HUMAN
RIGHTS DEVELOPMENTS IN ROMANIA
THE
ACTIVITIES OF THE ROMANIAN
HELSINKI COMMITTEE (APADOR-CH)
1994
REPORT
CONTENTS:
II. PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
III. THE RELATIONSHIP BETWEEN THE POLICE AND INDIVIDUALS
VI.OTHER
ACTIVITIES:
THE HUMAN RIGHTS CENTRE
LEGAL ASSISTANCE
FOLLOW-UP MONITORING
OF THE SITUATION IN TIRASPOL
SEMINARS AND COURSES ORGANIZED BY APADOR-CH/page 83
1994 was an extremely important year for human rights in Romania: the European Convention on the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols were ratified, the right to individual complaint and the jurisdiction of the European Court of Human Rights being consequently accepted. Thus, the mentioned documents and their adjacent instruments have become part of the domestic law, and can be now directly invoked in front of Romanian authorities. This allowed the Romanian Helsinki Committee (for purposes of simplicity, furthermore referred to in this report under its Romanian acronym, APADOR-CH) to invoke Romania's membership to the Council of Europe and the provisions of the European Convention throughout its activity.
However, despite the mentioned legislative success, despite permanent efforts made towards the promotion of theoretical expertise in the field, as well as persistent attempts to raise awareness of their importance in a European context, the human rights record of Romania continued to be defective. This is due to legislative pressure, serious human rights violations perpetrated by the executive power -- primarily, by law enforcement bodies -- as well as persistent failures to protect human rights on behalf of the judiciary, which either remained passive or proved to be ineffective in a number of cases.
APADOR-CH action often appeared as a response to these challenges, and took the form of independent fact-finding and investigation missions and publication of the association's position towards the concerned authorities. At the same time, APADOR-CH made theoretical analyses and proposed its own conceptual framework for issues relating to national minorities, a domain in which such efforts are absolutely necessary for the continuation of the dialogue between various ethnic groups and the majority by means of the political decision-making agencies in Romania. Likewise, an important part of the APADOR-CH activity was the continuing effort to influence legislative decisions so as to promote human rights values.
The
whole activity of APADOR-CH, as instantiated in investigations, analyses, round
tables, information, has been carried out so as to contribute to the implementation
of the rule of law, which provides the framework for any substantive declaration
on human rights.
II. THE PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION[1]
During 1994, APADOR-CH continued this program (started in 1993), pursuing two main objectives: the transparency of the works of the Parliament and the promotion of a legislation based on human rights principles.
As far as the first objective is concerned, APADOR-CH joined efforts with other organizations in the attempt to establish an NGO liaison office within each of the two Chambers of the Parliament. Unfortunately, various factors, among which bureaucratic obstacles, prevented the materialization of this project. However, a procedure has been established in the Chamber of Deputies for the accredited media and NGO representatives to access information as any parliamentarian, by means of individual "mail boxes" where incoming materials are deposited.
The second objective, though, was the one which defined the true dimension of APADOR-CH's activity in the field: access to information is not an end in itself; the information has to be made use of in order to achieve significant results. Thus, in 1994 APADOR-CH continued to analyze draft bills under parliamentary scrutiny, containing provisions potentially jeopardizing the implementation of the rule of law and, implicitly, the protection of human rights in Romania. These analyses, elaborated from the perspective of the Romanian Constitution and international human rights documents, contain references to similar regulations from other countries and are accompanied by excerpts from the jurisprudence of the Court of Human Rights in Strasbourg and the UN Committee for Human Rights in Geneva.
It should be mentioned here that, despite the reserve with which parliamentarians initially met these analyses, APADOR-CH documents came to be welcomed in both chambers (and even solicited by individual members for the information contained in them), the Parliament openly admitting that there are no other sources of information. Likewise, APADOR-CH members came to be invited to participate in the works of the specialized committees of the legislature. In addition, media representatives have highly appreciated the utility of APADOR-CH analyses for their efforts to raise public awareness and participation in the reform of the Romanian legislation.
a) The draft law for the modification and completion of the Criminal and Criminal Procedure Codes
Throughout 1994, the Criminal Code and the Criminal Procedure Code were under the scrutiny of the Romanian Parliament, first in the Senate, and later in the year, in the Chamber of Deputies. This process started in 1993, when the Government forwarded the Senate a draft law for the modification of the two basic texts of the Romanian penal law. At the time, APADOR-CH exchanged views and documents with the Legal Affairs Committee of this Chamber. In February 1994, the Senate voted on the whole package of amendments. Considering that some provisions impose unacceptable restrictions upon rights which are fundamental for the functioning of the Romanian society -- and especially upon freedom of expression -- APADOR-CH released a set of commentaries in the margin of the version adopted by the Senate; the commentaries, as presented below, were distributed to all parliamentarians, in view of influencing the decision-making process in the Chamber of Deputies:
THE COMMENTARIES OF APADOR-CH TO THE AMENDMENTS OF THE ROMANIAN SENATE TO THE CRIMINAL CODE WHICH THREATEN THE RIGHT TO FREEDOM OF EXPRESSION
...Some of the amendments passed by the Romanian Senate unfortunately demonstrate an intention to create severe limitations on freedom of expression generally, and freedom of the press in particular. In particular, the Senate's amendments provide that:
* the penalties for insult, libel and outrage are increased;
* new provisions are added almost doubling the penalties for perpetrating the same acts through the media;
* a disproportionate protection is guaranteed to civil servants and politicians, taking into account both the protection guaranteed to ordinary citizens (when victim of the same deeds) and the place that civil servants occupy in a democratic society, normally subjecting them to public scrutiny and a more severe, often relentless criticism;
* "defamation of the country or nation" is criminalized, though it is an offense without a defined content; and
* a new offense has been added to the chapter regarding offenses against state security; it has a vague and ambiguous content ("the transmission of false news") which leaves too much room for malign interpretations.
These amendments demonstrate the failure of the Romanian Senate to understand the role of freedom of expression in society, especially the essential need for political discourse (including criticism) in a true democracy. At the same time, the amendments reflect a fear of the press' influence on shaping public opinion. This attitude is in direct conflict with a recent finding by the U.N. Economic and Social Council in its Review of Further Developments in Fields with which the Sub-Commission [on Human Rights] has been Concerned: "The right to freedom of opinion and expression is a decisive vehicle of social change and as such will always be at the centre of political struggles and discourse. The recent changes in Central and Eastern Europe and in other parts of the world have confirmed this once again. The changes that will be necessary in the future will be possible only if the right to freedom of opinion and expression is preserved and properly protected..."
...The right to freedom of opinion and expression is guaranteed by international treaties, such as the Universal Declaration of Human Rights (art. 19), the International Covenant on Civil and Political Rights (art. 19) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 10), as well as other regional instruments. At the same time, the constitutions of democratic states enshrine this right and prescribe guarantees for its exercise. The Romanian Constitution is no exception to this rule: art.11 and 20 provide that such international treaties ratified by Romania have the effect of domestic law and take precedence over conflicting domestic norms for purposes of interpretation and enforcement.
Moreover, art.8 of the Romanian Constitution provides that "[p]luralism in the Romanian society is a condition and safeguard of Constitutional democracy." Art.30 of the Constitution, which enshrines the freedom of expression, and art.31, concerning the right to information, should both be interpreted according to that principle. Pluralism must refer to more than just the existence of many political parties; it must also comprise a plurality of ideas and opinions and the obligation to ensure that the public can be informed about them. Any attempt to limit such rights should be interpreted as an attempt to limit the democratic process itself.
