are objectionable, as they set up a single penalty regime for
different types of faultand different levels of severity, resulting in the lack of logical
grading of the punishment and discriminationcreated by the Romanian legislator
at that time. However, both the conditions and the criteria of determining whether
a fact is a forest crime and the estimate of civil damages hold great interest. Finally,
we appreciate that the forest law of 1881, represented a step forward for the
Romanian society, despite it being often criticized, especially by the foresters of its
time. Subsequently, the Regulation for the application of the Forest Code of 1881’s
provisions, regarding the forests submitted to the forestry regime, promulgated in
April 1885, tried to correct certain formulations and defects of this code, which was
first amended in 1887.
Although the code of 1881 is criticized from different perspective, we welcome
the appearance and the content of its provisions, reflecting the democratic ideas of
the Romanian legislator at the time. While the Code of 1881 has been
disapprovedby many, we believe that both the appearance and the content of its
provisions were welcomedas it reflects the democratic ideas of the Romanian
legislator from that period.
Chronologically, we also mentioned the Forest Code of 1910, which repealed
the Forest Code from 1881, and which has undergone several modifications, its
application being extended in 1921 and 1923 to all the Romanian provinces, i.e. to
the Old Kingdom as well as Bessarabia, Bucovina and Transylvania. The Forest
Law of 1910 has abolished the Hungarian forest law of 1879, the Austrian law for
communal forests of 1897 and the Austrian forest law of 1906 in Transylvania and
Bucovina.The new Forest Code has repealed the Russian forest law from 1776
Bessarabia.
Forest legislation’s role in the protection of Romanian forests 71
The purpose of the Forest Code from 1910 is believed to have been to halt the
degradation of forests and to establish a system that could to ensure the
preservation of the Romanian forest fund.
This Forest Code attempted to limit the exceptions from the forestry regime by
creating certain omissions that would provide opportunities to the achievement of
class interests. However, the historians of the time appreciated the modern
character of this forest law, especially due to the measures meant to ensure the
exploitation and the sustainable development of the Romanian forests. The
provisions of this law also aimed to extend the category of subjects responsible for
the violation of the forest code, as well as the application of sanctions in order to
ensure the punishment of the perpetrators and the compensation for the damages
caused. Also, in order to prevent an uncontrolled exploitation and the cease the
deforestation process, the forest law established a lot of strict rules.
The Forest Code of 1910 established new trends regarding the
individualization of property of the forests belonging to the associative forms of
property while also regulating the institution of the preemption law in the forest
field.
A distinct chapter is devoted to the protection of State forests as well as to the
police of the forests. The forest crimes and the forest misdemeanors, as well as the
penalties applied are thoroughly referred, with the purpose of stopping
degradation of Romanian forests.
From a comparative point of view, the Forest Code of 1910 included new
provisions regarding the level of punishment and their individualization while
also incriminating new forest crimes. From our point of view, the adoption and the
voting of this code corresponded with theinternational legislative trends, this being
formulated in the idea of a forest reform.
The Forest Code from 19628 answered to the political imperatives of the
socialist period and was marked by the tendency to empty the content of private
property right on forests and forest lands or to limit its character. Being of
constitutional kind, the provisions of the Forest code stipulated that all the forests
and lands with forest vegetation are to be public property and part of the national
forest fund. Undeniably, the transition of all the private forests into public property
of the state was done with the violation of the principle of private property. The
Forest Code of 1962 responded to the needs of legislative harmonization with the
legal texts in force, having socialist, economic and legal principles at the origin of
its elaboration, as it was the concept of unitary legal regulation of the forest
management regime.
Representing a framework law which included the general rules for the
management, conservation and forest fund protection, the Forest Code from 1962
8 Adopted by the Law no. 3 in 1962, was published in the Official Gazette no. 28 December 1968.
72 DOGARU LUCREŢIA
included forestry rules which provided the legal regime for the circulation of
goods representing the national forestry fund, as well as the rules on its
management and protection. Starting from the general rules, regarding the law
subjects to the main real rights through which the forests administration and the
legal regime of the forest lands’ circulation was done, The Code also contained the
legal rules on the management, conservation and protection of the forests’ fund
and of lands covered with forest vegetation. It also included important rules
regarding the circulation of wood materials, as well as those that provide for the
acts that constitute misdemeanors and forestry crimes, primary aiming to protect
the Romanian forests.
We feel that the provisions of this forest law have achieved the objective
pursued by the legislator, in terms of an efficient administration, management and
exploitation of Romanian forests during its application. Its elaboration also
represents the subordination of the Romanian forests to a unitary regime for the
purpose of its sustainable protection and development, as well as insurance
towards the preservation of this valuable financial source in the state heritage, by
establishing a severe control and punishment regime.
