1

Director
Professor Ph. D. Costic Voicu

Scientific Board:
Maurice Petit Professor Ph.D. Ligia Negier Dormont
"Police College Bruxeles" Universit Panton, Paris
Academician Professor Ph.D. Ion Dogaru Police Quaestor Ph.D. Liviu Popa
Professor Ph.D. Gheorghe Popa Professor Ph.D. Ioan Dasclu
Professor Ph.D. Vlad Barbu Professor Ph.D. Alexandru Boroi
Professor Ph.D. Florin Sandu Eng. Ph.D. Iulian Medrea

Editorial Committee:
Chief Editors:
Professor Ph.D. tefan Prun
Deputy Editor:
Seniour Lecturer Ph.D. Laureniu Giurea
Editorial Secretary General:
Assist. Lecturer Ph.D. Marius Pantea

Editors:
Seniour Lecturer Ph.D. Nicolae Ghinea Lecturer Ph.D. Marian Claudiu upulan
Lecturer Ph.D. Gheorghe Popescu Assist. Chersan Ileana
Assist. Ph.D Mihail Petric Marcoci Assist. Amalia Niu
Assist. Ph.D Sergiu Adrian Vasile Layout and publishing: Mihai Zofei

Thanks to the foreign languages teachers from the Border Police, Schengen
Training and Foreign Languages Department

The Journal is published with the support of the Police Chair from
A.I.Cuza Police Academy

Semestrial publication under IPA Romania

Address: Bucharest, os. Olteniei, 158 160, Sector 4, 041323
Tel. 0213321754, 0213321756

ISSN 1844 7449

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 SUMAR
Nr.6/2010

I. ANALYSIS, STUDIES, SYNTHESIS

(Studii, analize, sinteze ale fenomenului criminalitii)
1. INTRODUCTION TO CORPORATE CRIME ANALYSIS (Analiza criminalitii
corporatiste) ...................................................................................................................... 9
Professor PhD. COSTIC VOICU
2. UNCONVENTIONAL THREATS - CONCEPTUAL DELIMITATIONS (Ameninri
neconvenionale - delimitri conceptuale) ...................................................................... 14
Police Quaestor PhD. PETRE TOB
3. THE ACCOMMODATION OF THE INDIVIDUAL INTO AN ORGANIZATION
THROUGHOUT THE PROCESS OF SOCIALIZATION (Acomodarea individual
ntr-o organizaie pe parcursul procesului de socializare) ............................................. 26
Professor PhD. TRFAN PRUN, PhD. LIVIU IOAN TUT
4. THE CONCEPT OF PERSONAL DATA PROTECTION FROM THE PERSPECTIVE
OF THE PRM TREATY (Conceptul de protecie a datelor cu caracter personal din
perspectiva tratatului de la Prm) ................................................................................... 35
Lecturer PhD. MARIUS PANTEA, Assistant PhD. SERGIU ADRIAN VASILE
5. THE RESPONSE TO CRISIS SITUATIONS INVOLVING HOSTAGE TAKING
(Rspuns la situaiile de criz care implic luarea de ostatici) ....................................... 46
Senior Lecturer PhD. LAURENIU GIUREA, COSTIN FTU
6. JUDICIAL COOPERATION IN THE EUROPEAN COMMUNITY.THE EUROPEAN
ARREST WARRANT (Cooperarea judiciar n Comunitatea European. Mandatul
european de arestare) ...................................................................................................... 52
PhD. student VASILE POPA, PhD. student OVIDIU ANTA

II. EVOLUTION AND TRENDS OF CRIME

(Evoluia i tendinele criminalitii)

7. SERIAL KILLERS PERSONALITY (Personalitatea criminalului n serie) ................ 67

Chestor de Poliie Drd. VIOREL VASILE
8. SOME CHARACTERISTIC FEATURES OF CORPORATES FRAUD
CRIMINOLOGY (Caracteristici ale fraudei corporatiste) ............................................ 75
Assistant PhD. MARCOCI PETRIC-MIHAIL, MNESCU RAMONA-NICOLE
9. TYPES OF FRAUD IN INSURANCE (Tipuri de fraude n domeniul asigurrilor) ..... 84
Lecturer PhD. MARIUS PANTEA, PhD. ANTA OVIDIU
10. THE COMMUNITY REGULATORY HARMONIZATION IN THE
INTERNAL BANK (Evoluia armonizrii reglementrilor comunitare cu cele interne
n domeniul bancar)....................................................................................................... 92
PhD. MAIEREAN LAURA, PhD. student ADRIAN IONU CHESNOIU
11. CASE STUDY: CROSS - BORDER SURVEILLANCE VS. DISCREET
SURVEILLANCE (Studiu de caz: supravegherea frontierei vs. supravegherea
discret) .......................................................................................................................... 99
police inspector LAURENTIU CHIPURICI

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12. LES CONSEQUENCES DE LA MIGRATION ILLEGALE SUR LA SECURITE
NATIONALE DE LA ROUMANIE (Consecinele migraiei ilegale asupra securitii
naionale a Romniei)................................................................................................. 108
Cms. en chef CRISTIAN ENE, Asist. univ.LIGIA STANCU

III. RESEARCH AND CRIME PREVENTION

(Cercetarea i prevenirea criminalitii)
13. THE SOCIAL ETIOLOGY OF CORPORATE CRIMINALITY THE CORPORATE
MACROCRIMINOLOGY (Etiologia social a criminalitii corporatiste
mocrocriminologie corporatist)................................................................................. 117
Assistant PhD. MARCOCI PETRIC-MIHAIL, AXENIE CARMEN
14. THE RIGHT OF INTELLECTUAL PROPERTY. THE INTELLECTUAL CAPITAL
THE UNIDENTIFIED FORTUNE OF THE ORGANIZATIONS (Dreptul de
proprietate intelectual. Capitalul intelectual averea neidentificat a organizaiilor) 122
Lecturer PhD. MARIUS PANTEA,
PhD. student ALINA ELENA ANDREI (DNILA), PhD. student STELIAN TIPA
15. REMUNERATION FROM PUBLIC COMMUNICATION PAYABLE TO
PERFORMERS. A COMPARISON WITH THE GREEK LAW (Comunicarea
public,remuneraia datorat artitilor interprei sau executani. Aspecte de drept
comparat legea din Grecia) ...................................................................................... 133
PhD. Student MARIANA LILIANA SAVU
16. SOME CONSIDERATIONS CONCERNING RECENT EUROPEAN PRACTICE IN
THE FIELD OF INTERNET PIRACY (Practici europene n domeniul pirateriei pe
internet) ....................................................................................................................... 140
Lawyer MAGDALENA POPESCU
17. SUPERVISED DELIVERIES. NORMS AND APPLICABILITY IN THE
EUROPEAN COMMUNITY (Livrarile supravegheate. norme legale i aplicabilitate
n comunitatea european) .......................................................................................... 144
Commissioner Fraud Squad LIVIU BLAN, OCTAVIAN-LUCIAN SECIU
18. PEDESTRIANS IN ROAD (Pietonii n transportul rutier) ........................................ 157
PhD. DRAGO-ANDREI IGNAT

IV. MANAGEMENT OF CRIME INVESTIGATION

(Managementul investigrii criminalitii)

19. INTERNATIONAL POLICE AND JUDICIAL COOPERATION IN COMBATING

ILLICIT DRUG TRAFFICKING (Cooperarea poliieneasc i judiciar n domeniul
traficilui ilicit cu droguri) ............................................................................................ 165
Lecturer PhD. GHEORGHE POPESCU,
Chief Commissioner Arch. MARCEL IANCU ADRIAN
20. MODERN APPROACHES TO PERSONNEL MOTIVATION WITHIN THE
ROMANIAN BORDER POLICE (Perspective moderne ale motivrii personalului
n Poliia de Frontier Romn) ................................................................................. 178
University Reader. Ph.D. COSTEL DUMITRESCU,
University Teaching Assistant OANA POPESCU
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21. CONSIDERATIONS SUR LA COMMUNICATION PUBLIQUE (Canale ale
comunicrii didactice. implicaii psiho-pedagogice) .................................................. 185
Lecturer PhD. LUCIAN PAHONU
22. THE IMPORTANCE OF OPEN SOURCE IN ROMANIAN EDUCATION
(Importana surselor deschise n nvmntul romnesc) ......................................... 190
Assistant IOAN-COSMIN MIHAI
23. CONSIDERATIONS SUR LA COMMUNICATION PUBLIQUE (Consideraii
privind comunicarea public)...................................................................................... 195
Lecturer PhD. LUCIAN PAHONU
24. FORMALISME ET STEREOTYPIE EN EXPRESSION JURIDIQUE (Formalisme i
stereotipii n expresiile juridice) ........................................................................................ 200
Assist. univ. STANCU LIGIA CRISTINA MARIA,
Assist. univ. drd. NIU AMALIA

V. SCHENGHEN ISSUES
(Problematica Schengen n domeniul criminalitii)

25. EUROPEAN AGENCIES, INSTITUTIONS AND BODIES RESPONSIBLE FOR

BORDER SECURITY (Agenii, uniti i organisme europene cu responsabiliti
n securizarea frontierelor).......................................................................................... 211
Lecturer Ph.D. MARIUS PANTEA
Assistant PhD. SERGIU ADRIAN VASILE
PhD. student MONICA SACHELARIU
26. CROSS-BORDER POLICE COOPERATION BETWEEN ROMANIA AND
HUNGARY (Cooperarea poliieneasc transfrontalier ntre Romnia i Ungaria) ...... 221
Ph.D. Associate Professor CRISTIAN FLORIN POPESCU,
Ph.D. Lecturer CARMEN CHERVASE
27. LA POLITIQUE TRANGRE ASSERTIVE DE LUNION EUROPENNE
RALISE PAR LA STRATGIE DE SCURIT EUROPENNE ........................ 232
Asist.univ.dr. SERGIU ADRIAN VASILE
Asist.univ. drd. GEORGIANA GHIESCU
IOANA ANDREEA EPURE

VI. REVIEWS
(Recenzii, semnale editoriale)

28. ECONOMIC AND FINANCIAL CRIMINAL INVESTIGATION (Investigarea

criminalitii economic-financiare) ................................................................................... 247
29. THE EUROPEAN UNION FINANCIAL SECURITY IN THE LISBON TREATY
VISION (Securitatea financiar a Uniunii Europene n viziunea tratatului de la
Lisabona) .................................................................................................................... 248

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 INTRODUCTION TO CORPORATE CRIME ANALYSIS

Professor PhD. COSTIC VOICU

The article focuses on corporate crime as the most sophisticated illegal action which
takes place at the top of the big corporations and it is implemented through strategies
involving governmental institutions. The new trend is to create partnerships between
corporations and states, in different fields, starting from public acquisitions of weapons
and military technology to contracting out the army and the public order and security
services. The force and the capacity of corporations and companies are remarkable in
obtaining these commercial contracts as long as it is a very strong link between the
political world and the corporate one.
Keywords: Crime analysis, privileged information, economic globalization,
multinational corporations, money laundering, lobby activities.
In mid-December 2010 the most influent corporate organizations interested in
newspaper, The New York Times published maintaining constant costs for the row
the fact that a market of billions of dollars is materials in the field of energy, high
controlled by a secret society. On the third technology and food industry.
Wednesday of every month nine members of Long before the article published in The
an elitist society on the Wall Street meet New York Times, David Rothkopf
secretly in a location in the centre of published a book, Superclass. The Global
Manhattan to develop and implement plans Power Elite and the World They Are
meant to protect the interests of the financial Making (2008) where he wrote: the
giants like J.P. Morgan or Goldman Sachs, financial elite has evaded very rapidly from
on the derivates market. the national regulations and grew in the
This elitist society is made of powerful uncharted territory and in those impossible
banks, like Morgan Stanley, Deutsche to chart, which go beyond the national
Bank, UBS, Credit Suisse, Barclays, borders. Contemporary global markets
Citygroup and Bank of America. These are operate beyond the limits and the
involved in surveillance of the derivates understanding of the national governments
market which is worth thousands of billions which can no longer manage crises on their
of dollars, one of the most profitable in the own (p. 9-10).
financial industry. The role of this group is From America to Europe there is a
to ensure the banks supremacy by blocking profound economic, political, social and
information on prices and commissions. financial crisis of the states. The
The above mentioned newspaper governments are incapable of managing
underlines the fact that the banks gains such situations. It is a governing crisis born
annually billiards of dollars from secret from the convergence of the ideological,
commissions, using privileged information. political and technological forces behind
In the last two decades the dimension the process of economic globalization
and the activity area of the derivates has which transfers the power from
grown very rapidly, as they are being used governments to big multinational
by the funds for retirement through corporations and financial institutions.
investments, by states which ask for low The greatest concentration of wealth is
price financing, by the transnational in the area of hedging funds which play the

9
main role in establishing the actions of the
big corporations. According to Rothkopf
these funds controlled in 2007 over 2
trillions of dollars. Together, the most
important financial institutions administer
goods worth 48.5 trillions of dollars, more
than one quarter from the global amount.
The corporations have an international
statute and influence on a very high scale
the policy of the governments.
One of the most known practices is to
sponsor the candidates to the highest public
positions (heads of states, ministers, advisers,
Mps) from the developed countries. The
mechanisms that are used are extremely
subtle, starting from donations coming from
individuals that do not comply with the laws
for campaigns financing, offering big
amounts of money to political parties.
The big corporations and financial
institutions on the Wall Street encourage
their employees to donate for politicians.
David Rothkopf writes that in the first
semester of 2007 the number one when it
comes to donations for the presidential
campaign was Goldman Sachs with an
amount of over 500.000 dollars. The list is
completed with Citigroup, Credit Suisse,
UBS, Merrill Lynch.
Behind politicians, from US presidents
to Premier Silvio Berlusconi, President
Nicholas Sarkozy and premier Medvedev
as well as other individuals from European
or African countries, there are the big
corporations and companies who directly or
through lobbyists inject financial funds for
giving and maintaining power.
The force and the capacity of corporations
and companies are remarkable, except in
obtaining commercial contracts in the
military, pharmaceutical or high technology
industry or contracts for the infrastructure
projects.
Corruption practiced at the highest
levels is materialized in the development of
normative acts by the legislative and
governmental authorities in favor of the
large corporations and companies that
promote their interests in the territory of
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nation states. There are notorious links
established between European governments
and the U.S. with the energy and weapons
industry tycoons. There are still fresh the
unhappy memories of the U.S. energy
giant's collapse ENRON, Ken Lay, whose
president, big supporter of Bush, held the
position as head of fundraising campaign
needed for the second candidacy to the U.S.
presidency. Lay promoted at that time,
proposals to significantly reduce
government regulations and for a wider
freedom in matters of business of the
private field. The merger made between
politics and big corporations is illustrated
by the amicable relations that the same
candidate for the U.S. presidency had with
Exxon-Mobil, the world's most powerful
company that made the sponsorship of over
$ 15 million in the form of lobby activities.
In the United States and all the western
states, big corporations and financial
institutions set up special teams to perform
the special tasks in the equation of the
presidential formulae. It is the principle of
revolving doors, which David Rothkopf
defines as: the case which allows decision
makers to leave big companies and to get
governmental positions and then go back
from where they started. In this way the
financial community keeps the authority. It
does not come as a surprise the fact that one
of the Treasury secretaries America has had
has occupied later on an important position
in the financial world. A high position in
the government represents a secure way to
get to Wall Street.
It seems that the corporate world knows
better than the legislator what needs to be
regulated and especially how. National
governments have a big issue in regulating
the most important fields because the
governmental officials do not understand the
internal mechanisms of national economies
or the global ones. There is only one
conclusion: if the governments cannot do it,
then leave the corporations and the business
community regulate. Marc Richevaux from
the Donquerque University, France, said in
2002 that the law has to be the expression of
general wish. Currently, it seems to have a
few difficulties when it comes to
accomplishing this role. The law is no longer
clear and coherent. It does not represent the
legislator any more, but is the expression of
some technocrats or groups that fight for
their interests.
With more than 140 years before (1860)
Herbert Spencer wrote: governance is born
from aggression and through aggression.
The sins of the law maker come from its
personal ambitions and from the interests of
its group, as well as from the lack of
knowledge the law maker is morally
obliged to have in order to regulate
accordingly.
The trend of the last decade is to create
partnerships between corporations and
states, in various fields, starting from public
acquisitions of weapons and military
technology to contracting out the army and
the public order and security services, even
penitentiaries.
The size of these partnerships is
underlined by the huge business between
the most powerful corporations in the
military industry Lockheed, Boeing,
Northrop, General Dinamics, British
Aerospace) and the army of the US, Great
Britain and other military powers engaged
in the operation theatres in Iraq and
Afghanistan.
Impressive profits are made by the
private corporations which signed contracts
for ensuring diplomatic security of the
representatives of the US State Department
deployed in Iraq and Afghanistan, the most
representative being Blackwater, Dyn Corp,
Trident and Vinnel. The last one has been
operating in Saudi Arabia for over 30 years
with competencies in training the National
Saudi Guards. For this purpose the
corporation has set up and run five Saudi
military academies, seven shooting
polygons, has trained four mechanized
brigades and five infantry brigades.
Victor Hugo said that behind each
fortune there is a crime. The huge fortune
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belonging only to several hundreds of
corporations has been made through
financial speculations, corruption, theft,
forged accounting documents, fraudulent
use of classified information.
Corporate crime is the most sophisticated
illegal action which takes place at the top of
the big corporations and is implemented
through strategies which involve
governmental institutions. It is a very strong
link between the political world and the
corporate one, the former one receiving
financial benefits from the corporations that
control the money, markets, technology and
information. In order to succeed the
corporations are very well organized,
promoting an organizational culture based
on authority. It is a negative corporatist
culture characterized by greed, arrogance,
selfishness, contempt towards public
interests and clients. The alliance between
corporations and politics, represented by
heads of states and governments and military
elite is present where they influence and
dominate big decisions. In Italy, Prime
Minister Silvio Berlusconi is the richest man
in the country, owning an empire made of
three television networks, a film company
and the biggest media company. Prosecuted
by the Italian justice in numerous criminal
files regarding corruption acts, tax evasion
and abuse of power, the so called Il
Cavaliere is the prototype who became to
rule a great economic power of the world.
Nicolas Sarkozy, the president of
France, has approached another tactic: not
having the financial power as the Italian, he
has thoroughly built, since he was mayor in
one of the Paris suburbs, strong
connections with businessmen and media
tycoons. Sarkozy has entered the privileged
family of the heads of multinational
corporations receiving large amounts of
money for his presidential campaign.
Martin Bouygues, owner of the main
television network in France is the
godfather of Sarkozy boy, while other
prominent figures (Lagardere and Arnault)
have been guests in his wedding.
 Similar behavior have had other leaders
of European states, for instance, Schroeder,
ex-canceller of Germany is currently
special counselor for Gazprom thanks to
Vladimir Putin who is the prime minister of
the Russian Federation.
The corporate world is a challenge for
law enforcement agencies that are as well
linked to the political power and the direct
influence of the corporations.
The main characteristic of this
postmodern political era is the supremacy of
money as a principle for organizing the
human and international relations. Jim
Hoagland, quoted by David C. Korten in his
book Post Corporatist World (1999) said
that nothing else seems to be important. The
corporations that financially sustain the
political power are those who impose the
laws and the individuals that lead the secret
services, as well as key magistrates.
With such a power it is clear that nobody
is willing to start criminal investigations
regarding the business of big corporations.
Criminal investigations lead by the police,
prosecutors or judges start, in most cases,
after the financial crash of the corporations.
But even in these cases, the investigation
goes to the point where there is the risk to
expose criminal partnerships between
politicians and authors of the mega-crimes.
The corporations promote aggressive
politics upon any actor capable of stopping
the success of the business: upon
governments, policy maker through
lobbyists, authorities in charge with the
market supervision, as well as law
enforcement agencies through intimidation
and corruption.
For example, who would have dared to
mount an investigation against the business
of the energetic giant ENRON, which
collapsed in 2001, although their law firm
gave President Bush a donation of several
million dollars. Or who would have
thought to use the information held by the
Italian secret services about the biggest
collapse in Europe, in 2003 Parmalat,
with a prejudice if 14 billion euro
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although its owner, Calisto Tauzi, had great
influence upon decision actors in 30
countries where he had business worth over
8 billion euro. A deeper analysis of this
case will reveal the fact that we deal here
with a concentric network with a single
authority centre and with great influence.
The whole power was in Calisto Tauzi
hands, the one who founded the company in
1961 and who place his closest relatives in
key positions: his daughter, Francesca, his
son, Stefano as well as brothers and other
devoted acquaintances. The business was
controlled by directors appointed in
accordance with the classic criteria for a
mafia family, individuals attracted by
power and with genuine abilities to attract
into the business powerful banks: Bank of
America, Citigroup, Deutsche Bank,
Morgan Stanley and UBS. This has been a
model for a closed family business, typical
for Italy but at the same time, it has a
corporatist dimension, similar to ENRON.
In our opinion it was a
The Temple Roof, represented by the
biggest supraelite created in the political
and governmental environment, establishes
values and coordinates for corporate
culture. These values and commands are
clearly expressed in the internal regulations
and directives, with a strong emphasis on
unconditional subordination and discipline.
The standards each employee must achieve
are well established, and they are rewarded
according to their achievement. There are
implemented monitoring software systems
for risk and high risk business operations.
No one is allowed to formulate questions
about corporate policies and perspectives.
The hard core, highly skilled and
professionalized, arrogant and contem-
ptuous, develops shark type policies,
careful preparing suitable moments to
ingests others in difficult situations. If we
were to illustrate this, we would refer to the
collapse of Lehman Brothers, produced in
mid-September 2008, considered the worst
economic event in the history of the world,
as shown by the stories and controversies
emerged in the two and a half years that
have elapsed since this event. This little
story is likely to make us understand some
aspects of the American corporate culture
impregnated by high interest games,
concentration of financial power and the
essential role of the state in major financial
games. We quote from The Financial
Newspaper from Wednesday, September
15, 2010: The weekend from 13 to 14
September 2008 was one of the most
dramatic for the U.S. financial industry, as
it was decided the fate of Lehman Brothers,
one of the oldest investment banks on Wall
Street. During this time, Richard Fuld, chief
executive of the bank, in function for 14
years, agreed to sit at the negotiating table
to sell the bank, which held assets of 630
billion dollars. The surprise came from U.S.
Treasury Secretary, Henry Paulson, an
opponent of Fuld, since he was CEO at
Goldman Sachs, who announced that
whatever the buyer would be, it will not get
money from the state to financially support
the transaction, as happened in March 2008,
when JP Morgan received 25 billion dollars
to buy Bear Streans bank. The two possible
clients for Lehman Brothers were Bank of
America and Barklays (one of the most
important banks in Great Britain), which,
without the guarantee of the American state
renounced to buy it. Bank of America has
bought, very soon, Merrill Lynch which
was almost in collapse.
What do we need to remember after the
Lehman Brothers drama, which caused the
deepest financial crises since 1930 and the
worst recession after the Second World War?
First of all, the fact that the elites in the
banking field, starting from Fuld, have been
Bibliography
Costic Voicu, European Union Financial Strategy, Universul Juridic, 2010
Costic Voicu, European Union Internal Security Strategy, Sitech, 2010
David C. Korten, The Post-Corporate World, Antet, 1999
David C. Korten, When Corporation Rule the World, Antet, 1997
David Rothkopf, Superclass, Publica, 2009
Jean Ziegler, Lempire de la honte, Antet, 2006
13
very greedy when it comes to profits,
without taking into consideration the
economic, politic and social reality.
Then, the fact that Fuld was annually
earning 45 million dollars proves irrational
exuberance for the one who promoted a risk
management, regardless its consequences.
We should also remember the fact that
immediately after Lehman Brothers went
bankrupt, US Treasury had the main role in
nationalizing the giant in the insurance
industry, AIG, which received 85 billion
dollars for 80% of stocks. This is due to the
fact that AIG had the power to give back
the money to the state.
And for the disaster to be complete, in
December 2008, a major fraud worth 65
billion dollars has been done and has
generated one of the greatest scandals
involving Bernard Madoff.
The domino effect has been produced.
In 2009 more than 200 banks in the US
went bankrupt and other thousands in
Europe were nationalized. In 2010, 157
banking institutions in the US declared
bankruptcy and this was considered the
highest level in history.
Corporate criminality is a very severe
phenomenon. In almost all analysis that has
been made in the last ten years, one cannot
find the notion of organized crime. We talk
about greed, arrogance, financial fraud,
forged documents, financial contributions
for politic campaigns as well as
unbelievable bonuses for the managers of
these corporations.
In our opinion there is a link between
corporate criminality and economic and
financial crises.
 UNCONVENTIONAL THREATS - CONCEPTUAL DELIMITATIONS

Police Quaestor PhD. PETRE TOB

The present article analyzes the dynamics and the impact that unconventional threats
have on the modern societies. There is being analyzed different types of unconventional
threats. The author realizes a monography of the cross-border area and of
unconventional threats linked to it.
Keywords: unconventional threats, national security, aggressiveness, security
arhitecture, ethnic confrontations, illegal migration, cross-border areas,
human trafficking.
The threats addressed to the national 1. The definition and typology of
security are due to the capacities, strategies, unconventional threats
intentions and plans which enlarge a threat The terrorist acts happened of the 11th
to the fundamental attributes of existing of September 2001 on the United States
qualities that the Romanian people have, of have demonstrated the fact that
the economic base of the society, of the dependences create hostility and
constitutional order, of the human liberties aggressiveness and that hostility may be the
and rights of the citizens. These are shown resort of a long-term conflict, a conflict of
through attitudes, gestures, facts which low intensity or even a spatial war or a
create imbalance and instability and overall nuclear one.
generate danger to fundamental values These unpredictable events have started a
and/or national interests with a great impact real world war having tow sides, one of
on the national security. belligerents, in the opinon of the United
Threats, as an indicator of showing States as democratic forces, on one side, and
danger and imminent prejudice to national the forces which oppose the order,
security are identified based on the nature, democracy and civilization on the other side.
(political, economical, military, social, This is only one type of war, not the only
environmental), shape (attitudes, gestures, type. World confruntations are much more
acts, facts, events, phenomena, human numerous and they become predictable, can
actions), stage (latent, possible, probable, be managed and respectively, prevented.
imminent) and type of foreseen actions Unfortunately, the number of those that
(masked, mixed, violent, non-violent.) cannot be anticipated and therefore
It is necessary to dissociate between prevented is growing and the solutions are
common threats, the development and narrowing. Therefore, the dialogue is being
multiplication of modus operandi through transformed in force, the acceptance in the
which threats are materialized and through impose of the acceptance.
which the national security system is In this context, the maintenance of the
organized. The numerous actions made by stability and security at the national level,
the states for securing their own needs of the regional and global level become not
security are lacking in aggressive intentions only the demand but also the requirement of
and therefore, lead to a growing insecurity the development and prosperity both for the
for other states which interpret them as
individual and collective. The new security
possible threats although these steps have a
pure defensive character. arhitecture thought to assure the cooperation
14
and partnership, the harmonious
development and the whole nations, the
compliance of human rights based on the
principles and democratic values represent in
present days the primary objective of
european aspirations.
Informational aggressiveness has a great
diversity of hostile manifestations whose
effect is realized, mainly, through the aid of
information and has as main objective the
reference systems of civil, military
personalities and also the informatics systems.
As a rule, these types of actions prepare and
accompany other types of aggressions which
all affect directly the values which define the
state of security of a country. The
informational aggressiveness subsumes:
informatics hostile actions, information
collection and disinformation, cultural
penetration, ideological aggressiveness.
Information collections and disinfor-
mation are going to be more and more
amplified, constantly, and will certainly know
many ways of manifestation. Certainly, not all
the activities known to be part of the
informational sphere will have an aggressive
character. These manifestations can be
numerous: data collection and realization of
monographies utilized for political actions,
social destabilization and aggressive
economic acts, informational training for
military aggressive acts, the penetration of
political, financial, economic, military
environments and informational structures of
each state put to the attention, the preparation
and execution of sabotages, terrorists acts and
other such actions.
Disinformation can aim at, especially,
the internal environment, concentrating
mainly in order to delude decisional
headquarters, or, it can expand on large
zones for creating opinion centers or even a
mass attitude, a tolerant one and favorable
for achieving the aggressors objectives.
Imagistic aggression utilizes mass-
media for indirect activities, not headed
towards the state aimed at, but towards the
influence of the political environments
happening in other states, towards the
15
influent persons among international
organisms and other segments of people in
general. The aim of the aggressive
imagistic campaigns can be that it creates
an extreme defavourable imagine of the
state in question, making it responsible for
actions which in reality are aimed against it,
the preparation of decisional elements for
the adoption of different international
sanctions, in fact insufficiently motivated or
for imposing certain solutions which
debunk the interests of that state.
The migration with negative effects
constitutes a threat if we are to think at the
liberalization of circulations around the
world, of the conflictual states of mind and
the perpetuation of economic crises in
Eastern and Center European countries.
Migration, mainly seen as refugiation is
the consequence and at the same time the
expression of some situations of a great
drama both of the individual and the social.
It is seen more and more as a risk or even a
threat to the security of the states. But to the
societies which develop constantly and
confront with difficult periods of time of
economic crises and internal instability, an
immigrations phenomenon of great
proportions can negatively influence or
even destroy the social equilibrium.
Subversive actions, form of political
fights carried with illegal means, contrary to
democratic norms specific to any democratic
order, aims destabilization of the political
system, disorganization of the state and of
the society, foe easily to impose the
conditions which debunk the security.
Subversive actions represent a combination
of the means and terrorist methods with that
of the political, economic and psychological
fights taken place internally. They are
prepared and put into practice through the
aid of clandestine organizations, well
structured and coordinated. Subversive
actions represent a great danger for any
democratic state since they are greatly
dissimulated by the political and social
manifestations taken place in each state.
Also, it plagues and damages essential
structures for the auto-adjustment of the
social system and can have major
consequences for the territorial unity,
integrity or even the survival of the state.
Ethnic confrontations are more and
more disputed in present day. This type of
confrontations represent one of the
consequences of the situations of minorities
in contemporary era. The approach of the
minorities problem from the perspective of
national security has been treated for a long
time in a simple manner, generating as such
confusion and sowing people wrong
interpretations. One example is, determined
by the different frequency of an analysis
taken towards various geographic areas is
the placement of inter-ethnic and
conflictual relationships, as a rick for the
national security, mainly in the Eastern
Europe. To be noted that the states
considered to be un-homogeneous from an
ethnic point of view are more and more to
be found across the world, opposed to what
is written in scientific writing in different
Eastern countries. The analysis carried out
by Walker Connor in the last decade on a
number of 132 states has as a conclusion
the fact that 90% of these states have a un-
homogeneous national composition.
Terrorist actions have been placed more
and more to the public eye and to those
who try to impose various political
objectives through force, due to restrictions
more and more hard to obviate, imposed by
the international community for delaying
the illicit usage of armed force against other
states, or due to the insufficiency of the
means of each state.
Terrorism embraces violent acts, illicit
acts, criminals wrongdoings often not
related to race, and carried out with the
purpose of having an influence through
violence, for creating a climate of
intimidation forcing as a result, a person, a
group or even a state to act in a certain way.
Terrorism knows a great diversity of forms.
Terrorist acts judging by the great area
influenced by them but mainly through the
means utilized are becoming more and
16
more unpredictable and more and more
hard to identify and combat. Due to its
dimensions and implications, terrorism
have been considered from the beginning of
the last decade of the recently ended
millennium, one of the main threats to the
national security. The war against terrorism
is, in our opinion only at the beginning of
its primary forms.
In a regional plan, the Balcanic area has
been in the last decades, the war stage of
different unfortunate events which have the
gift of confirming the nickname powder
keg of Europe. The open conflicts taken
place in the ex-iugoslav area, the one from
Transnistria, the differences concerning
Cipru isle and the grave Albanian events
represent as many motives of worry mainly
because democratic values are in question.
To these aspects, if we add other
possible states of mind, some instable,
taken place in Moscow we have the
complete imagine of the entire possible
conflicts existing at present around the
world. The events taking place in Russia,
from 2002 have once again shown that not
even am aim being as noble and generous
as it can be isnt rightful as to put down
innocent people and proves once again the
absurdity of using terrorist methods.
Through the immensity and drama showed
in Moscow, humanity has once again had
(following the 11th September events) the
entire imagine of the dimensions of
terrorism, of fanatics, dogmatism, absurdity
but at the same time, the implications of the
events have shown the fact that the only
way to combat this irrational fight against
humanity is for the responsible forces to
interlock against terrorism.
After 1990, the drug traffic, illegal
migration, human being traffic and
economic crimes, money laundering,
forging of different documents have taken a
toll on Europe, having as a solid base the
political, military and security situation in
each state. This space is being characterized
by the fragility of new democracies
threatened by the proliferation of different
ethnic-separatist conflicts from Nagorno-
Karabah, Abhazia and South Osetia,
Cecenia, Kurdistan and Transnistria which
are being threatened daily the terrorists acts
having as real motivation, human race. The
situation has affected the political and
economic progress of the states neighbor to
these areas, leading to the accentuation of
the political instability and implicitly to the
proliferation of organized crime and
terrorism.
1.1 The prevention and combat of
unconventional threats
In the national security domain, the
prevention and combat have to be
fundamented on the efficient handling of all
categories of informational resources,
hypothesis, projects of actions and systems,
models and alternative actions, strategies,
programmes, directives and operational
plans. The prevention of risks, the threats,
the dangers, and other anti-social acts with
a direct target to the national security
constitute for all democratic states a
systematic preoccupation at a macro-social
level from the beginning of time.
A number of certain means of actions
have to be taken into consideration in order to
prevent and combat certain threats and
dangers in the national security domain. Such
means of action are: the detection and
elimination of the main causes which
determine the apparition and its
manifestations. In our opinion the preventions
is realized through a great number of means:
Prevention, through the enforcing of
the law, a post-factum intervention
which has as a role the warning for the
future predisposition of breaking a law.
Prevention through determination of
actions and measures which ca be put
to eradicate crime, aspect which is
close and essential to a strategy and a
tactic adequate for prevention and
combat, adapted to the different
directions and moments of
manifestations of criminality.
Prevention through the training of the
victim or objective in order for them to
17
self-defense; through the concept of
victim one can understand as well as
the person itself but also the entire
collectivity. Also, values, institutions,
objectives and goods in connection
with different preventives tactics are
being prepared and applied.
Prevention through means of enhancing
community relationships (social,
economic, political, ethnic, confessional,
cultural etc. )
Prevention through the promotion of
social justice.
The activity of prevention is composed
by measures and actions elaborated and
applied as a succession of acts susceptible to
initiate an authentic causal process, aimed
towards annihilation, paralysis or even
abatement of potential factors which
contribute to the proliferation of criminality.
Taking into consideration all we have
shown above, one can talk about two
different preventive actions.
The first type is represented by the
normative-formative action. This doesnt mean
a great complex of measures which act
towards the shaping of human or human
group, of the collectivity, all taking into
consideration the law, the instructions, the
directions of conduct, of the respect one has for
national, social, political and military values.
The second type of preventive action is
aimed towards the elimination of certain
situations, of the states of fact which can
influence a person or can be used by a person
in order to commit a crime or a felony.
Inter-departmental cooperation in
combating crime, drug traffic and terrorism
is the essential element, the most important
one. Each institution having a role in
combating terrorism and these
unconventional threats at the address of
national security have to conserve order in
its own structure. The Government has to
know what each country is doing and how
the connection, the cooperation is being
realized in the system. A failure in this
domain may have grave implications on an
international stage.
 Modern criminals, terrorists dont have
anymore the knowing of national
boundaries. They operate as a group of
foreigners, residents, always on the move,
traveling across borders and continents.
This reality frustrates, produces confusion
and lets down jurisdictional institutions.
The role of public order forces, of the
security forces and of the army in
combating unconventional threats has to be
the support of the law. Information
collection, the exchange of information, the
continuous training activities, the
participation in security problems between
the national defense systems components.
The public order forces, the national
security institutions and the army have to
cooperate in resolving security problems
and in abetting one another in the combat of
strategic crime and its essential elements:
organized crime, drug traffic and terrorism.
2. The cross-border specific of
unconventional threats
In Europe, the notion of state border, in
the last 20-30 years and mainly once with
the accomplishment of Schengen it is hard
to be defined since it cannot stay in the
front of the suzerainty of the states which
have under control the both sides of the
boundary1.
The difficulty in defining the border of a
country resides in introducing the notion of
rupture in the same time systematic,
functional and spatial. It is not aleatory the
fact that much interest is given to the
problems risen by the boundaries and cross-
border spaces mainly in Europe. This
phenomenon is linked to the progressive
abatement of the borders and the foreseen
extinction of economic barriers. But,
mainly, it embodies and facilitates in its
own way, the difficulties, the limitations
and constraints which have to be exceeded
in order to realize the European integrity.
Bearing in mind these aspects, corss-
borders regions constitute, in fact, the
1 2
Denis de Rougemont, LAvenir este notre affaire,
Seuil, Paris, 1978.
18
engine of the development of European
constructions.
The border is above all a physical limit
frequently indicated through terminals which
fixates the territorial area of a state.
Implicitly, it indicates the area of exercising
national suveranity and constitutes a key
element of the national territory and of any
national system2, all-in different components
and sub-systems. The border, as a limit of a
political system, accentuates an essential
function of the national states: that of
establishing an identical territorial base for
controlling every system and sub-system
which enclose, theoretically, the national
suveranity such as those which concern
national education, national economy,
national money, national defense, the police,
the justice etc. We realize the fact that in
order to correspond in a strict way the
limitations of all systems and sub-systems of
a national state, in the same space, it cannot
generate but confrontations, imbalance and
even conflicts taken place in regions crossed
by borders, because often it is all about
systems which oppose themselves or even
ignore, as they lack in sufficient contractual
intercession, as seen till present day. The
fading of border-effects consists, in one way,
in its dis-functionality, which shows that we
are to defy border through different
functions and its different effects of
separation and/or articulation:
The function of military and political
strategy, as an essential aspect of a
national territorial bet
The function of disjunction and
asymmetry in the economic, social and
cultural domain
The function of filtration and selection,
foe example, concerning immigration
The creation function which brings
together the production of goods and
services, work places
The function of inter-penetration and
breach of demeanor and different cultures.
Charles Ricq, La region, espace institutionel et
espace didentit.
 The appeal to the systematic analysis
concerning the tackling of the border
problem allows us to show the fact that the
border, leaving aside the terminal, is,
primarily, o limit between state and nations.
As a result, it necessitates the notification
for the description of the characteristics of
the cross-border regions, for the selection
of problems taken into consideration as
they are more or less important for the
regional, national and European politics if
it is possible, coordinated. Also, for the trial
of giving specific answers on a short,
medium or long length of time. This
intercession, both interdisciplinary and
international, across borders is relevant for
determining different types of economic,
cultural and political relationships which
appear and develop in these border spaces
and in areas which dont have to be defined
bearing in mine apriori criteria but
considered after its studied functions. We
talk about the so-called cross-order regions
with a variable geometry.
The European construction, mainly the
European integration, fundamentally needs
these cross-border spaces in order to show
the reliability, the authenticity and its
legitimacy; cross-border regions are
becoming more and more laboratories of an
European construction.
The main principle of cross-border
cooperation is the realization among border
areas of certain contractual spaces with the
aim of allowing the finding of common
solutions to similar problems, stately
entities bearing in mind that when speaking
of off-line collectivities the particularity
and the specific of problems with which
they confront. This fact shows that,
simultaneously, the need of assuring not
only the eternity of regional identities but
also the necessity of making them
beneficiate the process of European
construction from the dynamism and its
proper ingenuity of the local and regional
collectivities situated on the both sides of
19
the border3, when they try to develop
together a real partnership, a real synergy
and an absolute solidarity as shown by the
imagine of what is wanted to be an
unified and diverse Europe.
2.1. The concept of cross-border areas
Not long ago, cross-border area meant a
virtual region, a geographic area with historic,
ecological, ethnic and economic possibilities
etc but blocked by the suzerainty of the states
which control the both sides of the border.4
This definition has long time constituted a
challenge for the European countries which
wanted the realization of a real union. In order
for this to happen, they has searched solutions
for creating cross-border collectivities to
cooperate and which to have as a base,
different institutions, if not political, at least
functional.
One aspect in the realization of this
objective is the reduction of the border
effects, effects which stay in the borders
functions itself. These functions are as
follows:
Political and military as an expression
of territorial independence and
suveranity
Of separation of political, economical,
social and cultural systems
Of filtration and selection of the
movement of people, goods, services
and money
Of creation and accumulation of a
various production of goods an values,
services, and work places
Of interpenetration or breach of
cultures and social behavior
Of protection in defending values,
rights and liberties coded in each
states constitution.
As it is shown through a systematic
analysis, the most important negative
effects of a border on the European cross-
border region are:
3
Charles Ricq, Les Cantans frontaliers et lintegration
europeenne, Acte Unique European, 1992;
4
Denis de Rougemont, op.cit., p.78.
 economic imbalance generated by
the differentiated development of
the neighbor states
more or less important cultural
differences as a result of the
different social and cultural systems
political characteristics differentiated
by the diverse interests of political
parties which govern a country
Following all we have shown above, in
a new European conception, the term of
cross-border region integrates at least three
main elements:
The delimitation more or less of the
geographic area which characterizes
the cross-border region
The establishment of certain
collectivities and institutions
The identification of relationships
which can be established between
them and the finding of solutions
in order to optimize conjoint
activities.
The territorial delimitation of a cross-
border region have been realized with the
aid of three classical dimensions:
Areas
Poles
Territorial and administrative
structures organized on political
principles.
2.2. The geographic margin of the
cross-border areas
The cross-border areas are situated on
the both sides of a state border, they have
various depths agreed upon through
bilateral agreements and include the cities
whose territories are integrated in the depth.
The bilateral agreements establish
depths from 10 to 50 km, measured in a
straight line, starting with the frontier of a
certain state. For example, France
established with the contiguous contractual
parties that the borderland should not
exceed 20 km in depth on one side and
another of the common border. At the same
time, the bilateral contract between France
and Belgium defines two areas: a privileged
one that includes the cities which are
20
situated at a maximum depth of 10 km
and an ordinary one which integrates the
cities that are situated up to 20-25 km
inland on one side and another of the
border.
Within these areas, there are certain
conditions that govern the local border
trading and the facilities granted to
frontier workers.
The Council of Europe defined the
frontier worker as the wage earner who
works on the territory of a contractual party
and is a resident on the territory of another
contractual party, where he/she returns
daily or at least one time a week5.
In order for activities within border
areas to take place under optimum
conditions, it had been taken into account
the creation of facilities in terms of border
crossing conditions for persons covered
by legal regulations in this area, which
are embodied in the local border trading.
In this regard, the Commission of the
European Parliament has adopted two
proposals that regulate the "local border
trade" i.e. crossing the border by third-country
nationals who reside in the border area and
regularly cross the border with
legitimate reasons, in another Union country
without representing a security threat to the
Union. The first regulation is intended to
facilitate local traffic at land borders between
Member States and neighboring countries,
while the second extends this mechanism to
the borders between two Member States that
have not yet abolished checks at their
common borders.
These regulations concern practical facili
ties such as special border crossing points or
colors reserved for frontier workers, as well
as the possibility of legally border crossing.
For the third-country citizens who are
obligated to obtain a visa and legally reside
in the border areas, the law proposes the
5
The National Security European Convention of
the Council of Europe (Complementary
Agreement) adopted on the 10th of March 1972,
effectual since the 1st of January 1977.
introduction of a special visa, which is to be
obtained for local border trading purposes
only. This visa, which is valid only in the
border area of the issuing state, gives its
owner the right to cross the border of the
member state repetitively, for a stay that
does not exceed seven consecutive days and
a period of three months per semester. The
visa has a maximum validity of one year
and is free to obtain.
Taking into account the local nature of
border trading, the implementation of this
regime is the task of the member states
which can negotiate the specific conditions
of the local border trading with the third-
country parties, while keeping to the
general rules of the European Community
and assuring a mutual treatment for the
citizens of the Union
The facilities provided by the border areas
are highlighted by the European Convention
for cross-border cooperation between
collectivities or territorial authorities6.
We illustrate, in this regard that "any nat
ional of a State party to the agreement,
which resides in the border area defined as
the cross-border area, has the right
of access to the labor market of the other
party or parties in the same capacity as their
citizens"7. Moreover, the frontier worker is
being granted the same professional
mobility at least inside the border area
as the worker who are citizens of the state
in which they are employed8.
It is essential to keep in mind that the
notion of border and the one of border
area9 in the way defined by Romanian
6
Adopted in Madrid on the 21st of May 1980
(effectual since the 22nd of December 1981)
Romania affirmed the Convention through Law no.
78/the 11th of May 1999.
7
ART. 1/A model of an interstate agreement
regarding the cross-border cooperation in perpetual
forming, information, employment and working
conditions/Frame-Convention
8
Idem/ART. 3
9 10
Art. 4/The Romanian Governments edict no. 105
on the 27th of June 2001, regarding the Romanian
state border:
21
law have a lot of things in common which
are highlighted by the definition of the
local trade point and the point intended for
simplified passage10s in which the legislator
shows that these points are represented by
any place organized and authorized by the
Romanian Government for border crossing
by the people in the border area, in a
simplified form, agreed upon through
conventions and agreements with the
neighboring states.
Characteristic for every cross-border
area is the fact that it is dominated by one
or more border poles.
The cross-border phenomenon expresses
the complexity of the actions which reflect
an enlargement of a nation or a civilization,
from an economical point of view. This is
why Romania is situated in the cross path
of the road, train, naval and aerial
communications in the western, northern
and eastern Europe towards Minor Asia,
Middle East, Peloponnese and north-eastern
Africa. This aspect confers a distinct
importance to the supervision and the
control of the border activities regarding the
commercial trade of merchandise and
passengers in proportion to the Romanian
border legislation.
The scientific notion of a state border
must include the following aspects: a
definition of the border; the way of
establishing the border, its boundary lines
and marking; the documents drawn up with
the neighboring states regarding the border
line and their contents; the way the state
stands when it comes to the bilateral border
legal regime; internal legislation concerning
the border legal regime.
Throughout time and depending on the
issuer interest, the theories regarding the
(1) The border area is created in order to ensure
the security and control of the border crossing.
(2) The border area includes the territory situated
as far as 30 km from the state border and the shore
of the Black Sea, towards the inside.
ART. 1, letter j)/The Romanian Governments
edict no. 105 on the 27th of June 2001, regarding
the Romanian state border
border have been numerous, but, in our
analysis, we will refer only to the
significant ones
First of all, we will allude to the
American border theory. In this case, the
border is a collective spiritual experience,
an ethnic and a religious one, lively
experienced due to a systematical
advancement to the west. This motion, this
continuous movement of the border, led to
the creation of America by shaping the
interests, institutions, communities,
cultures, and even peoples behavior. This
is why the American border is the typical
example of a free border, which creates
human typologies, social models and
national character. Frederick Jakon Turner,
in his The meaning of the border in
American history (1893) noted that The
distinctiveness of the American institutions
lie in the fact that they have been forced to
adapt themselves, beginning with the
economical and political conditions of the
border. Turners border model is fully
practical in the study of the western border
in the Modern Age. Therefore, this model
implies: development through perpetual
recursion; the affirmation or spatial
advancement of the American lifestyle, as a
reaction to the European model; the
Americanization of the agent, as he
advances. This American sociology has
discovered two fundamental particularities
of the border. First of all, the border led to
the forming of the American people and
second of all, it generated a high demand of
merchants who are capable to resume the
trade between territories.
Another border theory is the German
geopolitics, which, according to Friederich
Ratzel, represents the third geographic-
political characteristic of the state. As far as
the German mind-set goes, the border is a
product of the concentrical movement of
space adding around the Mihelpunkt (the
state centre), the most distant point from it
being exactly the border. The German theory
separates borders in: natural; political; good;
bad. Having these categories set, Friederich
22
Ratzel stated that, regarding the correct and
incorrect borders, a small state bears a bad
border more easily than a bigger one ()
and, the smaller the state, the less important
is its border. It is not the time to insist upon
these ideas, as they were only enumerated in
order to create a general image of the way
other states look at the border phenomenon.
One more theory about borders is the
French geopolitics. Here, we encounter
some particularities regarding the cognition
of the phenomenon, which came as a
reaction to the German dogma. This
geopolitics states that the natural and
artificial borders cannot be different, even
if the public international law stipulates
such delimitation. Also, there are no
absolutely good borders, but real ones that
confer certain advantages and
disadvantages to the states they demarcate.
To sum up, the French doctrine considers
that borders should be approached from
different points of view, as they are
geopolitical constructions with financial,
linguistic, military and political limits.
At the end of this short presentation of
certain geopolitical theories about borders,
it is mandatory to mention some names that
belong to the Romanian geopolitics
regarding borders. The constituent axel of
this school was called the nations
geopolitics. Over the time, Simion
Mehedinti (the geopolitics of the national
state), Ion Conea (over 50 years dedicated
to scientific researches regarding the
Romanian people and land) had a major
influence in this domain. Coneas theory
was against the one that considered the
natural borders as being political frontiers,
an idea that put the Carpathians in the
natural borders category for other states.
Nicolae Iorga and Gh. I. Bratianu carried
out a more complex analysis and affirmed
the existence of a certain security space,
without which a state could not exist, a
space which, in our case, is given by the
borders of the Great Romania, where the
same population coexists on an unique
territory, with an unique religion and
unique customs. What is more, Iorga is the
one who left us the theory of Romanians
cultural borders.
The analysis of the legal regime applied
by Romania inside the cross-border areas
whose foundation was imposed by the
international economical necessity is placed
in this geopolitical context of the perception
of the border notion.
2.3. Specific forms of manifestation of
non-conventional threats
a. Drug trafficking. Known originally
as transit countries, some of the states in the
region have turned gradually into drug
users, which has doubled not only the
amount of drugs brought from the
production areas, but also the number of
local structures and networks involved in
this kind of activities, aggravating the
organized crime phenomenon in the area.
The important financial resources, which
are now available for narcotrafic groups
and networks and also the potential of
illicit drug business from the development
area, have entailed to sustained actions of
penetration and corruption of all segments
of politico-economic and social life.
According to the World Report
regarding drugs, launched by the United
Nations Office on Drugs and Crime
(UNODC):
regarding the cannabis, Romania
follows the general trend of South-
Eastern Europe, decreasing the
traffic and consumption of cannabis;
in Romania, the quantity of seized
cocaine is less than 0.3% from the
global quantity, our country
enrolling in the general regional
trend of decreasing the trafficking
and consumption of this drug;
regarding heroine trafficking,
Romania is a transit state;
regarding the opium, Romania is
not on the upward trend of
consumption, as well as other
countries in the region like the
Republics of Albania, Belarus,
Croatia and Moldova.
23
This report does not include Romania
among the countries with high levels of
consumption or trafficking of this
substances.
b. Illegal migration and human
trafficking. Illegal migration is the
prerogative of a large international mafia
structures, mainly of Russian origin, which
take advantage of the lack of border
security, legislative gaps and corruption,
which is characteristic in most countries,
for using this as a transit area to Western
Europe. The main flows are the migrations
in search of a job, human trafficking and
the migrations justified in socio-economic
and political terms. In short term, given the
measures taken by European Union
countries to combat this phenomenon, it is
expected that illegal migration routes from
Asia (the Islamic Republics of Afghanistan,
Pakistan and Iran, the Republic of Iraq, the
Democratic Socialist Republic of Sri
Lanka, the People's Republic of
Bangladesh, the Republic of India, etc.) to
Western Europe, will support changes by
increasing the migration flows via the
former Soviet Union area.
From this perspective, Romania has an
important role in securing the eastern
border of NATO and since 2007, the border
of the European Union. According to the
Trafficking in Persons Report U.S. State
Department , Romania remains a source
country, used as destination and transit for
women, men and children trafficked for
sexual purposes and forced labor. The main
countries used as destination for trafficking
originating from Romania are in the
European Union area, the only exception
being Turkey. The report points the
increasing of trafficking for labor
exploitation phenomenon, 69% of
identified victims have ben trafficked for
the purpose.
c. Arm trafficking and strategic goods.
The component with the highest risk level
for security and stability in the region,
however, is arm trafficking and strategic
goods, which is out of the authorities
control, as a result of political and social
changes, that occurred in 1990, in the
countries of the region and the proliferation
of mafia-type groups. The perspective of
obtaining significant financial profits has
determined the development of criminal
organizations specialized in procurement
and conventional arms trade, together with
technologies, components and materials
needed for the manufacture of weapons of
mass destruction. An area particularly
vulnerable in this regard is the Transnistria;
the perpetuation of the disputes between
Tiraspol and Chisinau, and also Moscow's
refusal to withdraw weapons from the
region, according to the Istanbul Agreement
in 1999, has transformed the self-proclaimed
Dniester Republic into an attractive market
for terrorist groups and organized crime,
which can acquire weapons of any kind,
including missiles or radiological cargo. But
what is even worse, is the fact that
Transnistria is in the sight of islamic
fundamentalist groups like Hezbollah,
Muslim brothers and Mujahedeen-e-
Khalq, as a fertile ground for organizing
training camps, arms procurement and
involvement of local companies in
transporting islamist militants to hotspots in
the Middle East or North Caucasus.
d. Terrorism. Terrorism is one of the
most debated and controversial issues in the
last decades, the most visible manifestation
and the most disturbing of unconventional
actions regarding security, a true scourge of
the contemporary world. This real disease
of XXI century - phrase used by Prime
Minister of Russia, Vladimir Putin- will
accompany mankind on short and medium
term, always tending towards an ideal form,
violence organized and educated, led by
elites. The scourge of terrorism has
continued to affect the world also after the
11 September 2001 events, despite the
global war against it, war that has been held
with intensity and promising results in all
the regions.
The European continent is the space, the
experts consider that we are witnessing the
24
chronicity of the ethnic-separatist terrorism.
Targets affected are Spain, England, and
deeper Kosovo area.
The alarming increase of arm and drug
trafficking reveals the interference and the
interdependence between terrorism and
these activities, materialized in many cases
in financial resources for terrorist
organizations.
Another feature of the contemporary
terrorist phenomenon is assessed to be the
efforts focussing of the terrorist leaders for
creating a semi-permanent infrastructure. This
fact makes it even harder when we to talk
about the actions that have been taken by
governments on combating the phenomenon.
The terrorist actions are unpredictable,
they can take place anywhere and anytime,
and their effects are accounted casualties,
not only in what regards combatants, but
also regarding the civilian population.
Both terrorism and organized crime
(cross-border organized crime), are non-
conventional threats for the security of the
international community and they should be
addressed in a profound interaction.
It is estimated that by combining
organized crime with terrorism we obtain a
lethal product - also known as Policy
Crime- which aims to usurp political power.
The terrorist groups are generally highly
ideologicaly motivated for the cause -
considered sacred being capable of
extreme violence, in order to punish the
unbelievers. Organized crime seeks,
primarily, to occupy a larger segment of the
illicit or licit markets for goods or services,
without beeing animated in promoting in
any way their own ideology.
The techniques used are common-
murder, kidnapping, hostage-taking,
extortion, robberies of banks- and the
intended purpose is also common: obtaining
funds in order to finance the operations.
Even if some call them political purposes,
and others, economic, their common
denominator, is the desire of getting the
funds faster in order to allow ensuring the
fluency of their actions. Because they are
formed in quite small groups, the terrorist
organizations, avoid the identification of
their members by the authorities, often
resorting to criminal groups in order to
obtain arms, ammunition or material
resources or they use themselves their own
methods of criminal groups (human
trafficking, smugglled merchandise,
weapons, radioactive substances).
Therefore, the material connection between
organized crime and terrorism it is obvious, a
symbiotic relationship in which each side
becomes in certain circumstances, a parasite.
The international community, largely
believes, that the cellular structure of the
network, the destructive effects and
international ramifications, make terrorism
25
a form of cross-border organized crime.
France is the leader of this opinion,
insisting on the need to differentiate
between terrorism and national
independence movement and removal of
foreign occupation. Independent of the
constant confrontation of ideas, there is a
definite international consensus in
condemning the criminal and terrorist acts,
considered to be, regardless of shape or
appearance, attempts adress to both national
and international security and also serious
injury to the rights and freedoms of the
worlds citizens. The two phenomena can
be prevented and countered through a close
international cooperation.
 THE ACCOMMODATION OF THE INDIVIDUAL INTO AN
ORGANIZATION THROUGHOUT THE PROCESS OF
SOCIALIZATION

Professor PhD. TRFAN PRUN

PhD. LIVIU IOAN TUT

The present article analyses the most important aspects referring to the way in which
the new employees are helped to accommodate at the place of work. The finale of this
process of accommodation aims the organizational commitment, analyzed in this article
view through the aid of the most vital methods of achieving it.
Keywords: psychological processes, social process, sociology,
organizational commitment, organization
Introduction only ones but they express the most
The organizational environment is an important aspects of the accommodation.
environment dedicated to the group of work CIPD, 2007, defines the wellness into
in which some individuals the second are an organization as the creation of an
led, supervised by other individuals the environment which is wanted to promote a
managers with the aim of accomplishing state of content, permitting the employees
certain objectives. At first sight off aspects are to develop and achieve the highest potential
quite simple. The managers ask their seconds for their own good and the one of their
to execute a certain activity, laying down the organization. Defined as such, the state of
logistics they need, the plans of action, an wellness is an indicator of the capability
internal statute, personal gains, a reward and and of the organizational efficiency. An
punishment system wanted to develop a interesting analysis of the state of wellness
commitment as well as the organizations is been done by Kurpers11. Organizations
demands regarding the way the work is done are specific life environments in which
(demands with a view to behavior and some intersubjective communities are
interaction with other people, a certain developed and which they sustain and
attitude towards the institution, an attachment transform all that is being done into an
to the ideas and values of the organization). organization. The wellness is the final step,
The organizations demands aim the the result of different relationships which
way in which the person succeeds to appear at all levels of life into an
become a active member, capable of organization: individual, group,
promoting the philosophy of the institution organizational, all tied together under one
and to identify himself with its needs and saying: that the individual effectively lives
aspirations. This complex process debutates in an organization and that he doesnt think
with the accommodation of the individuals only at the assignments which are being
which means the complex process distributed to him and at the roles that an
throughout which an employee succeeds to organization reserves him. This situation
become a wheel in the organizational gear,
situation which allows him to live the 11
wellness and to promote the organizational Kupers, W., Phenomenology and Integral
Pheno-Practice of Embodied Well-Be(com)ing in
trust. The two most important final aspects Organizations, Culture and organization, 11(3),
which have been said above are not the 2005.
26
obliges the individual at a concrete
psychological living, based on their own
system of values which is in fact his base of
future accommodation and socialization.
This intense experience is being translated
by the individual into positive terms
through the state of wellness we agree with
Danna and Griffin, 1999 who defines the
wellness through satisfaction, an easy
identifiable and measurable indicator, since
people have the psychological capacity
through which they easily recognize the
state of satisfaction. The authors, through
an integrating model, view the
organizational life dyad the every day life
as a whole and the satisfaction in life and
the satisfaction at the place of work as tow
indicators tied together. The answer at the
next three questions could help you to
understand better this unity:
Can you indentify the most important
satisfactions you developed in your
every day life, the social life?
Can you indentify the most important
satisfactions you developed into your
organizational life?
Do you often reflect at your profound
connection between the satisfaction in
every day life and organizational
satisfaction. Could you indentify what
kind of satisfaction is the cause and
what kind of satisfaction is the effect?
Could the cause be changed into the
effect and vice versa? Could this aspect
mean that the determinations are
bidirectional, in a way that the every
day satisfaction could influence the
organizational one and that the
organizational satisfaction influence
the every day life satisfaction?
This analysis shows an important idea,
that the psychological and social processes
at an organizational level are in fact the
every day life translated and transposed by
a person at an organizational level.
The long process of accommodation of
an individual is considered to be efficient
only if it gives back satisfaction and
implicitly, that state of well. The direct
27
connection between the tow variables is
easily demonstrated by specialists. An
important indicator, organizational in its
essence, respectively the level of
formalization and the nature of hierarchy
into an organization has an important role in
this equation. The organizational order
induces the individual certain limits in his
free manifestation of his own options
regarding the accomplishment of the
satisfaction. Many authors (Cooper,
ODriscoll, Sparks, 2002), introduce the
term of perception of the control, as a way of
keeping the domination over the events that
have an impact on your own person as well
as the diagnose of a certain predictability
and stability of persons and institutions
surrounding us, as methods of re-balancing
of the limitative hierarchy existing at a
certain time into an organization.
The purpose of an organization is not
the sate of well of an individual, but diverse
managerial systems among diverse
organizational environments observe that
the state of well of its employee is direct
with the capability of the organization and
with its efficiency. At this point, this
individual desideratum the wellness -
becomes a pattern of work and is sustained
through the organizations management.
For example, a great attention is been given
to the balance between the place of work
and the private life (respecting private
interests of the employees, assuring a real
support beyond the borders of the
organization) can easily lead at the growth
of the organizational commitment, at the
growth of the moral an individual has and
implicitly at the growth of his productivity,
aspect which is both chased and wanted
into an organization.
The idea we want to promote is that the
demands of an organization do not have to
be as fundamented as to limit the liberty of
movement of an individual, but on the
contrary, it has to lead at the conservation
of this liberty and its orientation through
creativity, innovation and commitment.
The process through which the
organization and some people managers,
bosses, directors try to materialize this
demands is called organizational
socialization. Organizational socialization
is the particular process of socialization,
seen as a social and psychological process
of assimilating and transmitting attitudes,
directives, specific values to a group, by a
person with regard to his integration in that
specific group. We also understand that
socialization is a process of communication
through which the individual is been being
brought to his attention that he can integrate
into a group, that way through which he can
accomplish this, what the group demands
from him and how he can be rewarded. The
subjects of debate around socialization have
been numerous and they have brought to
our attention the natural tendency (instinct)
of a human to live among other people for
obtaining a psychological comfort,
necessary to a human beings existence.
If the ration of the socialization, seen in
general, is that of obtaining a psychological
comfort, the ration of the organizational
socialization is the obtaining of financial
advantages (firstly the wage) and of a
certain statute. This is the reason that
recompensates directly the effort of person.
We cannot ignore the existence of a
psychological comfort associated with this
or even the possibility of unwinding certain
interpersonal projects, but they are all
indirect. We feel that the process of
organizational socialization has to be
viewed in this way. The organization does
not work alone, directly, but through the aid
of its agents the managers for
accomplishing this process. As the bosses
are the ones that lead this process they
have to have abilities which to allow them
to socialize as efficiently as they can with
their employees. From a managers
perspective the answers to some questions
are extremely important:
How can a boss create a real
assimilation process of his individuals
as active members for an entire group
of work and for an organization?
28
What organizational socialization mean
and what is its purpose?
What are the key points for an efficient
organization and of what means does a
boss dispose foe accomplishing it?
What qualities does a boss need for
leading an efficient organization?
1. What is socialization?
Socialization is a concept which has an
ambiguous place into sociology, main for
some, secondary for other. In psycho-
sociology it means the process through which
individuals learn the manners of acting and
thinking always related to their environment,
they internalizes them, integrating into their
own personalities and becoming a member of
a certain group, among which it takes a
certain place and statute. Socialization is in
the same time learning, stipulation but also
cultural adaptation, internalization and
incorporation. The new approaches are trying
to excel certain aspects and consider that
socialization is a transaction between defined
systems through rules, values and individuals
who develop their own strategies. (Gilles
Ferreol Sociology Dictionary).
Socialization does not have to be
approached in the broad context al the
learning processes. Both social
development and biological development
are natural processes of the development of
an individual. As we grow, socially
speaking, we learn certain abilities for
leaving into a society.
When individuals become adults and
start to gain their own salary, they develop
unique social abilities which allow them to
adapt in different systems of organization.
For example, people learn the general
directives of organizing, the values and
attitudes proper to their work. With these
aspects already learned they can move to
one organization to another with a
minimum of differences. In fact, these
become part of a second culture the
organizations culture.
1.1. The definition of socialization.
Keeping in mind what we have stated
above, we can easily defy socialization as
being the process through which people
learn the necessary roles and directives for
accomplishing their duties into a group or
organization. Part of this process can
intervene prior to the beginning of entering
a group or an organization. Also,
socialization is a continuous process arrear
the permanent interaction with other
people. But, even so, there are some
motives to believe that socialization is more
powerful than we started to think, during
certain transition periods of affiliation, as it
is with an individual who is promoted or
allotted into a group of work but especially
when someone joins a new organization.
From this point of view, we shall
concentrate on the process of organizational
socialization, important for all of us.
1.2. The reasons of socialization. The
reasons of socialization or the reasons of
the process of the socialization bear in mind
the following aspects: the commitment of
the individual among a certain group of
people family, relatives, neighborhood,
playground etc. the internalization of some
values specific to some groups or
innovations in a group (own creations).
Finally, the final product al socialization
organizationally speaking can be seen as a
psychological contract between the
employer who enters into an organization
and organization itself, through the aid of
its main subjects. For this contract to be
well accomplished, is sometimes need for
people to make changes in their behavior.
These changes are induced by the process
of socialization.
Organizational socialization. Organiza-
tional commitment
Socialization, seen as a process through
which the person integrates itself among a
group or organization, borrowing its values
and directive (customs, rules of life,
conduct, aims) is closely linked to
sociability seen as the ability, the capacity
of a person to integrate himself into a
group. From this point of view, each of us
develops a limit of our socialization which
allows our integration and formation of a
29
personal identity. We can easily conclude:
socialization is on one side, a process of
social learning (social uncomplainingness)
and on the other side, a process of
continuous change. When individuals start
to gain their own wage, they already have
an experience of socialization which allows
them to adapt at different models of
organization. This knowledge allow them to
cross into a new organization without
having many differences to learn.
It has been said that the modern human
being if a human of many organizations,
since a great part of his life is spent into
different organizations. Knowing the main
terms, the individual only needs to learn
and accept the culture specific to a certain
organization, the specific praxis and values
which singularizes the organization wanted
by the individual. Seen as such, the
socialization is the process through which
the individual achieves the necessary
knowledge and abilities needed into an
organization.
People bring into an organization
abilities, behavior, attitudes and values. The
aim of an organization bears in mind
certain aspects such as: individual
commitment, internalization of some
organizational values, the future promotion
of organizational values etc. The final
product can be seen, as we have already
said, as a contract. For this contract to be
accomplished are necessary, as a general
rule, changes into ones behavior. The
individual, in his turn, has the capacity to
produce changes at an organizational level
through the restructuring of the values and
principles.
The easiness of the individual is greater
as the advantages are better. This a priori
availability of an individual to conform
oneself to values is greater in certain
moments: when one is promoted, signed to a
group of work or at the beginning of his job.
These moments, which practically show a
new beginning, have to be speculated by
managers. What helps a person throughout
the process of socialization is also his
preemptive socialization. What does
preemptive socialization mean? At bottom, it
says that the individual protects his interest
towards a group, even if he is not yet part of
that group12.
R. Merton clearly says that individuals
react to situations and learn for their future
behavior, searching positions not occupied
yet. In this way, they will learn about the
positions they want to occupy, about their
rights and their obligations before their
effective occupation. This imagine, already
formed is the base of launching into the
new process of socialization. The multitude
of information depends on the
attractiveness of the new position and on
how much they want to abandon their
present position.
We can say that one has an imagine well
shaped regarding their position at which they
aspire, they understand a groups demands
and is, generally, in accordance with them
and accepts to learn new rules and modulate
his behavior dependent on these demands.
There are organizations which differ in the
level of encouragement of a preemptive
socialization before a member is integrated
into a group. Many of them draw the
attention of the employee in order to forget
all that he has heard about the organization
until the moment of employment and to
apprehend only what he is told from that
moment on, since this is the only truth at all.
The managers of an organization do this
since not every preemptive socialization is
correct and useful to a new employee. Many
research have shown that people who enter
into an organization have many wrong
expectations and, often, unrealistic about
what they are about to do there.
In conclusion, we can easily say that
organizational socialization is: The process
through which people learn the praxis and
roles necessary for accomplishing their
duties assigned to them by a group of work
or by the organization in general.
12
Ungureanu Ion, Paradigme ale cunoaterii
societii, Ed. Humanitas, Bucureti, 1990
30
Synthesis:
each individual has a limit of
organizational socialization
the ration of the socialization represents
financial advantages and statute
through organizational socialization
the individual accepts, a priori, the
idea of a change in his behavior
the organizational socialization, even if a
continuous process, is more efficient in
certain moments of the occupational life
the organizational socialization starts
with the preemptive socialization
certain organizations do not support
preemptive socialization and tend to
clearly say this to the new employees.
often, preemptive socialization is not
accurate and useful for a new member
since through it one can draw certain
incorrect expectations and often
unrealistic about their new position
and role.
The stated aim of socialization is in fact
the obtaining of the organizational
commitment of the new member. It can be
said that this aspect is accomplished pretty
easily as long as he consents to modulate
his behavior according to the new
requirements. Things are not always this
way. The process of socialization hustle
against a few dilemmas since from the
beginning.
The dilemmas of organizational
socialization
Individuals enter an organization with
an unique set of aptitudes, interests and
attitudes. Even if, they declare that they
will do everything to answer to the new
demands the new members want in fact to
maintain their identity and their self respect
by maintaining their unique qualities and
the development of other, based on the
preexistent ones. On the other side, they are
absorbed by the learning of all inside
aspects of the organization, of all artifices
and by the usage of all these unique
qualities into a permissive manner, allowed
by their colleagues and bosses. Also, even
the agents of the organization are affected
by these problems. On one side, the new
members need a certain encouragement for
supporting the praxis and the demands
referring to the new role imposed by the
organization. On the other side, the
complete loyalty towards the existing
praxis and towards the demands of the role,
will make the organization react very
strictly and often will make it incapable to
adapt to a continuous a-going environment.
For high formal organizations thing tend
to be more complicated. The multitude of
rules and regulations, commands, powerful
bureaucracy will not allow the organization
to have a great tolerance. In this case,
creative and cutting-edge behavior of the
new members are crushed and subordinated
to the existent praxis and regulations. The
dilemmas of the socialization are tied to
tow simple questions:
How can a person react to the
socialization practices?
How can organizations socialize their
members without challenge bedevils or
crushing they individuality?
The individual, without having
information about socialization practices of
an organization and assuming that these
practices are at their convenience and he
does not want to leave from various
motives (the wage, the power of the
position etc) will eventually compromise,
will be disappointed and slowly will lose
his interest. The organizations will adapt
their practices of socialization to their own
needs and will ignore, despite all
allegations, any attempt of manifesting
individuality. But they do not gain much.
They will eventually have, from the new
comers a rigid uncomplainingness, a
superficial one which will not help at all the
organization. From this point of view the
process of socialization is extremely
important and deserves the entire attention
of the organization and its managers and
they have to find that practice indented to
assure the efficiency of the institution and
independence of the individual. Befre
discussing about the phases of the
31
socialization we will try to explain what
organizational commitment is, what is its
pattern and importance.
Organizational commitment. As an
overview, commitment mirrors the strength
of a connection between two persons,
institutions etc. It is very important to people
because the individual does not remain
passive in relation to everything that happens
around him, but he stands up in an active
manner that allows him to have an attitude, a
position based on strong beliefs. Attachment
is put forth through an attitude to all intents
and purposes. Organizational commitment
represents an attitude which reflects the
strength of the connection between an
employee and an organization. This
connection has implications related to the
degree in which someone tends to remain in
an organization. Many employees lose the
attachment to the organization especially
through rough periods: when the activity is
reduced or restructured, dismissals.
Many people take commitment for
loyalty. The latter would represent the
complete faith and devotion to the
organization or the unconditional
promotion of the organizations best
interests. Loyalty and commitment point to
a certain stability of the personnel. The lack
of these qualities leads to the abandonment
of the organization, while those who do not
leave the organization are inclined to
minimal effort, stealing, absenteeism or
social truancy. Researches made upon
loyalty show that the most important
remedies are: encouraging the employees to
get involved in making decisions,
introducing the face to face
communication, giving rewards, training
and improving the personnel, reducing the
differences of status, career promotions.
Researchers John Meyer and Natalie
Allen, 199713, who studied the role of the
organizational commitment, consider that
13
Allen, N.J., Meyer, J.P., Commitment at the
Workplace: Theory, Research and Application,
htpp://books.google.com/books?ie=UTF
organizational commitment does not
represent any kind of connection, but that
type of psychological connection
established between employee and the
organization that he is part of. That is
because an individual can develop
commitments related to different
organizational realities: work group,
profession, management system, union,
value system etc. These different
commitments were put together as
commitment at workplace and it is
translated by the connection between the
employee and the organization in which he
actually works.
There are many various researches
related to the organizational commitment.
Reichers, 1985, apud Avram and Cooper,
200814 consider that there are three
dominant ways to define the organizational
commitment:
commitment is a function of rewards
and costs associated with the
individuals departure from the
organization (Becker, 1960, apud Allen
and Meyer, 1991);
organizational commitment appears as
a connection between the individual
and his behavioral acts (Salancick,
1977, apud. Allen and Meyer, 1991)
organizational commitment reflect the
employees kindness to work for the
organization and accept its goals
(Mowday, Steers, Porter, 1979).
Basic models of organizational
commitment
The diversity in the process of defining
the organizational commitment is reflected
in the promotion of some models. Before
analyzing the three important
organizational commitments, we present
several models in order to understand
specialists concerns regarding the
crystallization of this research area.
Salancick Model
Salancick, partisan of the behavioral
approach, considers that commitment is
14
Avram E., Cooper, G.,(coord.) op. cit. 2008
32
related to individual behavioral acts and it
appears as a consequence of the action of
four conditions:
interpretation (it refers to the existence
of a logical and transparent relationship
between the current behavior and the
one that is to be manifested);
revocability (it is about the reversibility
of an action, otherwise said, the
possibility to change the initial course
of an action);
volition (shows the fact that an engaged
behavior is determined by a deliberate
choice);
publicity (it concentrates on the degree
of knowledge the others have about an
action and its importance for the person
who takes it).
Mowdays, Steerss and Porters
model15
This model is based upon a
questionnaire OCQ (Organizational
Commitment Questionnaire) whose
characteristics proved to be viable. The
definition they gave to the organizational
commitment was the following: ones
relative power to identify himself/herself
with the organization and the power to be
involved in such an organization. In their
opinion, there are three dimensions of this
engagement: a strong belief in the goals and
values of the organization; the consent to
make a considerable effort to the benefit of
the organization; the strong desire to remain
a member within the organization. Being
analyzed in this way, the commitment
assumes the existence of an active
relationship with the organization, and that
because the employees are ready to
participate to its welfare.
The Meyer-Allen model16
One of the most well regarded models in
15
Mowday, R., Steers, R., Porter, L., The
measurement of Organizational Commitment, Journal
of Vocational Behaviour, vol. 14, nr. 2, 1979.
16
Meyer, J., Allen, N., A Three Component
conceptualization of Organizational Commitment,
Human resource Management Review, vol. 1, nr.
1, 1991.
the domain and a result of the analysis of the
existing literature, this model is based upon
the idea that the organizational commitment
is understood as an emotional orientation
towards the organization, as recognition of
the costs that are associated with leaving the
organization or as a moral obligation of
remaining inside the organization. The
common aspects of the previous definitions
and this model consist in the fact that the
commitment is a psychological state which
characterizes the relationship the individual
has with the organization. It also influences
the individuals decision to keep working for
the organization. Due to this logic, the
authors have identified three major types of
commitment:
The emotional or informal
commitment is the type of commitment
based upon the persons emotional
identification and involvement inside an
organization. An emotional commitment
determines the employee to remain within
the organization just because he/she wants
to. Even if this attachment cannot be
explained in a rational manner, the emotion
is so powerful, that it creates an extremely
strong bond. Those who work with a lot of
passion, who love what they do, can show
such a commitment. The authors consider
that there is a chance the employees would
develop an emotional commitment for the
organization when they feel they are treated
fairly, that their individual performances
count and when they are competent and
have success in what they do.
The continuous or habitual commitment
it is about the commitment which refers to
the costs that are involved with leaving the
organization. Those who have a high level of
continuous commitment remain in the
organization only because they somehow
have to. Generally, the organizations are
trying to stimulate the employees with fidelity
bonuses, which they would lose if they decide
to leave. This is not a durable commitment,
but rather is about the benefits which are at
stake, if the individual decides to leave the
organization. It is more of a calculated,
33
rationalized commitment, through the costs
and benefits in the absence of an affect. Some
authors (McGee and Ford in 1987, then
Avram and Cooper in 2008) developed two
different sub-scales of the continuous
commitment. One of them is about the
sacrifices that come with leaving the
organization, while the other refers to the
employment options which an individual has.
The normative or formal commitment
it is the type of commitment which consists
of a moral obligation towards the
organization. Those employees who show
such a commitment, remain in the
organization just because they think they
have to do it. This feeling of moral duty
comes from the family and cultural
experiences that existed before the
individual entered the organization and are
maintained even after he/she becomes a
member of the organization. This feeling
appears when the individual internalizes the
normative pressures he/she was exposed to
before and after entering the organization.
The causes of these three types of
commitment are different. The challenging
work, full of professional satisfactions is,
by far, the best argument for the emotional
commitment. One of the traditional
mistakes that an organization makes is that
it puts the new employees to routine work
in order to not give them the chance to
stumble. This can affect the emotional
commitment. Having a clear role and
meeting the expectations (as it is the case of
realistic presentations), can amplify ones
emotional commitment.
The main consequence of the emotional
commitment is the reducing of the intentions
to leave the organization as well as a high
level of external professional mobility (the
external personnel fluctuation). Those
organizations which have problems with the
personnel in key spots, should study closely
the tactics of commitment development.
This becomes a serious problem when the
personnel fluctuation affects an
organizations efficiency.
Is there a negative force of the
commitment? High levels of commitment
towards the organization can interfere with
the family life. Also, those high levels can
generate illegal behaviors when an
individual works too hard to promote the
interests of the organization.
Sythesis
the organizational commitment refers
to the strong bond between the
employee and the organization, under
the form of an attitude;
the commitment can be emotional,
continuous or normative;
there is a certain link between
commitment and loyalty;
the main consequence of the
commitment is professional stability;
there can exist a negative side of a high
commitment: troubles in the family life,
the lack of ethic due to the desire to
promote the interest of the
organization;
we can talk about an intimate
commitment the intimate recognition
of the bond between the individual and
the organization and about a relational
commitment, expressed by the verbal
adherence to the organizational
commitment.

Bibliography
Allen, N.J., Meyer, J.P., Commitment at the Workplace: Theory, Research and
Application, htpp://books.google.com/books?ie=UTF
Kupers, W., Phenomenology and Integral Pheno-Practice of Embodied Well-Be(com)ing
in Organizations, Culture and organization, 11(3), 2005.
Meyer, J., Allen, N., A Three Component conceptualization of Organizational
Commitment, Human resource Management Review, vol. 1, nr. 1, 1991.