INSULT, LIBEL AND OUTRAGE
The fact that the Romanian Senate considers the perpetration of libel and insult in the media as an aggravating circumstance proves the intention of this institution to threaten the media, as it did by modifying the provisions for outrage. Even if threats or violence against civil servants or politicians jeopardize the physical integrity or activity thereof and should be sanctioned accordingly, there is no justification for considering the perpetration of these deeds through the media or against certain officials to be aggravating circumstances, for which the maximal punishment is 7 years in prison... Within a true democracy, public persons are subject to greater public exposure than common citizens. Politicians and civil servants give up a lot of the advantages of the right to privacy, especially concerning their political activity, by the very fact of agreeing to become public persons. Because of their position in society, they are more likely to abuse their power or to become corrupt, and that is why they have to be permanently accountable to their constituents and to the taxpayers. Within a democratic regime, the press acts as a "watchdog;" in order to play that role effectively, the press must not be threatened or restricted by the authorities.
A ruling by the Constitutional Court of the Federal Republic of Germany (20, B Verf GE 162) is instructive: "A free press, not limited by government control and censorship, is the essential foundation of a free society; a free, politically active and regularly printed press is particularly indispensable in a modern democracy. If citizens are to make political decisions, they have to learn about the opinions of others, in order to be able to consider the alternatives. The press is the one to animate this permanent discussion; it provides the information and takes a position in this respect, thus orienting the public debate."
The fact that sometimes unpleasant formulations are used for expressing certain opinions (which may be regarded as insults) is a price which public persons have to pay for the positions they hold. According to the Romanian Senate, however, "the public statement or reproach of a certain fact which, if proven true, would expose its author to criminal, disciplinary, or administrative sanctions, or public contempt" is one of the components of outrage as an offense, which entails censorship of any criticism of the activity of civil servants or politicians. Moreover, this would give these officials unlimited possibilities to perpetrate any abuse, enjoying impunity, as their deeds would not be publicized; at the same time, it would deprive the Romanian voters of their constitutional right to be informed of the activity of their representatives...
DEFAMATION OF THE COUNTRY OR NATION
Since its adoption, the Romanian Constitution has been criticized for the excessive restrictions imposed on freedom of expression contained in art.30 para.7. The first restriction contained in that provision refers to "defamation of the country or nation." ...The new offense created by the Senate amendments to art.236 defines the criminal act as "[p]ublic defamation of the Romanian country or nation, by any means." This formulation provides no additional clarity because adding the self-evident qualifications "public" and "by any means" does nothing to answer the legitimate question of which particular act of expression may be considered a defamation of the Romanian country or nation. Does criticizing government policy constitute an offense? Does criticizing the activity of the President? Is the statement that the Romanian Senate does not understand democracy an act of defamation of the country? Who does "country" represent? According to art.2 of the Romanian Constitution, "[n]ational sovereignty resides with the Romanian people." Does this mean that defamation of the country actually means defamation of Romanian citizens?...If these issues are not resolved, a capricious interpretation of the law will undoubtedly result. Romanian citizens will not know how to observe it because they will not know what it means. Judges will act according to their own interests; the truly independent ones will be very cautious in applying the law, while judges who support extremist nationalistic groups or who still have the attitudes of an outdated mentality might apply the greatest possible penalties. Ultimately, the new offense could only result in the arbitrary application of justice, in contradiction to the principles of a state governed by the rule of law.
Even if the legislature would succeed in properly defining the substance of this offense, the provision still should not be included in the bill, as it conflicts with all international documents that make reference to freedom of expression:
- the Universal Declaration of Human Rights provides under art.19 the right to freedom of expression and opinion and its corollary, the right to receive and disseminate information, with no further restriction;
- the International Covenant on Civil and Political Rights provides in art.19.3 the only possible restrictions to the freedom of expression: (a) in order to protect the rights and reputation of others; (b) in order to protect national security, public order, public health, or good mores.
However vague the definition of this offense may be, it is clear that it could not fall within any of the two categories of restrictions mentioned above; the non-compliance with the international regulations could only result in a violation of art.20 para.1 of the Romanian Constitution, which specifies that "[c]onstitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to." The European Convention restrictively mentions the situations within which limitations may be imposed upon the exercise of the right to freedom of expression, none of these bearing any relationship to the defamation of the country or nation. Para.2 of art.10 of the Convention requires not only that the restrictions be prescribed by law, but also that they be "necessary in democratic society." It is true that Romania, although a member of the Council of Europe, and a signing party to the European Convention, has not yet completed the ratification procedure;[2] however, this is a matter of time, and the Romanian Government has constantly reiterated its aspiration to European integration and its commitment to observe art.11 para.1 of the Constitution, which stipulates that "[t]he Romanian State pledges to fulfil as such and in good faith its obligations deriving from the treaties it is a party to."
TRANSMISSION OF FALSE NEWS
The newly proposed art.168(1), punishing with prison from one to 5 years "the dissemination of false news, data, information, or forged documents, if possibly putting into jeopardy state security or the international relations of the Romanian state" is equally ambiguous. It begs the question: how will a judge determine if an act is liable to jeopardize state security?
It is the first time the formulation "state security" has been used in recent times; it cannot be found in the Constitution or in Law 51/1991 concerning "national security." All international documents Romania is a party to refer to "national security." The formulation of the amendment might leave the impression that the legislature is trying to protect the state (rather than national security) and its power structures.
Even more vague is the reference to "the international relations of Romania." This formulation could cover almost anything, from a purchase order for wheat signed by a government agency to Romania's adherence to NATO. What if someone falsely implies that the wheat might be spoiled -- does he thus jeopardize the international relations of Romania and become liable for a 5 year prison sentence? What if someone argues that Romania has not fulfilled its obligations to the IMF and that negotiations would therefore discontinue? Just such an assertion was made quite often in the press during 1993, and the Prime Minister publicly accused the press of acting against the interests of the country. Are the international relations of Romania so frail that they could be jeopardized by such reports, even when published in a newspaper? The Romanian Senate's addition of art.168(1) (which is placed at the end of the chapter referring to crimes against state security!) merely lays the groundwork for a policy of scapegoating the press for the government's own foreign policy failures.
APADOR-CH considers that the modifications brought to the mentioned articles of the Criminal Code are in violation of human rights and fundamental freedoms, as enshrined by the Romanian Constitution and by the international human rights documents referring to freedom of expression and information -- all legal texts the Romanian state committed to observe. The adoption of these amendments by the Parliament would jeopardize the democratic process in Romania.
The Board of APADOR-CH
During the next stage, APADOR-CH representatives kept in permanent contact with members of the Legal Affairs Committee within the Chamber of Deputies, as the amendments to the Criminal Code were to be debated by the lower Chamber. Given the fact the Romania had in the meanwhile ratified the European Convention, the Committee members were provided by APADOR-CH with information on the European Court and Commission case-law referring to freedom of expression and protection of private life (the latter aspect being related to the criminalization of same sex relations). The Committee adopted improved (as compared to the Senate) versions of the Criminal Code amendments referring to freedom of expression and same sex relations.
Surprisingly enough, the article-by-article debates in the plenum of the Chamber of Deputies allowed for the victory of conservative and nationalist political approaches, which led to the adoption of versions which are unacceptable from a human rights standpoint. The criminalization of transmission of false information and defamation of the country and nation was maintained, while a new sub-type of offense against state insignia was added; at the same time, the punishment for offense against the authority was extended, and an aggravating circumstance was added under this offense: damage to the honour of the President, a parliamentarian, minister, or judge of the Constitutional Court or Supreme Court of Justice, punished with up to 7 years in prison. Given the fact that the Standing Orders provide that the bill has to be voted on as a whole, after the completion of the article-by-article vote, APADOR-CH promptly drafted an analysis of these texts, which was sent to individual deputies and the media, and was subsequently published in several newspapers:
ROMANIAN HELSINKI COMMITTEE COMMENTS ON THE
LIMITATIONS IMPOSED BY THE ROMANIAN PARLIAMENT
UPON THE FREEDOM OF EXPRESSION
... As the law-making process has not been completed as yet in this particular case, APADOR-CH launches a new appeal towards the Romanian Parliament, asking for the modification or even elimination of the articles or paragraphs of law that impose inadmissible restrictions upon the right to freedom of expression by defining as crimes actions absolutely indispensable to the existence of a democratic and pluralistic society...