The Romanian Forest Code of April 19969, was the first forest code after the
communist period and after the Romanian Revolution of 1989. The main objective
of this forest law was to adapt the forest legislation to the new realities, namely, to
recognize the form of private property over forests and lands with forest
vegetation, and to subordinate all Romanian forests to a protection and
conservation regime, appropriate to the international environmental protection
rules and principles. The notion of national forestry is introduced, stating that it
contains both public and private property forests. It is noted that, all the activities
that are carried out in relation with the category of goods represented by the
forests, will be preceded by the prevention phase against their degradation. Like
the previous laws, this code also includes a lot of rules on the administration,
conservation and management of the forests, considering the rational and
sustainable criteria. It also stipulated forests sanctions, for those types of actions
qualified as forest crimes as well as the legal liability that could be set up, based on
the nature of the legal rule infringed. Certainly, from the provisions of this
framework law stems the Romanian legislator’s concern for the preservation,
protection and sustainable development of the forest fund, in order to maintain the
multiple and complex functions of the Romanian forests. Aiming a difficult
objective for that historic period, the Forest Code in 1996, was be set in accordance
with the national and with the European forest policy at that time10.
9 Adopted by the Law no. 26 of 4 April 1996, expressly abrogated the Law no. 3 of 1962, being
also subject of successive modifications and additions.
10 To be seen, Mircea Duu,Tratat de dreptul mediului, 2nd edition, C. H. Beck Publishing House,
Bucharest, 2008, pp. 372-374.
Forest legislation’s role in the protection of Romanian forests 73
Currently, the Forest Code of 2008 (Law no. 46/2008)11 updated and
republished in 201812, as well as related legislation13 is the general legal framework
for the protection, conservation and sustainable development of the Romanian
forests. This forest law aims to set up the general framework rules for the
development and sustainable management of the Romanian forests, in order to
improve the environmental and living conditions, without regardless of the holder
of the ownership of forests14.In order to identify the content of the notion of legal
protection of the forest, we recall the rules by which the Forest Code provides that
the national forest fund is subjected to the forestry regime, consisting of legal,
economic and forest technical norms, stipulated by the central public authority
responsible for forestry and which exercise the control over the application of this
regime. From the analysis of this text of the law, we conclude that the Romanian
legislator’s main objective is the protection and conservation of forests, precisely
judging by the elaboration of this forest law and by the establishment of the
forestry regime. This gives the legal norms that make up the forestry regime an
imperative nature, at the same time delineating the notion of this term in technical
and in forestry terms.The obligation to comply with the forestry regime is
stipulated in imperative terms for all the forest holders, without considering the
form of the property right. At the same time, the new legal provisions in the field
of the control and enforcement of the forestry regime are in accordance with the
European regulations regarding the obligations of forest owners.
Being the main legal source in the forest field, the contemporary Forest Code
provides that all types of activities related to the forests are to be preceded by the
precautionary phase and the prevention of the forest degradation and destruction,
as well as the damage to the integrity of the forest fund. A novelty that was
introduced by the New Forest Code regards the development and sustainable
management of the forests15, and the preservation of the biodiversity of forest
ecosystems through sustainable management measures. The introduction of
sustainable development and forests management concept expresses the need for a
new approach to the development of Romanian forests, by recognizing the
11 Republished in the Official Gazette, no. 611 of 12th August 2015.
12 By Law no.230 of 2018, published in the Official Gazette no. 693 of 8 August 2018.
13 Regarding the regulations related to the Forest Code, see, Anca Ileana Dusca, Dreptul
mediului, 2nd edition, Universul Juridic Publishing House, Bucharest, 2014, pp. 137.
14 About the forests’ legal regime established by the Forest Code, see, Mircea Duu, Andrei Duu,
Dreptul Mediului, edition 4, C. H. Beck Publishing House, Bucharest, 2014, pp. 348-353.
15 For details on the concept, principles and on the purpose pursued by sustainable forest
management and development, see Ion Machedon, Silvicultura şi dezvoltarea rural, Tridona
Publishing House, Bucharest, 2003, pp. 105-122 and Valeriu Enescu,Silvicultura durabil, Agris
Publishing House, Bucharest, 2002, pp. 137 and following.
74 DOGARU LUCREŢIA
importance of the forests’ quality and their services, through the awareness of the
benefits and of the functions they fulfill16.
In the context of sustainable forest management, certain legal provisions
regarding the forest management, forest biodiversity conservation, forest
regeneration and protection and to insurance of forests’ integrity17are stipulated.
Also, the Romanian Forest Code stipulated the main principles underlying the
sustainable development and the management of Romanian forests, principles that
have been formulated and established at a global level18.