34
 THE CONCEPT OF PERSONAL DATA PROTECTION
FROM THE PERSPECTIVE OF THE PRM TREATY

Lecturer PhD. MARIUS PANTEA

Assistant PhD. SERGIU ADRIAN VASILE
Police Faculty - A.I. Cuza Police Academy

The European Union Council activity is performed in accordance with the enforced
legal requirements of personal data protection. The Community legal requirements
regarding personal data protection apply also to the community institutions. These
requirements refer to all the services of the Council which use information that refers
only to the activities partially or entirely under the jurisdiction of the community law.
The Prm Treaty is an initiative of seven European Member States which, having
decided on their own common action for improving cooperation in combating terrorism
and serious cross-border crime, are now attempting to incorporate it into EU law. The
issue of the personal data protection in the context of the Prm Treaty is a phenomenon
studied both at the Union level as well as at the national governments level. Romania
supports the new concept regarding the personal data protection which means to
implement a very effective instrument to fight and prevent any crimes in this area.
Keywords: personal data protection, Prm Treaty, security and justice, data protection
authorities, information, Schengen Information System (SIS), surveillance,
assistance, cooperation, Data Protection Officer.
The actual perception and the appropriate months ago is questionable today. It seems
response to the existing or emerging threats to that the motivation that characterizes the
security of personal data is the aim of this power relations is no longer represented by
research which contains a detailed study of the theories meant to achieve geo-strategic
the key coordinates among which lays the advantages, but it provides resources and
need to protect this key area. This is a sine pathways towards them.
qua non requirement to achieve a balance in After more than a decade since bipolarity
the fight against the attempts of the 21st has been deconstructed, we began to think
century and to build a stronger European about the future of the security and although
Community. Social progress and economic we try to imagine all sorts of equations, things
prosperity without the protection of individual could be easier. After all, it is possible that the
privacy will not exist and the world is main actors in the world return to traditional
becoming more and more aware of this. processes of using solid sources of power,
As it is known, the future world should thus neglecting the old international
be a projection of the present. Certainly, in requirements and promoting their interests.
the next years, the trends that are evident After joining the European Union since
now, but left aside, will grow, turning into in January 1st, 2007, Romania, in order to
direct threats or, with the support of all become part of the area of freedom,
international actors, will be diminished. security and justice, must implement the
Everything depends on how we understand Community policies in order to achieve
and we can prepare this for the future. We adequate security of its borders in
live in a world of profound change in which accordance with Schengen standards.
many issues are unsolved and many others Also, in order to meet the EU requirements
become evident. What seemed certain a few for accession to the Schengen area, Romania
35
has adopted a series of strategic documents
and updated the Schengen Action Plan, a
programmatic document that contains
measures and lines of actions that the
responsible authorities and institutions will
put into practice to implement the community
acquis and the conditions for accession.
Protection of personal data is a new
field in the Romanian legislation. It
represents, in a generic way, the
individual's right to defend those
characteristics that lead to its identification
and correlative obligation of the state to
adopt appropriate measures to ensure an
effective protection.
Personal data is that information which
can be directly or indirectly related to an
identified or identifiable person, for
example the name, surname, identity
number, address, phone, image, etc.
Personal data - any data about an
identified or identifiable person may
include names, date of birth, photographs,
e-mail address or other details such as
identity number. The processing of such
data needs to be justified by reference to a
specific purpose. (to carry out a contract or
meet another legal obligation) or by the
consent of the data subject. The data
processed must be up to date and not
excessive for the purpose of processing.
The purpose of processing must be
determined in advance of collection. Unless
a change of purpose is explicitly authorized
by internal rules, the purpose of processing
may not be altered subsequently.
Considering the need to protect and
obey the fundamental right to intimate and
private life, personal data protection is a
particularly important area, and for this
reason the topics are discussed in different
chapters of the Convention for
Implementing the Schengen Agreement.
For this purpose, in Romania was set up
a central authority with competencies of
control, The National Supervisory Authority
for Personal Data Processing17. This
17
Law no. 102/2005 on setting up the National
Surveillance Authority for Processing Personal
Information data;
36
authority fulfills its tasks18 independent
from any public or private entity. The
national legislation in this area is reflected
in the acquis of the European legal
framework19 which governs personal data
protection legislation at EU level.
The fundamental right to intimate and
private life is guaranteed by:
The Treaty on European Union (Tue),
Article 6;
EU Charter of Fundamental Rights,
December 7th, 2000;
European Convention for the Protection
of Human Rights and Fundamental
Freedoms (ECHR), Article 8.
European Personal Data Protection Day
is celebrated on January 28th, 2010 by
Member - States of the European Council. On
this occasion we celebrate 29 years from the
adoption of the Convention no. 108 regarding
the Protection of Individuals related to
automatic processing of personal data.
The independent national data
protection authorities have an important
role in ensuring that personal data
protection principles and rights are
observed. The National Supervisory
Authority for Personal Data Processing
underlines the fact that it is important for
everyone of us to be aware of the rights
stipulated in the Law no. 677/2001 on the
protection of individuals with regard
personal data processing and the free
movement of such data.
Public or private sector operators are
obliged to observe personal data protection
rules20:
18
Law no. 677/2001 on the protection of
individuals with regard to the protection of the
personal data processing and the free movement of
these data;
19
Council Directive 95/46/EC of the European
Parliament and the European Council from
October 24,1995 on the protection of individuals
with regard to the protection of the personal data
processing and the free movement of these data;
20
Law no. 238 from June 10, 2009 on regulating
the processing of personal data by the
structures/units of the Ministry of Administration
and Interior while performing the activities of
 The obligation to inform
individuals about the personal data
collected and used;
The obligation to respect the right
of access, intervention and refusal
of each individual to his personal
data processing;
The obligation to ensure
confidentiality and security of
personal data used;
the obligation to notify the national
supervisory authority.
The tasks of the National Supervisory
Authority for Personal Data Processing21
are similar to those of any institution with
control competencies, that is to investigate
the processing of personal data according to
the Law no. 677/2001 and to give sanctions
if the operators did not observe the legal
requirements, following allegations or
complaints filled by persons aggrieved in
their rights.
The objective of the community acquis
concerning the processing of personal data
guarantees and protects the fundamental
rights and freedoms of individuals, in
particular the right to intimate, family and
private life.
Within The Hague Programme, the
European Council expressed its belief that
it is required an innovative concept for
cross-border exchange of data regarding
criminality, in order to strengthen the area
of freedom, security and justice in the
European Union. Thus, it has been adopted
the principle of availability, which is
translated into practice by establishing a
information network (objective achieved in
January 1st, 2008). The goal is that the law
enforcement agencies in each Member
State may access the necessary information
from any other state to fulfill their duties.
The Treaty of Prm on enhancing cross-
border cooperation, especially in
combating terrorism, cross-border crime
preventing, investigating and combating crimes as
well as maintaining public order;
21
Decision no. 2 from April 2, 2009 on
modifying and amending the Regulation of setting
up and functioning of the National Authority for
Surveillance of the Personal Data Processing;
37
and illegal migration, signed on May 27th,
2005 by Germany, Austria, Belgium,
Holland, France, Luxembourg and Spain is
an important step in this direction. It has
been designed to intensify border police
cooperation, especially in the fight against
terrorism, cross-border crime and illegal
migration using data interchange.
The Treaty aims at increasing
cooperation between the signatory States in
fighting terrorism, cross-border crime and
illegal migration through the exchange of
data regarding genetic features (DNA),
fingerprints, vehicle registrations and other
personal data. The Treaty also provides the
setting up of joint patrols and other forms
of assistance (security attendants on
aircrafts, joint support for large-scale
events, etc.). The Prm Treaty is according
to Romania, a step forward to improve
practical cooperation between police forces
of EU member states. It is vital that the
police and security forces be provided with
practical tools to exchange information and
data quickly and effectively.
The Prm Treaty is a treaty of
international law and although it has been
adopted outside the European Union, it has
close connections with the European Union
in terms of content. The German initiative
to integrate the Prm Treaty into the legal
framework of the European Union was
appreciated at the informal meeting of JHA
Council, held in Dresden on 15-16 January
2007, where it has been reached an
agreement on implementing the essential
elements of the Prm through JHA Council
decision from 15 February 200722.
If the information in the '50s was seen
as a necessary evil (paper dragon), a
bureaucratic requirement, the opinion
regarding information has changed over
time, gradually moving from supporting the
general goals (during 1960-1970), to
supporting the management control (period
1970-1980), now becoming an important
strategic resource to ensure the survival of
22
Council meeting 2781, Justice and Home
Affairs, Brussels, February 15, 2007, 5922/07,
(press release);
the social role23, a crucial element of
development, called the oil of the 21st
century24.
Due to its importance, information has
become a resource as valuable as human,
material or financial resources. The setting
up and the management of an information
system needed for a coherent and
successful activity have become as
important as production and distribution.
Mastering the necessary and useful
information in the decision making process
means, actually the selection and use of
data from internal management and
secondly the ability to compare them with
those from the competitive environment in
order to highlight what has a long term and
strategic nature and what is not essential.
Managing this resource, called
information is a primary concern for the
modern communities. Thus it has appeared
in the organizational structure of the
institutions specialized departments for
collecting, processing and disseminating
information. The purpose of the Prm
Decision is to intensify and accelerate the
exchange of information between law
enforcement authorities. This objective is
achieved by ensuring the possibility of
comparing a individual DNA profile with
another one found in the automated
databases of the Member States.
Connections between these personal data
can be made through the national contact
points and that will be used in the fight
against terrorism. It can also be exchanged
data on fingerprints and vehicle
registration. The principle of availability
included in the Hague Programme adopted
in November 2004, stipulated that ... the
information exchange should be governed
by the conditions ... established under the
principle of availability ... in order to allow
23
Laudon, KC, Laudon, JP, Management
Information System. A Contemporary Perspective,
Second Edition, Macmillan Publishing Company,
New York, 1991;
24
Stoica, I., Information and Culture, Technical
Publishing House, Bucharest, 1997, p. 12;
38
an officer from a Member State to obtain
information from another Member State25.
Romania adopted26 the Prm Treaty which
entered into force on March the 3rd, 2009. In
this respect, the next priority for Romania is
the issuance of the Council's decision to fully
implement the Schengen acquis.
On January 25th, 2008, at the meeting
of the Council for Justice and Home Affairs
in Slovenia, through the Joint Declaration
of preparation for accession to the
Schengen Area, Romania and Bulgaria have
taken the responsibility that the deadline for
accession to the Schengen area should be
March 2011.
Every day, the European Union
processes personal information. The
recruitment activities, personnel
assessment, medical records on the health
status, establishing time-management and
video surveillance systems are just a few
examples. Although in most cases the
personal information stored is used only for
legitimate purposes, without any
consequences, there are risks.
If that information is inaccurate, outdated
or disclosed to the wrong person, the
damage can be quite serious. A professional
contract may be refused in an unfair way,
you can be confused with someone else and
you may be denied access to a building, you
can be blamed for unauthorized disclosure of
information or you can even become a
victim of identity theft.
Therefore all staff has to be aware of the
rights and obligations regarding data
protection. In addition, the general public
may also be informed if it gives personal
information to the community institutions
and bodies.
25
Presidency Conclusions, Brussels, 4-5
November 2004, Annex 1, 14292/1/04 REV;
26
Law no. 146/2008 for Romania's accession to
the Treaty between Belgium, Germany, Spain,
French Republic, Grand Duchy of Luxembourg,
the Netherlands and Austria on strengthening
cross-border cooperation, particularly in combating
terrorism, cross-border crime and illegal migration,
signed in Prm on May 27, 2005;
 European Data Protection Authority is
an independent authority with powers only
on the data processed by the Community
institutions and bodies. It does not have
national jurisdiction and therefore has no
oversight powers regarding the processing
of personal data by national authorities or
by private companies.
The overall objective of the European
Data Protection Authority is to ensure that
the Community institutions and bodies
respect the right to privacy when processing
personal data or develop new policies. The
three main areas of activity are listed below:
1. Surveillance. Monitoring the
processing of personal data in the
Community institutions and bodies.
European Data Protection Authority
performs this activity in cooperation with
those responsible for data protection in each
Community institution or body. Hearing
and investigating complaints made by
individuals whose data are processed by the
European institutions and bodies, including
complaints made by staff members of the
European Union administration. Conduct
investigations at the initiative of the
European Data Protection Authority or
following a complaint.
2. Assistance. Counseling the
Community institutions and bodies on all
matters regarding the protection of personal
data. European Data Protection Authority
issues notices on legislative proposals
regarding the protection of personal data.
Monitoring the new technological
developments that may affect data
protection. Interference in cases judged by
the Court of Justice.
3. Cooperation. Cooperation with
national data protection authorities, to
promote consistent data protection within
Europe. Cooperation with supervisory
bodies established in the context of a large-
scale database such as EURODAC27 - a
27
Regulation (EC). 2725/2000 of 11 December,
2000 concerning the setting up of Eurodac for the
comparison of fingerprints for the effective
39
database containing fingerprints of asylum
seekers.
A national system was established
National Informatic System for Alerts28
(SINS) - which will provide data to the
Schengen Information System29 (SIS), in
accordance with European regulations on
this matter.
SINS allows the competent authorities,
through a system of automatic search, to
have access to alerts on persons and
property, to perform specific tasks in the
areas of border control, observing the
customs regime, and issuance of permits
and visas as well as other controls and
specific activities conducted by the police
or other authorities, to ensure public order
and security. Schengen Information System
(SIS) was established as one of the
compensatory measures for:
Police and customs checks;
Prevention and prosecution of
crimes;
Issuance of visas and residence
permits;
Compensation of the abolition of
internal border controls.
Schengen Information System is a
common database of law enforcement,
which currently contains over 27 million
records provided by the 25 participating
countries.
Schengen Information System consists
of a national system (N. SIS) from every
Schengen Member State and a central
system (C.SIS). All national systems are
connected on-line to the central system via
a secure communications network.
implementation of the Dublin Convention. The
implementing rules are laid down in the Regulation
(EC) no. 407/2002 of 28 February, 2002;
28
Law no. 345/2005 for approving Government
Emergency Ordinance no. 128/2005 on the
setting up, organization and functioning of
National Informatic Alerts System;
29
Council Decision 2007/533/JHA from June 12,
2007 on the setting up, functioning and use of
second generation of the Schengen Information
System (SIS II);
 Schengen Information System quickly
began to play an important role in combating
crime in Europe and external border controls,
because of modern information technology,
accessibility for law enforcement authorities
and close cooperation between national
SIRENE30 offices, an acronym of the
definition that describes its activity:
Supplementary Information Requested at
National Entries - additional information
requested at the national entries.
The idea of creating an electronic
messaging system to operate continuously
in each signatory state of the Schengen
Agreement and its interconnection to the
national databases of interest to police was
the natural result of creating a system for
recording and storing the alerts signaled by
the police or national customs, under the
conditions imposed for the abolition of
controls at the internal borders of the
Schengen Member States31.
SIRENE represents the single contact
point between police and customs
authorities of a Member State and national
offices of the other Member States in terms
of providing the necessary tools for
discovering and taking appropriate
measures in cases of crimes or missing
persons or objects signaled on its own
national and other Member States or
associated by providing in the shortest time
the relevant information, for the authority
to investigate a particular case.
This unique opportunity is provided by
direct and immediate access to national
databases of interest to police and / or
customs observing the national and
Community legislation regarding the
exchange of data and information and
30
Emergency Ordinance no. 103/2006 regarding
the measures to facilitate international police
cooperation;
31
Convention implementing the Schengen
Agreement art. 92 paragraph 4 (as amended -
Council Regulation no. 871/2004) which
represents the basis for setting up SIRENE
Bureaus in the Member States, in compliance with
national law;
40
protection personal data. Thus, the SIRENE
Bureau is the specialized structure in
exchanging information related to alerts on
persons, objects and vehicles in the
Schengen Information System and the
measures to be followed by national
authorities, in cases where persons, vehicles
and objects that are discovered as a result of
automated searches made in the system.
Establishing such a specialized service is
compulsory and a prerequisite for adhering
as a member state to the Convention
implementing the Schengen Agreement.
Schengen Information System has
introduced new standards of speed and
effectiveness in law enforcement
cooperation in Europe, within a space of free
movement of persons and goods.
Information on persons, searched vehicles,
etc. are now available for police and customs
authorities and other law enforcement
authorities in all Member States, both online
and in their own language.
Within SIS alerts can be created on
certain persons in the following cases:
If the person is wanted for arrest for
extradition or surrender (Schengen
Convention, Article 95);
If the foreign nationals are denied
access at the Schengen external border
or for expulsion, if they are on the
Schengen territory (Article 96);
As a part of search for missing persons
(Schengen Convention, Article 97),
particularly for minors;
In order to determine the location of a
person, on behalf of judicial authorities
(Schengen Convention, Article 98);
For discreet surveillance or specific
checks (Schengen Convention, Article 99).
Alerts on goods that must be seized or
submitted as evidence in criminal
proceedings can be created in SIS in the
following categories:
Cars
Firearms
Issued identity documents or blank
documents, travel documents,
vehicle registration documents,
 Vehicle registration plates,
Banknotes.
The current version of the system used
nowadays is called SIS 1 +, because since
its beginning in 1995, the system was
developed and expanded to accommodate
more countries and functions. With the
latest enlargement of the SIS in the
Member States which joined the EU in
2004 and in Switzerland in 2007 and 2008,
the application SISone4ALL was used as a
basis for national systems (N. SIS.). At
present, the European Commission is
developing the second generation Schengen
Information System - SIS II - which
provides new functions and features.
The Ministry of Administration and
Interior is the central public authority in
charge with the functioning of the system,
with integrity of the alerts.
The National Authority for Personal
Data Processing Surveillance represents
the Independent National Authority which
controls the legality of personal data
processing included in the system and
disseminates these data on Romanias
territory including exchange and
supplementary information processing32.
The persons whose data are introduced
in the system:
The persons subjected to extradition
procedures or European arrest warrant;
Aliens subjected to refusal of
exit/entry;
Aliens subjected to expulsion or to
some measures for leaving
Romanias territory;
Missing persons or persons that need
to be sheltered in a safe place at the
request of the competent authority or
the judicial authorities;
Persons served with a subpoena
within a criminal procedure in order
to declare the place of residents;
Persons waiting for a criminal
decision or a punishment.
32
Government Decision 128/2005 regarding the
setting up, organization and functioning of the NAIS;
41
The categories of data introduced in
the system33:
Name and surname, aliases;
Distinctive marks;
Date and place of birth;
Gender;
Citizenship;
Armed, violent or escaped from
prison;
The reason of alert;
Measures to be taken.
It is forbidden to process personal data
which disclose the ethnic or racial origin,
political, philosophical believes as well as
data related to health or sexual orientation.
The European Parliament engages in a wide
range of data processing operations. Data
protection is guaranteed at the level of the
Treaties: since the Treaty of Amsterdam,
the Treaty establishing the European
Community has provided for data
protection to apply to the European
institutions. The Charter of Fundamental
Rights of the European Union also
recognises the right to protection of
personal data in Article 8. Regulation (EC)
No 45/2001 sets up the mechanisms for
protecting personal data processed in the
Community institutions and clarifies the
rights of persons whose data are processed.
The Data Protection Service of the
European Parliament has a mission to
inform data subjects and data controllers
about their rights and responsibilities. There
is more and more information being
processed about and indeed by each of
us. Even items that are banal or trivial in
themselves can be aggregated and
associated with other items in a way that
can be intrusive. Regulation (EC) No
45/2001 is intended to protect the liberties
and fundamental rights of individuals with
respect to the processing of personal data
about them.
The Regulation provides for an
33
Law no. 345/2005 related to Government
Ordinance no. 128/2005 regarding the setting up,
organization and functioning of the National AIS.
institutional architecture to ensure that its
provisions are respected. This includes an
independent supervisory authority as well as
a Data Protection Officer in each institution.
The rules set out in this Regulation apply to
any personal data processing in the
European Parliament. All data processing
operations (such as collection, consultation,
transfer, sorting, etc.) are subject to
notification to the Data Protection Officer.
The notification is then entered into a public
Register kept by the Data Protection Officer.
The fact that data processing is carried out
but obviously not the data themselves is
therefore public.
1. Lawfulness - Personal data are to be
processed in accordance with law, which in
effect means that processing must be either
necessary or consensual.
2. Purpose - Any data processing must
be carried out for specified, explicit and
legitimate purposes. These purposes may
not, in principle, be subsequently changed.
3. Consent - Consent is a powerful
element in the structure of data protection,
which can provide a basis for almost any
processing operation. It must be informed
and freely given.
4. Information - Data subjects have a
right to receive certain information (such as
the purpose of processing) about processing
concerning them when the data are
collected.
5. Data Quality - Data collected and
processed must be adequate, relevant and
not excessive in relation to the purposes of
collection. Moreover, they must be accurate
and up-to-date.
6. Multiple safeguards - Anyone may
ask the Data Protection Officer for an
opinion at any time. There is a right to
complain to the European Data Protection
Supervisor and, finally, the possibility of
action before the Court of Justice of the
European Communities.
7. Data transfers - Data transfers are
subject to certain conditions depending on
the status of the recipient whether within
the EU institutions, subject to EU member
42
state law or outside the EU.
8. Right of Access - Any data subject
has the right of access to his or her personal
data. This important right opens the door to
exercising other rights such as the right of
rectification.
9. Security - The level of security
applied to processing and keeping data
must be appropriate with regard to the
potential risks to data subjects.
10. Notification - Data processing
operations notified to the Data Protection
Officer are published in a public register.
So one of the principal objectives of the
Regulation is to give legally enforceable
rights to individuals whose data are
processed data subjects. Data subjects
may be Members of the European
Parliament, staff, visitors or other persons
about whom the institution holds data, such
as petitioners. The primary players in data
protection the central figures in the
architecture of data protection are the data
subject and data controller.
You are a data subject if any personal
data about you are processed by the
European Parliament. So data subjects
include not only Members of the European
Parliament and officials and other staff but
also other persons, such as visitors or
petitioners, about whom data are collected
or otherwise processed.
The data controller the entity that
determines the means and purposes of
processing is the first line of defense for
data subjects. The data controller is
responsible for the security of the
information processed, and is the contact
point for requests by data subjects to
exercise their rights.
There are two actors overseeing data
protection matters:
The independent supervisory
authority the European
Data Protection Supervisor
ensures the consistent application of
data protection legislation to all
institutions of the European Union.
He/She monitors the data processing
 operations of the institutions and
gives them advice on how to respect
data protection legislation, so as to
ensure compliance with human
rights and fundamental freedoms.
The European Parliaments Data
Protection Officer is at your disposal for
advice and information. He/She can give
opinions and make recommendations for
improving data protection in the European
Parliament. The Data Protection Officer
also maintains a public register of data
processing operations.
Any information about a natural person
(i.e. a human being) can be personal data. If
an individual is identified by name, or by
an identifier, it is probable that the
information processed is personal data. An
identifier could be a unique number or even
features of an individuals identity, such as
physical, economic or social characteristics.
So sound recordings or images are also
personal data if a person can be
identified.
Some categories of data require special
attention. These are:
Data revealing racial or ethnic
origin;
Political opinions;
Religious or philosophical beliefs;
Trade union membership;
Data about health or sex life.
Personal data in the form of paper
records as well as data processed by
electronic means are subject to the
Regulation. Personal data are to be kept for
a period no longer than necessary for
carrying out the purpose for which they
were collected. Almost anything that can be
done to personal data constitutes a
processing operation. Collecting, sorting,
consulting, diffusing data are all examples
of kinds of processing, as are erasing or
destroying data. Any data processed must
be adequate, relevant and not excessive in
relation to the purposes of processing. In
other words, the data controller may not
collect more data than necessary for the
purpose in question.
Moreover, data must be updated as
necessary. As well as ensuring that data are
43
up-to-date, the data controller must allow
data subjects access to their data. The data
controller has to give certain information
when the data are collected. This
information includes the identity of the data
controller, the purpose of processing, and
any recipients of the data and the existence
of the rights of access and of rectification.
The Data Protection Officer keeps a public
register of processing operations, based on
notifications received from data controllers.
This register enables you to find out which
administrative entity is keeping what
information about you.
Under certain conditions, personal data
may be transferred to recipients either
within or outside the institutions of the
European Union. As regards transfers
within or to other Community institutions
or bodies, the data must be necessary for
the legitimate performance of tasks within
the recipients competence, among other
conditions. Another set of conditions
govern transfers to recipients covered by
national legislation transposing Directive
95/46/EC: such recipients may be Member
State authorities or private bodies. If a
transfer to a recipient not subject to the
Directive (that is, outside the EU) is
envisaged, special conditions apply. The
data subject enjoys certain rights and the
data controller has certain obligations under
the Regulation.
The rights granted to data subjects are
the central pillar of the data protection
Regulation. Having access to your data
opens the door to exercising other rights
such as rectification. The rights include:
Access to your personal data, free
of charge, and without constraint,
within three months;
Rectification of inaccurate or
incomplete personal data;
Blocking data processing in certain
circumstances;
Erasure of unlawfully processed
data;
The right to object to a processing
operation on compelling grounds.
As mentioned previously, the data
controller also has a responsibility to
furnish certain information to data subjects.
The data controller must also facilitate data
subjects access to their data and their
exercising other rights such as rectification
and erasure.
The data controller must also ensure that
appropriate security measures are in place,
and issue appropriate instructions to ensure
confidentiality if data are processed by
others (for example, by a sub-contractor).
DEFINITION
Data Protection Officer - The Data
Protection Officer is the official
responsible for ensuring, in an
independent manner, the internal
application of the provisions of the
Regulation and keeping a register of
data processing operations.
Purpose of processing - Any data
processing must be carried out for
specified, explicit and legitimate
purposes: data collected or processed
must be adequate, relevant and not
excessive in relation to the purposes for
which they are collected and/or further
processed.
Notification - Prior notice given to the
Data Protection Officer of any personal
data processing operation. The
information to be given includes an
indication of the data controller, the
purposes of the processing, the legal
basis, the categories of data subjects
concerned, and any recipients of the data.
Processing of personal data - Any
operation performed upon personal data,
whether or not by automatic means, such
as collection, recording, organization,
storage, alteration, retrieval, consultation,
use, dissemination, blocking, erasure or
destruction.
Controller - The Community
institution or body, the Directorate-
LEGISLATIVE REFERENCES
A. Community Legislation (relevant acquis)
9 The Convention for Implementing the Schengen Agreement art. 102-118
personal data protection in SIS and art. 126-130 personal data protection;
9 Convention for the Protection of Individuals with regard to Automatic Data
Processing, adopted in Strasbourg, January 28th 1981;
9 Council Directive 95/46/EC of the European Parliament and the European Council
44
General, the unit or any other
organizational entity which alone or
jointly with others determines the
purposes and means of the processing
of personal data.
Special categories of data - These are
any personal data revealing racial or
ethnic origin, political opinions,
religious or philosophical beliefs, trade
union membership, or concerning
health or sex life. The processing of
such data is in general prohibited,
albeit with certain exceptions.
Data subject - Any identified or
identifiable natural person, data about
whom are processed, is a data subject.
Third country national - any physical
or legal body, including public
authorities, their institutions and
territorial structures other than the
person followed, the operator or any
other person authorized to process
information.
Person empowered by the operator -
any physical or legal body, including
public authorities, their institutions and
territorial structures that processes
information for the operator.
Receiver - any physical or legal body,
including public authorities, their
institutions and territorial structures to
whom data are disclosed either he is a
third country national or not; public
authorities who are disclosed
information due to a specific
competency within an investigation
will not be considered receiver.
Anonymous data information which
due to their origin or specific ways of
processing cannot be matched with an
identified or identifiable individual.
 from October 24,1995 on the protection of individuals with regard to the
protection of the personal data processing and the free movement of these data
(O.J. L 281, 23.11.1995, p. 31);
9 Directive 2002/58/EC of the European Parliament and the Council from
12.07.2002 on processing personal data and the protection of privacy in the
electronic communication sector;
9 Regulation (EC) No 45/2001 of the European Parliament and of the Council on the
protection of individuals with regard to the processing of personal data by the
institutions and bodies of the Community and on the free movement of such data.
B. Domestic Legislation
Personal data protection Art. 126-130 CAAS
9 Romanian Constitution, art. 26;
9 Law no. 682/2001 with regard to Romanias ratification of the Convention for the
Protection of Individuals with regard to Automatic Data Processing, adopted in
Strasbourg, January 28, 1981;
9 Law no. 55/2001 for the ratification of the Additional Protocol of the Convention
regarding the Surveillance Authorities and the Flows of Data, adopted at
Strasbourg in November 19, 2001, CETSno. 181;
9 Law no. 677/2001 on the protection of individuals with regard to the protection of
the personal data processing and the free movement of these data;
9 Law no. 102/2005 on setting up the National Surveillance Authority for Processing
Personal Information data.
Protection of personal data in SIS Art. 102-118 from CAAS
9 Government Decision no. 128/2005 on setting up, organizing and functioning of
the National informatic Alert System;
9 Decision no. 1411 from October 10, 2006 for enforcing Government Decision no.
128/2005 on setting up, organizing and functioning of the National informatic
Alert System;
9 Law no. 345 from November 29, 2005 regarding the Government Decision no.
128/2005 on setting up, organizing and functioning of the National informatic
Alert System.

These normative acts are to be modified according to the community legislation in the
field of protecting personal information data.

45
 THE RESPONSE TO CRISIS SITUATIONS
INVOLVING HOSTAGE TAKING

Senior Lecturer PhD LAURENIU GIUREA

Alexandru Ioan Cuza Police Academy
COSTIN FTU
Chief Executive Officer Otp Leasing Romnia

The article focuses on identifying best practices to be followed in the process of

negotiating with hostage situations. The phenomenon of hostage taking is not new but
the ways it manifests itself are constantly changing and, therefore, law enforcement
units should take into account these changes and adapt the procedures of negotiation
and intervention tactics when case.
Keywords: hostage negotiation, negotiator, tactical intervention, victim, aggressors,
demands, communication, surrender, survival.
Protocol based communication and contexts, understanding the reasons and
negotiation strategies personality of those who take hostages, but
As basic rules for emergency medical there are a number of general
procedures should be adapted to each recommendations to be considered for
individual's needs, as well as the basic resolving the crisis in general and those
protocol should be adjusted according crisis involving the taking of hostages.
psychological principles and practices of First, at the start of negotiations the
crisis resolution, so that it might be flexible team should focus on eliminating any
and change according with individual cases. barriers in the background, like several
The priority is securing the area and people talking at once, a radio, street noise,
perimeter isolation where the negotiation etc.. If the person holding the hostages is in
will take place. The goal is to keep inside a place where there's a buzz, he will be
people who have taken hostages and asked to move to an area that is quiet, will
removing the hostages outside the be asked to speak louder or the team will
perimeter. As a general rule, the perimeter improve the clarity of communications
should be large enough so that the tactical channel.
and negotiating teams have considerable The dialogue will be initiated with an
freedom of movement and also the introduction and a statement of intent: for
perimeter must be small enough to be example: "I am ... (Degree) of the Police
observed and controlled by the authorities. ...... "I am here to listen to your requests
It should also be established a form of and make sure that everyone is safe."
communication with people who have Should be a simple introduction and to
taken hostages, because if the dialogue is instill the idea of honesty and credibility.
initiated soon, the criminals concerned have Must be a calm tone, but firmly, so that to
less time to think about some drastic send negotiators confidence that the
solutions. Telephone contact is the most situation is only a temporary crisis and will
commonly used, sometimes through a be resolved safely.
special hotline. To establish a link with the offender, it
Always try to develop communication must be asked what name to be called. If no
strategies that take account of different information on his behalf, negotiator and
46
will address a polite tone, a name familiar
to him. If no name is known, will use the
formulas of politeness, such as "sir ..." and
also, do not use appellations like "friendly"
or "buddy."
The negotiator will speak slowly and
calmly. The conversation will adjust the
level of vocabulary that it holds the
offender. A few minutes of conversation
would be sufficient for the negotiator to
adjust his speech style and pace of the
conversation held by the offender. If the
offender does not speak the same language
as the negotiator, the team will search for a
negotiator that is fluent in offenders
language, and if this is not possible, it will
be provided a competent interpreter.
If the negotiator is not sure what the
person who took hostages says, he will
request more information. Clarity is a general
principle of negotiation and necessary in all
forms of intervention in crisis situations. Do
not answer or not act according to the
statements of the offender, only if the
negotiator is sure of his intentions.
The conversation will focus on the
situation in which the person who took the
hostages and not the latter. In most cases it
was observed that it is preferable that the
offender to think as little as possible to
hostages because the hostages are not
neutral parties in action, they may be family
members or colleagues who have been
specially chosen to demonstrate something.
The hostages are power and control for that
who has taken them as prisoners, so they
will try not to remind him this thing.
It will ask questions about the health of
the parties involved, but especially about
offender status, thus: "How are you? Are
you hurt? Has anyone ever need medical
care? Is everyone safe?"
This example is an exception to the rule
of no applications, because it wants to
express strong concern about the health of
all involved, including the person who took
hostages. Also, if someone needs medical
attention, a way must be found for it to be
ensured.
47
We must have a positive attitude and be
confident about resolving the crisis well. If
it is possible to save lives, then the situation
can be interpreted as positive. If shots were
fired, be emphasized that no one gets hurt.
If one is hurt, it must be specified that there
are no victims. If a prisoner died, the aim is
to save others. The emphasis should always
be placed on what can do the person who
took hostages so that they can save lives, to
gain ground in its favor and also the fact
that the situation can still be resolved
positively.
In addition to the above, the person who
took hostages should be encouraged if the
positive actions have been taken by that
time. If it did something constructive, one
must try to achieve a step forward, such as
the release of a hostage or more people
detained or he will be asked to do one thing
less important to him, such as to allow the
hostages to eat, go to the toilet or keep
permanent telephone connection with the
negotiator.
The aim of this moment is to establish a
model of constructive actions that allow the
person who took the hostages to continue
them and have as an aim the surrender,
without causing injury to others.
Applications and deadlines
One of the defining characteristics of a
crisis is the presence of a request from the
person who took hostages and may vary
from practical applications that can be
satisfied immediately (sources of food,
transportation) to some that are difficult to
fulfill (the release of political prisoners,
access to the media) or bizarre / psychotic
nature (freedom from conspiratorial
persecution; empowerment of the oppressed
classes). Most requests are the first type,
and experts in the field agreed on several
principles and practices.
Standard procedure for action in cases
in which the team negotiates the release of
hostages is to determine the man who has
taken prisoners to make a concession for
everything received in the form of
exchange: "It was a power failure? I'll deal
with this stuff, but I need to do something
for me, okay? Can you keep the line open
so that we can communicate with the
network to solve the problem? "
Other data indicate the following: do not
ask for the person who took and did not
give more than is absolutely necessary to
meet demand. It is best to never say never
"" an application, but this is not equivalent
to saying "yes." The task of negotiators is to
divert, postpone and change requests.
When negotiating the release of more
hostages, start with those who are vulnerable
or the person who takes little interest for
those who took them as prisoners.
If the hostages are not known to the
person that keeps them illegally, like
robberies and when the offender is related
to satisfying requests for personal needs
(food, possibility of escape), most offenders
will release the hostages that they consider
bringing too much trouble, such as sick or
injured victims, crying children or those
who are very excited and will retain those
who are healthy and can be handled.
As in any negotiation situation, the
offender will be allowed to make the first
offer, that is to say how many hostages
agrees to release. It is better safely release a
person or two, only for the offender to feel
the that he is not manipulated and change
his mind.
Where there are known hostage of the
offender, family members or colleagues,
the situation is dangerous because the
hostages have a special value, personal or
symbolic for those who detained them. In
addition, the latter are likely to be
exhausted, agitated, intoxicated, delirium,
suicidal or have intentions to be in a
situation that combines many of the factors
set out above. It will probably not want to
negotiate for anything, because he already
thought about how he will solve everything:
he will kill everyone and then commit
suicide. In such situations, conventional
strategies for negotiating the release of the
hostages will be intertwined with those
applicable in cases of intervention to
48
prevent suicides and other intervention
strategies in crisis situations.
A common feature of all requests made
by people who take hostages is that,
generally, applications must be made within
a deadline: "I drive up to 12 hours, or
someone will die." Very few deaths
occurred as a result a breach of these terms,
particularly in cases of burglary or family
disputes (cases of political hostage may
have some features).
If the offender set a deadline, it will
consider it, but it will not be mentioned
again. The aim is to ignore and keep an
offender as much time talking about
anything else. If any conversation was
never initiated, we will try this before the
deadline in order to maintain him busy and
distracted.
Surrender Ritual
Nobody likes to surrender. And yet, by
definition, successful resolution of a crisis
requires the safe release of hostages and
surrender of criminals to law enforcement
authorities. Therefore, any action taken by
the negotiating team that will facilitate the
release of the hostages and surrender of the
offender will be in the service of saving
their lives, an attempt to manipulate or to
intimidate an offender in order to surrender
could have opposite effect, because very
few people want to surrender, this is a sign
of weakness. Rather, it will pursue
criminals conviction to surrender with as
much dignity as possible.
As seen from experience, based on a
standard protocol or a ritual of surrender, a
guide for negotiators has been developed,
in order to help them in their efforts. Each
negotiating team has to adapt this system
to the particular situation they face and the
type of offender that has to be negotiated.
First, any plan must be well understood,
assimilated and applied by all members of the
tactical and negotiation teams. It will consider
the possibilities of surrender of the offender,
arrest and how to follow these actions.
The original plan of the team may
change during the action, according to the
negotiator and the offender, until both sides
reach an agreement.
When dealing with the person who held
hostages, it will avoid words like
"Surrender," "give up!" or other words that
have connotations of weakness. It will use
other substitutes, such as: "get out!" a
favorite term because it involves a
proactive decision from the subject himself
to resolve the crisis. To begin surrender of
the offender, they will focus on what can be
achieved for the offender if he accepts this
situation.
There will be identified the needs that
person who holds hostages has and how the
negotiating team can accomplish them.
Emphasis will be placed on the subject so
that he should feel as a part of the plan.
Once the final plan is agreed, it is
important that all team members know what
to do. At the beginning, they will clarify the
plan in detail with the negotiating team and
tactical team. Then it will explain the plan
to the person who took hostages, telling
them what will happen and what to expect.
They will emphasize that this plan will take
place not because the negotiating team does
not trust him, but because it is worried
about his health and the hostages, and
because the team wants to ensure that
everyone will follow the agreed plan.
Standard control and restraint
procedures will be implemented without
any use of harsh verbal or physical
elements from the tactical team members
against the offender. Negotiator will be the
officer who will execute the arrest. During
and after arrest, the negotiator will
communicate with the offender.
To some extent, it can be said that the
negotiation never stops. It continues in
custody, debriefing and in the period of
detention. The reputation of the department's
negotiating team must be maintained, in the
sense that they are strong unites, but fair and
honorable and interacting with the entire
community. They should always be thinking
about the next potential incident, and how to
manage it better.
49
Ways to survive as a hostage and rules
for the hostage to follow
To survive, a person must decipher the
dynamics of the crisis and to understand the
interaction of the involved forces. Fear can
cause a disaster by encouraging the
construction of defensive vicious circle of
violence. Whether the demonstration of
violence is done to enhance an application
or to arouse fear in the minds of the
hostages, the violence is motivated by
fanaticism or fear, and this violence will be
directed to the person who is perceived as a
threat to the aggressor.
To minimize the possibility of being
selected by the wrongdoers and increase the
probability of surviving the crisis, you
should note the following:
Capturing an airplane, an institution (or
other location) may be accompanied by
noises, screams, gunshots or, conversely,
can be calm, methodical, only by someone
with the announcement of what will
happen. These first minutes are crucial and,
therefore, you should behave as follows:
Stay calm and encourage others to do
likewise;
Remember that aggressors are extremely
nervous and frightened as possible;
Obey the instructions of terrorists;
If you hear gunshots, head down and
leave you lying on the ground;
Stay alert.
Immediately after capture, the hostages
can be separated by nationality, sex, and
race. If it's a plane, it can be diverted from
the normal route. Aggressors can enter the
negotiation phase that can last an
indeterminate time. During this phase, they
may be used as a tool of exchange, their
lives may be threatened, and some of them
may be issued in exchange for insurance
needs (fuel, landing rights on the track,
food, water, etc..). This is usually the
longest stage, so:
If you are asked to sit with head
bowed or maintain a particular
position, try to relax in order to
survive in that position for a long time
 Prepare yourself mentally and
emotionally for a long discomfort
Do not try to hide your personal
documents and belongings
If you are addressed by the aggressors,
respond in a appropriate tone
Use your time wisely by observing the
characteristics and behavior of terrorists,
mentally attach nicknames and remember
their dress, facial features and
temperamental characteristics
If you or someone nearby needs
assistance because of illness or
discomfort, seek first aid to a crew
member
If you are prompted, give answers, but
not voluntarily provide information
The last phase of a hostage situation is
resolved through the intervention of a
rescue team by completing the negotiations.
Ultimately, the aggressors can surrender to
authorities or may abandon the site. In this
case:
Characteristics of an entry in order to
save the capture will be similar to
capture - noise, chaos, shooting;
If you hear gunshots, adopted a
protective position;
If you receive instructions from the
rescue team, move quickly, taking
your hands above head, without
sudden movements;
If you see fire or smoke, try to
straighten to the emergency exits;
Expect to be treated as a perpetrator
or accomplice to the rescue forces.
Initially, you will be treated harshly
until it decides whether or not you
are part of a team of aggressors.
Rules to be respected by the hostage
Rule no. 1: If you're a hostage you can
not negotiate your own survival, must be
assisted by a negotiator. Do not express
opinions. It is very possible that the abuser
may not agree with you in a certain
problem. Look in the eyes of the abuser if
you send a question, because it is more
difficult for him to hurt a person if he
looked in his eyes sympathetic.
50
Rule no. 2: During capture, everything
becomes chaotic, and the possibility of
injury increases. Therefore, do what you
say, as promptly. Stay away as silently and
not try to stand out.
Rule no. 3:
You are never alone involved in the
incident. If you are the sole hostage,
remember that the intervention teams are
preparing for your release and that you part
of this team;
Be careful of what is happening
around you without being noticed. This can
be useful for future legal action and to stand
out from your present situation;
Do not try to escape! If you try and
fail, this will greatly irritate the aggressor;
Keep your self-esteem. It is important
for your balance and own survival.
There are cases where the victim is kept
isolated for a long time and many others in
which hostages are together. There are
situations where hostages are gathered in
one place, others are moved frequently
from one place to another. In others, he
may go for weeks with the victim through
the bushes and wooded areas. Sometimes
the abuser treats the victim well, others are
trying to confuse and make her give up
mentally, subjecting it to prolonged
interrogation and accusations.
Hostages should always keep in mind a
number of key ideas, such as:
The most dangerous moments are
those during abduction and then the release
time, especially if done through an
intervention operation. Perpetrators may
feel threatened and tense, and victims
should stay calm and avoid increasing
tension through inappropriate behavior;
During the abduction, the victim may
be dizzy or drugged; it is not appropriate to
refuse this, when the aim is to silence,
which sometimes can be beneficial to them;
The victim should be prepared for a
long period of restraint, since, although
some kidnapping ends quickly, while others
may take weeks or even months;
Ensuring victim safety issue is not the
problem, but the authorities, so that the
victim must be confident that they will do
everything possible, even if the abuser says
otherwise;
Victims must not try to escape unless
you are very sure of success, otherwise it
may expose themselves or others at high
risk.
***
Hostage issue is not new. It has existed
since the Middle Ages, when they
demanded ransom from adverse belligerent
camps. Today, conditions and enforcement
of the overriding reasons are different. In
relation to the middle Ages, the premises
are different. The strategic international
situation is, to some extent, chaotic.
Vulnerabilities arising from social
divisions, the relationship between new
technologies and old, between wealth and
poverty, between civilization and no
civilization.
Beyond the act itself, there are pursued
a variety of purposes: the provision of
financial resources (which then will be
reinvested), creating a state of panic and
uncertainty, where anybody can be taken
hostage, putting pressure on governments,
parliaments, international organizations,
both to solve their own, as well as problems
that generate crime, which in turn produces
hostage takings; creating a concept of
asymmetrical response to the pressures
exercised by reconfiguration of power and
influence centers.
In terms of judicial or legislative,
hostage taking and illegal deprivation of
liberty, even if they have the same object -
the social relations of the right to life and
freedom of action, have certain
vulnerability. Because the law is not
harmonized, it generates a international
vulnerability to this type of action. Taking
hostages is a political problem that needs a
national approach, regional and
international, and should not be regarded as
a pathological action, but rather as a
political act, an act of war. Taking hostages
is a method of a world fighting against each
other.

References:
Cpitan Benedict Srbu Cpitan Florin HULEA , Luarea de ostatici ca act terorist.
Implicaii juridice i situaii de criz Gndirea militar romneasc 2008
Communication In Crisis And Hostage Negotiations: Practical Communication
Techniques, Strategems, And Strategies For Law Enforcement, Corrections, And
Emergency Service Personnel In Managing Critical, Arthur A. Slatkin, Charles C.
Thomas Publisher (June 2005)
Crisis Negotiations: Managing Critical Incidents and Hostage Situations in Law
Enforcement and Corrections, Michael J. McMains Wayman C. Mullins (Author),
Anderson Publishing Company (OH); 2 edition (February 2001
Crisis Negotiations: Managing Critical Incidents and Hostage Situations in Law
Enforcement and Corrections (Paperback) by Michael J. McMains, , Wayman C.
Mullins, 2005
Irena Marica, Strategii comunicaionale aplicabile n gestionarea incidentelor teroriste
cu luare de ostatici, www.studiidesecuritate.ro
http://www.hostagenegotiation.com/
http://www.fahn.net/
http://www.macna.org/
http://www.njacn.org/
http://www.sccna.com/
http://www.tahn.org/
http://www.wpna.net/

51
 JUDICIAL COOPERATION IN THE EUROPEAN COMMUNITY.
THE EUROPEAN ARREST WARRANT

PhD. VASILE POPA

Prim Prosecutor Prosecutor's Office attached to the Oradea Court
PhD. OVIDIU ANTA
Adviser Control body of the Prime Minister

The European arrest warrant is the first legal instrument based on mutual
recognition of criminal decisions. It produces a radical change in relation to the old
system of teaching people in a space of freedom, security and justice, the effect being felt
mainly on the procedures, time limits and reasons for refusal of surrender of a person.
Keywords: the European arrest warrant, criminality, procedures, execution of the
European warrant
The concept of an European arrest warrant EU Member States, the traditional
Originality and novelty of the European extradition procedures with the teaching
arrest warrant is that it is applicable procedures based on a European arrest
throughout the Community Area. Once warrant because in all EU Member States,
adopted in the handover system between as in other countries (including U.S.), the
EU Member States, provisions were extradition is primarily regulated as an act
replaced provided in the following of state sovereignty, the final decision
conventions: belonging to the executive (the Council of
The European Convention on Ministers in France and Spain, the U.S.
Extradition of 13 December 1957, its Department of State, the Ministries of
Additional Protocol of 15 October Justice, possibly with foreign ministries, in
1975, the Second Additional Protocol most European countries).
of 17 March 1978 and the European The European arrest warrant is the first
Convention for Combating Terrorism legal instrument based on mutual
of 27 January 1977; recognition of criminal decisions. It
The Agreement of 26 May 1989 produces a radical change in relation to the
between the 12 Member States of the old system of teaching people in an area of
European Community, meant to freedom, security and justice, the effect
simplify and modernize the modality of being felt mainly on the procedures, time
transmission of extradition requests; limits and reasons for refusal of surrender
The Convention of 10 March 1995 of a person. The European arrest warrant is
concerning the simplified extradition very closely related to the purpose set out in
procedure between the Member States Article 29 of EU Treaty. Member States
of the EU; U.E. adopted the solution of the European
The Convention of 27 September 1996 arrest warrant concept, since in each state
concerning the extradition between EU there were cases who have created famous
Member States; problems, with a strong echo among public
Title III, Chapter IV of the Convention opinion. In France, for instance, there was
Implementing the Schengen one case (Resala) a French citizen of Arab
Agreement, of 19 June 1990, on the origin who had committed several crimes of
gradual abolition of checks at their rape on trains, then took refuge in Portugal.
common borders. There was evidence against him, DNA was
The European legislator felt the need to taken and, although France had requested
replace, exclusively in relationship between his extradition, Portugal refused this
52
because under Portuguese law there is no
provision for life imprisonment, the
maximum penalty is imprisonment for 30
years, while in French law this penalty is
provided for the most serious crimes. By
this refusal a situation evolved in which the
French did not know what this Europe
means, because they could not imagine that
within the EU, composed of democratic
states that trust each other, a country can
refuse extradition to another EU country.
This case has led to political decisions and
is reflected in the creation of a European
arrest warrant institution34.
Applying to all forms of crime, the
European arrest warrant helps improve
international judicial co-operation and
reduce barriers related to national
sovereignty, based on t the surrender of
suspects or prisoners to another Member
State is a purely judicial decision35. In the
EU common legal system, the judicial co-
operation takes place under Community
instruments based on principles of mutual
trust and recognition of judicial decisions36.
The European arrest warrant represents a
progress by a real unification of the various
European legal systems and can be
successfully applied in the fight against
terrorism and trans-national organized
crime.
The EU Council Framework Decision of
13 June 2002 nr.2002/584/JAI concerning
the European arrest warrant and surrender
procedures between Member States
provides a general framework for joint
action of all Member States and introduces
a series of novel provisions in the law of
extradition, representing a giant step made
by the member countries in building
European penal law. The Framework
34
Simona Brdiceanu "The European arrest
warrant", article published in Pro Law no. 3/2005,
p.171
35
Sbastien Combeaud Premire russite pour le
principe de reconnaissance mutuelle: le mandat
darrt europen, Revue internationale de droit
pnal 2006/1-2, 77, p.131
36
L. Benoit Le mandat darrt europen, Revue
du march commun de lUnion Europenne
nr.465/2003, p.106
Decision has been fully transposed into
Romanian legislation in Title III of Law
no.302/2004 concerning international
judicial co-operation in criminal matters37.
For its part, Romania has not made any
statement on crimes committed before the
entry into the Framework Decision, and has
accepted the European arrest warrant
without taking into account the date of the
offense. However, in accordance with
Romanian law, only the European arrest
warrant issued after 01.01.2007 is accepted,
being the date when the Framework
Decision came into force in Romania.
Article 77 of Law no. 302/200438 defines
the European arrest warrant as a judicial
decision by the competent judicial authority
of a EU Member State requesting the arrest
and surrender by another Member State, of
a person for performing a criminal
prosecution, trial or a penalty or a
deprivation of liberty safeguards39. Point 2
of article 77 states that the European arrest
warrant is executed on the basis of mutual
recognition and trust, in accordance with
the provisions of the Framework Decision
of the European Union Council no.
2002/584/JAI of 13 June 2002.
37
In accordance with the provisions of article 32,
paragraph 1 of the Framework Decision of the
European Union Council no. 2002/584/JAI of June
13, 2002, any Member State can do, when
adopting the Framework Decision, a statement
related at that, in quality of executive Member
State, will apply the instrument of European arrest
warrant only to acts committed after a specified
date, which may not be back than 7 August 2002.
The following Member States have made such a
declaration: Austria (facts committed after August
7, 2002), Czech Republic (facts committed by
nationals or after November 1, 2004), France (facts
committed after November 1, 1993), Italy (facts
committed after August 7, 2002).
38
Amended and supplemented by Law no.
222/2008
39
Article 1 of the Framework Decision of the
European Union Council no. 2002/584/JAI of 13
June 2002 defines the European arrest warrant as a
court order issued by a Member State in order to
arrest and surrender by another Member State of
the person requested, for the purpose of
prosecution or executing a sentence of deprivation
of freedom or a provision of detention.
53
 The European arrest warrant is designed
to have a uniform effect across the EU, the
goal is rapid delivery of the requested
person. The European arrest warrant
replaces the classical extradition system by
a simpler and faster mechanism of
surrender of persons sought for prosecution
or execution of sentence or other measures
of deprivation of liberty. The authorities
which performed a central role in
extradition proceedings are excluded from
the European arrest warrant procedure,
even though they may have a supporting
role, transmission and information in
general40. In order to simplify applications
and to enable them to respond more easily,
requests are made in a uniform manner,
through a standard form of the European
arrest warrant. The Framework Decision
implements a philosophy of integration in a
common judicial area and involves a new
scheme of co-operation based on mutual
trust between Member States. The reasons
for refusing co-operation were reduced. The
Framework Decision removes double
criminality control, as a reason for failure
and refusal to surrender, for a list of 32
categories of crime, as defined by State
issuing of the mandate. If the offense is
punishable with a penalty of three years or
is not listed, double criminality rule is
always applicable.
The emission procedure of a European
arrest warrant
The Framework Decision concerning
the European arrest warrant does not
require any issuing Member State to verify
the proportionality of the measure arrest the
person sought. Given the serious
consequences to the execution of the
European arrest warrant and by physical
freedom and movement restrictions
40
Through the new regulatory the procedure has
been simplified and accelerated. All political and
administrative phase was replaced by an
exclusively judicial procedure. The procedure itself
was substantially amended by the regulations of
the Framework Decision. From a case involving
two parties, between sovereign states, has been
reached one involving three, in which expresses its
opinion also the person concerned.
54
imposed on the person sought, before
deciding to issue a warrant, competent
authorities should take into account,
whenever possible, the proportionality test,
assessing the usefulness of a European
arrest warrant in that case. Thus, it is
advisable not to opt for the European arrest
warrant when appropriate and applied
coercive measure in that case is not
preventive detention. To issue an European
arrest warrant, should lead, in each case, to
an assessment, taking into account all the
different elements, such as the seriousness
of the offense, and in particular the fact that
this measure involves the deprivation of
liberty of the person41.
The procedure of issuing the European
arrest warrant by the Romanian authorities
is regulated in its article 81 of Law no.
302/2004, amended by Law no. 222/2008.
Thus, the European arrest warrant is issued
when a preventive arrest warrant or of
imprisonment cannot be carried out,
because the defendant or convict is no
longer in Romania. In order to issue a
European arrest warrant, it must meet the
following conditions:
Does not contravene, according to
Romanian law, the prescription of
criminal liability or penalty or amnesty
or pardon;
penalty prescribed by law is at least a
year, if the arrest and surrender of the
person is required to exercise criminal
prosecution or trial;
penalty or security measure involving
deprivation of liberty imposed is at
least 4 months, whether the arrest and
surrender of the person is required for
the performance penalty or security
measure involving deprivation of
liberty.
The most recent amendments to Title III
of Law no. 302/2004, by Law no.
222/2008, have attempted to address some
issues that have resulted inconsistent
practice of the court or raised practical
problems. Thus, as regards the procedure
41
Version finale du manuel europen concernant
l'mission d'un mandat d'arrt europen
for issuing European arrest warrants, this
has removed a problem that has led to
inconsistent practice related to the judge
having jurisdiction to issue the European
arrest warrant42. Under the new legal
drafting, the European arrest warrant is
issued, during the prosecution phase, by the
judge hearing of the court president which
would return jurisdiction to hear the case on
the merits during the trial phase and
execution by the judge hearing of the
president of the first court or the court for
enforcement. The competent judge shall
verify compliance with the conditions laid
down by law, in so doing43:
issues the European arrest warrant and
monitors the measures taken to its
transmission, and if the person is
located in an EU member state, orders
the translation of the European arrest
warrant. Also informs the prosecutor
who performs or supervises the
prosecution or the court before which
the criminal case where the European
arrest warrant is issued;
notes, through a reasoned conclusion,
that the conditions laid down by law
have not been met to issue a European
arrest warrant, communicates the
decision of the prosecutor when
conducting or supervising the
prosecution or to the prosecutor or
court prosecutor for enforcement.
When issuing a European arrest warrant,
the judge may ask the executing judicial
authority to issue goods which are required
as evidence. Following its meeting on July
17, 2007, the Group on Co-operation in
Criminal Matters (Experts on the European
Arrest Warrant) proceeded to exchange
information on practical issues involved in
the procedure of issuing the European arrest
warrant. In order to resolve these issues,
delegations focused on the recommendation
42
Report of the Ministry of Justice no. 121650
from 11 November 2008, sent to all courts and
prosecutor's offices attached to them.
43
Article 81, paragraph 3 of Law no. 302/2004
concerning international judicial cooperation in
criminal matters, amended and supplemented by
Law no. 222/2008
55
of the EU Council Presidency indicating the
development of common guidelines on how
to complete the European arrest warrant.
The presidency decided in conclusion that
there is a consensus within all delegations
regarding the need for issuing a European
Handbook on the European arrest warrant.
It was also suggested that the draft proposal
is to be further examined during the
Portuguese presidency, by the Group on
Co-operation in Criminal Matters
(Experts on the European Arrest Warrant).
The mission was entrusted to the
Presidency, assisted by the EU Councils
General Secretariat. Textbooks existing in
Member States, as well as professional
experiences of the European Judicial
Network and Eurojust, served as the basis
for drafting the manual. Following its
meeting on 14-15 May 2008, the
Committee approved the manual. It aims to
provide guidelines for adopting good
practice, taking into account experience,
providing competent judges and
prosecutors with precise information on
how to complete the standard form of the
European arrest warrant. To this end, the
text contains detailed examples on drafting
an European arrest warrant44.
Standard form of the European arrest
warrant constitutes an annex to the
Framework Decision on European arrest
warrants. It should be used, even in
situations where it is not clearly provided in
the legislation of certain Member States.
Council's intention is to implement a tool
that could be easily completed by the issuing
judicial authorities, and thus recognized by
the executing judicial authorities45. One of
44
The manual was developed during the
Portuguese and Slovenian Presidency, with the
help of professionals who operate with the
European arrest warrant across Europe as well as
with the European Judicial Network, Eurojust, the
EU Council General Secretariat and the European
Commission
45
The European arrest warrant is issued
exclusively as the standard form. It must be
completed accurately and carefully, because is the
basis for the arrest and subsequent conviction of
the requested person.
the objectives of the standard form is to
avoid costly translations in the financial
report and is temporal, providing
information as accessible. Given that the
European arrest warrant will be basically the
only legal basis for arrest and surrender of
the person subsequently requested, it must
be thoroughly completed in order to avoid
unnecessary request for additional
information46. The law provides that the
procedure of issuing the European arrest
warrant is confidential until the arrest of the
person required in the State of enforcement.
European arrest warrants may be issued if
the facts are criminalized and punishable in
the issuing state of the mandate with
imprisonment or a custodial detention for a
minimum of three years, punishing the
person even if the condition of double
criminality of the act has not been met.
The offences which may result in
issuing an European arrest warrant and to
surrender the person sought are47:
participation in a criminal organization,
terrorism, human trafficking, sexual
exploitation and child pornography, illicit
traffic of drugs and psychotropic
substances, illicit arms trafficking,
ammunition and explosives, corruption,
fraud, including one against the European
Communities' financial interests, money-
laundering, currency counterfeiting,
including counterfeiting of euro,
cyberspace crime, environmental crime,
including illicit trafficking in endangered
animal species and species and varieties of
endangered plants, facilitating illegal entry
and residence, murder and grievous bodily
harm, illicit trafficking in human organs
and tissues, illegal deprivation of liberty,
kidnapping and hostage-taking, racism and
xenophobia, organized or armed robbery,
illicit traffic in cultural goods, including
antiques and works of art, fraud,
racketeering and extortion of funds, product
46
Version finale du manuel europen concernant
l'mission d'un mandat d'arrt europen
47
Article 85 of Law no. 302/2004 concerning
international judicial cooperation in criminal
matters, as amended by Article I, section 53 of
Law nr.224/2006
56
counterfeiting and piracy, counterfeiting
and forgery of official documents, forgery
of means of payment, illicit trafficking in
hormonal substances and other growth,
illicit trafficking in nuclear or radioactive
materials, trafficking in stolen vehicles,
rape, arson with intent, crimes within the
jurisdiction of the International Criminal
Court, unlawful seizure of ships and
aircraft, sabotage.
In terms of form and content, the
European arrest warrant must contain the
following information48: identity and
nationality of the person sought, the name,
address, telephone and fax numbers and e-
mail address of the issuing judicial
authority, indicating the existence of a final
court decision, a preventive arrest warrant
or any other enforceable judicial decision
having the same effect, the nature and legal
classification of crime, a description of the
circumstances in which the crime was
committed, including time, place, degree of
involvement of the person sought, penalty
imposed, if the decision has become final,
or issuing penalty provided by state law for
the crime committed, if possible, other
consequences of the crime.
The transmission of European arrest
warrant procedure is regulated in article 82
of Law no. 302/200449. Thus, if the location
of the person sought is known, the
Romanian issuing judicial authority may
directly transmit the European arrest
warrant by the executing judicial authority.
It will be translated by the issuing court's
concern in the language required by the
executing Member State, after confirming
the presence of the required location within
a given EU member state50.
48
These formal requirements of the European
arrest warrant must be met in all circumstances, be
that the State is the issuing State, be that is
executing State.
49
Romanian judicial authorities may transmit the
European arrest warrant by any secure means of
transmission, which leaves a written record,
provided that the executing judicial authority can
verify its authenticity.
50
Because the period of the execution of European
arrest warrant is short, when it is known the place
 If the location of the person sought is
unknown, the transmission of European
arrest warrant is made through the
International Police Co-operation Centre of
the General Inspectorate of Romanian
Police, which makes the dissemination of
the Schengen Information System (SIS) or
channels International Criminal Police
Organization-Interpol, if necessary51. In this
case, the transmission can be made through
the secure system of the European Judicial
Network, when it is operational52.
The issuing judicial authority may
require the concerned introduction of the
person description in SIS through the
National Informatic System of Signatures53.
Most Member States using the SIS have
specific work procedures. After September
1, 2007, SISone4all system works in
principle in most of the Member States,
except Bulgaria, Cyprus, Romania, Ireland
and the United Kingdom. This means that
SIRENE forms type A54 will contain
roughly the same information as the
standard form of the European arrest
warrant, and those provisional translations
will be prepared in English. Once
operational the Schengen Information
where of the requested person, it is advisable prior to
translate the arrest warrant, in the country language in
which it is possible to find the person. When a
European arrest warrant is sent directly to the
executing judicial authority or to a central authority, it
must be accompanied by a translation.
51
If the place where the person sought is unknown,
the European arrest warrant is sent to the National
Sirens Office of that Stat, in view of its dissemination
in the EU Member States which are part of SIS. It
recourses at ICPO-Interpol for dissemination of the
European arrest warrant in the Member States which
are not currently part of the SIS.
52
Article 83, paragraph 2 of Law no. 302/2004
concerning international judicial cooperation in
criminal matters, amended and supplemented by
Law no. 222/2008
53
Reporting included in the Schengen Information
System is equivalent to an European arrest warrant
54
Form type A SIRENE contains information
about (Schengen identification number, date and
time of form submission, SIRENE Office sender
and SIRENE Office recipient), as well as
information about the European arrest warrant
referred to that alert in SIS
57
System, second generation (SISII), the
original form the European arrest warrant
will be scanned and registered into the
system, being available immediately. If the
issuing judicial authority does not know the
executing judicial authority, it will make
the necessary enquiries, including contact
points of the European Judicial Network or
special direction of the Ministry of Justice
to obtain information from the executing
Member State55. Any difficulty which may
arise in connection with the transmission of
an European arrest warrant shall be settled
through direct contact between the issuing
authority and the executing judicial
authority or with the support of the
Ministry of Justice. After sending the
European arrest warrant, the issuing
Romanian judicial authority may submit
any additional information necessary to
execute the mandate. In case of direct
transmission, the issuing Romanian judicial
authorities will inform the Ministry of
Justice in the last working day of each
quarter of the European arrest warrants
issued in the reference period and status of
their execution56.
Enforcement of the European arrest
warrant
The competent Romanian authorities
able to receive the European arrest warrant
are the Ministry of Justice and the offices
attached to courts of appeal in which
district the person sought has been located.
If the location of the person sought is not
known, the European arrest warrant is sent
to the Prosecutor's Office attached to the
55
Information regarding the issuing authorities and
enforcement of the Member States can be accessed
on the Internet website of the European Judicial
Network, to the following address:
http://www.ejn.-crimjust.europa.eu =>
searchEAW Atlas => select the country
56
In practice, the transmission of European arrest
warrants shall be carried out mainly by ICPO-
Interpol (58% of the total warrants issued) and the
Schengen Information System, in the Member
States which have not access to it (52% of that
total). Otherwise, European arrest warrants are
sent, obviously, most often directly between the
Member States concerned.
Court of Bucharest Appeal57. Romanian
Central Authority is the Ministry of Justice,
who, after receiving the European arrest
warrant issued by a judicial authority in
another EU member state, forward it to the
Prosecutor attached to the Court of Appeal
in which district the person sought has been
located or to the Prosecutor attached to the
Court of Bucharest Appeal, if the person
sought has not been located58.
According to legal provisions, the
mandate sent for execution to the Romanian
authorities must be translated into the
Romanian language or in one of either
English or French. The Romanian
executing judicial authority verifies in
advance whether the European arrest
warrant is accompanied by translations. If
the warrant is not translated, the Romanian
executing judicial authority may
communicate this to the issuing judicial
authority in order to submit a translation in
the shortest possible time, or may request a
translation, if possible59. Running a
European arrest warrant by the Romanian
executing judicial authority may be subject
to the following conditions:
1) where the European arrest warrant
was issued for a penalty or as a safety
measure of deprivation of freedom applied
by a decision rendered in absentia, if the
person concerned has not been summoned
in person or otherwise informed about the
date and place of the hearing which led to
the decision rendered in absentia,
surrendering the person sought will be
granted if the issuing judicial authority
guarantees that the person subject to a
European Arrest Warrant has the possibility
to obtain a re-trial in the issuing Member
State, in her presence;
57
Incurred expenditure on Romanian territory for
execution of a European arrest warrant upon
Romania, other costs remain the responsibility of
issuing state.
58
Situation is applicable whenever the issuing
authority fails to send the European arrest warrant
directly to welcoming Romanian judicial authority.
59
Legal provisions stipulate that the procedure
may be suspended pending receipt of the
translation.
58
2) if the offense under which the
European arrest warrant has been issued is
punishable by life imprisonment or a
custodial detention for life, the legal
provisions of the issuing Member State
must provide the possibility for a review of
the sentence or security measure applied or
parole, after the execution of at least 20
years of the sentence or security measure is
imposed, or the application of measures of
clemency.
Applying internal law, article 16 of the
Framework Decision on European arrest
warrant, the Law no. 302/2004 provides
that where two or more Member States
have issued an European arrest warrant in
connection with the same person, the
executing Romanian judicial authority shall
decide on the priority of execution, taking
into account all circumstances and in
particular, location and severity of the
crime committed, the issuing date of the
warrants, and the fact that the warrant was
issued for criminal prosecution, trial or the
execution of a sentence or security
measure. The Romanian executing judicial
authority may request, where appropriate,
Eurojust's opinion on this decision.
Romanian citizens can be handed over
under a European arrest warrant issued for
criminal prosecution or trial on condition
that, if they will give a custodial sentence,
the person surrendered is transferred to
Romania for the execution of the sentence.
The prior procedures and special conditions
which may be subject to enforcement of a
European arrest warrant are mentioned in
articles 87 and 88 of Law no. 302/2004.
The refusal to execute the mandate has an
imperative hypothesis and an optional one.
Thus, the Romanian executing judicial
authority is a binding right to refuse to
execute the European arrest warrant in the
following cases:
a) when, from available information, it
becomes apparent that the person sought
has been finally judged for the same acts by
a Member State, other than the issuer state,
provided that, in case of conviction, the
penalty has been executed or is, in that
moment, in course of execution or
execution is to be decided, the penalty has
been pardoned or the offense was amnesty
or have occurred another case that prevent
the execution, according to State law
sentencing;
b) when the offense on which the
European arrest warrant is covered by
amnesty in Romania, if Romanian
authorities have, according to Romanian
law, the power to monitor the offense;
c) when the person subject to a
European arrest warrant is not criminally
responsible, due to his age, for the facts
underlying the arrest warrant in accordance
with Romanian law60.
However, the Romanian executing
judicial authority may optionally refuse to
execute the European arrest warrant in the
following situations61:
the person who is the subject of the
European arrest warrant is subject to
criminal proceedings in Romania for
the same act that motivated the
European arrest warrant;
when the European arrest warrant was
issued for the purpose of execution of
sentence of imprisonment or safety
measure of deprivation of freedom, if
the person sought is a Romanian citizen
and it states the refusal to enforce the
punishment or security measure in the
issuing Member State;
when the person who is the subject of
the European arrest warrant was finally
judged for the same offence in a third
State which is not a member of the EU,
provided that, in case of conviction, the
penalty has been executed or is
currently under execution or execution
is to be decided, or the offender was
granted amnesty or punishment had
been pardoned according to State
sentencing law;
60
Article 81, paragraph 1 of Law no. 302/2004
concerning international judicial cooperation in
criminal matters, amended and supplemented by
Law no. 222/2008
61
Article 88, paragraph 2 of Law no. 302/2004
concerning international judicial cooperation in
criminal matters, amended and supplemented by
Law no. 222/2008.
59
when the European arrest warrant
relates to offences which, according to
Romanian law, are committed in
Romania;
when the European arrest warrant
includes offences that were committed
outside the territory of the issuing state
and Romanian law does not permit
prosecution of these acts when they were
committed outside Romanian territory;
when, according to Romanian law, the
responsibility for the offence that is
based on the European arrest warrant or
enforcing the sentence imposed has
been decided, whether the facts would
have been under the Romanian
authorities jurisdiction or not;
when the competent Romanian judicial
authority decides not to start the
prosecution, either through termination
of criminal prosecution, removal from
criminal prosecution, or ranking the
offence based on the European arrest
warrant, or has pronounced, against the
person sought, a final decision, on the
same facts, which prevents further
proceedings.
The procedure for the enforcement of an
European arrest warrant sent to the
Romanian judicial authorities goes through
the following steps:
a) The verification by prosecutor of the
formal and substantive conditions that must
be met by the mandate62. Within 24 hours
of receipt of an European arrest warrant or
an alert in the Schengen Information
System, the prosecutor appointed by the
62
In previous legislation, pending Law no.
222/2008, the court was competent to check the
conditions of substance and form of the European
arrest warrant. Thus, once the court of appeal
received a European arrest warrant or an alert in
the Schengen Information System, the president of
the criminal division assigned the case to a tribunal
of two judges. The court verifies if the European
arrest warrant contains information provided by
law, and when it finds that the information
provided by the issuing State were insufficient,
requests urgently to the issuing judicial authority
the necessary additional information, while setting
a deadline for their receipt.
General Prosecutor of the Prosecutors
Office attached to the Court of Appeals
verifies whether the European arrest
warrant is accompanied by a translation
into Romanian or one of either English or
French. If the warrant is not translated into
any of the supported languages, the
prosecutor requires the issuing judicial
authority a remission of the translation. If
the mandate is translated into English or
French, the competent prosecutor shall take
necessary measures for a translation into
Romanian, within two days. Then, the
prosecutor checks whether the European
arrest warrant contains the information
specified by law, and if it finds that the
European arrest warrant does not contain
this information, urgently calls the issuing
judicial authority for the complete
information, while setting a deadline for
their receipt63. Under the formal aspect, the
requested judicial authority is required to
verify the legal requirements relating to64:
the individualization of the requesting
judicial authority, competence under
issuing state law; form of mandate,
according to the Framework Decision and
Romanian law; the warrant is issued in an
official language designated by the
Community or, where appropriate, in
Romanian; the correct identification of
persons required to surrender; the minimum
content of information on reasons for
issuing an European arrest warrant,
including a short presentation of the facts
and legal classification; the particulars
required within the European arrest warrant
by Community norm and internal law.
Under the chapters fundamental
conditions, the judicial authority requests,
checks the reasons, ensures there are no
cases of non-delivery for person requested
in the extradition, according to national law
63
The European arrest warrant issued by judicial
authorities of an EU member state is subject to
verification of the formal and substantive, both
under Community rules and those required by
internal law.
64
Criminal sentence no. 13/PI of 02/02/2007 of the
Criminal Section of the Timisoara Court of
Appeals.
60
and Community law. When a Romanian
judicial authority receives an European
arrest warrant, but it is not competent to
resolve, he sends the warrant to the
competent executing judicial authority and
informs the issuing judicial authority about
it.
b) taking the necessary measures by the
prosecutor to identify, search, locate and
catch the person sought. If the European
arrest warrant contains the information
required and is translated, the prosecutor
may implement the Criminal Procedure
Code relating to the special procedure for
tracking65. The Criminal Procedure Code
provides that the commissioning tracking is
available under the auspices of the General
Inspectorate of the Romanian Police. The
tracking order will be communicated as
soon as the competent authorities issue
passports, which are obliged when refusing
to issue his passport or, where appropriate,
temporarily suspend the passport on the
duration measure and border enforcement
notification66. According to the opinion
expressed by a Romanian author67, tracing
represents a complex activity, information-
operational, criminology and criminal
investigations that take place in all police
units to meet the statutory procedural
provisions. In case the following checks
carried out reveal that the person sought is
in the territorial jurisdiction of another
prosecution, the prosecutor sends the
European arrest warrant immediately to the
65
It should be noted that the law does not make
direct reference to the contribution of police units
to identify the person sought, it being understood.
Thus, activity tracking, detection and identification
of these individuals are carried out by police who
have received the request from the Prosecutor
attached to the Court of Appeal of territorial
jurisdiction.
66
In the tracking activity of the persons also
institutions outside the judiciary can be involved.
Thus, the Code of Criminal Procedure provides
that public institutions are required to support,
according to the law and legal powers, the Police
which is pursuing one wanted person.
67
Bujor Florescu "Course of criminal
investigations", Concordia Publishing, Arad, 2007,
p. 349
competent prosecutor and informs the
issuing judicial authority and the Ministry
of Justice. If the exact place in Romania
where the person sought is not known, it is
necessary for the police to carry out under
the supervision and guidance of the
prosecutor preliminary work (checks,
investigations, intelligence surveillance,
etc.) leading to the location, catching and
arresting the person. In particular
procedures of tracking, locating and
catching people against whom European
arrest warrants have been issued, judicial
bodies also carry out criminal research
activities such as: listening to persons
(witnesses, enablers, accomplices), taking
of evidence and evidence (interception and
recorded conversations or communications
by telephone or any electronic means of
communication, and other records;
retention and surrender of correspondence
and objects; perquisition; collecting objects
and documents; the surveillance of bank
accounts and similar accounts; etc.).
Tracking, locating and catching the
individuals escaping the enforcement of the
European arrest warrant creates the
conditions necessary for the resolution of
cases within a short time, preventing them
from committing new crimes or other anti-
social acts. Persons wanted for committing
crimes and evading the enforcement of
mandates are a real and concrete danger to
civil society, whereas they make every
effort not to be tracked down and caught by
the judicial bodies, are willing to commit
the most serious crimes to ensure their
escape. In most cases, these people are
sentenced to prison or pursued, because
they avoid the measure of preventive arrest,
so their criminal activity has been proven
by the prosecution, and this makes people
believe that every moment spent in freedom
is precious, trying to extend as much as
possible the condition of their "runaway",
knowing that if they were caught by police
they will be incarcerated or remain in
police custody for various periods of time68.
68
From judicial practice it is shown that, in terms
of offences committed, persons are most often
61
During the time of hiding, to avoid being
caught, the tracked persons rarely leave
their houses, do not carry out daily
activities and often try to change the
physionomy, by different means (change
their haircut, wearing a beard, glasses, etc.).
At the same time they try to purchase false
identification documents with which they
can legitimize in different situations
requiring the submission of proof of
identity as per identity act69. If the checks
carried out result, without any doubt, that
the person sought is not located in
Romania, the prosecutor has rank,
informing the issuing judicial authority and
the Ministry of Justice.
c) detention of the person sought. Arrest
measures against the person sought can be
taken by the prosecutor after an official
hearing held only in the presence of
counsel. The Measure retention is decided
by reasoned order and it may take up to 24
hours. The person arrested must be made
aware, immediately, in a language that he
understands the reasons for and content of
the European arrest warrant, while issuing
him with a copy of the warrant and its
translation. Law no. 222/2008 provides that
the apprehended person may request to
inform, on the action taken, a family
member or another person whom he
designates. Exceptionally, if the prosecutor
considers that this would affect the
execution of European arrest warrant issued
against the person sought or if it has
knowledge of European arrest warrants
issued against other participants in the
offense, the prosecutor may refuse the
request. Given the fact that, since 1 January
2007, police in our country receive the
enforcement European arrest warrants
issued by judicial authorities of other states,
requirements for entering the domicile or
residence of a person without his consent,
linked to offenses of murder, attempted murder,
robbery, narcotics offenses, offenses relating to
sexual life, illegal deprivation of liberty, serious
injury, etc.
69
Ioan Dasclu, Adrian Dumitrescu, Cristian-
Eduard tefanb "Release tracking procedure",
Sitech Publishing, Craiova, 2008, p.11
as well as into the corporate headquarters
without consent of a legal representative,
are also applicable for the execution of
European arrest warrants. In this respect,
due to difficulties encountered in legal
practice by the police relating to the
execution of European arrest warrants, the
changes to the Law no. 222/2008 are
welcome, that, in order to arrest the person
sought, the competent authority can enter in
any dwelling in which the person sought is
thought to be hiding, without his consent or
the consent of the person that owns or uses
the dwelling as well as into corporate
headquarters without the need for a legal
representative. Legal provisions of Law no.
222/2008 also provide an emergency to
apprehending and arresting the person
sought. Thus, exceptionally, the measure of
detention may be ordered on the alert sent
trough the International Criminal Police
Organization-Interpol, which is not
equivalent to the European arrest warrant.
In this case, the International Police
Cooperation Centre immediately requests
the correspondent Interpol National Central
Office the escalation to the competent
prosecutor, within 48 hours of detention of
the person sought. When the measure was
taken by the judicial police investigators, it
must, within 10 hours of detention, present
the person sought to the prosecutor
designated by the General Prosecutor
attached to the Prosecutor of the Court of
Appeal in whose territorial constituency the
person was retained.
d) the referral to the Court of Appeals
for the arrest and surrender of the person
sought. The prosecutor notifies the
competent court of appeal with the proposal
enforcing the measure to arrest the required
person. Once the court case is terminated,
the case is assigned under the law, to a
court of one judge, to decide upon the
measure of arrest and surrender the person
sought70. The judge first verifies the
70
Article 89, paragraphs 1 and 2 of Law no.
302/2004 concerning international judicial
cooperation in criminal matters, amended and
supplemented by Law no. 222/2008.
62
identity of the person sought and ensures
that it was served with a copy of the
European arrest warrant or was informed
about the reason for detention. When
detention has been made under emergency
provisions governed by law, the judge may
order, by a reasoned conclusion, based on
the alert sent by the International Criminal
Police Organization - Interpol, the arrest of
the requested person or order that he does
not leave town for a period of 5 days. In
this case, the court adjourns the case and
sets a deadline of five days for the
submission by the prosecutor of the
European arrest warrant accompanied by a
translation in Romanian. After receiving the
European arrest warrant, the judge notifies
the person sought his legal rights (the right
to be informed about the content of the
mandate, the right to be assisted by
counsel) and the possibility of consenting to
surrender to the issuing judicial authority,
making them aware of the legal
consequences of the consent to surrender,
especially its irrevocability. If the
European arrest warrant was issued against
a Romanian citizen, to an execution of a
sentence or a security measure involving
deprivation of liberty, the judge may ask
the person sought if they agree to undergo
the sentence or security measure in the
Member State issuer. If the requested
person declares that he agrees, the judge
can rule by decree, both on arrest and
surrender of the person. If the person
sought does not consent to surrendering to
the issuing authority, the procedure for
implementing the European arrest warrant
continues with the hearing of the person
sought, limited to record its position
towards the existence of one of the
mandatory reasons or optional enforcement,
and any objections as to their identity. The
court will check periodically, but not later
than 30 days, if it is necessary, to maintain
arrest for eventual surrender, ruling in this
regard through a reasoned conclusion. In all
cases, to surrender custody may be taken
only after hearing the person sought in the
presence of counsel. The initial period of
detention may not exceed 30 days, and the
total duration, until the actual delivery to
the issuing Member State cannot under any
circumstances exceed 180 days. If the
person sought is released, the court decides
upon the obligation not to leave town. In all
cases, the court decides on the execution of
European arrest warrant by sentence, taking
into account all the circumstances and the
need to execute the European arrest
warrant. Not later than 24 hours from a
final decision on surrender, the court will
communicate its decision to the issuing
judicial authority, the Ministry of Justice
and Centre for International Police Co-
operation. Surrendering the person sought
is done by the Centre for International
Police Co-operation with the support of the
police unit in charge of the place of
detention, within 10 days after the
surrender decision is final. If, for reasons
beyond the control of one of the issuing or
executing members, agreement cannot be
made within this period, the judicial
authorities concerned shall immediately
enter in contact to set a new date for
surrender. In this case, the surrender would
take place within 10 days of the new date
agreed. Exceptionally, surrender may be
Bibliography
deferred temporarily for serious
humanitarian reasons, such as the existence
of sufficient grounds to believe that
surrender would clearly endanger requested
person's life or health. Enforcement of the
European arrest warrant will be carried out
once these reasons cease to exist. In this
respect, the executing judicial authority
shall immediately inform the issuing
judicial authority and together they agree a
new date for surrender. In this case, the
surrender would take place within 10 days
of the new date thus agreed. If time limits
are exceeded for agreement, without the
person concerned to be received by the
issuing State will proceed with the release
of the person, without this constituting a
ground for refusal of enforcement of a
future European arrest warrant, based on
the same facts. In all cases, when agreeing,
the Romanian executing judicial authority
will notify the issuing judicial authority the
duration of deprivation of liberty for a
person who has been referred to the
European arrest warrant in order to be
deducted from the penalty or safety
measure whichever should apply.