OFFENSE AGAINST STATE INSIGNIA
Art.236 leaves the provisions of para.2 included in the Criminal Code currently in force unchanged, making punishable by prison from 3 months to one year any "[m]anifestation of contempt for the emblems or insignia used by the authorities." Under the conditions within which the Romanian penal system does not contain any indication as to the understanding of the notion of "contempt," while the Explanatory Dictionary of the Romanian Language defines contempt as a "feeling of disrespect for somebody or something...lack of respect or esteem," the idea of making such a manifestation towards the insignia employed by the state authorities punishable cannot be accepted. Such manifestations are nothing more than the exercise of the right to freedom of expression, and the restriction of this right spelled out in art.30 of the Constitution cannot be made otherwise than under the conditions of para.7 of the same article -- and the manifestation of contempt towards the state insignia does not fall within the scope of the restrictions mentioned there.
The inclusion of this crime among the ones provided by the 1969 Criminal Code aimed at protecting the authorities of the communist state against which criticism or manifest contempt was forbidden under any circumstances. Under the current conditions in Romania, it would not be acceptable to come back to such a state of affairs. The attempt to impose by means of force respect towards the authorities is obviously in conflict with the provisions of art.10 of the European Convention, which allows for restrictions of the right to freedom of expression on behalf of a state authority only "for maintaining the authority and impartiality of the judiciary."
Another new paragraph is para.3 of art.236, referring to "[d]isplaying the flag or insignia or the intonation of the national anthem of other states on Romania's territory under other conditions than the ones provided for by law" -- an offense punished by prison from 6 months to 3 years. It is obvious that the display of flags or insignia, as well as the intonation of anthems are forms of exercising the right to freedom of expression. The exercise of this right is regulated by art.30 of the Constitution and by art.10 of the European Convention, which is, by means of art.11 of the fundamental law of the Romanian domestic legal system, part and parcel of the national law prevailing over conflicting domestic provisions. According to art.10 para.2 of the European Convention, in order for a restriction upon the right to freedom of expression to be justified, it must be "necessary in a democratic society, in the interests of national security, territorial integrity or public safety." It obviously follows from the formulation of this amendment to the Criminal Code that the mere display of a foreign flag or intonation of an anthem is punished in itself, although these manifestations as such do not pose any threat to the national security, territorial integrity, or public safety. Which means that the limitation imposed upon the right to freedom of expression by means of this article is totally unjustified.
At the same time, the formulation "on Romania's territory" is in conflict with the provisions of art.26 of the Constitution which protects the right to private life, as this notion includes private property as well as public one. Imposing restrictions upon the right to freedom of expression in a private framework is inadmissible, as crimes are punished due to the social danger they represent. The display of a foreign flag or the intonation of a foreign national anthem in, for instance, private apartments is a manifestation of the right to freedom of expression as enshrined and protected not only by art.30, but also by art.26 of the Romanian Constitution...
OFFENSE AGAINST THE AUTHORITIES
The crime under art.238, para.1 and 2 is maintained under the same formulation as in the current Criminal Code, only that the punishment is extended as follows: for "damage to the reputation or public threat" of an individual in an important state or public position (as defined by art.160 of the Criminal Code) "in relation to [his/her] capacity and of a nature to impair [his/her] authority" -- the punishment is prison from 6 months to 5 years; for violent attack upon such a person the punishment is prison from 2 to 7 years. Recently the Chamber of Deputies added another paragraph to this article, specifying that: "If the deeds provided in the paragraphs above are perpetrated against the President of Romania, a Member of the Parliament or of the Government, or against a magistrate in the Constitutional Court or the Supreme Court of Justice, the maximal punishment shall be extended by two years."
While understanding the seriousness and disapproving of deeds such as threat or violence, APADOR-CH nevertheless notes the harshness of the punishments provided for these deeds. At the same time, it seems unacceptable that the criminal regime of violence be applied to "damage brought to the honour [of an official]" -- i.e. to the criticism brought to such a person relating to the activity carried out in an official capacity. Damage to the authority is not brought by criticism (whether formulated in an insulting manner or in a more civilized one), but by faulty activity in itself. Curbing criticism by threatening with years in prison means to establish the foundation for a totalitarian society, where the only authorized form of expression in the hands of the public opinion is the approval. Such a tendency is proven by para.3 which creates new categories of persons favoured by law, in contradiction with the provisions of art.16 of the Constitution...
CONCLUSIONS
1. With respect to the regime of penalties, the fact that Romania has one of the toughest criminal systems in Europe (not only as compared to Western European standards, but also in relation to the legislation of other formerly communist countries) is already notorious. The extensions of the punishments proposed by the new amendments to the Criminal Code are incompatible with the standards of a civilized society. The adoption of these penalties would prove that in the conception of the Romanian Parliament, the individual (even when a perpetrator), his/her life and dignity, are of too little value, as long as freedom is "weighed" in years spent in prison allotted with unacceptable ease, especially in the case of crimes whose main purpose is to restrict the exercise of the right to freedom of expression and to protect the representatives of public authorities.
2. The whole criminal system grants disproportionate protection to civil servants and politicians, as compared both to the degree of protection granted to regular citizens (when they are the victims of the same deeds), and to the position of civil servants and politicians in any democratic society, position which exposes them to the scrutiny of the public opinion and obliges them to accept much harsher and often unyielding criticism.
3. As for the exercise of the right to freedom of expression it is drastically limited by the amendments pending now before the Parliament. These restrictions are obviously unconstitutional, being an attempt to intimidate the media, as well as any criticism directed against public authorities.
The adoption of these amendments to the Criminal Code would prove the failure of the Romanian Parliament in understanding the role played by the right to freedom of expression in forwarding the society, as well as the role of political discourse (with its unavoidable critical accents) in the existence of a truly democratic society...At the same time, they reflect a fear of the influence of the press in informing public opinion, which results in the tendency to impose harsh limitations...
The Board of APADOR-CH
November 29, 1994"
Another important aspect of the criminal code was the debate around the criminalization of same sex relations between consenting adults (art.200 para.1). The Council of Europe also
focused on this issue, as the decriminalization of same sex relations is one the commitments made by Romania upon its acceptance as a full member of this international forum.[3]
*
b) The Law on the organization and functioning of the police[4]
*
c) Two draft bills on national minorities[5]
*
d) The draft law on the protection of the state secret
On November 23, 1994, the director of the Romanian Intelligence Service presented before the Parliament the annual report of this agency, covering the period between October 1993 and September 1994. The conclusions of this report accounted for the fragility of national security in terms of the absence of a law regulating the "state secret". The report was pushing for the emergency adoption of such a law, an opinion shared by most parliamentarians, whatever their political orientation. The need for such a law providing not only the categories of information classified as state secrets, but also the obligations of persons dealing with them, cannot be contested. However, it is absolutely necessary that these provisions be clear and that they do not interfere with human rights and fundamental freedoms under the pretext of protecting national security.
Unfortunately, though, the Senate was forwarded in 1993 a controversial legislative initiative of 4 senators; as of autumn 1994, the Government had not forwarded its own draft bill on the issue. Under these conditions, it is obvious that the "emergency adoption" mentioned by the director of the Romanian Intelligence Service referred to the already existing draft. Considering the draft incompatible with the Romanian Constitution and international human rights standards, APADOR-CH drafted an analysis of the draft bill and a reference list of similar legislation from 8 Western countries, which were sent to the Romanian Senate and media:
THE COMMENTS OF THE ROMANIAN HELSINKI COMMITTEE
ON THE DRAFT BILL ON THE PROTECTION OF THE STATE SECRET
THE CONTEXT
The draft bill on the protection of the state secret was submitted to the Senate in November 1993 as the legislative initiative of a group of four senators of the Social Democracy Party in Romania (Alexandru Radu Timofte, Ilie Platica-Vidovici, Dimitrie Popa, and Doru Ioan Taracila), asking for an emergency procedure. On November 23, 1994, the director of the Romanian Intelligence Service presented before the Parliament the annual report of this institution, covering the period between October 1993 and September 1994; the report made constant reference to the urgent need for a law on the protection of the state secret. Consequently, it was suggested that the draft bill currently pending in the Senate be debated and voted following an emergency procedure -- a proposal supported by a large number of parliamentarians.
