Interesul superior al copilului ca factor de individualizare a pedepsei aplicate unei persoane condamnate: experiența sud-africană

Rezumat

This article contains a case summary and some comments on the seminal judgment delivered by the Constitutional Court of South Africa in S V M (Centre For Child Law As Amicus Curiae). This decision has brought revolutionary changes to the sentencing process of primary caregivers of minor children, so as to bring it in line with the constitutional obligations of the state to protect the right of the child to family care and the best interests of the child. The purpose of the article is to discuss critically the reasoning of the Court in S v M and to share with the Romanian audience the contribution of the South African courts to the development of a child-centred approach to the sentencing of primary caregivers of minor children. The article proceeds with a brief presentation of the best interests of the child in light of the United Nations Convention on the Rights of the Child, 1989 (to which both Romania and South Africa are parties), followed by a brief discussion on the status and the role of the best interests of the child in the South African law. Further, a detailed summary of the majority and minority decisions in S v M is provided, followed by some critical comments regarding the judgment. A special attention is given to the impact of the constitutionalisation of the best interests of the child on the reasoning of the Court, and to the balancing exercise between the best interests of the child and the right of other members of the society to be protected against crime. The author further reflects on the relevance of the above decision for the Romanian legal researchers and practitioners, in light of the Romanian laws and policies. It is concluded that an innovative interpretation of the current Romanian legislation may lead to a similarly child-centred approach to sentencing as the one reflected in S v M. It is also stressed that more clarity is needed in the Romanian context in terms of the role of the best interests of the child (especially with regard to its constitutional status) and its potential legal limitations.