Bujor Florescu "Course of criminal investigations", Concordia Publishing, Arad, 2007

Ioan Dasclu, Adrian Dumitrescu, Cristian-Eduard tefanb "Release tracking procedure",
Sitech Publishing, Craiova, 2008
L. Benoit Le mandat darrt europen, Revue du march commun de lUnion
Europenne nr.465/2003
Sbastien Combeaud Premire russite pour le principe de reconnaissance mutuelle: le mandat
darrt europen, Revue internationale de droit pnal 2006/1-2
Simona Brdiceanu "The European arrest warrant", article published in Pro Law no. 3/2005
ss

63
64
65
66
 SERIAL KILLERS PERSONALITY
Director of Criminal Investigation Department
The article focuses on the analysis of criminological factors for personality serial
killer. There are several theories analyzed in this respect and the most common reasons
for such behavior.
Keywords: Criminal behaviour, nonoffenders, emotional instability, psychological
analysis, threshold offenders
Modern research is devoted to
psychology criminal act consistently
multidisciplinary bidisciplinare not, as you
might think from the statements of this
thematic work that uses the term psycho
deviant behavior. In reality it is rather a
trend research "synergistic type" of crime,
when they discuss the genesis, in other
words, when determining "crimegenesis71.
A purely psychological analysis of criminal
act, based solely on the legal requirements
to determine the content of the crime, is to
analyze how to prepare, commit and post-
crime attitude manifests author psyche, its
elements: intelligence, affection and will.
The concept of personality is essential for
justice that is based on truth, science and
justice, the prevailing idea of social
rehabilitation of the offender. Therefore,
justice connects his work on the psychology
of judicial services. Psychological factors
do not act directly on the individual's
immediate and unequivocal, but filtered
through his personal peculiarities, features
of which are rooted in a small measure of
personality and innate elements mostly in
its history, the personal history. All this
leads to a particular type of dysfunctional
behavior, a way to act and react in
psychological space, in how to resolve the
conflicts that always arise in this space.
71
Mitrofan N., Zdrenghea V., T. Barrels, judicial
psychology, Ed Chance, Bucharest, 1992, p. 78
67
Police Quaestor VASILE VIOREL
The killer is presented as a warped
personality, which allows the commission
of action of atypical anti-social nature or
dissociation. He appears as an individual
with a poor social maturation, impaired
social integration, which conflicts with the
requirements of the normative and cultural
valorico society in which they live. On this
basis it is trying to be picked as the killer's
personality and internal mechanisms
(motives, motivations, goals) that triggers
the transition from the criminal act itself. 72
A comprehensive theory of criminal
personality created Pinatel Jean73, who
believes that criminal behavior "passing the
act" constitute a decisive element.
Conditions are controlled transition to act
on offenders who commit serious acts, the
core of personality whose components are:
self-centeredness, lability, aggression and
emotional indifference. Core criminal
personality is a dynamic structure, and
association to bring together the
components mentioned, none of which
itself is not abnormal. Core criminal
personality is not a gift, but a resultant. The
author points out very firmly that what he
calls "criminal personality" is not an
anthropological type, any variant of the
72
I. Barrels, Barrels, T., judicial psychology,
House of Tomorrow Foundation Romania,
Bucharest, 2004, p. 51
73
Pinatel J., et personalities criminelle
egocentrism, RSC / CPD no. 1 / 1959, Paris, p. 64
human species. Far from having any
connection with the positivist Italian born
killer of the nineteenth century, the
"criminal pinatelian personality is a
criminological analysis model which is
served in his research. It is a clinical tool, a
work tool, an operational concept. It is a
reference system, an abstract construction
to replace a subjective reality. " 74
Advanced ideas lead naturally to the
conclusion that in exceptional
circumstances, any man may become
delinquent.
The difference between non offenders
and offenders must be sought in the
"threshold offenders" in the sense that some
events nedelincveni need, serious pressure
to cause a reaction offenders, others go on
to note a very slight external incitement.
Unlike them, the offender format - as
opposed to non offender - do not expect a
break of favorable opportunities, an outdoor
incitation but causing himself occasions
and then operate.
"In the final analysis, which allows
clear distinction bettwen nonoffenders
andoffenders, but even among them is the
ability more or less pronounced shift to the
act."75
Stressing that the personality is
inseparable then not only the body, and
environmental criminology personality is
essential to study the situation. There are
specific situations or dangerous the
occasion not to be sought. Criminal act
resulting in a specific situation is reply
(reaction) of a personality to this situation.
But there are situations in which non-
specific or amorphous opportunity to be
sought. In such cases, the personality is
dominating the situation and resulting
criminal act here is a direct consequence of
the activity in question personality.
From this brief analysis suggests that
74
I. Barrels, Barrels, T., op.cit., P. 56
75
Pinatel J., op.cit., p. 67
68
environmental factors influence both the
formation of personalities and situations.
This means that the environment may
be the criminal not only by multiplying the
opportunities to commit crimes but,
equally, and that the structure facilitates
criminal personalities. Logical
demonstrations were the best modern
arguments by which we can tackle the
nativism in crimegenesis.The killer is not
arrested in the act of disapproval of his
office, because it is unstable, unable to hold
long term, just as able to overcome the
obstacles that arise in the way of criminal
action, since it is essentially dynamic and
aggressive. At the same time, he managed
to overcome the version to heinous acts, for
whatever emotional and not care about
nobody, nourishing feelings of sympathy
for anyone and therefore can commit any
crime.76
Personality components
The personality system is lacking in
transparency, so that it cannot be known
except through complex investigations. Its
constituent elements, both simple and
complex, are situated in a determined
system of multiple links, so that the
phenomenon of personality is difficult to
know and requires the use of extremely
sensitive scientific means to perform an
effective analysis.
Analysis is possible due to the property
of the personality to project into the outside
world by impulses, attitudes, conflicts,
which supports and enables the entire
system of behavioral sciences, including
legal psychology. In the analysis of
personality in literature and practice of
multidisciplinary research, there are two
levels of analysis: the plan of the
components of personality types and the
personality types plan 77.
Personality from the perspective of
76
Pinatel J., Agressivit et personalit criminelle,
R.S.C./D.P.C. nr.1,1960, p. 23
77
Butoi I., Butoi T., op cit., p. 56
these two planes has two components:
a. Bio-psychological components
Biological components of personality
include all native endowment of the
individual, whether certain features are
found in predecessors (inherited
characteristics) or not (innate
characteristics).78
In our country, hereditary criminal case
was still considered one of the deviations of
Ion Rmaru, whose father, Florea Rmaru,
also seems to have been a serial killer
responsible for murdering four women in
1944. The four crimes were committed
under the same conditions and with the
same "modus operandi" as the son.
But the bestial behavior can be
explained by the extension of "values" and
attitudes that the Father has transmitted by
living together, more or less consciously.
Currently, it is considered that the whole
complex of factors lead to such monsters:
physical, psychological, sexual, social. For
example: violent temper, also injuries
suffered in childhood, sexual failures plus
extraordinary sexual appetite, plus
professional failure, plus other violations of
law or not found, plus a context that would
urge him to commit the first crime. It is
almost universally recognized that, once the
"taste blood" of serial killers has been
aroused it can be difficult to stop it
voluntarily. Their lack of self control is
considered by experts as evidence of
intellectual or emotional infantilism.79
In determining the behavior and
especially of the deviant one, the qualities
or major deficiencies of the body,
temperamental characteristics and aptitude
of the individual constellation of forces is
often very important. The qualities and
major deficiencies of the body, the visible
ones, put their imprint on the personality
decidedly . People with a well-structured
body, doubled by good looks, have self
78
Butoi I., Butoi T., op cit., p. 56
79
Personal archive, Vasile V.
69
assurance and, their behavior is largely
determined by their advantageous
constitution . In contrast to these, a reduced
capacity for resistance to physical
difficulties or sensory impairments or
mobility impairments negatively affect
personality formation.
The feeling of inferiority generated by
small structure or organ dysfunction, and
enhanced by quiet or express contempt by
those around them, often incite
compensatory behaviors - "the bravery" of
Napoleon seems to be illustrative - that may
often result in deviant behavior80. A feeling
of inferiority is one of the most general
characteristics of criminals81. Temperament
consists of those formal characteristics that
relate to how the individual's mental life
takes place. The closest Romanian term is
"nature" Thus, we speak of slow nature, fast
nature, and then people that have emotional
states that are sustainable or less
sustainable, of the ease or difficulty of
switching from one mental state to
another82.
Endowment aptitude of personality
refers to the natural ability to acquire
knowledge or skill of a general or special
kind. Intelligence, for instance, is regarded
as a general skill, as long as thread is a
special skill. The impact of social factors on
the innate skills is easy to prove. No matter
how talented, natively gifted for music one
is, he cannot achieve higher levels without
specialist training. On the other hand, no
drawer, not even a genius, will become a
great money or diploma forgerer if his
skills will not be supported by strong
antisocial attitudes (relationship skills,
attitudes). In particular, this plan does not
only highlight the complexity of
personality, but alsot its contradictoriality.
80
Adler A., Understanding live. Introduction into
individual pshihcology, Ed. Trei, Bucureti, 2009,
p.102
81
Butoi I., Butoi T., op cit., p. 57
82
Butoi I., Butoi T., op cit., p. 57
A positive feature high design talent-
through its manifestation becomes socially
negative prohibited in a prohibited realm of
society. Likewise, intelligence, when not
associated with honesty (positive social
attitude) may evolve in the direction of
forming a criminal personality.
b. Social Components
Social components refer to the effects
of the socio-cultural agents action(social
environment, learning phenomenon as the
substrate and mechanism of spontaneous
and institutionalized education) translated
into purchased structures (character,
attitude) that, along their consolidation
become driving forces, even reasons that
shape behavior.
Biological components are developed
and act in terms of existence and
simultaneous action of the social
components. So, personality develops in
time and is achieved through the
interaction of two large blocks of
components. If, on fair grounds we can talk
about a permanent becoming personality,
so criminal genesis must be seen as a long
process in which biological factors are kept
with the social individual factors, which
not only lend the multitude of causes but
also the specific polymorphic to the crime
phenomenon.
Through character we understand all the
essential and specific quality traits which
are expressed in human activity in a
relatively stable and permanent way.
Individuals activity, however, fits the
socio-cultural "models" of behavior and, as
it internalizes, are experienced as attitudes
towards other people, towards work and
activity in general and also in the attitude
towards himself. If through attitude we
understand the way to behave in a situation,
then it becomes clear that the attitude
towards others and himself constitute those
foundations of character which determine,
to a large extent, either a balanced
personality formation (sociable, active,
demanding to himself) or the formation of a
70
deviant personality (suspicious, aloof and
uncaring towards others, with a large dose
of egoism).
Types of personality
Since ancient times it was observed that
there are classes of individuals which have
some common characteristics or groups of
this kind of features, either side
interests,way of thinking, or side
temperament, physical constitution,etc.
Individuals in the class - depending on the
chosen feature belong to the same type.
The typical extrovert is sociable, likes
parties, has many friends, always feels the
need to have with whom to talk, doesnt
like solitary reading or independent study.
He always longs cheerful company,
likes to gamble, acts under the inspiration
of the moment, and, in general,
impulsively. He like jokes and gimmicks, is
always ready for retaliation, doesnt worry,
is open, friendly, optimistic, laugh (and joy)
is his element. Always active, tends
towards agresivity and losing their temper
easily. Their feelings are not under strict
control and extroverts in general are not
always reliable persons.
The typical introvert is a quiet person,
withdrawn, which values books more than
people. Compared to people, except a few
intimate friends, is very reserved. He plans
his future and does not like to act on the
spur of the moment. Tends to take things
seriously and lead an orderly life. He
controls his emotions tightly, rarely
behaving aggressively and doesnt easily
lose his temper. Although prone to
pessimism, the introvert, in general, is a
man of confidence who places great value
on ethical values.
Typologies to which we referred, as
well as other kinds of typologies that have
been developed over time, have in common
that they fail to include all varieties of
human personalities. Intermediate type, in
any typical system, occupies a prominent
place, which apparently would invalidate
typologies in general.
 This fact results from the findings of HJ
Eysenck, stating that: "... practically all
criminals are part of extroverts" and that
"this type of individuals are characterized
by a low level of excitation of the cerebral
cortex, a phenomenon which prevents their
normal formation of conditioned reflexes ...
so extroverts, in general, through the
weakness of their innate ability to be
conditioned (socially educated)are likely
not to resist such temptations and adopt, if
not necessarily a criminal behavior, at least
an anti-social one ... " , "... there are groups
of individuals to which criminal conduct
arises from completely different causes ...
so apparently serial killers - at least those in
Europe - would be more introverted,
however, it may be different to professional
killers ...."
Studying the different categories of seria
l killers, under psychological terms, it has
been managed to establish some common
characteristics.
Emotional instability
Due to negative experience, to the poor
education received from the parents, to the
appropriated skills and practice, the serial
killer in an unstable person in terms of
emotions, an element betraying discontinuity
in its reactions, unjustified leaps from one
extreme to another, volatility in reaction to
stimulus. This instability is an essential
characteristic to structured personality
disharmony, a side in which the trauma
personality stands out better than the
cognitive component of the plan.
Emotional instability is part of the
states of disorder affectivity of serial killers
who are characterized by a lack of
emotional autonomy, insufficient
development of emotional self-control,
poor development of high emotions and
feelings, especially the moral ones. All
these leads to lack of capacity of self-
assessment and appropriate assessment, to
the lack of objectivity towards oneself and
others.
71
Social maladjustment
Any serial killer is a social misfit.
Misfits, the difficult learners, where is
always recruiting the deviants, are elements
whose education has been achieved in
adverse conditions and poorly. The
anamnesis made to criminals show that, in
most cases, they come from dysfunctional
families (died, divorced, criminals,
alcoholics parents) where there are no
conditions, understanding or concern for
education of children. Where socio-cultural
level of parents is not high enough, where
rules are not given due attention on a daily
basis, there are established some social
maladjustment. Antisocial attitudes
resulting from inadequate environmental
influence lead to the root of negative habits
which, on several unfavorable occasions,
may be updated, leading to deviance and
crime. Criminal action is, etiologically, a
symptom of maladjustment, and the
behavior is an atypical reaction.83
Special sensitivity
Some of the environmental excitatory
exert on them a stimulation to action much
more than the ordinary man, giving their
side an unusual character. The serial killer
is characterized by the lack of inhibitions,
social line drawn. Achieving personal
interests, regardless of consequences, leads
to excessive mobilization of physical and
mental resources.
Duplicity behavior
Being aware of the destructive nature of
the criminal act, the serial killer works in
secrecy, notices, plans and executes
everything away from people's eyes, in
general, and the authorities, in particular.
Being a strong dominant of personality,
criminal duplicity is his second nature,
which not only masks while committing
criminal act, but always. He plays the fair
and honest man, the man concerning of a
different nature than those of "specialized"
criminal. This artificial "game" distorts his
83
Butoi I., Butoi T., op cit., p. 54
daily acts and deeds, making it easy to track
down for a good observer. The need for
concealment, for a "double life" forms
habits for the killer which increasingly
isolates him from society, from the normal
aspect of life84. We exemplify in this
respect the famous Ted Bund from S.U.A.
and Bota Grigore from Romania.
Intellectual immaturity
This means that the serial killer is
unable to provide long-term consequences
of its antisocial actions. There is the
assumption that he is strictly limited to the
present, giving less importance to the
future. Intellectual immaturity does not
overlap with the low intelligence quotient
(IQ), but it means a reduced capacity to
establish a rational relation between losses
and gains in designing and performing a
criminal act, the passage to commit crime is
performed under a minimum caution of
tolerance thresholds of actually conducts.85
Emotional immaturity
It consists of a persistent gap between
cognitive and affective processes in favor
of the latter. Because of psycho-emotional
imbalances, emotional immaturity leads to
mental rigidity, disproportionate reactions,
prevailing the pleasure principle against the
one of reality. The emotionally immature
use infant behaviors (crying spells, fits etc.)
to obtain immediate pleasures, sometimes
minor and insignificant. He has not a
consistent attitude towards the real and
important issues, he lacks a true position
and self-critical, he is unrealistic and
emotionally unstable. The emotional
immaturity associated with intellectual
immaturity predisposes the serial killer to
events and antisocial behaviors with very
serious consequences.86
Frustration
It is an emotional state experienced by
84
I.Butoi,T. Butoi, op. cit. p. 55
85
Bogdan T., Probleme de psihologie judiciar ,
Ed tiinific, Bucuresti, 1973, p. 76
86
Bogdan T., op cit., p. 77
72
the mass murderer when deprived of certain
rights, rewards, satisfaction, etc.. who
believes he is entitled or the way of
obtaining such rights interfere with some
obstacles. Frustration is felt as an affective-
cognitive state of crisis (a critical condition,
voltage) which disorganize for the moment,
the work of cortical court which control the
actions, simultaneously generating
subcortical excitement. Criminals react
differently to frustrating situations, to
failure (frustration tolerance) and
postponement of satisfaction to an
aggressive behavior. The highly frustrated
criminals tend to lose their composure at
the moment, acting erratic, inconsistent,
atypical, aggressive and violent, with
antisocial serious consequences.87
The inferiority complex
It is a state that a serial killer feels like
a sense of failure, like a personal
incapacity. The inferiority complex arises
from shortcomings, real or imaginary
infirmity being enhanced by the contempt,
tacit disapproval or experienced of other
people. The majority of serial killers has a
core of personality whose components are:
self-centeredness, lability, aggression and
emotional indifference.88
Egocentrism -represents the tendency of
individual to report everything to himself,
he alone is the center of all things and
situations. When he doesnt achieve the
goals he likely becomes jealous,
domineering and even despotic. The
egocentric is unable to see beyond his own
desires, goals, interests. It is an individual
who is unable to recognize the others
superiority and successes , he always think
of being persecuted, he considers that he is
always right no matter the situation. He
minimizes his weaknesses and failures,
maximizes his strengths and successes, and
when he is wrong, instead reconsidering its
position, attacks with virulence .
87
Bogdan T., op cit., p. 77
88
Pinatel J., op. cit., p. 35
 Lability is the personality trait that
signifies the sensibility fluctuation, the
difficulty and, as such, an increased
opening towards influence, the individual's
actions being unpredictable. The emotional
instability requires insufficient emotional
maturity, the murderer being the servant of
the influences and suggestions, unable to
inhibit his impulses and desires when
facing the public danger and the threat of
the criminal sanction.
Aggression - occurs when the killer is
unable to feast his desires and he gathers
way through a violent and destructive
behavior. The most common forms of
aggression are selfaggression and
heteroaggression. Selfaggression represents
casting his aggressive behavior on himself,
expressing through self-mutilation, suicide
attempts or even suicide. Heteroaggression
involves channeling violence towards
others, manifesting itself through multiple
forms, such as serial killings.
J. Pinatel May highlights two distinct
forms of aggression: casual and
professional.
Aggression is characterized by
spontaneity and occasional violence being
more common in passional crimes.
Aggression training resides in a violent
and lasting behaviour, which emphasizes
through a constant of the offender
personality, aggressively manifesting itself
in a deliberately and consciously way.
Emotional indifference - is closely
linked to self-centeredness and it is also
known as moral insensitivity. It is
characterized by an inability of the serial
killer to understand the pains and needs of
others, by feeling satisfaction for the
others pain. Aaffective indifference
redeem the emotional inhibition and
disruption condition. This side of the serial
killer's personality is formed at early ages,
is one of the main weaknesses of the
socialization process, an important role in
this plan being detained by a
malfunctioning of the family structure and
73
educational style adopted in this
microstructure. Usually the killer is not
aware of his own condition of emotional
inhibition, which explains why a series of
crimes committed by extreme violence are
done with calm and cool blood The close
link between emotional indifference and
egocentrism is that for the serial killer the
feeling of guilt and transgresivness is alien
to him.
In conclusion, it can be said that the
serial killer is the most odious and most
harmful criminal. He manifests increased
irritability, impulsivity and aggression. It is
egocentric, domineering, having a low
capacity of rationalization, unstable and
superficial in emotionally contact, making
him to engage himself in conflictual
situations, reacting violently. Committing
crimes is possible by entering the serial
killer in an environment that provides
conflictual situations from which he doesnt
know or he can not escape. In most cases,
serial killers have discernment, and their
intention is to kill. With very few
exceptions (thus escaping the rigors of law)
they are not mentally ill in the sense that a
certain condition that would make them not
distinguishing good and evil. Instead they
are fascinated by a path and want to be
close to them, while normal people want to
distance themselves. They have the
pathological tendency to touch, to have a
relationship with a dead person, they love
or hate the victim's body, as appropriate,
but always ends up leaving it lifeless,
because only then can they fulfill the need
to handle a corpse.
Sadism is frequently met at serial
assassins, sometimes combined with sexual
lust. It comes by pleasure at mutilation,
torturing and killing the victims slow.
Many times, these were unimaginable
cruelties attributed to inborn abnormalities
and were responsible for the so - called
'criminal gene, whereby the presence of an
extra Y chromosome.
 Bibliography
Adler, understanding of life. Introduction to individual psychology, Ed Three, Bucharest,
2009
Barrels T Barrels T. G. ru, Lepdui V. Interference between psychology and
criminology, Ed litle star, Bucharest, 2007
Barrels, Barrels, T., judicial psychology, House of Tomorrow Foundation Romania,
Bucharest, 2004
Bartol, Criminal Behavior, Englewood Cliffs, Prentice Hall, 1980
Basil V. - personal archive.
Bogdan T., judicial psychology Problems, Scientific Publishing House, Bucharest, 1973
Brian Lane & Wilfred Gregg Encyclopedia mass murderers, RAO, Bucuresti, 1996
Cioclei V., Handbook of Criminology, Ed C.H. Beck, Bucharest, 2007
Dormont L., Negrier, Tueurs sistemique comportement en series, Ed Chlorofeulles, Paris,
1998
H.J Eysenck, Crime and personality, Ed Routledge and Regan Paul Ltd., London, 1965
Hickey E., The Female Serial Murderer, Journal of Police and Criminal Psychology (2),
1986
Iindey R., Officials cite a rise in U.S. killers roam Who for Victims, New York Times,
1984
J. Buckholtz, - in an article published in the journal Nature Neuroscience
J. Delgado, Physical Control of the mind, Ed Harper & Row, New York, 1969
Levin J. A. Fox, Mass Murder The Growing Menace, New York, Plenum Press, 1985
Lombroso, L'Hommme Criminel Ed Felix Alcan, Paris, 1895, Tome
Lunde, Murder and Madness, Stanford, CA, Stanford Alumni Association, New York,
1976
M. Starr, The random killers, Newsweek
Mitrofan N., Zdrenghea V., T. Barrels, judicial psychology, Ed Chance, Bucharest, 1992
Negrier - Dormont L., Nossintchouk R., Tueurs en series, Dominos Flammarion Ed, Paris,
2001
Pinatel J., et Agressivit criminelle personality, RSC / CPD No. 1, 1960
Pinatel J., et personalities criminelle egocentrism, RSC / CPD no. 1 / 1959, Paris
R Ressler, Whoever Fights Monsters, Preses Ed de la Cite, 1993
Serial Murders: forensic Another challenge, Forensic Science International, 27, 1985
V. Gebert, Practical Homicide Investigation, Ed.Taylor & Francis, New York, 1980

74
 SOME CHARACTERISTIC FEATURES OF
CORPORATES FRAUD CRIMINOLOGY

Assistant PhD. MARCOCI PETRIC-MIHAIL

Police Faculty - A.I. CuzaPolice Academy
MNESCU RAMONA-NICOLE
Memeber of European Parliament

The article focuses on corporate fraud as the result of a deviant behavior occurred in
connection with the administration of a multinational company. As a part of the system,
corporate fraud is a particular display of the criminal phenomenon, having its own
identity, characteristics and functions. The actual corporate crime can be defined as the
multitude of economic and financial frauds relating to the activity of multinational
companies committed on a certain area, within a certain period of time.
Keywords: Social pathology, social disruption, corporate crime, stock markets,
corporate fraudster.
The necessity of tackling corporate breaker, who is of central importance to the
criminology from a criminological point of offensive act.
view derives from the urgency of Therefore, we can appraise that the
identifying the whole range of causes, focus of the criminological scientific
conditions and situations that initiate it at approach upon the creator of the criminal
social, economic and political levels, as act has later become a leitmotif for
well as pointing out those elements that theoretical approaches that come from the
have an impact upon the individual and idea that ones personality represents the
become fundamental for the mechanism of single or major reason for committing
taking action. antisocial acts.
On the other hand, the criminological These theories contain a broad range of
excursion which will be carried out within explanatory models, from those
our scientific approach proposes, as a constitutional, psychiatric, psychological to
materialization of the prophetic function of those theories that portray the criminal
criminology, to identifying the atitudinal, personality, in their modern versions.
characteristic and behavioural features of Likewise, the concepts that are used are
the corporate fraudster, which will enable different, the criminal, the murderer, the
board representatives or other deviant or the abnormal are placed in the
representatives involved in the appointment main area studied by criminology.
of managers or administrators of The theoretical and methodological
corporations or multinational companies to approaches, which start from the premise
avoid appointing people that present threats that antisocial acts are the subject of
and vulnerabilities regarding to the criminology, belong to theorists that study
possibility of committing fraud for such the criminal phenomenon from a
jobs. From a historical point of view, sociological and psychological point of
criminological research was initiated by view. In this context, the concept of crime
anthropologists, who have focused their is sometimes given a sense that goes
initial studies upon examining the law- beyond legal requirements.
75
 Thereby, the American sociologist
Thorsten Sellin defines crime as being any
violation of moral precepts, whether or not
subjects of legal regulations, while the
German criminologist Hans Goppinger
claims that crime, as subject of
criminology, must be considered both a
legal phenomenon and a non-technical
one, in close connection with religion,
morality and culture.
Initially, from a social point of view,
delinquency was the sole subject of
statistical concerns. Subsequently, this
orientation was materialized in the genesis
of sociological theories, including theories
of social pathology, social disruption,
conflict of cultures, which in our opinion
could have a considerable impact on our
criminological approach to the origin and
development of corporate crime.
But, unlike criminology which
considers, to a great extent, that the
criminal phenomenon is included in
broader forms of social deviance, so that
from this perspective, criminology is
identical to deviant sociology , our
approach of criminological study upon
corporate delinquency will focus mainly on
those states, situations, circumstances that
generate high-level criminals that are able
to hide their own methods of committing
crime and neutralize or delay social forces
of reaction.
Deficiencies created by monocausal
theories within the area of corporate
criminology consist in a one-sided
approach to issues of criminology, which is
deprived of the unifying perspective on the
subject of research, something that can
spoil the final result in terms of partially
identifying the problems caused the
fraudster or by the fraudster.
In this case, narrowing down the area of
study only to the criminal can leave out the
research upon the criminal phenomenon in
general, so as the approach of crime from
the perspective of analysis in quantitative
terms , as well as explaining society
76
through social conditions , can partially or
totally omit to take into account the
personality of the law-breaker.
This is why the explanatory patterns
focused on the monocausal approach
cannot be accepted in the criminological
area applied to the domain of corporate
fraud, demanding dual and complex
approaches, based on the multiple factor
analysis of the causes of criminology,
provided that the factors with a major and
significant impact on this type of crime are
identified from the beginning.
Taking into account the fact that
social and particular factors underlying
criminal behavior are the subject , the
multiple factor theory upon the causes of
crime represents a development compared
to previous aspects, but it is not a concept
able to integrate different levels of causal
analysis into a single explanatory model,
but rather an extensive list of factors
involved in the birth of crime.
Corporate Crime as a Social
Phenomenon
Like any other social phenomenon,
corporate crime is an unique system with its
own functions and properties, highly
different from those f its components.
Thereby, the method of analyzing corporate
delinquency must not focus on the
quantitative aspect of the studied
phenomenon, which would start from the
assumption that crime includes all the
felonies committed on a certain area, within
a certain period of time.
Approaching this type of crime mainly
from a quantitative point of view would
lead to unsatisfying, impersonal results,
based on statistical considerations, without
any descriptive, prophetic or preventive
values, therefore the result of our research
would only arise interest for the penal
system. The actual corporate crime can be
defined as the multitude of economic and
financial frauds relating to the activity of
multinational companies committed on a
certain area, within a certain period of time.
 Apparent corporate delinquency is
comprised of the multitude of crimes
committed in connection with the activity
of multinational companies that the
elements of the justice system take notice
of by fair means or foul.
Legal corporate crime represents the
multitude of criminal acts committed in
connection with the activity of
multinational companies for which the
court passed final sentences.
From a general criminological point of
view, the difference between actual and
apparent crime is called the dark figure of
criminology and it consists of the multitude
of crimes, which, for various reasons,
remain unknown to people in the criminal
justice system.
Within corporations, this dark figure
of corporate crime is due to an extremely
large number of causes, such as, from the
apparent secrecy of technological process
to the acceptance of false results regarding
the actual profit of the multinational
companies by independent external
auditors.
As a consequence of the specific train of
events and the transparency required by
stock markets, corporate fraud cannot
remain hidden. A corporate crime
committed and concealed today will always
be found in far worse shape tomorrow
because for hiding the commission of this
crime other criminal acts will be
compulsory, just like the rolling snowball
that grows bigger and bigger, reaching, in
the end, the moment of truth that reveals
the only acceptable solution -bankruptcy.
However, in this context, it would be
interesting to identify all the causes that
allow the concealment, even temporary, of
inaccurate behavior based on which other
economic catastrophes such as bankruptcy
of large or very large businesses which
distort national economies and, in some
cases, even the global economy could be
avoided, either by legal rules applicable at a
national and international level, or based on
77
specific rules created by each corporation.
Corporate Fraud
Without referring to the multitude of
fraud definitions, I would personally define
it as an infringement of property as a
result of a deviant behavior while managing
those possessions.
Corporate fraud is the result of a deviant
behavior occurred in connection with the
administration of a multinational company,
in this context, administration exceeding
the existing private law concept extending
over the meaning of acts of disposition.
Therefore, as a part of the system, corporate
fraud is a particular display of the criminal
phenomenon, having its own identity,
characteristics and functions.
One of the questions arisen by the
conceptual approach of the corporate crime
phenomenon resides in the necessity of
defining fraud mainly based on the existing
rules in criminal law. The main problem is
the difficulties encountered by legal
authorities in providing a quick trial
without affecting the image of companies
or people.
On the other hand, the idea of self-
regulating a social, economic and legal
process whose subject they were, appealed to
companies. But the present economic and
financial crisis clearly indicated the
ontological and axiological boundaries of self-
regulation which failed to generate the ability
of creating a behavioural model for corporate
actors towards ending the fraudulent
phenomenon or providing even a low level of
transparency and information for investors.
As for the Romanian criminal law, the
concept of crime is not formal, narrowed
down to a mere label that society sticks on
different individuals or disadvantaged
social groups. Established within a legal
regulation (Art.17 from the Penal Code),
this concept reflects the material, human,
moral and legal aspects of the contents of
crime, accentuating the factors that
condition and socially determine criminal
law, the ontological premise of it all.
 For these reasons, based on speeding up
the scientific knowledge about the criminal
phenomenon related to the corporate
environment and the static and dynamic
processes that have a significant impact
upon it, the criminological analytical
approach can generate a contribution to
updating the existing legal regulations
regarding this matter, in order to protect
those social values for which corporate
crime expresses a particular interest.
Business crimes go to court or arise
public attention only in rare and extreme
cases. Embezzlers and tax evasion
criminals have far more chances of solving
their problems outside of court, in
comparison with pickpockets or burglars.
But under the constitutional rules of the
state and of a free society, based on
praising democratic principles, we cannot
accept the incrimination of corporate fraud
through other means than those of the
criminal law, which, supported by
procedural criminal guarantees unique for
every state, are meant to assure the
protection of every type of interest that
arises within the dynamic of the corporate
phenomenon (those of investors, managers,
employees etc).
The Corporate Fraudster
From a legal point of view, a criminal is
a person who, with guilt, commits an act
punishable under criminal law. From a
criminological perspective, the concept of
offender encounters another definition as a
result of taking into consideration all
biological, psychological and social
circumstances that force a human being to
act inappropriate and break the law.
Thus, the corporate fraudster is a person
that breaks the law while managing the
possessions of a corporation. In other
words, the corporate fraudster is a special
kind of criminal that commits crimes in
specific social, economic and legal
circumstances and causes a certain type of
socially harmful effects.
So far, criminology has not been able to
78
prove the existence of certain biological
and anthropological features which would
help distinguish the criminal from the non-
criminal, the law-breaker being considered
the failure of the socialization process.
However, this type of approach is not
acceptable in matters of corporate crime
because the fraudster does not show signs
of weakness in the socialization process,
what is more, he may be considered an
extremely sociable person, straight forward
thanks to personal relationships or made up
by connections required by his formal
activity.
Most common types of offenders that
catch the public eye come, with almost no
exception, from the bottom of society, this
being easily spotted and exploited in the
conflict against society and ethics that the
personality of the corporate fraudster
generates.
Regarding the ethical shortcomings of
the fraudsters personality it has been
noticed that there is a certain moral
philosophy dictated by the fraudsters urge
to rapidly accumulate huge amounts of
money then invest it in real estate and
luxury goods, a philosophy identical to that
of Italian family business dealing.
That is why I consider it advisable to
study the biological, psychological, social,
economic, cultural references that are of
crucial importance for choosing the
criminal conduct and the way to commit
crimes, in the domain of corporate fraud.
The corporate fraudster should be
evaluated in terms of psychological and
social circumstances that dictate his
behavior throughout his life, circumstances
that can be defined as follows: As a result
of globalization, current regulations tend to
mainly favour the countries and the
individuals that have already gained
economic power. Naturally, the richest
most powerful people successfully
influence the enforcement of global rules to
their own benefit, even those that are
supposed to restrict their freedom.
Nevertheless, the feeling of belonging to
this type of elite group is exactly the one
that provides them with the freedom to act
as they please while managing companies
or investment funds.
The Victims of Corporate Crime
For the past three decades, criminology
focused its scientific researches on a new
subject, mainly the victim of crimes,
generating the premises of a new science
being born-the science of victimhood/
victimology. Recent criminological
approaches indicate the existence of a
complex bond between the criminal and the
victim , being considered that in the
commission of the crime, the victims
contribution cannot be left out from the
context of a complex causal model.
Such models are fully acceptable in
areas where the offender-victim
relationship has different components (
sexual violence, theft, robbery, murder,
duress, fraud and so on). The direct
relationship between the offender and the
victim may present some crucial
components in the dynamic transition to
take action (aggressive behaviors, previous
conflicts etc).
Corporate crime is a special type of
criminal activity. Basically, it is the crime
of the insiders, the people who
theoretically belong to the world where
there are no financial hardships, the ones
that wear expensive clothes and gold
watches, that have succeeded in life, and, in
the spotlight, they might seem role models
for young people that want a career in
business, it is the crime of those who find it
easy to talk about moral concepts and
business ethics.
Therefore, it cannot be considered that,
within the domain of corporate crime, the
relationship between victim and criminal is
extremely necessary for the scientific
approach, because, on the one hand there is,
sometimes, no direct connection between
the counterparts and on the other hand, the
purpose of the corporate fraudster is not to
79
directly harm the victim but to satisfy his
personal financial interests.
Some authors, such as Ph. Robert,
support the impact victimological studies
have upon the decreasing of actual crime
rates, an aspect that can be taken into
consideration in matters of corporate crime,
for example the shortcomings of the intern
financial control system for the victim
(multinational company) which allows the
author of the fraud to embezzle significant
amounts of money.
The social reaction against corporate
crime
Directed at identifying ways in which
crime can be prevented and controlled,
criminology cannot exclude from its object
of study the formal and informal social
reaction to the crime.
This reaction may occur both ante-
factum, by means of strategies and
programs for prevention and post-factum,
through justice, treatment, resocialization
and reintegration of offenders.
The situation becomes special when
studying the social reaction against
corporate crime, whose double peculiarity
lies in the inefficiency of prevention
programs on the one hand, and on the other
hand, the difficulties in achieving justice in
this case and particularly in the inability to
reset the previous situation.
But social reaction is vital for such
large-scale fraud affecting a multitude of
interests from investor or shareholder
interests to the interests of the state, which
is required to ensure the competition
framework in the economy.
Addressing the social reaction of
corporate fraud from the criminology
phenomenon perspective is set by the need
of a way to fit it to the criminal reality and
to the dynamics of its evolution. In this
situation, identifying deficiencies in
preventive programs may lead to
reassessment of repressive criminal policies
and of operational and strategic
management of institutions involved in the
fight to prevent and combat this type of
crime.
The great shortcoming of modern
society in dealing with corporate crime is
that the criminal system works in the
bottom layers of society and not in the
top ones.
Corporate crime causality plays a
double role: that of the purpose of the
criminological study, but also the object of
the criminology of this kind of deviance.
Likewise, the issue of social reaction in the
case of corporate crime bears interest and
utility to the extent that the accelerated
social dynamics of the phenomenon
determine the occurrence of deficiencies in
the mechanisms, regulations and
institutions involved in the anti-fraud
system.
But on the other hand, society itself is
the one that allows the expression of these
negative phenomena by the halo that it
gives people without managerial vision and
ethical behavior scale, which are presented
as true business gurus, whom it would be
immoral to not allow any kind of
experiments with the companies they run.
Genuine social reaction may not be
appropriate as long as state and private
entities involved in monitoring the
multinational corporations do not make the
appropriate stand when identifying
situations that may suggest that actions
taken by these corporations can seriously
affect legality or the interests of persons
involved or of third parties.
This is always doubled by the
multinational companies policy of masking
test failures and attempting to compensate
the effects of their fraud by accounting or
financial measures or by loss transfer to
other branches or subsidiaries, thus
hindering the normal reaction, which would
be to remove the guilty and reset the
previous situation.
The criminology of the corporate
phenomenon is undeniably a descriptive
and explanatory function, to which we can
80
add the predictive function (anticipatory)
and the prophylactic (preventive) function.
The phenomenology of criminality was
an essential condition for understanding the
scope of criminology. H. Mannheim
includes within the notion of
phenomenology or symptoms of crime, the
observation and data collection on crime
and criminals, offender typologies of
criminal behavior, the physical and
psychological characteristics, the evolution
of their criminal careers, the status and
dynamics of the antisocial acts committed.
Addressing corporate crime from the
criminology descriptive function
perspective will be established via
descriptive study both the existence of
significant differences between criminals
and non-criminals, and the evolution of
crime on a given territory, in a given period
of time.
The operational concepts of descriptive
nature generally used in criminology and
which may be of interest for corporate
criminology are: the environment, the land,
the personality and the act.
The environment is an operational
concept that comprises several meanings:
The physical or geographical
environment is the natural environment in
which life and human activity take place.
Theoretically, landforms, climate, weather
all these leave their own mark, in varying
degrees, on the human personality. In my
opinion, this kind of environment does not
have a relevant influence on the mechanism
of taking corporate crime actions.
The social environment can be
addressed at macro or micro level, just as it
can mean ecological, cultural, economic
environment, etc. The descriptive analysis
method in criminology distinguishes
between the global social environment on
the one hand and the personal environment
on the other hand:
The global social environment
includes all the historical, cultural,
institutional factors, etc. Which influence
all members of society; this kind of
environment exerts an influence on
potential corporate fraudsters who fructify
their own psychosocial development by
relating to the values of the groups they
have been part of, the schools they have
graduated and the formal and informal
values of society as a whole.
The personal or psychosocial
environment includes the dominant
interpersonal relationships, the psychosocial
statuses people have achieved, their common
goals and actions the behavioral models
promoted, the system of values and norms.
Regarding the personal or psychosocial
environment, the Belgian criminologist E.
Greeff distinguished between:
- Inescapable environment (family
environment);
- Casual environment (school, business
etc.).
- Chosen or accepted environment
(entourage)
In the field of criminology corporate the
environment can have a predominantly
etiological relevance, somewhat
overlapping the Freudian super-ego area.
But the descriptive approach cannot be
reduced to an exhaustive explanation of the
environmental influence on personality in
the design and realization of criminal
resolution.
The corporate fraudster is a criminal
coming from the social environments that
he accesses and which in some cases
represent the passage way through which
the criminal act is accomplished.
The land is a concept used to designate
the bioconstituonal features of the
individual. In the area of corporate crime
this concept has, in my opinion, only a
residual value, without having a decisive
influence on the mechanisms of taking
action.
The personality means the human
subject considered as a biopsychosocial
unit, bearing the epistemic, pragmatic and
axiological functions. Personality is the
81
fundamental concept in the area of
criminological analysis of corporate crime.
Essentially, the personality as a
psychological entity would be the one to
naturally activate the mechanisms that
inhibit the criminal process of the corporate
fraudster. In other words, even if the
situation would allow for criminal acts, the
most efficient psychological intervention
should take place at the personality level
the prevailing area of evaluating and
building the general and situational ethical
norms.
The situation means, by and large, the
aggregate of the objective and subjective
circumstances that precede the criminal act
that the personality is a part of.
The Swedish criminologist Olof
Kinberg has given a special importance to
the pre-criminal situations, distinguishing
between:
The specific or dangerous situations
when the opportunity does not need to
be sought by the criminal
The nonspecific or amorphous
situations when the opportunity has to
be sought by the criminal
The mixed or intermediary situations
when, on the one hand the opportunity
is sought, and on the other hand there
is a specific stimulus resulting from
the pressure put on the individual to
commit the crime.
The criminal act is the answer that the
personality gives to a certain situation.
In clinical criminology, the personality-
situation complex constitutes the
fundamental scheme of explanation for the
turning to action.
Also, when tackling the dynamics of
corporate crime, the correlative analysis of
a multitude of factors, some which are:
The indicators of social and
economic development
The prevailing cultural type
The criminal policy model
The legal framework
Corporate criminality can be encouraged
by the decriminalization of some types of
actions or by a certain cultural tolerance at a
social level towards some forms of deviance,
and by the social and economic development
level of that society.
Thus, when considering the explanatory
function of criminology, knowing the
nature, the essence, the causes that
determine and the conditions that
encourage or determine the phenomenon of
corporate crime is the objective of the
criminological proceedings we intend to
undertake.
But from the utility perspective, the
explanatory function of criminology can
prove most useful in identifying the causes
or motives that generate corporate crime
and also the conditions that encourage it,
which are vital aspects in the
methodological perfecting of the strategies
and measures for fighting this kind of
phenomenon that we will bring forward.
Another fundamental function of
criminology, generally speaking, is the
predictive function, based on the reason of
importance of the predictability of a
criminal phenomenon, capable of leading to
the fine-tuning of the reply mechanisms of
the society.
World criminality can be characterized
by the coexistence of the classical forms of
social and cultural maladjustments, and also
of the hyper-adapted forms of organized
crime and in the white collars, as well as
the appearance of new forms, from one step
to another, which make the national and
international forums, specialized
institutions and scientists more and more
worried.
The absence of a normative definition
of business criminality, doubled by the
ambiguity of the criteria that should set the
categories of crimes that are comprised in
this phenomenon leads to highly relative
and rough conclusions.
In order to make predictive models,
criminology turns to scientific models from
other fields of knowledge, from
82
mathematical models, to informational and
heuristic ones.
Research has the main goal of
anticipating the quantitative and qualitative
changes in the dynamics of the criminal
phenomenon, both concerning the criminal
typologies and the authors involved.
The approach of corporate crime using
the explanatory function of criminology
allows for revealing the striking traits of the
dynamics of the phenomenon, the economic
spheres that are most exposed in a given
socio-economic context or the elements that
induce the highest risks at a given point.
But, in the context of the present-day
social and political changes, of the multiple
cause imbalances and of the tense processes
they have caused, the issue of preventing
and fighting the scourge of corporate crime
cannot be neglected, regardless of the
economic or political costs, since the
prevention strategies have never reached
the expected level of efficiency.
The prophylactic function materializes
in summarizing the results on the etiology
of corporate crime, thus allowing the
synchronization of the prevention strategies
and, especially, the fight against this kind
of phenomenon. But it would be unfair not
to note that the approach of corporate crime
through the preventive function of
criminology world be inefficient, since the
preventive models or the social reaction
have no compensatory effects in
comparison to the gravity of some
illegalities committed in the corporate
crime area. Moreover, the issue of
resocialization or the social reintegrations
of the authors of such forms of crime are
peripheral compare to the need to repair the
damage caused by those crimes.
On the other hand, issuing forecasts in this
area of criminal activity is difficult to achieve,
as a result of the multitude of factors involved
in their achievement, and the mathematical
models involved could be easily contradicted
by the realities on the field.
 Bibliography
A Comparative Analysis of Corporate Fraud - Sally Ramage, editura Universe Inc 2006
Corporate Fraud: Case Studies in Detection and Prevention - John D. O'Gara. Editura John
Wiley & Son
E.de Greeff-Introduction la criminologie- Bruxelles, Ed.Van den Plas
F. Fukuyama- Marea ruptur- Edit. Antet, Bucureti 2001
G.Kellens- De l'utilit de la criminologie speciale, Revue de droit pnal et de
criminologie, 1986, nr.7
G.Pisapia- Fondamento et oggetto della criminologia -Padova, Ed.Cedam, 1983
H.Goppinger- Kriminologie- Mnchen, Ed.C.H.Beck, 1971
J.M. van Bemelen- Criminologie- Tjeck Willink Zwolle
J.Picca, O en est la criminologie, Revue internationale de criminologie et de police
technique, nr.4., 1985, p.386.
J.Pinatel- Programmes et mthodes en recherches fondamentales, n vol. Etudes
rlatives de la recherche criminologique, Consiliul Europei, vol.I, 1967.
Ph.Robert,-Les comptes du crime- Paris, Ed. Le Sycomore, 1985
R.M. Stnoiu, Introducere n criminologie, Ed.Academiei, Bucureti, 1989
S.Hurwitz- Criminology- London, Ed.George Allen and Unwin Ltd.,
Th.Sellin- Culture, Conflict and Crime- New York, Social Science Research Council,
1983
V.Dobrinoiu, Gh.Nistoreanu, I.Pascu, I.Molnar, V.Lazr, A.Boroi, Drept penal- partea
general, Ed. Didactic i Pedagogic, Bucureti
Z. Bauman- Globalizarea i efectele ei sociale- Edit. Antet, Bucureti 2003

83
 TYPES OF FRAUD IN INSURANCE

Lecturer PhD. MARIUS PANTEA

Police Faculty - A.I. CuzaPolice Academy
PhD. ANTA OVIDIU
Adviser - Control body of the Prime Minister

Types of insurance fraud are very diverse, and occur in all areas of insurance.
Insurance crimes also range in severity, from slightly exaggerated claims to deliberate
ones,causing accidents or damage. Insurance fraud poses a very significant problem,
and governments and other organizations are making efforts to deter such activities.
Keywords: insurance, reinsurance, fraud, RCA, CASCO insurance, green card.
Specific terminology short period of time;
1. insurance activity activity 6. co-insurance operation in which
conducted in or from Romania, which two or more insurers subscribe the same
means, essentially, providing, mediating, risk, each assuming a share of it;
negotiating, concluding of contracts of 7. portfolio insurance all or part of the
insurance and reinsurance, premium insurance contracts concluded by an
income, liquidation of damages, regression insurer;
and recovery activities, and investing or 8. Gross written premiums premiums
taking advantage of their own funds and received and receivable, including re-
attracted by performed work; insurance premiums received and
2. insurance operation by which an receivable, related to all contracts of
insurer constitutes, on the principle of insurance and re-insurance contracts, which
mutuality, an insurance fund, by come into force in the financial year, before
contributing a number of policyholders, deducting therefrom any amounts;
exposed to certain risks, and compensating 9. net premiums subscribed gross
the people who suffer injury on account of written premiums less the amounts paid and
the fund, consists of premiums received, payable as re-insurance premiums;
and on behalf of other income resulting 10. gross premiums earned/received
from activity; total earned premiums, including re-
3. insurant person who has an insurance premiums earned during the
insurance contract concluded with the reference period, before deducting
insurer; therefrom any amounts;
4. insurer Romanian legal person 11. net premiums earned/received
authorized by law to carry out insurance gross premiums received less the amounts
business, branch or subsidiary of an insurer paid as premiums for re-insurance;
in a third country, as well as a branch of an 12. re-insurance insurance operations
insurance company or a mutual company of an insurer or re-insurer of a re-insurer;
from a Member State, which received a 13. self- restraint part of the risk rests
permit from the competent authority of the with the insurer after insurance deduction;
Member State of origin; 14. mutual insurance company civil
5. catastrophe an event or series of legal entity whose members are both
events that causes substantial damage in a insured and insurers;
84
 15. competent authorities national
authorities which, by law or other
regulation, are empowered to supervise the
insurance market;
16. unit of account euro as defined in
Art. 4 of the Statute of the European
Investment Bank89;
17. durable support any means that
allows the customer to store information
addressed to him, in a way accessible for
future use, in an appropriate time period for
the purpose for which information was
provided and which allows accurate
reproduction of it on floppy disks, CD-
ROM, DVD, central units of computers on
which electronic mail is stored, except for
Internet sites, that do not meet the criteria
for storing and reproducing information;
18. contractor's insurance person who
enters into a contract to provide risk
insurance for another person and the insurer
undertakes to pay insurance premium;
19. motor vehicle self- propelled
vehicle, including trailers, semi-trailers or
towed sidecars or unaccompanied, as
appropriate;
20. injured person person entitled to
compensation for damage suffered as a
result of the occurrence of a risk covered by
a liability insurance contract;
21. prejudice the injured person
suffered a negative effect by producing a
risk covered by liability insurance contract;
22. National Office professional
organization90 bringing together insurance
companies which are licensed to practice
auto liability insurance;
23. Vehicle Insurers Office in Romania
national office in Romania;
24. territorial limits of liability
89
for the equivalent in lei will be used the
RON/EUR exchange rate communicate by the
National Bank of Romania for 31 December of the
financial reporting year
90
formed in accordance with Recommendation no.
5 of 25 January 1949, adopted by Road
Transportation Sub-committee of the Inland
Transport Committee within ONU Economic
Commission for Europe
85
insurance coverage for damage caused by
car accidents:
a) in Romania;
b) in territory of the Member States of
the European Union and European
Economic Area;
c) within the territory which relates
directly to two European Union countries
where there is no national office.
25. Green Card international
insurance document issued on behalf of the
National Office91;
26. franchise part of the damage
sustained by the injured party, set at a flat
fee or a percentage of total compensation
under the insurance contract;
27. insurance intermediaries normal or
legal persons, hereinafter referred to as an
insurance broker, insurance agent, sub-
agent or sub-ordinated insurance agent,
which carries on insurance mediation in
exchange for a commission/remuneration,
licensed or registered under the terms of
this law and rules issued under it, and
intermediaries in the Member States
conducting activities in Romanian
insurance mediation, under the right of
establishment and freedom to provide
services, as appropriate;
28. re-insurance intermediary
Romanian normal or legal person
authorized under this law, hereinafter
referred to as re-insurance brokers, who
arranges, for a commission/remuneration,
mainly, re-insurance, and intermediaries in
the Member States who carry out activity in
Romania as a reinsurance intermediary,
under the right of establishment and
freedom to provide services, as appropriate;
29. insurance broker:
a) Romanian legal person, authorized under
this law, who negotiates for his/her customers,
individuals or legal entities, insured or
prospective insurees, contracts of insurance or
re-insurance and assistance, before and during
the contracts, or in connection with settlement
of damages, as appropriate
91
idem
 b) an intermediary from a Member State
with intermediation activities in Romania,
under the right of establishment and
freedom to provide services.
30. brokerage assistants normal or
legal persons under contract with an
insurance broker and/or re-insurance who
receive a mandate in relation to a warrant
for their brokerage and, under the
professional liability broker contract in
question, should undertake some activities
needed for carrying out the mandate of the
brokerage;
31. brokerage mandate contract
between an insuree or potential insuree,
under mandate, and insurance broker and/or
re-insurance, as mandatory, by which the
negotiation or conclusion of contracts of
insurance or reinsurance is mandatorily
entrusted, providing assistance before and
during the contracts or in connection with
settlement of damages, as appropriate;
32. insurance agent person or entity
empowered, upon the authorization of an
insurer or re-insurer, to conclude on behalf
of, and insurer or re-insurer account,
insurance or re-insurance contracts with
third parties, under the conditions stipulated
in the warrant signed, without having the
capacity of insurer or re-insurer, insurance
broker or re-insurance;
33. sub-agents individuals, other than
the conducting insurance agents legal
person, which occupy an employee status
who work under labour contract with the
legal entity and acting on their behalf;
34. sub-ordinated insurance agent
normal or legal person who carries out
insurance mediation on behalf and on
account of one or more insurers, where the
intermediate insurance products must not
be competing, they are acting under the
overall responsibility of those insurers,
according to intermediate products. It is
considered a sub-ordinated insurance agent
the normal or legal person who carries on
insurance mediation in addition to principal
professional activity, whether or not
brokered insurance products are
86
complementary goods or services provided
by credit institutions;
35. insurance mediation activity the
activity of entering, proposing or
performing other preliminary activities of
concluding the insurance contracts or
providing support for the administration or
fulfillment of contracts, particularly in case
of damage.
These activities will not be considered
as insurance mediation activities, if they are
met by an insurer or an employee thereof
acting under the responsibility of the
insurer. No insurance mediation activities
will be considered as follows: providing
information on an occasional basis, in the
context of another professional activity
whose purpose is not to provide customer
support for the conclusion or administering
a contract, the administration claims of an
insurer on a professional basis, as well as
settlement of damages;
36. the activity of mediation in re-
insurance the activity of entering,
proposing or performing other preliminary
activities of concluding the re-insurance
contracts or providing support for the
administration or fulfillment of contracts,
particularly in case of damage. These
activities will not be considered as re-
insurance mediation activities, if they are
met by a re-insurer or an employee thereof,
acting under the responsibility of the re-
insurer.
No re-insurance mediation activities
will be considered as follows: providing
information on an occasional basis, in the
context of another professional activity
whose purpose is not to provide customer
support for the conclusion or administering
a contract, the administration claims of a re-
insurer on a professional basis, as well as
settlement of damages;
37. bank assurance the distribution of
insurance products complementary to
products of credit institutions, conducted by
the credit institutions network and/or
offering of insurance products and products
of credit institutions through common
distribution channels with the provisions of
this law and its enforcement rules issued;
38. place of domicile territory in which
the vehicle is registered or: in case where is
not required registration for a particular
type of vehicle, but the car has insurance
plates or a similar distinctive registration
plate, the territory in which insurance plate
was issued or sign has been issued; or
where no registration plate, nor insurance
plate and no distinguishing sign is required
for a particular type of vehicle, the territory
of the person who has permanent resident
vehicle.
General issues concerning fraud in
insurance / re-insurance
Each year, insurance companies record
losses generated by various scenarios that
constitute insurance fraud. Fraud is the
process whereby one or more individuals or
groups defrauds by words or deeds known
to be false and cause other individuals or
groups to commit something that they
would not otherwise commit or not commit
to something that should otherwise be
enforced, thus causing losses. For fraud to
occur there must be knowledge of guilt and
it is often difficult to determine with
certainty. Those who commit fraud know
this and often try to cause confusion
through the elements involved, so that it
becomes impossible to prove guilt of false
evidence (by those who commit fraud),
though everyone is aware of its existence.
Many cases of fraud or theft by fraud use
forged documents, sometimes an entire
portfolio of forged documents, therefore,
they are fraudulent acts.
Insurance fraud is a phenomenon with a
cross-border dimension difficult to control
and master, exercised in accordance with
crime. Methods to defraud the insurance
companies grow with the market profile.
The phenomenon whereby the insured
normally considers to be compensated with
improper compensation by virtue of the fact
that have contributed for years to the
insurance fund is called in the specialized
literature compensational culture.
87
In the insurance premium the risk of
losses from fraud is also included. Most
people do not consider a crime (mistakenly)
that their colleagues have attempted -
sometimes successfully - insurance fraud.
The occurrence of insurance fraud is
closely linked to the existence and
development of insurance. The need for
insurance is always seconded by immoral
actions of individuals. Fraud affects the
whole spectrum of society, direct insurers
and each individual indirectly, including
state bodies and state budget.
The insurers are financially affected by
the amounts unduly paid as compensation
for damage compensation staged or real,
but un-insured risks arising from them. In
order not to affect the image of the
insurance company cases are passed over in
silence. Financial effect of fraud is taken
into consideration over the coming years by
increasing the insurance premium which all
fair policyholders will pay.
Fraud entails movements of funds.
Structures to combat organized crime and
money-laundering have been found as close
allies between criminal organizations and
car owners who declare their cars stolen
these are subsequently taken over by
criminal organizations, the owners cashing
insurance claims.
In terms of involvement of those who
commit fraud these are divided into:
Internal fraud produced through
involvement of insurer's employees:
insurance agents, managers,
inspectors, chief executives against
the company or the insured. Internal
frauds are caused by: a) insurance
agent appropriates the premiums
received, issuing a false bill or none.
b) agent or insurer, issuing fake
insurance policies and certificates,
fake ID cards; c) agent or insurer
who issue false declarations of
insurance; d) auditor, confirming the
validity of a policy cancellation or
non-existent; e) inspector of
damages, which finds and proposes
 to pay damages caused by a missing
or un-insured risk, oversized; f)
controlling bodies, who carry out
light and "un-observed" clues which
lead to the discovery of a fraud case
covering fabricated fraud; g) chief
accountant, targeting for preventive
financial control an inappropriate and
illegal compensation; h) director or
manager, who did not properly
organize the prevention of fraud,
encouraging phenomenon.
External fraud caused by normal
or legal persons from outside the
insurance company (insured, injured,
beneficiaries of policies, repair
shops, insurance agents, insurance
brokers, medical offices, banks and
others) by the acts and deeds which
lead to unjustified payment of
money. Thus, we find: frame-ups
caused by auto accidents and
voluntary; frame-ups by falling or
sliding accident; theft, burglary or
staged vandalism; intentional arson;
frame-ups of auto theft; frame-ups of
domestic accidents; overpricing
claims; over-statement of car
accidents injuries; over-valuation of
the stolen objects; over-estimation of
health services provided by
modifying the code of medical
surgery performed.
The specific frame of fraud
manifestation
Fraud occurs throughout the insurance
process, from insurance initiation until the
completion of the insured case. The largest
amount of fraud occurs in car insurance,
CASCO, civil auto liability and CARGO.
Regarding personal insurance, fraud
frequently occurs in determining the degree
of disability and the date of the accident
stated.
Conclusion of insurance fraud is
particularly evident for people who have
suffered a damage or an injury, being
uninsured. Wishing to recover the damage
caused by an un-insured risk, the person is
88
seeking a solution to insure. The solution is
primarily, a person who works in insurance
willing to mediate a contract of insurance
for a damaged good or an insurance policy
to a person who has suffered an accident.
In case of insurance of goods the fraud
manifests itself by causing intentional risk
of loss or knowingly increases the effects of
a real risk and insured.
In auto liability insurance fraud has a
peculiarity by the "arrangement of the
parties". In an accident the guilty party will
assume with the insured to pay the insurer
and/or who have less damage so that the
insurer will pay higher damages. To assume
guilt the insured is in turn compensated by
the injured party who was compensated for
by the insurer.
The lack of centralized record databases
from all insurers not infrequently leads to
fraud through the conclusion of insurance
contracts to several different companies. Do
not say to insurers which have concluded
insurances at several companies, as to who
will receive full compensation from each.
The compensation received is in fact a
damage multiplier with the number of
companies where the insurance contract
ended.
Insurance fraud is producing extremely
high damage. Fraud is reflected in the
accounting of insurers by increasing
compensation costs in an exponential way
to revenue increases from insurance
premiums. Fraud is also involving
financially the insurance company
employees which will have salaries covered
by a budget burdened by unnecessary costs.
Fraud also financially affects the
policyholders budget which will have to
pay an insurance premium plus the risk of
fraud from a previous period. The amount
of fraud is affecting the company's financial
situation by requiring it to create much
greater technical reserves and which is, in
fact, unjustified. In terms of financial fraud
cases the company is required to change the
financial arrangements in medium and long
term by withdrawing the investments
prematurely. There are situations in which
persons with high morality are accidentally
involved assisting passively in fraud cases.
For the purposes of the scenario, organized
crime networks often recruit employees
from the insurance system, Police,
Customs, Romanian Auto Registry and
repair shops. For the service provided they
are rewarded materially and financially.
The actions are designed in detail. People
with a high morale have a big role and
beneficial in preventing fraud. Insurers
must select employees in a rigorous way
and after the criteria of moral integrity.
Identifying, preventing and combating
fraud
To say that fraud may be identified and
prevented entirely borders on the absurd.
The insurance frauds as you know have
emerged with insurance.
Identifying fraud is a complex process
without a pre-determined formula, because
data and information is known only in a
limited extent. Identifying fraud is due to:
a) chance; b) complaint; c) flair and
experience of the investigator; d) various
data connections; e) detailed verification of
supporting documents; f) reconstruction of
the facts and confronting statements.
Control bodies and investigative experience
make fraud identification a real science.
Unfortunately detected fraud is not
frequently used by criminals, who are one
step ahead of investigators, who in turn
specialize in the process.
The most frequently used methods to
defraud the insurers discovered by the
bodies with responsibilities in controlling
the activities of insurance companies are:
The theft of luxury cars from
developed countries, to deal with their
owners. After being introduced in the
country, cars are destroyed
intentionally by staged accidents. Guilt
is incurred by a person who has
completed auto liability insurance at a
company in the country. Under this
insurance, the insurance company pays
the damage, and with collected money
89
the team members, buy a new "clean",
car which is sold on the market. In this
case, the original owner, from parent
country, declares the theft after several
days to give the network time to pass
the vehicle through the customs to the
destination and possibly register the
car, then asks for damages also from
home insurance company for theft;
Bringing in the country damaged
vehicles in various degrees of damage,
from Western countries, and after their
introduction in the country are
subjected to staged accidents. In most
of these cases, the guilty party is the
driver of another insured vehicle for
auto civil liability in the country. The
imported damaged vehicle is repaired
through auto liability insurance. These
cars are very cheap in countries of
origin, due to the high cost for repairs,
owners choose to purchase other
vehicles, leaving the damaged one in
storage centers for dismantling;
In some cases there are optional
insurances for damages, CASCO,
damaged cars at insurance request. To
be provided, one has to ensure
completion of a similar vehicle in the
technical and aesthetic features intact;
Buying a car of the off-road category,
with the theft of a similar one, from
Western countries. Purchase actions,
then the theft are followed by the
completion of identical documents for
the stolen vehicle with identification
data of the first vehicle purchased.
Identification data on the chassis are
modified craft and vehicles are sold in
two different countries, in eastern,
respectively Southeast Europe. In
general duplicate vehicle, circulates in
countries that are not affiliated with
INTERPOL office, in which the
legislation is more permissive, either
the law itself, or on the application and
interpretation. In the early 90s up
through 98 and also circulated in
Romanian "clones";
 Providing simultaneous vehicles at
several insurance companies, without
declaring this, followed by intentional
damage to vehicle. Manufactured
accident was notified to each insurer.
Based on records of damage, each of
the insurers has paid full compensation
for losses approved;
Providing vehicles that have no market
value and no interest to buyers, either
due to fuel consumption, or hidden
defects, followed by their deliberate
arson in inaccessible and un-inhabited
places to avoid being seen by witnesses
and requesting compensation for
reported damage ;
Staging of vehicle accidents otherwise
damaged, without the risk of being
insured, in which the guilty party enters
an insured person for auto civil liability
at an insurance company;
Changes of guilt in traffic accidents,
depending on cars value, so that the
insurance company pays the most
expensive car, and the owner, for as
there is no benefit to repair its vehicle
and expenses because in reality they
were guilty, compensating the car driver
who has accepted the change of guilt;
For middle-class cars produced in
Romania plates are placed from
"clean" car on a stolen one and the
"clean" car is "exported" and sold in
other states with "permissive";
legislation
Theft abroad of vehicles registered in
Romania un-insured for the risk of theft
occurred outside the country (foreign
CASCO). Owners, to recover their loss,
set up the theft once again in the
country to validate the optional car
accident insurance valid in the country;
In some cases, goods are insured
against theft, after the event has
occurred. These people, take advantage
of the insurance agent's carelessness in
the inspection of risk or in some cases
the lack of morality and loyalty to
his/her insurance company, declares an
90
event identical with the first staged one,
to cover the loss through
compensation;
Created real situations which call for
employees from compensation
department, to find unofficial damage,
then the damaged property is repaired
and insured in perfect condition. After
a short period of time an identical new
event is declared and set up, and to
prove place as evidence the photos and
finding of the initial damage done;
Justification for repairs and
replacement parts, with invoices,
receipts and fake currency with higher
prices than actual costs with a repair
claim;
Sale of goods insured during transport,
declaring them as stolen and requesting
compensation from the insurance
company;
Buildings and content insurance when
the insured risk is in imminent
production, when snow melts, flood,
weight of the snow, etc.
The large numbers of ways in which
undue amounts from compensation paid
based on insurance can be obtained are a
warning sign to stop the phenomenon. The
management of insurance companies must
organize the work effectively to prevent
and control these cases. The first preventive
measure may be the conclusion of co-
operation agreements on issues of mutual
control and providing specific data, on
persons who attempt or have successfully
committed fraud. It requires an independent
body, specialized in issues of prevention
and control of potential criminals. At this
entity the insurance companies can be
shareholders.
The current techniques to prevent and
combat insurance fraud are implemented
through a current operational control
performed by analysis, expertise and on-site
investigation of the information provided
by policyholders or injured parties and a
subsequent control based on the
investigation technique.
 Operational control is carried out
simultaneously with settlement of the claim
at finding damages by specialist employees.
Subsequent control is performed by
specialized teams in investigations and a
control fund manager, made after the
payment of compensation in large sums.
The control carried on at the presentation
date of insured or the injured party for
determining damages at the damaged
property starts with verifying the existence,
legality and validity of insurance. The
second action is to identify the evidence
presented for finding the damages that must
be the same insured. The applicant must
prove the patrimonial interest through
documents. Once with finding and sizing
the damages, the cases are checked and
production circumstances of the insured
risk, both from documents prepared by state
authorities and through field trips for
sampling. In cases where the amount of
compensations to be granted are more
significant, and the causes of the accident
are unclear, a research on the spot is
carried out, the trace evidence materials are
collected, for conservation for their
expertise. Depending on the situation on the
ground the witnesses who attended the
event are identified and contacted
Monitoring and further investigations are
based on:
a) Identifying causes and location of the
event;
b) Requesting an opinion from
witnesses of the event, the guilty person, if
other than the person who is receiving the
compensation;
c) Comparing documents with the
events described in them by the competent
state authorities (Police, fire-fighters,
Romanian Waters, municipalities, etc.);
d) Checking whether the disputed events
have not actually occurred in another
geographical area or had not been insured in
the past.
The source and validity of documents
91
detailing the purchase of parts replaced and
the payment of the work done to remedy
the damage have been checked.
Verification compliance with regulations in
force of compliance with financial
discipline for the payment compensation, to
ensure that compensation is paid to those
persons entitled to receive payment and
through instruments permitted by law.
Fraud can be controlled by means of
mass communication from anti-fraud
advertising spots at the publication of actual
cases found upon investigation. I believe
that psychological preparation of
employees, policyholders and potential
policyholders must be a priority target for
all insurance companies, including the
Insurance Supervisory Commission.
Psychological Preparation is a complex
mechanism which activates fear of
consequences at the discovery of the crime
and law enforcement. People who know the
law and the consequences of its provisions,
will be reluctant to participate in the act of
fraud.
The above are some of the big problems
for the insurance industry. Insurance fraud
is supported by a relatively large public. In
other words, too many people view
insurance fraud as a sport or as a crime
"without victims". Although seemingly
innocent, insurance fraud is devastating,
destroying everything in its path including
those trying to use it for themselves.
Insurers, state authorities and civil society
must not tolerate attempts by people who
oppose through the use of fraud the
insurance funds. There is the need for a
national organization of anti-fraud activity
and implementation of protocols working
for the exchange information with state
authorities: traffic police and border police,
fire-fighters, forensic authority, Customs
authority, Romanian section of Interpol
with headquarters in Lyon, France and
companies specialized in investigations
from other countries.
 THE COMMUNITY REGULATORY
HARMONIZATION IN THE INTERNAL BANK
Lecturer PhD. MAIEREAN LAURA
Police Faculty - A.I. Cuza Police Academy
PhD. student ADRIAN IONU CHESNOIU

Recognized the complexity and importance of the banking sector led to a constant, at
Community level on supervision of complex mechanisms in the sector, in terms of
compliance to ensure free competition between the players active in these markets and
create a framework from the perspective of protection end consumer.
Keywords:Competition Council, the retail banking service, the European Commission,
SEPA, cross-border competition, the current account
Structural barriers, technical and increased importance of retail services
behavioral regulation and banking and how their pricing;
supervision, method of determining factors that adversely affect customer
interchange fees, the level of price mobility (administrative burden,
transparency and awareness of the information asymmetry and the low
population affects the quality of retail level of price transparency, cross
banking in particular, benefiting consumers selling/banking related products,
and the degree of meet their needs. consumer preferences and choice; fees
European banking sector provides associated with termination of
essential services for retail consumers and consumer services offered by banks);
small and medium sized service savings, application of Directive 2008/48/EC on
loan or payment. However, a number of credit agreements for consumers and
indicators such as market fragmentation, repealing Council Directive
price rigidity and customer mobility 87/102/EEC;
suggest that there may be no effective facilitate exchange of information
competition in European retail banking likely anticompetitive behavior among
market. In this context, the European economic competitors.
Commission proceeded to conduct an To these are added concerns regarding
inquiry into banking - retail services, the implementation of SEPA (Single Euro
especially in terms of cross-border Payments Area), which aims to create an
competition. The results of the final report integrated market for payment services, in
in 2007 recorded the note issues that could which there is effective competition and
lead to future actions of both the European does not distinguish between cross-border
Commission and national competition and national payments euro area.
authorities. A number of sensitive issues Growing importance of retail services
raised by the community, as well as other and how their pricing
specific aspects of the Romanian banking Romania's banking sector has
market have been identified by the undergone significant growth and
Competition Council. diversification in recent years, evidence and
Thus, it plays a few issues raised on the the fact that at the end of 2008 in Romania
operation of certain segments of banking there were 43 credit institutions, 32 of
and financial market conditions of free which authorized the National Bank of
competition: Romania to operate as Romanian legal
92
entities, 10 branches of banks in the
European Union and a cooperative network
of credit. Notable are also a number of
notices regarding the intention of 174
foreign institutions to provide financial
services directly in Romania. For some
applicants, is a first contact with the
Romanian financial market.
In recent years, increasing volatility in
international financial markets with the
urgency required reconsideration of the
banking business strategies, acquisition of
the highest market share in terms of
protecting the interests of shareholders and
meet the needs of consumers being the
main objectives included in the strategies of
key market players bank.
Therefore the degree of profitability of
each unit of money invested in the
institution's capital, correlated with the risk
associated with that activity, is one of the
indicators monitored closely by any credit
institution which seeks to achieve optimal
financial results. In this context, banking
concern in order to achieve optimal results
materialized in retailbanking focus of
attention by industry (retail), though until
recently the retail business was seen as a
complementary activities serving
corporations, institutions and other
international operations financial
spectacular results in recent years by the
retail sector led to a rethink of development
strategies of banking institutions. In this
way, more and more credit institutions have
begun to realize the importance of meeting
the needs of individuals and small
businesses.
Thus, banks in Romania have started to
diversify in order to provide exclusive
services for consumers and small and
medium-saving services, loan or payment.
Despite the extensive range of retail
banking services, increased demand has not
kept pace with the evolution of supply,
remaining far from potential markets in
Romania. On the other hand, increased use
of retail banking has not done uniformly,
the demand for retail banking in
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distinguishing different types of banking
services (payment cards, current accounts),
household income, geographic area or level
training.
In the context of concerns similar to
those developed at European level, but also
to allow Romanian consumers to benefit
fully from the advantages of diversification
of services, in 2008, the Competition
Council proceeded to develop a market
study to include data on retail services
offered by banks during 2005-2007, with
the emphasis on the evolution of two sub-
sectors: current accounts and related
services that payment cards and payment
systems. In this context it was shown that
any transaction (payment, receipts, cash
deposits and withdrawals, direct debits,
credit transfers, scheduled payments,
Internet banking, mobile banking) ordered
by the customer is done through the current
account. Via direct debit, the banks take
care of tracking and payments current
account holder (telephone, electricity, gas),
while the service scheduled payments,
banks can pay regular fixed amounts of
money (insurance premiums, rents, etc.) on
the dates set in advance under contract with
customers.
Current account services are attached in
a continuous diversification. Thus, a
number of banks allowed to operate on the
current account at any bank branch
network, regardless of where the account
was initially opened, the other bank current
account allows the holder to carry out
operations directly, without needing it an
employee of the bank to deposit money into
account or to give orders.
Since 2008, some banks operating in
Romania have decided to attach the current
account and saving components like term
deposits, current accounts facilities benefit
of deposit holders consisting of banking
products that are able to withdraw current
account or deposit money without the
benefit only of interest to view.
Regarding lending regardless of credit
types offered, most banks in Romania
practical interest variables, fixed interest
products are relatively rare. Fixed rate loans
offer customers the opportunity to know
from the beginning all the costs involved in
a loan throughout its lifetime. Fixed interest
rates incorporating the future yields, so they
may be higher or lower than the variable,
depending on long-term prospects. Loans
with floating interest rates provides the
opportunity to apply for a cheaper funding.
But there is a risk that if interest rates rise,
the client still have to pay higher loan rates.
In addition to fixed and variable interest
loans, more banks in Romania have
introduced joint interest loans: interest rate
is fixed for an initial period of one, two,
three or five years, and then it turns into a
variable . Typically, the interest set at the
beginning of the loan is located below the
market average, but then it is possible for
the bank to recover the discount originally
offered by charging a higher interest rate
after the period in which interest is fixed.
Loans to joint interest is an attractive
solution for people who want to contract a
loan for a relatively short period. In this
way, they will take advantage of low
interest in most of the time the contract
runs. In regard to charges that resulted from
the desire to obtain new sources of income,
banks in the retail banking market have
brought a series of commissions, which
were translated into practice (ex.
commissions to pay bills at the counter
bank fees for depositing cash in his account
of the customer, fees for withdrawing cash
from the cashier, fees for revenue, not only
for payments, which means that transferring
money on behalf of a client of this bank,
requires retention of fees, fees for current
accounts inactive/dormant, various
commissions typical loan products).Other
types of fees used by banks are interchange
fees, those fees are paid from the paying
bank and the beneficiary bank for
settlement or payment for providing
additional services related to that payment.
Therefore, interchange fees relate to fees
paid between banks but are considered by
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banks in setting fees that individuals and
businesses charged for each payment
transaction.
The study shows that although fees for
interbank payments were reduced by 33%
since the introduction of electronic payment
system, but they remain relatively high
compared to those applied in EU countries.
The Competition Council in the analysis
method of determining interchange fees for
payment cards market, and issues related to
banking and interbank market in Romania.
Another practice is that of bank-related
sales of retail banking products. Sales tied
selling practices of two or more banking
products together, the package, and at least
one of these products is sold separately. For
sales related, customers are forced by the
credit institution to buy an additional
product to one that intends to acquire.
The results obtained during the study
shows that banks require their customers
seeking to contract a loan to open a current
account at the bank. Also, banks require
their customers to open their mortgages
current account loan contracting. And for
customers who wish to obtain a credit other
than mortgage loans, it appears that banks
use the practice of bundling.
The ability for customers to opt for a
bank over another, and their ability to
change the banking institution that works at
a time, are key factors determining the level
of competition in the retail banking market.
To opt for a new credit institution,
customers must have accurate and complete
information about the products offered by
banks that operate in a given market. At the
same time, customers should be able to
change the bank service provider.
Dynamics of customers from a credit
institution to another bank to continuously
adapt their offer to meet changing
consumer needs. On the other hand, the
inability of customers to choose new credit
institutions offer convenient, allows banks
to obtain undeserved benefits from the
relationship "forced" long, they set with
their customers. For this reason, customer
mobility and their ability to choose new
credit institutions under favorable
conditions have profound implications on
the intensity and nature of competition in
the retail banking market.
When a customer identifies a bank's
products and services with superior quality
offered by a rival, it will be to compare the
financial benefits of switching to the costs
of banking services that involve the change.
Factors that adversely affect customer
mobility
The results obtained from the analysis
of customer mobility and choice of the
following aspects of their competitive
nature:
existence of factors that can negatively
influence customer mobility
(administrative burden, information
asymmetry and low price transparency,
cross selling / banking related products,
consumer preferences and choice,
termination fees associated with
services offered by banks to
consumers);
the mobility expressed by consumers
changing share of the credit institution
for one year is relatively lower than the
European average;
Another impediment to mobility
customers is the unilateral amendment of
contracts. This practice is widespread,
while retaining the credit institutions in
general, the right to unilaterally modify
existing contracts. Even if the changes are
announced before they become actual
customers, most often that period of time is
insufficient to identify alternatives to the
customer. Finally, it is required to approve
changes to the contract so that would not
have agreed otherwise.
Impediments/deficiencies facing the
customer in decision making towards
finding a viable alternative are manifold.
The first and most important impediment is
insufficient and inconsistent information
which are available and which are
absolutely necessary not only for the initial
choice of the bank, but for a possible
95
change of it. The category includes the
necessary information covering mainly the
existence and amount of costs that it entails
giving up a financial services provider, one
bank and the practice of bundling of
services/ products. In this way rational
decision-making and fast without all the
facts underlying the assessment of quality
and price of a specific product becomes
extremely expensive and difficult. Safety a
good choice, a choice that corresponds to
the real needs of the client, can only be
achieved in full knowledge of all the
benefits and risks it entails, which is
possible only if the client has adequate
information quantitatively and qualitatively.
In conclusion, given that banks
operating in the retail banking market
competing against each other in terms of
prices (fees and interest rates), geographic
location (distance from the client), brand
image and service quality offered, it seems
necessary to increase transparency in the
setting of prices for each service structure,
terms and conditions offered to the
development of search engines that allow a
real and immediate than the alternatives.
Application of Directive 2008/48/EC on
credit agreements for consumers and
repealing Council Directive 87/102/EEC
The objective of this directive is "to
develop a credit market more transparent
and effective in this area without internal
frontiers, essential for promoting cross-
border activities." In this frame, the
provisions aimed at protecting the
consumer more effectively, by creating a
set of rules that ensures the opportunity to
make a fully informed decision, by
requiring banks to comply with an
obligation of transparency regarding
contractual terms and conditions the client
will follow, be noted that purport to
regulate the early repayment fee.
Thus, the consumer recognizes as a
principle, entitled to be paid at any time, in
whole or part of its obligations under a
credit agreement.
It also stipulates the right of not calling
the creditor (bank) compensation for early
repayment of the loan in certain cases, such
as when "early repayment comes at a time
when the borrowing rate is not is fixed.
The ability for customers to opt for a
bank over another, and their ability to
change the banking institution that works at
a time, are key factors determining the level
of competition in the retail banking market.
Dynamics customers credit from one
institution to another bank to continuously
adapt their offer to meet changing
consumer needs.
Although the scope of the Directive is
relatively small, namely consumer credit
provided to the population, which excluded
certain categories, such as credit
agreements secured by mortgage on
immovable property or similar guarantees,
credit agreements for the acquisition/
keeping ownership of property (land or
building), credit contracts whose value is
less than or greater than EUR 200 EUR 75
000, etc.., the Competition Council
considers that the legislation could apply to
a wider range of loans.
Thus, the Competition Council proposes
economic operators active in the financial
services market in Romania considering the
possibility of extending the provisions
mentioned, that the waiver of the fee
charged for early repayment of the loan,
and credit other than those contained in the
European legislative act, including some in
those categories on which the directive
exempts them, as I stated earlier. In fact,
the same concern exists in the Community,
particularly in terms of loans secured by
mortgages, the main topics of this approach
is embodied in the Commission's
Communication White Paper on the
Integration of EU mortgage credit markets.
The Commission considers early repayment
as one of the most important to integrate
EU mortgage markets and believes that
uniform regulation of this matter by the
laws of Member States would enable the
full benefits of this integration. This would
help to improve the growth of customer
96
mobility, the consumer having a real
opportunity to choose the best suited to its
needs, without being artificially held
captive in a contractual relationship that no
longer meet his expectations.
Transposition and implementation into
national law Directive 2008/48/EC of the
European Parliament and the Council of 23
April 2008 on credit agreements for
consumers and repealing Council Directive
87/102/EEC was achieved by adopting
Ordinance nr.50/2010 on credit agreements
for consumers, which is required to allow
creditors to meet obligations under the
European legislative act so as to attain the
objective of creating the Community's
internal market, which requires that a
uniform regulatory framework to the
European Union.
Given the fact that without immediate
regulation of consumer credit contracts they
can not enjoy the rights provided by the
European legislative act and that, in this
way would create a distortion of
competition in the banking market, taking
into account the fact that encourages the
enactment of consumer mobility in the
sense of being allowed to move their loans
from one lender to another advantageous
conditions. May contract, consumers'
ability to repay early without paying the
contracted amount excessive penalties in
the general economic and financial crisis
impact on income per family.
Act creates new regulatory framework
for recovery loans in terms of transparency
and free competition, thus instituting
mechanisms to maintain a sufficient level
of solvency both debtors and creditors,
thereby avoiding the possibility of
triggering an infringement procedure The
European Commission against Romania,
taking into account the fact that these issues
concern the public interest and constitutes
an emergency, extraordinary, whose
regulation can not be postponed, according
to article 115 paragraph 4 of the
Constitution.
Exchange of information likely to
promote anticompetitive conduct between
competing economic agents
The international banking market
players have developed various forms of
cooperation; the most common example is
setting up an organization to support the
activities of its members. Was established
in Romania Romanian Association of
Banks - ARB, established as a non-profit
professional association. Among its main
objectives are to represent and defend the
interests of its members, promoting the
principles of banking policy in the areas of
general interest members, promoting
cooperation between banks and with
national, international and banking
associations in other countries, improve the
training of specialists the banking system,
providing press relations. There are forms
of cooperation that generate benefits both
economically and for the consumer, such as
those relating to the establishment of
technical standards, infrastructure or
security systems. At the same time, it is
recognized that certain forms of
cooperation are serious forms of violation
of competition regulations.
Among them we can mention banking
cartel bilateral and multilateral agreements
with preferential terms or exchange of
information deemed "sensitive" about
prices, costs, customer development
strategies. Also in the same category
included any form of cooperation which has
the purpose or effect of restricting
competition between players on the
banking market or exclude new entrants.
Nationally, in the context of the
information required by the Competition
Council of the banks active on the
Romanian market data that formed the basis
for the study on the retail banking market,
the ARB found involvement in preparing
the answers that banks would have had to
individual draw, given that, at least
theoretically, each bank has its own
conditions and products.
The declared purpose of the meetings
initiated by ARB with its members was to
97
sum up the problems and difficulties that
banks were facing in reporting data
required by the competition authority. It
should be noted that the information
requested is part of those considered
"confidential" as envisioned market
strategy of each bank, the interest and
commissions, corporate and customer
behavior.
Competition Council draws the attention
of the Romanian Association of Banks that
any involvement in facilitating and
initiating meetings with members to
exchange sensitive information in terms of
competition is likely to distort free
competition.
SEPA project Ensure a normal
competitive environment so satisfying
consumers, and an efficient allocation of
resources in the economy
To keep these mechanisms in running
rules and institutions are necessary to
ensure compliance and to intervene when
certain acts or deeds may lead to the
elimination or distortion of competition in
the market.
Purpose of establishing the Single Euro
Payments Area - Single Euro Payments
Area - SEPA is to create a stronger
European integration, by ensuring a
competitive and transparent low-value
payments in euro, leading to better quality
services, products more efficient and
cheaper alternatives for making payments.
It is expected that the introduction of
SEPA to produce a substantial
improvement in the treatment of consumers
in terms of fees and commissions, by their
uniformity in the area unique. Instead,
banks will record a substantial reduction in
the volume of revenues from fees and
charges that will not be able to establish
their status and position under the
individual competition, which will require a
repositioning of the role of income from
fees and Policy development fees of
commercial banks.
In the European Payments Council, self-
regulatory body established by the banking
sector to manage the SEPA, the banking
community in Romania is represented by
the Romanian Association of Banks, acting
as a support organization to join the SEPA
payment schemes.
Romanian Association of Banks (ARB)
manages the implementation and migration
at the banking community, its mission is
collaboration with the National Bank of
Romania, Transfond, Ministry of Economy
and Finance, customers and traders
associations, public authorities, in the
implementation of SEPA payment
instruments. NBR role in the process of
implementation is an observer. The
regulatory environment in which operators
must act in line with competition law both
at national and European level.
Furthermore, it is very important that the
positions held by national competition
authorities are not in conflict with the
European Commission, and accordingly
they are communicated in advance to all
stakeholders.
Given that any initiative on SEPA
requires a high degree of interaction
between economic agents in the market, it
is necessary to determine whether such
arrangements restrict competition and thus
falls under the scope and enforcement of
the provisions of national and Community
competition.
Concerns were expressed to restrict
competition and the European Commission,
these issues are widely debated and
discussed at regular meetings, organized as
working groups, with national members of
the European Competition Network.
Given Romania's representation at both
Biography:
21/1996 as amended by Ordinance nr.75/2010 amending and supplementing the Law on
Competition
Directive 2008/48/EC on credit agreements for consumers
Report on investigation triggered to analyze the food retail sector, September 2009, the
Competition Council
Government Emergency Ordinance nr.50/2010 on credit agreements for consumers
Act on combating unfair competition nr.11/1991
98
the European Payments Council and the
European Commission to support the
convergent points of view within the two
bodies is necessary and appropriate to
inform the Competition Council on the
commitments made by national banking
community to European Payments Council
on the implementation of SEPA in
Romania, by establishing permanent
contacts between representatives of the
competition authority and those of RBA.
Competition Council, in addition to the
appropriate role for restoring and
maintaining a normal competitive
environment, has the role to prevent anti-
competitive agreements between
undertakings, so that through his
intervention to avoid market distortion, but
also of involvement in legislative acts by
preventing the adoption of potentially anti-
competitive impact. Thus, given the
essential functions of the Competition
Council is required the active involvement
and consultation by the ARB competition
authority whenever there is suspicion that
the decision could lead to a restriction of
competition in the relevant market.
In conclusion, the implementation of the
Competition Council recommended
development environment creates the
potential competitive banking market and
to increase the mobility of customers by:
Increased transparency of information to
the client on how to determine the structure
of prices for each service, the terms and
conditions offered to the development of
"search engines" on websites that allow a
real and immediate than the alternatives.
 CASE STUDY: CROSS - BORDER SURVEILLANCE
VS. DISCREET SURVEILLANCE

police inspector LAURENTIU CHIPURICI

The International Police Cooperation Center
The Romanian Police General Inspectorate