This bill is supposed to replace Law 23/1971, whose spirit is preserved by the proposed draft (although the four authors consider it obsolete): the aim of the draft is to drastically restrict access to information and free flow of information, and to re-institute a centralized control exercised by the Romanian Intelligence Service.
INSTITUTIONS EXCEPTED FROM THE CONTROL OF THE ROMANIAN INTELLIGENCE SERVICE
According to art.2 para.2 of the draft bill, "the Parliament, the President's Office, the Supreme Council for the Defense of the Country, the Ministry of National Defense, the Ministry of Interior, the Foreign Intelligence Service, the Guard and Protection Service, the Special Telecommunications Service and the General Penitentiary Directorate under the Ministry of Justice," which establish their own independent structures for the protection of the state secret, are not subject to the control exercised by the Romanian Intelligence Service.
It is worth underlining the fact that while the activity of the Romanian Intelligence Service is subject to parliamentary control, this institution being bound by law to submit an annual report to the two Chambers, all the other structures for the protection of the state secret within the above mentioned institutions escape any democratic control (be it direct or indirect).
This danger becomes obvious if one takes into account a statement made in the Parliament by the director of the Romanian Intelligence Service, who made it clear that this agency is not responsible for the activity of other 6 intelligence agencies and that he does not hold any kind of information as to the involvement of the latter in potential activities of telephone tapping and mail monitoring.
One instance would be the Special Telecommunications Service, instituted by a mere Government decision in May 1993, at the precise moment when the Parliament was debating the establishment of the Romanian Intelligence Service Control Committee. A few month later, the Government stated in front of the General Secretary of the Council of Europe that the organization of this service represented a purely administrative measure, as its competencies are purely administrative (although this service has the right to set up its own commercial companies). However, the Special Telecommunications Service is listed in the draft bill among the institutions excepted from the control of the Romanian Intelligence Service. Only after one year from its establishment the Parliament was submitted a draft law regulating the situation of this institution.
THE DRAFT BILL
The first article of the draft bill on the protection of the state secret provides that "[t]he defense of the state secret is a legal obligation and a moral duty of all citizens of Romania, by means of which they express their loyalty to the country." This wording reiterates the Constitutional thesis according to which "faithfulness towards the country is sacred" and further underlines the idea included in the National Security Law --i.e. "Romanian citizens have the moral duty to contribute to the achievement of national security." If the regulation of a "moral duty" in a legal text is questionable because it cannot, in itself, engender legal obligations whose violation would trigger the enforcement of a sanction, the regulation of a legal obligation has completely different juridical consequences. This is why the vague wording in the draft bill can allow for abusive interpretations. It should be mentioned that the obligation to protect the state secret functions within the framework of the draft bill -- which should clearly spell out the conditions within which sanctions for violations are applicable.
The manner in which art.4 of the draft bill defines the state secret practically covers all fields of activity: "Information, data, documents, objects, and activities whose disclosure, transmission, unlawful appropriation, destruction, modification, or disappearance, as the case may be, can jeopardize national security or state defense, or damage Romania's political, economical, technological, scientific interests or interests of a different nature shall be considered state secrets." (emphasis added) It should be underlined here that according to the Law on the Organization and Functioning of the Romanian Intelligence Service, this institution carries out activities that are necessary to the counteraction of "any actions that, according to the law, pose a threat to national security" (emphasis added, art.2 of Law 14/1992). It is therefore only natural for the draft bill to make reference to national security or national defense. But it is unacceptable for the Romanian Intelligence Service to coordinate and control activities which may impair "Romania's political, economical, technical, scientific interests or other interests of a different nature," as long as they do not jeopardize national security in any way. Likewise, it is not only inappropriate, but also unacceptable for a legal text to include phrases such as "of a different nature" which allow for arbitrary interpretation.
Art.5 lists along 13 paragraphs the "categories of information, data, documents, objects, or activities which are classified as state secrets." The draft bill mentions some categories which, obviously, are state secrets. Apart from these, however, it mentions documents and information (diagrams, maps, topographical plans to a certain scale, etc.) which should not be defined as state secrets.
Special mention should be made of lit.j), which includes among the categories of state secrets "scientific, technological or economic activities, investments included, connected to national security or defense or presenting special importance for the economic and technical-scientific interests of Romania." (emphasis added) It would be only natural for a legal text to qualify certain data and information as state secrets, but only restrictively. In the case of this bill, though, the language is very general and allows for abusive interpretations. A full understanding of the danger originating in the ambiguity of the text is provided by correlation with the provisions in art.12 lit.j), instituting the possibility for the Romanian Intelligence Service to completely control even research and production activities carried out by individuals and private companies.
Art.5 lit.m) introduces a new category of data, information, and documents classified as state secrets -- i.e. the ones related to "foreign affairs of any kind and activities of the Romanian state, except for the ones which may and must be publicized according to the law." (emphasis added) In the absence of a statute on publicly available data, information, and documents, as well as of a law on access to information (for which the Constitution offers a framework-guarantee in art.31), any data on foreign affairs and activities can be classified in keeping with this legal provision.
Art.6 of the draft bill provides for a classification of state secrets into 3 categories "top secrets of special importance", "top secrets" and "secrets"; the only function of this classification can be to further the confusion, as long as these notions are not defined in any way, there are no special sanctions applicable for the violation of each of them, and there are no special regulations as to their definition or protection.
Art.7 introduces the notion of "work secret", defined as follows: "Information, data, documents, objects and activities which are not considered state secrets but are not meant for publicity either, are classified as 'work secrets'; the disclosure or transmission thereof, by any means, shall be prohibited." Several observations are necessary in the margin of this provision.
The draft bill does not say exactly what is the work secret, it does not give a positive definition of the notion. It only mentions what "work secrets" are not -- i.e. that they "are not considered state secrets, but are not meant for publicity..." The legal logic of the rule of law imposes the obligation for statutes to define the contents or the components of terms employed in their texts. Beyond this, though, the regulation of secrets relating to work should not be found in a law on the state secret.
Secondly, the text makes reference not only to public authorities and governmental agencies, but also to commercial companies and not-for-profit independent groups, without distinction. Each of these categories should have the right to decide as to what is to be made public or not, which the draft bill fails to mention, suggesting that the competence to classify work secrets falls with the legislature or even the executive.
Thirdly, in the absence of a law regulating access to information, this article potentially eliminates any possibility to obtain information from any source, as the "work secret" can always be invoked as pretext, and the disclosure or dissemination of such information is considered to be a (petty or criminal) offense and is punished by either prison or, at best, a fine. This is, as a matter of fact, a legitimation for the lack of transparency of public authorities.
The practice of democratic states presupposes that institutions themselves be the ones to issue, if necessary, any guidelines for their personnel, as well as lists of work-related secrets -- i.e. information that is not considered to be public -- so as not to impair access to information as guaranteed by the Constitution. Likewise, it is absolutely necessary for one to be able to challenge the validity of such classifications in court, as access to information of public interest should be guaranteed.