Obviously, a distinct aspect regarding the legal protection of the forests is
represented by the set of special rules stipulated for their defense, in which the
legal norms related to the forests’ protection are emphasized, safeguard that is
ensured and exercised by the forest owners, according to the legal provisions19.It is
noted that, the forests’ protection is achieved in a special way, by imposing their
guardianship for forest owners, with no distinction being made between the
safeguarding of public or of private property forests. It is also established that, the
forestry staff in the exercise of these attributions is assimilated to the staff with
duties involving the exercise of public authority. At the same time, for the purpose
of the forests’ protection, certain obligations for the prevention and extinguishing
of forest fires are stipulated on behalf of forest owners, on behalf of forest
institutions (which provide the management and forest services), as well as on
behalf of prefects, mayors, local and county councils and competent authorities in
the field of civil protection of the environment. The content of the guarding
obligation is represented by all the actions undertaken by the forest owners for the
purpose of guarding and protecting of the aforementioned, with the specific
support of the police. As for the repression of forestry crimes, the new Forest code
contains special rules for sanctioning the deeds that affect the forestry regime and
the integrity of the forest fund. At the same time, The Code stipulates that the
16 The sustainable forest development can be defined as the rational development that mee ts the
needs of the present without compromising the ability of future generations to meet their own needs
in a fair manner.
17 In order to ensure the integrity of the national forestry fund, according to art. 34 and 35 of the
Forest Code, the following are forbidden: actions aiming for the establishment of ownership rights
over the public property of the state; the division below 1 ha of forest ownership; reducing the area of
the national forest fund.
18 The principle of promoting the practices that ensure the sustainable management of the
forests; the principle of ensuring the integrity and permanence of the forest fund; the principle of
increasing the area of forests land; the principle of adopting long-term stable forestry policies; the
principle of the ecological objectives of forestry and the increase of its role in rural development; the
principle of ensuring an adequate level of legal, institutional and operational continuity in the forests
management; the principle of the forest biodiversity; the principle of harmonizing the relations
between forestry and other areas; the principle of support for forest owners; the principle of
preventing irreversible degradation of forests.
19 Considered a "devilish servitude", the grazing in forests, in forest protection curtains and
perimeters for improving degraded land, is strictly prohibited, except in cases of force majeure.
Forest legislation’s role in the protection of Romanian forests 75
illegal acts which cause damages to the forest fund, constitute misdemeanors or
forestry crimes, establishing in this respect the sanctioning regime.
We can say that, from the legal provisions of the New Forest Code, one can
notice the Romanian legislator’s intention to ensure the preservation and the
protection of the forest, its use and rational exploitation. However, the part of this
forest law has proved to be an extremely difficult one, both as a result of the
property restructuring process in our country, as well as the implementation of the
European Union provisions and the correlation between the Romanian forestry
law and the communitarian law, the conformity of the national forestry policy with
the European policy on the sustainable development of the forests20 and also with
regards to the ecological standards imposed on a global level.
References:
1. Aggeston, F., Pulzl, H. (2018), CoordinatingtheUncoordinated: The EU
Forest Strategy. Forest Journal, MDPI, 9/125, pp. 1-3;
2. Kirileanu, Gh., T., Cel mai vechi cod silvic românesc: Orândueala de
pdure pentru Bucovina dat de Împratul Iosif al II-lea în 1786, RSR Publishing
House, Bucharest, 1908;
3. Dogaru, L. Regimul juridic al pdurilor, “Petru Maior” University of Tîrgu-
Mureş Publishing House, 2002;
4. Dogaru, L., Codul silvic român-prezentare evolutiv, 2nd edition, Risoprint
Publishing House, Cluj-Napoca, 2008;
5. Dusca, A., I., Dreptul mediului, 2nd edition, Universul Juridic Publishing
House, Bucharest, 2014
6. Duu, M.,Tratat de dreptul mediului, 2nd edition, C. H. Beck Publishing
House, Bucharest, 2008;
7. Duu, M., Andrei Duu, A., Dreptul Mediului, edition 4, C. H. Beck
Publishing House, Bucharest, 2014;
8. Enescu, V.,Silvicultura durabil, Agris Publishing House, Bucharest, 2002;
9. Lupan, E.,Tratat de dreptul proteciei mediului, C. H. Beck Publishing
House, Bucharest, 2009;
10. Machedon, I., Silvicultura şi dezvoltarea rural, Tridona Publishing House,
Bucharest, 2003;
11. Zinveliu, I., Legislaia forestier în România, Ceres Publishing House,
Bucharest, 1971.
12. European Commision: A new EU Forest Strategy; For Forests and the
forest-based sector, COM (2013) 659 Final; European Commision:Bruselles,
Belgium, 2013.
20 Aggeston, F., Pulzl, H. (2018), Coordinating the Uncoordinated: The EU Forest Strategy. Forest
Journal, MDPI, 9/125, pp. 1-3; European Commision: A new EU Forest Strategy; For forests and the
forest-based sector, COM (2013) 659 Final; European Commision:Bruselles, Belgium, 2013.