Free movement of persons without checks at the common borders. This is one of the
benefits of being a part of the Schengen Area. In order to ensure an area of freedom,
security and justice, the European Union designed and implemented compensatory
measures to facilitate only the free movement of persons, not the free movement of
criminality. The cross-border surveillance and the discreet surveillance are two
instruments at the disposal of those who fight against criminality, which nowadays is not
only a national problem, but a widespread interconnected phenomenon.
Keywords: cross-border criminality, surveillance, police check, bilateral agreement,
Convention implementing the Schengen Agreement, Schengen Information
System
Introduction The main practical impact of Schengen
Free movement of persons without cooperation on everyday life lies in no
checks at the common borders. This is the obligation to present your identity
main purpose and mission of the Schengen document when crossing borders between
cooperation. In this respect, it is congruent Schengen countries (internal borders).
with one of the main principles of European Border checks are not conducted and you
integration. The Foundation Treaties of the may cross the borders anywhere and any
European Communities already declared time - nevertheless, you still need to carry a
the aim of developing the internal market as valid identity document, i.e. a valid ID card
an area without internal borders, ensuring or passport, and respect certain related rules
free movement of goods, services, persons (e.g. restrictions concerning protected
and capital. landscape areas, restrictions when crossing
Despite this, it had taken more than private property, etc.).
40 years before this idea of free movement In order to prevent a negative impact of
of persons could be put to practice - though the removal of checks at the internal
at first, it was at a purely intergovernmental borders on the internal security of the
basis and only in relation to some EU commonly shared area, the Schengen states
countries. The beginning of the process of introduced compensatory measures, set out
gradual development of an area without in detail in the appropriate legal regulations
checks at the internal borders was (the Schengen acquis) and further
connected with a small Luxembourg town, elaborated in the recommendations
the name of which gradually became a concerning their proper implementation in
synonym for a whole set of standards practice.
related to the protection of the external EU A set of these measures forms the
borders - Schengen. 92 Schengen standards, which are binding for
all countries involved. A high standard
92
http://www.euroskop.cz/8422/sekce/the-history- protection of the Schengen area is
of-the-schengen-cooperation/ guaranteed by detail regulations specifying
99
the activities of individual countries,
including their mutual cooperation,
particularly in the following areas:
external border control
police and judicial cooperation
visa and consular cooperation
personal data protection
the Schengen Information System
The target of the todays article is the
cross-border surveillance and the discreet
surveillance, so we will concentrate only on
two areas mentioned above, police and
judicial cooperation and the Schengen
Information System.
Organized crime and illegal migration
are not limited by state borders. Therefore,
despite no border checks, all the
appropriate authorities of the Schengen
states closely cooperate. Apart from the
exchange of information, mutual
cooperation involves radio communication,
establishing joint contact centers,
delegating liaison officers to other countries
or cross-border surveillance and hot pursuit,
which allow police authorities of one
country under some conditions to continue
in their activities in the territory of the
neighboring country.
The Schengen Information System (SIS)
is a joint database used mainly for
searching for persons (wanted, missing,
undesirable) and objects (cars, registration
plates, travel and personal documents,
registration documents for cars, bank notes,
weapons, etc.) in the Schengen area. The
SIS is a necessary prerequisite for the
abolition of checks at the internal borders.
All law enforcement officers have
access to the system analogically to their
national databases. The SIS responds to the
queries in the inquirer's national language.
In this way it is ensured that searching data
from other Member States has the same
application as national search. The
maximum time between the launch of a
search in one country and the moment the
alert is accessible to all countries through
the SIS is 120 seconds. Thus, the system
100
contributes significantly to the effectiveness
and efficiency of international search,
compensating for the abolition of checks at
the internal borders.
In the Schengen area, individual types
of searches are laid down in the relevant
articles of the Convention Implementing
the Schengen Agreement (CISA), one of
them being the discreet surveillance or the
discreet check of a person or vehicle. 93
Legal Framework. Article 40 CISA
paragraph 1 states that the officers of one
of the Contracting Parties who, as part of a
criminal investigation, are keeping under
surveillance in their country a person who
is presumed to have participated in an
extraditable criminal offence shall be
authorized to continue their surveillance in
the territory of another Contracting Party
where the latter has authorized cross-border
surveillance in response to a request for
assistance made in advance. Conditions
may be attached to the authorization. On
request, the surveillance will be entrusted to
officers of the Contracting Party in whose
territory this is carried out. 94
Article 99 CISA paragraph 1,2 and 3
states that data on persons or vehicles shall
be entered in accordance with the national
law of the Contracting Party issuing the
alert, for the purposes of discreet
surveillance or of specific checks in
accordance with paragraph 5.
Such an alert may be issued for the
purposes of prosecuting criminal offences
and for the prevention of threats to public
security:
(a) where there is clear evidence that the
person concerned intends to commit or is
committing numerous and extremely
serious criminal offences; or
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http://www.euroskop.cz/8423/sekce/the-areas-
of-schengen-cooperation/
94
Convention implementing the Schengen
Agreement of 14 June 1985 between the
Governments of the States of the Benelux
Economic Union, the Federal Republic of
Germany and the French Republic on the gradual
abolition of checks at their common borders.
 (b) where an overall assessment of the
person concerned, in particular on the basis
of past criminal offences, gives reason to
suppose that that person will also commit
extremely serious criminal offences in the
future.
In addition, the alert may be issued in
accordance with national law, at the request
of the authorities responsible for national
security, where there is clear evidence that
the information referred to in paragraph 4 is
necessary in order to prevent a serious
threat by the person concerned or other
serious threats to internal or external
national security. The Contracting Party
issuing the alert shall be obliged to consult
the other Contracting Parties beforehand.95
In Romania, these provisions were
implemented very early in the national
legislation. The first provisions regarding
cross-border surveillance were stated by
article 170 of the Law No. 302/2004 last
modified by the Law 222/2008 regarding
international judicial cooperation on penal
matters. In this article was first established
the Public Prosecutors Office within the
High Court of Cassation and Justice as the
Romanian authority in charge of granting
the authorization for executing a cross-
border surveillance by the neighboring
countries.
Due to the fact that the cross-border
surveillance is a complex activity, with
numerous actors involved and corroborated
with the lack of details given by the
provisions of the Convention Implementing
the Schengen Agreement, the Romanian
authorities and also the neighboring
Schengen countries (Republic of Hungary)
and future Schengen countries (Republic of
Bulgaria) concluded bilateral agreements
regarding police co-operation.
The bilateral agreements were useful
95
Convention implementing the Schengen
Agreement of 14 June 1985 between the
Governments of the States of the Benelux
Economic Union, the Federal Republic of
Germany and the French Republic on the gradual
abolition of checks at their common borders.
101
tools because after signing, they were
ratified by each contracting party and
implemented into the national legislation
through national law.
So, in this field, Romania ratified two
bilateral agreements. Through the Law No.
311/2009, Romania ratified the Agreement
between the Government of Romania and
the Government of the Republic of
Hungary regarding the cooperation in the
field of preventing and combating the
cross-border criminality, signed at Szeged
on 21st of October 2008.
Through the Law No. 101/2010,
Romania ratified the Agreement between
the Government of Romania and the
Government of the Republic of Bulgaria on
cross-border police cooperation in criminal
matters, signed at Vidin on 19th of May
2009.
The two laws mentioned above give the
national framework for executing a
surveillance operation both by the
Romanian specialized teams abroad and
also for the neighboring countries teams in
Romania.
Regarding the provisions for discreet
surveillance, also known as discreet check
in the newer EU documents, they appeared
later than the provisions for cross-border
surveillance, being closely linked to the
national legislation implementing the
Schengen Information System in Romania.
Thus, the discreet check is stated at
national level by the provisions of the Law
141/2010 regarding the setting up, the
management and the operation of the
National Information System of Alerts
(NISA) and the participation of Romania at
the Schengen Information System (SIS).
Of course, all these provisions regarding
the cross-border surveillance and discreet
check must be followed further by more
detailed procedures, in which all the
involved players and the workflow of the
operations have to be established.
Compared Procedure. In the following
section we will try to present the two police
operations in comparison, which might
seem similar, but they are procedural
different.
Analyzing the players involved, the only
similarity between cross-border
surveillance and discreet check is the
Romanian Central Contact Point designated
to be the International Police Cooperation
Center within the Romanian Police General
Inspectorate.96
Any request or supplementary
information that has to be sent or received
from the foreign police authority has to be
addressed to the aforementioned institution.
Going further into our analysis, the
cross-border surveillance can be executed
only by specialized policemen belonging to
special structures within the Romanian
Police General Inspectorate and Romanian
Border Police General Inspectorate. The
Schengen acquis and the best practices in
the field of police cooperation (especially
the Schengen Police Cooperation
Handbook) foresee that the involved parties
have to conclude common procedures on
the basis of the bilateral agreements,
designating the exact police units that are
allowed to conduct this type of mission.
On the other hand, the discreet check
can be executed by any policeman who has
right to access and query the National
Information System of Alerts (NISA), and
through it the Schengen Information
System (SIS).97
From the point of view of the type of the
request, one can add a new difference
between the two operations. On the case of
96
According to article 1 of the Bilateral Agreement
with the Republic of Hungary and article 2 of the
Bilateral Agreement with the Republic of Bulgaria
and also article 24 of the Law 141/2010.
97
According to the Annex of the Government
Decision No. 966/2010 regarding the rights of
access of the Romanian public authorities to the
National Information System of Alerts, the
following branches of the Romanian Ministry of
Administration and Interior have the right to access
the discreet check type of alerts: the Romanian
Police, the Romanian Border Police, the Romanian
Gendarmerie and the Romanian Immigration
Office.
102
the cross-border surveillance, the request
can be made only by one country, on a
certain case or investigation, has a standard
written form and a predetermined time
requirements (as soon as possible in the
case of the ordinary surveillance, but not
after the crossing of the requested state
border or in maximum five hours after the
crossing of the border in the case of the
emergency surveillance).
On the case of the discreet check, it
takes the form of an alert introduced in the
SIS and can be requested by several states
(multiple compatible alert). Being a SIS
alert, it has no written form, can be
introduced for a person or for a vehicle and
can be visible by all the policemen of the
Schengen states as soon as it is introduced
in the SIS.
Regarding the cross-border surveillance
request, it has short time validity
(depending on the authorization granted by
the Public Prosecutors Office within the
Romanian High Court of Cassation and
Justice) and has to be renewed each time by
the same issuing authority.
The discreet check type of alert, once
inserted in the SIS has a longer validity, of
one year for a person type of alert and five
years validity for a vehicle type of alert.98
Another difference between the two
types of the operations lies in the fact that
in the case of the discreet check type of
alert, once having a positive result (a hit), it
is compulsory to follow a specific
procedure and the policemen has no
possibility to refuse to execute the request.
This is not the case of the cross-border
surveillance request, in which the Public
Prosecutors Office within the Romanian
High Court of Cassation and Justice, taking
into consideration the Romanian best
interests and according to the constitutional
98
Law No. 141/2010 regarding the setting up, the
management and the operation of the National
Information System of Alerts and the participation
of Romania at the Schengen Information System,
articles 47 and 48.
right of sovereignty, it has the possibility to
refuse a foreign request and not allow a
foreign police unit to conduct a surveillance
mission on the Romanian territory. Also,
the Public Prosecutors Office within the
High Court of Cassation and Justice has the
possibility to grant the authorization, but
with special conditions mentioned in the
written form of the authorization (e.g. the
authorization can be granted for only five
days with the possibility of renewal, the
foreign police units can conduct the
operation only in certain parts of the
Romanian territory, at every five days the
foreign surveillance team has to send a
detailed report to the issuing authorization
authority, etc.).
Thus, results a new difference regarding
the place or the territory where the
operations can be executed. The discreet
check type of alert is invariably applied on
the entire Romanian territory, where the
cross-border surveillance request can be
restricted to a specific space (city, county,
region) depending of the General Public
Prosecutors Office authorization. We have
to take into consideration that in the
Bilateral Agreements with the Republic of
Hungary and the Republic of Bulgaria it is
foreseen as a general rule all the territory of
Romania when giving the authorization
without conditions.
Regarding the actual procedure, an
operation of cross-border surveillance it is
executed like a normal surveillance
mission, following the specific rules and
regulations of this type of police operation,
and in addition having to apply a set of
rules foreseen in the Bilateral Agreements,
compulsory rules because the engaging
policemen has to act on the territory of
another country and thus having to follow
also the foreign legislation.
In order to carry out cross-border
surveillance, the Romanian policemen
carrying out the surveillance must comply
with the following rules:
a) he/she must obey the instructions of the
competent local authorities;
103
b) except in case of carrying out an
emergency cross-border surveillance,
the Romanian policemen shall carry,
during surveillance, a document
certifying that authorization has been
granted;
c) the Romanian policemen carrying out
the surveillance must at all times be
able to prove that they are acting in an
official capacity;
d) the Romanian policemen carrying out
the surveillance are forbidden to entry
into private homes and places not
accessible to the public; the Romanian
policeman carrying out the surveillance
may enter in working places, shops or
places accessible to the public, during
normal working hours;
e) the Romanian policeman carrying out
surveillance may carry his/hers service
weapon during surveillance, except
when specified otherwise by the
foreign authority granting authorization
for surveillance; using the service
weapon is prohibited except in cases of
legitimate self-defense, in compliance
with the national legislation of the state
on whose territory the surveillance is
carried out;
f) when, for carrying out the cross-border
surveillance, technical means are
necessary, these may be used provided
that the national legislation of the state
in whose territory the surveillance is
carried out allows it;
g) the Romanian policemen carrying out
the surveillance may neither contact
and interrogate nor arrest the person
under surveillance. 99
As regards the Republic of
99
Article 12 of the Agreement between the
Government of Romania and the Government of
the Republic of Hungary regarding the co-
operation in the field of preventing and combating
the cross-border criminality and Article 7 of the
Agreement between the Government of Romania
and the Government of the Republic of Bulgaria on
cross-border police cooperation in criminal
matters.
Hungary, when carrying out cross-border
surveillance in the territory of this state, the
Romanian policemen must take into
consideration the following specific rules:
a) when driving vehicles, traffic rules in
force in the Republic of Hungarys
territory must be obeyed;
b) when carrying out the surveillance, the
common border of the two states can
be crossed outside border crossing
points, as well as after the working
hours of border crossing points have
been concluded;
c) the authorization for cross-border
surveillance is granted for the entire
territory of the Republic of Hungary ;
d) the competent authorities of the two
states can gather intelligence and can
inform each other on the results, as
provided for in Article 18 of the
Bilateral Agreement.100
As regards to the Republic of Bulgaria,
with a view of carrying out cross-border
surveillance in the territory of this state, the
officer must take into consideration the
following particular rule:
a) the emergency surveillance may be
carried out only in relation with one of the
criminal offences pointed out in Article 40,
Paragraph 7 of the Schengen Convention or
participation in a criminal organization as
referred to in Council Joint Action
98/733/JHA of 21 December 1998 on
making it a criminal offence to participate
in a criminal organization in the Member
States of the European Union or terrorist
offences as referred to in Council
Framework Decision 2002/475/JHA of 13
June 2002 on combating terrorism.101
Regarding the discreet check, this
100
Agreement between the Government of
Romania and the Government of the Republic of
Hungary regarding the co-operation in the field of
preventing and combating the cross-border
criminality, article 12.
101
Agreement between the Government of
Romania and the Government of the Republic of
Bulgaria on cross-border police cooperation in
criminal matters, article 7.
104
operation is defined by the Law No.
141/2010 as the process of obtaining of
data and information regarding persons and
vehicles, objects of a NISA/SIS alert, when
executing by the Romanian authorities of a
border police check or of any other police
or custom check, without informing the
latter persons about the existing of the
NISA/SIS alert, with the purpose of
transmitting the gathered data and
information to the NISA/SIS alert issuing
authority. 102
The purpose of a discreet check type of
alert is obtaining more information in a
discreet way about:
a) the fact that the person or the vehicle
has been traced;
b) the place, the date and the reason of
the check;
c) the route taken and the destination of
the journey;
d) the persons who accompany the
targeted person or the occupants of the
targeted vehicle, or the persons who can be
rational presumed to be in connection with
the aforementioned persons;
e) more information about the targeted
vehicle;
f) the transported goods; 103
Thus results one of the most important
difference between the two police
operation, the one the spot character of the
discreet check, because the policeman do
not intentionally wants to survey the
targeted person or vehicle, he/she is just
performing a check and after obtaining a
positive result is obliged to follow the
above mentioned procedure, performing in
102
Law 141/2010 regarding the setting up, the
management and the operation of the National
Information System of Alerts and the participation
of Romania at the Schengen Information System,
article 2.
103
Minister of Administration and Interior Order
No. 212/2010 regarding the working procedures
for the activities of the national competent
authorities from the Ministry of Administration
and Interior regarding the NISA and SIS alerts,
article 34.
this way the work of a policeman
specialized in surveillance.
After gathering as much as possible
information about the target without
endangering the discreet character of the
check, the policeman has to complete and
send by e-mail a standard form to the
SIRENE Bureau, a unit working within the
Romanian International Police Cooperation
Center. 104After receiving the information,
the SIRENE Bureau will send it to the
issuing of the alert national or foreign
authority.
The process of transmitting the gather
information by the SIRENE Bureau is
foreseen in the Schengen acquis and in the
national legislation, also being an act of
police cooperation and being classified as
confidential and sent through a secure
channel to the alert issuing authority.
This is not the case of the gathered
information of cross-border surveillance.
As mentioned in the legal framework
section of this article, if needed and on
request, the cross-border surveillance
executed on the Romanian territory by a
foreign surveillance team can be handed
over to the Romanian surveillance teams. In
this situation, all the resulted surveillance
material produced by the Romanian side
will be transmitted in accordance with the
provisions of the bilateral agreements
through a regatory commission in order to
be used in the foreign ongoing
investigation.
This aspect leads us to another
difference, to be more exact the follow-up
report that has to be sent by the foreign
surveillance team to the authorization
issuing authority upon finishing the
mission. This report has to contain relevant
information about the surveillance mission
performed and will be forwarded through
central contact points. If requested by the
authorization issuing authority, the
policemen that executed the mission have
104
Minister of Administration and Interior Order
No. 212/2010, article 36.
105
to give personal reports about the
performed surveillance. 105
Target instead of conclusion
Up to this point we have focused on
describing the mechanism of the two police
operations, with similarities and
differences. Till now, we evaded the target
of the operations, the purpose for them
being used in the daily police work.
As we found in the legal framework
section of this article, the representatives of
a competent police authority who are
keeping under surveillance as part of a
criminal investigation in Romania a person
who is presumed to have committed with
intent a criminal offence or to have
participated to a criminal organization, or a
person related to the one mentioned above
or that has contacted him/her, shall be
authorized to continue their surveillance in
the territory of the neighboring Schengen
states.
Thus, within a judicial enquiry carried
out in Romanian, when sufficient
intelligence is gathered or it is strongly
believed that the person kept under
surveillance is to travel in the territory of a
neighboring state, the case officer together
with the specialist officer within the
specialized surveillance unit, under the
competent prosecutors supervision in
charge of the criminal investigation, shall
write down a request for authorization for
cross-border surveillance in the territory of
a neighboring state.
To sum up, the cross-border
surveillance can be used for a large
spectrum of judicial enquiries, by several
braches of the Romanian judicial police.
After all, surveillance is a useful and a
common police tool, being a part of the
daily police work. Nowadays, due to the
accession of Romania to the EU and the
future accession to the Schengen Area, it is
105
Agreement between the Government of
Romania and the Government of the Republic of
Bulgaria on cross-border police cooperation in
criminal matters, article 7.
possible to continue this daily police work
abroad, of course taking into account that it
must be followed an additional procedure
due to the fact that it is executed on a
foreign land.
And this is the essence of a cross-border
operation, is nothing else than a
surveillance mission performed abroad.
As regard to the discreet check, the
national legislation foresee that a NISA/SIS
alert of this type can be inserted by the
competent judicial authorities for the
purposes of preventing and combating
crimes, on the following cases:
a) when there is sufficient intelligence
that a person intends to commit or commits
one of the penal offences for which it can
be issued an European Arrest Warrant in
accordance with the provisions of the Law
No. 302/2004;
b) when, after the general evaluation of
the person, it is established that there is
sufficient clues to presume that a person
will again commit one of the penal offences
for which it can be issued an European
Arrest Warrant in accordance with the
provisions of the Law No. 302/2004;
c) when there is intelligence that a
vehicle might have a connection with the
commitment of one of the penal offences
for which it can be issued an European
Arrest Warrant in accordance with the
provisions of the Law No. 302/2004. 106
Also, the national security
competent authorities can ask to be inserted
this type of an alert when:
a) there is a need of intelligence to be
gathered through this type of alert about a
person in order to prevent a threat to the
national security;
b) a vehicle might have a connection to
a threat to the national security. 107
So, as one can see, this is also a useful
106
Law 141/2010 regarding the setting up, the
management and the operation of the National
Information System of Alerts and the participation
of Romania at the Schengen Information System,
article 15.
107
Idem, article 17.
106
tool to gather information about felons or
potential felons. And it has two important
advantages in comparison with the cross-
border surveillance:
1. instead of having a relative small
specialized surveillance team to perform
the mission you employ all the policemen
in the Schengen states to perform a similar
job but without all the latter logistical
effort;
2. the NISA/SIS alert can be inserted by
a even larger group of police branches than
in the case of the cross-border surveillance
request, for about almost all types of penal
offences foreseen in the national legislation
(having in mind the national requirements
for issuing an European Arrest Warrant).
To give an example of the versatility of
this type of alert, one can say that it could
be used to obtain a criminal map of an
entire network of narcotic traffickers or any
other criminal organized group, because
every time a person or a vehicle belonging
to that group it is checked, the case officer
who requested the insertion of the alert will
obtain more information about the places or
the persons that got in contact with the
target, in Romania or abroad.
At the end, I stress the fact that every
weapon, every new device or tool is most
effective when it is known and trusted by
its users. This is applicable also for the
cross-border surveillance and the discreet
check. Due to the fact that both types of the
operations are new tools at the disposal of
the Romanian policemen, the most
important thing at this time is that they have
to get acquainted to the above mentioned
operations, they have to see their
effectiveness and they have to begin to trust
the new systems and procedures.
After this initial point, I am trustful that
everything will develop rapidly, because
these tools were invented to help the police
work and for sure the police workers will
begin to exploit them at their full potential.
 Bibliography

Convention implementing the Schengen Agreement of 14 June 1985 between the

Governments of the States of the Benelux Economic Union, the Federal Republic of
Germany and the French Republic on the gradual abolition of checks at their common
borders, European Union Official Journal L 239 , 22/09/2000 P. 0019 0062, CELEX No.
42000A0922(02)
Government Decision No. 966/2010 regarding the rights of access of the Romanian public
authorities to the National Information System of Alerts, Romanian Official Journal No.
653 from 21.09.2010
Law No. 101/2010 for the ratification of the Agreement between the Government of
Romania and the Government of the Republic of Bulgaria on cross-border police
cooperation in criminal matters, Romanian Official Journal No. 375 from 07.06.2010
Law No. 141/2010 regarding the setting up, the management and the operation of the
National Information System of Alerts and the participation of Romania at the Schengen
Information System, Romanian Official Journal No. 498 from 19.07.2010
Law No. 302/2004 regarding international judicial cooperation on penal matters, Romanian
Official Journal No. 594 from 01.07.2004

107
 LES CONSQUENCES DE LA MIGRATION ILLGALE
SUR LA SCURIT NATIONALE DE LA ROUMANIE

Cms. en chef CRISTIAN ENE

PDG du Centre de surveillance et de contrle la frontire
Aroport Bucarest - Otopeni
Scms. LIGIA STANCU
Asist. univ. la Chaire langues et prparation Schengen
Acadmie de Police - Bucarest

Human migration is a phenomenon known since ancient times. Fight against illegal
migration border crime in the context of Romania's accession to the Schengen area is a
goal and a necessity today than ever. Corresponding unmanaged, migration and human
trafficking as part of cross-border crime can affect medium and long term national
security.
Index de mots-cls: migration, criminalit transfrontalire, risques, menaces, scurit
nationale, frontire
Paradoxalement, si l'on regarde il ya 20 coopration et, en mme temps, diffusant
ans, quest-ce que nous voyons? Une Europe des principes dmocratiques gnraux108.
divise entre deux blocs antagonistes, le bloc La migration humaine est un
des pays capitalistes et les tats du bloc phnomne connu depuis l'Antiquit, et,
communiste, spars par des cltures de travers les sicles, il est devenu un sujet de
barbels, par des murs qui sparent les villes, discussion important dans des tudes, des
par des tours de surveillance, par des soldats articles et dans les dbats les plus rcents,
des deux cts bien arms et toujours prts en envahissant la scne politique de
rpondre en force. nombreux pays, y compris les pays
En superposant cette image sur celle dvelopps, ce qui reprsente injustement
actuelle, on observe qu l'Europe dans certaines situations (n.n.) un motif de
antagonique s'oppose une nouvelle Europe, gagner ou de perdre les lections.
unie, dmocratique, libre, avec des valeurs travers les annes, la migration a acquis
humaines communes et respectes, de Prut de nouvelles connotations et possibilits de
l'ocan Atlantique, un espace unique dans manifestation, une nouvelle tape de
le monde pour sa diversit et pour ses rfrence se manifestant aprs la chute du
principes gnraux accepts par tous les Rideau de Fer et la fin de la guerre froide, tant
membres. au niveau mondial, mais surtout au niveau de
L'Europe daujourdhui est aussi une l'Europe, et provoquant des changements
plateforme pour l'expansion progressive de radicaux au niveau politique, social,
la dmocratie dans les profondeurs de conomique, idologique, juridique, etc.
l'Eurasie. Lexpansion de l'Europe vers l'Est La migration est intimement lie
renforcerait la victoire dmocratique des l'existence humaine. Les guerres, les
annes 1990. Une telle Europe largie catastrophes naturelles ou les besoins de
pourrait exercer une attraction sur les tats
situs dans lExtrme-Orient, crant ainsi 108
Zbigniew Brzezinski, Marea Tabl de ah -
un rseau de liens avec l'Ukraine, la Geopolitica lumilor secolului XXI, editura Univers
Bilorussie et la Russie, en stimulant leur Enciclopedic, Bucureti, 2000, p. 70
108
l'homme ont conduit et conduiront
d'autres dplacements de la population d'un
ct lautre, soit sur de petites zones d'une
rgion, soit sur de longues distances, dun
pays lautre ou dun continent lautre,
la fois de lEst en Ouest et du Sud au Nord.
Tout au long de ce mouvement dans le
monde, organis ou non, individuel ou en
groupe, consquence du dsespoir et de la
pauvret, la suite duquel certains gagnent
de l'argent, le rle des organisations
internationales acquiert une importance
croissante dans la gestion prcise du
phnomne et quant la volont de
rsoudre les malentendus entre les pays
d'origine et les pays de destination.
Ainsi, l'UE apparat comme la plus
importante de toutes les structures
rgionales du monde, non seulement en
termes de volume des activits
conomiques en discussion ici, mais aussi
en tant que dpositaire dune histoire
passe, prsente et future unique au monde.
Le territoire de l'Union Europenne,
lhistoire la dmontr, est intrinsquement
li la politique europenne commune, aux
guerres et aux alliances tablies entre les
tats membres concerns, au
positionnement et au repositionnement, aux
antagonismes et aux rivalits dont le
rsultat est le progrs conomique et social.
Aujourd'hui, la philosophie de l'Union
Europenne, maison commune des
Europens, est base sur des rgles et des
principes bien tablis. La scurit
europenne cest la scurit de chaque tat
membre, et l'inscurit dun tat membre
va s'tendre et aura un effet sur tous les
tats membres.
La lutte contre la criminalit
transfrontalire, contre la migration illgale
et la traite des personnes, aussi contre le
terrorisme cest la lutte commune de tous
les Europens et pas seulement. Cest la
raison pour laquelle nous avons la certitude
que les suites de la migration clandestine,
phnomne devenu journalier partir de
1989, auraient sur la Roumanie, dans le
proche avenir, des consquences qui, non
gres en temps opportun, pourraient
entraner de graves menaces la scurit
nationale.
La ralit d'aujourd'hui est loquente,
pays qui, jusque rcemment, prenaient des
positions fortes, sintitulant champions de
l'ouverture l'immigration, ont commenc
constater des phnomnes qui sont
susceptibles d'chapper tout contrle.
Ainsi, dans l'mission "Hard Talk" qui a t
diffus sur la chane de tlvision BBC le
25.01 2011, le chef du parti dmocrate en
Sude, Jimmie AKESSON, a dclar que
48% des crimes commis dans ce pays sont
commis par des immigrants. Mais ce qui est
encore pire, c'est le fait que la Sude
connat actuellement un phnomne jamais
vu auparavant, savoir l'mergence d'une
socit parallle.
Naturellement, la question se pose: par
qui? La rponse est naturelle, savoir que
les immigrants dans ces pays, citoyens qui
trouve refuge dans des pays htes, en Sude
dans ce cas, rclament la prservation de
leurs traditions et de leurs coutumes, de
leurs manifestations culturelles qui,
souvent, entrent en conflit direct et ouvert
avec la socit d'accueil, lagressant et
crant des failles sociales et
comportementales.
Si dans le pass le numro des
femmes des pays islamiques, prcise le
leader dmocrate, tait assez faible,
aujourd'hui, en raison de la croissance de la
prsence des femmes dans ces pays, le port
du foulard islamique est de plus en plus
visible , alors il envisage de prsenter au
Parlement une mesure lgislative visant
interdire le port du foulard dans les
institutions publiques et mme dans la rue.
Quelles pourraient tre les consquences
de la prise de telles mesures dites
conservatrices pour le mouvement islamique
radical dont les exposants sont trs
expressifs. De toute vidence, une rponse
civilise au dbut et, ultrieurement, dure,
sachant le manque de comprhension des
islamistes radicaux du monde entier. Un tel
exemple est illustratif et nous ne voulons
109
daucune faon mettre les choses hors
contexte ou gnraliser le singulier. Ayaan
Ali Hirsute, une praticienne islamiste de plus
d'un milliard de personnes dans le monde, a
dit: En Somalie, mon pays d'origine,
l'Islam a domin la vie de notre famille et de
nos parents dans les moindres dtails. C'tait
notre idologie, notre conviction politique, la
norme morale, la loi et notre identit. Avant
tout, nous tions musulmans et puis on tait
des Somaliens ; elle est crivaine et homme
politique, elle a demand l'asile aux Pays-
Bas et, devenue parlementaire en Hollande,
se retrouve sur la liste des fondamentalistes
islamiques, menacs de mort plusieurs
reprises pour plusieurs allgations, y
compris: trs vite, j'ai appris que Dieu
et sa vrit ont t humaniss ici ... La
conception d'un musulman sur Dieu est
absolue. Notre Dieu exige de l'obissance
totale.... j'ai commenc tre plus critique
avec ma foi ...
Pour revenir la position du leader
dmocratique, on peut supposer que de telles
positions se produiront encore, peut-tre
dans le contexte dune conomie europenne
faible, due la crise conomique mondiale,
aux convulsions sociales qui ont eu lieu en
2009 et 2010, au chmage lev, la baisse
du pouvoir d'achat, la dissolution
croissante de lautorit de l'tat, au
terrorisme atypique, etc.
L'intention de l'approche ci-dessus nest
pas de stigmatiser la religion islamique que
nous respectons pour ses valeurs
fondamentales, mais de telles situations se
rpteront certainement ou se produiront
dans d'autres pays dvelopps ou en
dveloppement, et ce qui est supposer
cest quelles peuvent devenir rapidement
sources d'instabilit sociale, conomique et
mme politique, avec des objectifs clairs
visant la scurit nationale.
Certains analystes considrent que la
migration moyen et long terme
influence la composition ethnique et raciale
de la population, la culture publique, la
scurit sociale, l'emploi et les politiques
110
publiques .109
Les risques et les menaces la scurit
nationale de la Roumanie doit tre
considrs, avant tout, du point de vue d'un
pays membre de l'OTAN et de l'Union
Europenne.
Les principaux risques et menaces qui
peuvent mettre en danger la scurit
nationale de la Roumanie, ses valeurs et ses
intrts en tant que membre de la
communaut europenne et euro-atlantique
sont dus au terrorisme international, la
prolifration des armes de destruction
massive et la criminalit transnationale
organise.
On peut dire fermement qu'ils sont
strictement lis au phnomne de la
migration. En outre, le phnomne de la
migration a une relation mutuellement
conditionne avec ceux-ci.
Les risques et les menaces la scurit
nationale de la Roumanie peuvent tre
amplifis par l'existence de certaines
vulnrabilits et dysfonctions comme: la
dpendance des ressources vitales
difficilement accessibles, les tendances
dmographiques ngatives persistantes, le
niveau lev d'inscurit sociale, la
pauvret chronique et persistante et
laugmentation des diffrences sociales, la
proportion de la fragmentation et encore le
rle insignifiant de organisation de la classe
moyenne quant la vie conomique et
sociale, la fragilit de la citoyennet et les
difficults de faire preuve de solidarit,
linfrastructure stratgique sous-dveloppe
et insuffisamment protge, le mauvais tat
et le manque d'efficacit du systme
d'assurance maladie, les faiblesses de
l'organisation, le manque de ressources et
les difficults en ce qui concerne
ladaptation de l'ducation aux exigences de
la socit, le faible niveau d'expertise, les
ressources insuffisantes et peu fiables pour
l'organisation de la gestion des crises, le
109
Ionel Nicu Sava Studii de securitate, Editura
Centrului Roman de Studii Regionale, Bucureti
2005
manque d'engagement de la socit civile
dans le dbat publique et dans la rsolution
des questions de scurit110.
En plus, la Roumanie se confronte des
facteurs internes de risque tels que la
migration illgale, la criminalit
transnationale organise (trafic de drogue,
darmes, de vhicules vols, de personnes),
la prolifration des rseaux terroristes, la
proximit gographique de potentiel conflit -
ethnique, religieux ou terroriste - le trafic de
marchandises stratgiques, de substances
radioactives, de dchets toxiques et dautres
matires dangereuses, la fraude douanire
commerciale, y compris la catgorie des
marchandises sous-estimes.
La migration dans son ensemble est un
phnomne dynamique et complexe qui
peut jouer un rle important dans le
dveloppement conomique des pays de
destination et dans la rduction de la
pauvret dans les pays d'origine des
migrants, et, au fil du temps, elle sest
transforme dun processus dtermin par
des facteurs conomiques, sociaux,
naturels, politiques, etc. dans un
phnomne mondial.
Aujourd'hui, aucun pays dans le monde
nest rest en dehors du flux de migrations
internationales, qu'il s'agisse de l'tat
d'origine, de transit ou de destination pour
les migrants ou tenir tous les trois attributs
simultanment.
La migration, dans son statut illgal,
peut avoir des effets ngatifs sur l'tat / le
pays de destination, ce qui signifie que la
prvention et la lutte contre ce phnomne
sont devenues un processus multinational,
impliquant une approche globale de tous les
pays concerns et l'adoption des mesures
communes efficaces dans ce domaine.
Compte tenu de la situation conomique
actuelle en Roumanie, laugmentation du
nombre de migrants lgaux ou illgaux qui
s'engagent raliser des activits
commerciales dans le noir peut
110
Strategia naional de securitate a Romniei
(Proiect) 21.02.2006 - http://www.presidency.ro
111
constituer un risque pour la scurit
nationale par la rduction des budgets
centraux ou locaux, par le contournement
du paiement des montants des taxes dues
ltat ou en supprimant le nombre
d'emplois des citoyens roumains pouvant
travailler lgalement, ce qui nuit la vie
sociale et conomique.
galement, dans de nombreux pays
europens et pas seulement en raison de la
faiblesse du niveau de vie et du manque
d'emplois de plus en plus aigu, apparaissent
les germes de la recrudescence de la
xnophobie et mme du nofascisme.
Heureusement pour la Roumanie, le
phnomne est encore sous contrle, mais
pas cause des politiques publiques dans ce
domaine, mais pour le simple fait que les
immigrants trangers ne sont pas trs
prsents comme dans les autres pays
europens, ainsi parce qu'il y a une politique
ouverte de l'Union Europenne concernant
les opportunits cres pour trouver un
emploi. Par ce mouvement, les Roumains
eux-mmes deviennent les victimes de
l'opinion publique dans les pays europens
mme si l'adhsion attnue sa rponse.
On peut comprendre que tous ces
aspects sont troitement lis au phnomne
de la migration et, ensemble, ils peuvent
causer ou influencer, dans une plus ou
moins grande mesure, la scurit nationale
de la Roumanie.
Comme pays dentre dans lespace
europen, la Roumanie est et devrait
devenir un facteur de stabilisation, elle doit
affirmer son statut gographique de mur
contre les migrants , et nous considrons
que ces termes sont forcs et nexpriment
pas notre point de vue, le terme corrects
pourrait tre filtre juste, civilis,
professionnel dapplication correcte du
droit communautaire, de respect des droits
humains fondamentaux.
La migration sera le mot cl dans le
XXI-me sicle et deviendra sans doute un
dfi l'avenir.
Ladhsion prochaine de la Roumanie
l'Espace Schengen va marquer une nouvelle
tape qui va changer le concept du contrle
des frontires en supprimant les contrles
aux frontires intrieures et le renforcement
des frontires extrieures de l'espace avec
toutes les responsabilits dcoulant des
engagements pris par la Roumanie, et la
coopration internationale sur les
problmes transfrontires dans la lutte
contre la criminalit aura srement un rle
important.
cet gard, le Conseil de scurit de
lONU a rendu publique sa position sur le
fait que tous les tats devraient cooprer
pour le contrle efficace des frontires, tout
en reconnaissant l'importance de la
coopration entre les tats, dans un monde
qui est de plus en plus globalis, quant la
prvention de lutilisation par les terroristes
de la technologie, des communications et
des ressources sophistiques l'appui des
actes criminels.
Les frontires et la scurit des frontires,
restent un lment cl dans les relations
internationales. La qualit de la gestion des
frontires, aujourd'hui plus que jamais, est
une proccupation non seulement de l'tat
en cause ou des tats voisins, mais aussi de
la communaut internationale tout entire,
car la circulation illicite des biens et des
personnes peut avoir des effets
dstabilisateurs, et peut se propager
rapidement sur un territoire plus vaste.
La Roumanie est engage dans la
prvention du crime et dans la lutte contre
ces phnomnes, gnrs par l'mergence et
le dveloppement, au cours des 15
dernires annes, des noyaux de rseau de
criminalit transfrontalire, coordonne par
des citoyens roumains et trangers.
Il est vrai que la situation conomique et
sociale actuelle dterminera un nombre
croissant de personnes, rsidants nationaux
ou europens des pays tiers, y compris la
Roumanie, s'engager dans des activits
criminelles lies la migration clandestine
et la traite des tres humains.
Lespace Schengen, ainsi que l'UE, est
perue comme un espace de libre
circulation des personnes et des biens, un
espace de la justice, qui n'est pas quivalent
un espace de dsordre, de chaos et de
manque de contrle. Cest dj bien connu
que les frontires actuelles entre les tats
membres et les pays tiers reprsente
gnralement un fort contraste quant la
prosprit conomique. ... il ya une
diffrence de cinq fois concernant le revenu
par habitant dans les pays membres, entre la
population pauvre et celle revenu lev.
Daprs nous, dans les 20 prochaines
annes, la pression sur les frontires de
l'Europe ne va pas diminuer. Elle va grandir
et se dveloppera rapidement. On la
constate dj dans la Mditerrane.
Les affirmations de Mme Byrne,
fondes sur des donnes concluantes, faites
en raison de sa position, on les partager
avec l'amendement que la situation
conomique actuelle forte connotation
sociale et, exploite diffremment de point
de vue politique pourrait crer plus de
problmes que prvu, ce qui crera une
double pression, cot de celle extrieure,
se produira ou se dveloppera de plus en
plus une pression interne engendre par
l'mergence de la pauvret dans les pays en
dveloppement conomique dont les
politiques ne sont pas claires ou sont
dficitaires ou en changement perptuel.
La thorie sociologique de William
Isaac Thomas, selon lequel si un individu
dfinit une situation relle, elle devient
relle dans ses consquences , a une large
applicabilit quant l'analyse des concepts
de risque, de menace, de vulnrabilit.
Les experts dfinissent la scurit
nationale de la Roumanie comme l'tat dans
lequel l'tat roumain doit se trouver pour
pouvoir se dvelopper librement, pour
pouvoir agir librement dans le but de
promouvoir ses intrts fondamentaux.
Le fait que la Roumanie ne fait pas trop
connues dans les mdias les questions des
migrations, d'immigration et d'asile (sauf
pour les tablissements autoriss) en termes
de formes, de leur tendue, les tendances
futures, les risques et les menaces qui
pourraient rsulter de l'chec ou de la perte
112
de contrle de ces phnomnes ne signifie
pas que nous ne sommes pas dans le
monde civilis et nous ne nous y
confrontons pas.
Le rle et l'importance des frontires
extrieures de la Roumanie, dans le cadre
de l'UE, sur un segment d'environ 30% de
sa longueur totale, sont devenus
extrmement importants, les risques et les
menaces la scurit interne ou externe se
propageant en systme concentrique aussi
sur l'Union Europenne et l'Espace
Schengen.
Un autre aspect important est que
certains de ceux qui jouissent encore d'une
protection temporaire dans les pays
d'accueil, parfois pour des raisons
imputables des changements ou la
ngligence ou l'absence des politiques
claires en ce qui les concerne prmditent
des menaces la scurit nationale d'un
tat, ce qui rend encore plus difficile la
situation pour ceux qui ont des motifs
raisonnables de profiter de la lgislation
nationale et internationale des droits de
l'homme, de l'asile, etc.
La libert de circulation dans l'Union
Europenne entrane des problmes de
scurit, une question partage entre tous les
Liste des rfrences bibliographiques:
tats membres, les frontires extrieures de la
Roumanie constituant des filtres intgrs ,
ce qui est trs important pour la rduction de
tous les phnomnes de criminalit
transfrontalire, qui peuvent provoquer de
l'inscurit et influencer ngativement les
relations entre les pays europens ou mme la
paix et la scurit en Europe.
Dans l'UE, chaque tat membre est
responsable pour tous les tats membres
dassurer les frontires extrieures de l'UE
contre l'immigration clandestine, le trafic de
drogue, la traite des tres humains et il est
ncessaire de faire connatre que la
Roumanie est maintenant le plus oriental
tat de l'Union Europenne et de l'OTAN,
en particulier son futur statut rserv par
l'adhsion de la Roumanie l'espace
Schengen.
L'utilisation du territoire roumain
comme un espace de manuvre pour
l'immigration clandestine entrane non
seulement des effets ngatifs en termes de
relations de travail, de politiques publiques
et de situation conomique, mais aussi de
graves consquences pour les intrts de la
Roumanie en dimension nationale et
internationale.

Ayaan Hirsi Ali, Fecioara nctuat, o proclamaie pentru emanciparea femeii i

Islamului, editura Minerva
Conceptul OSCE de securitate i management al frontierei, Consiliul Ministerial,
Ljubljana, 2005
Ionel Nicu Sava Studii de securitate, Editura Centrului Roman de Studii Regionale,
Bucureti, 2005
Strategia naional de securitate a Romniei (Proiect) 21.02.2006 -
http://www.presidency.ro
World Migration, Geneva, 2003
Zbigniew Brzezinski, Marea Tabl de ah - Geopolitica lumilor secolului XXI, editura
Univers Enciclopedic, Bucureti, 2000

113
114
115
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 THE SOCIAL ETIOLOGY OF CORPORATE CRIMINALITY
THE CORPORATE MACROCRIMINOLOGY
Assistant PhD. MARCOCI PETRIC-MIHAIL
Police Faculty - A.I. CuzaPolice Academy
AXENIE CARMEN
Member of Romanian Chambers of Deputies

The corporate macro criminology is interested about the social, economic, political
and the structure of law regulations which interfere in the activities of the multinational
corporations or within their business. The social and economic factors could become the
main causes of the corporate fraud, and the analysis of them one of most efficient
instrument in preventing and combating of the phenomenon.
Keywords: Corporate criminality, corporate fraudster, asymmetry, money laundering,
multinational corporations, etiological analysis.
The immediate goal of criminological Corporate criminology is based on
research is the identification, analysis and central primary assumptions which, as R.
explanation of the causes of criminality, Gassin noted, refer to general
regardless of its nature, so as to allow the criminological approaches and require the
empowered authorities, be it those who need to start the analysis from the general
operate normative regulations, or the to the specific, because every antisocial
judicial bodies, to lay the basis of efficient deed is a component of the system it is part
criminal policies, or programs, strategies or of, the criminal phenomenon respectively.
actions meant to prevent and fight the The economic factors
criminal phenomenon. One of the generally accepted economic
Addressing the causes of corporate theories is that the economic base
crime necessarily requires the interference determines the social, political, cultural,
of its own scope with other fields, thus institutional superstructure. Therefore it is
facilitating the understanding of some expected that the economic situation of a
processes, which before being criminal, are country or a smaller area, to determine
psychosocial in the most rigorous sense of certain human behaviors, including
the word. For this reason, the analysis of criminal behavior at the employees or
the behavioral dynamics of the corporate corporate managers level. But as reality
fraudster must also focus on the immediately shows, corporate crime occurs
psychological and social dimensions of the both in areas of maximum prosperity and in
individual, on the evaluation of the poor ones.
economic, managerial, juridical, Among the economic factors considered
technological and political factors, which to present the greatest relevance are:
bring their own contribution to the forming 1. The industrialization. By itself,
of the criminal resolution. industrialization is a factor of economic and
Against this background, the etiological social progress, providing job opportunities
analysis of the forms of corporate and higher education and specialization
criminality must be structured in the possibilities, better quality consumer goods
dichotomy of the social level of criminality and implicitly rising living standards of
and the individual level of the crime, based people.
on motivational, teleological, habitual From the corporate crime perspective,
factors etc.. industrialization generates by technological
117
progress the prerequisites for diversifying
the productive range, the deregulations in
the field of technological norms and also
the possibility of not declaring large
volumes of production which are this way
no longer subjected to fiscal taxation and
offer corporate fraudsters, the raw material
for future operations.
Industrialization has provided corporate
crime with motivation for active
involvement of the senior management in
the area of influencing customs and fiscal
regulations, or financial or stock
transactions and on this basis, corporate
fraudsters create the legal basis for their
criminal enterprises they found in
associative or operational shape.
"Technology has exacerbated differences
between well and the best in every field". On
this basis the technological innovator
becomes more economically competitive,
and could aggressively take over markets or
smaller national economic agents, to the
extent that with increasing sales volume,
their capacity to corrupt the political,
administrative or judicial factors would
increase, with a view to conducting more
illegal activities connected to the legal ones.
2. The management contract.
Corporatism is that part of the economic
sphere which, due to its excellent
operational structuring and internal
conceptual clarifying, succeeds in
extending its activity beyond the state
frontiers of its headquarters location.
But the corporate efficiency is the result
of excessive shaping of the managerial
processes and laying the success-
quantifying criteria on contractual basis,
which brings along bonuses, extra salary,
dividends, etc. and provide reassuring
wages and retirement earnings, for the next
generation as well in many cases.
Against this background, the managers
of any company feel the full esteem that the
society has for the recipe of success only,
with both failure and those who have
missed the opportunities life has given them
at some point fading into oblivion. This is
the reason that the manager is forced to lie
most of the times about profit, market
118
share, the quality of products etc. because a
part of this false exceeding is returned as a
percentage increase in bonuses and
dividends.
From this perspective, the management
contract as well as social recognition of
success at any cost are motivational factors
that push corporate fraudsters to actions
that harm the investors, customers,
employees and, not least the local, field, or
national economic stability.
"The main cause of inequity within a
state is the increase of executive salaries as
a result of higher profits in the companies,
which in turn have two causes: the
reputation of companies has led to an
increase in sales and wages and the
compensatory incomes that they have set
for themselves because they are part of the
committees that approve pay packages.
3. The connections to the political
sphere. The American criminologist Edwin
Sutherland is the one who has studied the
criminality of high income people, which
he has named white collar crime, or the
criminality of people with high education.
The corporate fraudster is a character
who, prior to implementing his criminal
scheme, takes steps in collecting personal
relations of officials from political,
governmental, administrative or judicial
sphere, which they approach conspicuously,
to transfer the public perception of widely
recognized and sometimes impeccable
personality of those people upon himself.
But this kind of relationship is often
strengthened later on by donations and
sponsorships, some legal and some
encompassed by the criminality that creates
the common spirit of belonging to a group
of elites.
Membership in such groups induces the
feeling of power, which is permitted
behavioral deviance compared to the other
mortals not belonging to the group. From
here there is a very short span to the point
where these people believe they are allowed
to do anything.
This behavioral metamorphosis
determined by group membership is
extremely difficult to prevent or avoid. In
fact, many times, this membership solves
certain childhood traumas or frustrations of
adolescence, and therefore, when
circumstances permitting dynamics arise,
evolution is hastened.
"The elites have chosen isolation, for
those who pay with generosity and
kindness. The rest of the population is kept
under and forced to pay the cultural,
psychological and psychic stress of
isolation. Those who cannot accept a
separate living and cannot bear the costs
which its safety entails, remain outsiders,
unable to enter the contemporary equivalent
of the court in early modernity. "
Similarly, the judicial intangibility feeling
distorts the very constants of the
temperamental component of personality,
corrupting the balanced and analytical man
and turning him into an instinctive player that
excessively values the surplus of chance.
4. The asymmetry of economic
development or of legal regulations. The
development disparities between the
developed countries (where the
multinational companies have their
headquarters) and the developing or less
developed ones are those that lead to the
status differences that arise during official
contacts and negotiations. In other words,
the existence of a protective shield
generously offered by the home state allows
them to approach their dialogue partners in
the other countries from a higher position.
This shield offers a sense of intangibility
similar to the one mentioned in the case of
the connections to the political factor.
But the arrogant or ostentatious
behavior of multinational companies
representatives sometimes lead to tense
diplomatic relations or to often extremely
violent conflicts with local or indigenous
economic operators. And we are certainly
not wrong when we say that terrorism
sometimes arises also as a reaction to the
social, moral or religious unacceptability of
certain practices or behaviors of some
representatives of multinational companies.
The asymmetry of legal regulations
between states in terms of the penalty
harshness of the illicit practices that may be
119
committed at the level of multinational
companies is the search engine for more
liberal states when it comes to the fight
against corporate criminality. These shifts
may often indicate the motivational nature
of foreign investment; this fact must be the
incentive for establishing active
surveillance mechanisms by the host states.
One such situation is the United States
after the adoption of Sarbanes-Oxley Act.
Thus, Steve Schwarzman, the Director of
Blackstone Group, spoke about how
"America is losing its competitiveness
because of regulations like the Sarbanes-
Oxley Act, which called for greater
transparency and careful control of
corporate finances. He noted that some
boards of directors spend one third of their
time to solve issues of compliance to
regulations, the consequence being that
American businessmen were prevented
from focusing on what is necessary, namely
the rising share value. Schwarzman also
underlined that these regulations have led to
a 90% decrease in U.S. initial public
offerings because companies wanting to
enter the capital market listed their shares
abroad, in markets where laws were more
lenient. He urged the government officials
who were present to adopt a more reserved
role, because otherwise the market would
move elsewhere. He characterized the rise
of private equity companies as the
"capitalist systems reply" to the problems
created by the government in Washington,
who did not realize what prejudice their
laws caused to the competitiveness of U.S.
firms. "
Although not speaking from the
perspective of a profound historical
understanding, the kind that Alan
Greenspan (former governor of the Federal
Reserve Bank) has, Schwarzman illustrated
"another major consequence of the
revolution of our times, an event of
enormous size, comparable to the end of
World War II, for Mills, to end the Civil
War, for the American tycoons, or to the
decision to break with the rest of the world,
for the Ming Dynasty. In a global economy
where multinational corporations are not
related to any particular country, they have
won a new kind of authority over national
governments, which, by their very nature,
are trapped within their borders. Companies
have created a new market, one in which
governments compete for investment.
Essentially, the most familiar and most
powerful foundations of sovereignty, those
who, until recently, had the longest
tradition, have been radically undermined.
5. The possibility to transfer or
launder the money resulting from
criminal activities. It would be unfair not
to say that no fraudster would ever put his
plans into practice if he were sure he would
not be able to benefit from his crimes.
The globalized economy has created the
necessary facilities for the instant transfers
of money to states or jurisdictions that
ensure total anonymity of the operations or
the owners of the bank accounts. However,
this fact is a real invitation to commit large
scale fraud, since both the places where the
crime-generated money can be transferred
and the procedures to accomplish these
transfers exist.
Laundering the money resulting from
corporate crime can be done by reinserting
it in the legal commercial or financial
circuits by means of a series of processes
and techniques which finally provide the
concealment of their real origin, thus
infecting the banking or commercial
environments they pass through.
Another feature offered by the
globalized economy is the possibility to use
international circuits of money laundering,
by consecutively using associative and
disjunctive transfers of amounts between
several companies located in offshore
jurisdictions, which creates the inability to
detect the real owner of the amounts that
were transfered.
"Although offshore centers and tax
havens are not equivalent notions, most of
them promote the lack of taxes, the absence
of any control on operations and the
practice of anonymity."
According to Joseph Stiglitz, Nobel
laureate for Economy, "the billions of
dollars from the Cayman Islands and such
120
centers are not there because they offer
better banking services than Wall Street,
London or Frankfurt, but because secrecy
allows them to be used in operations of tax
evasion, money laundering and other dirty
business."
6. The sphere of activity. A determined
influence on the behaviour of Multinational
Corporation exercises the field itself. The
actual evolutions in technical and scientific
innovation lead the corporations to new
fields as: genetically modified organisms,
nanotechnology and so on.
The innovative character of these brings
also the lack of legal regulations in the field
of the operations performed by these and as
a result it limited the ability to act of the
control authority or law enforcement
At this moment the biotechnology
corporation are involved in a rigurous
campain in order to gain monopoly control
on life by patenting genetic materials and
processes. One of the favourite strategy is
forcing the farmers becoming dependents
on some GM fertilizer which offers to the
patent owner a virtual monopol to some
goods as soybeans or cotton. By these
methods multinational corporations become
by absolutely fraudulent means a
monopolistic market player providing the
Services and agriculture related goods
which can influence , by varying their
prices in the price structure of agricultural
products, the price of specialized exchanges
worldwide, to meet their own interests.
Other companies seeking patent every
human gene they identified. It happens
increasingly often that different people learn
that, without their knowledge or permission,
a corporation earned property rights
exclusive of genetic material extracted from
their bodies. Entering the territory of
philosophical speculation can find
multinational corporations intent to seize
ineffable and unique act of human creation.
Beyond this remains not only observe
behavior more than abusive and unethical
while rhetorical question whether
management of these companies felt no
moral obligation to respect the imperatives
of tax law or competition. Another industry
to multinational companies have not hidden had the fiduciary responsibility to
its appetite is the pharmaceutical industry. shareholders to raise price to the highest
Giants in the field practice sometimes added level at which the patients had estimated
800-1200% companies selling products their life. As the price in that moment was,
delivered which in turn adds an extra before obviously, under this grade, it could be
selling the ultimate consumer-patient. considered that the producer was selling the
Manifest superiority that provides medicine at a lower price.
profitability of pharmaceutical allows the This is how an intellectual monstrosity
multinational corporations to practice often can justify a behavior at least abusive of the
monopoly prices, particularly, for unique companies producing drugs that are free in
products used in chronic illness therapy to negotiation their own position on a product
the detriment of rights and interests of market to maximize the immoral profits. A
patients. In connection with imposing legitimate question appeared in the area of
excessive prices on drugs, it is being studied specialists in tax is linked to the
a case in which a company producing drugs commercial mega additions practiced by
had fixed a price that overcame the the companies producing drugs( that own in
production costs for a patented medicine on almost all cases manufacturing lines
which depended the life of a small number completely automated) and the normal
of patients desperately. An economist who profits that these declare, similar to those
had been invited to a debate asserted that in recorded in furniture were the additions
case the patients who were using the dont overcome 200-300%.
medicine had no alternative , the company
Bibliography
A Comparative Analysis of Corporate Fraud - Sally Ramage, editura Universe Inc 2006
Corporate Fraud: Case Studies in Detection and Prevention - John D. O'Gara. Editura John
Wiley & Son
E.de Greeff-Introduction la criminologie- Bruxelles, Ed.Van den Plas
F. Fukuyama- Marea ruptur- Edit. Antet, Bucureti 2001
G.Kellens- De l'utilit de la criminologie speciale, Revue de droit pnal et de
criminologie, 1986, nr.7
G.Pisapia- Fondamento et oggetto della criminologia -Padova, Ed.Cedam, 1983
H.Goppinger- Kriminologie- Mnchen, Ed.C.H.Beck, 1971
J.M. van Bemelen- Criminologie- Tjeck Willink Zwolle
J.Picca, O en est la criminologie, Revue internationale de criminologie et de police
technique, nr.4., 1985, p.386.
J.Pinatel- Programmes et mthodes en recherches fondamentales, n vol. Etudes
rlatives de la recherche criminologique, Consiliul Europei, vol.I, 1967.
Ph.Robert,-Les comptes du crime- Paris, Ed. Le Sycomore, 1985
R.M. Stnoiu, Introducere n criminologie, Ed.Academiei, Bucureti, 1989
S.Hurwitz- Criminology- London, Ed.George Allen and Unwin Ltd.,
Th.Sellin- Culture, Conflict and Crime- New York, Social Science Research Council,
1983
V.Dobrinoiu, Gh.Nistoreanu, I.Pascu, I.Molnar, V.Lazr, A.Boroi, Drept penal- partea
general, Ed. Didactic i Pedagogic, Bucureti
Z. Bauman- Globalizarea i efectele ei sociale- Edit. Antet, Bucureti 2003

121
 THE RIGHT OF INTELLECTUAL PROPERTY.
THE INTELLECTUAL CAPITAL THE UNIDENTIFIED
FORTUNE OF THE ORGANIZATIONS

PhD. Lecturer MARIUS PANTEA

Police Faculty - A.I. Cuza Police Academy
PhD. student ALINA ELENA ANDREI (DNILA)
PhD. student STELIAN TIPA

The intellectual capital is the most important part of the intangible assets because it
represents the real innovative fortune of the organization and it includes four classes of
intangible assets: market assets (commercial trademarks, contracts of disposal, discharge
or franchising, facilities assets (technologies, working methodologies, procedures, assets
of intellectual properties (copyrights, software, patents for invention) and human values
(the professional abilities of the employees).
The intellectual capital represents the skills, vocations and the knowledge of all the
employees from a company, knowledge that can be used in developing the competitive
spirit of the organization. Considering this, the asset should be measured, assessed and
presented in the balance sheet and annual accounts so as not to remain a hidden and
unidentified fortune.
Keywords: intellectual property, commercial trademarks, intellectual capital,
intangible assets, evaluation, financial situation
Guidelines for the research of expenses made by the company in order to
intangible assets equip with software products to conduct
In the researches made by different activities of research development,
authors we can find different approaches advertising, marketing and staff training.
regarding the intangible assets, namely: To the elements mentioned we can also add
costs, investments, resources or assets. those regarding the organization,
Pierrat and Martory stated: the scientific preservation and dissemination of
literature and the official texts dont have information and rights (patents and
clear definitions for the concept of licenses) resulted from rare phenomena.
intangible asset. Most of the authors prefer The definition given by Cantat: The
to proceed to a simple enumeration of the intangible assets correspond with the set of
main components of the entirety, while the costs, investments (immaterial nature),
official accounting texts give an ambiguous capitalized for developing the company,
definition to this term. In fact, the general improving its organization and optimizing
definitions quickly become useless because its cost management. These costs are
of their character much less analytical and voluntarily targeted by the company but
the more precise definitions prove to be too they can sometimes represent a derivative
limited to particular cases. of another action. 111
Tezenas du Montcel points out that According to S. Duizabo, the intangible
some limitations occur because of the fact
that the notion of intangible asset doesnt 111
Tezenas du Montcel and Cantat cited by S.
have yet fixed borders: This notion, Duizabo in Provocrile contabilitii
certainly contains all that follows from the internaionale la cumpna dintre milenii, Editura
Economic, 2004,p.122
122
represents a combination between
expenses and investments, so the
intangibles are not ordinary expenses
because they are central to the evolution of
the company but they are neither ordinary
investments, because their profitability is
only financial and their indirect and
qualitative effects are important.
Some authors suggested using the
concept of immaterial resources. Wenerfelt
defines the resources: any thing that can
be considered as an element of force or
weakness for a society. Of a more formal
manner, the resources of a company can be
defined at a certain moment as assets
(tangible or intangible), quasi-permanent
related to society.
Grant112 considers that the resources
are inputs into the production process. The
individual resources of the society contain
the equipments, the individual competences,
the patents, the trademarks
Epingard does not define the immaterial
investments taking into account the
dynamic nature of the knowledge and
capacity, but he classifies the knowledge
into four categories, classification taken by
the specialists from OCDE:
To know what (know-what)
To know why (know why)
To know how (know-how)
To know who (know-who).
The know-what type of knowledge is an
accumulation of stories about the facts,
being often possible to be divided into bits.
These are the most common and the least
usable, as such, in the actual economic
processes, but they are the basis for the
other types of knowledge.
The know-why type of knowledge is
actually knowledge about laws and
principles of nature, they are supporting the
technological development and the
innovation of products, services and
systems. They are increasing their number,
especially in the areas of interface between
112
Wenerfelt and Grant,cited by S. Duizabo
Provocrile contabilitii internaionale la
cumpna dintre milenii, Editura
Economic,2004,p.123
123
sciences and they often acquire an
interdisciplinary content. Most often, this
knowledge is the result of the basic
scientific research.
The know-how type of knowledge
provides to those who posses it the capacity
to do something. The fundament of this
type of knowledge is the most often the
applied research, the improvement and
updating of the products, services, systems,
processes, etc. Technological knowledge
(unpatented) is of the know-how type, and
as a practical example we can speak about
the know-how of the major hotel groups
which offer touristic services of
accommodation, meal, agreement, etc.
applied in the hotel chains (organizations of
the same type that provide the same type of
service for the same type of customers,
reunited under the same brand), the know-
how type of knowledge is valued by the
hotel franchise agreement (making
available the brand and the transfer of the
know-how associated with it). The know-
how exists in the form of documents and it
is not legally protected (patented). It can be
the subject of commercial transactions. It is
a valuable intangible asset.
The know-who type of knowledge
includes knowledge from both know-what
and know-how category. This knowledge
presupposes the development of special
relations which provide access to experts.
Through them we can easily find answers
and solutions for the problems caused by the
fast rate of change. The know-who type of
knowledge consider both the organization
but also its environment. Under conditions
of increasing the number of outsourcing
activities, such knowledge relates to a
greater extent to the environment in which
the organization operates.
All this type of knowledge is involved in
innovation processes which generate new
knowledge which can be marketed as such or
indirectly through the new products and
services, which are exploited in the companies.
F. Machlup distinguishes three levels at
which the knowledge can be stored:113
113
F. Machlup, cited by de P. Epingard
 1. Knowledge embedded in facilities
and equipment
2. Knowledge held by individuals, on
an individual basis
3. Knowledge that disperses easily
because it is not related to a particular
owner (ex. scientific knowledge).
International accounting rules define
capital assets or intangible assets as non-
monetary assets without physical
substance. 114 So, the IAS Standard 38115
shows that a capital asset meets the criteria
of being identified when:
is separable, it is capable of being
separated or divided from the
entity and sold, transferred,
licensed, rented or exchanged,
either individually or together with
a related contract, identifiable asset
or liability, regardless of whether
the entity intends to do so; or
arises from contractual or other
legal rights, regardless of whether
those rights are transferable or
separable from the entity or from
other rights and obligations.
An asset represents a resource that is
controlled by the entity as a result of some
past events, and from which future
economic benefits are expected to be
generated for the entity. In accordance
with accounting principles, an intangible
asset must be recognized in balance if it is
estimated that will generate economic
benefits for asset may cost entity and be
assessed in a credible manner.116
The economic benefits are the
114
Standardele internaionale de raportare
financiar: IFRS: norme oficiale emise la 1
ianuarie 2009, Editura CECCAR, 2009, pp 1992
115
Standardul Internaional de Contabilitate 38
(IAS 38) it is in the charge of the accounting
treatment applicable to intangible assets.
According to this Standard, 333i82d an entity
should recognize an asset if and only if the
specified criteria are accomplished. Moreover, the
Standard specifies how to calculate the accounting
value of the intangible assets and asserts specific
presentations regarding the intangible assets.
116
OMFP no. 3055/2009, Section I, paragraph 20,
alin. 3.a.
124
potential to contribute directly or indirectly
to the flow of cash or to its equivalents to
the entity. This contribution is reflected in
the form of increased cash inflows or
reduced cash outflows, for example
deducing the production costs. So, the
potential can be efficient when the asset is
used separately or together with other assets
to provide services or goods to be sold by
the entity. Also, the potential may take the
form of convertibility into cash or cash
equivalents.
Capital assets generate future economic
benefits held for a period longer than one
year. The future economic benefits are the
potential to contribute directly or indirectly
to the cash flow or to the cash equivalents
by the entity. The potential can be a
productive one, as part of the operation
activities of the entity. The capital assets
gather those assets intended for a usage on
an ongoing basis, for more than a year for
the purposes of the entity.
An intangible asset is an identifiable
asset, non-monetary, without material
support and held for usage in production or
in goods of services supply or for rental to
others or for administrative purposes.
According to French accounting rules,
the capital assets are items designed to
serve permanently the entitys activity and
they dont consume at the first use.
Within the international evaluation
standards, GN4117, the intangible assets are
defined as assets that manifest through
their economic properties. They dont have
physical presence; they grant rights and
privileges to their owner and they usually
produce income for their owner.
CLASSIFICATION OF INTANGIBLE
ASSETS
Classification of intangible assets in
Romanian accounting. The regulation of
intangible assets is displayed in OMFP
3055/2009, Section 8 in which intangible
asset is defined as: an identifiable asset,
not a financial instrument, without physical
existence, held for use in the production or
117
International evaluation standards, ed. a 8-a,
ANEVAR, Bucharest, 2007, p.204
supply of goods or services, for rental to
others or for administrative purposes.
Intangible assets are structured according
to OMFM 3005/2008118 as follows:
Set-up costs
Development costs
Concessions, patents, licences,
trademarks, similar rights and assets
except those created inside the entity
Goodwill
Other intangible assets
Advance payments for tangible non-
current assets
Tangible assets in progress
Classification of intangible assets
made by IAS 38. An intangible asset,
paragraph 8, is an identifiable non-
monetary asset without physical existence.
An intangible asset shall be
recognized if, and only if: the owner entity
proves that:
the intangible asset shall generate
economic benefits for the entity (as the
income made from selling goods or
products, expense savings or other
benefits) and the cost of the intangible
asset can be measured in a credible
manner; and that
it has the capacity to control intangible
assets and to obtain generated future
benefits and to restrict the others
access to these benefits. This ability to
control may result either from legal
rights (for example intangible assets as
intellectual property), or from
obligations imposed by the company
(eg. non-competition agreements,
employees duty of confidentiality).
Classification of intangible assets
based on their useful life, they are
classified into two categories, as follows:
intangible assets with finite useful
life; and
intangible assets with indefinite
useful life.
In the first category there are all
intangible assets whose useful life is
registered in agreements and/ or in other title
118
Order 3055/2009 of approval for the accounting
Regulation according to European directions
125
deeds (the case of intellectual property), and
in the second category are the goodwill and
the instructed labour force.
The useful life is the shortest duration
between:
the economic life, the estimated
period of time when the asset will
generate benefits for its owner; and
the legal life, which limits the
control among the benefits generated
by the asset.
This classification is particularly
important in accounting the intangible
assets, because those from the first category
are amortised and they are assessed for the
test of impairment at least once a year
(according IAS 38), and those with
indefinite useful life are not amortised and
they are not assessed for the test of
impairment.
The international accounting referential
lists intangible elements as such: software
products, patents, copyrights, motion
pictures, customers lists, fishing licences,
customer and supplier relationship,
customer loyalty, market share and
distribution rights.
Classification of intangible assets in
American accounting. The American
accounting system is called US-GAAP
(Generally Accepted Accounting
Principles) which can be translated as
Principiile Contabile General Acceptate
din SUA).119
The standards that control the subject of
intangible assets are FASAB 141 Business
Combinations and FASAB 142- Goodwill
and Other Intangible assets and the most
important differences towards the
international European or Romanian system
are the following:
The intangible assets internally
developed are recognized if:
1. they can be precisely identifiable
2. they have precise life periods
3. they are not inherent to a continuous
business and they are not related to
the business as a whole.
119
There is a UK GAAP, and a Canadian GAAP,
etc
 The initial assessment is made at fair 2. Internet domain names
value (not at purchase or production cost) 3. Trade dress (unique colour, shape,
The costs for advertising campaigns or package design)
with direct addressing are capitalized 4. Newspaper mastheads
The value of intangible assets with 5. Non-competition agreements
indefinite useful life is not amortised B. Customer-related intangible assets
until the life becomes precisely 1. Customer lists
definite; annual, at least once a year 2. Order or production backlog
the intangible assets are assessed to the 3. Customer contracts and related
test of impairment (Test of customer relationships
Impairment). 4. Non-contractual customer
The presumption that intangible assets relationships
have a useful life precisely defined C. Artistic-related intangible assets
doesnt exist. 1. Plays, operas, ballets
The amortization stops when the life of 2. Books, magazines, newspapers,
the asset becomes definite from other literary works
indefinite. 3. Musical works such as
The period of amortization should be compositions, song lyrics,
analyzed and modified at the end of advertising jingles
each economic-financial exercise for 4. Pictures, photographs
the one who starts it. 5. Video and audiovisual material,
The classification of intangible assets including motion pictures, music
is presented in IFRS 3 Business videos, television programs
combinations. This classification refers to D. Contract-based intangible assets
those intangible assets which are acquired 1. Licensing, royalty, standstill
in a combination of companies, which meet agreements
the definition of intangible asset and which 2. Advertising, construction,
can be recognized separately because their management, service or supply
fair value can be measured in a credible contracts
manner. The identifiable intangible assets, 3. Lease agreements
from the five areas (marked with capital 4. Construction permits
letters) are an exhaustive list of the more 5. Franchise agreements
common identifiable intangible assets that 6. Operating and broadcast rights
can be evaluated separately from the 7. Use rights such as drilling, water,
goodwill. air, mineral, timber cutting,
Examples of separated intangible 8. Servicing contracts such as
assets, acquired in a combination of mortgage servicing contracts
companies that meet the definition of 9. Employment contracts which are
intangible asset are set out in IFRS3. convenient for the employer
These are: 120 because of a contractual salary
A. Marketing-related intangible assets situated under
1. Trademarks, service marks, E. Technology-based intangible assets
collective marks, certification 1. Patented technology
marks 2. Computer software and mask
works
120
Intangible assets that come from contractual 3. Unpatented technology
rights and other legal rights appear at positions 1-5, 4. Databases, including title plants
7, 8, 10-25 and 28, and the intangible assets that 5. Trade secrets, such as secret
do not come from these kind of rights, but they formulas, processes, recipes.
come under the definition of intangible asset, The importance of intangible assets in
because of their separable nature, are those from financial situations
the positions 6, 9, 26 i 27
126
 The companies are obliged to draw up
and to publish the financial situations in
order to provide information to external
users. The question is to what extent the
improvement of the financial situations by
providing information related to intangible
assets can contribute to better inform the
external users. There are three groups of
users directly interested by the information
related to intangible assets, the creditors,
the employees and the investors.
The creditors need accounting
information to assess the value of the
debtor company and the possibility to
recover its funds made available
temporarily. The success of a company
depends on the intangible assets; therefore
the creditors want information about them.
The decisive elements in establishing the
value of the intangible assets owned are the
possibility of re-sell and their potential
price. In assessing the intangible assets,
creditors take into account their separable
nature and their level of legal protection.
Their separable nature is defined by the
degree to which an asset could be subject to
individual assignment in a market without
suffering a significant impairment. The
legal protection is directly related to the
degree of the isolation of the assets,
because it can be benefited of the rights of
the identifiable elements. Therefore if the
separable nature is stronger and the legal
right is better defined, the intangible asset
will be easily recognized and evaluated.
The employees are interested in the level
of intelligence acquired in their working
organization. On an individual level, each
employee appreciates the skills acquired in
his activity, the training he receives and the
professional experience that he achieves.
The investors are interested in achieving
competitive advantage; therefore the
intangible assessment creation has become
more and more a criterion for assessing the
performances of the company. To
determine the value of an intangible asset,
the identification and capitalization of the
flow income generated by this are initiated.
In Anglo-Saxon countries the issue of
accounting information utility regarding the
127
intangible assets is analyzed in terms of the
stock rate response in providing this
information. Most studies have shown that
the shares react quickly to any new
information.
OCDE suggested two criteria for
recognizing the intangible assets in the
balance-sheet asset.
The separable nature
The ability to assess the asset at the
cost of the acquisition, by allocating
a part of the total cost or the cost of
production.
Meeting these two criteria is difficult
since the intangible assets are difficult to
separate, and as regards the evaluation
criterion based on cost without taking into
account the advantages that the asset may
be able to generate in the future, is wrong.
The American professor Baruch Lev
draws attention to the incapacity of
classical accounting to assess the intangible
assets. Investing in research and
development, marketing and advertising,
the societies create intangible assets that are
likely to generate future economic
advantages, but according to accounting
rules they are obliged to record these
investments in costs thereby affecting
profitability. The national and international
organizations for annealing accounting
encourage the companies to submit in their
financial situations the unseen assets of the
society.
The intellectual capital history of
the concept
The concept of intellectual capital was
defined and firmly argued for the first time
by Thomas A. Stewart, one of the editors
from the famous American magazine
Fortune. Basically it represents the sum of
everything that each employee knows in a
company and can be used in developing its
competitive capacity (Stewart, 1999). As
opposed to the elements used by
accountants or by those who assess the
value of a company - land, building,
facilities and financial flows - the
intellectual capital is intangible. It is
therefore difficult to identify and to
evaluate it, but who manages to do it, even
if approximate, has a competitive
advantage. Since 1960, John Kenneth
Galbraith emphasized the importance of
human capital in the technical report: "If
the machines are decisive, then the social
arrangements through which we develop
the infrastructure and equipment shall be of
primary importance. But if people are those
who matter, then our primary concern must
be the achievement of those arrangements
which preserve and develop personal
talents. (Galbraith, 1960).
The mere possession of capital offers no
warranties that the talent in a company may
be obtained and organized properly.
Experience has shown that and therefore a
transition of power in industrial companies
from capital to organized intelligence can
be anticipated. (Galbraith, 1971, p. 71). The
new economy is a validation of the vision
expressed almost half a century ago by John
Kenneth Galbraith, when he first suggested
the use of the expression of intellectual
capital (Roos s.a. 1997). In the knowledge
society, the world of ideas becomes a
priority in relation to the world of tangible
things and the intellectual capital becomes a
priority over other forms of physical capital.
As Marin Dinu stated, "in the knowledge
society, the idea as information is not only
primary, but also a priority, while it also
manifests as ineffable and substantial, vital
and practical, functional and performing.
(Dinu, 2006, p.11).
The multitude of definitions and
approaches of the concept of intellectual
capital shows on the one hand its
importance, but, at the same time, the
difficulty of expressing the intangible.
David Klein and Laurance Prusaks
definition presented in Stewarts book
Intellectual capital The New Wealth of
Organizations is the following:
Intellectual material which has been
formalized, captured and used to produce a
more valuable asset (p 67). But this
definition is not very clear in terms of tacit
knowledge which is very difficult to
express and share with others. In the same
book there is another definition which
describes more the role of intellectual
128
capital in an organization rather than
defining this concept: Knowledge that
exists in an organization and can be used to
create a competitive advantage (p. 67).
Leif Edvinsson, Skandia and Pat Sullivan
define the intellectual capital as
Knowledge that can be converted into
value. (Sveiby, 2001). It is a very simple
definition, but simple doesnt necessarily
mean incomprehensive.
As it can be seen, it is rather
complicated for a definition of a few lines
to capture the essence of the concept of
intellectual capital and to provide a
complete image from the conceptual and
practical point of view. Therefore, both
practitioners and researchers from the
intellectual capital area prefer to use as a
starting point in their approaches different
classifications of the intellectual capital on
components. For example, there are quite a
few models of measurement or evaluation
of intellectual capital that do not use such a
classification (especially the models that
were not developed expressly to assess the
intellectual capital, but they were used for
this purpose, once the concerns for the
intellectual capital area increased.
The most often used classification is
that which divides the intellectual capital
into three components: human capital,
relational capital (customers) and structural
capital. Stewart assigns this taxonomy to
Leif Edvinsson from Skandia and to Hubert
Saint Onge. However, it should be
mentioned that Leif Edvinsson, according
to the Market Value Scheme divides the
intellectual capital into human capital and
intellectual capital the latter being the sum
between customer capital and
organizational capital, the latter being the
sum between innovational capital and
process capital. Although it seems very
well structured, this classification uses
groups of entities which are not very well
defined and are not unique. For example,
the structural capital contains the
organizational capital although the structure
is part of the organization and not vice
versa. (Bratianu, 2006). Thus more and
more authors started to use in their
empirical approaches the classification of
intellectual capital into human capital,
structural capital (organizational) and
relational capital (customers).
A similar classification is the one from
Sveibys model, who classifies the intangible
assets into external structure, internal
structure and individual skills. The external
structure refers to external customers,
suppliers and other stakeholders121 who are
considered relevant for a certain company.
Depending on the type of organization, the
external structure will vary from company to
company. The internal structure refers to
systems, databases, processes that support the
organization. Individual skills refer to
individual experience, knowledge,
qualifications, abilities and employees ideas.
If we bring together different models we
can see that there are different terms for the
same element (for example human capital =
internal skills, structural capital = internal
structure). Bontis is dissatisfied with the
situation mentioned above, considering that
the main reason is the incipient phase of the
domain. Moreover, nobody wants to give
up his own models and to build onto
already existing models and concepts
(Andriessen, 2004).
The Reflection of Intellectual Capital
in Financial Reporting
An organization is composed of an
intellectual material build with knowledge,
information, intellectual proprietary and
experience that is not in financial balance
of the year, but may contribute to its
products and services. It is an intellectual
potential. This potential has the capacity to
transform the processes and management in
a number of operational elements actions,
creating value that is integrated into the
final product had led the company's
material and immaterial. Therefore, each
manufactured item, regardless of its nature
and usefulness, contains material, energy
and knowledge. Services or intangible
products only contain energy and
knowledge. The new knowledge economy
is characterized by increasing the amount of
121
shareholders
129
knowledge embedded in products and
materials on dynamic unprecedented
intangible products.122
It is necessary to improve the existing
reporting system regarding the intellectual
capital in order to be able to make decisions
in the economics based on knowledge,
issue reported since 1999 by the
Organization for Co-operation and
Economical Development (OCDE) in a
symposium held in Amsterdam together
with the Nordic Investment Council and the
Danish Ministry of Economic Affairs,
Education, Culture and Science. 123 The
following conclusions were drawn after this
symposium.
The process of creating value in
companies is changing continuously and
accelerated and therefore there is a need
of information regarding the intellectual
capital and its relationship with the
tangible capital and the role of the first
in the development of the latter;
International organizations, national
Governments should encourage the
experiments that will establish general
principles of periodic reporting of the
development of the intellectual capital
and the intangible values newly
created;
There should be given wide support to
create a new reporting system by
combining the existing indicators and
ending with the establishment of new
economic indicators of economic
annual review;
Employees, materials and material
suppliers and customers are more and
more involved in the process of
creating new intangible values. The
improvement of the economic
reporting system must take into
account the need for a better informing
of the shareholders operative company
results;
The new reporting system should
122
A. Curaj, I. Jianu, Inteligena intelectual,
http://www.knowledgedynamics.ro/?p12
123
t. Iancu, Organizaia economic modern i
cultura consacrat creterii cunoaterii, p.5,
http://www.noema.crifst.ro/doc/200801_01.pdf
 highlight more specifically the role
and the results of the creative activity.
In the reporting process the real
distinction between the value creation
and their accomplishment should be
emphasized.
From this perspective we can notice that
the current reporting system does not
present the creation of values and their
achievement.
Intellectual capital has long been
identified as the "good name" of the
management team, thereby the economic
organization with a good reputation in the
market gains a reputation in the business
community and its success is built on this
reputation. But that reputation may not be
measurable and reported in economic
balances. But in the new concept of the
knowledge society the organizations should
highlight and develop the intellectual
capital - the intangible assets, their
knowledge.
The success of companies no longer
depends decisively on production facilities
or on material capital as it used to happen
decades ago, the statement of the late CEO
Roberto Goizueta from COCA COLA is
suggestive: All our factories and facilities
could burn down tomorrow, but you'd
hardly touch the value of the company. All
of that actually lies in the goodwill of our
brand franchise and the collective
knowledge in the company."124
The current financial situations of
organizations reflect only a part of the
intangible assets, although most
organizations have become the main
generators of income and expenses.
Nevertheless, these assets are not exploited
to their true value. Moreover, accounting
information related to these intangible
resources is scarce or almost nonexistent.
In the era of knowledge the human
resource with intellectual nature acquires a
great importance, has an important role and
generates effects in increasing the value,
much more bigger compared to the other
124
P. Kotler, Marketingul de la A la Z , Editura
Codecs, Bucureti, 2004, p.108
130
resources, we find that in accounting
treatment, in accounting information, in
preparing the balance sheets they are not
taken into account and they leave the area
of accounting treatment. We consider that
to this resource should be applied an
appropriate accounting treatment in order to
relieve a complete, credible and relevant
information.
We define the intellectual capital as
representing the true innovative fortune of the
organization, taking into account the fact that
when the organization employs an individual,
it employs him with all his knowledge. The
knowledge is part of an individual, but we do
not refer to all his knowledge, but only to that
knowledge that is useful for the specific
activities from the organization and that
contributes to innovation and progress on that
specific activity.
We think that the current models of
balance sheets no longer correspond to the
future claims of accounting, an accounting
that for certain will need to adapt to the
new demands of the knowledge society.
The intellectual capital, seen in terms of
knowledge society it is placed and it should
be measured, assessed and presented in the
balance sheet and in the annual accounts
and not to remain a hidden, unidentified
assets. It is necessary to present the
intellectual capital in order to offer a true
picture of the intellectual potential from the
organization.
The importance attached to the
intellectual capital comes from the fact that
traditional accounting systems do not
reflect the reality and the assessing systems
offered by these are less and less relevant
and less appropriate to measure the value of
those companies in which intangible assets
are the most important source of increasing
the value. The companies are obliged to
draw up and to publish balance sheets in
order to provide information to external
users. The question is in what measure the
improvement of financial situations by
providing the information regarding the
intangible investments can contribute to a
better complying with the external users
information needs. The current financial
situation of organizations reflects only part
of intangible assets, although most
organizations have become the main
generators of income and expenses.
Nevertheless, these assets are not exploited
to their true value. Moreover, accounting
information related to these intangible
resources is scarce or almost nonexistent.
In the era of knowledge the human
resource with intellectual nature acquires a
great importance, has an important role and
generates effects in increasing the value,
much more bigger compared to the other
resources, we find that in accounting
treatment, in accounting information, in
preparing the balance sheets they are not
taken into account and they leave the area
of accounting treatment. We consider that it
should be applied an appropriate
accounting treatment to this resource in
order to relieve a complete, credible and
relevant information. We are authorized to
define the intellectual capital, as
representing the true innovative asset of the
organization taking into account the fact
that, when the organization employs an
individual, it employs him with all his
knowledge. We consider that any
modification in the management of the
society should be notified to the public in
order to make decisions, for example hiring
resignation of a manager with a
reputation in the field, the hiring of a
researcher, a famous actor adds value in the
theatre where he acts. The intellectual
capital, seen in terms of knowledge society
it is placed and it should be measured,
assessed and presented in the balance sheet
and in the annual accounts and not to
remain a hidden, unidentified assets.