Fourthly, the danger presented by this article also derives from its correlation with the attributions granted to the Romanian Intelligence Service by the draft law. Art.12 lit.c) allows the Romanian Intelligence Service to carry out "investigations and verifications" and to provide data, upon the request of the heads of public authorities and institutions, "on persons to be employed by these in positions presupposing access to information or activities classified as state or work secrets." (emphasis added) In turn, lit.j) of the same article makes it possible for the Romanian Intelligence Service to "grant specialized assistance for the protection of the secrets -- other than the state ones -- held by individuals or legal entities of private law, on the prevention of information and leakage of data which cannot be publicized, upon the request thereof and payment according to mutually convened fees." (emphasis added) This is in flagrant violation of the character and attributions of the Romanian Intelligence Service, which is defined, according to art.1 of Law 14/1992, as "the state agency specialized in information on Romania's national security, as a component of the national defense system..." (emphasis added)
The draft bill provides under art.9 the obligation for all public authorities and institutions, self-managing state enterprises and trade companies to establish special compartments in order to ensure the security of documents classified as state secrets (very similar to the Secret Documents Offices functioning before 1989 in Romania). According to art.11 lit.d), the heads of the institutions or organizations concerned are obliged to "elicit the approval of the Romanian Intelligence Service" for the employees chosen to work in the special secret documents compartments and to "observe the opinion of the Romanian Intelligence Service." (emphasis added) These obligations are in conflict with the provisions of art.4 of the Law for the Organization and Functioning of the Romanian Intelligence Service, which provides that the Romanian Intelligence Service can offer data on persons supposed to work in compartments that presuppose access to secret information "upon the request of the head of the public institution, self-managing enterprise, or commercial company concerned" (emphasis added), without instituting any obligation to observe by the opinion of the Romanian Intelligence Service on the part of those concerned, the responsibility for this falling exclusively with the head of the institution. Likewise, the institution of such an obligation would be in violation of art.16 of the Constitution, which bans discrimination.
At the same time, art.9 of the bill spells out an obligation on the part of the mentioned institutions to establish "special protocol compartments for the enforcement of the legal norms concerning the protection of the state secret...during the reception of delegations, talks or negotiations, as well as official visits and other such activities." (emphasis added) Apart from the fact that this reiterates the inconsistencies between the draft law on the state secret and the organic law of the Romanian Intelligence Service, one should underline the fact that the re-establishment of special protocol compartments is unacceptable. Any head of institution should have the right and competence to take all measures considered necessary for the protection of the state secret. If this right is not recognized, it means that a presumption of incompetence or even guilt is instituted, which is the only explanation for the presence of Romanian Intelligence Service representatives in the institution. Moreover, the establishment of special protocol compartments would drastically restrict human and business contacts, as well as freedom of expression, information and circulation.
Art.12 lit.a) of the draft law allows the Romanian Intelligence Service to verify the way in which the legal norms on the protection of the state secret are respected and enforced. It means that this institution substitutes itself to the judiciary, violating at the same time the principle spelled out in art.5 of Law 14/1992, according to which the Romanian Intelligence Service provides assistance upon request.
According to art.12 lit.h) of the draft bill, the Romanian Intelligence Service "approves draft documents having implications in the protection of the state secret." Taking into account the fact that art.5 of the bill defines the state secret in relation to any field of activity, the natural conclusion to be drawn from here is that most of the Romanian legislation will have to be subject to the approval of the Romanian Intelligence Service, which is a symptom of a totalitarian state.
Chapter V lists the obligations of individuals and legal entities. Art.14 provides under lit.b) the obligation for individuals or legal entities that have had access to state secrets to allow for verifications made both by the ones who have entrusted the secret and by the Romanian Intelligence Service. This provision permits the Romanian Intelligence Service to make verifications under any circumstances, under the pretext that an individual or a legal entity might have had access to state secrets. The draft bill does not provide for any possibility for those concerned to attack potential abuses on behalf of the Romanian Intelligence Service in court.
Art.20 para.1 provides that an employee has the obligation to "notify at once" the employer, the Romanian Intelligence Service and the penal investigations institutions whenever he/she notices a violation of the obligations stipulated under art.15-19. Para.2 of the same article provides the obligation to notify the Romanian Intelligence Service for any individual who "outside his[/her] job attributions, finds out the content or gets hold of some state secret information, data, documents or activities." Taking into account the fact that nobody can exactly know which are the data, documents, or information classified as state secrets, this article, as worded in the current form of the draft bill, would encourage abuse and reporting to the authorities among Romanian citizens.
Actually, the correlation of the provisions of art.15-21 with the rest of the provisions included in the draft bill leads to the suspension of the presumption of innocence: any individual is supposed to know which are the classified state secrets and to notify the Romanian Intelligence Service and the law enforcement bodies whenever the content of such secrets is brought to his/her knowledge. This is supposed to happen under the conditions within which all institutions have the obligation to draw up lists of documents, information, data, etc. classified as state secrets, the content of which is not revealed.
Art.29 allows the Government to issue decisions on the classification of state secrets, their registration, drafting, multiplication, transportation, transfer, etc., as well as on the conditions regulating access to information, which means that the executive substitutes itself to the legislature.
CONCLUSIONS
1. The draft bill seriously jeopardizes fundamental rights and freedoms, such as access to information, free circulation of information, freedom of expression, presumption of innocence, etc. At the same time, the draft bill is an invitation for citizens to report each other to the authorities, while the Romanian Intelligence Service becomes a control body with functions that go beyond the attributions stipulated in the Law on the Organization and Functioning of the Romanian Intelligence Service.
2. The draft bill does not provide for any possibility to attack in court potential abusive decisions of the Romanian Intelligence Service and, even to a lesser degree, of the other state agencies excepted from the provisions of this bill.
3. The draft bill does not provide any possibility -- generally prescribed by the legislation of democratic countries -- for the regular citizen to invoke, in his/her defense, unawareness of the classified character of documents, information, etc.
4. None of the provisions of the draft bill make reference to the notion of public interest, unlike the case of state secret statutes in traditionally democratic countries, where public interest takes precedence upon the classified character of state secrets.
(References to similar legislation in Austria, Canada, France, the Netherlands, Spain, Sweden, the US, and Germany are attached to these comments.)
The Board of APADOR-CH"
*
e) The draft law for the modification of Law 60/1991 on public rallies
In November 1994, the Chamber
of Deputies debated the draft law for the modification of Law 60/1991 on public
rallies[6]. Following an intense campaign started in 1993
by APADOR-CH and other non-governmental organizations, the Legal Affairs, Human
Rights, and Defense Committees of the Chamber recommended the plenum to repeal
the bill, which was nevertheless maintained on the agenda of the Chamber. However,
on November 7, 1994, the draft was debated and finally repealed.
III. THE RELATIONSHIP BETWEEN POLICE AND INDIVIDUALS
CONTEXT
In 1994, APADOR-CH continued the program started in April 1993, whose purpose was to monitor the behaviour of the police officers in their relations with individuals. The need for such a program is due to the fact that, although after December 1989, the Romanian police has undergone a series of transformations, the democratization of this fundamental institution of the state is still at an incipient phase, the stumbling block being the mentality of police force members. APADOR-CH started this program as an attempt to establish a dialogue with the General Police Inspectorate within the Ministry of Interior, in other words as a dialogue between law enforcement agencies and a segment of the civil society. The motivation springs from the fact that for half a century the activity of the militia was -- to all intents and purposes -- a secret one and the Romanian citizens were deprived of any opportunity to learn about abuses perpetrated by militia forces unless they experienced them directly, or, even less so, about sanctions ordered against lawbreaking officers. The opinion that militia officers -- turned into police officers after December 1989 -- enjoyed impunity was thus formed.
On the other hand, the military organization system of the Romanian police, currently perceptible especially at the level of the justice system, gives exclusive jurisdiction to the military prosecutors and courts to investigate and punish alleged abuses. Since civilian[7] justice is the rule, while the military system is the exception to this rule, maintaining this exception can only give rise to suspicion.
The Romanian justice system does not allow civilian victims to seize an independent and impartial court in order to appeal the conclusions of a military prosecutor. The only venue available is the complaint lodged with a higher military prosecutor. In case the latter decides to complete the initial investigation, this task is generally fulfilled by the same military prosecutor that investigated the case in the first place. Moreover, the current police system includes officers supposed to investigate their own colleagues, suspected to have perpetrated abuse. Due to a shortage of staff, lack of means of transportation to go on location or lack of time, some military prosecutors found their conclusions mainly on the information forwarded by these police officers. There have been cases when the latter covered up for their colleagues, which led to the military prosecutor's decision that no charges should be brought against the alleged perpetrators.