Bibliography
Standardele Internaionale de Raportare Financiar IFRS 2009, Editura CECCAR,
Bucureti, 2009
Bailly L. Comprendre les IFRS, 3e dition, Maxima Editeur, Paris, 2007
Barbe O., Didelot L.Matriser en IFRS, 4e dition, Groupe Revue Fiduciaire, Paris, 2009
Brun S., Guide dapplication des Normes IAS/IFRS, Gualino Editeur, Paris, 2005
Bunea , Grbin M., Sinteze, studii de caz i teste gril privind aplicarea IAS, vol. I,
Editura CECCAR, Bucureti, 2009
Collection les essentiels RF, Ammortissment et depreciation: les nouvelles rgles,
Groupe Revue Fiduciaire, Paris, 2009
Cucui I., Evaluarea afacerii i atragerii financiare, Note curs
Dumitrean E., Contabilitate financiar, Editura Sedcom Libris, Iai, 2008
Epstein B., Jermakowicz E., Interpretarea i aplicarea Standardelor Internaionale de
Contabilitate i Raportare Financiar, BMT Publishing House, 2007
Feleag N., Feleag L., Contabilitate financiar. O abordare european i
internaional, vol. II, Editura Economic, Bucureti, 2007
Grandguillot B., Grandguillot F., Comptabilit gnrale, 13e dition, Lextenso Edition,
Gualino Editeur Paris, 2009
Julian J.J., Les normes comptables internationales IAS IFRS, 2e edition, Foucher
Editeur, Vanves, 2007
Legea nr. 571/2003 privind Codul fiscal cu modificrile i completrile ulterioare
Legea nr. 82/1991 a contabilitii, republicat, cu completrile i modificrile n vigoare
2010
M. Niculescu, Diagnostic global strategic, Volumul Diagnostic financiar, Editura
Economica,2005
Marius Pantea, Protecia proprietii intelectuale n era globalizrii, Editura Expert,
Bucureti, 2008
Mati D., Pop A., Contabilitatea financiar, Editura Alma Mater, Cluj-Napoca, 2007
Munteanu Victor, Cristina Andreica, Contabilitate financiar a ntreprinderilor, Editura
Prouniversitaria, Bucureti, 2009
131
 Munteanu Victor, Cristina Andreica, Contabilitate financiar aplicat, Editura
Cibernetica MC,Bucureti, 2007
Munteanu Victor, Marilena Zuca, Stefan Zuca, Contabilitatea financiar caiet de
lucrri practice, aplicaii, studii de caz, teste gril i lucrare practic monografic, 2005,
Bucureti
Munteanu Victor, Marilena Zuca, Stefan Zuca, Financial, accounting control and audit,
Bucureti, 2006
Ordinul Ministrului Finanelor Publice nr. 2861/2009 pentru aprobarea Normelor privind
organizarea i efectuarea inventarierii elementelor de natura activelor, datoriilor i
capitalurilor proprii
Ordinul Ministrului Finanelor Publice nr. 3055/2009 pentru aprobarea Reglementrilor
contabile conforme cu directivele europene
P. Kotler, Marketingul de la A la Z, Editura Codecs, Bucureti,2004
Pntea I. P., Bodea G., Contabilitatea financiar romneasc conform cu Directivele
Europene (ediia a III-a), Editura Intelcredo, Deva, 2008
Pierandrei L., 60 cas daplication sur les norms IAS/IFRS, Gualino Editeur, EJA- Paris,
2006
Pop A., Contabilitate financiar romneasc armonizat cu directivele contabile
europene, Editura Intelcredo, Deva, 2002
Ristea M. coordonator, Contabilitatea financiar a ntreprinderii, Editura Universitar,
Bucureti, 2004
Ristea M. coordonator, Contabilitatea societilor comerciale, vol I, Editura
Universitar, Bucureti, 2009
Ristea M. coordonator, Ghid pentru nelegerea i aplicarea IAS 36 Deprecierea
activelor, Editura CECCAR, Bucureti, 2004
Ristea M., Olimid. L., Calu D.A., Sisteme contabile comparate, Editura CECCAR,
Bucureti, 2006
Todea N., Contabilitate financiar, Editura Aeternitas, Alba-Iulia, 2006
Wolfgang D., Francis M.P., Comptabilit financire en IFRS, 2e dition, Pearson
Education France, 2009

132
REMUNERATION FROM PUBLIC COMMUNICATION PAYABLE TO
PERFORMERS. A COMPARISON WITH THE GREEK LAW

Student PhD. MARIANA LILIANA SAVU

Bucharest Bar Lawyer

Collective management of copyright and related rights is a necessary step for the
implementation of certain rights in relation to many ways of operating. Certain
economic rights of performers have proven even from the beginning to be difficultly
assessable on individual basis. However, technical progress and wide spreading of mass
exploitation made the individual control rather impossible.
Keywords: Copyrights, international vocation, intellectual property, neighboring
rights, extended collective license, performers
The institution of copyright and related and related rights, and to create the
rights, as regulated in our system by Law necessary tools to prevent and punish
nr.8/1996125, deals with the protection of violation of these rights.
literary, artistic and scientific works and The international legal frame for
their creators. copyright and related rights protection is
By a definition that has a tradition in our particularly important because it has an
doctrine, the legal institution of copyright impact on legal regulations in Romania in
(generally speaking) means all the legal this field. However, given the international
rules governing social relations that arise vocation of the intellectual creation, it is
from the creation, publication and use of necessary to ensure effective protection of
literary, artistic or scientific works. the rights of authors and of their works, not
Special Law (Law no. 8/1996) sought only in their home countries but also in
not only to harmonize national legislation other states where they are used and
with that of the European Community recovered. For these reasons, we appreciate
member countries, but also to create a the need for further harmonization and
system of effective protection of copyright implementation of legislation on copyright
and related rights, both in European Union
125
Published in the Official Gazette of Romania, member states and acceding countries and
Part I, no. 60 dated March 26th, 1996, beyond.
supplemented and amended by Law no. 285/2004, Moral and economic rights of authors
published in the Offical Gazette of Romania , and holders of related rights are protected
Part I, no. 587 dated June 30th, 2004, supplemented
both by the provisions of the above
and amended by Governments Emergency
Ordinance no. 123/2005, published in the Official mentioned special law, as well as by the
Gazette of Romania, Part I, no. 843 dated common law provisions. These include the
September 19th, 2005, supplemented and amended Decree no. 31/1954 regarding individuals
by Law no. 329/2006 regarding the approval of and legal entities, and the Civil Code126.
Governments Emergency Ordinance no. 123/2005 In the Copyright and Related Rights
for the supplementation and amendment of Law
Treaty, Professor Viorel Ro and his
no. 8/1996 regarding the copyright and related
rights, published in the Official Gazette of colleagues, Drago Bogdan and Octavia
Romania, Part I ,no. 657 dated July 31st, 2006.
(Then all references to the Law no. 8/1996 refer to
126
the form supplemented and amended by Law See for instance, Gh Beleiu, op. Cit. 1999 and
no.329/2006). Fr. Deak , Treaty of Succession Right
133
Spineanu Matei, shows that the discipline
of the Intellectual Property Right study
aims the protection of the authors of
works of the spirit and the results of their
creative activity, meaning the creations of
form (protected by copyrights and related
rights, and more recently by sui-generis
rights) and creations of substance
(protected by industrial property rights), as
well as the protection of the most important
distinguishing signs of trade activities127.
The rights related to copyright, or the
neighboring rights as they were called in
the doctrine and jurisprudence, have been
regulated for the first time in Romanian law
by adopting the Law no. 8/1996 regarding
copyright and related rights128. In the
regulation of related rights protection by
Law no. 8/1996, the Romanian legislature
was inspired by the provisions of the
International Convention for the Protection
of Performers, Producers of Phonograms
and Broadcasting Organizations, concluded
at Rome on October 26th, 1961 and of the
Convention for the Protection of
Phonograms Producers against
Unauthorized Publication of Their
Phonograms, concluded at Geneva on
October 29th, 1971.
The rights related to copyright are
intellectual property rights, other than
authors rights, of which performers benefit
for their interpretation or execution, sound
recording producers and producers of
audiovisual recordings, for their own
recordings and broadcasting organizations
and television to broadcast their programs
and services.
For the purpose of Law no. 8/1996, we
understand by performers any actors,
127
Viorel Ro, Drago Bogdan, Octavia Spineanu
Matei, Copyright and Related Rights, Treaty, All
Beck Printing House, Bucharest, 2005, p.1.
4
Romania acceded to the Geneva Convention for
the Protection of the Phonogram Producers against
Piracy of Phonograms by Law no. 78 dated April
8th, 1998, published in the Official Gazette of
Romania, Part I, no. 156 dated April 17th, 1998.
134
singers, musicians, dancers and other
persons who present, sing, dance, recite,
declaim, play, read, direct, conduct or
perform in any other literary or artistic way,
a show of any kind, including folklore,
variety, circus or puppet shows (art. 95).
For performers, the categories of rights
that can be managed by voluntary or
mandatory collective copyright
management organizations refer to:
a) the right to compensatory
remuneration for private copying;
b) the right to an equitable remuneration
for public lending right provided for in
art.144 alin. (2)129;
c) the right to an equitable
remuneration, recognized for performers
and phonogram producers, for
broadcasting130 or public communication of
phonograms;
d) the right of wire retransmission131;
129
According to art. 144 paragraph 2) of Law no.
8/1996 Library lending does not require authors
approval and entitles him/her to equitable
remuneration. This right can not be waived. By
lending, we understand making available for use,
for a limited time and without any economic or
commercial advantage, directly or indirectly, of a
work through institutions which allow public
access for this purpose ( art.144 paragraph 1). We
understand by equitable remuneration the right of
performers, as well as of phonogram producers to
receive an amount of money for direct or indirect
use of phonograms published for commercial
purpose, or of reproductions by broadcasting or by
any other means of communication to the public
(Rodica Prvu, Ciprian Raul Romian, op.cit.
p.90).
130
We understand broadcasting as follows: a)
issuance of a work by a broadcasting body or
television broadcaster, or by any means for the
wireless propagation of signs, sounds or images, or
their representation, including its public
communication by satellite for reception by the
public; b) transmission of a work or representation
thereof, by wire, cable, optic fiber or any other
similar procedure, except for computer networks,
for its reception by the public (art.151 ).
131
We understand by retransmission by cable, in
the legal sense: a) simultaneous retransmission,
unaltered and in full, by an operator, by wire,
cable, optic fiber or any other similar procedure,
 e) the right of broadcasting and public
communication of the benefits of audio-
visual arts;
f) the right to an equitable remuneration
resulting from the transfer of lending right
provided at art.1111 paragraph (1) of Law
no. 8/1996132.
Collective management of copyright
and related rights is a necessary step for the
implementation of certain rights in relation
to many ways of operating. Certain
economic rights of performers have proven
even from the beginning to be difficultly
assessable on individual basis. Technical
progress and wide spreading of mass
exploitation however made the individual
control rather impossible.
Collective management mainly involves
the collection of fees paid by
users/importers and their distribution to
those entitled, directly proportional to the
actual use of each repository, within 6
months from the date of collection.
As the performer has the exclusive
economic right to authorize or prohibit the
use of his/her performance, authorization
mechanisms /nonexclusive licenses have
appeared as a solution for users to have a
wide access to cultural products and to
simplify the procedure for the use of artistic
performances (phonograms or audiovisual
artistic performances).
Practical opportunities for performers to
exercise their individual economical rights
are relatively small.
In general, if we refer to the legislation
of European countries, collecting societies
except for computer networks, for its reception by
the public or b) by a ultrashort waves broadcasting
system, for reception by the public of an initial
transmission, either wireless or not, including by
satellite, broadcasting or television program
services, intended for reception by the public.
132
According to art. 1111 paragraph 1) of Law no.
8/1996 If an author or performer has transferred
or ceded his/her lending right upon a phonogram or
visual recording, to a phonogram or audio-visual
recording producer, he retains the right to obtain an
equitable remuneration.
135
mandate is limited only to management of
economic rights. Therefore, the performers
shall retain control over moral rights.
In the case of collective management,
performers renounce to their independence
to act individually, especially regarding the
negotiations with users.
Northern-European countries have
adopted a mechanism called extended
collective license. This legislative
technique is to make legislatively binding
to every owner of rights in the same
category, the terms of an agreement
negotiated and concluded between a users
association and a collective management
organization, representing a significant
proportion of owners of rights in that
category.
This extended collective license
allows the preservation of the exclusive
rights of holders represented in the
negotiations, which is an alternative to the
nonexclusive licenses. Representatives of
holders of rights have a greater bargaining
power in front of users representatives.
Another form of guarantee is secured by
a legal presumption according to which the
collective management organization is
entitled to represent all rights provided by
the agreement under negotiation, which
relieves it from the obligation to prove its
competence. When the presumption
applies, the user has the obligation to prove
that the collective management
organization is not empowered to represent
those rights. This mechanism exists in
Germany.
There are also other contractual
guarantees, according to which the
collective management organizations
undertake to compensate users in case of
complaints from rights holders who are not
members.
In conclusions, if we take into
consideration the legislation in several
European countries such as Denmark,
Norway, France, Spain, Netherlands,
Sweden, the collective management of
performers economic rights does not
decrease the availability of access to
cultural goods, at the same time
guaranteeing to the holders of rights as well
as to the users a certain equality in the way
they are treated.
Public communication of phonograms
and audiovisual artistic performances
means a communication made in open
public place or in any other place where
people gather in a number that exceeds the
normal circle of a family and its
acquaintances, regardless of the method of
communication, by direct presentation by
the performers or by the use of
electroacoustic or electronic means
(television, radio receivers, tape recorders,
stereos, computer equipment - PCs, CD-
players, amplification facilities and any
other devices for sound and audiovisual
recordings playback), in order to create the
proper environment for conducting any
other activities that do not require the use of
phonograms and of audiovisual artistic
performances (see Methodology for public
communication of phonograms published
for commercial purposes or reproduction
thereof and tables covering the economic
rights of performers and of the phonogram
producers)9.
The user, who in the premises held
under any title (ownership, management,
rental, sublease, free loan etc.), publicly
communicates protected artistic
performances, must obtain authorization in
the form of non-exclusive license issued by
the collective management organization
designated as the sole collector for
performers, in exchange for a remuneration,
irrespective of the actual duration of public
communication.
Licenses are obtained for a 3/6/12
calendar month period of time, after
completing a statement, on own
responsibility, containing the information
required by the collective management
organization. After this period, their
validity term shall automatically be
terminated.
For verification purposes, the collective
136
management organization may appoint one
or two delegates in order to monitor the use
of phonograms for profit or environmental
purposes, with free access to closed or open
spaces where public communication is
made, based on badges issued by the
collective management organization or
based on other supporting documents (ex.
delegation), being allowed to use portable
audio and/or video recording equipments.
The remunerations set for public
communication of phonograms and of
audiovisual artistic performances are lump
sums, which can be adjusted annually,
starting with the first month of the year
following the year when the methodology
was published, based on the inflation index
established at national level133.
Amendments shall be submitted to
ORDA134, and subsequently to be published
in the Official Gazette of Romania, Part I,
on the expense of the collective
management organization, by the decision
of the ORDA General Manager. Decision
shall be issued within 5 days after
submitting the application to update the
remuneration and terms become effective
from the month following the publication.
Fees paid by users are set according to:
Closed or open spaces located in cities
or tourist resorts restaurants, bars,
coffee shops, tee-rooms, pubs, fast-
foods, grills, pizza restaurants, shaorma
restaurants, wineries, bakeries, game
rooms, ballrooms, wedding halls and
other similar locations;
Closed or open spaces located in
communes and villages restaurants,
bars, coffee shops, tee-rooms, pubs,
fast-foods, grills, pizza restaurants,
shaorma restaurants, wineries, bakeries,
game rooms, ballrooms, wedding halls
and other similar locations;
Program bars, night clubs;
133
Published in the OG 982/8.12.2006 by the
ORDA Decision no.399.
134
Oficiul Romn pentru drepturile de autor
(Romanian Copyright Office)
 Closed or open spaces located in cities,
common tourist resorts and villages
trade or service performing
establishments;
Closed or open spaces located in cities,
common tourist resorts and villages
fairs and exhibitions;
Actions carried out in closed or open
spaces in cities, common tourist resorts
and villages advertising vehicles,
stalls, banners, fixed/inflatable layouts,
mobile trailers, etc.;
Closed or open spaces located in cities,
common tourist resorts and villages
various performances;
Closed or open spaces located common
tourist resorts and villages hotel
units;
Closed or open spaces located in cities
hotel units;
Road passenger transports;
Bus terminals and passenger waiting
areas;
Rail passenger transports;
Stations, Metro/Subway Stations and
waiting areas;
Air transports of passengers;
Airports, passenger waiting areas;
Pleasure transport marine crafts;
Cable transports;
Closed or open spaces parking lots
and movie theatres;
Sport and recreation, closed or open
spaces located in cities, common tourist
resorts and villages stadiums, sports
complexes;
pools, swimming pools, seaside,
beaches, ski slopes and skating rinks
open to the public;
offices and production facilities;
telecommunications.
In Greece we find the fundamental
material in Law no. 2121/1993, as amended
by Law no. 3057/2002 (Article 81) and the
Law no. 3207/2003 (Article 10 paragraph
33).
The Article 3(1) of Law 2121/1993
provides that property rights give to authors
the personal right to permit or prohibit: a)
137
direct or indirect recording or reproduction,
either temporary or permanent, of their
works, in any type of environment or in any
format, b) translation of their works, c)
arrangement, adaptation or other
transformation of the work, d) in
connection with the original or copies of
their works, distribution in any format to
the general public by sale or other
means. Community distribution rights shall
be extinguished only if the first sale or
transfer of ownership of any originals or
copies in the Community is made by the
owner or with his consent, e) rental and
public lending of originals or copies of their
works. These rights are not extinguished by
any sale or distribution of the originals or
copies. These rights shall not be applied in
connection with the architectural works and
the works of applied art. Public rental and
lending shall be understood as provided by
Councils Directive 92/100/REC (OG L
346 61 dated 27.11.1992), f) public
performance of their works, g) transmission
or retransmission of their works to the
public by radio or television, using
electromagnetic waves, or cable or other
conductors or any other parallel manner to
the earths surface or satellite, h) presenting
their works to the public by wire or wireless
means or in any other manner that makes
them accessible to the public so that anyone
can have access to their work in a place
chosen by that person. These rights shall
not be extinguished by any act of
communication to the public, within the
meaning of this provision, i) import of
works copies produced abroad without the
consent of the author or in case of import
from countries outside the EU, if the right
to import copies in Greece was detained by
the author under a contract (Articles 2, 3(1)
and (3) and 4 of Directive 2001/29/EC, OJ
L 167/10 of 22.06.2001). Paragraph 2 of
this article provide that: any use,
exploitation or presentation of a work that
makes such work available to a wider circle
of persons than the tight circle of the family
and of the direct social environment, even
those in the wider circle are in the same
place or in different locations, shall be
considered as public.
This provision (Art.3(1)h) of Law
2121/1993) is in fact a verbatim
transposition of Art. 3(1) of the Directive
2001/29/EC. Introductory Paragraph 23 of
the Directive provides that the authors
right of communication to the public must
be understood in a broad sense to cover all
communications to the public not present in
the place where the communication
originates. This right will cover any such
transmission or retransmission of a work to
the public by wire or wireless means,
including broadcasting.
An issue pretty often debated even in
the Courts of Romania: is the installation in
hotel rooms of TV apparatus to which a
signal is sent via cable, satellite or
terrestrial means an act of communication
to the public which is covered by
harmonizing national laws which protect
copyright provided in Article 3 of Directive
2001/29/EC?
For the purpose of protecting the
copyright in relation to acts of
communication to the public under
Directive 2001/29/EC, a communication
which is made through a TV out a hotel
room can be seen as public because
successive viewers have access to the
work?
We consider a hotel room as a strictly
domestic place, so that communication
through the television sets which send a
signal previously received by the hotel
should not be regarded as a communication
to the public is contrary to copyright
protection sought by Directive
2001/20/EC?
This issue was raised before the
European Court of Justice (ECJ) by the
Spanish court, i.e. the Audiencia
Provincial de Barcelona, which under Art.
234(2) EC has submitted a question to the
preliminary order of the European Court of
Justice regarding which ECJ pronounced on
07.12.2006 a decision ruled in Case C-
138
306/05 Sociedad General de Autores Y
Editores de Espania (SGAE) vs. Rafael
Hoteles SA.
In Greece there has been such a critical
point process in which remuneration was
paid by the owners of hotels for the public
communication of protected artistic
performances through the television sets in
hotel rooms. The question asked was: is it
public or not within the meaning of
Art.3(1)h) of Law 2121/1993 as these
provisions were amended by Art.81 of Law
3057/2002 which transposed the European
Parliament and Council Directive
2001/29/EC dated 22.05.2001 into the
national law ?
In response to these questions, the
European Court of Justice replied that:
1. Although only the provision of
physical facilities does not mean
communication in the sense of Directive
2001/29/IC, distribution by a hotel for
guests staying in hotel rooms of a signal via
the television sets, regardless of technique
used for the transmission signal, is a
communication to the public within the
meaning of Article 3 (1) of the Directive.
2. The private nature of hotel rooms
does not mean that a communication of the
work through television sets provides a
communication to the public within the
meaning of Art.3(1) of Directive 2001/29.
The European Court of Justice has also
stated that although only the provision of
physical facilities does not mean
communication in the sense of Directive
2001/29/IC, distribution by a hotel for the
guests staying in hotel rooms of a signal via
the television sets, regardless of the
technique used for signal transmission, is
communication to the public within the
meaning of Art. 3(1) of that Directive.
Normally, to the concept of communication
to the public should be given an
autonomous and uniform interpretation
throughout the Community and can not
reasonably hold that is for Member States
to establish the definition of public
referred to by Directive 2001/20/EC but
which it does not actually define. It also
admitted that communication of a work via
television sets in hotel rooms is a
communication made by a broadcasting
organization other than the original one and
that such transmission is made to an
audience different from the public to which
the original communication act of the work
is directed, meaning to a new public. In this
sense should be considered the Guide to the
Berne Convention (Law 100/1975) and
accepted that when an author authorizes the
distribution [broadcast] of his/her work,
he/she takes into account the direct users,
139
meaning the receiving equipment holders
that either personally or in their private or
family circle receive the program.
Therefore, if the reception is for a larger
audience, possibly for profit, a new section
of the receivers hear or see the work and
communicating the program through a
broadcaster or a similar tool is not simply
receiving of such a program, but an
independent act by which the work is
communicated to a new public. As a
consequence, such public reception falls
within the artists exclusive right of
authorizing.
 SOME CONSIDERATIONS CONCERNING RECENT EUROPEAN
PRACTICE IN THE FIELD OF INTERNET PIRACY

Lawyer MAGDALENA POPESCU

Bucharest Bar Lawyer

Bit Torrent case in Finland. The Supreme Court of Finland passed in June 2010 a
conviction decision in the case of the administrators of a Bit Torrent network. Their
defenses based on mere hosting of the site and private copying exception were not
admitted. Court found that administration of the network entails criminal and civil
liability for the illegal transfer of copyrighted work.
Keywords: copyrighted works, copyright infringement, software, peer-to-peer network,
monitoring ratio, Internet piracy, tracker.
In June 2010, the Supreme Court of so that the user, using his/her own machine,
Justice of Finland passed a final decision in establishes contact with the server (the so
the case of Finreactor, started in 2004. called tracker), through which he/she
In fact, Finreactor was a Finnish P2P receives the data (the so called descriptive
website (network) operated under file, in this case a .torrent file) from files
BitTorrent protocol. The system was not (so called content files) that are on other
opened to everybody, but accessed only users machines. When deciding to
upon registration. At the moment when the download a content file (such as motion
Finnish authorities took action, there were pictures, games, etc.) the user is no longer
more than 10,000 users registered. There in contact with the tracker but with the
was no payment requested for registration machine of the other user or with the
(the system operated non-profit); machines of other users.
however, money has been collected from The tracker has the descriptions of all
the users in the form of donations. One of the files that are on the machines of the
the tracker servers was in The Netherlands. users, but without storing the files
The network was used for sharing themselves, and, in addition to this, it keeps
copyrighted works software, music, track of the downloads of these files and the
games, and movies. There were number of times the files are shared, and
approximately 30 individuals acting as monitors the relationship between each user
system operators, administrators and in respect of these files (so called share-
moderators. The participation in the system ratio or ratio figure). The monitoring ratio
was conditioned upon a minimum amount mentioned above is important because the
of material distributed (share ratio). functionality of the system requires that the
This kind of so called BitTorrent peer- down-loaders also actually share files.
to-peer network is a computer network The persons brought to justice
where the more traditional problem of the (defendants) were maintainers of the above
sufficient data transfer capacity of a single mentioned peer-to-peer network, i.e. they
server has been solved so that each user that have seen to it that the service functions.
downloads files (a so called leecher) acts The highest maintainer classification has
simultaneously as a sharer (a so called been category 6 (so called SysOp) and the
seeder). others have been categories 5 and 4 (so
The data transfer occurs in the network called Administrators and Moderators).
140
 The lowest user category is 0 (so called
user). The number of tasks, user rights and
benefits grow in a system like this with the
increased rank on the classification scale.
The most important peer-to-peer network
tasks, for which categories 5 and 4 were
responsible, were the administration of the
users, which was performed by instructing
the users and monitoring their actions. The
monitoring has been made by observing the
ratio figures of the users and the extent of
their making descriptive files and their
sharing content files. A low ratio figure that
indicated a low degree of sharing of content
files, that is distribution to other users, or
errors in the descriptive files, or content
files that were bad or could be wrongly
interpreted, could result in a warning, or the
consequence could be a degradation of the
user to a lower category or the revoking of
user rights (so called banning).
When acting as maintainers or users, the
persons brought to justice (the defendants),
in line with what is customary on the
Internet, have used pseudonyms (so called
nick names or nikkis) like Maestro,
Focus and Sucof, Thejoker or Infra.
Picture the working manner of a Bit
Torrent network
The investigations in this case started
back in 2004, when several rightholders
filed criminal and civil actions. The
involvement of the server located in The
Netherlands requested the use of mutual
141
assistance procedures for ceasing of the
illegal activity and securing of evidence. In
2006, the first court sentence was passed
against the system operators, the
administrators and the moderators. The file
went through all stages of the Finnish court
system, reaching the Supreme Court, which
passed the final decision in June 2010, in
line with the previous judgments.
We shall analyze some of the legal
issues raised and solved by the courts
during the trial:
1. To what extend are the
administrators of the network liable for
the copyright infringement taking place
through the network, committed by all
the 10,000 users of the peer-to-peer
system?
The courts have found that the
administrators activities were essential for
the operation of the Finreactor system.
Therefore, the administrators have jointly
committed the distribution of the
copyrighted works together with the users
themselves.
To reach this conclusion, the courts
considered that the maintaining of the
tracker servers and of the torrent files were
an instrument absolutely necessary for the
users to upload (distribute) and download
content files among themselves. Therefore,
the administrators (levels 4, 5 and 6) were
found liable for the copyright infringement
consisting in all distribution that took place
on Finreactor and which could be
documented by evidence.
One of the main arguments for the
defense was that the distribution of
copyright protected works has not
happened in the tracker maintained by the
defendants, but between the machines of
users who have found each other by means
of this tracker.
However, the working principles and
purpose of the peer-to-peer network in
question have, however, not solely been to
establish a link by means of the tracker to
the desired content file. When considering
the liability according to the criminal law of
the parties that have participated in the
maintenance of the service one must take
into account the working principles and
purpose of the service, the actions of the
defendants that have participated in the
maintenance as a whole, as an
indispensable and direct part of the
manufacture of copies of the works
performed by the users of the service.
The content files made accessible by
means of the server have been well
classified to suit the likings of the users
(such as computer programs, music,
PlayStation2 games, anime, etc.). Each user
group had his own named responsible
person. The persons responsible for the
maintenance of the service monitored the
ratio figures of the users, the contents of the
files, and the accuracy of the descriptions.
The service was constantly developed. The
purpose of all the actions mentioned above
was to make the service function efficiently
and in a way that would enable it to offer as
much new and interesting material as
possible to the users of the service.
The working principles of the above
mentioned service were clear from the
public prosecutors evidentiary material in
writing as a whole, from the testimonies
given by the defendants themselves, and
from the statements of witnesses. The
defendants themselves have stated that the
specific purpose of the service was to
render possible the widest possible
distribution of files. Moreover, according to
their own statements, the defendants were
also fully aware that the files contained
copyright protected material.
2. Was the distribution among the
users of Finreactor a form of private
copying ?
The Finnish legislation, just like
the Romanian one, allows the making of
copies for personal use. However,
downloading in Finreactor was found by
the courts not to be private copying, as Bit
Torrent also requires that users upload
(distribute) copyrighted works. Moreover,
such distribution was monitored by third
142
parties (the administrators of the system),
which were not one of the parts of the files
exchange that took place135.
In addition, courts took into account the
high volume of distribution, thus excluding
the private copying defense.
3. Could provisions concerning
hosting of the E-commerce Directive
2000/31/EC exclude the liability of the
administrators of Finreactor?
Art. 14 of the E-commerce Directive,
implemented in the Finnish legislation,
provides for as follows:
Article 14 - Hosting
1. Where an information society service
is provided that consists of the storage of
information provided by a recipient of the
service, Member States shall ensure that
the service provider is not liable for the
information stored at the request of a
recipient of the service, on condition that:
(a) the provider does not have actual
knowledge of illegal activity or information
and, as regards claims for damages, is not
aware of facts or circumstances from which
the illegal activity or information is
apparent; or
(b) the provider, upon obtaining such
knowledge or awareness, acts expeditiously
to remove or to disable access to the
information.
As previously demonstrated, the
Finreactor service, as provided by the
defendants, was not solely technical by
nature, as the administrators were aware of
the distribution of copyrighted material and
participating themselves in the uploading of
illegal content. Therefore, the courts did not
embrace these arguments for defense.
135
Art. 34, para 1 of Law no. 8 of 1996, on
copyright and related rights, as amended: It shall
not constitute a copyright infringement the
reproduction of a work, without the authors
consent, for personal use or for the normal family
circle, on condition that the work was previously
brought to public knowledge, and its reproduction
does not contravene to the normal use of the work,
nor to prejudice the author or the holder of the
exploitation rights.
 Final note Romanian legislation:
The Romanian legislation is in line with
the European one, providing for similar
criminal offences in cases of Internet piracy.
According to the Romanian legislation,
unauthorized uploading of copyrighted
material is forbidden, the Law no. 8 of
1996, as amended, providing for as follows:
Art. 1398
It shall be a criminal offense and it shall
be punishable by imprisonment from 1 up
to 4 years or by a fine the making available
to the public, including by Internet or by
other computer networks, without the
consent of the right owners, of works or
products bearing related rights or sui
generis rights of the makers of databases or
of copies thereof, regardless of the carrier
type, so that the public may access them
from a place and at a time individually
chosen by them.
Also, the downloading of copyrighted
material may be considered as falling under
one of the following legal texts:
1. If it is about a computer program
(including a computer game) Art. 1399 of
Law no. 8 of 1996:
It shall be a criminal offense and it shall be
punishable by imprisonment from 1 up to 4
years or by a fine the unauthorized reproduction
of computer programs on computing systems in
any of the following manners: installation,
storing, running or execution, display or
internal network transmission.
2. If it is about a work protected by
copyright or related rights, other than
software, and a distribution scope can be
proved (e.g. even the non-profit distribution
among P2P users), then the Art. 1396, para
1 of Law no. 8 of 1996 applies:
(1) The following deeds constitute a
criminal offence and are punished by
imprisonment from 2 up to 5 years or by
criminal fine:
a) the making, for the purpose of
Bibliography
Turku District Court Decision no. 2908 of October 26th, 2006;
Supreme Court of Finland Decisions no. 47 of June 30th, 2010 and no. 48 of June 30th, 2010.
143
distribution, without the aim of
getting direct or indirect material
compensation, by any means and
in any manner, of pirated goods;
Art. 1396, para 8 of Law no. 8 of 1996
defines the pirated goods, which can be
in material format or in electronic format,
on a computer internal HDD, external HDD
or other digital data carrier:
(8) By pirated goods, in the sense of
the present law, shall be understood all the
copies, no matter the carrier, including
covers, made without the consent of the
rights holder or of the person legally
authorized by him or her and which are
made, directly or indirectly, totally or in
part, by reproducing a product which is
subject of the copyright or of the related
rights, a cover or a package thereof.
3. If it is about a work protected by
copyright or related rights, other than
software, and a distribution scope cannot be
proved, then the Art. 140, para 1 a) of Law
no. 8 of 1996 applies:
It shall be criminal offenses and
punishable by imprisonment from 1 month
up to 2 years or by a fine the following
deeds committed without the authorization
or the consent of the holder of rights
acknowledged by the present law:
a) the reproduction of works or of
products bearing related rights;
Reproduction is also defined by law, in
Art. 14, as being the making, in whole or
in part, of one or more copies of a work,
directly or indirectly, temporarily or
permanently, by any means and in any
form, including by making any audio or
audiovisual recording of a work, as well as
the storing thereof by electronic means,
permanently or temporarily.
Therefore, any type of making of a copy
of a work, including by downloading it
from a network on a computer, is forbidden
unless authorized by the copyright holder.
 SUPERVISED DELIVERIES.
NORMS AND APPLICABILITY IN
THE EUROPEAN COMMUNITY

Commissioner Fraud Squad LIVIU BLAN

OCTAVIAN-LUCIAN SECIU
Adviser - Control body of the Prime Minister

For a part of the European ex-communist countries, the political, economical and
social similar phenomenon of drug use started to become a problem only after the socio-
political changes of the 90s, the open borders contributing significantly to this aspect.
Romania, first a transit country for drugs has become in short time a country of
consumers. The impact was very high among young people, who out of curiosity,
eccentricity or solidarity towards the group broke into drugs, and since 1995 these young
people have begun knocking on the doors of psychiatric hospitals being the first addicted
patients seeking treatment. The Romanian society was taken by surprise by this scourge
of drugs and, regardless all efforts taken, some problems still persist.
Keywords:supervised delivery, drugs, predecessors, psychotropic substances,
gun traffic, money laundry, police cooperation.
The technique of supervised delivery is in receiving and/or distributing the
considered in a great manner an efficient transport, otherwise these persons remain
instrument for fighting drug traffic. Thus, unknown and escape conviction. The delay
the definition used by the Vienna is justified by a potential conviction and by
Convention stipulates the followings: the the prejudices brought to the traffic
technique of allowing suspect or illicit networks.
transports of drugs, psychotropic Some member states make the
substances or predecessors, to pass into the difference between a monitored delivery
territory of one or various countries with (when there is no direct control because the
the agreement and supervision of relevant merchandize is just being followed) and a
authorities, in order to identify the persons supervised delivery (in which case an
who commit the crimes stipulated by art. 3, undercover agent takes part in the delivery).
paragraph 1 from the Convention. A supervised delivery operation is possible
Although the accent is put on supervised in any member state with a valid
drug deliveries it should be noticed the fact authorization, although the manner and
that in the majority of the member states, criteria of authorization differ from one
similar operations are allowed for other goods member state to another. In some states
or merchandizes, too (guns, money etc.).136 there is applied a specific legislation or
The objective of the technique is that of internal norms, while in others there are
postponing the arrest of messengers and applied the standard techniques of the
confiscating the goods in order to follow police and customs. The general principles
the route and identify the persons involved which are applied are inevitability (the
information cannot be obtained through
136 various traditional methods) and
Manual of the European Union for supervised
deliveries, page 3
proportionality (the quantity involved
144
certified the dimensions and costs of the
operation).
Basic information required by all
member states. It is preferred for the
petitioner agency to supply to the country of
destination or transmit as much information
as possible. All member states, when they
consider a request for supervised delivery,
ask the following basic information: the
purpose of the operation, justified
information regarding the operation, type
and quantity of the drugs or of other goods,
the probable point where they enter and exit
the petitioner state, means of transportation
and the itinerary, the identity of the suspects
(name, date of birth, residence, nationality,
description), indication of the source which
authorized the operation, the chief
investigator in charged with the operation
and the means of contact, details about the
police officers, customs offices and other
involved, details regarding any special
proposed technique (undercover agents,
surveillance devices etc.)
Rejection of a solicitation. Any relevant
authority will have its own preoccupations,
but common difficulties which any
petitioner agency should keep in mind are:
the lack of sufficient information regarding
the transport or carrier, the lack of other
transit countries agreement, the risk of
some prejudices, proportionality,
availability of resources, unknown final
destination, guarantee of the conviction
(when they are asked)
The role of foreign police and of other
law enforcement agencies. The external
participation in supervised delivery
operations is allowed in all member states,
usually with a previous authorization but
without the agreement of the police or
customs to wear guns. The destination
member states will normally ask for the
final operational control to be in the hands
of their own agencies. There are certain
restrictions in various member states.
France and Luxemburg allow wearing guns
on their territory by the agents of the
organising states that require it with the
145
express and previous authorization of the
claimant state or of the Ministry of Justice.
Although the gun use by an agent is limited
to the cases of self defence. Undercover
agents may be used in supervised delivery
operations but with a previous
authorization. France, Italy and Sweden do
not allow the use of undercover agents
unless they are members of their own law
enforcement agencies. Special techniques
may be used (such as tracking devices, etc.)
if the technique is legal in the country of
destination. The ongoing supervision and
security is generally available in the
country of destination.
Replacement of transport. The practice
of substitution is generally possible but not
compulsory, the partial replacement is
possible in all member states, while in some
cases, legal national criteria for indictment
prohibit the complete substitution. The
substitution has the advantage of reducing
dissemination risks if the operation fails
and in the same time (for complete
substitution) leaving sufficient reports in
order to begin the indictment.
The failure of an operation. Factors
which contribute significantly to risk are:137
unexpected events (change of itinerary,
manner of transportation etc.),
inappropriate communication between the
agents during the operation, technical
incompatibility (especially in radio
communications), inappropriate resources.
Communication and cooperation. The
availability of information in the case of a
supervised delivery is just the first step for
facilitating the cooperation between
member states. The communication
between the attending agencies has a vital
importance in leading the operations and
reducing the risks of a failure. These things
must happen at the level of the
authorization but most important at the
level of operational officers which should
know each other in person. Of value in this
137
Manualul Uniunii Europene pentru livrri
supravegheate , pag.21
regard would be a common post-
operational evaluation and also the
information regarding the results of the
operation of all agencies involved. This will
allow an ongoing improvement of trust and
an increase of the experience for
understanding the legal frame, the
methodology and each ones priorities. All
factors that involve the risk of failure can
be neutralized by a well established
communication.
Supervised deliveries in Belgium. The
method of supervised deliveries (terms used
being accompanied transports or
delayed confiscations) is not regulated by
law but by an order of the minister from
24th of April 1990 regarding the police
techniques and is based on the law of
Belgian courts. This method is the subject
of a rigorous monitor by the National Court
and the Public District Attorneys Office
which have the following attributions:
assuring the coordination of legal
procedures and facilitating international
cooperation together with public local
prosecutors involved, taking imperious and
necessary measures. These decisions
represent the connection with the local
prosecutors involved. There are applied two
fundamental principles: principle of
proportionality this process or technique
may be applied only in serious cases of
organized crime and the principle of
subsidiary this process may be applied
only if other investigation techniques do not
allow the obtaining of the necessary proofs.
The goods, other than drugs, may constitute
the subject of some supervised deliveries.
The ministers order reminds of the illegal
transportation of goods.
A legal authority from a petitioner
country must send the cooperation request
under the form of a rogatory letter. If the
supervised delivery begins in Belgium and
passes through Belgium, there must be
given the following guarantees by the legal
authorities of all countries involved: the
guarantee according to which illegal goods
are under the permanent observation of the
146
police and the insurance that the illegal
goods will be confiscated in the country of
destination (or anywhere else if there is the
risk of escaping from under the control of
the illegal goods) and that the persons
involved in committing the crimes will be
submitted to conviction.
With the agreement of relevant legal
authorities there may be used a substance for
replacement and the presence of law
enforcement agencies from the petitioner
country on the territory of Belgium must be
approved by the relevant legal authorities,
which will also decide the practical
modalities such us wearing a gun. A formal
request must be presented before that.
Regarding the technical assistance from
other country the use of trustworthy agents
and use of other police techniques are things
which the relevant legal authorities decide.
Due to the fact that these delicate
operations must be prepared carefully, it is
preferred to establish contact as soon as
possible. In cases of extreme necessity, an
agreement regarding the rules must be issued
in a few minutes. Regarding the preparation
of the operation, the time period may
oscillate from 30 minutes to various hours
(according to the high or low complexity of
the problem that has to be solved).
The authorization must be obtained
from the competent prosecutor from the
place of departure and the authorization in
advance from the competent prosecutor
from the place where it is supposed to take
place the finalization of the supervised
delivery, confiscation of illegal goods and
arrest of the persons involved. If the
operation is begun within a current legal
investigation, there must be obtained the
permission of the judge who deals with the
investigation. If, at the request of a foreign
authority arrives an accompanied
transport in Belgium, the National
Magistrates Office must be involved and if
at the moment of the request of the
authorization the place for entering the
country is not known, this judge
(magistrate) takes the decision.
 The request must be sent to the National
Magistrates Office and a copy to
SGAP/APSD. The requests for the National
Magistrates Office must be made by the
relevant legal authority from the country
involved (directly or by the law enforcement
agency), the countries choose the method of
communication which seems the fastest or
most secure assuring confidentiality.
Supervised deliveries in Denmark.
According to the directives of Danish
police, Denmark may attend to a
supervised delivery not only regarding
drugs but any kind of goods. Denmark
attends to supervised deliveries either if
they start from Denmark or transit it, or has
it as final destination. A main rule and a
condition for supervised delivery is the
prosecution through a warrant.
The Danish law regarding legal system
regulates a series of specific law measures
regarding the use of undercover agents. The
general legislation regarding undercover
agents is valid also if they assist to
supervised deliveries. The undercover
agents must be police officers. The foreign
police officers may be infiltrated as
undercover agents but they do not have
executive powers in Denmark. Foreign
officers may wear guns with a special
permission. Undercover agents may be used
only in the cases where: there is a previous
understanding regarding the transport
between supplier, messenger and receiver
and there are clear indications that allow
supposing the fact that the receiver will
commit the crime. Both partial substitution
and the total one of goods are allowed. The
substitution is applied to the cases when
this is allowed. It may be guaranteed an
ongoing surveillance.
The request for a supervised delivery
may be rejected in the following cases: if
the final destination is in another state and
there is no notification which confirms that
the persons involved will be convicted, if
there is the risk of losing the transport, if an
undercover agent who is not a police officer
attends to the supervised delivery.
147
It must be obtained an authorization
from the head of the regional Police whose
jurisdiction will be involved in this case.
The request for supervised delivery must
be sent to the National Police. If it is given
the agreement for supervised delivery the
National Police, in cooperation with the
head of local Police are responsible with
the initiative, operative order, effective
control and decision of finalization of the
operation. The National Customs
Authorities give a previous authorization
for passing the boarders of Denmark
without customs control. The
communication channel before and during
supervised delivery is made by Interpol,
Scandinavian and Danish connection
officers from Europol. There are no
supposed reasons for rejecting a request for
a supervised delivery.138
Supervised deliveries in Germany.
There are no specific legal measures which
regulate a supervised delivery. Germany
adhered to various international
conventions, for a real cooperation in the
fight against crime regarding drugs, and
also for punishing the doers. The conditions
and procedure for supervised deliveries
are regulated by an administrative
regulation (no. 29 a-d from the directives
that regulate the criminal conviction and
fine). There may be the subject of the
supervised deliveries the following:
illegal traffic of drugs, guns, stolen goods,
using stolen goods and similar
merchandize.
The administrative regulation (art.29 a)
offers instructions and defines the
expression transport under surveillance
distinguishing the following cases:
surveillance of imports from other country
in Germany, surveillance of exports from
Germany to other country, surveillance of
transports that transit Germany from
another country to a third country. The
cases in which it is allowed the transport
138
Manual of the European Union for supervised
deliveries, page 30
under supervision are: when there are no
other means for finding out the identity of
the instigator or finding out the distribution
channels, when it is guaranteed the
possibility to intercept the doer of the crime
and confiscate the crime element, with
the corresponding Public Prosecution
authorizes the method of the transport
under supervision.
The supervision of the transport or of
the exported merchandize may be done
only if other implicated member states
made the following statements: the import
or transit authorization, assuring an ongoing
supervision of the transport, assuring that
there will be investigated the messengers,
instigators or buyers; assuring that the
drugs, guns, stolen goods, stolen goods
used and other goods will be confiscated;
assuring that the criminal procedures will
be held against the doer of the crime and
assurance that the sanction applied will be
performed and assurance that the legal
German authorities will be permanently and
continuously informed regarding the
progresses during different phases of the
operations.
If Germany is the country of destination
of the illegal drug traffic, it is allowed by
law for the drugs to be totally or partially
replaced. During the operation there must
be taken measures in order to assure that
the change is certified and that the
confiscated drugs are submitted to
procedures in front of a German court of
law, or are put at the disposal of Germany
within the context of legal cooperation.
The attendance of agents from other
countries in order to accompany a
controlled delivery that passes through
Germany with the destination to other
country is allowed only if national and
foreign authorities give their agreement.
Only the agents from Germany have the
competence to issue charges. As a rule,
foreign police officers are not authorized to
wear a gun. Regarding the possibility to
implicate an informer or an undercover
agent in the transport under supervision,
148
from the country of origin to the country of
destination, this agent or informer cannot
contribute to the commission of the crime.
As a rule, the technical assistance
(material) may be assured at any time. If
there are needed special techniques it will
be asked for the intervention of special
qualified personnel. This personnel is used
according to the type of intervention
needed. The context in which are taken the
assistance measures is determined by the
legal directives from the petitioner country
and also from Germany.
The necessary time for obtaining the
authorization varies, as the case may be,
from a few hours (approximately 8) until 48
hours (especially over weekend). A request
of assistance or cooperation within the
context of a supervised delivery must be
presented as possible with at least 24 hours
before. If there is the risk of losing the
transport, the doer of the crime will be
immediately arrested and the drugs
confiscated. The relevant authority to issue
the authorization is the Public Prosecutors
Office, according to instruction no. 29 c
which regulates the fines and criminal
procedures. The request must be presented
before in writing or in exceptional cases by
phone. As a rule there are used the
communication channels specific to
Interpol.
Supervised deliveries in Greece. The
stipulations of art.38 from the Decision
no.2145/93, modified by art.15, paragraph
1 from the Decision no.2331/95 constitutes
the legal base for monitored transport.
These provisions are applied clearly to
drugs and have no connection to other
goods.139
The requests from other countries,
according to art. 11 from the Convention of
the United Nations from Vienna from 1988,
are submitted to any method of
communication but always in written,
directly or by Interpol, to the Central
139
Manual of the European Union for supervised
deliveries, page 33
Antidrug Coordination Unit (SODN),
which, assuring of the legal origin and that
of the request informs immediately the
General Prosecutor of the Court of Appeal
from Athens through a confidential
document, attaching a copy of the telegram
or of the documents that contain the
request. If the petitioner state guarantees
the monitor of the transport and detainment
for interrogation of the implicated persons,
the General Prosecutor of the Court of
Appeal in Athens will immediately inform
the prosecutors of the Magistrates Court if
there is an intention to cross the
competence field. Once they were
communicated the information, the
prosecutors of the Magistrates Courts
delay all ongoing criminal investigations
and have the obligation to take all
necessary measures to prevent the
dissemination of the transport.
The Central Antidrug Coordination Unit
controls and is responsible for the transport
of the drugs during the crossing of the
country from the moment of entering the
country and until its departure. As soon as
the drugs leave the country and within
maximum 48 hours, the Central Antidrug
Coordination Unit makes a detailed
information report regarding the monitoring
of the transport, the date, duration and
places where the drugs entered and left the
country. A copy of the report, classified as
confidential is handed to the General
Prosecutor of the Court of Appeal from
Athens. The request from the national
authorities for performing monitored
transports outside Greek territory are sent
through the general prosecutor of the Court
of Appeal from Athens to the Central
Antidrug Coordination Unit. The
coordination and law enforcement Antidrug
Unit is responsible only for drug monitored
transports. The monitored transports are
organized on the base of a written request
from the part of a foreign country and
continues as long as it is necessary for such
an operation to take place. It is possible that
Greece accepts technical assistance from
149
other states. Such assistance is not
governed by any legal mechanism and may
be offered by traditional means or other
means. The competent authority who can
issue the authorization if the General
Attorney of the Court of Appeal from
Athens and the request must be directed to
the Interpol office and Central Antidrug
Coordination Unit.
Supervised deliveries in Spain. In Spain
it is allowed the practice of supervised
deliveries. The legal base can be found in
art.236 from the Criminal Procedure Code
(Ley de Enjuiciamiento Criminal),
amended by the Organic Law 5/1999 from
13th of January 1999 which contains the
following text
The competent instruction magistrate
and the Public Prosecutors Office together
with the heads of central and district police
units have the authority to allow the traffic
of supervised delivery of toxic substances,
drugs or psychotropic substances and of
other prohibited substances. The decision
to put in practice will be based on the
essence of the case and will be determined
as much as possible by the object of the
supervised delivery authorization and also
on the type and quantity of the implicated
substance. The necessity to use this
measure will be determined by the expected
results of the investigation, gravity of the
deed and possibility of supervision. Each
magistrate who issues the authorization
will send a copy of the decision to the
senior district prosecutor of that
jurisdiction who will keep a registry in
which will register these authorizations.
The authorization can also be issued for
the circulation or supervised delivery of
equipments, materials or substances
nominated in art.371 from the Criminal
Code, of goods and earnings, nominated in
art.301 from the Code in all circumstances
stipulated in the article together with all
goods, materials, objects or animals or
plants nominated in art.332, 334, 386, 566,
568 and 569 from the Criminal Code.140
By controlled traffic or supervised
delivery is understood the technique of
allowing a suspect or illegal transport of
drugs, psychotropic substances or other
prohibited substances, equipments,
materials or substances referred in point 1
above, or replaced substances, together
with the goods and earnings coming from
illegal activities stipulated by art.301-304
and 368-373 from Criminal Code, to
circulate on Spanish territory, enter or
leaving its territory unharmed by the
authorities and undercover agents, in order
to discover and identify the persons
implicated in the commission of the crimes
regarding drugs, substances, equipments,
materials, goods or earnings or in order to
assist the authorities from other countries
at their investigations.
The decision to start a supervised
delivery will be taken according to each
case at international level within the limits
traced by the international treaties.
The Magistrate who makes the analysis
and the Public Prosecutors Office,
together with the head of the central and
district legal police units will report
immediately such decision to the Public
Prosecutors Office, according to point 1
above.
The interception and opening of the
correspondence suspected to contain drugs
and, if so, the substitution of the drug will
be made according to the legal provisions
of the Code except the case when the
provisions of art.584 from law are
applied.
The conditions are very strict, given the
importance of this investigation technique
and the results which might appear in case
of failure of the supervision of the goods
and implicated persons. In practice there
must be fulfilled the following conditions:
Guaranteeing a permanent supervision
of the transport and the assurance that
140
Manual of the European Union for supervised
deliveries, page 35
150
there will be made everything possible
in order to catch and bring to justice the
persons involved. The petitioner
authority will confiscate the drugs and
will arrest all persons involved,
especially if there is the risk for the
drugs to be stolen at a certain moment
of the operation.
Detailed information regarding the
vehicle or the mean of transport which
will be used for the operation
(including the registration number).
Detailed information about those who
are supposed to drive the vehicle,
especially the name he will use when
crossing the border.
Probable date for arriving in Spain and
the customs where they will pass
through.
The most detailed information
regarding the investigation started until
now in the petitioner country
If Spain is the final destination it is
important to offer information
regarding the persons involved and the
exact final destination.
Previous authorization from the
countries though which the supervised
transport will pass.
Precise information regarding the
circumstances which may appear
during the operation.
The police agents of the petitioner
country may cross the Spanish border. Still,
it is understood that these are retained from
any intervention and will submit
completely to the instructions of the
Spanish police. To the question if a
supervised delivery can be performed by a
trustworthy third party or by an undercover
police agent, together with coming in force
of the Organic Law 571999 from 13th of
January 1999 the undercover agents
submit to art.282 a from the Criminal
procedure code, which allows the agents of
Spanish judicial police to perform
investigations regarding organized crime
activities under a false identity.
The activities considered by law to be
connected with the organized crime include,
among others, crimes connected to drug
traffic; the undercover agents may attend to
supervised deliveries regarding illegal drug
traffic. The decision for authorizing an
undercover agent to act is given by the
examiner magistrate or by the Public
Prosecutors Office according to the needs of
the case. The request must contain the real
name of the agent and the false identity
assumed for the operation. The undercover
agent will offer any information obtained to
the person that authorized the operation in the
shortest time possible. This information will
be reported entirely under any modality and
to the competent legal body, who will act
consequently. The technical assistance from
other countries is allowed, the time necessary
for obtaining the authorization for such an
operation is of 24 business hours and 48
hours in weekend and legal holidays and in
the case of transportation of small quantities
of drugs by persons that are not involved in
organized crime, a request may be rejected on
the base of the principle of proportionality.
Competent authorities for issuing the
authorization are: The Public Prosecutors
Office, heads of central and district police
unities and competent magistrate
examiners. The requests for supervised
deliveries from the police regarding drug
traffic crimes must be directed to the
Central Drug Unit (Unidad Central de
Estupefacientes).
If the supervised delivery must be
executed in a customs area, the petitioner
authority must address the request to the
Central Drug Unit through the Special
Department of Customs and Taxes
(Departamento de Aduanas e Impuestos
Especiales) from the Customs Supervision
Service (Servicio de Vigilancia Aduanera).
In case of emergency, there may be used
the channels of the Interpol or it may be
sent a fax directly to the Central Drug Unit.
Supervised deliveries in France. The
technique of supervised deliveries enters
under the incidence of art. L 706-32 from
the Criminal procedure code or of art. 67 a
151
from Customs Code (Decision no.91-1264
from 19th of December 1991). These
provisions are applicable to the products
classified as drugs or to the products
resulted as a consequence of the
commission of crimes as it is specified in
art.222.34-222.38 from the Criminal Code
(including the precursors and substances
used for preparing the mentioned products).
In the case of the transportation on
French territory, there may be used the
substitution of the drugs and the police
officers or customs officials from other
countries (petitioner) can cross the border
in order to pursue a supervised delivery
only if they received before an
authorization from the relevant legal
authorities signed by the Central Office for
Illegal Drug Traffic (O.C.R.T.I.S.) or by the
National Office of Customs Information
and Investigation (D.N.R.E.D.) and
provided that they are accompanied by a
French official.
The French legislation allows the
possibility to infiltrate police or customs
officers within the networks of traders under
the strict control of the Judge. This
possibility which is conditioned by the
existence of some a priori documents which
justify the preventive action, confront with
two problems, especially regarding the
cooperation with foreign services:
impossibility to draw the effects of these
documents on an informer who would help
the police and who would attend physically
to the transport of the products on the French
territory, would be absolutely impossible to
accept any monitored delivery for which
foreign policemen infiltrated within the
network ask the permission to cross the
territory. These persons would not be under
the influence of the effects of support
documents and will enter under the
incidence of French law which forbids the
transport and import of drugs.
The French law allows the technical
assistance from other countries. The time
needed for preparation asked by various
intervention agencies may vary in practice
from a few hours to 48 hours according to
the circumstances and distance. It should be
taken in consideration the fact that the
French law regarding supervised
deliveries does not impose a time limit to
legal authorities for the analysis of the
authorization request or for granting it.
In French law there is a clear distinction
between:
Those operations which are habitually
named monitored deliveries in which
the officer supervises in a strictly
passive manner the drug transport;
these operations are subject to a
preliminary presentation in front of a
competent court.
The infiltration operations also
denominated supervised deliveries
where authorized officers may, in
certain limits, acquire, own, transport
or transmit drugs or put at the disposal
of the persons found within such
crimes legal means of transportation,
deposit, keep or transmission.
Such operations must have the previous
authorization of a Court or of a Judge of
instruction. All supervised delivery
operations are brought to the knowledge of
the competent legal authorities (The Judge
of the Court in whose competence range
was issued the authorization) by: means of
the Central Office for Illegal Drug Traffic
(O.C.R.T.I.S.) in the case of the police
initiative or by means of the National
Office for Customs Information and
Investigation (D.N.R.E.D.) in the case of
the customs initiative. The different
authorities will assure the information of all
implicated services (O.C.R.I.E.S.T., Central
Office for Imigration Control and Fight
against Black Labour - D.I.C.C.I.L.E.C.,
O.C.R.G.D.F., D.N.R.E.D., National
Gendarmerie). From the legal point of
view, supervised deliveries may be applied
by the police officers within O.C.R.T.I.S. or
by the authorized officers of the customs
(especially officers within D.N.R.E.D.).
besides the channels mentioned in the table,
here may be used others such as the
152
Interpol, connection officers regarding
drugs and customs attaches.
Supervised deliveries in Ireland. There
is no specific base for the procedure of
supervised deliveries. Although there is
allowed as a standard technique of the
police and customs regarding all goods.
The compulsory criminal investigation does
not constitute a condition for the supervised
deliveries. There are no pre-established
criteria for rejecting a supervised delivery-
it depends on each case.
An Garda Siochana (National Police
Forces) and the Customs and Tax Service
divide the responsibility for preventing,
discovering, intercepting or confiscating the
drugs submitted to control which are
intended to be introduced within the
country. An Garda Siochana has the main
responsibility to arrest the persons
suspected of illegal traffic/ dug import
submitted to control. The unarmed foreign
personal may accompany a supervised
delivery only with the role of observer but
only with the previous authorization from
An Garda Siochana and Customs and Tax
Services. There is an operational protocol
between the agencies that apply the Irish
law, which also cover the subject of
supervised deliveries. The total or partial
substitution of goods is possible for the
goods of Irish origin or for those that transit
it (provided that the state of destination
agrees with it). The partial substitution is
also allowed for the goods destined for
Ireland (total substitution is not allowed in
this case). The acceptance criteria for the
substitution differ from case to case.
Special techniques used by the Irish law
enforcement agencies include tracking
devices and equipment with night view.
The Naval Services and Air Forces may be
called to assist the sea surveillance being
able to grant ongoing supervision for the
supervised deliveries. The technical
assistance from other states is analyzed
from case to case. The decisions regarding
the application of the method of supervised
delivery are taken by the Police together
with the Customs. The communication
channel before and during the supervision
may be done by Interpol, Europol, Police
and Customs. The official requests will be
made by means of the Justice Department,
Equality and Law Reform (Section of
Reciprocal Assistance).
Supervised deliveries in Italy. The
supervised deliveries allowed in order to
fight crime may be started during the money
laundry investigations and also gun traffic,
explosive material or alcoholic beverages.
As a response to the tragic events from 11th
of September 2001, the Italian Parliament
introduced laws regarding the urgent steps
which must be taken in preventing and
fighting terrorism and financing it141. It was
drawn the attention on the transnational
nature of terrorism in the Decision no. 438
from 15th of December 2001 regarding the
sanctions against terrorism. Thus it was
introduced at art.270 c stipulations
regarding the application of some
undercover operations in investigations
regarding terrorism and in art.4 undercover
activity, especially, assures the extent from
punishment of the legal police officers
whom during a specific authorized operation
of prevention, in order to gather evidence
regarding the crimes committed for terrorist
purposes, cover intermediaries who act,
trade, substitute or hide money, guns,
documents, drugs or profit, earnings or
means for committing the crime. During the
performance of such investigation, officers
and agents of Legal Police may use
documents, identities or false information, in
order to establish the contact with certain
persons but in the same time informing the
public prosecutor about these activities
within 48 hours since their beginning.
The legal police officers may also use
help, which extends to the exemption of
punishment; the temporary use of mobile
and immobile goods and false documents
may be authorized according to the
141
Manualul Uniunii Europene pentru livrri
supravegheate , pag 41
153
procedures established by decree by the
Ministry of Home Affairs. Other instruments
for fighting terrorism have been supplied,
such as the preventive interception (art. 5),
interception of communications between the
established persons (art.6) and extension of
the provisions for preventing crimes
regarding terrorism.
The supervised deliveries are authorized
by the relevant authorities at the request of
the country of destination directed to the
Central Direction for Antidrug Services
Service III. The request may be submitted
to the Interpol or to the World Organization
of Borders from Brussels within the context
of a bilateral cooperation. The request must
contain the following data: the type of drug,
where they come from and what is their
destination, method for hiding them and
transportation, supposed date and place of
arrival in Italy, supposed date and place for
exportation, warrant given to the police or
customs officers who accompany the
transport, in order to be assisted by the
Italian police and customs officials. If there
is about operations regarding terrorism, the
required data are those necessary for
announcing the Public Prosecutors Office
as stipulated in art.4(6) from the Decision
nro.438 from 15th of December 2001.
The Central Direction for Antidrug
Services is competent at national level. This
office receives solicitations for supervised
deliveries and informs the foreign police
forces involved. This procedure is valid
also when the supervised deliveries cross
Italys territory with the destination to other
countries and also when Italy is the country
of destination. The legal authority may
postpone the issuance of an arrest warrant
or confiscation order, if this delay will
contribute to gathering evidence or
identifying or arresting the persons guilty
for committing the crimes stipulated at
art.73 and 74 (production and drug traffic).
The police and customs officers
responsible with fighting drugs, decide for
the same reason not to apply the
administrative procedures or to postpone
them, provided they inform immediately,
even by phone, the Legal Authority and
Central Direction for Antidrug Services, in
order to assure the necessary coordination
at national level.
The Legal Authority gives instructions to
the police in order to interrupt any illegal act
and communicate the decisions taken by the
Legal Authority with competence in the area
of destination regarding the monitored
transport, of the place where the drugs are
brought or exported from Italy.
Some drugs may be replaced or
substituted. Although, in order to avoid the
introduction of some complicated requests
of legal assistance at international level and
hurry the criminal procedures, it is
suggested not to replace very large
quantities in order to avoid the compromise
of the evidence. The legal authorities
involved must reach a previous
understanding in order to assure efficiency.
The police and customs officers of
petitioner states involved in undercover
activities may cross the border provided
there is a previous notification on the base
of an understanding between the authorities
of the countries of origin including for
finding out the law which must be applied.
These officers are assisted by the Italian
legal police officers (in the case of a
simulated purchase and supervised delivery
of drugs, guns or money), if the conditions
stipulated by art.4 from the Decision
no.438/2000 are not applied. According to
Italian law, the legal police officers and
agents may infiltrate within the drug traffic
organization in order to obtain information
regarding the commission of the crime.
Though, the simulated acquisition and
supervised delivery must be performed by
the legal police officers and the operations
must be planned by the Central Direction
for Antidrug Services or, as the case may
be, by the heads of the district police forces
or by the Manager of the Anti-Mafia
Investigation Direction.
The transport, sale, hiding or manipulation
of drugs by private persons- helps of the legal
154
police (intermediaries) are allowed within the
operations against indigenous and
international terrorism. In this case, the action
is planned by the heads of the three police
forces or by their delegates- persons
responsible at district level.
Except the extreme emergency cases,
the requests of supervised deliveries must
be introduced with at least 48 hours before.
In Italy, the supervised drug deliveries are
allowed according to art.97 and 98 from the
Presidential Decree no.309/90; in this case
though, there must be an Italian police
officer. When the activity is part of an anti-
terrorism activity, the agent of another
member state may act as a help of the
Italian Judicial Police. Generally, the
special techniques may be used (tracking
devices, etc.) provided that the method is
legal in the country of destination. The
ongoing supervision and escort are
generally available within the country of
destination.
The responsible authority from the
petitioner country must direct the request to
the Central Direction of Antidrug Services.
It is recommended that all requests are sent
by telefax, fax and also by phone. In urgent
cases the requests may be sent by the
Interpol channels or through the customs
authorities.
Supervised deliveries in Luxemburg.
This technique may be used for any type of
product (drug, psychotropic substance etc.)
that can constitute the subject of a
supervised delivery. Due to the fact that
this technique requires a careful preparation
and a high number of implicated persons
and resources, it must be used only in the
most important cases or in the case of some
international incidents in the field of drug
traffic. Gathering proofs according to
traditional methods regarding the
investigation must be impossible, in order
to allow this technique. Only the competent
public prosecutors department has the right
to authorize this technique in cases of
import and export of such nature.
The solicitation must include: concrete
details regarding the place where the
delivery is made and also regarding date
and time, a detailed description of the
manner in which the substances are
wrapped, a description of the persons
involved, the exact mission (task) required
by the petitioner country, the personnel to
which the petitioner country uses (including
means of contact, address).
The replace of the entire quantity of
substances might compromise the
organization. Thus, if the replacement takes
place in Luxembourg, a certain quantity of
the substance, no matter how much, must be
left. The quantity does not affect the
established punishment. Mainly the
Luxembourg authorities will not substitute it
unless it is asked by the country of
destination of the drugs or which they cross.
The personnel from the petitioner
country may be authorised to attend to the
supervision of the delivery in Luxembourg
under the supervision of the Luxembourg
competent personnel, in the same way, the
gun permit may be authorised. If it risks the
loss of control over the substances on
Luxembourg territory, they will be
confiscated. The technical assistance from
other countries is not governed by some
precise directives. The department of public
prosecution analyzes each case
individually. The authorization is issued in
only a few minutes. Intervention unities are
put at disposal according to their
operational plan. The way of intervention
varies from case to case.
The authorities competent to grant the
authorization are: The Prosecution from the
Court in Luxembour region, with
competency in the South of the country and
the Prosecution from the Court from
Diekirch region, with competency in the
North of the country. The requests must be
directed to the Police of the Grand Duchy,
through OIPC- Interpol and in case of
emergency, the process may be initiated by a
verbal request and then confirmed in writing.
Supervised deliveries in Holland. The
supervised deliveries and monitored
155
transport may mainly be performed
according to the principle of opportunity,
this technique is not governed by any
measures stipulated by law but there are
two main principles:
1. Principle of Proportionality. The
means involved must be directly
proportionate with the object of
supervision, identification, gathering
evidence, investigation of doers,
organizing the traffic and confiscating
the illegal merchandize.
2. Principle of Reserve. It would be
impossible to achieve the purpose by
any other means.
If the supervised delivery operation
leads to the arrest of a Dutch citizen outside
Holland territory, the Dutch authorities will
ask for the extradition of that person. In
theory all types of illegal merchandize or
merchandize which might contribute to the
commission of a crime, even if this
merchandise is legal and its transport does
not constitute a crime for example,
chemical products used for fabricating
drugs may constitute the subject of a
monitored transport.
The use of supervised deliveries should
be limited to the cases in which concrete
indicators allow us to suppose that the
action of organized crime was or will be
committed and if, for good reasons, the
investigation cannot be continued by any
other means or if the use of any other
means would be imprudent and would have
an irresponsible character. Thus it is
impossible to issue a genera authorization
of supervised delivery, being necessary an
investigation for each case.
The conditions which must be fulfilled
are: the approval by the competent
authorities, the existence of some precise
indications which allow to suppose that the
delivery will leaqd to the identification of
the persons involved, of the organizers and
sponsors, it is preferred to know the
destination of the goods and persons to
whom they are destined, the operation must
be performed according to a sufficiently
detailed and flexible plan in order to be
adapted to the new elements which
intervene in the case. It is important to
revaluate constantly the risk of losing the
merchandize, the transport must be kept
under supervision until it reaches its final
destination, understanding that, in case of a
non controllable danger, the operation will
be finished, operative units will be prepared
to organized the most efficient exchange of
information and establish the optimum
cooperation before, during and after the
supervised delivery operation.
The requests of supervised delivery
where an informer or undercover agent is
involved will be presented. The Central
Study Commission will lead a preliminary
investigation. If the case may be, there will
also be supplied other information
necessary for the evaluation of the request.
In order to avoid as much as possible
supplementary there should be treated the
supervised deliveries according to the
manual regarding the improvement of the
legal international assistances as stipulated
in the Criminal code regarding drug traffic
in the states which signed the application
convention of Schengen agreement.
It is possible to replace the drugs with
substances which have the same
characteristic as long as their substitution
does not compromise the integral nature of
the merchandize. In theory, a team of
English observers will take over the
supervision mission at the border.
Exceptionally and only with the agreement
of the competent authorities that decides it
Selective bibliography:
French criminal procedure code
Spanish criminal procedure code (Ley de Enjuiciamiento Criminal), modified by the
Organic Law 5/1999 from 13th of January1999
French customs code
Resolution no.438 from 15th of December 2001 regarding the sanctions against terrorism in
Italy
Resolution no.91-1264 from 19th of December 1991, French Republic
Law 706-32 from France
The Manual of the European Union for supervised deliveries
Order of the ministry from 24th of April 1990 regarding the special police techniques and is
based on the laws of the Belgian courts of law
156
is indispensable, a foreign unit may
continue the operation under the guidance
of the competent Dutch authorities, but in
all cases accompanied by a Dutch member
of the observation unity. An undercover
police agent may also lead the operation. A
public prosecutor, if it is urgent for the
investigation, may conclude a deal with a
person who is not an investigation officer,
only if the members of the police forces
cannot replace him.
The undercover agent was not the
subject of an exaggerated pressure for
attending to the operation. The public
officer who leads the operation is
responsible for the actions of the
undercover agent. The agreement between
the Department of Public Prosecution and
the police must be made in written and
signed by both parties. The police agents
who beneficiated from a special training
will have all chances to be selected. The
security measures for the monitored
transport must reduced to an acceptable
level the psychical and physical risks to
which the undercover agents will be
submitted. The technical assistance from
other countries is possible. The necessary
delay for obtaining an authorization for
such an operation is generally less than one
hour. The request must be sent to the states
national Prosecutor through the Trans-
border Observation Agency.
(to be continued in the following
number)
 PEDESTRIANS IN ROAD

PhD. DRAGOS-ANDREI IGNAT

Police Academy Alexandru Ioan Cuza

Pedestrians in traffic. It is a very important problem in traffic. They were not many
writings about this. Our step is ment to be an exhaustive point of view about pedestrians
and traffic. Since 2006 they were a lot of important changes in this issue, especially in
pedestrian guilt and rules about street crossing. However, they still are a lot of uncleared
issues...
Keywords: Traffic safety, Proactive comunication, social studies, police work.
Among the following, we suggested to equated with, moreover, the specific rules
lean on the issue of pedestrian traffic. laid down by national road.
Although the media abounds with examples - Persons traveling on skates or devices
where this category is either a victim or At the same time, be exempt from the
perpetrator of various violations of road rules laid down for pedestrians, road police
rules, very few works have dealt with the and people who are on the platform and
issue, just as they ought. permitted the public road in the line of
At the same time, are known as fight; duty, to control or direct the road, as laid
between pedestrians and drivers, and the down by Regulation (police border workers
lack of a solid road education of the two from roads, railway staff, tutors M of
categories of road users. At present, we Defense, movement of workers, the
must recognize that there is a perception the Financial Guard and members of school
majority, but also wrong, according to patrols).142
which pedestrian is sovereign. And not only There are other persons as provided for
allowed the crossing places, but anywhere. in specific legislation: local police, traffic
Moreover, if a pedestrian is injured, the inspectors of the Romanian Road
driver is considered a priori guilty". Or Authority, The Romanian Auto Registry
statistics show, in fact, the opposite, come inspectors and inspectors CNADNR.
back pedestrian percentage of On the other hand, we can not mention
approximately two thirds. the fact that, according to art. 163 points. d)
We begin, therefore, our approach by of the Rules and riding animals driver must
showing the places where crossing is cross the public highway by pedestrians
permitted and the rules to be followed on only places allowed after ensuring that it
this occasion. Before anything, we mention can be done without danger;
that they are treated as pedestrians and road In terms of traffic or crossing the road
users the following categories: permitted places, both GEO and
People who lead a special wheelchair Regulation, provided that they are.
building - designed solely for people According to article 72 par. (A) of the
driving by hand pulling or pushing, and Ordinance; pedestrians are forced to travel
intervene at this point mention that the
person may be treated as the pedestrian 142
Emergency Ordinance no. 195/2002,
who stepped off the bike and on foot, republished, as amended, regarding traffic on
-bicycle light handlebars. In any other public roads, article 72, paragraph 5 and paragraph
case, the biker pedestrian can not be 6.,The paper to GEO and Regulation, Art. 89
Regulation known in this paper.
157
on the pavement, and in his absence on the
left side of the road verge in their direction
of travel. When and Verge missing,
pedestrians are forced to move closer to the
left edge of the carriageway, running in
their direction.143
The explanation is based on the one
hand that if the pedestrians on the opposite
moving vehicles moving in the same
direction can be avoided or reduced their
injury to other road users. Moreover,
pedestrians can see better road surfaces and
the dangers that lurk there.
Footpath in places designed and
appropriately marked or laid out according
to the road, as long as the parks are open to
public traffic, according to art. 146 of the
Regulation.
According to art. 166 of Regulation - at
night, pedestrians or person of equivalent
circulating on the carriageway of the road,
which is not equipped with pavement or
shoulders, must have applied fluorescent-
reflective clothing or accessories to wear a
light source, visible in both directions. This,
he had certainly increase the visibility of
this category of road users, limiting the
opportunity while his victimization.
Under current rules, pedestrians have
priority to drivers passing vehicles only
when engaged in highway passing through
specially-designed, properly marked and
flagged, or green traffic light in particular.
144
Recently, to facilitate and not obstruct
passage flows drivers were introduced in
our country for pedestrian traffic lights,
with electronic control on particular switch.
Thus, the pedestrian crossing reached, press
/ put your hand on the switch, then waiting
for the color change that allows the
crossing.
No comments on the text above. At
most, we can discuss issues related to the
so-called "moral guilt" of those
who does not make public when crossing
the road. I would add that, in this situation,
143
Idem 1, article 72 par. (1)
144
Idem 2, par. (2)
158
priority pass is valid for both directions of
travel, no matter how many lanes there are
on that site and regardless of the number or
position of vehicles traveling there.
With everything else we need to
understand art. 135 points. h) wording of
the Regulation, that pedestrians have
priority when crossing the public highway
through special place, properly marked and
flagged, they are on the drivers direction of
travel.
Among the traffic cop, in particular, but
also other categories of professionals in the
field, there is an opinion that in this case is
done the same, and where pedestrians cross
at the green traffic light, regardless of the
existing number of lanes per direction .
Undoubtedly, when the road is a single
band on purpose or meaning exists only
when the band will do so as representatives
support this view.
The problem comes in different image
when there are more lanes.
Our opinion is that this situation should
be interpreted in terms of definition should
be the priority, as is provided in Art. 6
section 1 of the Ordinance: the obligation
of any road user does not continue to move
or not to perform any other maneuver, if
they oblige by other road users have
priority of passage to suddenly change its
direction or speed travel times to stop. In
context, this translates into: The driver will
continue to move or not will not make any
other movement, if they oblige by
pedestrians to suddenly change its
direction or speed or stop.
Of course, the driver will have to take
into account several factors: pedestrian
speed, age and mobility, number of
pedestrians involved in crossing the
visibility of the segment of road and
weather conditions and road coverage, etc.
Sliding substances.
In order to bring the combination of the
above and the following reasoning. If you
would narrowly interpret the analysis, it
follows that, where pedestrians are at a
distance of several centimeters, one meter,
the direction you are going to enter, when
drivers of vehicles on it, or on band near the
separation meanings should not stop to give
priority. In this case obviously would
pericilita pedestrian life or integrity. On the
other hand, would violate the principle of
justitia ars boni et equi est145 by the fact
that some drivers are a few inches of
pedestrians crossing the street should not be
penalized, while other managers are few
meters, but these sense would receive not
only fine points, but also exercise the right
to drive suspended for a period of 30 days.
Or penalty offense, in general, and in this
case must take into account.146
In other words, where the road has two
or more lanes, and pedestrians (d-only)
engaged in passing, the driver will be able
to continue moving, if they remain free at
least one band for its passage . Note that the
person driving the vehicle may stop to give
priority, even in this situation.
Also, pedestrians can cross with a
priority, to / from the tram, without refuge
stations147 and other places for crossing
intersections is the corner of the
localities148, and the railway level crossing,
the latter having no priority.
It prohibits pedestrians to cross or travel
on the public road at places other than those
permitted:
- In front or behind the vehicle stopped
in the stations public passenger vehicles,
except where there are pedestrian crossings
marked accordingly;149
- highway150
- the bike lanes, landscaped and
appropriately marked. 151
This latter provision, requiring a brief
145
Right (justice) is doing well and balanced
treatment - Latin Laguage transation
146
GO no. 2 / 2001 - The legal regime of
contraventions, art. 21, section 3
147
The Regulation for the application of GEO - HG
nr.1391/2006, as amended, art. 131, paragraph 2.
148
Idem 2, art. 72 par. 3
149
Idem 6, art. 167, par. 1, point b)
150
3 Idem, art. 74, par. 1.
151
Idem 6, art. 167 lit. g).
159
statement. Leaving aside the plight of both
the quality, quantity and especially the
trails for cyclists, pedestrians in Romania
violates a dreadful and alarming high
percentage of the ban, due to lack of
education, both road and to the civic in
general.
Public road crossing by pedestrians is
perpendicular to the axis, only specially
designed and appropriately marked places
only after they have ensured that they can
do it without danger to themselves and
other road users.152
Ensure that requires pedestrians
crossing time consider whether, on both
sides of the road, taking into account many
variable factors: the number and speed of
vehicles approaching the range at which
they stand, visibility (dense fog, heavy rain,
heavy snow etc..) carriageway surface
quality (different substance or sliding
materials - snow, ice, water, oil, etc..), the
distance to the sidewalk or refuge etc.
Regarding the light signal crossing for
pedestrians, regulation specifies the
following among art. 58 and 60:
Pedestrian signals are bright green and
red. These functions correlate with the
signals to control vehicle traffic.
Green signal may in its field in the
image of a pedestrian walk and the red
image of a pedestrian stop.
Pedestrian light signals may be
accompanied by acoustic signals to provide
road crossing by the blind.
On road sections where traffic values
allow the administrator of the public road,
on the advice of the police, can be placed in
the traffic lights or pedestrian crossing
marking special panel manual control of the
application of green that can be made
directly by pedestrians.
Green signal to pass. When the signal
begins to operate flashing green means that
when crossing the road is being affected by
exhaustion and the signal is red. In this case
surprised pedestrians crossing the road to
152
3 Ibid, Article 72, paragraph (3).
hasten the passage, and if the road is
provided with a shelter or vehicle traffic
prohibited area, to await the appearance of
this green signal. Of course, in this case,
pedestrians will have priority in case of an
accident will bear sole guilt.
Flashing green signal and red signal to
engage in prohibited pedestrians crossing
the roadway. Places are giving priority to
pedestrians residential area and
pedestrian zone, according to art. 158 and
art. 159 of the Regulation.
Thus, in a residential area, marked as
such, pedestrians can use the whole width
of the roadway, and childrens play is
allowed.
Drivers of vehicles are required to travel
at a speed exceeding 20 km / h, not
stationed or to park the vehicle outside the
premises that is intended and marked as
such, does not interfere or impede
pedestrian traffic, even if this purpose, must
stop.
In the pedestrian zone, indicated as
such, the vehicle driver is obliged to move
with maximum speed of 5 km / h, must not
impede or hinder the movement of
pedestrians and, if necessary, stop to allow
their movements.
The track crossing, pedestrians will
cross only when the barriers are high or
semibarierele times when the signal light or
audible not in use.153
Also, during the crossing, even in those
places permitted, the legislature has
established a series of prohibitions. Thus:154
- Extension of time to cross the road,
turning off or on pedestrian crossings are
not equipped with lights;
- Filling the roadway to prevent
movement;
Special prohibition crossing roads or
traffic on the roadway has been established
by art. 37 para. 3) of the Ordinance, in
conjunction with art. 167 points. a) of the
Regulations, specifically, when
153
Idem 6, point. f).
154
Ibid art 6. 167, paragraph 1, letter c) and e).
160
approaching a car with priority service
scheme which has a special warning signals
running light and sound;
Article 168 of the Regulation refers to
an organized group, a military column or a
procession moving on public roads. They
should move the band up to three rows on
the right side of the road, walking in their
purpose, taking up one lane.
From dusk till dawn and day, low
visibility, people are in front and behind the
string from the road axis must have a white
light source, namely red, which is visible to
other road users. People who make up the
string from the road axis must be applied
fluorescent reflective clothing items.
Leaders of organized groups or military
procession of columns are required to
continuously monitor their movement on
public roads, not to hamper the movement
of vehicles. It prohibits persons who
formed a military column to go out of step
when crossing bridges, of course, to prevent
its collapse due to vibration.
For the first time since 2006, GEO art.
72, par. 4, it was provided that in our
country and surprised pedestrians injured as
a result of crossing the forbidden places, at
a red light or failure for their other
obligations laid down by the road, bear the
full responsibility of their injury, while the
driver observed that legal provisions on the
movement through that area.
I do not agree to the provisions of
paragraph last sentence reviewed more, we
express serious reservations across its
insertion in the text of the law. We affirm it
on that reality show that the vast majority
of cases, although the car was driven at
excessive speed when the accident event
could not be avoided, except at a rate well
below the legal limit, so in this case by the
enactment neimpus road.
Therefore, this text requires criminal
penalties and / or civil (compensation) for
pedestrian accident guilty of committing.
also cover, should not be overlooked that in
confomitate with the rules in force, where
pedestrian died was at fault, and his heirs
have accepted the inheritance, will be
responsible civilly, to the extent of damage
produced. One must admit, on
circumcision, the fact that, unfortunately,
today there are still prevalent idea that, the
driver is always guilty. In many situations,
including the media good or bad-faith
credence to this. At the same time, the
education road, an obligation of conduct,
traffic police should step up its activities to
popularize these provisions, with print
media, audio, video and internet etc..
In terms of sanctions, road law is
strange soft to the violations committed
by pedestrians, placing them invariably first
class, fine with 2 or 3 points, 99 under par.
(A) of the Ordinance.
On the sidewalk space for pedestrian
movement par excellence, are prohibited:
- Employment immobilized vehicles,
and when it is allowed, as signs or marks,
the minimum width of pavement left to the
pedestrian must be at least a meter*.
- making trade provisions (...)**.
For other road users, have been
established and a number of specific
obligations across the pedestrian. Thus,
under Article 123 of Regulation, lit. h) - the
References
GEO no. 195/2002, actualized road traffic in Romnia
GEO no. 2 / 2001 - The legal regime of contraventions
The Regulation for the application of GEO no. 195/2002, actualized road traffic in
Romnia
161
driver of the vehicle must move at a speed
not exceeding 30 km / h in urban areas or
50 km / h outside built nesemaforizate
pedestrian crossing, marked by signs and
markings, it has at most a public road
bandwidth per direction and pedestrians on
the sidewalk near the sides close to the
roadway, intends to engage in cross;
It is not mandatory to reduce speed, a
priori, for any pedestrian crossings at the
meeting, so. Of course, in the spirit of
preventive behavior, drivers, depending on
the specific elements of the situation, they
can reduce speed and in situations other
than that provided above.
Finally, local authorities may be penally
contravention with a fine between 21 and
100 points, according to art. 105 Section 20
of the Ordinance for failure of the
obligation, to make arrangements for the
movement of pedestrian traffic, bicycles,
animal drawn vehicles and calming the
traffic and signaling nesemnalizarea or
improper;
*
GEO, art. 72 par. (7)
**
The Regulation, Art. 167 para 2.
162
163
164
 INTERNATIONAL POLICE AND JUDICIAL COOPERATION IN
COMBATING ILLICIT DRUG TRAFFICKING

Lecturer PhD. GHEORGHE POPESCU

Police Academy "Alexandru Ioan Cuza"
Chief Commissioner Arch. MARCEL IANCU ADRIAN
National Anti-Drug Agency

In order to reduce illicit drug trafficking, the United Nations has developed a series
of programmatic documents - conventions and protocols on the basis of which the
signatory states to be able to harmonize their legislation and also to provide a framework
for an effective police and judicial cooperation. The United Nations Conventions,
particularly the one in 1988, offer the signatory parties ways to ensure the cooperation
and judicial mutual aid, mutual assistance and joint research within the offences
targeting international drug trafficking.
Keywords: illicit drug trafficking, international police cooperation,
judicial cooperation, agreements between states, treatment,
vocational training.
1. The difficulties of the criminal such activities156.
justice system According to the last statistics157, global
International Narcotics Control Board - drug confiscations have largely increased in
INCB has called on all governments to recent years and, implicitly arrests and
recognize the important contribution of the convictions for drug offences especially
criminal justice system in preventing and among people who deal with drug
suppressing illicit drug supply and illicit trafficking and money laundering (money
drug use, when establishing their national coming from drug trafficking). This shows,
policies regarding the control of the drug on the one hand, an aggravating problem of
phenomenon 155. A criminal justice system illicit drug trafficking and consumption,
can help in several ways to combat the and on the other hand an improvement of
production, trafficking and drug abuse and the activities related to the repression
also drug-related crime. The system against the phenomenon and specialization
condemns and punishes the guilty, deterring of law enforcement institutions personnel
in this manner criminal activities, offering in this field.
also the possibility of treatment and Although repression against this
rehabilitation of addicts. On the other hand, phenomenon has increased, drug
confiscation of illicit drugs reduces the production and trafficking has expanded in
quantities of drugs in circulation, which areas of the world that previously had been
leads to difficulties for consumers avoided by this scourge158. Traffickers use
regarding their purchase, and confiscation
of money and assets derived from drug
156
trafficking not only deprives traffickers of Adrian Marcel Iancu - "Money laundering
their work product, but it can also represent proceeds from drug trafficking" - information and
research bulletin no. 4 / 2007
an additional source of revenue to suppress 157
UNODC, World Drug Report 2010 , pag 123,
United Nations Publication, Sales No. E.10.XI.13.
155 158
http://www.incb.org/f/ar/1996/notes.htm idem
165
new transport routes159, new drugs are
created160 and the networks of traffickers
permanently replace their arrested
members. The evolution of economic and
social factors, that favor legitimate global
trade and development, favor,implicitly,
drug trafficking. Reduction of border
control and the existence of trade
agreements have not only helped the
circulation of licit goods along the globe,
but have also simplified drug smuggling
activities. Improving transport and
communication systems has allowed drug
traffickers to expand their branches
worldwide. The development of new
methods in agriculture has increased the
illicit crops yield and the advances in
chemistry have helped to increase the
quantity and quality of illicit drugs
produced or even the production of new
types of drugs.
All these factors complicate the task of
specialized services in fighting against
drugs, which are forced to use more and
more complex techniques in order to
accomplish investigations, despite of
limited financial and material resources.
The activities of large traffickers
organizations involve a series of complex
operations involving: planning, organizing,
buying raw materials for farmers, chemical
treatment, transportation, national and
international distribution and money
laundering in these activities. Many of the
specialty services responsible for
combating this phenomenon do not have
the resources and skills needed to get to the
structure or production chain and especially
the heads of the networks; they restrict to
arresting small dealers and addicts. On the
other hand, while the heads of the networks
remain unpunished, the high number of
small drug dealers and arrested drug
consumers press hard on the criminal
159
Adrian Marcel Iancu - "Drug trafficking.
Analysis oftransit routes - Drug Info Bulletin
No.1/2008
160
See the phenomenon of "spice" / ethnobotanical
166
justice system, resulting in the growth of
population in prison and the costs of
imprisonment and, implicitly, the growth of
costs of repression operations and
functioning of the judiciary system. This
aspect may lead to a feeling of injustice
inside the community and undermine public
confidence in the criminal justice system.
Moreover, it is necessary that states take
measures to protect staff and state
institutions against corruption or
intimidation. The huge amounts of money
earned from drug trafficking give
traffickers a huge economic power, being
able to manipulate the public administration
and the judiciary system by corrupting
workers in these areas, offering money or
other benefits, or even more; if the
corruption attempt fails, they use threats
and violence. Members of the police or
justice systems, politicians, Financial Guard
workers and the fiscal ones, customs
officers and other representatives of public
power can all be victims of threats or acts
of corruption. Even legitimate companies
can be involved in the laundering of illicit
drug trafficking products161. Laundered
money can be reinvested in companies
which, having the advantage of illicit
sources of funding, may be unfair
competition to firms which do not receive
such support. Corruption undermines the
legitimacy of governments, public
confidence in the rule of law, economic and
social institutions. Therefore, states must
recognize the problem that corruption
represents, they must adopt legislative
measures and procedures to combat it and
improve working conditions for public
office holders.
To cope with drug trafficking, a strategic
demarche should be undertaken in order to
reduce, more effectively, the drug supply
and the rescue of national criminal justice
system from the constraints pressing on the
161
Adrian Marcel Iancu - "Money laundering
proceeds from drug trafficking" - information and
researchbulletin no. 4 / 2007
limited human and material resources. The
target should be not only the apprehension
and judgement of suspects of having
committed drug offenses, but also, and
much more important, to break the
traffickers criminal groups and "the closure".
In this respect, the investigation and
prosecution of organized criminal groups
should be carried out in close international
cooperation to deprive drug traffickers of
their criminal activity products162 and limit
their possibility of reinvestment of money
and financing corruption, collecting also
evidence to help the criminal justice system
to condemn them. Drug trafficking
generates considerable benefits that
threaten social stability and call in light
public policies of supply reduction. The
increasing mobilization of the state to fight
this scourge it is not sufficient to prevent
the growth in the number of consumers. In
front of a criminality essentially motivated
by the hope of quick gains, the sanction
apparatus must integrate a deterrent
financial dimension, without which the split
networks quickly rebuild in order to supply
a very active drug market. Despite of the
notable progress, the amounts confiscated
in some countries in cases of drugs remain
very far from the performances obtained by
many European countries163.
The elaboration of new legal instruments,
creating mechanisms to facilitate the work of
magistrates and investigators, as well as a
generalization of the economic approach,
including between European services, would
be likely to cure this situation, all leading to
strengthening the rule means.
2. Enhancing international cooperation
against drug trafficking
While at national level most countries
have made considerable efforts to detect
and suppress illicit trafficking of drugs164,
162
Adrian Marcel Iancu Proceeds from drug
trafficking.Legal - No bulletin of information and
documentation.4 / 2008
163
www.emcdda.europa.eu,
164
Adrian Marcel Janco, Victor Nicolaescu "Fight a
t the European level, illicit drug trafficking by
167
most large-scale operations of drug
trafficking have an international character:
the heads of the network can be found in a
country, producers in another
country distributors in a third country,
while income can be "washed" in one or
more other countries. Consequently, the
arrest of drug dealers or traffickers in a
country without international cooperation is
similar to cut some branches from a tree,
leaving the stems and roots intact.
Considering that international law
prohibits countries the opportunity to apply
its own law in another state (except as
strictly provided), without the express
consent of the latter, it is necessary to
enlarge and increase the efficiency of
regional cooperation, interregional and
international cooperation between
services the judicial enforcement because
they may be able to destroy, in whole
networks of drug traffickers and their
criminal activity can seize the product165.
United Nations Convention against
illicit traffic in narcotic drugs and
Psychotropic Substances of 1988 provides
some guidance as to the mode of action in
such situations166 to ensure that judicial
mutual assistance in investigations,
prosecution and court proceedings, the state
requesting the extradition of offenders,
establishing and maintaining channels
communication between national
authorities and the cooperation between the
international nature of the surveys, for
example, the identity and activities of
suspects, movement and location of assets
and values from the movement of illicit
drugs and controlled substances167.
sea", Review of investigation of crime,
Year III. Nr. 5 / 2010
165
Adrian Marcel Iancu - Proceeds from drug
trafficking. Legal - No bulletin of information and
documentation. 4 / 2008
166
idem
167
Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances of 1988,
art. 5, Official Gazette no. 341 of 30 December
1992
Paragraph 1 of art. 9 of the Convention of
1988 provides for the creation of joint
teams authorized by competent national
authorities to conduct investigations and
other activities together. Interested parties
should observe the principle of state
sovereignty, to better exploit these avenues
of cooperation to prevent illicit trafficking
and drug traffickers movements, based on
international treaties on drug control and
cooperation agreements and protocols168. It
often overlooks the fact that the 1988
Convention can be used as an extradition
treaty and mutual assistance, which may
serve as a basic tool in international
cooperation in the fight against drugs
between the countries have concluded
bilateral or multilateral agreements in this
area . Article 6 of the Convention says that
drug-related offenses as are included in any
extradition treaty, concluded between the
parties, the parties committing to include
such offenses as crimes of which
the author may be extradited in any
extradition treaty to be concluded169. In the
absence of such a treaty, in an extradition
request, the country who receives the
application may consider the Convention as
the legal basis for extradition for such
offenses170. Parties that require detailed
legislation in order to use the Convention as
the legal basis for extradition shall consider
adopting such measures, and where not
make extradition conditional on the
existence of a treaty shall recognize each
other for the crimes defined in the
Convention character whose copyright
offenses may be extradited171.
Also, other states could undertake
specific measures to strengthen
international cooperation in combating drug
trafficking, removing those obstacles which
are opposed in particular to extradition: for
168
Hurdubaie, John, Nicolaescu, Victor, legal and
institutional framework drug world, Civitas Publis
hing House, Bucharest, 2008
169
Article 6, paragraph 2 / 1988 Convention
170
Article 6, paragraph 3,
171
Article 6, paragraph 4,
168
example, based on a traditional reason,
many states refuse to extradite its own
nationals172. However, these countries
should opt for solutions other than a general
denial, states that currently can not
extradite its nationals should, if they can
not investigate and prosecute the
defendants themselves, to explore the
possibility of transferring their or making it
available to competent authorities of
another country for trial, provided that they
can return to their country after the trial, to
serve his sentence possible.
Criminal acts must be judged in the
country where they were committed
because there is evidence strongly
easier. This assumes, however, that some
countries need to revise the treaties and
legislation applicable to the transfer of
detainees between countries. The return of
these persons in their countries of origin not
only facilitates international cooperation in
tracking and convicting drug traffickers but
also has a humanitarian purpose in that it
allows prisoners to serve the sentence in
their families near their own environment
and socially and culturally.
Moreover, such transfers may be a
practical solution for countries that do not
have secure prisons where people can be
dangerous and can avoid prison and prison
overcrowding.
Offences in tax matters have been
excluded from the scope of certain treaties,
but given the fact that the Convention of
1988 provides penalties for persons who
"wash" money from drug trafficking173
would be the time for states to study the
possible removal of the Treaties extradition
general clause to exclude any criminal
offenses, given that the fight against money
laundering is essential for the destruction of
drug cartels and therefore tax offenders
should not benefit from an exemption
172
Adoption of the European arrest warrant has
solved this problem for the EU Member States
173
Adrian Marcel Iancu - Proceeds from drug
trafficking. Legal - No bulletin of information and
documentation. 4 / 2008
across the extradition question. It is also
necessary for states to review legislation
and judicial procedures to respond quickly
and effectively to any requests for
assistance made by another state. Paragraph
8 of art. 7 of the 1988 Convention provides
that : "Parties shall designate an authority
or, if necessary, the authorities have the
responsibility and right to respond to
requests for legal assistance or to transmit
them to competent authorities for
execution. Authority or authorities
designated for this purpose will be notified
the General Secretariat. Transmission of
requests for legal assistance and any
communication on this is between the
authorities designated by the parties ;
subject to this provision shall mean each
party's right to require that such requests
and communications to be addressed
through diplomatic channels, and
cases urgent, if the parties agree, through
ICPO / Interpol, if possible."174
Furthermore, the programme of action
adopted by the UN General Assembly at its
seventh Special Session175 provides
operational cooperation between different
states investigative services. As the
investigations carried out jointly on a large
scale have allowed to obtain significant
results, the INCB believes it is urgent to
study the following problems:
a) encouragement to develop a
mechanism to enable secure and rapid
exchange of data and intelligence between
competent bodies and the national survey;
b) encourage international cooperation
initiatives, creation of joint teams
responsible for combating transnational
crime syndicates, the organization
supervised deliveries, exchanges of
personnel between the departments of
detection and suppression of trafficking in
drugs and deployment of staff
c) development of measures and
procedures to take account of the
174
Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances of 1988,
Official Gazette no. 341 of 30 December 1992
175
www.un.org
169
connections that exist between drug
trafficking and other criminal activities. At
national level, this should translate into
greater cooperation and better coordination
between various law enforcement
institutions.
A practical cooperation between
Member States in a region or sub region in
the administration of justice may present a
considerable interest for everyone
concerned176. In some regions, more states
could create a tribunal having jurisdiction
of the court as a major drug trafficking
cases, to facilitate access to services and
expertise required for handling complex
cases. Also, where resources are limited,
they could be grouped so as to have in a
particular region, at least one maximum
security prison, where a head should be
possible incarceration of drug trafficking
networks and that can be used by all the
contributing states. Extradition and criminal
procedure and the transfer of prisoners,
there are other possibilities that would
allow local jurisdiction transfer of
defendants in serious cases of drug
trafficking, the countries that have
sufficient means to prosecute them. On the
other hand, creating such a tribunal involve
the transformation of illicit drug trafficking
in an international crime to give such power
necessary to process these cases.
For the above measures to achieve its
aim, it is necessary that the national police
services to adopt an international vision and
use to work in an international environment
in which respect the expertise and means
international police organization Interpol,
the organization Europol and the European
cooperation in the Schengen Agreement
have proved very useful. Although this need
has been accepted in principle at numerous
176
We illustrate this effect, the creation of various
regional bodies: SECI, Carr, BUMAD the establi-
shment of joint teams (joint teams) and even
carried out joint operations by the intelligence
structures with responsibilities for combating drug
trafficking: "Rio", "Amsterdam "," Wind "," Egypt
", etc.
international meetings, in practice there are
always different obstacles such as lack of
institutional framework, the reluctance of
certain governments to share information
they hold (eg. the protection of state secrets
law / classified information, is often seen as
imposing restrictions on cooperation with
the structures of other states), obstacles that
have delayed or even blocked in many cases
cooperation activities.
According to the 1988 Convention,
parties must adopt specific measures for
confiscation of crime resulting from drug
or, failing that, other goods of equal
value. These crimes may not only
traditional forms: sales, distribution,
import, export, production and cultivation
but can be formed from precursors illicit
transactions and money laundering, the
signatory countries are asked to ensure that
competent authorities should be empowered
to identify, to detect, or unavailable to pick
up goods and products for possible
confiscation. Also, authorities in different
countries must cooperate in order that the
State party, in which goods or property are
concerned, to apply the confiscation order
sent by the requesting state177. In light of
the provisions of paragraph 5 b) of Article 5
of the Convention, where products are
seized as a result of international
cooperation, these products can be divided
between countries that participated in the
successful operation against money
laundering, Member States may, in turn,
to shed some of these products seized on
behalf of international organizations
involved in international drug control178.
Sharing confiscated property may be
provided by existing cooperation
177
For a better cooperation in the field and
therefore better management of such situations, the
INCB was established two computer applications
"GoCase" and"GoAml. This information is made
available to law enforcement agencies, through
the profile, partner.
178
In 1996 Luxembourg was the first state to
donating a portion of seized assets for
international drug control activities,
170
agreements between states or forfeiture of
the international judicial mutual
assistance. The law also requires that goods
and values can be directed to the funds
seized national drug control, treatment
centers or to be invested in activities to
reduce drug supply and demand179.
3. Legislative dispositions
All of 1988 Convention dispositions are
important, but some of them speak in
particular about how to strenght the penal
justice systems capacity in order to face the
illegal drug traffiking. It provides,
especially as the organization, management
and funding activities associated with drug
trafficking and laundering resulting from
traffic violations should be punishable by
the law of the states parties. In applying the
provisions of paragraph 7 of Article 5,
states must reverse the burden of proof
regarding the alleged illicit origin of the
products or goods that may be subject to
confiscation, provided that such measures
are compatible with national regulations.
This inversion can take different forms such
as for example the presumption that all
assets acquired before the start of the
process, well within a set period of time are
the result of drug trafficking. In this case,
the burden of proof lies with the offender
who must convince the court that that
assumption is wrong. The laws of certain
countries is expressly stipulated that the
procedure applicable to confiscation is
regulated by civil law procedure and not the
criminal law. Some countries also make
179
In light of the above Romania enacted Law
no. 381 of September 28, 2004, on certain financial
measures in preventing and combating illicit drug
trafficking and consumption, published in
the Official Gazette, Part I, no. 896 of October 1,
2004 is to establish measures to fund programs and
projects to prevent and combat illicit drug
trafficking and developed by the NAA in
the application of national drug strategy. The
law contains provisions on the use of
proceeds from the sale of property seized as a
result of committing crime and drug precursors.
possible confiscation without conviction180,
which would be applicable if the person
accused has fled or died. The 1988
Convention require parties to that certain
factors be aggravated circumstances such as
for example the association in order to
commit crimes181. Specific measures for
strengthening international cooperation, for
example extradition, mutual assistance,
transfer of proceedings, assistance to transit
States182, and the law must ensure the
effectiveness of investigations and
prosecution of trafficking crimes, in
compliance with legal procedures and
democratic safeguards. Many countries
have held, generally, more arrests for
possession and consumption than for drug
trafficking or drugs183 production may be
because there are a large number of
consumers, but perhaps because it is much
easier to sample such the crime (possession
for consumption) than on trafficking
networks drugs. In order to convict the drug
leaders some countries have to simplify,
under the strict surveillence of the
competent judicial authorities, the
180
Adrian Marcel Iancu Confiscarea bunurilor
provebite din traficul de droguri. Aspecte juridice.
- newsletter and documentation nr. 4/2008
181
In our country this has been covered by special
laws: Law no. 508 of 17 November 2004 on the
establishment, organization and operation of the
Public Ministry, the D.I.I.C.O.T. (Directorate for
Investigating Organized Crime and Terrorism),
published in the Monitorul Oficial no. 1089 from
November 23, 2004, as amended by OUG 7 of 10
February 2005, published in Monitorul Oficial
no. 177 of 01 March 2005. Under the law, within
D.I.I.C.O.T. operates 40 specialists in various
fields, to clarify technical issues in the criminal
investigation work, their expertise can benefit
service designed to combat drug trafficking in the
same direction.
182
By law no. 39 of 21 January 2003 on
preventing and combating organized crime, drug-
related crimes were included in the category of
serious crimes (art. 2 points. b item 11), stipulating
the scope of this special criminal law in case of
international activities drug in terms of organized
criminal group.
183
www.emcdda.europa.eu
171
provisions relating to evidence and taking
appropriate measures to ensure the
protection of the accused, rules of
procedure can, otherwise, represents
barriers to their indictment could not have
committed the acts themselves which are
accused. The problem of simplify court
proceedings refearing to evidence should
not be approached than in the general
context of a serious crime and should not
constitute an argument for violating the
rights of suspects. Also, legislation should
provide for prosecution and conviction of
the members of organized crime groups,
drug traffickers, because sometimes it can
be difficult to prove the connection that
exists between bosses, who are most guilty
of the crimes committed and their disposal,
they can never come in contact with the
drugs. Finally it should be noted that it is
necessary to adopt additional provisions to
encourage or compel witnesses to declare
what they know, developing witness
protection programs and the granting of
extenuating circumstances in case of
conviction184.
4.The effective use of criminal justice
systems
Many governments are facing
difficulties in increasing the effectiveness
of their criminal justice system, some
managed to streamline the system by
prioritizing the most immortal trial cases.
There are countries where a relatively high
percentage of judicial resources is devoted
to the fight against drug traffickers and key
heads of networks due to high impact on
illicit trafficking. In other countries, the
high rate of crime associated with drugs,
forced authorities to use resources available
in terms of detection and suppression of
crime basis. A wise use of these resources
reduces the pressure exerted on the police
and, implicitly, on the arrests of handful of
clues so that justice can condemn them. The
arrest of a big drug dealer will have a far
greater impact than that of many small
184
Art. 16
criminals, allowing, however, causes little
release of the judiciary in order to focus on
priority cases. There are excluded from the
equation, nor the measures to simplify the
task of the criminal justice system185, such
as simplification of procedures such
judicial process and thus reduce the length
of detention on remand and appeal to new
technologies such as e-mail, transmit
computerized data186, and sending
documents by fax, which in turn may
improve the efficacy of justice.
Penalties imposed by the criminal
justice system should be proportionate to
the seriousness of the offenses committed,
but often the penalties imposed major drug
traffickers, due to a "barter" justice or
amnesty are less than those applied to small
dealers or carriers. Thus, the head of a drug
trafficking ring in Colombia was released
by the government, for good behavior, after
he made five of his eight years in prison
who had been convicted. Also, when
products obtained in the course of illicit
drug trafficking remain intact, the deterrent
effect of a conviction, even long term, is
reduced to zero as other people who want to
get rich quickly will engage in such
activities.
On the other hand more and more
frequent use of treatment and alternative
punishments for offenders addicted to drugs
users and providing short-term sentences or
small fines criminals court, according to the
Convention of 1988 and other documents of
the UN and the EU187 can improve their act
justice and release that can be used
effectively to increase traffic conviction.
Problem drug use is subject to both the
185
V. small reform-Governments program to
reform the justice.
186
The Public Ministry,Ministry of Justice
concerned was implemented an electronic system
for trackin and managing the cases pending
ECRIS aspect that allows a better management
of resources.
187
Such aspects have been aborted at various
conferences,meetings,workshops and they are
found in the documents related to these actions.
172
act of repression by law enforcement
agencies, in terms of consumption and
keeping for programs of alternative
measures to prevent and treat him a prison
sentence188, taken in different regions of the
world must be studied carefully taking into
account the differences in judicial
philosophy of the people and systems.
Difficult task is what the criminal justice
system and the desire to improve treatment
and rehabilitation measures, especially
young, primary offenders and those with
disabilities, has led more countries to seek
measures such as substitution of the prison:
house arrest, electronic monitoring,
enforcement of the sentence under
supervision, community work or other non-
custodial sanctions. These measures have
sparked a wave of debate about their
effectiveness especially in relation to their
cost.
Three international treaties on drug
control refer in articles on criminal policy
provisions, the measures of treatment,
education, supervision, rehabilitation or
social reintegration of the offender to
replace or supplement a criminal penalty,
the Single Convention on Narcotic Drugs of
1961, as amended by the Protocol of
1972189 "(Article 36), the Convention on
Psychotropic Substances of 1971190 (Article
22) and the 1988191 Convention (Article 3).
On the occasion of the Eighth United
Nations Congress on Crime Prevention and
treatment of offenders192, the UN has
invited Member States to avoid, reduce or
eliminate prison overcrowding by taking
into account the use of a combination of
measures: to reduce the length of prison
sentences, substitution by non-custodial
sanctions and measures and shorten the
development of provisional detention
188
INCB From Coercition to Cohesion
disscusion papers,VIENNA March,2010.
189
www.un.org
190
idem
191
idem
192
INCBFrom Coercion to Cohesion disscussion
papers,Vienna March,2010
measures provisional release or the release
on bail. Also, the congress was to Member
States, the invitation that they use different
measures than those of a criminal nature for
personal consumption of drugs and the
proposed medical treatment programs,
psychological and social benefit of drug-
addicted offenders.
United Nations Standard Minimum
Rules for the production of non-custodial
measures of freedom193 sets out the
principles and practices generally accepted
in terms of freedom non privative
measures, one of the main objectives of
these measures is to allow linking of the
penal system and system treatment of drug
offenders, depending on the seriousness of
the offense and his situation. UN to this end
considers it necessary to strengthen
cooperation between judicial authorities,
and social health. There are numerous
measures of substitution of conviction: not
starting or removal from criminal
prosecution, postponement194 or
abandonment of the application and
substituting punish195 incarceration: legal
fine, conditional suspension of sentence and
suspension of supervision, community
work, medical hospitalization and treatment
order without making follow these steps to
decriminalize drug offenses or relax the
application of international treaties on drug
control. There are several ways to make the
criminal justice system should be able to
effectively use the resources available, for
example by managing the flow of persons
arrested within the system, by setting a
priority ranking for the crimes that must be
heard and managing arrested on various
levels of the criminal justice system by
making appropriate use of different
possible penalties. Prison overcrowding can
193
Rules from Tokio
194
This institution of law was introduced in
romanian legislation by draft criminal code
Stanoiu respectively Law no 104/2000 about
prevention and control the traffic and illegal drug
consumption.
195
idem
173
have a negative effect both on the consumer
situation of imprisonment of a convicted
drug addict and the acts of violence
committed in a prison environment and in
prisons in general.. Drug use in prison, a
phenomenon found in a growing slightly
because of the way of purchasing them
through corruption including serving prison
staff concerned, and increased risk of
infection with HIV or hepatitis and last but
not least, exposure to small offenders "
school crime are side effects of criminal
repression policy needs to be studied in
detail.
Many countries have studied new ways
of treating drug-related offenders and petty
criminals found that may be excluded from
the criminal justice system in order to avoid
conviction primary or young offenders,
offering treatment and rehabilitation
measures or to lighten the burden of courts
prison system and choked the large number
of people convicted of minor crimes.
Treatment of drug addicts can be a
substitute less expensive than
imprisonment, because it allows a reduction
in health costs associated with detention
and criminal proceedings and detention
costs.. Treatment may also be included in
local or national programs to reduce
demand for drugs that encourage drug
addicts to undergo treatment voluntarily..
Many countries, including Romania have
implemented community programs that are
functioning well in both formally and
informally, to facilitate action in this field,
irrespective of the arrest or conviction of
addicts.
5. Treatment as an alternative to
prison sentence
To avoid a criminal conviction and the
imprisonment of a drug addicts, various
measures are possible starting with
choosing a treatment under surveillance196
or in prison (imprisonment and ordered
196
See Article 19 of Law 522/2004 amending and
supplementing Law nr.104/2000 on preventing and
combating ilict drug trafficking.
treatment) or compulsory treatment
(inpatient care) which is the most
controversial form of treatment. Treatment
order can be imposed at all stages of
criminal proceedings: before the start of
trial, after trial (such as the extent of
substitution of sentence of imprisonment in
case of a suspended sentence under
surveillance) while incarcerated or as a
criterion for conditional release. There are
several national treatment systems designed
each depending on local conditions,
systems that illustrate the diversity of
possible approaches. States that are
reviewing their measures they apply in
terms of treatment and alternative
punishments need to structure their
programs according to the needs and
international principles that apply in
domain197, sense in which exemplify some
systems, as follows:
- In Cape Verde and Portugal, if
addicted criminals who have been
convicted of certain drug-related crimes are
subject to treatment voluntarily imposed by
the court , the court may pronounce the
suspension under surveillance. If drug
addicted will not comply with treatment or
other obligations imposed by the court, it
may revoke the suspension and order again
the sentence.
- In France there are several possibilities
within the criminal justice system.For
example if the drug delinquent follows
treatment until the prescribed period
following the court , prosecution may be
abandoned; drug addicts may also present
voluntarily and anonymously to seek
treatment.
- In Malaysia, if medical tests revealed
that a person arrested is addiction, a
magistrate may order him to
undergo treatment in a rehabilitation center
under strict control.
- In Sweden the court may order an
delinquent to undergo treatment, situation
in which prosecutors have the power to
197
For example : Rules in Tokio
174
abandon the criminal prosecution against
abusers, provided that the offense he is
accused to be liable to a penalty not
exceeding one year in jail.
- Some U.S. states have created special
courts charged with hearing cases of a large
number of delinquents who enter the
criminal justice system because of
committing drug-related crimes providing
treatment198to preserve the influence and
judicial powers necessary to deal with
criminals. The courts direct persons
indicted for relatively minor offenses such
as possession or consumption of drugs for
personal consumption, to educational
programs, training or treatment and monitor
their activities. At the end of the program
may be abandoned prosecution (criminal
investigation of removal) or delinquent may
be placed on probation. Those who do not
comply the obligations imposed by the
court are sentenced to progressive including
imprisonment.199
- In Venezuela, a person found in
possession of small quantities of illicit
drugs destined for own consumption is
tested in a non-prison prevention center
under the control of the criminal judge. If
the test result proves that the person is
addiction, it must undergo a compulsory
treatment recommended by specialists,
under the supervision of the judge
(occasional consumers can be put into free
under the same conditions).
Meeting between an delinquent who
committed drug-related crime and the
criminal justice system may be a good
chance of inciting the first to seek
treatment, especially if it is a petty crime
and the person that was not yet geared to
large scale criminal activities.
His clinical needs can be investigated
198
Chief quaestor professor doctor Pavel Abraham
, Chief Commisioner dr.Victor Nicolaescu ,
Inspector Paula Frusinoiu Coordinates the work
of implementing the district courton drugs Klan (Ill
inois USA) in Romania, Buletin Infodrog nr
2/2008
199
Idem
and a diagnosis can be put which to
recommend propose a treatment program
witch wont be available in judicial or
prison system. More, the inclusion of
provisions providing for the possibility of
treatment, the drug law200 allows a court to
pronounce sentence, other than criminal
sanctions. A court decision to order an
offender treatment show the seriousness of
the crime committed, helping him ,also, to
undergo treatment for a period long enough
for it have results. Also need to ensure that
the treatment that the court ordered should
not impose greater restrictions than their
actual sanction.
Treatment programs should be studied
carefully by the authorities and their
objectives must be clearly defined. For
example they are generally designed to:
- allow persons to adopt long term
lifestyle without drug
- reducing demand for illicit drugs
- fight against crime
- addicts to help improve their health
and increase their chances of social
reinsertion.
They must be considered at the outset
of the evaluation mechanism in order to
determine if the targets are actually
achieved. Authorities should consider the
possible conflicting account various factors
such as the need to guarantee legal
proceedings to protect civil rights, in terms
of treatment needs and other humanitarian
issues and the fight against drugs. Ideally,
drug addicts who committed crimes
perpetrated drug-related crimes to receive a
program adapted to their specific needs for
a period long enough to get positive results.
Should also be measures to diet and prevent
relapse, the effectiveness of these programs
depending on the experience of those who
put them into practice, the number of places
200
In Romania , possible drug treatment for
offenders has been introduced into legislation , the
provisions of Article 19 of Law 522/2004
amending and supplementing Law nr.104/2000 on
preventing and combating ilict drug trafficking.
175
available in specialized centers, close
cooperation between criminal justice and
public health structures and the necessary
resources to guarantee success. Prisons
should not be excluded from the equation
because in their should be drug treatment
services for prisoners.
If you wish to avoid the need to fight
crime in order to achieve the highest
possible normal, individual and collective
(the individual to reintegrate into society, to
get them to lead a normal life, you
learn to live normal).Sending him to prison
you just stigmatized him and so increase
the rift between him and society.
Crime, is designed a simple diversion of
behavior, which is always seen as a result of
the impact of individual and environmental
trends, it is easy to understand that there will
be cases when prophylactic activity will be
mainly to perform their own personal
environment or social.
As long as the rules of mental hygiene
and social life and opportunities based on
exact knowledge of the current generation
will not be sufficiently well known and
respected, it is clear that the number of
criminals will still be very high and that
criminal sanctions will lead to a reduction it
significant. Indeed, the percentage of
offenders in all countries is alarming,
especially if it is envisaged that many of
them have learned while serving their
sentence, how to escape unpunished
elsewhere.
On the other hand, it is also true that the
current social organization deprives the
offender of all the resources necessary to
recover normal reintegration into society :
everywhere will be greeted with fear ,
distrust or dislike, except so-called "lower
layers" of society, which in fact would be to
move away. All these factors contribute to
the formation of the type called "common
criminal" who is a flaw in the big cities and
small towns a bad example (turning to
delinquency, failure, change in professional
and higher difficulties faced by former
criminals)
 6. Vocational training
Staff in the criminal justice system,
including members of police forces,
customs officers and border police, and
judicial authorities, should receive
appropriate professional training, adequate
technical training to enable them to deal
with criminal activities related to their
particular skills. The 1988 Convention
stipulates that this training should cover:
- methods used to detect and suppress
crime;
- measures to be taken to make
unusable suspects routes and techniques;
- control import and export drugs,
psychotropic substances and substances
listed in Schedules I and II of the
Convention;
- evidence-gathering;
- control techniques in free trade zones
and ports;
- modern techniques of detection and
suppression of trafficking.
For the prosecution committed against
the heads of organized crime networks have
a proper purpose of obtaining and analyzing
information tactical and personnel must be
made well trained. The clues have to be
collected on the basis of reliable techniques
under supervision, if applicable principles
and human rights. This rights are
predominantly electronic surveillance and
interception of telephone calls (under strict
judicial control), use of computers and
electronic communication means, the use of
agents infiltrated, controlled deliveries and
financial investigations. By development
and streamline information collection and
analysis capabilities, organized crime
crackdown services will be able to focus
their limited resources on areas that seem to
offer the best chance of success.
Also, that training should aim to
improve the enforcement powers of
regional traffic and provide training
regarding the judiciarists procedures special
provisions relating to evidence in the case
of serious crimes such as drug trafficking
and the. This training could, for example, to
176
target directives regarding the evaluation of
chemical experiments on the controlled
substance, financial reports and analysis in
cases of money laundering and managing
cases in which criminal organizations are
involved with complex ramifications which
may occur related crimes. These measures
designed to prevent illicit trafficking in
drugs by land and air, to be supplemented
by specific measures to prevent sea
trafficking201. This would be necessary for
personnel responsible for such activities to
have an adequate training and equipment
specialties ships to stop and visit. Also, be
adopted supervisory measures movements
in ports and free zones in order to detection
of illicit drug shipments202. Regarding
difficulties in combating illicit drug
trafficking on the high seas should mention
that revised Articles 108 and 110 of the
United Nations Convention on the Rights of
the sea203, and to include references to
drugs and chemical precursors, which is
more important to provide the right to visit
the ship in case of drug trafficking, sepsis
cases of piracy, slavery, or the unauthorized
radio, today these activities become much
less dangerous than drug trafficking.
Structured charged with investigating
cases of drug trafficking must be efficient
and highly specialized. Police services,
customs and border police can create
specialized structures within drug services
to combat organized crime or in connection
with this and is absolutely necessary that all
the competent bodies to work in close
collaboration.
To combat the drug and effective fight
against it and all states must provide and to
201
According to provisions of the 1988
Convention art. 17
202
Adrian Marcel Janco, Victor Nicolaescu "Fight a
t theEuropean level, illicit drug trafficking by sea"
Investigating criminality shops, Year III. No. 5 /
2010
203
www.onuinfo.ro/documente_fundamentale/
instrumente_internationale/conventie_asupra_drept
ului_marii_1/
develop strategies and practical measures to
increase judicial efficiency, to harmonize
the national legislation according to
international conventions, to modify the
system in terms of sanctioning activities
tightening penalties for murder and
organized drug trafficking and use of
treatment, non-custodial sanctions or
punishment for short minor offenses, the
creation of specialized units for
investigation of drug trafficking and
strengthening international cooperation not
only between traffic enforcement services,
but also between the judiciary authorities.

Bibliography
A Iancu - "Drug trafficking. Analysis of transit routes - Drug Info-Bulletin No.1/2008
Adrian Marcel Iancu - "Money laundering proceeds from drug trafficking" - information
and research bulletin no. 4 / 2007
Adrian Marcel Iancu - Proceeds from drug trafficking. Legal - No bulletin of information
and documentation. 4 / 2008
Adrian Marcel Janco, Victor Nicolaescu "Fight at the European level, illicit drug
trafficking by sea", Review of investigation of crime, Year III. Nr. 5 / 2010
Chief quaestor professor. Dr. Paul Abraham, Chief Commissioner Dr. Victor
NICOLAESCU Inspector Paula FRUSINOIU - coordinates the work of implementing the
drug court in Kane County (Illinois, USA) in Romania, Infodrog Bulletin no. 2 / 2008
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988,
art. 5, Official Gazette no. 341 of 30 December 1992
http://www.incb.org/f/ar/1996/notes.htm
Hurdubaie, John, Nicolaescu, Victor, legal and institutional framework drug world, Civitas
Publishing House, Bucharest, 2008
INCB "From Coercion to Cohesion" discussion papers, Vienna March, 2010
Internet Resources
Law No. 104/2000 on preventing and combating illicit drug trafficking,
Law no. 381 of September 28, 2004, on certain financial measures in preventing and
combating illicit drug trafficking and consumption, published in the Official Gazette, Part I,
no. 896 of October 1, 2004
Law no. 39 of 21 January 2003 on preventing and combating organized crime
Law no. 508 of 17 November 2004 on the establishment, organization and functioning of
the Directorate of Public Prosecutions in the Investigation of Organized Crime and
Terrorism, published in Official Gazette no. 1089 from November 23, 2004, as amended by
Ordinance 7 of 10 February 2005, published in Official Gazette no. 177 of 01 March 2005.
Law no. 522/2004 for completing and amending Act No 104/2000 on preventing and
combating illicit drug trafficking
Mira y Lopez, Emilio, Handbook of Psychology, Bucharest, 2009 Oscar Print Publishing
UNODC, World Drug Report 2010, page 123, United Nations Publication, Sales No.
E.10.XI.13
www.emcdda / eu.com
www.emcdda.europa.eu
www.just.ro
www.un.org
www.un.org / Tokyo Rules

177
 MODERN APPROACHES TO PERSONNEL MOTIVATION
WITHIN THE ROMANIAN BORDER POLICE

University Reader. Ph.D. COSTEL DUMITRESCU

University Teaching Assistant OANA POPESCU
Police Academy Alexandru Ioan Cuza
Border police, Schengen training and foreign languages

A relatively young body, but with a century-old tradition in ensuring order at the
Romanian borders, the Border Police proves to be an institution showing its own
personality and individuality when carrying out missions, being able to highlight the true
image of the welfare state and the genuine democracy and civilisation of the Romanian
people, since the crossing of the Romanian borders. Organized in a similar way as the
states of the European Union, the Romanian Border Police makes important efforts in
the field of prevention and combating cross border criminality, complying with the
internal and international legislation in force, so that its specific activities match the
international standards.
Keywords: mobilization, focus, motivation, operational and managerial skills,
tasks defining letter, prospective approach.
Strategic Management explains that part concept of strategic management, since it
of a top managers activities dealing with consists in defining the fundamental
widening the immediate horizon in order to principles which aim at assembling all the
predict the actions to be undertaken by the efforts in order to achieve the tasks
institution he leads. It contains two aspects: entrusted to the institution.
defining the Border Police One of the essential roles of senior
objectives, strategy, structure and officials, namely the top managers, is to
principles of functioning; "justify" the action of people working in the
measuring the impact in space and central departments, even at times of
time of an important decision taken. significant changes or transformation. The
According to this definition, the verb "justify" should be understood in two
strategic management refers to civil ways:
servants having a special status in leading - To provide meaning to the action
positions, officials that must not only taken;
perform daily activities, but also relate to - To provide a direction of development.
the overall objectives of the institution. Mobilization can be seen therefore as a
However, our official directly subordinates mixture:
to higher levels civil servants, who are in Mobilization = Focus + Motivation
charge of developing strategic decisions.
The strategy of motivating the For a top-manager, focusing means
personnel working within the Romanian indicating the direction towards which each
Border Police. Unleashing the full potential border police operational directorate should
of the employees working in a Border evolve; In order to achieve it the manager
Police unit is a sine qua non institutional must:
success condition. It directly relates to the 1. indicate the way forward;
178
 2. achieve a convergence between the
various individual efforts.
1. Indicating the way forward means:
indicate the goals:
What are the goals that the unit
must achieve?
What are the targets to achieve
during the considered period?
Defining the priority objectives is the
central attribution of a Border Police unit
manager, the essence of the effort of
focusing energy. Moreover, according to
those already mentioned, there are two
clear ways of failing to achieve their own
objectives:
- The first is not having objectives;
- The second is aiming at contradictory
objectives.
present the action plan:
- What is the strategy adopted?
- Which are the preferred values?
- What are the rules?
2. Convergence between various
individual efforts means:
have others adhere to the objectives,
strategy, values chosen by means of:
- Establishing a management system that
raises / encourages adhesion;
- Developing an active communication
policy;
- Explaining the stages covered, the
results obtained;
reduce conflicts by limiting the 'natural'
oppositions that exist in all groups and
develop synergies within and between teams;
identify and stimulate the dynamic
forces, in order to allow those who,
according to their nature and ambition,
make things move in the direction you
want, to play the role of "engine" without
taking away the teamwork spirit. Managers
may use two basic levers in order to
increase motivation:
1. financial motivation,
2. non-financial motivation.
1. Financial motivation
On the whole, experience and studies in
the field have enabled the identification of
significant problems:
179
The financial element plays a
key role in motivating the
border guards as long as a
decent wage is not earned;
On the contrary, once this level
is reached (which is evaluated
by means of comparison with
other professions and not
absolute), the financial factor
diminishes its importance in
comparison to the non-
financial factor.
Regarding the financial aspects, there
are some points to be covered:
- They carry the most powerful short-
term effect, thus a significant increase in
salary (or bonuses) will translate into an
increased motivation ...
- ... But not for long, because it creates
an interesting effect, namely, if another
incentive will not occur immediately, the
motivation decreases in a very rapid
manner;
- The financial element is important if it
triggers a sufficiently clear "differentiation"
with other positions as to be perceived as
recognition of merit (the symbolic aspect
completes the material aspect).
- The financial motivation is a complex
issue covering 4 dimensions:
Basic remuneration;
Bonuses related to individual results;
Salary increase related to the results
of the team
Increase related to the overall
performance of the institution in society.
Furthermore, it is imperative to combine
the four elements in order to avoid
"perverse effects" (too many individual
incentives affect team spirit, while
excessive emphasis on improving the
overall outcome does not produce the
desired accomplishment level matching the
personal efforts). Moreover, it is important
to realize that the financial factor is never
enough, and even their counterpart
institutions in the EU which rejoice
superior financial opportunities have
noticed the limits of this approach.
 2. Non-financial motivation
It presents many issues which prove to
be more efficient than one might think. The
most important are:
Proving esteem:
- Showing respect to people and the
work undertaken;
- Listening, informing, proving dialogue
skills;
- Showing visible signs of esteem (a
word, a gesture, a thank you letter...).
Accountability for
- Objectives
- Results
- Budget management,
- The importance of their work for the
benefit of others (team members,
citizens, state).
"Pride" of being affiliated to a group,
often devalued in modern public contexts;
No one will want to make a special effort
for an organization that has a negative
image.
Labor content.
The power and prestige of the position.
Prospects of the job (promotion,
career).
The reputation of the institution of
affiliation.
This list which is not exhaustive, shows
that non-financial factors of motivation are
not only numerous but also essential. Each
manager has to find the best combination to
give meaning to the action of each echelon.
The correctness of these strategic choices is
the element that distinguishes top-managers.
Higher echelons managers have to:
- define the motivation grounds within
the organization they lead
(principles, values, instruments that
can be used);
- make them known;
- initiate a dynamic of the
implementation of these principles
and values in everyday work;
- provide a positive example, to their
own team and to other partners
(during meetings, etc..).
Energy mobilization is one of the
180
essential attributions of the Romanian
Border Police managers. They are the ones
who have the duty to clarify the objectives
of the institution, to set up goals, to define
the strategy and choose the key elements
(financial and non-financial) in order to
motivate employees.
The role of various participants in the
strategic approach of motivating
employees
Mobilization of senior officials. The
management team should conduct regular
evaluation meetings, establish their existing
positions in relation to the new organization
and analyze the required skills for the new
jobs.
In order to achieve these elements, there
are more tools to be used:
- the annual meetings for activity
evaluation,
- job requirements,
- analysis of the skills needed for the
position.
Mobilization of lower ranked officials.
The officials position is at the middle of
the organizational structure and in order to
have him/her involved in this particular
approach, he/she should be fed with
operational information on services and
training opportunities, on the possibilities
of development and occupational mobility
within and outside the institutions
structure.
The manager, together with his/her
direct superior must be able to set the
objectives of the employees professional
training - which he/she is committed to
achieve in a reasonable time limit (which
can range between six months and two
years, depending on the nature of the
targets).
Without any doubt, the Romanian
Border Police is facing some notable
changes that will affect the number and
structure of existing positions. In order to
cope with these quantitative and qualitative
changes of the objectives, the public service
should initiate a process of anticipatory
control of the jobs and corresponding skills
as a means of avoiding the situation when
this approach is only determined by
budgetary constraints.
In a broader sense, the Romanian
Border Police complies with the basic ideas
of the theory of the organization:
a) The institution includes not only the
formal organizational structure, but also
social networks (National Police Corps, the
police union, the Association of veterans,
etc..), offering people the opportunity to
interact, involving emotionally, seeking
understanding and support from colleagues,
endeavoring satisfaction not only in
employment, but also in social interactions
that occur during work. In conclusion, the
Romanian Border Police represents a social
system in which both individual and group
behaviors are important.
b) The importance and quality of the
managerial climate are obvious conditions.
The main source for border guards labor
efficiency is getting satisfaction from
training methods and control.
c) Finally, experience is a relevant
methodological aspect. Employees show a
feeling of satisfaction towards the attempts
to renew the whole system of work
organization. As a result, at least initially,
there are positive results. When novelty and
interest are gone, people return to previous
levels of work efficiency. The management
of human relations and the organization
theory have emphasized the merit of the
human factor in organizations. As usual,
there are some exaggerations, in time reality
proving that the morale, peoples beliefs,
although essential, cannot exhaust the scope
of work motivation, the material economic
factors keeping their importance. In essence,
human relations orientation changes its
focus from the "economic man", subject of
the scientific management, to the "social
man". In fact, the concept of "economic
man" is included in that of a "social man".
The management of anticipated
employment and skills within the
Romanian Border Police means to
identify differences between current and
181
future needs of the institution. It requires
anticipating differences before using
policies and action plans to reduce them.
Strategic management of employment and
skills is classified according to the
organization's strategic plan (or at least on well-
defined medium-term objectives). It involves
the border guards, in terms of their professional
development and hierarchic superiors, in terms
of management practices implemented.
The importance of strategic approach
in the field of employment and skills
Romanian Border Police faces
changes that will result in a stagnation or
even reduction of the personnel which
affect the work organization and skills
required by new realities in the field. At the
origin of the changes, there are three types
of factors:
external social factors, related to
mentality developments and EU
requirements;
internal social factors dealing with the
aspirations and motivations of border
guards, their qualifications and training
development;
public service modernization policy,
mainly due to:
- deconcentration and decentralization,
- "Europeanization" requirements in the
field of border security,
- informatization of operational units,
- development of human resources
management.
Border guards represent an important
element in the organization of staff on a
medium and long term basis. The managerial
sector presents slow changes both in terms of
"natural" movements (recruitment,
promotions, departures, etc..) and that of
training and qualifications required.
It is therefore extremely important for
the Romanian Border Police management
to anticipate and predict further actions. It
has the responsibility to plan in advance the
actions and the skills needed in the future.
Objectives of the border police
approach
The implementation of organizational
management new methods or means is
necessary in order to achieve the following
objectives:
Knowing the evolution of staff number
and their "spontaneous" changes (number,
structure by category and status,
qualifications, age pyramid, experience,
etc.), in order to determine the number of
"departures" and "entry" to operative
positions, the promotions pace and the
existing needs in terms of new
employment;
Involving the personnel in their own
professional development regarding the
planning of the employees professional
development and their mobilization at all
levels;
informing activities on the tasks
changes, the existing economic conditions,
the trends in employment, possibilities to
reshape the professional development.
The presentation of the strategic
management approach to employment
and skills
This approach can be summarized in
five steps:
1. Inventory of existing resources:
- In quantitative terms
- In qualitative terms.
2. Analysis of the probable evolution of
existing resources and the border guards
needs.
3. Definition of new positions stipulated in
the strategic analysis plan, the existing
goals and the development of the
institutions tasks.
4. Analyzing the relationship between
existing and desired / needed positions.
5. Drawing up and implementing an Action
Plan.
Tools used for achieving the approach
(which the Ministry may dispose of):
-the management of anticipated
budgetary allocations: establishing a
strategic plan of the existing needs according
to the budgets expected evolution;
-the management of anticipated staff
number, which determines the flow of
"inputs" and "outputs" (coordination of
182
staff recruitment, coordination of border
guardscareer development). It is actually a
quantitative approach to demographic and
human resources;
- the management of quality employment
and skills; in general, local managers are
those who can, through direct contact with
subordinates, explore career prospects
within their unit, while the qualitative
analysis of positions, grouped in the so-
called "position requirements" can be
centrally performed. For example, an
internal working group of the Ministry of
Administration and Interior may issue a
type of job classification necessary within
the Border Police County Inspectorate.
Example SKILLS GRID ANALYSIS
Position type - team responsible
Service:
Office or subdivision:
Skills needed / required for this position
Levels 0 1 2 3
Professional knowledge
- Equipment use
- Organizational Management
- Operational Management
- Computer skills
- Geopolitics and geostrategic skills
- Logistics
Operational and managerial skills
- Mobility in the field, observing, informing
- Diagnosis, proposals
- Programming
- Planning
- Training
- involving in the costs analysis and
coordination
- Motivating / conducting the team
- Assessment
- implementing skills
Relational Skills
- Communication triggering factor
- Team spirit
- Ability to orienting staff
- Authority
1. Skills control involves a three-level
intervention:
- Current skills,
- Skills that the public official wants to acquire,
- Skills needed in the institution.
This three-level approach allows the
identification of differences between
current and future needs in the field of
positions and human resources.
2. This type of document allows the skills
control and the desired profile definition of
the border policeman dealing with certain
activities.
3. This type of grid, developed for each
position-type is built by the managing
board; the grid is then subjected to
validation by the working group (made up
by union representatives and officials
occupying the respective position).
4. This form, which the respective official
is familiar with is filled:
- in case of the holders departure / entry,
- In case of change
- At least every five years.
Specific methods in the field of
strategic management:
Strategic management defines the basic
guidelines of a management unit. Strategic
management techniques (SMT) are helpful
for the drawing up and the implementation
of these guidelines. At present Border
Police may use different techniques:
1. employment project
2. tasks defining letter
3. action plan
4. the strategic project of training/ refresher
courses for border guards
5. management control
All these elements compete for the
implementation of policies to modernize
the institution.
1. Employment project
The employment project (EP) is one of
the "strategic" techniques chosen by the
senior management to implement the policy
of modernization of the structures. It is
prepared in a de-concentrated manner, by
the directorate, service or the unit
concerned, decisions are taken at the closest
level to those directly affected, and local
managers have greater autonomy at both
organizational and budgetary level.
The concept of employment project
183
combines three distinct, but interrelated
elements:
the future of the operational service in
question is built according to the tasks
entrusted and the values that guide it;
processes by means of which the unit
develops and builds the desired prospects
documents prepared by the unit during
these processes:
- Collective reflections with the
teamwork,
- the Charter of the institution, a
document that contains:
o targeted objectives, prospects of
future professional development
o preferred values,
o strategic plan,
o action plans
o communication plan.
2. Tasks Defining Letter (TDL) is the
procedure used by some administrative
bodies to specify the expectations of a
public servant with special status at a
higher decision level when being appointed
to a new position. This procedure is a
reminiscence of the time when it was used
for ambassadors. It shall be applied to
Border Police officials, Frontier officials,
directors, project managers, etc Using TDL
aims at achieving a double objective:
the development of specific
responsibilities within the institution
(central or local) based on the idea of
building their confidence and achieving the
results aimed at;
raising the effectiveness of the actions
within the Romanian Border Police
management by means of:
- Establishing the states responsibility
within each territorial unit
- Building the coherence of territorial
actions.
3. Action Plan
Implementing the "action plan"
approach within Border Police, is, above
all, a way to ensure the evolution of
management methods in a rational and
participatory way, an effort to have officials
reflect on their own activity in terms of
annual objectives and measurable results by
means of indicators.
The Action Plan is an annual operational
planning procedure, offering the
opportunity:
to adopt a prospective approach,
designed to formalize the priority
guidelines of the current year (the subject
of concentrated efforts in the unit,
directorate, etc.).
to define the necessary actions in a
rational manner responding to accurate
results to be achieved.
4. Strategic project of border guards
basic training/advanced training
A project of training border guards on a
period of at least three years aims at
defining:
the importance of border guards
basic training / advanced training, in direct
connection with planned or foreseeable
tasks development and the functioning of
the respective institution (offices, services,
directions, etc..) and the political, economic
and social changes. Addressing this
problem means in fact developing a training
policy.
all the actions to be implemented for
achieving the training objectives which
contribute to the overall success of the
institution. Addressing this problem means
in fact developing a training strategy.
5. The Romanian Border Police
managerial control
Most of the public order and safety
institutions must currently face new
constraints being required to justify to the
public, who demands quality, equity, costs
transparency, performance of the fixed
targets. The economic context may also be
a context conditioning certain behaviors:
seeking further economic reasons;
seeking objectivity in the budget
arbitration;
focusing resources on the identified
priorities.
All these elements should lead managers
to initiate some techniques of strategic
actions including the managerial control.

References:
Belbin, Raymond Meredith - Management Teams: Why They succeed or Fail,
Butterworth Heinemann, 2nd ed., 2004
Coffer, C.N., Appley, M.H. - Psicologa from motivacin. Ed Trillas. Mxico, 1971
Strauss, G., Job Satisfaction, Motivation and Job Redesign, in Strauss et al (editors),
Organisational Behaviour: Research and Issues, Wadsworth, 1976
Thakur, M. - DO: The Search for Identy, Information Report no. 16, IPM, 1974

184
 CANAUX DE COMMUNICATION DIDACTIQUE.
INCIDENCES PSYCHO-PDAGOGIQUES

Lecteur univ. dr. LUCIAN PAHONU

The article focuses on issues related to teaching communication and attempts to

highlight the features of the activity objectives. Particular attention is paid to non-verbal
communication that is realized through several channels.
Index de mots-cls: communication, rcepteurs, langage, systme, langue
Toute signification obtenue cest une
finalit du jeu dvelopp entre plusieurs sous-
systmes de signes: verbales, para verbales et
non verbales. Ces trois sous-systmes peuvent
fonctionner simultanment, et lhomologie
fonctionnelle souleve produira une
convergence dans l'accomplissement du sens,
suite la superposition partielle de la
continuit temporelle. En outre, ces trois
sous-systmes sont susceptibles de devenir
autonomes en raison de la possibilit de
produire des messages diffrents, voire
divergents, en employant des moyens
spcifiques d'expression. Ce qui est
souhaiter, cest que, dans l'enseignement de la
communication, se ralise une convergence
fonctionnelle et l'engagement de tous les
canaux de transmission. Les possibilits de
dgager et de changer les significations sont
meilleures, et les tudiants seront obligs de
perfectionner plusieurs rcepteurs .
A) Le sous-systme verbal. Il est connu
que le discours verbal occupe une place
importante dans lenseignement et dans la
vrification des connaissances. Si chaque
mot tait une fois un uvre d'art originale ,
ce qui signifie qu'il y avait un proto
langage satur en formes infralogiques, il
serait ncessaire que du syncrtisme amorphe
et confuse des constructions quasi rationnelles
soient tirs, en supprimant toute trace, les
dbordements motionnels, les concepts
stables, conduisant un change valid
sociocommunautaire. Le transbordement de
lmotivit et la condamnation de
l'inconscient au mutisme dans nos
185
conversations sont utopiques et illusoires.
Le langage de la pense - affirme Uinki
se cre, peu peu, du langage des sens et les
traces de ces phases sensorielles laissent leur
empreinte sur la langue jamais.
Les mots, en les utilisant simplement dans
leur sens nu , intgrs dans des units
propositionnelles et dans le niveau phrastique
aussi (dans des syntaxes qui elles-mmes
peuvent parler), se convertiront dans une
manire perlocutionnaire standard qui, bien
exploite, sera un facteur stimulant pour la
volont, lattention et l'imagination des
lves. Les connotations du mot, rsultant de
lexpressivit contextuelle de son utilisation et
produisant une rsonance ... de toute son
histoire prcdente , ont le pouvoir d'veiller
l'tudiant des images de et des motions
bnfiques pour recevoir des contenus
dides.
Le langage daprs Buhler - implique
non seulement la fonction de communication,
mais aussi une fonction d'appel, oriente vers
le destinataire et une fonction expressive qui
vise le locuteur. Jakobson, en plus des trois
dimensions rvles par Buhler, suggre
galement trois fonctions: mtalinguistique
(orient vers le code), potique (qui a pour
objectif lnonc), phatique (visant le contact
de la communication). Toutes les six
fonctions invoques peuvent se raliser dans
lexpression didactique, l'enseignant ayant la
possibilit, par rapport aux objectifs, de
mettre l'accent sur telle ou telle fonction.
B) Le sous-systme para verbal. Dans le
dialogue enseignant-lve sont prsents
dautres ressorts de communication qui
peuvent transmettre les contenus
informationnels. La manire dont les mots
sont prononcs charge d'motion les ides
circonscrites, en transformant un dialogue
rgulier - apparemment banal - en instances
expressives modulantes. La communication
orale, travers ses lments suprasegmentaux
(intonation, accent, dbit, rythme, force,
style), a la capacit de personnaliser l'acte de
communication et dimpliquer affectivement
la fois des enseignants-metteurs et des
rcepteurs-apprenants. Le mode de
prsentation d'une information peut devenir
lui-mme contenu non cognitif. Toute
communication est accompagne d'une mta
communication, qui peut suggrer ou fixer
des nuances expressives latentes. Un bon
professeur doit tre aussi un excellent
acteur , qui exploite plein le halo des
significations de la parole. Par prononciation,
ils doivent se dplacer pour capter l'motion
et l'ensemble des penses des tudiants.
Mettons en vidence le rle des
expressions du langage qui ornent le discours.
S'vader de l'expression concise et commune,
les figures de style amplifie la puissance du
message, non seulement en lenrichissant des
significations collatrales, mais aussi par
dissimulation intentionnelle, en dirigeant
l'lve effectuer des trajectoires imaginaires.
Les figures de style sont les enfants de la
fiction et figurer signifie voir que, mais
pas toujours voir ou faire voir. Mme la
pause entre les mots ou les phrases (dans
certaines limites, peut tre mme la manque
dexplication ou de rponse certaines
questions) peut se convertir en facteurs
causals pour accrotre le niveau d'intrt des
lves. Lexplication jusqu la fin ou
lexpression redondante - mme si elles sont
recommandes peuvent confrer lexpos
didactique un caractre de monotonie et note
ennui. Il ya des moments o les explications
"termines" peut enlever le charme et la
beaut d'une leon, dtruisant pour les lves
le mirage des interrogations perptuelles. Dire
tout signifie primer. Contrairement au
silence, la suspension des doses bien
mesures et dans des contextes pragmatiques
adquats peut amliorer l'expressivit des
ides, tout en maintenant un dialogue
authentique.
C) Le sous-systme non verbal. Le
dialogue entre enseignants et lves slargit
par la voie non verbale. Nous sommes obligs
dans lactivit didactique de recourir aussi au
systme concret, perceptif ou imag, compte
tenu de l'accessibilit et l'efficacit du
dcodage de ces moyens et sources de
communication. Laudio-visuel a le mrite de
rcuprer les connotations perdues par la
dcantation du langage dnotatif ncessaire,
mais pas suffisant pour atteindre l'idal de la
communication totale.
Le message visuel prend la fois un
aspect smantique (linguistique transposable
et rcupr partiellement par la langue), et un
aspect ectosmantique (qui transcende la
signification immdiate par l'exploitation du
domaine de libert du signe) et, en termes des
fonctions, on revendique aux images visuelles
le statut dinstances rationnelles, expressives
et conatives.
Ce que nous appelons rel est toujours
ce que nous voyons et puis ce que nous
entendons ou touchons. Le langage verbal
rend prsents les objets et les phnomnes
que nous ne connaissons pas. Mais parfois,
cet outil s'avre tre fragile et pauvre en
compensations. Le visuel vient l'aider, le
finaliser, le complter. En outre, les deux
formes d'expression de la rationalit engagent
trois types de rationalit distincts. La pense
exprime est bien plus analytique, parce que
lacte de parole est fait de mots qui font partie
des assembles et doit tre saisie dune
manire particulire. Au contraire, la pense
voque par visuel est synthtique, parce que
le visuel donne une perception globale de la
situation. Si la parole est critique par ses
tribulations, le visuel est direct par son
vidence. Il ya des cas o le visuel exprime
mieux une certaine chose que ne le fait la
parole. Un discours verbal ne sera pas en
mesure de dcrire et d'expliquer le
fonctionnement d'un moteur, par exemple,
avec la mme efficacit dun schma ou du
186
moteur lui-mme, et si la langue le fera, il
serait assez long et incertain. Une pdagogie
de l'image, bien dfinie, pourrait stimuler
l'apprentissage, car en montrant dune
manire directe et un bilan rapide de l'objet
apprendre on transmet des informations sans
lire ou crire, sans mme une
conceptualisation approprie. Cela justifie la
prsence de ressources pdagogiques dans
l'enseignement.
Rappelons-nous que la posture, la
gestuelle ou la mimique de lducateur
peuvent susciter des ractions affectives aux
tudiants. La mimique et la gestuelle des
mains accompagnent le langage parl, en
compltant ou en prolongeant le sens des
mots. Parfois, les gestes peuvent
communiquer plusieurs informations aux
auditeurs que le parler. Les ressources du
discours priphrique sont capables de
couvrir une partie de l'espace smantique, que
la langue parle ne parvient jamais la
rcuprer. Lvolution psychomotrice de
l'homme a t telle que les nouvelles
fonctionnalits nont pas entirement
supprim les prcdentes, mais elles sont
intgres dans les fonctions suprieures. "Ne
pas arrter de penser avec les mains quivaut
une perte dune partie de la pense" -
considre Andr Leroi-Gourhan. Les
mouvements, les gestes et la mimique des
enseignants - en tant que parties intgrantes
de l'enseignement - doivent tre convertis en
outils productifs qui rpondent aux besoins
d'une situation d'enseignement spcifique.
Nous croyons que, lavenir, les
enseignants doivent accorder une attention
accrue la configuration de lthos
communicatif, compte tenu de l'influence de
ce systme sur toutes les composantes de
lactivit ducative. En fonction du smiosis
roul - et qui prside presque toute activit
didactique - on cre les prmices de la
traduction optimale des objectifs
d'enseignement et le processus en tant que tel
gagne de la pertinence et de l'efficacit
supplmentaire. Il devrait galement prvoir
l'instrumentalisation et linitiation des
tudiants dans les stratgies de discours de
187
sorte qu'ils soient en mesure de constater, de
comprendre, de hirarchiser, de sanctionner et
damliorer les informations reues de
diverses manires, et, finalement, dacqurir
une comptence informationnelle prmisse
dun apprentissage efficace. D'autant plus que
domaine de l'information d'aujourd'hui, avec
ses antinomies smiotiques, exige de
nouvelles prestations et attitudes de la part des
enseignants et de l'ducation la fois.
Le statut du silence dans la
communication didactique
Invoquer la fonctionnalit bnfique du
silence dans une activit par excellence
verbale semble premire vue, une tentative
scandaleuse et bizarre. Nous savons que le
discours didactique est bas et fait appel la
parole en tant que fondation / dcor des
transactions dinformations ou tats qui
facilitent ou constituent par eux-mmes des
acquis ducatifs. Il n'en est pas moins vrai
que, parfois, on remarque le besoin de la
discontinuit du verbal par silence, soit en
qualit dun artifice rhtorique sous-entendu
au niveau des squences minimales de
discours (par les figures linguistiques par
exemple), soit par une installation / un
dplacement de la communication dans / vers
les registres non verbaux ou para verbaux,
soit - plus rarement comme but et technique
explicits de l'enseignement (apprendre se
taire, connatre en sachant), prsents dans
diffrentes poques culturelles.
Pour les temps modernes, tre enseignant
c'est avant tout savoir comment expliquer,
afficher clairement aux lves un contenu
particulier, clarifier et rsoudre
mthodiquement des tches d'enseignement,
selon une illusion rationaliste, prsente
Comenius, par la matrise de cet art
denseigner tous tout. cette pdagogie, un
peu mcanique, et les antiques ont su opposer
une pdagogie axe davantage sur le secret.
Analysant la question, un philosophe de
l'ducation remarque loin d'expliquer en
premier lieu, on percevait par curiosit, en
provoquant la ncessit de sens, sans jamais
rpondre de manire complte, de sorte que
chaque explication donne lieu un nouveau
secret; ne pdagogie qui permettait au disciple
toujours intress, conscient quil tait
indigne de savoir. Que dautre chose faisait
Socrate, dans les dialogues de Platon, quune
subtile pdagogie du secret ? Ou que faisait
Jsus, en face de ses aptres, rien quune
remarquable rhtorique du quasi-cach en
utilisant le langage allgorique ?
LAllgorie - par exemple - stimule le
plaisir d'apprendre partir d'un rouleau de
l'lve dans un tat conscient de l'ignorance.
La force didactique de lallgorie ne rside
pas dans sa transparence, mais dans son
nigme. Dans cette perspective, l'allgorie
pourrait avoir trois fonctions didactiques:
d'abord, elle cre la motivation de
lapprentissage (car initialement elle intrigue
et ensuite bouleverse et exige une rsolution),
puis dramatise (par personnification stimule
le public s'identifier aux personnages et
s'engager dans laction) et a une fonction
phatique (car elle facilite le contact et la
solidarit des orateurs). En tout cas, si
l'allgorie est considre comme ayant des
vertus didactiques, ce n'est pas parce quelle
permettrait de gagner du temps, mais, au
contraire, nous provoque le matriser, non
pas parce qu'elle permettrait de clarifier, mais
parce quelle tonne et invite connatre. A
une condition, toutefois, nous prvient Reboul
Olivier: "quelle ne soit pas trop bien faite et
trop transparente. Elle duque plus par ce
qu'elle cache, plutt que par ce qu'elle dit.
Do le paradoxe: la meilleure allgorie cest
celle qui n'est pas complte, qui garde une
inexactitude, une ouverture, une polysmie,
offrant de multiples interprtations. Juste
maintenant nous pourrions dire que cest
l'allgorie qui nous fait penser. "
En ce qui concerne le langage du corps,
Nicolas Grimaldi a indiqu qu'il emprunterait
la fois les notes du ralisme linguistique
et du nominalisme . En dpit de
l'apparence que l'intention du signifi
appartient au geste corporel, cependant, la
signification n'a pas toujours t inhrente au
signe. Paradoxalement, dans le langage du
corps, la parole tient moins du corps qui
188
parle , peru par des signes, mais plus
important encore, par la conscience de
rception qui fonde la signification. Les
gestes et les attitudes de l'autre sont un
discours implicite que la conscience interprte
et traduit dans un discours explicite. En ce
sens, le langage du corps est un mtalangage,
car il est un discours de la conscience sur un
discours qui appartient au corps d'un autre.
Parmi les variables qui pourrait diffrencier le
langage du corps de celui verbal, nous
pouvons invoquer les suivants: la continuit
(la communication verbale est discontinue,
alors que celle non verbale est permanente), le
contrle (la premire est contrle, la seconde
est plus inconsciente), le canal (la premire
est faite avec des mots, l'autre est multi canal),
la structure (la communication verbale est
fortement structur selon les rgles de la
grammaire, la communication non verbale
n'est pas effectue daprs une direction
prdtermine), l'acquisition (verbale par
des modalits formelles tels que l'cole; non
verbale - spontane, diffuse, travers l'espace
informel). En ce qui concerne les fonctions de
la communication non verbale, nous
pourrions suggrer que les indices non
verbaux peuvent tre complmentaires au
message verbal, rgulateurs du code verbal,
substitutifs des pices ou du message verbal
entier et tmoins pour ce qui est dit.
La communication non verbale se fait
travers plusieurs canaux:
a) paralangage (hauteur, ton, volume,
force);
b) le mouvement du corps:
- les emblmes - les mouvements qui
se traduisent directement par des mots, par
exemple le signe de la main de prendre
place;
- illustrateur - de montrer avec la main
la direction, la taille, etc;
- rgulateur - de se prparer couter
en levant les yeux, ragaillardir les oreilles;
- expositoire - rougir de honte;
- dadaptation complexe, non verbale,
relationnel, de serer la main, de saluer.
c) la typologie du corps (ectomorphe,
msomorphe, endomorphe);
 d) attractivit;
e) la parure du corps;
f) l'espace et la distance (comme
indicateurs de l'tat et de l'intimit);
g) le temps de la ralisation de la
transaction;
h) la touche.
En conclusion, la stratgie de
lexpression travers dune rhtorique du
non verbal, base sur la dissimulation
intentionnelle, stimule les structures
cognitives et imaginatives des lves et
peut se circonscrire - mme si cela semble
un paradoxe une mthodologie exige
par la pdagogie active.
Nous ne voulons pas laisser croire,
cependant, que nous annulons le rle de la
communication verbale par une apologie du
silence ou de la suppression de lexpression
dans l'ducation. Car autrement, donner du
crdit Confucius, qui a dit que celui qui
sait ne parle pas, et celui qui parle ne sait
pas et, par consquent, le sage pratique un
enseignement sans parole , on renoncerait
toute intention communicative.