APADOR-CH focused also on another aspect, i.e. the practice of military prosecutors to prosecute police officers only when there is absolutely irrefutable evidence pointing to an abuse, their personal opinion on the case ranking only second. In principle, this position would be correct, if it were not for the fact that in this way, in most cases, the bench is not offered the possibility to judge the allegations involving the police. It is deliberately ignored that most abuses are perpetrated in police quarters, where external witnesses can obviously not be present and there are chances that the only witnesses be other police officers, who, for reasons of professional solidarity, would not testify against colleagues charged with abuse by civilians. Apart from this, the Romanian legal system does not offer victims of police abuse any chance to seize civilian courts, in order to obtain moral or material damages in cases where the Military Prosecutor's Offices decide not to bring charges against some police officers.
As for the approach of this program, APADOR-CH undertook to consider both the theoretical aspect, by analyzing the documents regulating police activity, and the practical one, by initiating extra-judicial investigations in individual cases of violation of human rights by the police.
The first step for APADOR-CH was to publish a poster with excerpts from the Romanian Constitution and the international human rights documents referring to the relationship between police and individuals. Following an agreement with the General Police Inspectorate, part of these posters were to be distributed throughout the country, so as each police station could display one poster. The General Police Inspectorate committed to distribute 5,500 posters, which, according to General Police Inspectorate representatives, sufficed for all police stations in the country. With only one exception, neither the APADOR-CH representatives, nor any other person having come into contact with the association, have so far seen the posters displayed in police stations.
The round tables with representatives of the County Police Departments were organized so as to start from individual cases investigated by APADOR-CH and reach general conclusions on the way in which the police understand to protect human rights. Such (often heated) debates were organized in Galati, Bacau and Botosani (the first two with the participation of an American legal expert in human rights teaching at police academies in the US, while the last with the participation of representatives of the French police). The information offered by the foreign participants on the police systems in their own countries were received with great interest by the Romanian participants enroled in the police. However, their reactions to the concrete examples of police abuse presented by APADOR-CH were as strong as diverse. Beyond all efforts to appease their widely shared suspicion towards the fact that "some civilians" mean to "teach" them how to enforce the law or to question their methods, APADOR-CH representatives were under the impression that some real dialogue can be established.
In January 1994, a documentary on cases of police abuse was produced by the social issues department of the Romanian state-owned television channel in collaboration with APADOR-CH. The program triggered a vehement reaction of the Ministry of Interior, in the form of a reply -- broadcast on the same television channel -- presenting statistical data on achievements of the Romanian police in their struggle with crime, on the number of police wounded or deceased during missions, without even mentioning the subjects presented in the show at stake. This broadcast reply was followed by a "chilling" of contacts with APADOR-CH; as of this writing, the "chilling", i.e. refusal of collaboration, is still in effect.
Under these circumstances, as APADOR-CH did not intend to discontinue the police abuse program, it proceeded with its extra-judicial investigations and re-oriented towards closer collaboration with the Military Prosecutor's Offices Department within the General Prosecutor's Office. APADOR-CH started to regularly forward this agency its reports on individual cases where civilians had been victims of police abuse. In some cases, the Military Prosecutor's Offices did take into account the results of APADOR-CH investigations and decided to complete their own investigations. However, in very few instances was the initial decision of the military prosecutors reversed so as to favour the victims.
Wishing to broaden its collaboration with other state agencies, whose mandate, even if different from that of the police, concerns personal liberty, APADOR-CH extended its program so as to include the Border Police, which is part of the Ministry of Interior, too. This new approach is closely linked to another APADOR-CH program which targets the asylum-seekers in Romania.[8]
APADOR-CH has also started to collaborate with the General Department of Penitentiaries within the Ministry of Justice, with a view to investigate individual complaints of prisoners or of their families. On the occasion of visits to different penitentiaries, representatives of APADOR-CH learned about detention conditions and were in a position to make certain comments and suggestions.
THEORETICAL ASPECTS
The Romanian police is placed under the supervision of the Ministry of Interior and is structured as follows:
- General Police Inspectorate ("Inspectoratul General al Politiei");
- Bucharest Police Department ("Directia Generala de Politie a Municipiului Bucuresti");
- County Police Departments ("Inspectorate de Politie Judetene");
- police departments for railways, air and naval transportation;
- institutions for education and specialized training of police.
Special police stations can be established for guarding certain social and economic objectives, depending on their importance.
According to estimates published by the press, the Ministry of Interior has approximately 75,000 employees. APADOR-CH asked the ministry to communicate the number of active police, but no concrete answer was received, the motivation being that figures relating to personnel are "varying". An estimate based on unofficial data shows that there are approximately 50,000-55,000 active police throughout the country, which would represent an average of one policeman to every 440 inhabitants. There are approximately 5,000 police stations, which means roughly one station per 4,600 persons. However, APADOR-CH noticed that the distribution of police throughout the country still leaves certain areas unprotected, which leads to their inability to prevent or control crime, especially in rural zones. In a small town like Victoria (county of Brasov), with approximately 12,000 inhabitants, there are 18 police officers in the station, while municipalities like Chetani, county of Mures, or Orasul Nou, county of Satu Mare, administering each 6-7 villages and 7,000-8,000 inhabitants, only have 2-3 non-commissioned officers. Besides the insufficient number of police in rural areas and their poor equipment (most police stations supposed to cover several villages do not have their own transportation means and it is practically impossible to call the police in difficult situations due to the extremely small number of telephone lines in such areas), mention should be made here of the low level of professional training of those police officers. The large majority of the more than 30 conflicts between Romanians (and/or Hungarians) and Roma took place in villages and one of the factors that led to these -- often tragic -- events was the inability of the local police to prevent or control such situations.
Starting from the belief that respect for human rights implies an adequate legislative framework, APADOR-CH analyzed certain aspects of the statutes regulating police activity, to see to what extent they correspond to the Romanian Constitution and to the international documents ratified by Romania (especially to the European Convention on Human Rights). Until the adoption of the new Police Law (Law 26/1994) in May 1994, APADOR-CH tried -- through written commentaries and contacts with parliamentarians -- to influence parliamentarians so as to improve the initial form of the draft. Although the legislative eliminated from the text the term military, which is a first step, be it formal, on the road to the demilitarization of the police force, until the stage is reached when police officers can be prosecuted in civilian courts, the demilitarization of the police remains only an aspiration. At the same time, there are significant differences or even inconsistencies between Romanian and international standards.
a) The criminal record
Chapter III, art.15 lit.p) of Law 26/1994 makes reference to the criminal record as a document meant to "register individuals convicted for criminal offenses or against whom other penal measures have been taken." From discussions held in 1994 between APADOR-CH representatives and the commander of the police station in Victoria (county of Brasov), it turned out that after the signing of the agreement between the Romanian and German ministries of interior on the repatriation of German and Romanian illegal aliens on each party's territory, the Romanian Minister of Interior issued an order instituting a special procedure for registering Romanian citizens repatriated from Germany (separate files, fingerprints, etc.). As Romania ratified similar agreements with other countries (the Czech Republic, Poland, France), the procedure reportedly extended to the Romanians repatriated from these countries as well. The existence of this order has neither been confirmed nor contested by the Ministry of Interior, although APADOR-CH solicited details in a letter that has not been answered. If still in force, it is obvious that this order denies the exercise of the right to leave one's country or to return to one's country of origin; both are human rights and their exercise cannot be assimilated to crimes for which criminal records are opened.
b) Deprivation of liberty
Chapter IV of Law 26/1994 refers to rights and obligations of police officers during the exercise of law-enforcement.
Art.16 lit.a) of Law 26/1994 stipulates that police officers have the right to request self-identification and establish the "identity of individuals violating legal provisions or suspect of having done so, as well as to take the appropriate measures in such circumstances." Thus, lit.a) allows police officers to decide not only whether an individual is suspect of violating legal provisions, but also whether he has done so. The phrase "legal provisions," though, covers the whole legislation currently in force, from the Penal and Civil Codes to the Labour and Family Codes. The police, however, has competence only over matters of criminal and contraventional law.
Art.16 lit.b) para.1 authorizes police officers to "lead to police quarters, in order to take legal measures, individuals who, by their actions, jeopardize public order, the life of other individuals, or other social values, as well as suspects whose identity could not be established," while para.2 allows them to lead to police quarters "suspects...who refuse to reveal their identity or whose identity cannot be established,...in order to clarify the matter and, as the case may be, promptly bring them before the criminal investigation agency which has competence in the matter, action which cannot be extended beyond 24 hours." (emphasis added) The notion of "public order" employed in art.16 lit.b para.1 is not defined in any legal document, which may lead to abusive interpretations. The phrase "as the case may be" in lit.b para.2 implies that it is not mandatory to bring an individual under custody before the competent judiciary authority; rather, this is a decision where the police use their discretion. In other words, in virtue of lit.a) and b), police officers may request the presentation of identity papers of any individual, may deprive anyone of liberty for 24 hours, after which they may release that person with no further legal formalities, and all these for the mere reason that they think that the individual should not be brought before the competent criminal investigation agency. The European Convention mentions in art.5 para.1 "reasonable suspicion," while the Criminal Procedure Code specifies, as a pre-condition necessary in order to decide placement under custody, the existence of "well-founded evidence or indications" (art.143). The opinion of police officers as to an individual's violation of some legal provisions or suspicion of having done so (art.16 lit.a), as well as their authorization to lead to police quarters "suspects...whose identity cannot be established," can be considered neither reasonable suspicion, nor well-founded evidence or indications. Moreover, the wording of the provisions under lit.b) so as to avoid the term custody may lead to the conclusion that for such measures police officers do not even need an order that the criminal investigations agency or a magistrate has to issue in custody cases.
A question arises; if police officers are authorized to "lead" to the police station suspects whose identity could not be established and, according to lit.b) para.2, they have 24 hours to clarify the matter, what is this 24 hours' interval, during which the individual "led" to the police station is obviously deprived of liberty? It is true that the text does not employ the term custody in connection to such actions, but it is equally obvious that the individual concerned is actually placed under custody in the police station.
Lit.d) of art.16 of the Police Law authorizes police officers to "take the measure of placing under custody...in cases and conditions prescribed by law." Given the fact that lit.b) and d) each authorize deprivation of liberty for 24 hours, it follows that in virtue of the new Police Law an individual may be placed under custody for 48 hours without an arrest warrant, which is in violation of art.23 para.3 of the Constitution which provides that "[d]etention [custody] may not exceed 24 hours."
From discussions that APADOR-CH representatives held with lawyers, judges and prosecutors, it turned out that such situations, i.e. 48 hours' custody, have already occurred, which proves that the interpretation above is not only a theoretical speculation.
Art.148 of the Criminal Procedure Code refers to situations in which preventive arrest can be enforced. Naturally, this measure can be taken only after the issuing of an arrest warrant by a magistrate (a first warrant for up to 30 days is issued by a prosecutor, subsequent to which all 30-days extensions must be decided by a court; the total length of the preventive arrest period cannot exceed half of the maximal punishment provided for the alleged offence). Although police officers only enforce the warrant issued by the prosecutor, still, given the fact that in most cases of placement under custody, they forward the file to prosecutors eliciting that the latter issue warrants, a brief analysis of art.148 of the Criminal Procedure Code may prove useful at this point. This article specifies the conditions to be met so that an arrest warrant be issued; some of those provisions raise a series of questions, i.e. situations within which:
"a) the identity or domicile of the defendant cannot be established due to insufficient data...
"d) there are sufficient indications that the defendant tried to obstruct the uncovering of the truth by means of influencing witnesses or experts, destruction or modification of material evidence, or other such deeds...
"f) the defendant is a repeat offender;
"g) when one of the aggravating circumstances is present;
"h) when the defendant committed a crime for which the law provides prison terms of over 2 years, and by not arresting him, the public order would be endangered."
It is obvious that the "well-founded evidence or indications" (art.143 of the Criminal Procedure Code) have to pre-exist the issuance of an arrest warrant. The obligation to prove either the attempt or the actual crime lies entirely with the criminal investigations agencies. The much too frequent practice of the placing of defendants under preventive arrest for a period during which evidence is collected to permit prosecution of the case, denies the general trend of democratic systems -- spelled out in another international human rights document, i.e. the International Covenant on Civil and Political Rights, art.9 -- to consider detention, placement under custody or arrest of an individual to be an exception to the general rule represented by liberty.
Art.5 para.1 of the European Convention makes no reference to repeat offenders. It is obvious that they should enjoy the same degree of protection as any other suspect during the pre-trial period and that it is entirely and exclusively the responsibility of the court to decide as to more severe punishment (if at all) to be applied to this category. It goes against the spirit of the European Convention to automatically arrest a person for the sole reason that he/she has previously perpetrated and been convicted for other offenses (art. 148 lit.f of the Criminal Procedure Code). The presumption of innocence must function equally in such cases, as well as all the other types of protection, irrespective of whether the suspect is a first or a repeat offender.
Likewise, the European Convention does not make any reference as to aggravating circumstances (mentioned in art.148 lit.g of the Criminal Procedure Code), nor as to the length of the punishment (art.148 lit.h of the Criminal Procedure Code) as representing valid grounds for deprivation of liberty.
c) Domicile search
Art.16 lit.f) and g) of Law 26/1994 refers to searches conducted both "on any precincts of companies, public or private institutions, social-political organizations, irrespective of their form of ownership, administration or destination, aboard Romanian ships and aircraft, according to legal provisions" (lit.f) and "in the residence of individuals" (lit.g). When no arrest warrant has been issued, in the first case the consent of the management of the institution concerned is required and there is no specification as to whether it should be written or verbal, while in the second case the consent must be in writing.
Art.27, para.3 of the Romanian Constitution specifies that "[s]earches may be ordered only by a magistrate and carried out exclusively under the observance of the legal procedure." (emphasis added)
There are two interpretations as to the consistency of art.16 lit.f) and g) of Law 26/1994 and art.27 para.3 of the Romanian Constitution. A first interpretation holds that the mentioned provisions of the new Police Law are constitutional, in the sense that domicile searches can be conducted based either on an arrest warrant issued by a magistrate or on the written consent of the person concerned. Another interpretation is that art.27 para.3 of the Romanian Constitution contains two obligatory conditions: the order issued by a magistrate and the legal provisions. So no one -- the police included -- may initiate domicile search without the prior order of a magistrate. Consequently, lit.f) and g) of the mentioned article of law are in violation of the constitutional provisions.
Lit.f) and g) of art.16 of Law 26/1994, corroborated with art.103 of the Criminal Procedure Code are also contrary to para.4 of art.27 of the Romanian Constitution, which provides that "[s]earches at night time shall be prohibited, except in cases of flagrante delicto." Art.103 of the Criminal Procedure Code, after restricting the period of time within which domicile searches can be conducted between 6 a.m. and 8 p.m., nullifies this limitation by further specifying that "[s]earches started between 6 a.m. and 8 p.m. may continue during the night;" "[d]omicile searches can be conducted by prosecutors (as well as by agencies competent in matters of national security) during the night, too." (emphasis added) The first provision authorizes any search made during the night, on condition that it is started between the specified hours, while the second one eliminates even this pseudo-limitation by restricting only the agencies competent to conduct night searches. Both provisions are unconstitutional. The emphasized and bracketed text in the quotation above is drawn from the volume "Legea Politiei nr.26/1994 si alte acte normative utile pentru aplicarea acesteia" ("Police Law no.26/1994 and Other Legal Texts Relevant for Its Enforcement"), edited and annoted by Radu Stancu, Esq. (Bucharest: Romfel, 1994). It is worth mentioning that, although art.205 of the Criminal Procedure Code -- stipulating the competencies of the "[state] security[9] agencies" over matters of penal offenses -- has been repealed, art.103 has not been modified as yet. As before 1989, it specifies that the "[state] security agencies" (not the "agencies competent in matters of national security", as updated by the mentioned author) are authorized to conduct night searches. It may be argued that this part of art.103 is obsolete and should no longer be enforced, considering the 1991 Constitution, the National Security Law and the Romanian Intelligence Service Law, all adopted after 1989. Why then did the mentioned work make no specification in this direction?