Liste de rfrences bibliographiques:

Anderon, Peter Limajul trupului, Ed. Terra, traducere Liana Stan, Bucureti, 2007;
Dagenais, Bernard Profesia de relaionist, Ed. Polirom, 2002, traducere Anca-Magdalena
Frumuani;
Hartley, Mary Limbajul trupului la serviciu, traducere Daniela Mantale, Ed. Polirom,
2005;
Pnioar, Ioan-Ovidiu Comunicarea eficient, Ed. a III-a, Ed. Polirom, 2006;
Prun, Mihaela Comunicare i relaii publice, Note de curs, Pro Universitaria, Bucureti,
2006;
Rdulescu, Corina Comunicare i relaii publice, Editura Universitii Bucureti, 2005;
Toma, G i colectiv Tehnici de comunicare, Ed. Artprint, Bucureti, 1999;
Zmor, Pierre Comunicarea public, Ed. Institutul European, 2003 traducere de Mare
Samoil i Ion Ionescu;

189
 THE IMPORTANCE OF OPEN SOURCE
IN ROMANIAN EDUCATION

Assistant IOAN-COSMIN MIHAI

Police Faculty - A.I. Cuza Police Academy
Romania has become one important player in the international IT landscape, gaining
a solid reputation in this field. Rating top places among the new trends worldwide are
Linux, BSD and open-source software. This paper will present what open source
represents for Romanian education.
Keywords: IT landscape, open-source community, learning institutions,
Small Businesses, IT professionals, software piracy.
1. Introduction are attracted to other countries. Because of
Romania is one of the fast developing this, Romania loses its best men, its working
European countries, with a lot of room to and development force.
grow in all directions and also with the By losing these people, we are losing of
potential to do it. Since the dramatic a lot of know-how. Universities and school
changes faced by the country in the last institutions are most often in need for
days of the 80s, Romania has become one specialists, including Linux/BSD/open-
important player in the international IT source specialists and, as a result, in this
landscape, gaining a solid reputation in this field of great importance for the students
field. Its explosive development, supported there are not many teachers to train future
by a valuable educational system providing generations of specialists. Without these
many top professionals with a solid people, the start is more difficult, the
knowledge foundation, has attracted several acceptance of open-source among students
big players on the global IT market to is lower and a development in this direction
Romania. And the fact that labor here was is becoming more difficult for the
and still is cheap was a big plus, not to Romanian IT scene.
forget low prices in general. We are also facing social related
The Romanian IT industry tries to problems: life in Romania is in many
satisfy a rising demand for professionals aspects more stressful than life in other
and higher diversity in the fields where they countries, leaving people with less time and
are needed. We must keep up now with power for activities other than the daily
new technologies, trends and developments necessary ones. As a consequence, people
worldwide. And rating top places among are less motivated to be part of emerging
these new trends worldwide are Linux, phenomena and communities like the
BSD and open-source software. Romanian LUGs, FUGs or open source interested
development in this direction seems to exist groups.
and to be absent, depending on the point of As a direct result of these problems and
view but one thing is very clear: in our social realities, the potential Romanian
country, theres the need for such open-source community is narrowed down
technologies in all fields. a lot. Nevertheless, there are also a lot of
2. Open-Source for Romania people not obeying these general patterns,
2.1. Difficulties and Their Consequences. and these make up our growing
One of the main problems of the Romanian communities. Even more, lots of people are
IT world is the fact that our top professionals observing these problems in the Romanian
190
space and taking initiative, as will be seen
later in this article [1], [2].
2.2. Contradictions. Romania is among
the newest members of the European Union
and, as such, has to meet high standards and
improve in many ways. Software piracy has
for long been an issue, projecting a negative
image of our country.
Romanian institutions and people are
struggling to resolve this issue nowadays;
however this is not an easy task, but rather
a slow process that involves investments
which are enormous when compared to the
financial reality in Romania. As such, one
would expect that free-of-cost software
should begin to quickly strengthen its
position in Romania, being increasingly
used in users homes as well as in public
institutions, schools, universities etc.
Especially the latter have to spend huge
amounts of money for stepping into legality.
They are engaging now in the process of
buying most of the software. It would be
only natural that, considering the huge costs,
a lot of these entities would try to move to
open-source rather than buy expensive
software, in fields where this is possible
without having a big impact on educational
and professional performances. For some of
them, open-source software would also bring
important benefits, as they could directly
influence its development and have
customized solutions ready for their needs.
This seems not to be the case in most of
the situations, with few exceptions.
Important software-using entities prefer to
invest huge amounts of money in proprietary
software that they cannot influence in its
development, and that sometimes needs new
hardware and man-hours of work and
support. This is a phenomenon that would
need further investigation, and the authors
cannot make any statement as to what
factors are favoring this contradiction
between reality and common sense in the
actual Romanian IT space.
2.3. The Positive Part. When looking at
small companies, the cost problem seems to
have the expected effect in some cases. A
191
lot of small Romanian ITrelated
companies have an advantage through the
fact that Romanian labor is cheap compared
to other countries. This is one of the things
that keep them competitive. Now, the
situation is changing, salaries are rising, so
the costs for these companies are also
rising. The legal environment is also
changing, and they are pursued to buy
licenses or not use the software illegally
anymore. There is no direct solution to the
increase of salaries, but something can be
done about the software costs.
As a result these small and medium
companies are willing to invest or move to
open-source platforms and software. The fact
that most of them were already using free Linux
distributions on servers is a plus, because they
already trust in these solutions and have to some
degree experience with them.
This is a positive aspect for the Linux
and open-source community, as these
companies are often motivated to support
the common goals, especially when
employees are members of the
communities. They form an important
knowledge and resource base for the
Romanian IT scene, as they are also helping
in keeping trained and experienced people
in the country, thus providing a base for the
coming generations of IT professionals that
can develop on this ground and learn from
these people.
Another important category of users
taking advantage of open-source are home
users. They are becoming more
preoccupied with the legality of their
software, and recent measures taken by
authorities [3] have a big impact on
software piracy in Romania. Open-source
software is more often the choice of users
in the last years, a trend that can easily be
observed on forums.
3. Open-Source in Universities and
learning institutions.
As already mentioned, one of the main
problems in the Romanian IT landscape is
the fact that valuable professionals are lost
to foreign countries. Unfortunately this is
the case with open-source specialists just as
well. It has become increasingly difficult
for universities in Romania, let alone
schools, to find valuable professionals that
can contribute to the educational system
and help improve it with their new ideas
and creativity. It seems like Romanian
universities are lacking open-source experts
more than anything else. This might also be
an outcome of the fact that people working
in the Romanian academic environment are
often overwhelmed by too much work for
too less money, leaving them little time for
areas like open-source. And thats why
young students that work in this field and
are interested in these things often choose
not to stay in an academic environment that
just isnt appealing to them, as they can
easily get well paid jobs in the IT industry.
As such, open-source in Romanian
universities is often a subject that is not
enough taken care of. The universities
could benefit tremendously from working
and teaching more on open-source, as they
could also start developing open-source
projects and applications to meet their
needs, and on a low budget. Furthermore,
they could save on hardware, as Linux and
various flavors of BSD can often run on
less modern hardware than needed for
Windows and the like. In specialized
faculties (like Computer Science) there are
ongoing efforts made in this direction, and
students attend courses and projects dealing
with Linux, but more often it is the case
that there is emphasis on Unix, because
important partner companies use Unix and
are interested in teaching some specific
flavor of Unix to students that might
become future employees. This is a good
start, but more accent on open-source in
general would probably give students better
chances in their future careers, or just allow
them to use these systems for own projects
on a low budget, while still remaining legal.
Especially for non-IT related study
fields this might be a great benefit, but
unfortunately in most cases these faculties
or universities have no courses teaching
192
students anything in this direction. And this
even though there are open-source software
solutions available for scientists from
different fields of research, from chemistry
to medicine, whereas proprietary software
in these fields costs huge amounts of
money.
Still, some movement takes place in this
direction, and projects like ROSLIMS
(Romanian Simple Linux for Medical
Students) [4] are welcome on the Romanian
Linux scene. Probably many more such
initiatives would emerge, if there werent
the older teachers that often dont salute
new and innovative technologies. Open-
source is often seen as an underground
movement that doesnt need to be treated in
a serious way, ignoring the progress made
and the possible advantages.
Even though the lack of qualified open-
source experienced and interested teachers
is a reality, there are still projects going on
in this field. There is growing interest on
open-source in Romanian universities, and
young teachers are trying to bring fresh and
interesting things to the students [5].
Of big importance in the Linux scene of
Romania is also the RoEdu Romanian
Education Network [7]. On its servers,
many important open-source projects are
mirrored, and a number of Romanian
projects have found support, resources and
a home in many cases [8].
4. Open-Source in Public Institutions
Romanian public institutions also
struggle for legal software, spending huge
amounts of money on this. Still the interest
for open-source in Romanian public
institutions and government is very low. A
change is not simple, mainly because of the
lack of experience with other OSes than
MS Windows.
Ignorance and commodity account for a
lot of wrong concepts in this area, and an
important problem is the personnel: mostly
untrained and with no idea about
alternatives.
Still, we consider that efforts should be
made in this direction, as the public sector
could benefit a lot from open-source
alternatives. As theres a lack of qualified
personnel, these people still need to be
trained in the future. A change to open-
source solutions would thus not be such a
big change at this stage, and these people
could benefit from the excellent
documentation and learning resources,
nowadays readily and freely available for
free, even in Romania. A short process of
getting familiar with these things would be
necessary, but the advantages it would
bring could outgrow this.
5. Open-Source for Small Businesses
and Home Users
As software piracy is no longer an
alternative, small IT companies are the
most likely to use open-source software in
Romania. This is because they have to stay
competitive, and reducing software costs is
effective in reducing overall costs.
Small IT companies often employ
people that are interested in open source,
and which often contribute to the
community. Some of these companies also
develop own open-source applications, and
often provide the community with
resources: bandwidth, web space, even
dedicated employees [9] [10]. Such
companies account for a lot of workplaces
in Romania, and they have an increasing
demand for open-source experienced
people, and learning institutions should be
aware of this.
These companies also account for much
of the learning that is done on open-source
in Romania, by training their employees.
Many of these employees join the
communities, contributing with
documentation and various resources.
Having learned themselves recently the
same things, the learning resources they
create are usually of excellent quality and
very efficient, as they use the workers point
of view. Thus the community itself gets to
be an important part of this e-learning
process, taking and giving as needed.
A very important component of the
Romanian open-source scene is the home
193
users. They account for a very important
part of the work in this area, for most of the
contributions and are starting most projects.
Romania has many talented people,
summing up to a huge potential in all areas
of open-source.
There are important efforts going on,
started by individuals living in Romania or
abroad. One of the important ones seems to
be the Romanian Open Source and Free
Software Initiative [1] ROSI.
Important for the learning process are
the initiatives of committed individuals:
information sites [11], or other forms of
voluntary work - one good example is the
distribution of Linux distributions free of
charge [12]. These actions are an important
catalyst for the Romanian scene and are
helping spread the use of open-source in
Romania for inexperienced users, helping
and making the learning and e-learning
process easier and more accessible.
Learning institutions should also
concentrate more on open-source
specifically for the benefit of their students
seen as home users. It is a fact that the
resources of learning institutions in
Romania are not covering all needs, and
thus students need to work on their own
computers on projects, homework etc. As
students dont have the financial resources
to buy proprietary software, they end up
either using illegal software, or crowding
universities to work on computers that have
the needed software installed. Using open-
source software where possible would be an
efficient workaround to this problem,
providing students with more options. This
would also provide the ones interested with
more learning resources (usually also free),
and the really interested ones could
contribute to the development of this
software, thus again extending their
knowledge, as they would get more familiar
with the domain when developing software
for it.
6. Communities and Projects
As already mentioned, there are more
and more emerging communities in the
Romanian Linux and open-source
landscape. LUGs are somehow active, and
events are organized, trying to bring Linux
closer to the inexperienced user. The
TMLUG [13] is one of the most active,
having meetings in the rooms of the
Politehnica University of Timisoara and
organizing various events, providing
support and resources to new and old users.
Many of the LUGs have connections to the
academic area, thus proving that Romanian
education and eeducation could easily take
advantage of these communities.
Most major Linux distributions and
open-source projects have Romanian pages,
versions and communities, providing
support, news, articles and, (important!)
tutorials in Romanian.
There are also a number of bigger online
Linux communities [14] [15] [16] [17],
providing forum areas and various other
services like posting articles, tutorials etc.
Probably the biggest, Linux360 [14], had
over 152.000 posts in the forums area and
around 5200 users at the time of writing
this article. Unfortunately most of these
online communities seem to have had their
best moments in 2004-2005 and are less
active today, probably because interest has
moved to the distribution sites in
Romanian, that provide more and fresh
content, integrating tutorials, news and
forums.
7. Conclusions
There seems to be much going on in the
open-source scene in Romania, but mostly
on a superficial level. At least for a country
with an IT potential - and needs - like
Romania, this means barely touching the
possibilities. Hopefully the Romanian
open-source community will strengthen and
overcome all problems in future, and be
able to provide valuable people that can
also teach new generations of coming IT
professionals, introducing more open-
source into universities curricula and thus
providing the base for a better and wider
Romanian development and use of open-
source at all levels.
And hopefully Romania will take
advantage of its possibilities in more areas,
and especially Romanian education will
understand how open-source can benefit the
learning institutions, as well as the people
learning, as in open source everything you
give usually comes back with an even
greater value.

References:

[1] http://www.rosi.ro Romanian Open-Source

[2] http://www.eliberatica.ro
[3] http://www.bsa.org/romania/antipiracy/piracy-and-the-law.cfm
[4] http://www.umftgm.ro/roslims/index.html - ROSLIMS
[5] http://www.timsoft.ro/weblog/
[6] http://www.uvvg.ro/lvle/
[7] http://www.roedu.net
[8] http://planet.roedu.net
[9] http://www.romanianoffice.ro
[10] http://linux.tfmgroup.ro
[11] http://www.packages.ro
[12] http://linux.hangar.ro
[13] http://www.tmlug.ro
[14] http://www.linux360.ro
[15] http://www.unixro.net
[16] http://www.myl.ro
[17] http://www.linux.ro

194
 CONSIDRATIONS SUR LA COMMUNICATION PUBLIQUE
Development of communication, especially that undertaken by the public service is
the answer to the growing complexity of our society. Therefore, public communication
can help achieve the public interest while it meets and searches for meaning and
relationship needs.
Index de mots-cls: communication, metteur, message, organisation, rcepteur
La communication dans le domaine
publique
On communique partout. Le champ de la
communication est vaste, mme dans le cas
o le mot a lacception dchange
dinformations entre une personne, une
organisation ou une collectivit, considres
comme metteurs et rcepteurs, quels que
soient les supports et les manires o lon
ralise cet change. Toute activit humaine,
individuelle, collective et sociale suppose
des informations mises, reues et analyses.
Il existe dans la vie sociale une
communication naturelle qui accomplit la
fonction de liant social. La communication
sociale, envisage dans cet article, est une
communication formelle qui noccupe pas
tout le champ de la communication
naturelle se ralisant sur un territoire. Elle
est lie la mise en uvre des rgles
tablies par la socit.
Le domaine de la communication
publique est dfinit par la lgitimit de
lintrt gnral. Il dpasse dans une grande
mesure le domaine publique, considr en
sens juridique. De mme, la communication
publique ne doit pas tre assimile la
communication institutionnelle.
Les attributions des pouvoirs publics et les
missions des services publics relvent des
dispositions constitutionnelles, lgales et
rglementaires propres tout tat de droit. La
communication publique accompagne toute
application de la rgle, le dveloppement de
toute procdure, la prise de toute dcision
publique. Les messages sont,
Lecteur univ. dr. LUCIAN PAHONU
thortiquement, mis, reus et traits par les
institutions publiques, voire vots lgalement.
Par consquent, ce type de
communication se situe ncessairement
dans la zone publique, sous les influences
du citoyen. Ses informations, de rares
exceptions, mergent du domaine public, en
sassociant aussi avec la transparence du
niveau dcisionnel.
Si les finalits de la communication
publique ne sont pas rellement dissocies
de celles des institutions publiques, ses
fonctions sont dinformer (mettre au jour,
rendre compte et mettre en valeur), de
contribuer au bon fonctionnement des
relations sociales (le sentiment
dappartenance collective, la prise en
considration du citoyen comme acteur) et
daccompagner les changements des
comportements et de lorganisation sociale.
La communication publique cest la
communication formelle qui conduit
lchange et la distribution dinformations
dutilit publique et au maintien des
relations sociales, dont la responsabilit
revient aux institutions publiques.
Le dveloppement de la communication,
spcialement celle droule par le service
publique, est la rponse la complexit
croissante de notre socit. Donc, la
communication publique facilite
laccomplissement de lintrt gnral qui
rsulte des difficiles ngociations entre les
intrts individuels et ceux catgoriaux.
Elle rpond aussi la recherche de
signification et au besoin de relation.
195
 Donner du sens cest un attribut du
pouvoir. Cest lenjeu de la communication
publique. Lespace publique est menac sans
cesse par la manipulation faite par tout
acteur ou mdias et tout aprs on perd de vue
lintrt gnral et les droits de lhomme.
La nature des messages des pouvoirs
et des services publics
tre le reprsentant de lintrt gnral
cest un fait qui touche profondment la
nature des messages de la communication
publique. Les informations dutilit
publique sont souvent complexes et les
changes dinformations difficiles. Cest
parce que lintrt gnral rsulte dun
compromis de lintrt des individus et des
groupements de la socit, qui acceptent
lexistence du contrat social, dans le cadre
duquel naissent les lois, les rglements et la
jurisprudence. Lintrt gnral reste
toujours ouvert aux dbats et au recours des
individus ou des minorits affects dune
dcision publique.
Les messages publiques sont complexes,
parce quils ont lobjectif de contribuer aux
activits de rglementation, de protection
ou de prvention qui sont la charge des
pouvoirs publics. En toute situation, le
message public fait rfrence la lgitimit
et informe sur lopportunit dune
dmarche, sur une procdure suivre, sur
les informations fournir, sur les
documents remplir, visant lintrt
collectif ralis de cette manire ou les
sanctions et les mauvaises consquences, au
cas ou lintrt collectif est nglig.
La communication publique suit
quatre catgories de consquences:
- la modernisation
fonctionnement
administrations (cest surtout les
cas des dispositifs de relations
publiques ou des systmes de
prsentation et de transmission de
linformation);
- certaines campagnes fixent comme
objectif la production de certains
changes de comportement;
- pour certaines administrations ou
organisations publiques, le
principal souci est de sassurer, par
communication, une image
moderne;
- la recherche de ladhsion des
citoyens concernant un certain
problme, par des actions de
sensibilisation.
La diversit des institutions publiques
mettrices
Le domaine de la communication
publique se dfinit par la lgitimit de
lintrt gnral. Les attributions des
pouvoirs publics et les missions des
services publics relvent des dispositions
constitutionnels, lgales et des
rglementations propres tout tat de droit.
Donc, la communication publique
accompagne toute application de la rgle, le
dveloppement de toute procdure, la prise
de toute dcision publique. Les messages
sont mis et reus par les institutions
publiques de la mme manire que les lois
ou les dcisions de justice sont votes.
Du besoin, peut-tre, de compenser les
tendances de forte centralisation tatique,
lorganisation publique a t
continuellement tente de se diffrencier.
Les structures se sont multiplies, les
services spcialiss ont prolifrs, de
nouvelles agences ont t cres, et les
rglementations juridiques ont soutenu le
dmembrement de ladministration
publique centrale.
Le besoin de dcentralisation a
dtermin que les pouvoirs sexercent dans
la proximit du citoyen, sans le contrle
pralable de ltat. Les services publics se
du sont approchs davantage du citoyen et les
des dcisions publiques ont t mieux partages
dans le territoire, de manire que les
autorits publiques deviennent facilement
identifiables et accroches au citoyen.
La complexit de la relation avec le
citoyen rcepteur
Dans le cadre de la communication
publique, le citoyen est un interlocuteur
ambivalent, respectant et supportant
lautorit des institutions publiques. En
196
mme temps, il proteste constamment contre
le manque dinformation ou contre les
messages confus survenant du milieu public.
Si le citoyen critique lexpression
bureaucratique des fonctionnaires, il manifeste
pourtant un fort attachement pour le service
public. Pour longtemps une ide accepte par
tout le monde, concernant la perception
ngative du citoyen sur le fonctionnaire
publique et sur ses actions, a circul.
Ltat sest rendu compte de la
ncessit de la communication, de la
rception et voire du dialogue avec ceux
qui, jusque l, ne reprsentaient quune
masse amorphe dindividus sollicitant la
cration et le respect de certains principes
et rgles peu connus.
prsent, le citoyen est considr et
trait comme le client du service public, la
satisfaction de ses besoins et lanticipation
de ses prtentions tant tout fait
ncessaires. Si ces thories, concernant la
relation client-fournisseur, appliques dans
le service public, avaient quelques effets
bnfiques, elles avaient prouv aussi leurs
limites.
Dune part, dans cette relation, le
fournisseur nest pas en concurrence avec
dautres fournisseurs et, de mme, il nest
pas lu de manire ouverte par le client.
Dune autre part, le client est, en mme
temps, contribuable et lecteur. Comme
lecteur, le bnficiaire du service public
dtient une partie du pouvoir de dcision
qui revient au fournisseur lu et duquel
rsulte la lgitimit de la politique et des
dcisions du secteur public. De ce statut de
coparticipant la dcision dcoule en fait
lambivalence. La communication ralise
par linstitution publique suppose un
change avec le rcepteur, qui est, plus ou
moins, metteur aussi et qui tablit
rellement la communication.
Les principes gnraux et pratiques
de la communication publique
a) Les finalits de la communication
et les moyens de communication
Les pratiques de la communication
publique ne peuvent pas se circonscrire la
dfinition rendue par les professionnels aux
modalits de communication publique. En
197
gnral, elles rpondent difficilement aux
besoins, dj analyss, de rappel de lintrt
collectif, dajustement des messages aux
proccupations spciales des citoyens et des
institutions. Lexcs de vices attribus aux
formes publicitaires ou mdiatiques de la
communication fait se perdre de vue les
fonctions de la communication publique,
qui, dans une dmocratie, sont informatives
et de respect du dbat.
b) Les classifications des registres de
communication
Cest le principe applicable trois
types diffrents de communication:
- dinformation et dexplication, sous-
entendus la lgitimit du message public,
soit quil sagit des informations concernant
le fonctionnement pratique des institutions,
des informations que les services sont obligs
de fournir aux citoyens, soit quil sagit des
rgles qui doit tre rappeles sans cesse;
- de promotion ou de valorisation des
institutions publiques et de leurs services
rendus au public, et des sujets ou des
recommandations qui relvent ce qui tait
convenu de considrer comme dimportantes
causes sociales;
- de discussion ou de proposition au dbat
des projets de changement constitutionnel, de
choix de socits et des offres politiques.
Suite leur lgitimit diffrente, soit de
service public, soit politique, ces types de
communications se fondent sur les degrs
approximativement dcroissants du
consensus social.
c) Les conditions de la
communication publique
Parce quelle doit sa lgitimit au
rcepteur, la communication publique est
une relle communication, suite au fait
quelle est pratique dans les deux sens
avec le citoyen actif, dune part, et, dautre
part, parce quelle peut tre considre
authentique. La satisfaction de ces deux
conditions est fonde sur lexistence dune
bonne relation entre les institutions
publiques et leurs utilisateurs. En affirmant
dune manire trs claire lidentit, ils
partagent la responsabilit de la qualit de
la relation. Cest aux facteurs de dcision
politique que revient linitiative
dinformation et cest eux qui doivent
atteindre ce but de la manire que la
communication soutienne le processus
dcisionnel. La cration de la relation
dpend aussi de la prise en considration
des interlocuteurs des services publics, plus
prcisment de leur accueil, de la prise en
conscience de leurs problmes effectifs
soulevs, de leur traitement diffrenci, de
la facilitation de lchange, de lacceptation
du dialogue, etc.
Une fois tablies les conditions de la
communication entre lagent du service
public ou lmetteur institutionnel et le
citoyen, le langage ou le cadre du message
peut tre adapt, les procdures peuvent
tre simplifies, la prsentation peut tre
limite au cas trait, et les spcialistes et les
acteurs qui ont de lautorit dcisionnelle
aient, eux aussi, le droit la rplique.
Ces conditions pratiques daccs
linformation rpondent lexigence de
transparence des actes publics. Ce qui est
important ce nest pas seulement le fait que
les informations publiques doivent tre
mises la disposition du citoyen, mai aussi
que les dcisions doivent tre motives et
les citoyens consults sur tous les projets.
Dans le caractre ambivalent invitable
et essentiel du citoyen quant aux
institutions publiques, aussi comme dans
lutilit publique des messages publics on
retrouve les fondements de lobligation de
la communication publique.
Les formes de la communication
publique
La communication publique a, dans la
pratique, de diffrentes formes, lies aux
certains buts prcis, parce quelles
impliquent, dans de certains degrs, les
besoins de communications. Certains dentre
ces buts ont comme objectif linformation.
Cest retenir cinq catgories, selon
limportance de lobligation des institutions
publiques:
- de mettre linformation la disposition
du public;
- dtablir des relations et de dialoguer,
pour accomplir le rle qui revient aux
pouvoirs publics, doffrir avec prcision le
service attendu;
198
- de prsenter et de promouvoir chacun
des services mis disposition par
ladministration aux collectivits
territoriales et aux tablissements publics;
- de faire connues les institutions par la
manire de la ralisation de la
communication intrieure et extrieure aussi;
- enfin, de drouler des campagnes,
voire des activits informatives pour le
bnfice de lintrt gnral.
Il devrait tre attach ces cinq registres
celui de la communication des dbats
publics qui accompagnent les prises de
dcisions ou celui qui dcoule de la
pratique politique.
a) La mise disposition des
informations publiques.
partir de lAntiquit mme, tout
pouvoir politique civilis accumule des
informations comparables sa construction
et son dveloppement: cadastre, tat civil,
codes, recensements, conventions, dcisions
politiques, des indices sur la situation
militaire, conomique et sociale.
Au service public revient lobligation de
faire connues ces informations, en tous cas
de fournir sans cesse le cadre lgal et les
procdures, de rendre compte des actes
dutilit publique.
Lobligation de communiquer et de
diffuser linformation est assure par
affichage, gazettes, bulletins officiels,
recueils dactes administratifs, publication
des tablissements publics spcialiss.
Laccs linformation publique cest
avant tout un droit.
La commercialisation des informations
publiques. Lobligation de transmettre et de
mettre la disposition du citoyen et aux
institutions des informations recueillies et
analyses par les institutions publiques a
des consquences publiques.
b) La relation des services publics
aves les utilisateurs.
La mise la disposition de linformation
ou laccs linformation nest pas une
solution convenable pour la complexit des
textes et des procdures et ni pour les
frquentes situations difficiles pour les
citoyens. Le dialogue, voire lassistance,
souvent imposs, supposent viter une
relation entre le service public et lutilisateur.
Laccueil et lorientation de
lutilisateur. La fonction daccueil
commence avec la mise en vidence,
lidentification des moyens (bote de
lettres) et des locations, et finit par les
rponses tlphoniques ou crites.
Lcoute. Lcoute individuelle par un
agent qui se prsente (le nom et sa fonction
prcise), permet de rendre unique la
rponse et de traiter le rclamant et le
contenu prcis sa question.
Lcoute est collective le cas o il est
ncessaire de connatre les besoins dun
quartier, ceux dune certaine catgorie
socioprofessionnelle ou dge.
Les moyens de consultation des citoyens
et dtude de leurs opinions sont nombreux
et bien connus.
La pratique des sondages sest rpandue
beaucoup, le plus souvent, ils sont raliss
au niveau national.
Les enqutes qualitatives, les dialogues
de profondeur sont souvent mieux adaptes
aux subtilits du travail avec le public.
Le dialogue est un moyen essentiel
dvaluation des services publics.
La communication de la relation. La
slection des informations publiques qui
sont, un moment donn, utiles au citoyen,
et la diffrence ncessaire des messages
implique des changes mutuels.
c) La promotion des services rendus
au public.
La promotion est un exercice classique,
mieux connu par les professionnels,
spcialement par ceux qui travaillent dans
la publicit ou dans les relations publiques
et qui sont tents de dfendre dautres
pratiques de la communication.
d) La campagne dinformation
dintrt gnral.
Si lensemble de la communication
publique provient de lintrt gnral, les
campagnes qui vhiculent les messages
caractre publique et civique sont droules
directement dans lintrt public.
e) La valorisation des institutions
publiques.
La cinquime forme de communication
du service public cest la communication
institutionnelle.
La communication institutionnelle a
comme but la prsentation de lorganisme de
rendre compte de lensemble de ses activits,
mais aussi la promotion de lidentit et de
limage et, plus gnral, daccompagner la
politique de linstitution. Il sagit dune
communication globale qui ne peut pas tre
srieusement contrle, sauf si elle prend
la charge dune manire adquate les
proccupations de la communication avec
lextrieur et celles de la communication
intrieure en mme temps.

Liste des rfrences bibliographiques:

Alexandru, I Servicii publice, Editura Economic, Bucureti, 2000;
Alexandru, I Structuri, mecanisme i instituii administrative, Editura Sylvi, 1996;
Hartley, Mary Limbajul trupului la serviciu, traducere Daniela Mantale, Ed. Polirom, 2005;
Popesc, Luminia-Gabriela Comunicarea n administraia public, Ed. a 2-a, Editura
Economic, Bucureti, 2007;
Rdulescu, Corina Comunicare i relaii publice, Editura Universitii Bucureti, 2005;
Rdulescu, I Comunicare i protocol, Suport de curs, Cartea Stud., Bucureti, 2007;
Stanciu, Sica Marketingul n instituiile publice, Cartea Stud., Bucureti, 2007;
Stanciu, Sica i Valentin-Codrin Ionescu Managementul instituiilor publice, Cartea
Univ., Bucureti, 2006;

199
 FORMALISME ET STROTYPIE EN EXPRESSION JURIDIQUE

Assist. univ. STANCU LIGIA CRISTINA MARIA

Assist. univ.drd. NIU AMALIA
Acadmie de Police Alexandru Ioan Cuza
Chaire police de frontire, prparation Schengen et Langues

Aborder la question de la strotypie et du formalisme en expression juridique permet

de dcrire des phnomnes relativement htrognes en smantique linguistique.
Sinterroger sur le strotype oblige repenser le lien dialectique entre stabilit et
variation du sens. Un des buts de cette communication est dexaminer si, derrire cette
diversit formelle, il y a quelques avantages relier, travers la notion de strotypie,
ces diffrents phnomnes, ou si en dfinitive, la fortune du terme strotype
obscurcit plutt quelle nclaire les phnomnes en question, dautant que pour
compliquer encore un peu les choses, on le trouve utilis galement en concurrence avec
prototype . Lorsquon parle de strotypie en linguistique, on a parfois tendance
privilgier le niveau lexical ou phrastique (les locutions, les expressions figes etc.).
Cependant, un certain nombre de phnomnes de strotypie linguistique concernent
plus largement la syntaxe du discours. On peut en prendre pour exemple ce que lon a
parfois appel la langue de bois. Lexpression langue de bois est utilise pour
caractriser des discours perus comme figs et rptitifs, comme la langue des hauts
fonctionnaires rdigeant des notes administratives. Consacr aux rapports que le
strotype entretient avec lexpression juridique, larticle prend comme point de mire la
nature et les ressources du strotype en tant que phnomne textuel, son environnement
conceptuel, ses formes et ses finalits dinscription dans le rcit. Sattachant identifier
des ressorts ou des mcanismes textuels relevant de la strotypie comme phnomne
gnral de lexpression juridique, tudier la manire dont le texte se construit sur des
constituants strotypiques (formels ou idologiques), lintervention saisit les diverses
facettes de cette notion, la met lpreuve en explorant sa plurivocit fonctionnelle et
smantique.
Index de mots-cls: discours juridique, strotype, jargon professionnel,
langue de bois, communication.
Introduction fondement dans le niveau de formation des
Le discours juridique est considr comme acteurs judiciaires, quils soient avocats ou
un discours fortement spcialis, caractris magistrats. Le discours jurisprudentiel,
par un emploi particulier des termes de la entendu comme celui contenu dans les
langue courante. Cette particularit demploi dcisions de justice, nchappe pas cette
de la langue confre au discours juridique le logique dans la mesure o il est le lieu de la
statut dun discours au registre de langue rencontre entre le discours juridique
soutenu. doctrinal, le discours lgislatif, le discours
Le discours juridique en franais juridique procdural et le discours juridique
sy illustre particulirement en raison des dfensif. Ainsi, les strotypes du langage
formes anciennes de la langue franaise que juridique, expressions du vocabulaire
lon y retrouve. Par ailleurs, ce caractre familier des juristes, relvent dune
soutenu du discours juridique trouve son culture juridique et ne suscitent pas
200
moins difficults et hsitations ds lors
quon tente de les cerner plus prcisment.
Il est important de savoir ce quon entend
par discours juridique et de quelle
manire il convient de laborder. Alors,
lanalyse du discours juridique nous fait
pntrer au cur mme de la structure
intellectuelle des juristes. Or, dans la masse
des documents qui disent le droit, parlent de
droit, ou sur le droit, les juristes ne
reconnaissent comme tant juridiques
que ceux qui rpondent au critre de la
juridicit , critre variable dans des limites
cependant assez troites. En voquant le
caractre normatif de la rgle juridique, le
fait quelle soit pose selon certaines formes,
et la sanction que lui apporte ltat au nom
du dtenteur du pouvoir de crer du droit, on
donne assez de prcisions pour tracer les
contours des noncs qui relvent du droit.
Il est tout--fait ncessaire dintgrer aux
mthodes et aux constructions propres lart
du juriste une rflexion sur limportance de
la dimension linguistique du droit et de
lactivit judiciaire. Cette approche insiste en
particulier sur limportance de la langue et
des symboles dcoder, pour comprendre
une culture juridique, les valeurs et les
croyances dune socit.
Lhistoire montre en effet que le monde
juridique et judiciaire, dans la diversit de
ses expressions et de ses ralisations, ne
sexprime pas de manire isole, cest--dire
comme un produit culturel affranchi de toute
influence extrieure. Certes, des processus
de transferts imposs ou dchanges plus ou
moins volontaires et conscients sont connus
et les historiens ont depuis longtemps tudi
certains ramnagements et rinterprtations
de ces transferts ou importations juridiques
et judiciaires tout comme les modifications
que ces nouveaux modles ont subies en
fonction des impratifs politiques, sociaux et
conomiques.
Toutefois, en matire dhistoire du droit,
les priodes pour lesquelles sont identifis
de tels changes et transferts comme les
domaines dans lesquels ils sexpriment
semblent figs et strotyps. A en croire
201
lhistoriographie, il y aurait eu deux
grandes phases dinteraction et dchange
entre modles juridiques et judiciaires:
dabord aux XIe et XIIe sicles loccasion
de la redcouverte du droit romain, dont la
rception, mme si elle fut trs variable
selon les lieux, influencera profondment la
culture juridique en Europe et au-del de
lancien continent; ensuite la Rvolution et
lEmpire dont luvre codificatrice fournira
une source d inspiration pour de
nombreux pays en Europe et en Amrique.
En revanche, lhistoriographie voque
rarement la circulation de la littrature comme
facteur de diffusion de la culture juridique. Le
rle du livre indpendamment des genres de
littrature juridique (collections de lois et
ordonnances, coutumiers, recueils imprims
de jurisprudence, doctrine savante et
coutumire) et de la langue est tudi
principalement en Europe pour la priode qui
stend entre le Moyen ge et la Rvolution,
les auteurs ayant souvent pris pour point de
dpart de leur rflexion les crits dun juriste
ayant marqu de son empreinte lhistoire du
droit de son pays.
Cest incontestablement en raison de
son approche tatique les Temps
Modernes tant considrs comme une
priode dmergence et de consolidation
des tats nationaux que les rares tudes
menes dans une perspective comparative
sexpriment en termes de frontires ou
de chocs entre cultures juridiques (en
particulier entre modles continentaux et
anglo-saxon).
Il suffit pourtant douvrir nimporte quel
ouvrage juridique dit entre le XVIe et le
XVIIIe sicle pour constater que les auteurs
citent une littrature juridique abondante et
rsolument internationale. Il nest par
ailleurs pas rare de trouver dans la pratique
judiciaire des dcisions trangres
cites titre de prcdent. Ltude de la
diffusion de cette littrature juridique
quon peut considrer comme une
expression des interactions entre modles
juridiques et comme vecteur des influences
transfrontalires de sources juridiques
faonnes lorigine dans un contexte
strictement tatique constitue une
mine dinformations et en mme temps un
sujet de rflexion.
Elle soulve dabord la question politique
du particularisme juridique, terme qui
renvoie au contraire un systme contraint
dadapter son hritage historique une
nouvelle situation politique et juridique et
donc ouvert une coexistence, voire un
mtissage de droits de nature et dorigines
diffrentes. La circulation de la littrature
juridique tudie dans le contexte de
lEurope des Temps modernes est galement
riche denseignements sur des questions
extrmement diverses qui ont comme point
commun davoir contribu ou influenc la
culture juridique dune rgion, dun pays voire
dun continent un moment donn.
On peut penser la formation
universitaire et professionnelle des praticiens
du droit et des auteurs de doctrine; au rle
encore mconnu des imprimeurs et libraires et
la place du march international du livre;
la Rforme et limportance de certains
ouvrages ou encore aux raisons qui ont
pouss juges et avocats considrer tel auteur
tranger et non tel autre comme autorit.
Valeur juridique des strotypes
La problmatique de la juridicit dun
terme ou dun discours se pose toujours en
contexte. Il est vrai, ltude du vocabulaire
juridique montre quil existe des termes
appartenant exclusivement au langage
juridique, et dautres que lon emploie aussi
bien dans le langage juridique que dans le
langage commun. Ds lors, il se pose la
question de savoir quand est-ce quun
discours est dit juridique ou alors, a une
valeur juridique. La juridicit dun
discours, dune manire gnrale, dpend
de ses circonstances de production, de son
metteur et du rcepteur. Une autre
prcision faire est la relation qui existe
entre le vocabulaire juridique et le discours
juridique. Cornu prcise cet effet:
Il peut y avoir discours juridique sans
vocabulaire juridique. Un discours peut tre
juridique mme sil nutilise aucun terme
202
dappartenance juridique exclusive (ex.
Tmoins, levez-vous ). Il peut tre
juridique mme sil nutilise aucun terme
juridique ( Faites vacuer la salle ) []
Un discours peut tre dit juridique soit,
directement, parce quil tablit ou dit le
droit, soit, plus gnralement, parce quil
concourt la ralisation du droit [] Il
ressort de l que le caractre juridique tient
la finalit du message: est juridique tout
message qui tend ltablissement ou
lapplication des normes de droit .
Certains sociolinguistes ont montr que
ladoption dun jargon professionnel ou
dune langue de bois ntait pas seulement
la consquence dune dgradation du
langage vivant, mais quil tait galement
un moyen pour un locuteur, mme non
lgitime, dtre identifi comme
appartenant une communaut linguistique
donne. La strotypie est donc relie la
question de lidentit. Ltude de la langue
de bois peut tre envisage, en fonction du
sens quon donne cette expression dans
deux directions:
- ltude des discours de propagande ou
contenu idologique fort;
- ltude des discours forgs dans des
institutions et dans des milieux professionnels.
Les textes de droit sont trs
caractristiques en ce quils reclent
ncessairement une idologie, qui nest
saisissable quau niveau structural et cela
est dailleurs extensible lensemble des
discours juridiques, les documents de la
doctrine autant que les textes gnraux,
constitutions, lois, dont il convient de ne
pas admettre, pour signification exacte, le
sens qui mane de la seule premire lecture.
En effet, la version critique , qui cherchait
dmasquer lidologie sous-jacente dans les
discours, a progressivement succd une
approche diffrente, qui tend rhabiliter la
notion de strotype. Il nest pas de
document juridique qui chappe la rgle:
les rglements, par exemple, ne sont que le
reflet des textes gnraux auxquels ils
renvoient et dont ils ne sont que
lapplication. Les minutes elles-mmes, par
les expressions utilises, par les
dnominations attribues certains actes
prohibs cependant accomplis sous dautres
noms, sont galement susceptibles dune
double lecture, directe et structurale.
Avec le droit on vit intgralement dans
lunivers du signe, propos de personnes et
de choses, mais dans un systme formel qui
sest dtach de ces personnes et de ces
choses, alors, si lon se situe sur le plan
formel, en expression juridique fortement
formalise, on peut dire que le strotype, quel
que soit le code ou le systme smiotique dans
lequel on le trouve, revt:
a) une forme plus ou moins fige, qui
permet une mmorisation et une identification
rapide;
b) une forme rcurrente qui nexclut pas
cependant la possibilit de variations.
Il faut dire que les textes normatifs sont
rdigs selon un style impersonnel,
construits le plus souvent suivant une
stylistique prtablie. Des formules
notariales et parajudiciaires (actes
davous, avocats, huissiers, etc.), ainsi que
des dcisions de justice, les modes et la
latitude dargumentation sont fixs
lavance par la loi ou lusage. Seuls,
parmi les documents officiels, se dtachent
un peu de cette rigueur les documents
nomms travaux prparatoires ,
quoiquils relvent gnralement dune
stylistique prcise, acquise au cours
dtudes suprieures, le plus souvent
juridiques, ou au cours dune longue
pratique administrative ou politique. Cest
quil est essentiel de ne pas modifier la
forme dune phrase, si lon veut tirer toute
la signification dun document. Et cette
exigence carte de nombreuses manires
daborder diffremment le contenu.
On essaye de caractriser de manire plus
prcise au plan linguistique les procds
utiliss par la langue formalise. Les traits
slectionns concernent autant la syntaxe que
le lexique:
a) la dsagentivit: leffacement de lagent
dans des tournures verbales passives;
b) la dpersonnalisation: la substitution de
203
tournures personnelles aux tournures
impersonnelles;
c) la substantivit (appele parfois style
substantif ): le remplacement des syntagmes
verbaux par des syntagmes nominaux
complexes et plus abstraits;
d) lpithtisme: la multiplication des
complments dterminatifs du nom et des
adjectifs pithtes;
e) une terminologie restreinte,
synonymique, autorfrentielle;
f) une phrasologie originale dveloppe,
reposant sur des figements syntaxiques
stables;
g) une opacit rfrentielle importante;
h) des rituels communicationnels
identifiables.
Propre rgir une communication entre
personnes juridiques, le droit sexprime
ncessairement sous forme de paroles,
dexpressions strotypes, de lieux
communs et ne peut exister sans eux.
Sagissant de communication, on dira
quil faut prouver que la communication
juridique constitue un type de
communication; et quil sagit dun type de
communication diffrent de la
communication linguistique. Il y a deux
manires de concevoir la communication
juridique. On peut, tout dabord, dire que
lacte juridique lui-mme est un message,
en ce quil a un metteur et au moins un
rcepteur. En ce sens, toute interaction
juridique repose sur la communication, au
point mme que le droit en vient
apparatre comme le seul recours
communicationnel lorsque lentente
amiable se trouve rompue.
Que le droit sexprime en un discours,
cest un fait incontestable, mme si,
apparemment, il ne vient pas lesprit de
faon immdiate. Il convient alors de
procder llaboration dun modle, cest-
-dire dune structure laquelle pourraient
tre rapportes celles dun certain nombre
de discours, ceux qui rpondent une
mme raison juridique. Ainsi se trouvera-t-
on en face de quelques classes de discours-
modles. Les documents juridiques et
mme para juridiques livrent des
discours, au sens admis par la pratique
analytique, qui entend par l toute
communication tudie non seulement au
niveau de ses lments constituants
lmentaires (le mot, par exemple), mais
aussi et surtout un niveau gal et
suprieur la phrase (propositions,
noncs, squences).
Le discours est conu comme un type de
message linguistique constitu dune
squence de mots et de phrases prpars
lavance pour tre transmis, spcialement
des auditeurs. On met laccent sur le
caractre direct et continu du message, sur
son dveloppement selon des lois propres
retenir facilement lattention du rcepteur
pour lui transmettre une conviction. Le
discours est le lieu o se manifeste et se
transforme, sur un support linguistique, un
univers charg de sens. Or, de ce point de
vue, le caractre discursif du langage
juridique est inluctable.
Du stade du conu dune manire
strotype relvent encore dautre discours,
et notamment celui de la doctrine juridique
(discours types, cohrents, faits pour discuter
et convaincre. Certains de ces discours
manent dagents institutionnaliss. Ainsi en
va-t-il des documents rdigs par les
officiels ministriels, des rapports et
enqutes de police, des divers procs-
verbaux, des documents administratifs. On
peut y joindre les documents de la pratique
judiciaire, les comptes rendus de la presse.
Cest ici, galement, quil convient de
classer les dbats parlementaires constituant
les prmisses du discours lgislatif. Un
rapport, un formulaire, constituent dj des
discours, quoique elliptiques; mis bout
bout, ils forment un discours dont la
cohrence logique est indniable, mme si
elle napparat pas immdiatement, et doit
tre rvle par une recherche des structures
sous-jacentes.
Par consquent, il est toujours possible
de dlimiter un corpus discursif sous laspect
fig du formalisme suppos par le caractre
impersonnel de lexpression juridique.
204
En recherchant la structure de chacun
des types densembles juridiques
dnombrs, on peut se rendre compte de
leur caractre systmatique. Mais cest au
niveau des discours juridiques dans lesquels
sexpriment ces systmes, que se saisit le
mieux la raison du strotype. Et, malgr
tout, cest le dynamisme du discours
juridique qui frappe.
La smiologie de la communication
tudiant la structure et le fonctionnement des
divers systmes et moyens de
communication ou codes non linguistiques
invents par les hommes, elle peut tre un
instrument danalyse adquat, pourvu quil
sorganise une communication dun type
particulier, la communication juridique par
exemple, quil ne faut pas confondre avec la
communication constitue par la suite des
phrases du corpus retenu. Cela revient
montrer quil existe des metteurs et des
rcepteurs au sens propre, et surtout de
messages juridiques construits et
susceptibles de transmettre une information.
Ce qui fait problme, cest quil est essentiel
dapporter la preuve du caractre spcifique
de cette communication, tant entendu que
tout ce qui est rapport ou relation ne relve
pas ncessairement de la communication.
La diffrence commence apparatre
quand on se rend compte que le juriste a une
fonction forte peu diffrente, lui, de celle de
lingnieur des tlcommunications, qui
sassure de la bonne transmission formelle
des signaux, sans souci du contenu des
messages. Entre pre dcd et pre
dcid , il ny a, pour ce dernier, de
diffrence quune lettre.
Figurons une communication ayant pour
support la langue (ou un code de signaux
tels que ceux du Code de la route) et o le
droit est considr comme code. Pour le
juriste, la transmission dune norme de
droit nest intressante que dans la mesure
o il doit sassurer que le code mis est
bien reu et dcrypt par le destinataire.
Lventuelle lecture profonde de lordre,
dbarrass de sa codification juridique, et
lexigence de son application immdiate
font que les clichs de langue expliquent le
caractre fig dsirable du discours
juridique qui envisage la rception, au
premier degr, de linjonction, comme rgle
de vie obligatoire et souhaitable.
Il faut donc soigneusement distinguer,
lorsquon parle de communication propos
de discours juridique, celle qui stablit
dans un discours de droit impos, de celle
qui existe dans celui dun systme
simplement juridique. On rservera au
premier cas lusage dune expression
spcifique. Et lon vitera de parler de
communication juridique , formule qui
laisserait croire lexistence dune
communication dun type particulier
propos de discours simplement juridique.
De la spcificit du discours juridique la
conformit et la non-conformit sexpriment
par une continuit ou une rupture de la
chane communicative. Autrement dit, on
peut trs bien estimer, en cas de dviance,
que le signal reu nest pas le mme que
celui qui a t mis. Alors, lorsque la mesure
atteste dune distorsion intellectuelle entre E
et R, et que la fiabilit du canal nest pas en
cause, on peut se trouver dans trois
hypothses, soit quil y ait absence ou
insuffisance de transmission, soit quil y ait
non comprhension du message, soit quil y
ait refus de ce message. La premire
hypothse est essentiellement constitue par
les cas de lacune ou dobscurit de la loi; la
seconde et la troisime sont plus complexes.
En ce qui concerne la non comprhension, si
lon admet que le message est compos
dune squence dlments puiss par
lmetteur successivement dans deux
rpertoires de signes assembls par lui selon
certaines lois propres au type de message
considr, il faut reconnatre que le rcepteur
peut ne pas tre en mesure didentifier les
signes mis, ceux quil a emmagasins
dans son propre rpertoire. Cela peut tenir
ce que lapprentissage a t imparfait, et
quil lui manque des lments pour dcoder
correctement ce message. Cela peut tenir
ce que les rpertoires initiaux sont trop
complexes.
Il peut y avoir, enfin, refus du message.
Il faut envisager, dans ce cas l,
linadaptation du droit impos aux besoins
ressentis par les citoyens. Si bien entre
lmission et la rception sinstalle un bruit,
il peut tre le rsultat de limpact, sur les
pratiques ou dans les esprits, dun
imaginaire juridique diffrent de celui qui a
dict lordre mis. Pour une mesure exacte,
on peut faire intervenir un autre concept,
celui dinformation qui russit le mieux
vacuer le strotype.
Nous nous trouvons un niveau
technique (de la transmission correcte des
symboles), aussi un niveau smantique
(de la transmission correcte du sens) et de
mme un niveau de leffectivit. Ce
dernier pose le problme de savoir si le sens
reu affecte la conduite du rcepteur dans le
sens dsir par lmetteur.
Dans cette dernire hypothse, comme il
nest pas possible desprer atteindre la
signification profonde par une tude de
signes que lon dcoderait, puisquon ne
connat pas le chiffre du message, on
relve des indices. Ces indices permettent de
procder une interprtation du phnomne
par recomposition de la structure relle du
texte, que lon considrera comme lune des
variantes possibles dun modle. La
recherche des motifs ayant dict le choix de
cette variante prcisment, plutt que
dautres, aide en saisir la signification
profonde. Ainsi devient-il possible de
reprer systmatiquement, dans tous les
domaines de la science juridique, grce
lanalyse discursive, lidologie qui sous-
tend lcriture du droit. Mais ces conditions
strictes supposent lexistence dun objet
spcifique susceptible dune certaine
formalisation.
Le chercheur oprera alors en trois
tapes:
1. Observation de la structure
rdactionnelle. Dans quelle mesure la lecture
du discours juridique est-elle transparente? Il
ne faut pas confondre ici structure
rdactionnelle et stylistique. Dans la ralit, il y
a imbrication de lune et de lautre, et il
convient deffectuer une premire dmarche
qui consiste dbarrasser le texte de son
jargon, ou lassimiler suffisamment pour que
les termes techniques et les formules
205
traditionnelles ne masquent pas lessentiel.
Alors apparat un texte qui a la plupart du
temps un sens trs clair ds la premire lecture.
2. Le reprage de la structure relle. Du
sens apparent, on passe la recherche dune
structure non manifeste. On isole des
indices, et on sefforce dtablir et de
qualifier les relations existant entre eux.
3. Il convient alors, une fois dcouverte
la structure relle du phnomne tudi,
den proposer une signification. Cest ici
quintervient le contexte: tude du milieu
social, conomique, des incidences
psychologiques, de linconscient, de
lidologie. Ce travail dinterprtation se
fait partir dune interrogation sur la
fonction du phnomne tel quil apparat
dans sa structure relle et dans lventuelle
distance que cette dernire prsente par
rapport la structure rdactionnelle,
manifestation dune distorsion des raisons
dont il faut trouver le sens.
En guise de conclusion
La notion de strotype semble beaucoup
trop vague pour servir dappui lanalyse
linguistique stricto sensu, et la question du
figement, moins de la thoriser dans un
cadre prcis. Cependant, elle fournit un
principe explicatif gnral indispensable la
comprhension du figement de certaines
expressions ou collocations. La langue en ce
sens est un rservoir de strotypes, qui sont
lexicaliss grce ce que lon nomme le
figement. La dimension conservatoire des
strotypes ne doit pas masquer non plus le
fait quil y a toujours aussi possibilit de crer
de nouvelles associations. Il est dsirer de
sparer nettement la perspective rhtorique,
qui permet de considrer les strotypes
comme des formes fossilises, peu inventives
et la perspective linguistique, qui sintresse
toutes les expressions lexicalises, quel que
soit le point de vue quon peut adopter par
ailleurs lorsquon se place du point de vue
stylistique. Nous avons laiss donc de ct les
termes de clich , lieu commun , etc.,
Liste des rfrences bibliographiques
Amossy R., Herschberg-Pierrot A. (1997), Strotypes et clichs. Langue, discours,
socit, Paris, Nathan.
206
pour tenter de mieux discerner le
fonctionnement smantique et syntaxique des
expressions figes ou semi-figes.
Le strotype est de longue dure et
offre une grande rsistance aux
changements, ce qui est li au fait qu'il est
indpendant de l'exprience. Son essence
est la duplication, la rptition, la copie:
dans le sens mtaphorique du terme, il
parat sortir tout fait, tout fig, d'o l'ide de
rptition. Aussi il prsente un caractre
fondamentalement scurisant par leffet
puissant de quelque chose dimmdiatement
communicable et assimil par les individus.
La strotypie conduit prendre en
compte des squences, des syntagmes de
dimensions variables, dont les units ont en
commun de ne pas avoir la mme libert de
construction ou demploi que des units
compltement autonomes; cette problmatique
conduit donc examiner les diffrents types
de contraintes smantico-syntaxiques qui
psent sur ces associations lexicales. Les
strotypes constituent un important
lment d'intgration des groupes, des
motivations, des actions sociales, de la
propagande, des partis pris, du caractre
social des individus. Ils remplissent une
fonction importante dans le domaine de
l'action sociale. Ainsi que l'a not
Montesquieu : le "prjug" ne consiste
pas ignorer certaines choses mais
s'ignorer soi-mme . Nous avons tous
hrit de thories, de systmes interprtatifs
que l'on pourrait en fin de compte qualifier
de prjugs, en ce sens que la cause est
juge avant d'avoir t entendue.
En conclusion, le droit considr en
termes de communication strotype
apparat comme le rsultat dun codage qui
se superpose celui de la langue, mais ce
nest quavec le surcodage quune norme
juridique devienne une norme de droit et les
problmes de transmission du savoir
juridique renvoient la question de la
culture juridique.
 Amossy R., Rosen E. (1982), Les discours du clich, Paris, CDU-SEDES.
Anscombre J.D., Ducrot O., (1988), L'argumentation dans la langue, Lige
Bruxelles, Pierre Mardaga Editeur.
Bally C., (1952), Le langage et la vie, Genve, Droz.
Bakhtine M., (1984), Esthtique de la cration verbale, Gallimard.
Charaudeau, P., Maingueneau D. (2002), Dictionnaire dAnalyse du Discours, Paris,
Seuil.
Cornu G. (1987): Vocabulaire juridique, Paris, PUF.
Cornu G. (2005): Linguistique juridique, Paris, Montchrestien.
Ducrot O., (1984), Le dire et le dit, ditions de Minuit.
Gross, G., (1996), Les expressions figes en franais, noms composs et autres
locutions, Paris, Ophrys.
Guillien R., Vincent J., (2007): Lexique des termes juridiques, Paris, Dalloz.
Lerat P. (1995): Les langues spcialises, Paris, PUF.
Maingueneau D., (1991), L'Analyse du Discours, Paris, Hachette Suprieur.
Plantin C. (1993), Lieux communs, strotypes, clichs, Paris, Kim.
Schapira, Ch., (1999), Les strotypes en franais: proverbes et autres formules,
Paris, Ophrys.

207
208
209
210
 EUROPEAN AGENCIES, INSTITUTIONS AND BODIES
RESPONSIBLE FOR BORDER SECURITY
Lecturer Ph.D MARIUS PANTEA
Police Faculty A.I. Cuza Police Academy
Assist. Lecturer Ph.D SERGIU ADRIAN VASILE
Police Academy "Alexandru Ioan Cuza"
Border Police, Schengen Training and Foreign Languages Department
PhD. student MONICA SACHELARIU
Borders have to be walls but also gates. The basic policy issue at borders is how to
balance the needs for fortification with the need to soften border controls; in short, how
to balance the need for mobility with the need for control. Integration becomes a genuine
balancing act for an incomplete federation such as the EU, with its sensitive mix of a
single external border and 27 separate legal/administrative systems.
Keywords: Frontex, Europol, Cepol, Eurojust, COSI, Coreper CSIFA.
Introductory remarks level of control and supervision, which is a
Applying the principle of free corollary to the free movement of persons
movement of persons, stipulated in the within the European Union and a
Treaty of Rome204, meant giving up fundamental component of the area of
systematic border controls between EU freedom, security and justice. To this end,
Member States. Strengthening cooperation the setting up of common rules and
between law enforcement agencies across standards of external border control
Europe was one of the consequences. procedures are necessary impetuous.
Border control as a part of freedom of In most Member States, operational
movement meant the development of aspects of return of third country nationals
national systems of each state and a who are illegally staying in the Member
stronger operational cooperation at external States come under the jurisdiction of the
borders. To be handled in a unified manner authorities responsible for external border
the aspects related to potential risks at these control. Since performing these duties at
external borders a series of instruments the European level requires a clear added
were drawn up. In this regard, there have value, it was necessary to establish, under
been created agencies and organizations in the community policy on return bodies to
order to integrate all border systems of provide necessary assistance for organizing
Member States against any threats that joint return operations of Member States
might take place at the European Union's and to identify best practices for obtaining
external borders. travel documents and return of third
Community policy on the EU's external country nationals who are illegally in the
borders is to achieve integrated territories of Member States.
management to ensure a uniform and high The European Agency for the
Management of Operational Cooperation
204
At 5 March 1957 in Rome there have been at the External Borders of the European
signed two Treaties, setting up, on the one hand the Union (Frontex)
European Economic Community and on the other Given the experiences of expert
hand the European Atomic Energy Community. practitioners of external borders, acting
The treaties were enforced on 1 january 1958 after
Germany, France, Italy, Luxembourg, Belgium, within the Council of Europe it was
The Netherlands ratified them. established, therefore, a specialized body
211
responsible for improving coordination of
operational cooperation between Member
States in the management of external
borders, as a European Agency for
Management of Operational Cooperation at
the External Borders of the Member States
(Frontex)205, which became operational in
October 2005.
Responsibility for control and
surveillance of external borders being for the
Member States, Frontex should only
facilitate the implementation of existing and
future Community measures on external
border management, by ensuring the
coordination of actions by Member States.
European Union Member States have a
responsibility to manage external borders206.
Frontex has arisen from the need to
establish the need to immediately implement
the decisions of the European Commission,
to coordinate operational cooperation
between Member States in general and
between Member States of the European
Union external borders in particular. Thus,
the Agency for International Cooperation at
the External Borders of the European Union
functions as an executive branch of the
European Commission regarding the issue of
external borders. Frontex is located in
Warsaw - Poland207 but its actions do appear
in all Member States, and it concluded
agreements with some European Union
member states, even beyond the EU borders.
The year 2009 brought two milestones
that will be very important for future work
of Frontex: the first one is the entry into
force of the Treaty of Lisbon on 1
December 2009 and the second was the
adoption of the program in Stockholm 10-
11 December 2009. EU Commission
205
Council Regulation no. 2007/2004 from 26
October 2004, published in the EU Official Journal
L 349 from 25 November 2004, p. 1.
206
Frontex General Report for 2009,
http://www.frontex.europa.eu/gfx/frontex/files/gen
eral_report/2009/general_report_2009en.pdf,
19.05.2010, 14.00.
207
Council Decision no. 2005/358/EC from 26
April 2005.
212
considers that the best way forward is
cooperation in a constructive way to
develop an integrated EU border
management, which involves
implementation of short and medium term
recommendations and launch a dialogue
with European Union institutions, Frontex
and the relevant European and international
partners in order to exploit ways of
achieving long-term strategic objectives,
based on a gradual development and taking
into account available resources and
administrative capacity of the Agency208.
Frontex has created a common model of
the Concept of Risk Analysis (CIRAM)209.
CIRAM development is not only a common
understanding of the terminology and the
concept of risk analysis in the Member
States but also a platform to collect data
needed to carry out a risk assessment
relevant to the European Union.
Exercising its coordinating role, the
Agency has developed the network of
Frontex Risk Analysis - FRAN210. One of
the objectives of the work is the collection
of statistics, data and information to assess
risks and threats to the European Union
external borders.
FRAN data collected refers to a set of
eight indicators: the volume of migrants
detected at the green border and border
crossing point, the volume of people who
have been refused entry on the national
territory, asylum applications, guides and
facilitators, cases of smuggling, registered
asylum requests, the amount of detected
false documents and the volume of people
ignoring the regulations within the
European Union.
These indicators have been identified as
relevant to describe the operational
situation at the border in terms of
identifying the existing and future risks and
208
Frontex Agency, Assesment and development,
Bruxelles, 13 February 2008, paper presented by
Franco Frattini at the EU Ministerial Council.
209
CIRAM - Common Integrated Risk Analysis
Model.
210
FRAN - Frontex Risk Analysis Network.
threats, as part of the risk analysis. Many
Member States use the same indicators for
its own analysis which shows a smoothing
process in the European Union. As the
border situation, the factors affecting border
security are more complex and therefore it
was necessary a commitment to a certain
level of SWOT211 and PESTEL212.
The pressure of illegal migration
on the border area is the general factor that
illustrates the main threat. Border security
generally refers to the possibility of a risk
become threat and we're talking about the
permeability and vulnerability of the border
to threats: any violation of the legal regime
of the state border is a risk. Thus, the
above-mentioned indicators are completed
with other indicators related to socio-
criminal field: the amount of stolen cars
found at the border, smuggling in general
and other violations of customs regime.
When jurisdiction over the handling of
crime is given to another institution in the
field of risk analysis the challenge is to find
common risk indicators.
In Romania, an important step in this
direction was done by establishing a joint
Risk Analysis Unit (ECAR) for the Border
Police and Customs, which operates at
Albita border checkpoint. This team uses a
set of indicators that lead not only to a
feasible use of technical means but also
more efficient border control through
careful selection of second-line control.
Thus, the agency's management has
made efforts on this coordinate, resulting in
progress but not in all cases satisfactory. A
description of the situation in this area
highlights the following: operational
cooperation between Frontex and the
authorities of Moldova and Georgia on the
basis of agreements of cooperation and the
possibility for operational cooperation
between EU Member States and third
211
SWOT - Strengths, Weaknesses, Opportunities
and Threats.
212
PESTEL - Political, Economical, Social,
Technological, Environmental. Legal.
213
countries mentioned above, is of great
importance because both countries are part
of a geographical region affected by illegal
migration routes, and also have a strategic
importance in the implementation of joint
operations in these areas.
Moreover, Moldova and Georgia are
countries that fit within the priority actions
focusing on migration in the east and south-
eastern regions neighboring EU states. We
have taken steps for Moldova to seek
observer status supported by Romania.
Frontex has already initiated cooperation
with Russia, Ukraine and Switzerland.
Cooperation with Croatia is still in a
negotiating phase. Frontex has stated its
intention to begin negotiations for
cooperation with FYROM213, Turkey,
Egypt, Libya, Morocco, Mauritania,
Senegal, Cape Verde. There will also be
invited to cooperate with other Western
Balkan countries, countries in Western
Africa, the United States and Canada214.
Results of the Frontex activity regarding
the concept of border security are
commensurate in terms of prevention and
combating illegal migration but not
exclusively. The Agency shall cooperate
directly in accordance with the working
arrangements concluded with third countries
to prevent illegal migration (and not only), to
strengthen border security by the relevant
control and efficient disposition of resources
based on risk analysis management. EU
cooperation with third countries and support
efforts to control and effective supervise the
border are materialized in the European
Union missions working in the field of
border security215.
213
Former Yugoslav Republic of Macedonia
214
The Tools Called to Support the 'Delivery' of
Freedom, Security and Justice: a comparison of
border security systems in the EU and in the US,
Directorate-General Internal Policies, Policy
Department C, Citizens' Rights and Constitutional
Affairs, PE 410.681, February 2009, Brussels,
European Parliament.
215
Faure Atger, A., The Abolition of Internal
Border Checks in an Enlarged Schengen Area:
 At European level, a positive example in
the field of risk analysis is the mission
coordinated by the European Union Border
Assistance (EUBAM)216 at the Moldova
Ukrainian border. Risks identified thus
refer to threats in the sphere of competence
of different institutions but an overview of
crime that involves crossing the border and
use the default appearance of common
human resources and materials presented
for border control217.
As regarding the external cooperation
EUBAM mission has contributed by both
joint operations such as joint border control
operation FOCUS implemented together
with the services of Moldova and Ukraine,
and by participating in Frontex operations
organized and implemented in areas
relevant to the work of the Mission. The
character, sometimes empirical, of risk
analysis and lack of cooperation with
similar structures of other law enforcement
agencies could result in a formal analysis of
low-impact and practical relevance218.
Cross border competencies of the
judicial police cooperation units in the
field of criminal law
The new image and operational
prospects of the European Agency Europol
In 2008-2009, after 15 months of intense
discussions at the EU Council, EU Member
States have decided to transform the
European Police Office into an agency of
the European Union. Thus, starting from 1
January 2010, Europol has become a
European institution by replacing the
Freedom of movement or a scattered web of
security checks? Research Paper No. 8. CEPS
Brussels, March. 2008, http://shop.ceps.eu/
BookDetail.php?item_id=1629.
216
EUBAM - European Border Assistance
Mission.
217
Carrera, S., The EU Border Management
Strategy. FRONTEX and the Challenges of
Irregular Immigration in the Canary Islands.
Working document No. 261. CEPS, Brussels,
March. 2007, http://shop.ceps.eu/ BookDetail.php?
item_id=1482.
218
Marshall Peter, Research Methods, Peter
Marshall P.H., 2001.
214
Europol Convention by a decision of the
European Union219. This decision was
adopted at the 2936 meeting of Justice and
Home Affairs Council held in Luxembourg
on April 6, 2009.
Also, the mandate of Europol is
extended to all forms of serious cross-
border crime in order to facilitate assistance
to Member States in cross-border criminal
investigations and therefore, the mandate is
extended for cases of serious crime which
are not strictly related to organized crime in
order to support Europol in cross-border
criminal investigations where the
involvement of organized crime is not
demonstrated from the beginning. From the
perspective of European Commission Vice
President Jacques Barrot this change is
essentially a transformation and not at a
formal level.
The results determined by the change to
Europol's legal framework are significant
from the administrative point of view:
Europol became the subject of financial
regulations applicable to European
institutions and the funding agency will
change from an intergovernmental to a
community one. In practice this will lead to
a closer interaction with the European
Parliament recognized for the ability and
authority to the budget. The European
Parliament role in the control of Europol
was also increased, and democratic
supervision of Europol at European level
has been improved.
As an EU Agency, Frontex cooperation
with Europol will be a necessity from
operational perspective. Since 2009,
Frontex has led to the practical
implementation of this cooperation, which
has materialized in setting up a Europol
Mobile for Operation Neptune in both
active and practical purpose for a more
efficient risk analysis at the borders. From
the new perspective, linking the two
219
Council Decision 2009/371/JAI from 6 April
2009 on the setting up of Europol, published in the
EU Official Journal L 121/37 from May 2009
European institutions governed by the same
general rules will make interaction between
them more feasible in terms of
organizational flexibility and effectiveness.
Mainly, the change in statute for Europol
and its new mandate are oriented towards
enhanced police cooperation between
member states. Moreover, the uniform
policy in this area suggests a close
cooperation between Frontex and Europol
for the purposes of covering the entire
spectrum of cross-border crime, with direct
result in increasing police cooperation220.
The European Police College - Cepol
and exchange of information at border
level. The complexity of the process to
ensure border security requires constant
interaction between all agencies involved in
the support of international bodies with
responsibilities in the field. The unitary
character of this process involves close
cooperation as an essential component
without which the effectiveness of border
security decreases. In this respect, data
sharing and a unified approach to the
concept of risk analysis is a prerequisite.
At its meeting in Tampere on 15-16
October 1999 European Council agreed that
the setting up221 of a European Police
College, CEPOL for training senior police
officers. After that, it appeared that CEPOL
action could be improved if it would be
funded from the general budget of the
European Union and if the Staff
Regulations and the Conditions of the
European Communities would apply to the
Director and staff of CEPOL Secretariat.
Thus, in its conclusions of 24 February
2005 the Council requested the
implementation of the above changes,
making it necessary to change Decision
2000/820/JAI and replace it with a new
220
Europol Annual Report, 2009,
http://www.europol.europa.eu/publications/Annual
_Reports/ Annual%20Report%2 02009.pdf
221
Decision 2000/820/JAI for setting up CEPOL,
published in the Official Journal L 336 from 30
December 2000, p. 1.
215
Council decision222 concerning CEPOL.
CEPOL brings together police officers
across Europe and aims to foster cooperation
in the fight against transnational organized
crime and corruption and to help maintain a
climate of order and public safety.
Established as an agency of the European
Union, CEPOL has the Secretariat in
Bramshill, located 70 km from London and
holds annual training courses and seminars
in the field of police work, activities taking
place at police academies in the European
Union Member States223.
Ilkka Laitinen, executive director of
Frontex and Ulf Gransson, Director of
CEPOL have signed a cooperation
agreement on 02 July 2009. The purpose of
the agreement is to support the
harmonization of training police officers
and border guards and promoting
cooperation at European Union level. The
special conditions of this agreement focuses
on coordinating and sharing information on
training activities, joint training activities
that contribute to the development of
training materials or common curricula and
exchange of knowledge.
This Agreement enhanced the
cooperation beteen Frontex and CEPOL in
superior police officers training in Europe
for the benefit of the EU. We may assure
you that our training activities are
coordinated and their topic is of common
interest, involving experts from the both
agencies with the purpose of encouraging
cross-border fight against crime, said Ulf
Gransson, the Drector of CEPOL.
Involvement in cross-border missions of
the European Judicial Unit Eurojust. To
strengthen the fight against Transnational
Organized Crime, the European Council in
222
Decision 2005/681/JAI from 20 September
2005 for setting up CEPOL, published in EU
Official Journal L 256 from 1 October 2005, P.
0063-0070 to replace Decision 2000/820/JAI.
223
CEPOL Annual Report, 2009,
http://www.cepol.europa.eu/fileadmin/website/new
sroom/pubblications/ Annual_ Report_ 2009.pdf,
17.08.2010, 16.00.
Tampere on 15 and 16 October 1999
decided to establish a unit Eurojust224,
formed in accordance with legal systems of
Member States, a national member
seconded by each Member State is a
prosecutor, judge or police officer with
equivalent skills. Each national member
may be assisted by a person or, if
necessary, by several people.
Eurojust is an European Union body
with legal personalityfinanced from the
general budget of the European Union.
In the context of investigations and
prosecutions, relating to one or more
Member States, especially when these
crimes are committed in an organized
manner. Among the objectives of Eurojust
are to be found and the aspects of fostering
cross-border operations and improve
coordination between the competent
authorities of the Member States225.
Travel ticket operation targeting a
network, composed primarily of Iraqis
involved in the trafficking of migrants from
Iraq and other countries, including
Afghanistan, in Europe. Eurojust's
involvement was to support the
coordination of investigations, exchange of
information between Member States
involved and the issuance and execution of
European arrest warrants. In a coordinated
action June 9, 2009, 75 people were
arrested in Belgium, France, Germany,
Greece, Italy and Switzerland226.
In this regard in accordance with art. 26
of the new Eurojust Decision, Eurojust
shall establish and maintain cooperative
relations with Frontex, in November 2009,
the two agencies agreed to take the first
contacts, and by early 2010 there was a
meeting between President of Eurojust and
Frontex director.
224
Council Decision no. 187/20.03.2002.
225
Art. 3, par. 1, Council Decision no.
187/20.03.2002.
226
Annual Report Eurojut 2009,
http://www.eurojust.europa.eu/press_releases/annu
al_reports/2009/ Annual_Report _2009_RO.pdf,
18.08.2010, ora 1400.
216
Eurojust general jurisdiction include the
types of crimes in respect of which
Europol227 is competent to act always228,
but others such as computer crime, fraud
and corruption and any criminal offense
which affects the financial interests of the
European Community, laundering of
proceeds from crime , environmental
crimes or participating in activities of
criminal organizations229.
Eurojust shall establish and maintain
close cooperation with the European Anti-
Fraud Office230. Office has started work on
1 June 1999231, succeeding Working Group
to coordinate fraud prevention (UCLAF),
which was part of the General Secretariat of
the Commission, created in 1988.
Community Organisations and their
contribution to the European Union
border security
Homeland Security Committee of the
European Union (COSI). Hazel Smith said
that despite the fact that sometimes certain
interests still dominate, as a general rule we
can talk about an ethical foreign policy as a
result of pressure by civil society232. Lisbon
Treaty removes pillar structure based on
EU legislation. Issues previously addressed
in the third pillar, such as judicial
cooperation in criminal matters and police
cooperation, will be dealt with under the
same rules as the type of single market
issues. The measures at EU and national
level in these areas will be subject to
judicial review the Court of Justice.
In this new framework will establish a
227
The setting up of Europol was done through the
Maastricht Treaty, on EU from 7 February 1992.
228
See art. 2 from the Europol Convention,
26.06.1995.
229
See Common Decision of the Council
98/733/JHA from 21 Decembre 1998.
230
Set up by the Commission Decision 1999/352
CE, CECO from 28.04.1999.
231
Regulation 1073/1999 CE of the European
Parliament and the Council and Council
Regulation 1074/1999 from 25.05.1999 regarding
investigations carried out by OLAF.
232
Hazel Smith, European Union Foreign Policy,
London, Pluto Press, 2002.
standing committee of the Union to ensure
the promotion and strengthening
operational cooperation on internal
security233. Abbreviation chosen for this
new standing committee was COSI -
Homeland Security Committee of the
European Union.
COSI's main objective is to facilitate,
promote and strengthen operational
coordination between Member States of the
European Union on internal security. This
coordination role will cover, inter alia,
police and customs cooperation, protection
of external borders and judicial cooperation
in criminal matters relevant to operational
cooperation in internal security. The
Committee shall regularly report its
activities to the Council, which in turn
inform the European Parliament and
national parliaments. Also, COSI
responsible for evaluating the effectiveness
of general and operational cooperation in
order to identify possible shortcomings and
adopt recommendations to address them.
Also, COSI may invite representatives of
Eurojust, Europol and Frontex and other
relevant bodies to its meetings and will
contribute to ensuring coherence of action
by these bodies.
COSI is also mandated with the Political
and Security Committee (PSC) to assist the
Council234 in accordance with the solidarity
clause which stipulates that the European
Union mobilizes all available tools to assist
a Member State which is subject to a
terrorist attack or is the victim of a natural
or manmade disasters. Each Member State
will decide whether to have a single
representative for all areas or if you have
different representatives. The number of
delegates will be limited, however, to
ensure effective work of the Committee.
With the establishment of COSI, will be
233
Art. 71 of the version of the Treaty regarding
the EU functioning, published in the EU Official
Journal C83/49 /30.04.2010.
234
Art. 222 of the version of the Treaty regarding
the EU functioning, published in the EU Official
Journal C83/49 /30.04.2010.
217
reviewed work of two other committees of
the Council: Article 36 Committee (CATS)
and the Strategic Committee on
Immigration, Frontiers and Asylum
(CSIFA). Before 1 January 2012, will
review the work of Coreper235 and CSIFA
CATS, having regard to efficiency and
consistency of the Council's working
structures. Meanwhile, both committees
will focus their discussions on strategic
issues on which COSI could not help and
could not meet as needed.
Coreper's prerogatives and those of
Article 36 Committee (CATS). Committee
under Article 36 of the Treaty on European
Union, also known as CATS is a working
group of the Council.
The Committee is composed of senior
officials and its role is to coordinate the
relevant working groups of police and judicial
cooperation. Its mission is also to prepare the
relevant work of the Committee of Permanent
Representatives. In return for asylum and
immigration issues is the Strategic Committee
on Immigration, Frontiers and Asylum
(SCIFA), which, unlike CATS, is a working
group for the first pillar.
Permanent Representatives Committee
or Coreper236 is responsible for preparation
of the Council of the European Union. It
consists of ambassadors of EU Member
States (Permanent Representatives) and is
chaired by the Member State holding the
Council Presidency. Thus, preliminary
inspection of the files on the Council
agenda (proposals and draft legislation
tabled by the Commission). It aims to reach
an agreement for its own on each file,
otherwise it may also suggest guidelines,
options or suggested solutions to the
Council. The Agenda for Council meetings
reflect the progress made in Coreper.
235
COREPER consits of representatives of the
me,ber states, being a permanent diplomatic body
in charge with the preparation of the Council
meetings.
236
According to art. 207 version of the Treaty
regarding the EU functioning, published in the EU
Official Journal C83/49 /30.04.2010.
 They consist of A items, to be approved
without discussion following agreement
within Coreper, and B items for discussion.
Coreper works in two configurations:
Coreper I, consisting of deputy permanent
representatives, deals with technical issues
and Coreper II, consisting of the
ambassadors, deals with political, trade
issues, economic or institutional. When the
Council established a special committee,
such as the Political and Security
Committee (PSC) for the CFSP, it must
operate in compliance with the prerogatives
of Coreper. Council papers are prepared
under the overall responsibility COREPER
three high-level coordination committees.
The first is called CATS (the Committee of
Article 36 as a reference to this article of
the EU Treaty). This authority is found in
works such as those on police cooperation,
criminal judicial cooperation, fight against
drugs, customs cooperation, part of the
work to combat terrorism, the work on the
Schengen Information System etc..
Strategic Committee on Immigration,
Frontiers and Asylum (CSIFA). The second
coordination committee called the Strategic
Committee on Immigration, Frontiers and
Asylum (CSIFA), which as the name,
address migration issues (both legal and
illegal), visa policy and program of
harmonization of asylum policy.
The third is called the Committee on
matters of civil law. It has a double
function: on the one hand, preparing
instruments to be adopted by the Council
and civil judicial cooperation, on the other
hand, ensure the consistency of Community
law adopted by the Council acts in civil
judicial cooperation. Some works in the
field of JHA is under the direct authority of
Coreper and those of the Schengen
Evaluation Working Group or the
Committee on matters of civil law. Other
activities related to JHA, especially those of
high-level working group on asylum and
migration, are reported to the Council on
Foreign Relations.
Council working groups involved in
218
managing EU external borders
Activities Working Group of the border
and visa. The visas issued by Member
States of the European Union, but not full
membership in the Schengen area (now the
United Kingdom, Ireland, Cyprus,
Romania, Bulgaria) are not valid in the
Schengen area. The five member states of
the European Union, have joined the
Schengen area, but not all Schengen, but
apply certain provisions of this acquis.
Thus, the United Kingdom and Ireland only
apply Schengen acquis in the field of police
cooperation.
Cypru, Romania and Bulgaria put
into practice Schengen acquis Category I,
which partially includes the field related to
visa. Thus, these three countries issue visas,
but are valid only on their territory. From
the date of full accession to the Schengen
area, where Romania - March 2011 these
three countries will issue Schengen visas,
which will be valid throughout the
Schengen area. If visas issued by Schengen
States with full rights, both members of the
European Union (22 of 27) and non-EU
countries (Iceland, Norway, Switzerland),
others citizens can enter these countries
with Schengen visas on the basis which can
travel throughout the Schengen area.
Institutional impact of the Working
Group on Migration and Expulsion. Policy
Change in the European Union labor
migration policy is reflected in the June
2003 Commission Communication on
Immigration, Integration and Employment.
As a result, in 2005, was adopted The
Hague Programme for strengthening
freedom, security and justice in the
European Union, and in 2006, was
developed Solidarity Programme and
Management of Migration Flows for the
period 2007-2013.
However, currently, Member States
shall Strategy 2007-2010 for programs of
cooperation with third countries on
migration and asylum, a document that
examines the phenomenon of global
migration and asylum policy and its
contiguous to the European Union, also cooperation between Member States. One
provides specific measures Intake / of the cornerstones of the European Union's
prevention and control of migratory flows strategy to secure the external borders has
so as to benefit the European countries. been the creation of organisms that can
Schengen Evaluation Working Group coordinate and enhance border security by
and Member States' responsibilities. ensuring the coordination of actions by
Schengen Evaluation Working Group tasks Member States in implementing
verify that Romania must meet to join the Community measures on external border
Schengen external border security with management.
regard to Schengen standards, the The development of modern strategies
achievement of the Schengen Information should, as soon as possible, rely on
System which provides direct links to the expertise from all Member States, including
databases of the European Union, creating national authorities responsible for
the conditions for integration common implementation, businesses and civil
European visa system - which involves society. For this reason, we can say in
fitting Romania embassies or consulates of conclusion that border security is an issue
the Schengen space standards - and create that can not be resolved, it is a problem that
the conditions necessary for police and must be managed responsibly at all times.
judicial cooperation. However, responsibility for controlling the
The effective implementation of external borders of the European Union, the
common rules on border security requires Member States.
increased coordination of operational
Selective Bibliography:
1073/1999/CE Regulation of the European Parliament and Council, and Council
Regulation (EURATOM) 1074/1999 of 25 May 1999 concerning investigations conducted
by OLAF
2000/820/JAI Decision establishing the European Police College (CEPOL), published in
Official Journal L 336 of 30 December 2000.
2005/681/JAI Council Decision of 20 September 2005 establishing the European Police
College (CEPOL), published in Official Journal L 256 of 01 October 2005, P. 0063-0070,
repealing Decision 2000/820/JAI establishing the European Police College (CEPOL),
published in Official Journal L 336 of 30 December 2000.
2009/371/JHA Council Decision of 6 April 2009 establishing the European Police Office
(Europol), published in the Official Journal of the European Union L 121/37 of 15 May
2009.
Annual report 2009 Cepol.
Annual report 2009 Eurojut.
Carrera, S., The EU Border Management Strategy. FRONTEX and the Challenges of
Irregular Immigration in the Canary Islands. Working document No. 261. CEPS, Brussels,
March. 2007.
Commission Decision 1999/352 EC, ECSC of 28 April 1999 establishing the European
Anti-Fraud Office (OLAF) (OJ 1999 L136).
Council Decision establishing Eurojust nr.187/28 February 2002 to strengthen the fight
against serious crime.
Council Regulation (EC) no.2007/2004 of 26 October 2004 establishing a European
Agency for the Management of Operational Cooperation at the External Borders of the
Member States of the European Union, published in the Official Journal of the European
Union L 349, 25 November 2004, p. 1 (OJ L 349/25.11. 2004) with regard to the Treaty
establishing the European Community, subsequently amended by Council Regulation (EC)
Nr. 863/2007 of the European Parliament and the Council of 11 July 2007 which
219
 established a mechanism for the creation of Rapid Border Intervention (RABIT).
Council Decision no. 2005/358/EC of 26 April 2005 laying down Frontex headquarters.
Enhanced Version of Treaty on European Union, published in the Official Journal of the
European Union C 83/49 of 30 March 2010.
EU Schengen Catalogue, External borders control: Return and readmission - and best
practice recommendations 2009.
Europol Annual Report 2009.
Europol Convention of 26 July 1995.
Faure Atger, A., The Abolition of Internal Border Checks in year Enlarged Schengen Area:
Freedom of movement or a scattered web of security checks? Research Paper No. 8. CEPS
Brussels, March. 2008.
Frontex General Report for 2009.
Hazel Smith, European Union Foreign Policy, London, Pluto Press, 2002.
Joint Council Decision of 21 December 1998 adopted 98/733/JHA under art. K.3 of the
Treaty on European Union, the criminalization of participation in a criminal organization in
the Member States of the European Union.
Peter Marshall, Research Methods, Peter Marshall Publishing, 2001.
The Tools Called to Support the Delivery of Freedom, Security and Justice> a
comparison of Border security system in the EU and in the UD General Directorate for Internal
Affairs on 410 681, February 2009, Brussels, European Parliament.

220
 CROSS-BORDER POLICE COOPERATION
BETWEEN ROMANIA AND HUNGARY
Ph.D. Associate Professor CRISTIAN FLORIN POPESCU
Ph.D. Lecturer CARMEN CHERVASE
Alexandru Ioan CuzaPolice Academy
Border Police, Schengen Training and Foreign Languages Department

The main legal basis for border management comes from the aforementioned
Community legislation. Nevertheless, there is still a need for complementary legislation
at national level, inter alia border guard law, alien and immigration law as well as data
protection law, in order to be able to fully implement the IBM concept. There should also
be a legal basis which will allow smooth and efficient inter-agency and international
cooperation, and exchange of information. Agreements such as border agreements, local
border traffic and readmission agreements with neighbouring third countries and
countries of origin should be concluded. Additionally, illegal border crossings should be
made punishable by law, and fines as well as an obligation for return transportation
should be imposed on carriers of illegal immigrants.
Keywords: agreement, border surveillance, border security, Schengen.
Integration into the Schengen area information to effective implementation of
requires the removal of internal border checks and surveillance at external borders,
controls in the Member States, which calls the appointment of liaison officers;
for measures to cover the "gap" created for intensifying police cooperation in border
the effective management actions to regions by the conclusion of agreements
prevent and combat cross-border crime. and bilateral agreements, creating and
Given this it was concluded that, based maintaining a common information system
on bilateral agreements, the Member (SIS).
concerned may apply a series of measures To implement these measures and the
(called compensatory measures) leading to desire to strengthen and intensify
the improvement of police cooperation for cooperation between the authorities to
cross-border crimes. Thus, these measures combat cross-border crime, to develop
have been provided in the Schengen bilateral relations in order to ensure public
Convention237, as follows: mutual order and security, the Government of
assistance in crime prevention and Romania and the Republic of Hungary have
detection, border surveillance, pursuit, the signed a framework agreement238 governing
communication of information in special the activities falling this field.
cases to prevent future crime more or less The agreement establishes the subject of
serious crimes against public order and collaboration in the sense that both
public safety threats to their exchange of countries are committed to strengthening
cooperation in preventing, detecting and
237
Convention of June 19 1990 of implementing combating crime, which according to
Schengen Agreement of the 14 June 1985 on the national laws of each State shall be
gradual abolishion of checks at the common punishable with imprisonment for at least a
borders year. As a general exception to this rule it
2 Agreement between Romania and the Republic of Hungary on cooperation
in preventing and combating cross-border crime, signed in 2008 in Szeged
21.10.

221
was stipulated that requests for offenses
committed by military or political, under
national law of each state, can not be
transmitted or handled in this way.
Furthermore, either of the two states may
refuse all or part, or may make the
collaboration, if it endangers respectively
prejudice sovereignty, security and public
order, or if contrary to national legislation.
The agreement also establishes
modalities of cooperation, in accordance
with the EU legal framework. Thus, one
possibility is to demand cooperation.
For this type of cooperation the
authorities for combating crime in both
States shall assist each other. In this regard,
requests and replies are sent and received in
writing via central contact (including by
electronic means of telecommunication). In
urgent cases, requests may be made
verbally, but must be confirmed in writing
immediately239.
Where the submission, request that the
resolution is necessary, according to
national laws of both countries, approval,
authorization, opinion or judicial consent,
transmitting or starting a procedure for
resolving the request may be made only
after obtaining them.
A special procedure applies if the
authority has sought to combat crime-
solving competence. In this case it will
forward the request to the competent
authority to combat crime. The authority
sought to combat crime against crime shall
inform the requesting authority over the
transfer request to the competent authority
239
See Executive Committee Decision on cross-
border police cooperation handbook of 16.12 in
1998.
4
See also the Schengen Executive Committee
Decision of 28 April 1999 on improving police
cooperation in preventing and detecting crime
(published in OJL 239 of 22.09.2000, p. 421).
5 See also the Additional Protocol to the
Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data,
regarding supervisory authorities and transborder
flow of personal data, adopted in Strasbourg on 18
November 2001.
222
to combat crime, and it resolves the request
and sends the response directly to the
requesting authority to combat crime.
Where settlement is not possible under
the conditions contained in this application,
or is only partially possible, the authority
for combating or the Central Contact
Authority immediately inform the
requesting authority.
If at the receipt of the request it is not
possible in accordance with the terms, and
the reasoning for the establishment shows
that the time delay would jeopardize the
success of the requesting authority to
combat crime, crime control authority or
central authority requested contact
immediately inform the requesting
authority to fulfill the term necessary for
carrying the request. Following notification
requesting authority will decide if he wants
to deal with the request.
During the resolution request, the
authorities sought to tackle crime and other
authorities involved in resolving the request
will proceed according to the requirements
specified in the request, in accordance with
the law of the State whose authorities are
required240.
In elaborating the request there are some
elements to take into consideration: the
name of the requesting authority and the
authority requested, the object and purpose
of the request, description of material
covered by the application, their legal
framework, the urgency of the request, the
classification of the request, if applicable,
approval of judicial authorities if necessary;
request to participate in the settlement
request from the agent requesting authority
to combat crime; identification of the
person concerned, to the extent necessary to
resolve the request, if known; the agent
working on the case within the authority
crime against the applicant and his / her
contact information; how to use the
information provided at the outcome of the
application.
 In carrying out cooperation the
authorities to combat crime use the
Romanian, Hungarian and English
languages. If necessary, the authorities
concerned may also use other languages.
Settlement of claims for assistance on
certain categories of data241
The agreement provides that only the
central authorities can meet contacts in
accordance with their national legislation,
applications involving the teaching of data
that required authorities to combat crime
have purchased, on the approval of judicial
authorities, the tax authorities from
telecommunications service providers and
data from medical bodies and related data
handling, as well as economic data classified
as secret, to detect crime punishable by
imprisonment for at least two years.
Information exchange
To achieve cooperation, anti-crime
authorities shall transmit, on request242, the
following information: data of the persons
involved in organized criminal structures,
data about the links between suspects, the
structure of organizations and criminal
groups, behavioral patterns or groups of
suspects, information on training, or
attempts to commit crimes, particularly
those relating to time, place, modus
operandi, details of victims or property as
an object of the crime, information about
the particular circumstances and action
taken if they are necessary to prevent,
242
See also Law 146/2008 on Romania's accession
to the Treaty between the Kingdom of Belgium,
Germany, Spain, French Republic, the Grand
Duchy of Luxembourg, the Netherlands and
Austria on deepening cross-border cooperation,
particularly in combating terrorism, cross-border
crime and illegal migration, signed in Prm on 27
May 2005.
7 Urgent case definition: if the transmission
request for assistance through a central authority so
long transmission delays by local authorities or
preventive action that jeopardizes the success of
the investigation (according to Decision of the
Executive Committee of the border police
cooperation Manual 16.12 in 1998).
223
detect and combating crime, methods and
new forms of committing the crime,
forensic and criminological research
findings, details of the methods of
coordination of investigations, methods and
means of working for their future
development, descriptions and / or samples
of goods which are subject the offense,
which bears traces of crime or property
used to commit to it, and those used in the
commission of offenses or resulted from it,
legislation relating to crimes which form
part of the Agreement; data acquired about
the property seized during the crime
commission or in connection with this
crime, or its use.
In order to make the process of fighting
crime effective, the transmission and
resolution of the requests may take place
directly between the police, when: the
information is required in each of the
authorities responsible for combating crime
in border counties, and link the information
provided exclusively on border counties, or
exchange of information via the central
contact would lead to a delay that would
jeopardize the interests of the investigation
or the successful resolution of the request.
It is considered that the information is
related to border counties in particular if the
data refers to: a person specified in the
request, whose home or residence is in the
border counties, is very likely that person is
shown there during transmission request,
work in border counties by persons
specified in the request, which is very likely
that objects can be found in the border
counties, a legal person is located or
operating in the border counties.
Direct exchange information relates to
the following areas: providing data in
records to which authorities to combat
crime have access; identification,
confirmation of identity, residence;
verifying the existence, authenticity,
validity and limitations of driving license;
the transmission of unique data
identification of the vehicle (registration
number, chassis number, engine number);
identifying and confirming the identity of
the owner and holder, and drivers of
vehicles; checking the existence,
authenticity, validity and limitations of gun
permits; information about objects and
samples, looking for experts or specialists.
In urgent cases, in accordance with
domestic law of their state, authorities to
fight crime, on request, immediately, in
order to preserve evidence, conduct their
own state territory identifications, raids in
public places, stop and drive the person
sought competent bodies, inspect buildings,
construction sites, factual, clothing, packs
and vehicles where operational needs
require. On the measures taken, the
requesting authority to combat crime must
be immediately informed.
To remove an imminent danger to
public order or if the delay caused by
sending the request would jeopardize the
interests of combating crime, the authorities
may transmit information without request,
if necessary. Also, authorities for
combating crime shall inform each other
regularly on their own knowledge and
analysis on the situation of state criminal
and public order situation. If necessary,
there can be carried out joint assessments of
the state criminal situation and there can be
identified major issues of crime prevention,
and agreed steps to be taken.
At request, the authorities to combat
crime, in accordance with national laws of
their states, provide their mutual support in
finding a missing person or object,
identifying a person with unknown identity
or the identity of an unknown corpse.
Border surveillance
In the course of the investigation carried
out within their own state, authorities to
combat crime have the right to continue the
surveillance also on the neighboring state
territory of the person who is part of an
organized criminal group243 or is suspected
243
"The organized criminal group means a
structured group of three or more people who work
for a period of time and work together to commit
224
of committing a crime with intent, which,
according to national laws of each of the
two states, punishable by imprisonment for
at least five years, also for that person who
is, or get in touch with this, since, in the
request received in advance, the Central
Contact Authority of the State informed on
the consent from the competent authority.
This agreement may be conditioned.
If there is suspicion of the commission
of offenses listed above, the crime against
the two states can supervise persons
connected with the suspect only if there are
clues that this person can help to identify
the suspect or location, that can lead to it.
At the request of the authority to combat
crime, surveillance must be delivered
immediately to it. In the request, the two
countries can assist each other in cross-
border surveillance.
The authorization is valid for border
surveillance throughout the two states.
During cross-border supervision, common
border can be crossed and states outside
border crossing points and outside of their
operation.
If the delay caused by the transmission
request is a hazard or endanger the interests
of combating crime, then the cross-border
surveillance can be continued without
consent. In this case, at the border
crossings, the competent authority of the
other state must be notified promptly.
Subsequently, the request must be
submitted without delay, to the central
contact authority of another state. The
application must set out the reasons for
one or more crimes (crimes) and crimes in order to
obtain direct or indirect, of benefits in cash or other
consideration. "- United Nations Convention
against transnational organized crime, 2000
(published in Official Gazette no. 813 / 8 2002).
9 Contact central authorities are: a) for the
Romanian contracting, international police
cooperation: the International Police Cooperation
Centre of the Ministry of Interior and
Administrative Reform, b) the Contracting Party
Hungarian: International Criminal Cooperation
Centre of the National Police Headquarters .
crossing the border without prior consent.
Ongoing border surveillance should be
lifted once the authority of another crime
against the state requests it, and if, within
five hours after border crossing, the
necessary authorization to carry out
surveillance was not obtained.
Border surveillance can be conducted
only under the following conditions: agent
authority to combat cross-border crime
which carries out the surveillance act in
accordance with the law of the state;
however it is obliged to act in accordance
with the competent authority for fighting
crime depending on the place where
surveillance is carried out; only in special
cases the surveillance can be effected
without prior consent of the neighboring
state, in other cases the agent authority to
combat cross-border crime must have
documentation showing authorization to
conduct border surveillance; the agent
authority to combat crime must be able to
prove in any official capacity; it may not
enter into private homes or in places
inaccessible to the public; can only enter
the workplace, businesses and shops open
to the public during the opening hours of
them; in case of cross-border supervision
needs technical means, they can be used
only if permitted by the law of the
requested authority to combat crime;
technical means employed must be
specified in the request for authorization
supervision; in using vehicles they must
obey the traffic laws of the state requested
authority to combat crime.
Cross-border pursuit
Requesting authority may, without prior
approval, pursuit in the State requested
authority to combat crime that person has
committed or attempted to commit a crime
on the territory of the requesting authority
to combat crime; that crime that can be
grounds for issuing an European Arrest
Warrant, and: he was caught in the act, or
has escaped, being in custody on remand or
serving a sentence of imprisonment, and
delayed notification to the authority that
225
produces requested to combat crime would
considerably complicate catching the
person that would seriously jeopardize the
interests of combating crime and if the
requested authority can not fight crime
tracking over time.
In the situation described above, as soon
as possible, the competent authority of
another stat should be informed. Depending
on where the border crossing the competent
authorities (police officers appointed within
the police departments to combat cross-
border crime) are:
a) The Romanian State Inspectorate of
Satu Mare County Police, Border Police
Inspectorate of Satu Mare, Bihor County
Police Inspectorate, Inspectorate of Border
Police of Bihor county, Arad County Police
Inspectorate, Inspectorate Border Police
County Arad, Timis County Police
Inspectorate, the Border Police Inspectorate
of Timis County.
b) From the Hungarian State
Inspectorate of Police of Szabolcs-Szatmr-
Bereg county, County Police Inspectorate
Hajd-Bihar, Bks County Police
Inspectorate, Csongrd County Police
Inspectorate.
The pursuit ceases as soon as the
required authority to combat crime requires.
At the request of the requesting authority to
combat crime, the crime against the person
sought may turn proceeded to establish his
identity or to proceed to his detention.
If the requested authority to combat
crime does not require termination of
prosecution or it may be taken in a timely
manner by the requested authority to
combat crime, then the requesting authority
to combat crime may stop pursuing on-site
person. On this measure must be
immediately notified the competent
authority to combat crime in the
neighboring state.
Tracking can be continued throughout
the territory of a neighboring state without
time limit, the following conditions: the
pursuing police has a duty to act in
accordance with the provisions of the
Agreement between Romania and the
Republic of Hungary on cooperation in
preventing and combating cross-border
crime and the law of the State in whose
territory the pursuing is carrying out;
prosecution is possible only over land
borders244; the pursuing officer, in pursuit
may not enter into private homes or other
places accessible to the public; may enter
the workplace, businesses and shops open
to the public during their opening hours; the
pursuing officer must be able to prove in
any official capacity; in the use of motor
vehicles he must obey traffic laws of the
state; the agent authority to combat
pursuing crime must be identifiable by
wearing uniforms or distinguishing insignia
of identification placed on the vehicle; until
the arrival of the competent authorities to
combat crime, objects found on the person
must be preserved in safe places; the
authority engaged in pursuing shall issue
without delay a report on the results of the
prosecution that will be submitted to the
competent authority or central contact
authority of the neighboring state.
On this occasion, at the request of the
authority fighting against crime the agent is
obliged to be present throughout the period
necessary to properly clarify the
circumstances under which prosecution was
conducted - this procedure is required even
if the prosecution is not completed or not
ended with the detention or arrest of the
person pursued.
The pursued person is heard off by the
control authority of the state on whose
territory he was stopped. Personal liberty of
the person stopped may be limited under
the laws of the State in which it was
stopped.
244
Land borders are represented as the land
borders and boundaries established in the
waterways (rivers or streams) or lakes - Basic
Regulation 562/2006 of the European Parliament
and the Council of 15 March 2006 establishing a
Community Code on the rules governing the
movement of persons across borders (Schengen
Borders Code).
226
Supervised deliveries
Based on a request, the states may, in
accordance with their national legislation
allow deliveries supervised by their own
State territory.
The requirement, in addition to
previously established data, must contain:
data on the consignment, the route,
probable duration and mode of transport,
the identification of the vehicle; how to
accompanying, data on technical means
employed, the number of participants.
Accompanying the requesting authority
to fight crime, undercover investigator
participation, how to maintain the link
between participants in the controlled
delivery, the circumstances of teaching and
taking over transport, measures to be taken
during the detention, measures to be taken
in case of unforeseen events.
If the delay caused by the transmission
request is a hazard or endanger the interests
of combating crime, then the controlled
delivery request can be sent, respectively
received directly by the authorities to
combat crime. Subsequently, the request
must be submitted without delay to contact
the central authorities. The request must be
attached and the documents underlying the
controlled delivery.
Authorities for combating crime agree
on the timing, method of making
supervised delivery, conditions of
collaboration between them, on a case by
case basis. Authority sought to combat
crime may stop or interfere with the
conduct of controlled delivery, if it
endangers the persons involved in carrying
out the controlled supply and public order.
Deliveries shall be coordinated by the
required authorities to combat crime;
requesting authority to combat crime must
be informed of the person coordinating.
Controlled delivery must be made so that
the transmission can be stopped at any time.
Following the takeover, demanding the
authorities to combat crime, may
accompany the transport, but can not
exercise authority. Meanwhile, the required
authorities for combating crime should
proceed in accordance with those provided
in this Article, with national laws of the
state authority to fight crime and the
provisions of the required supervisor in
charge with combating crime.
In case of existing the conditions
contained in this Agreement, the crime
control also provides supervised completion
of the delivery, started in a third country
and arriving in another state. In this case,
the prior agreement of the States concerned
will be obtained by requesting the
authorities to fight crime and inform about
the required authorities to combat crime.
Using undercover investigator
Following a request in accordance with
national law, each state can use his own
undercover state investigator245 in other
state where this is necessary for the
discovery of crimes committed or in
preparation in the territory of neighboring
states, punishable by deprivation of
freedom, assuming that the discovery of the
crime without the use of undercover
investigator is not possible or would be
substantially more difficult.
At the request of the requesting
authority to fight crime, on the territory of
the requested authority to combat crime,
can be used also the undercover
investigator of the requested authority to
combat crime.
Authorization for the use of undercover
investigator is always valid for the both
states, for the whole country.
Request for use undercover investigator
must contain, in addition to the above data,
the following: the period of using
245
Undercover investigator is the operative
worker, a member of the anti-crime authorities
invested with powers in this area, acting on the
causes and conditions of the internal laws of the
Contracting Parties, without disclosing his identity
and belonging to the above authorities mentioned
(as defined in the Agreement between Romania
and the Republic of Hungary on cooperation in
preventing and combating cross-border crime,
signed in 2008 in Szeged 21.10)
227
undercover investigator; using undercover
investigator conditions; rights and
obligations of the undercover investigator;
measures taken in the case exposes the
former undercover investigator; the
provisions establishing the criminal liability
of undercover investigator and the
provisions of law rules determine the
liability for damage caused within the scope
of the undercover investigator.
Using undercover investigator is
prepared jointly by the authorities to
combat crime in the two states and is
always limited to individual cases and for a
specified period not exceeding six months.
In special situations during the use of
undercover investigator can be extended to
one year. Undercover investigator may
begin work as agreed between the
authorities to combat crime, after obtaining
approval.
When the undercover investigator is
working in the neighboring territory of the
requesting authority to fight crime, undercover
investigator coordination is carried out by the
requesting authority to fight crime.
At the request of the fight against crime
required the use of undercover investigator
should be terminated immediately.
Authority to combat crime may provide
support regarding personnel, organizational
and technical assistance to the undercover
investigator. International Crime Prevention
Authority takes all necessary measures
required to ensure the safety of undercover
investigator of the requesting authority to
combat crime.
After the use of undercover investigator
stopped, the results of its use must be
notified in writing immediately and
transmitted to the requested authority to
combat crime.
Undercover investigator activity is
subject to state law of the required authority
to fight crime, provided that it not comes
into conflicts with other state authorities to
fight crime.Joint Investigation Teams
Under national law, the authorities to
combat crime from Romania and Hungary,
by understanding each individual case, may
establish joint investigative teams,
especially if extending the investigation of
crimes in several European Union member
states is particularly difficult, or if further
investigation and management of work to
combat crime authorities of both countries
are needed.
The joint investigation team should
include: description of the offense for
which the joint investigation team has been
set, the action of business conditions,
duration and conditions of extension, the
composition of the joint investigation team
and its head, obligations, agents assigned to
the joint investigation team, information on
criminal and material liability of the agent
seconded to the joint investigation team,
organizational measures and rules for
bearing the cost of operation.
If for participation in certain activities
of the joint investigation team to combat
crime the agent deployed joint investigation
team needs approval, according to state law
required the authority to combat crime,
participation is possible only after approval.
Requested authority to combat crime
shall ensure, if possible, the conditions
necessary for the operation of the joint
investigation team.
The agent of the requesting authority to
combat crime, deployed in joint
investigation team, has no right to take
independent action on the territory of the
requested authority to combat crime.
The agent of the requesting authority to
combat crime deployed in the joint
investigation team can deliver classified
information in its possession, officials
authority to combat crime as part of the
joint investigation team under the same
circumstances and conditions as their own
authorities to fight crime .
Data made available to the joint
investigation team may only be used for the
following purposes: investigating the crime
for which the investigation was a joint
investigation team set up, investigating
another crime, the prior consent of crime
228
against the state that teach information,
with the purpose of preventing a crime
which directly and seriously endangers
public order, and without prejudice to the
investigation of other crimes, if it is started
on a criminal case.
During operation, the agent of the
requesting authority to combat crime
deployed in joint investigation team may
use persons who cooperate with authorities
to combat crime in their own state.
Authorities to combat crime should
provide support to that person, at least
protection under their state law on the
protection of persons who cooperate with
authorities to combat crime.
Information gathering
During investigations on request and on
the domestic laws of their states,
enforcement can gather information to
combat crime in secret, informing each
other on the results.
Request made for this purpose should
contain: the name means or method, during
the collection of information, the
information recorded and delivered, how
the teaching of information, how it will
support the collection of information held
on the territory of a neighboring state,
confirming that collecting information in
connection with criminal investigations
underway in the State requesting authority
to combat crime was legally authorized.
Authority sought to combat crime starts
carrying out the request based on its
domestic legislation, if necessary, after
obtaining the approval of judicial authority.
Collaboration on common points of
contact246
Near the common state border, in order to
246
See also the Convention of 07 July 2005 Prm
on enhancing cross-border cooperation,
particularly on issues of combating terrorism, cross
border crime and illegal migration, art. 6, 15 and
22.
13 See also the Convention of 07 July 2005 Prm
on enhancing cross-border cooperation,
particularly on issues of combating terrorism, cross
border crime and illegal migration, art. 28.
facilitate information exchange, the
authorities use the existing contact point and,
if necessary, establish new points of contact.
Inside the common points, officials of
the authorities to combat crime in the two
countries operate within their competence,
in a joint headquarters. In its agencies work
together to direct exchange of information
that help to strengthen cooperation.
Support may include training or
collaboration in the teaching - receiving
persons under international agreements to
which both countries are party.
Agents of the authorities to combat
crime who fulfill their service in the
common points of contact are not allowed
to take other measures than those set out in
this, and professional and disciplinary
subject line of their national authorities.
Contracting Parties may, by agreement,
such as in the common points of contact
agents can participate in crime fighting
authorities of a third country.
The legal status of agents acting on the
territory of other states
Rules regarding entry, exit and residence
Agents for International Crime Prevention
authorities may enter into the neighboring
state on basis of valid service ticket with a
photo and can remain on its territory in the
performance of his duties that may leave its
territory without special permission.
Undercover investigator in the discharge
of his duties, may enter, stay and exit to and
from the territory of the requested authority
to fight crime with the documents necessary
coverage without special approval.
Rules for wearing the uniform, use of
coercion, of weaponry and equipment247,
criminals apprehension rules
Unless otherwise specified, the territory
of the requested authority to combat crime,
anti-crime agent requesting authority is
entitled: to wear uniforms, to stop and catch
the person caught in the act or while
attempting to escape with the obligation to
immediately hand in the criminal to the
229
fight against crime competent authority of
another state.
While performing authority in the State
Crime Prevention, the specific tasks required
and while traveling to and from their place
of work, the agent requesting authority to
combat crime may carry their service
weapons and equipment. Service weapon
can be used only in self defense or in a state
of emergency. In the course of their duties,
anti-crime agent requesting authority may,
on the territory of the requested authority to
combat crime in accordance with domestic
law and in accordance with the principle of
proportionality, the following restraints:
physical restraint, handcuffs, devices
irritating substances spreading tear or those
with electric shock baton, side handle baton
and service dogs.
Authorities to combat crime provide
training to the authorities from the
neighboring village acting on their territory,
on conditions of use of means of coercion.
Provisions on criminal liability248
The agents of the authorities to combat
248
See also the Convention of 07 July 2005 Prm
on enhancing cross-border cooperation,
particularly on issues of combating terrorism, cross
border crime and illegal migration, art. 31.
15 See also under Community law: the
Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data,
adopted in Strasbourg on 28 January 1981 by the
Council of Europe Additional Protocol to the
Convention for the Protection of Individuals with
regard to automatic processing of personal data,
with the supervisory authorities and trans-border
flow of personal data, adopted in Strasbourg on 18
November 2001 Council Framework Decision on
simplifying the exchange of information and
intelligence between law enforcement authorities
of the Member States of the European Union
(2006/960/JHA of December 18, 2006)
16 Classified information means all data,
regardless of shape, layout and circulation, must be
protected in order not to be known by unauthorized
persons, and are qualified as any of the authorities
of the two countries, in accordance with national
law (in a final agreement on equivalences are
provided classification levels - for example,
SECRET: Hungarian Bizalmas, Romanian, Secret,
English, Confindential).
crime, operating on neighboring state receive information about existing data on
territory are subject to the same legal it, as well as use this data only if the supply
regime in respect of crimes committed by of such information does not affect the
them or against them, as the members of activities to prevent, detect and combat
the authorities to combat crime in the state crime and maintain public order and not
on whose territory they carry out their jeopardize the interests of combating crime.
activity. Party teaches and the acquirer will consult
Privacy on the content of the response that will give
The scope of personal data that can be the person involved. The receiving Party
transmitted shall request the person concerned as the
Authorities for International Crime outcome of consultations.
Prevention of the two countries may Processing of personal data in the
exchange personal data, as follows: name, activity on the territory of neighboring
previous surname, first name, other names Inspection of personal data obtained
(aliases, aliases, nicknames), sex, date and during the activity on neighboring state
place of birth, residence, citizenship of territory is the responsibility of the
persons participating in the commission of competent authorities of the state where
crimes, data on identity documents, these data have been acquired. Processing
passport or other travel documents of personal data takes place under the
(number, issue date, issuing authority name, domestic law of each state, including here
place of issue, period validity, the territorial the regulations relating to classified
validity) of the persons mentioned in the information. During the process the
previous paragraph, data on fingerprints provisions regarding the approval of the
and palm prints, profile, DNA sample, competent authority must be observed.
physical description, legal photo of people Officers of the Authority for International
participating in the crime, the personal data Crime Prevention who perform their duties
from information relating to: identification, in the territory of a neighboring state cant
confirmation of identity, residence, existing be provided with direct access to personal
data records to which authorities to combat data processed automatically.
crime have access, the existence, In conclusion, we affirm that the
authenticity, validity and limitations of Agreement between Romania and the
driving, the vehicle's unique identification Republic of Hungary on cooperation in
data, identification and confirmation of the preventing and combating cross-border
identity of the owner and holder, and crime clearly states the rules necessary to
drivers of vehicles, the existence, carry out jointly and in good condition so
authenticity, validity and restrictions of gun that the police activity, including from the
permits, information about objects and perspective of enlargement of the Schengen
specimens, experts or specialists. area, to bring their contribution, along with
Informing the people involved other EU Member States / Schengen area to
The person involved on request can strengthen security, freedom and justice.
Selective Bibliography:
Additional Protocol to the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data, regarding supervisory authorities
and trans-border flow of personal data, adopted in Strasbourg on November 18, 2001
Convention for the Protection of Individuals with regard to Automatic Processing
of Personal Data, adopted in Strasbourg on 28 January 1981 by the Council of Europe
Convention implementing the Schengen Agreement on the gradual abolition of
checks at common borders, adopted on June 19, 1990
230
 Council Decision on implementation of Decision 2008/615 on border cooperation,
particularly in combating terrorism and cross-border crime (2008/616 of 23 June 2008)
Regulation 562/2006 of the European Parliament and the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code)
Council Decision on stepping up cross-border cooperation, particularly in combating
terrorism and cross-border crime (2008/615 of 23 June 2008)
Council Framework Decision on simplifying the exchange of information and
intelligence between law enforcement authorities of the Member States of the
European Union (2006/960/JHA of 18 December 2006)
Executive Committee Decision on the Handbook on cross-border police cooperation
(16 December 1998)
GEO. 104/2001 on the organization and functioning of the Romanian Border Police,
as amended and supplemented (Law 81/2002, Law 196/2004)
GEO.103/2006 regarding some measures for facilitating international police
cooperation, approved by Law no. 104/2007
Law 146/2008 on Romania's accession to the Treaty between the Kingdom of
Belgium, Germany, Spain, French Republic, the Grand Duchy of Luxembourg, the
Netherlands and Austria on deepening cross-border cooperation, particularly in
combating terrorism, cross border crime and illegal migration, signed in Prm on 27
May 2005
Law 311/2009 ratifying the Agreement between Romania and the Republic of
Hungary on cooperation in preventing and combating cross-border crime, signed in
Szeged on 21 October 2008
Law. 218/2002 on the organization and functioning of the Romanian Police, as
amended and supplemented (Law 281/2003, Law 60/2009)
Law. 302/2004 on international judicial cooperation in criminal matters, as amended
and supplemented (Law 224/2006 and GEO 103/2006, Law 222/2008)
Law. 682/2001 regarding the ratification by Romania of the Convention for the
Protection of Individuals with regard to Automatic Processing of Personal Data, adopted in
Strasbourg on 28 January 1981

231
 LA POLITIQUE TRANGRE ASSERTIVE
DE LUNION EUROPENNE RALISE PAR LA STRATGIE
DE SCURIT EUROPENNE
Asist.univ.dr. SERGIU ADRIAN VASILE
Asist.univ. drd. GEORGIANA GHIESCU
Acadmie de Police Alexandru Ioan Cuza
Chaire de Police de frontire, prparation Schengen et langues trangres
IOANA ANDREEA EPURE
Inspectorat General de la Police Roumaine
L'Institut de Criminalistique

In an era of globalisation, distant threats may be as much a concern as those that are
near at hand. Nuclear activities in North Korea, nuclear risks in South Asia, and
proliferation in the Middle East are all of concern to Europe. Terrorists and criminals
are now able to operate world-wide: their activities in central or southeast Asia may be a
threat to European countries or their citizens. Meanwhile, global Enlargement should
not create new dividing lines in Europe. Resolution of the Arab/Israeli conflict is a
strategic priority for Europe communication increases awareness in Europe of regional
conflicts or humanitarian tragedies anywhere in the world.
Mots cls: stratgie, partenariat, coopration, Acquis Schengen, perspectives.
La stratgie sans tactique est le plus long chemin vers la victoire.
La tactique sans stratgie est le bruit davant la dfaite*.
*
Lao Zi (philosophe chinois, fondateur du taoisme) in Tao Te Ching - Cartea Cii i a Virtuii

Introduction tandis que dautres sont apparus dans notre

Sept ans aprs ladoption de la Stratgie
de scurit europenne, lUnion Europenne
prend des responsabilits de plus en plus
grandes, gardant en mme temps son statut
de point de stabilit. Son largissement a
rpandu la dmocratie et la prosprit sur le
continent, la politique de voisinage crant un
cadre puissant pour les relations avec les
partenaires du sud et de lest, ayant prsent
une nouvelle forme donnee par lUnion
pour la Mditerrane et par le Partenariat
pour lEst. A partir de 2003, lUnion
Europenne a connu un grand changement
en ce qui concerne la gestion des crises et
des conflits, dans des rgions comme
lAfghanistan ou la Gorgie.
Mais, 20 ans aprs la Guerre Froide,
lEurope se confronte avec des menaces et
des dfis de plus en plus complexes. Les
conflits du Moyen Orient et dautres
rgions du monde restent sans solution,
232
voisinage. Les checs des Etats affectent la
scurit europenne cause de la
criminalit, de limmigration illgale et
aussi de la piraterie. Le terrorisme et la
criminalit organise ont considrablement
augments, en dterminant de nouvelles
menaces dans nos socits. Le programme
nuclaire de lIran a vraiement progress,
tant prsent un vrai danger pour la
stabilit et pour le rgime de non
prolifration249.
La globalisation a attir de nouvelles
opportunits. Les pays en voie de
dveloppement, comme par exemple la
Chine, ont fait sortir de la pauvret de
millions des gens. Mais, en mme temps la
249
Rapport sur la mise en application de la
Stratgie europenne de scurit La scurit dans
un monde en changement - Bruxelles, 11 dcembre
2008 S407/08, p.1.
globalisation a conduit vers des menaces de
plus en plus complexes. Les systmes
informatiques et la fourniture dnergie
sont plus vulnrables. Le rchauffement
global et la dgradation de lenvironnement
modifient la terre. Dailleurs, la
globalisation acclre les changements de
pouvoir et met en vidence les diffrences
des valeurs.
Un des plus urgents problmes est le fait
que lUnion Europenne doit commencer
dvelopper une identit de scurit et de
dfense qui puisse laider parfaire son
statut dentit internationale. LUnion
Europenne a commenc participer un
nombre de plus en plus grand doprations
pour assurer la paix et la scurit
internationale: le maintien de la paix, la
cration de nouvelles forces de police, la
rforme des forces militaires ou de celles
qui assurent la protection des frontires250.
La crise financire a mis en danger tant les
conomies dveloppes, que celles en voie
de dveloppement.
Lanalyse des plus importants repres
de la Stratgie de scurit europenne
La scurit europenne reprsente une
prcondition de la prosprit et de la libert.
Cest pourquoi lUnion Europenne traite
dans une premire stratgie de scurit tant
des mesures de scurit civile que des
mesures militaires251. Dans cette premire
stratgie de scurit europenne, dans le
premier document officiel Une Europe
plus sre dans un monde meilleur le
milieu de scurit est considr comme
250
Des 23 missions auxquelles lUnion
Europenne veut participer, 13 se droulent
encore. Overview of the missions and operations of
the European Union, dcembre 2009.
251
La stratgie de scurit de lUnion
Europenne a t adopte par le Conseil Europen
en dcembre 2003 et il sagit dun effort pour
identifier et appliquer un concept stratgique de
lUE qui puisse valuer les risques et les menaces
communes lgard de la scurit europenne, tout
comme les moyens ncessaries pour liminer les
risques. (La Stratgie de Scurit de lUE, A secure
Europe n better world, dcembre 2003, Bruxelles,
www.europa.eu.int).
celui des frontires de plus en plus ouvertes
dans lequel les aspects de scurit intrieure
et extrieure sont lis, et une prcondition
du dveloppement est dassurer la scurit
parce que les conflits dtruisent
linfrastructure, y inclus celle sociale, mais
encourage en mme temps la criminalit,
dcourage les investissements et rend
impossible lactivit conomique
habituelle252.
La politique trangre et de scurit
commune reprsente donc le cadre
institutionnel qui permet lUnion
Europenne de sexprimer dune manire
unitaire en ce qui concerne les problmes
de politique trangre, en consolidant sa
lgitimit au niveau international. Bref, il
sagit du mcanisme et de la motivation qui
conduit lvolution des stratgies, les
institutions impliques dans cette dmarche
tant dj oprationnelles et offrant
lUnion Europenne les mcanismes de
ngociation dans la politique trangre et de
scurit253.
Lapplication de la Politique trangre
et de scurit commune au niveau europen
naffecte pas le droit des Etats membres de
mettre en pratique leurs propres politiques
trangres et de scurit et leur offre un
moyen supplmentaire daction254. La
principale responsabilit de cette stratgie
appartient au Conseil Europen, qui dfinit
les principes gnraux et tablit les
stratgies communes. Le plus important
objectif tait celui dassurer lidentit de
lUnion Europenne dans lespace
252
Dans ce document on parle aussi de certains
pays qui sont impliqus dans des conflits et cest
pourquoi la comptition pour les ressources
naturelles sera aggrave cause du rchauffement
global et on parlera de de la migration dans
certaines rgions. Selon la Stratgie de Scurit de
lUE www.europa.eu.int;
253
Interview de Jonathan Scheele: Romnia i
Uniunea European, la Revue Studii de Securitate,
nr.2, Ed. Unap, 2004,
254
Lumea 2005: enciclopedie politic i militar
(studii strategice i de securitate), Editura
Centrului Tehnic Editorial al Armatei, Bucureti,
2005, p. 225.
233
international, par la ralisation dune
politique trangre et de scurit commune
qui pourrait conduire, lavenir, une
dfense commune.
Au dbut laquis Schengen na pas fait
partie du cadre lgislatif communautaire,
mais aprs la conclusion du Trait
dAmsterdam, le 2 octobre 1997, entr en
vigueur le 1 mai 1999, les choses ont
chang. Un protocole annex au Trait
dAmsterdam a introduit lacquis Schengen
dans le cadre lgislatif et institutionnel de
lUnion Europenne. Cest pourquoi
lacquis Schengen appartient prsent la
lgislation communautaire et a t transfr
dans le nouveau Titre IV Visas, asile,
immigration et dautres politiques lies la
libre circulation des personnes, de TUE.
Lacquis Schengen a t intgr dans le
cadre juridique de lUnion Europenne par
lintermdiaire des protocoles annexs au
Trait de lAmsterdam255 en 1999. Le 20
mai 1999 on a adopt une dcision du
Conseil en vue de dterminer, en
conformit avec les dispositions du Trait
instituant la Communaut Europenne et du
Trait sur lUnion Europenne, le cadre
juridique pour chacune des dispositions ou
des dcisions qui constituaient lacquis
Schengen.
A partir du 1 mai 2000, lacquis
Schengen devient obligatoire pour la
Rpublique Tchque, la Rpublique
dEstonie, de Chypre, de Lettonie,
lHongrie, la Pologne, la Slovnie et la
Slovaquie sous sa forme dintgration dans
le cadre juridique de lUnion Europenne
par le protocole annex au Trait sur
lUnion Europenne et au Trait instituant
la formation de la Communaut
Europenne.
Certaines dispositions de lacquis
Schengen sappliquent en mme temps avec
ladhsion de nouveaux Etats lUnion
Europenne. Dans ces Etats membres,
dautres dcisions sont appliques seulement
255
Publi dans le Journal Officiel de lUnion
Europenne C 340 du 10 novembre 1997.
234
en respectant la dcision du Conseil dans ce
sens. Finalement le Conseil a pris la dcision
de renoncer aux contrles frontaliers, aprs
avoir vrifi, en conformit avec les
procdures dvaluation Schengen
applicables dans ce domaine, si on accomplit
les conditions ncessaires mme aprs la
consultation du Parlement Europen. En
2004, la Confdration Suisse a conclu un
accord avec lUnion Europenne et la
Communaut Europenne concernant sa
contribution la mise en application, au
respect et au dveloppement de lacquis
Schengen256, qui doit tre corrobor avec la
dcision 2004/860/CE du Conseil concernant
la conclusion au nom de la Communaut
Europenne et lapplication provisoire de
certaines dispositions de cet accord.
Le procs qui a conduit ladoption du
Programme de Stockholm a connu dj
plusieurs contributions, parmi lesquelles le
Pacte europen sur limmigration et
lasile257, Les Rapports du groupe
consultatif concernant lavenir de la
politique europenne dans le domaine des
affaires intrieures et de la justice258, tout
comme les contributions reues par la
Commission Europenne, en septembre et
novembre 2008, dans le cadre du procs de
consultation publique sur le sujet Lavenir
en matire de libert, de scurit et de
justice Consultation sur les priorits au
cours des prochains cinq ans259.
En juin 2009, la Commission a publi
loeuvre Un espace de libert, de scurit et
de justice au service des citoyens Une
256
Publi dans le Journal Officiel de lUnion
Europenne C 370 du 17 dcembre 2004
257
Pacte europen sur limmigration et lasile,
Conseil de lUnion Europenne, Bruxelles,
13440/08, 24 septembre 2008
258
Rapport du groupe consultative sur lavenir de la
politique dans le domaine des affaires Liberty,
Security, Privacy: European Home Affairs in an
Open World (Libert,, securit, protection de la
vieprive: les affaires intrieures europennes
dans un monde ouvert), juin 2008.
259
http://ec.europa.eu/justice_home/news/consultin
g_public/news_consulting_0001_en.htm, source
en-ligne le 16.03.2010, 08 heures.
plus grande libert dans un milieu plus
sr260, oeuvre qui prsentait le point de vue
et les recommandations CESE sur le procs
de Stockholm. Aussi, CESE a labor un
avis261 destin la Convention, dans lequel
on mettait en vidence lopportunit
daccorder la citoyennet europenne aux
ressortissants des pays tiers, qui avaient le
statut de rsidents long terme.
Aussi, le Comit a donn un avis262 dans
lequel on proposait que les politiques et les
lgislations de lUnion Europenne sur
limmigration et les frontires respectent les
droits de lhomme et mettent la libert et la
scurit au centre de leur proccupation.
Dans ce contexte il faut remarquer la
priorit accorde la formation dune
Europe des droits, tant donn le fait que la
protection des droits et des liberts
fondamentales, consacre par la Carte des
droits fondamentaux, reprsente une valeur
essentielle de lUnion Europenne263.
Les objectifs stratgiques dans la
scurisation de lUnion Europenne
Lvaluation et la prvention des
menaces
Mme si prsent lUnion Europenne
nest pas menace par des conflits
260
Communication COM(2009) 262 finale de la
Commission vers le Parlement Europen et le
Conseil, Un espace de libert, de scurit et de
justice au service des citoyens, Bruxelles,
10.6.2009.
261
Avis CESE du 14.5.2003 concernant laccs
la citoyennet de lUnion Europenne.. Raporteur:
M. Pariza Castaos, publi dans le Journal Officiel
de lUnion Europenne C208, 03.09.2003.
262
Avis CESE du 03.09.2003 sur le thme Le
respect des droits fondamentaux dans la
lgislation et dans les politiques europennes en
matire dimmigration .Raporteur: M. Pariza
Castaos, publi dans le Journal Officiel de
lUnion Europenne C208.
263
Avis CESE du 25.2.2009 concernant la
communication de la Commission vers le
Parlement Europen, vers le Conseil, vers le
Comit Economique et Social Europen et vers le
Comit des Rgions concernant une politique
commune dimmigration pour lEurope:
principes, actions et instruments. Raporteur: M.
Pariza Castaos. publi dans le Journal Officiel de
lUnion Europenne C 218, 11.9.2009.
235
habituels, comme par exemple des vols
main arme grande chelle, elle connat
dautres menaces. Du point de vue
europen on peut parler du terrorisme
international, qui reprsente une menace
stratgique. Ce nouveau type de terrorisme
est li aux conflits dordre religieux, dont
les causes sont varies.
Sauf les risques immdiats, le terrorisme
menace louverture et la tolrance propres
aux socits dmocratiques ; la
prolifration des armes de destruction
massive, reprsente le plus grand risque
pour la scurit europenne, les risques
produits par ce type de menace tant
dtermins par le fait que, cause des
armes de destruction massive un groupe
trs petit de terroristes peut provoqu des
pertes quauparavant ne pouvaient pas tre
provoques que par les armes des Etats
nationaux ; linstabilit tatique : dans
certains pays (la Somalie, lAfghanistan, le
Kosovo) les structuctures tatiques faibles,
les conflits civils et laccs aux armes ont
conduit un dveloppement de la
criminalit organise, ces situations
reprsentant des menaces la scurit
nationale ; les conflits rgionaux de
voisinage (du Moyen Orient, du Nord de
lAfrique, de Caucaz et de la Transnistrie)
peuvent conduire la violence,
lextrmisme, aux meurtres et la
destructions de linfrasctructure ; la
demande pour des armes de destruction
massive est stimule ; la criminalit
organise menace lEurope par le trafic de
drogues, le trafic de personnes,
limmigration illgale et le trafic illgal
darmes. Les relations entre le terrorisme
international et la criminalit organise sont
ainsi videntes264.
3.2 Le renforcement de la scurit
rgionale bas sur des actions efficaces
de coopration.
On parle ici du grand intrt lgard
du gouvernement des Etats voisins ;
llargissement de lUnion Europenne ne
264
Stratgie de Scurit de lUE, A secure
Europe n better world, decembrie 2003,
Bruxelles, pe www.europa.eu.int
doit pas dterminer de nouvelles lignes de
dmarcation ; la tche de lUnion
Europenne est de promouvoir des Etats
forts, bien gouverns lEst de lUnion (on
met laccent sur le dialogue et sur la
coopration avec les Etats du bassin
mditerranen, du Moyen Orient et de
Caucaz, la rsolution du conflit arabo-
isralien tant une priorit stratgique pour
lUnion Europenne).
3.3 Le maintien de lordre
international par la promotion dun
multilatralisme effectif
Le dveloppement dune forte
communaut internationale, avec des
institutions fonctionnelles, gouvernes
selon les principes de droit international.
Par rapport ces dernires, le document
souligne le fait que la premire ligne de la
dfense sera le plus souvent en dehors de
lUnion Europenne et que les europens
doivent tre prts pour agir avant
lapparition dune crise de cette manire
le concept stratgique europen sinscrit
dans la logique de labordation prventive
nonce en septembre 2002, par la nouvelle
Stratgie Nationale de Scurit des Etats-
Unis, mme si on ne prcise pas la
possibilit dun attaque prventif. LEurope
doit prendre plusieurs missions qui puissent
inclure, ct des tches de type
Ptersbourg, des oprations habituelles de
dsaremement, aide pour les pays tiers dans
la lutte contre le terrorisme et la rforme du
domaine de scurit.
4. Les principaux partenariats
stratgiques de lUnion Europenne
4.1. Le maintien de la relation
transatlantique avec les Etats-Unis dans
le cadre de lOTAN
Au niveau des relations internationales,
les relations de lUnion Europenne avec
les Etats-Unis sont trs complexes. Tant les
Etats-Unis que lEurope ont t toujours
conscients tant des diffrences que des
interdpendences rciproques265.
Aprs la fin de la Guerre Froide, au
265
Werner Weidenfeld, Die Neue ra der
Transatlantischen Beziehungen, Internationale
Politik 6 (2001), pp.1-9.
236
centre de lattention transatlatique ont
apparu beaucoup de diffrences : des
ractions diffrentes dans des situations
internationales de crise, concernant la
prolifration nuclaire, envers la lutte
contre le terrorisme, dans la protection de
lenvironnement, pendant que les conflits
commerciaux ont augment266. Les Etats-
Unis, pragmatiques, orients vers des
rsultats ngatifs concernant le difficile
mcanisme de la prise de dcisions qui
suppose lintgration europenne ont t
accuss par les europens de ne pas pouvoir
comprendre limportance de cette dmarche
multilatrale267.
Ces tendences divergentes de 1990 ont
t reprsentes par Robert Kagan par une
image suggstive des habitants de deux
plantes diffrentes. Selon lui, les
europens avec leur attraction envers le soft
power, envers la coopration multilatrale,
envers la rsolution lamiable des
situations de crise, ressemblaient des
pacifistes, des habitants de Vnus, tandis
que les amricains, plus convaincus en ce
qui concerne la possibilit de recourir des
mesures militaires, de hard power,
ressemblaient aux habitants de Mars268.
Aprs que lUnion Europenne a
commenc dvelopper sa propre identit
de scurit, les diffrences ont commenc
apparatre, devenant de plus en plus visibles
surtout dans la relation de lUnion
Europenne avec lOTAN.
Les pas faits au dbut des annes 2000
266
David Hastings Dunn, Assessing the Debate,
Assessing the Damage: Transatlantic Relations
after Bush British Journal of Politics and
International Relations 11 (2009): 9-11 i Alex
Danchev, How Strong are Shared Values in the
Transatlantic Relations? British Journal of Politics
and International Relations 7 (2005), pp. 429-436.
267
Georgiana Ciceo, Politica extern a
administraiei Obama: restructurare sau doar
schimbare de direcie? n: Marius Jucan (ed.)
America, azi. Studii de americanistic (Cluj-
Napoca: Tribuna, 2010), pp. 161-189.
268
R. Kagan, Of Paradise and Power: America
and Europe in the New World Order (NY Vintage
Books, 2004), 3-11.
nont pas conduit vers un largissement
significatif des domaines daction
commune, ce qui a dtermin lancien
secrtaire gnral de lOTAN Jaap de Hoop
Scheffer dclarer que la coopration entre
les deux organisations reste quand mme
limite269, malgr les dmarches effectues
dans la gestion des situations de crise, tout
comme celles de la Macdonie (2003), de
Bosnie-Herzgovine (2004), Afghanistan
(20070, Kosovo (2008), Darfur (la mission
de lUnion Europenne) ou celles de lutte
contre la piraterie du nord-ouest de lOcan
Indien (2008).
LOTAN a labor un nouveau concept
stratgique loccasion du Sommet de
Lisbonne de novembre 2010. Aprs la
priode de ladministration Bush, priode
dans laquelle les relations transatlantiques
sont arrives un point de minimum
historique270, lactuel prsident amricain a
manifst sont intrt pour le
renouvellement du partenariat avec
lEurope, un partenariat dans lequel les
Etats-Unis coutent et apprennent de leurs
amis et de leurs allis, partenariat dans
lequel les amis et les allis sont daccord
accomplir leur tche271. Il sagit donc dun
moment favorable pour rviser les dlais du
partenariat transatlantique, et surtout du
partenariat relatif aux problmes de scurit
dans le cadre de lOTAN. En ce qui
concerne lUnion Europenne, elle a essay
de mieux dfinir lidentit de scurit grce
un document adopt Lisbonne, mais en
2007, et il sagit du Trait de rforme.
Du point de vue institutionnel, le Trait
269
Jaap de Hoop Scheffer, NATO and the EU:
Time for a New Chapter, Keynote speech by
NATO Secretary General, Berlin, 29 ianuarie
2007,
http://www.nato.int/docu/speech/2007/s070129b.ht
ml
270
Hastings Dunn, Assessing the Debate,
Assessing the Damage, 17-22.
271
Biroul de Pres al Casei Albe, Remarks by
President Obama at Strasbourg Town Hall,
Strasbourg, 03 aprilie 2009,
http://www.whitehouse.gov/the_press_office/.
renforce la position du Conseil dans le
cadre de lAssemble dcisionnelle, ce qui
signifie que lactivit de ce domaine
continuera tre influence par la mise en
balance des avantages qui rsultent de
laugmentation du pouvoir de ngociation
et des cots qui dterminent un compromis
entre des intrts divergents272.
Avant de parler sur les innovations
apportes par le Trait de Lisbonne
envisageant les capacits et les ressources
militaires, on doit souligner le fait que
lUnion Europenne est incapable de les
unifier dune manire cohrente273. Cest
pourquoi, partir de 2004 on a fond
lAgence Europenne pour la dfense ayant
des attributions prcises dans ce domaine.
Grce au Trait de Lisbonne cette
institution a t intgre dans le cadre lgal
de lUnion Europenne, dont le but, selon
larticle 45 tait de contribuer
lidentification des objectifs concernant les
capacits militaires des Etats membres, de
promouvoir lharmonisation des ncessits
oprationnelles, de coordonner les
programmes drouls par les Etats
membres, de soutenir la recherche en
matire de technologie de la dfense, de
coordonner et de planifier les activits
communes de recherche.
Mais si le trait ne russit pas clarifier
les choses lgard des plus sensibles
problmes (linsuffisence des fonds allous,
linteroprabilit limite ou la division du
march europen de dfense) lAgence
garde un caractre intergouvernemental, qui
le met dans limpossibilit de produire des
interdpendances ou de stimuler la
coopration, cest quand mme difficile de
parler dun avantage en ce qui concerne la
capacit de lUnion Europenne
damliorer son statut international par la
rsolution de ces problmes. Ces
considrations sont accentues aussi par
272
See Jeffrey A. Frieden, One Europe, One Vote?,
European Union Politics, 5/2 (2004), pp. 274.
273
Philip Gordon, Europes uncommon foreign
policy, International Security, 22/1 (1997/8), pp. 75.
237
lobservation que le Trait de Lisbonne ne
parle pas du tout sur la cration des
capacits non-militaires, mme malgr son
image aprs lutilisation de ces instruments.
OTAN a russi tre la plus importante
organisation de scurit collective.
Decisives dans ce sens ont t les garanties
de scurit offertes par les Etats-Unis, mais
le rle jou par les Etats-Unis dans le cadre
de cette organisation a influenc sa capacit
de prendre le rle dun broker honnte dans
certaines situations de crise. Le principal
problme de lOTAN est le fait que si
jusqu la fin de la Guerre Froide lennemi
tait reprsent par lUnion Sovitique,
lennemi commun est devenu inconnu ce
qui impose un changement dans son mandat
sur les problmes de scurit internationale.
Jusqu ce que le sommet de lOTAN de
Lisbonne soccupe de ce nouveau concept
stratgique de lOTAN, on peut dire que
seulement la suite de lentre en vigueur
du Trait de rforme de lUnion
Europenne adopt Lisbonne en 2007 on
peut parler de petites modifications
apparues dans la relation qui existe entre les
deux organisations274.
4.2 Le renforcement du partenariat
stratgique conclu avec la Fdration
Russe
LUnion Europen est le plus important
partenaire commercial-conomique de la
Fdration Russe, et la Fdration Russe
occupe la premire place parmi les
fournisseurs de gaz naturel vers lUnion
Europenne et la deuxime place en ce qui
concerne les livraisons de ptrole. A
prsent la coopration bilatrale entre la
Russie et lUnion Europenne se base sur
un partenariat et aussi sur lAccord de
coopration de juin 1994 conclu entre la
Communaut Europenne et ses Etats
membres dun ct et la Fdration Russe
de lautre ct.
274
Nicolae Pun, Georgiana Ciceo, Relaiile
transatlantice dup intrarea n vigoare a
Tratatului de la Lisabona, Sfera Politicii nr. 4
(146), aprilie 2010, pp. 3-9.
238
Du partenariat entre la Russie et lUnion
Europenne fait partie une stratgie
commune de scurit. Bien quau dbut on
nait pas tenu compte de linitiative du
prsident Medvedev, les partenaires
europens sont prsent plus disponibles
parler sur ce thme. Il sagit ici de
problmes communs aux deux parties,
comme par exemple les changements
climatiques, le trafic de drogues et de
personnes, la prolifration de la criminalit
organise, la lutte contre le terrorisme, la
non-prolifration des armes nuclaires et le
problme iranien, le procs de paix du
Moyen Orient. En ce qui concerne le procs
de paix du Moyen Orient on peut parler
dune harmonisation, mais quant au
problme iranien les parties ont des
oppinions tout fait diffrentes, malgr le
ralliement de Moscou au niveau dclaratif.
Mais, selon la dynamique des
vnements (on peut donner comme
exemple les changements apparus dans les
relations de la Russie avec la Pologne et
lUkraine), on peut dire, sans se tromper,
qu lavenir les oppinions sur la Russie et
lUnion Europenne changeront de deux
parties. Et un partenariat stratgique semble
tre la seule forme de coopration
convenable tant pour la Russie que pour
lUnion Europenne. Mais les analystes
politiques ont observ que la Russie se
trouve dans un procs de changement
bnfique pour la coopration.
La construction dune allience stratgique
entre la Russie et lUnion Europenne doit
tre un point de rfrence stratgique pour la
Russie et dune grande importance pour lUE.
Dailleurs un des objectifs prioritaires pour la
Russie est de dpasser limage de supriorit,
surtout envers ses voisins europens. La
tragdie de Smolensk275 a montr la
Pologne (et lEurope aussi) le nouveau
visage de la Russie.
Mais lUnion Europenne veut renforcer
le partenariat stratgique avec la Russie, de
275
Il sagit de laccident de laronef Tupolev 154
du 19 avril 2010
1999. Bien que la Russie reprsente un vrai
problme de scurit la frontire de
lUnion Europenne, le partenariat
stratgique doit tre renforc comme une
modalit de contrebalancer les Etats-Unis,
la Chine et le Japon, Etats avec lesquels
lUnion Europenne doit tablir des
partenariats stratgiques. A partir de juin
2008, du sommet de Khanty-Mansyisk,
lUnion Europenne et la Fdration Russe
ont commenc porter des ngociations sur
un nouvel accord UE-Russie, qui devrait
remplacer et actualiser les partenariats
existents. De juillet 2008 et jusquau mai
2010 on peut dj parler de 9 tapes de
ngociations.
Ces accords doivent tre renforcs par
des contacts rguliers, dans des dlais
courts, pour crer une plus grande
interdpendance et pour augmenter laide
offerte par lUnion Europenne la Russie,
trouble prsent par de grands conflits
intertatiques et rgionaux.
4.3 Le dveloppement des relations
stratgiques avec lAsie de Sud et de
Sud-Est.
Avec sa population de plus de 1331
milliards dhabitants la Chine occupe la
premire place au monde276 ce qui lui
confre aussi une position stratgique par
rapport ce classement. En ce qui concerne
le partenariat stratgique avec la Chine, il
doit tre renforc tant pour des raisons
conomiques que pour des raisons de
scurit. La Chine reprsente un possible
facteur dinstabilit en Asie long terme277,
et cest pourquoi lUnion Europenne doit
simpliquer davantage pour crer une
grande interdpendance et pour pouvoir
garantir la stabilit.
Dailleurs, en Asie la balance de
pouvoir est plus faible et cest pourquoi on
276
Selon le Rapport PRBS World Population
Data Sheet publi en 2009, 1875 Connecticut
Ave., NW, Washington, DC 20009 USA,
www.prb.org.
277
China Strategy Paper 2007-2013,
http://www.eeas.europa.eu/china/csp/07_13_en.pdf
, source en-ligne du 17.08.2010, 13 heures.
239
doit tenir compte chaque instant de laide
offerte par lUnion Europenne. On doit
aussi tablir un partenariat stratgique avec
le Japon. Comme a lUE peut avoir une
grande contribution dans la rsolution du
problme de la Core, dans le cadre de
KEDO278, ou concernant le problme du
Taiwan. On peut parler aussi dune stabilit
faible de Kashmir. Parce que la situation
dans cette rgion est trs sensible lUnion
Europenne doit chercher une autre option
de politique trangre pour stabiliser lAsie
de Sud et le Sud-Est de lInde.
4.4 Ladoption dune position
stratgique dans lAmrique Latine
Un des points dintrt de lUnion
Europenne qui nest pas encore prsent
dans la Stratgie de scurit Europenne est
reprsent par le territoire de lAmrique
Latine. Etant donn les relations avec
Mercosur sur le plan conomique, la
politique trangre europenne doit essayer
dtablir une relation avec le Brsil, le plus
prospre Etat de la rgion, avec la plus
grande influence sur Mercosur279 et avec les
plus grandes possibilits de devenir un
facteur de stabilit rgionale.
Mais lUnion Europenne ne doit pas
oublier quelle est le plus grand
consommateur dnergie et de combustible
et cest pourquoi elle doit envisager aussi
ses relations avec les Etats de Golf. Elle
doit aussi trouver des solutions dans le cas
du conflit isralo-palestinien. La Turquie a
t considr comme le pays avec le plus
grand potentiel de la rgion, mais les
perspectives sont moyen et long terme.
En ce qui concerne le conflit isralo-
palestinien, lUnion Europenne veut aussi
participer aux pourparlers.
Aussi lUnion Europenne doit essayer
278
Abr.eng. KEDO - Korean Peninsula Energy
Development Organization
279
MERCOSUR Le march commun du sud
(Mercado Comn del Sur - spaniol) a t fond le
26 mars 1991 par le Brsil, lArgentin, lUruguay
i le Paraguay, la suite de la conclusiondu Trait
de la Asuncin, trait droul en dcembre1994 par
le Protocolul Adiional de la Ouro Preto
de renforcer le partenariat stratgique avec
le Canada qui peut jouer un rle important
moyen et long terme.
5. Lorganisation des rgions
stratgiques lintrieur de lespace
europen
Le monde est prsent caractris par
linternationalisation de la communication
et des changes. On ne peut pas parler dun
problme local, il sagit dun systme plus
vaste, nomm par Mueller la globalisation
de la vie sur la terre280.
Dans les Balkans de lOuest, les accords
de stabilit entre progressivement en vigueur
et on enregistre de vrais progrs dans le
domaine de la politique des visas, grce aux
accords de radmission et au dialogue sur la
libralisation des visas. On doit faire des
efforts supplmentaires, y inclus lutilisation
des instruments financiers pour lutter contre
la criminalit organis et la corruption, pour
garantir les droits et les librts fondamentales
et pour dterminer les capacits
administratives dans le domaine du respect de
la loi et dans le domaine judiciaire pour que la
perspective europenne devienne une ralit.
LUnion et la Turquie ont dcid de
renforcer la coopration pour rpondre au
dfi commun de la gestion des flux
migratoires et pour lutter contre
limmigration illgale. Cette coopration
doit se concentrer sur une responsabilit
commune, sur la solidarit, sur la
coopration avec les Etats membres, tant
donn le fait que la Turquie se trouve prs
des frontires extrieures de lUnion
Europenne. La conclusion des pourparlers
sur laccord de radmission doit reprsenter
une priorit. Mais jusqu ce moment-l les
accords bilatraux doivent tre mis en
application.
280
Mueller (G.O.W), Globalizare a vieii pe
Pmnt, a crimei i a prevenirii crimei: Un eseu
despre cum s procedm cu criminalii majori care
amenin existena continu a omenirii n ESSER
(A.) i LAGODNY (P.), Principii i preceduri
pentru o nou lege criminal transnaional,
Friesburg in Breisgau, Documentaie a unei lucrri
internaionale, 1997, pp. 351-358.
240
Le Conseil Europen connat le fait que
la stratgie commune UE Afrique 2007 et
le plan daction dfinissent le domaine
dapplication de la coopration dans le
cadre de la lutte contre le terrorisme, le
crime transnational et le trafic de drogues.
Tant dans le cadre du partenariat UE-
Afrique, sur le problme de la migration et
de la main doeuvre que dans la vue
densemble sur la migration on doit mettre
laccent sur le dialogue avec les partenaires
africains, et surtout sur les pays impliqus
dans la migration clandestine vers lEurope
pour aider ces pays laborer leurs
politiques de migration et en vue de
rsoudre le problme de limmigration
illgale.
On devrait faire des efforts pour le
renforcement de la coopration, y inclus la
conclusion des accords de radmission avec
lAlgrie, le Maroc et lEgypte en
conformit avec les conclusions du Conseil
Europen doctobre 2009 avec la Lybie.
6. Les perspectives des partenariats
stratgiques de lUnion Europenne
LUnion Europenne a cr avec succs
des structures dautorit formale et
informale, a dtermin les Etats se mettre
daccord et agir tant dans le cadre des
Etats membres que pour les Etats non-
membres de la rgion, en favorisant aussi
les notions normatives dune bonne et
dune dmocratique gouvernance281.
Le Conseil Europen veut laborer,
avant la fin de lanne 2010, un plan
concernant la manire dans laquelle peut
tre dveloppe la coopration avec les pays
du partenariat de lest, y inclus des aspects
lis la libert, la scurit et la justice
du partenariat de lest, tout comme les
chapitres concernant la libert, la scurit et
la justice des plans dactions PEV des pays
concerns. Le plan devrait aussi comprendre
281
Emil Kirchner, The Challenge of European
Union Security Governance, Journal of Common
Market Studies 44 (2006), p. 951,
http://www3.interscience.wiley.com/journal/118
594281/abstract, 15.05.2010, 12 heures.
les tapes progrssives vers la libralisation Reprsentant de lUnion pour des affaires
totale des visas, comme objectif long trangres et politique de scurit,
terme pour les pays partenaires individuels, prsenter cette anne le plan et invite en
tout comme dcrire les conditions pour une mme temps Coreper prparer le plus vite
bonne mobilit, signales dans la possible les dcisions qui doivent tre prises
Dclaration commune de la runion au par le Conseil. Le Conseil europen va
sommet de Prague, concernant le partenariat rviser le plan avant la fin de 2012 et va
de lest. valuer son impact sur place.
Le Conseil Europen va rviser le plan Avec dautres pays et rgions, lUnion
avant 2012 et surtout il va rviser son impct va cooprer au niveau rgional ou bilatral.
sur place. LUnion intensifie ses efforts Avec les pays de lAmrique du sud et avec
pour aider la stabilit et la scurit dans la Carabe, le dialogue sur la migration, le
Mer Noire et de continuer renforcer trafic de drogue et le blanchissement de
linitiative de coopration rgionale largent sale devrait continuer dans le cadre
Synergie de la Mer Noire. Les activits rgional (UE-ALC) et dans le cadre de
doivent se concentrer surtout sur la gestion GAFI. On continuera aussi lactivit avec
des frontires, sur la gestion de la migration, les pays de lAsie Centrale.
sur la coopration douanire tout comme sur On devrait aussi faire des efforts pour
la lutte contre la criminalit transfrontire. renforcer la coopration avec lAfghanistan
En ce qui concerne LUnion pour la sur le problme du trafic de drogues et avec
Mditerranne, il sagit dun renforcement lAfghanistan et le Pakistan sur les
de lactivit droule dans le cadre du problmes de terrorisme et de migration. En
procs de Barcelone et du Partenariat euro- ce qui concerne LAfghanistan et lIrak, on
mditerranen, surtout en ce qui concerne la doit insister sur la rponse donne la
migration maritime, le contrle aux situation des rfugis et par un traitement
frontires, la lutte contre le trafic de correspondant. On devrait aussi conclure
drogues, la protection civile, le respect de des accords de radmission avec les autres
lapplication de la loi et de la coopration Etats, comme par exemple avec le
judiciaire. Le Conseil Europen invite la Bangladesh.
Commission, en coopration avec le Haut
Bibliographie:
Avis CESE du 03.09.2003 sur le thme Le respect des droits fondamentaux dans la
lgislation et dans les politiques europennes en matire dimmigration. Raporteur:
M. Pariza Castaos, publi dans le Journal Officiel de lUnion Europenne C208.
Avis CESE du 14.5.2003 concernant laccs la citoyennet de lUnion Europenne.
Raporteur: M. Pariza Castaos, publi dans le Journal Officiel de lUnion Europenne
C208, 03.09.2003.
Avis CESE du 25.2.2009 concernant la communication de la Commission vers le
Parlement Europen, vers le Conseil, vers le Comit Economique et Social Europen et
vers le Comit des Rgions concernant une politique commune dimmigration pour
lEurope: principes, actions et instruments. Raporteur: M. Pariza Castaos. publi dans le
Journal Officiel de lUnion Europenne C 218, 11.9.2009.
Biroul de Pres la Casei Albe, Remarks by President Obama at Strasbourg Town Hall,
Strasbourg, 03 avril
2009, http://www.whitehouse.gov/the_press_office/.
China Strategy Paper 2007-2013, http://www.eeas.europa.eu/china/csp/07_13_en.pdf.
Communication COM(2009) 262 finale de la Commission vers le Parlement Europen
et le Conseil, Un espace de libert, de scurit et de justice au service des citoyens,
Bruxelles, 10.6.2009.
241
 David Hastings Dunn, Assessing the Debate, Assessing the Damage: Transatlantic
Relations after Bush British Journal of Politics and International Relations 11 (2009): 9-11
i Alex Danchev, How Strong are Shared Values in the Transatlantic Relations? British
Journal of Politics and International Relations 7 (2005).
Dcision 1999/848/CE du Conseil sur lapplication de lacquis Schengen sur le territoire
de la Grce, publie dans le Journal Officiel de lUnion Europenne L 327. Dcision
2000/192/CE du Conseil sur la sollicitation de lIrlande de participer aux dispositions de
lacquis Schengen, publie dans le Journal Officiel de lUnion Europenne L 64 du 7 mars
2002.
Dcision 2000/365/CE du Conseil sur la demande de lAngleterre et de lIrlande de Nord
de participer aux dispositions de lacquis Schengen, publie dans le Journal Officiel de
lUnion Europenne L 131 du 1 juin, 2000.
Dcision 2000/777/CE du Conseil de mise en pratique de lacquis Schengen, publie dans
le Journal Officiel de lUnion Europenne L 309, du 9 dcembre 2000.
Dcision 2004/926/CE du Conseil sur la mise en pratique de certaines parties de lacquis
Schengen par lAngleterre et lIrlande de Norde, publie dans le Journal Officiel de
lUnion Europenne L 395 du 31 dcembre 2004.
Dcision du Comit Exectutif du 22 dcembre 1994 sur lentre en vigueur de la
Convention de mise en pratique ((SCH/Com-ex (94)29 rev. 2. publie dans le Journal
Officiel de lUnion Europenne L 239 du 22 septembre 2000.
Dcision du Comit Executif du 7.10.1997 [SCH/com-ex 97(27)rev.4] Italie et lAutriche.
[SCH/com-ex 97 (28)rev.4] .
Emil Kirchner, The Challenge of European Union Security Governance, Journal of
Common Market Studies 44 (2006),
http://www3.interscience.wiley.com/journal/118594281/abstract, 15.05.2010.
Georgiana Ciceo, Politica extern a administraiei Obama: restructurare sau doar
schimbare de direcie? n: Marius Jucan (ed.) America, azi. Studii de americanistic (Cluj-
Napoca: Tribuna, 2010).
Hastings Dunn, Assessing the Debate, Assessing the Damage, 17-22. Interview avec
Jonathan Scheele: Romnia i Uniunea European, Revue Studii de Securitate, nr.2, Ed.
Unap, 2004.
Jaap de Hoop Scheffer, NATO and the EU: Time for a New Chapter, Keynote speech by
NATO Secretary General, Berlin, 29 ianuarie 2007,
http://www.nato.int/docu/speech/2007/s070129b.html.
Lao Zi (philosophe chinois, fondateur du taoisme) n Tao Te Ching - Cartea Cii i a Virtuii.
Lumea 2005: enciclopedie politic i militar (studii strategice i de securitate), Editura
Centrului Tehnic Editorial al Armatei, Bucureti, 2005.
Mueller (G.O.W), Globalizare a vieii pe Pmnt, a crimei i a prevenirii crimei: Un eseu
despre cum s procedm cu criminalii majori care amenin existena continu a omenirii
n ESSER (A.) i LAGODNY (P.), Principii i preceduri pentru o nou lege criminal
transnaional, Friesburg in Breisgau, Documentaie a unei lucrri internaionale, 1997.
Nicolae Pun, Georgiana Ciceo, Relaiile transatlantice dup intrarea n vigoare a
Tratatului de la Lisabona, Sfera Politicii nr. 4 (146), aprilie 2010.
Le Pacte europen sur limmigration et sur lasile, Conseil de lUE, Bruxelles,
13440/08, 24 septembre 2008.
Philip Gordon, Europes uncommon foreign policy, International Security, 22/1 (1997/8).
Le programme de Stockholm - o Europ deschis i sigur n serviciul cetenilor i
pentru protecia acestora, CO EUR-PREP 2, JAI 81, POLGEN 8, 5731/10, Bruxelles, 3
martie 2010.
R. Kagan, Of Paradise and Power: America and Europe in the New World Order (NY
Vintage Books, 2004).
242
 Rapport sur la mise en pratique de la stratgie europenne de scurit - Asigurarea
securitii ntr-o lume n schimbare - Bruxelles, 11 decembrie 2008 S407/08.
Le rapport du groupe de travail sur lavenir de la politique dans le domaine des
affaires interieures Liberty, Security, Privacy: European Home Affairs in an Open World
(Libertate, securitate, protecia vieii private: afacerile interne europene ntr-o lume
deschis), juin 2008.
Raportul PRBS World Population Data Sheet publicat n 2009, 1875 Connecticut Ave.,
NW, Washington, DC 20009 USA, www.prb.org.
See Jeffrey A. Frieden, One Europe, One Vote?, European Union Politics, 5/2 (2004).
La Stratgie de scurit de lUnion Europenne, A secure Europe n better world,
decembre 2003, Bruxelles, pe www.europa.eu.int.
Werner Weidenfeld, Die Neue ra der Transatlantischen Beziehungen, Internationale
Politik 6 (2001).

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246
 The course Economic and financial criminal investigation is structured on
scientific criteria, presenting in a chronology the conceptual aspects and types of
economic financial crime, specific to our country, the main ways to investigate frauds in
the field and the financial and banking crime. The frauds on the European funds and
money laundering are an important activity for the unions in the field of organized
crime which commit illegal activities in Romania and which launder the illicit products
through illegal ghost companies.

247
 The public security policies are set up the level of each state member in the EU in
order to manage effectively the internal affairs. Each state has its specificities, traditions
and history, doubled by cultures and dominated by ideologies which influence the
public policies in the field of domestic security. In all public policies there is the
principle according to which the first condition for freedom is the security. The Lisbon
Treaty tries to set up a common framework to approach the area of freedom, security
and justice in the EU. The legislative framework will be created by the EU institutions
to regulate internal affairs. They will inevitably have gaps, generated by the different
philosophies in the member states and difficulties in reforming the institutions called to
comply with these rules, doubled by a different misunderstanding of the legal and
managing concepts.

248
 The Criminal Investigation Magazine is a
semestrial publication that will contribute to
the development of training for specialists
working for the National Police as well as
judicial bodies. The scientific board of this
publication is made of well-known specialists
from the Ministry of Administration and
Interior, International Police Association
(IPA) the Romanian branch, and professors
from the Police Academies from Germany,
Austria and Belgium.
The magazine has 5 sections:
-studies, analysis and synthesis regarding
criminality;
-evolution and trends in criminality;
-research and prevention of criminality;
-criminal investigation management;
-Schengen issues related to criminality.
Those who want to publish in this
magazine are asked to register at:
pantea_cezar@yahoo.com
webmater@iparomania.ro
The materials which are to be published
shall not contain classified information
according to Law no.182/2002.
249
The articles shall not exceed 10-12 pages
and will be written in Times New
Roman(RO), font14, on a single column, and
footnotes will be written with font 10 (name
and surname of the author, title-italic, city,
publishing house, year, page);
-abbreviation are not allowed, except art.,
par.
-the names of the institutions shall not be
abbreviated
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not be send to another publication until
confirmation has been given
-the writers are asked to comply with the
lanes regarding copyright or the quotation,
where necessary
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published shall not be sent back
-the writers are asked to write the full
name, university title or position, institution,
e-mail address and phone number;
-for further information please contact us
at 004-0213175523 ext. 17127, 17231 and
17239