In any event, it is difficult to explain the current lack of legislative initiative to modify art.103 on the night searches, even if conducted by a prosecutor. This article is unconstitutional.
d) Criminal investigations in cases involving police officers
Art.24 of the Police Law stipulates that "[p]olice officers authorized to act as criminal investigation agencies are appointed by order of the general police inspector." On the one hand, it is natural for the Ministry of Interior to investigate its own employees suspect of having violated the law. The Ministry decides, according to the results of the investigation, upon sanctions such as administrative fines, disciplinary transfers, de-activation, etc. On the other hand, the Military Prosecutor's Office is the judicial jurisdictional authority in matters of investigation of all military personnel, police included. Military prosecutors carry out their investigations without taking into account the results of the investigations conducted by the Ministry of Interior. There are, however, situations when, due to a shortage of personnel (there are around 80 military prosecutors for the whole country), military prosecutors solicit the collaboration of the investigation agencies within the Ministry of Interior in order to investigate cases of police officers suspect of having violated the law. This only further fuels suspicions as to the objectivity of this type of investigation.
During a meeting with representatives of the General Prosecutor's Office, APADOR-CH was informed that, following an order dated March 31, 1994, of the General Prosecutor, who supervises the activity of military prosecutors, too, the investigation of cases involving police officers suspect of misconduct (art.250 para.2 of the Penal Code) will be exclusively performed by the Military Prosecutor's Offices. In the opinion of APADOR-CH, the next step towards a real demilitarization of the police would be for the law to include provisions allowing victims of police abuse to request from civilian courts to grant them appeals against decisions of the Military Prosecutor's Offices. As a matter of fact, this right is enshrined and guaranteed by the Romanian Constitution in art.21: "(1) Every person is entitled to bring cases before the courts for the defense of his[/her] legitimate rights, liberties, and interests. (2) The exercise of this right may not be restricted by any law."
e) Torture and other cruel, inhuman or degrading treatments
Art.27 of Law 26/1994 prohibits police officers to inflict upon any individual "physical or mental suffering" in view of obtaining information or confessions, or in order to punish, intimidate or pressure. Para.2 of the mentioned article refers to torture, which is banned under any circumstances "whatsoever" (including war time or threat of war, internal political instability, etc.) According to art.3 (from which member states may not derogate) of the European Convention, "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Para.2 of art.27, though, mentions only torture, despite the fact that inhuman or degrading treatment or punishment should be equally banned, irrespective of the circumstances under which they take place.
f) Law no.61/1991 on sanctioning misdemeanours[10]
The Law on sanctions for violations of social cohabitation norms, public order and peace (no.61 from September 27, 1991) is another legal text regulating police activity in Romania. Art.2 of the law lists a large number of misdemeanours (lit.a-x), some of which allow for abusive action on behalf of the police. For instance, lit.a) provides that "the perpetration, in public, of obscene deeds or gestures... of a nature to disturb public order and peace or to provoke indignation among citizens or offend the dignity and honour thereof or of public institutions" (emphasis added) shall be punished. It is not clear how one could offend the dignity and honour of public institutions -- a misdemeanour punishable by fine. Under lit.d) "unrightful[11] possession of knives, switch-blade knives, brass knuckles ....or other such objects machine-produced or manufactured for the specific purposes of cutting, piercing or hitting..." (emphasis added) is punished. It is thus possession (not use or threat of use) that is punished by prison terms from 1 to 6 months or by a fine. Would scissors, Swiss army knives, or needles be also listed under lit.d)? Lit.t) -- punishing by fine refusal of an individual to produce identity documents or to go to a police station "upon the request or motivated invitation of the criminal investigations or public order safeguarding agencies" -- is a provision that led to a large number of abuses committed by police officers. First of all, because "identity documents" are still understood by the police to be represented only by the identity card, or at best, by one's passport; no other document is considered valid, be it a photo permit, certification, or any other proof of identity. Secondly, because the "request or motivated invitation" has often been proven to be abusive and used as a means of intimidation. The same for lit.u), which punishes "obstruction under any form" of police or criminal investigators identifying or leading individuals to police quarters.
By virtue of Law 61/91, appeals to the punishments applied under this law have to be requested within 15 days and are judged by a one-judge panel; upon the request for another appeal of either the individual concerned or of the prosecutor in the case, the panel includes two judges of the same court. The sentence pronounced in this last case is final and enforceable. Law 61/91 does not further specify the way in which the fine should be applied (for this, see art.40 of Law 32/1968 on the definition and punishment of misdemeanours), except for the fact that it should be paid within 30 days from the date when the sentence becomes final. Likewise, the law does not mention other possibilities to enforce the fine by other venues such as subtracting it from the incomes or possessions of the offender, but it allows for directly converting the fine into contraventional prison, by dividing the sum to be paid as fine by 300 lei per day of prison.
In case the fine is not paid within the 30-days deadline, the police may ask a civilian court to rule to convert it into contraventional prison. APADOR-CH has recorded two cases in which courts, upon the request of the police, converted fines into prison, although the alleged offenders contested the contravention reports within the legal deadline and the lawsuits were pending before the court; these situation were subsequently rectified and the persons concerned were released.
According to the law, the conversion of fines into prison is made by dividing the sums representing the fine by 300 lei per each day of prison term; the result cannot exceed 180 days, though. A Government Ordinance from August 1994 (approved by the Parliament by Law 129 of December 21, 1994) multiplied all current fines up to 50 times; however, the system of dividing this new sum to 300 lei per day was not changed accordingly. It is obvious that the conversion of the current fines into prison terms based on the same 300 lei per day divider would result in convictions of maximum prison terms, as they are specified by Law 61/1994.
As for the right to defense, it raises the following question: how could one exercise this right as long as, in cases of arrest based on Law 61, alleged offenders are presented before the court within 24 hours from their arrest (holidays included) or, exceptionally, within 5 days, if there is an arrest warrant issued by a prosecutor? What happens to alleged offenders under arrest/custody who do not know any lawyer? From a practical point of view, if a person is placed under custody/arrested on a Friday, Saturday or Sunday, he/she has to wait at least until Monday, when the bar can delegate a defense lawyer ex-officio. It is also unlikely that during weekdays this issue can be solved within 24 hours. In other words, the right to defense works effectively only in the exceptional situations in which the prosecutor issues a 5 days arrest warrant.The very short deadline (24 hours or, exceptionally, 5 days for the first instance and 24 hours for re-examination) does not allow for the preparation of the defense, be this made by a defense lawyer or by the alleged offender him/herself (as it happens in most cases). The re-examination itself (24 hours) does not offer any guaranties in terms of effective appeal.
The analysis above clearly shows that Law 61/1991, which preserves an emergency procedure unjustifiable in the current Romanian conditions, offers a large range of potential violations of the rights provided under art.5 and 6 (the rights to personal liberty and to a fair trial, respectively) of the European Convention, as well as the right to defense enshrined in art.24 of the Romanian Constitution.
There is another unresolved issue relating to the legal framework within which the Romanian police functions: the Status of Police Officers, whose draft law was supposed to be forwarded for adoption to the Romanian Parliament within 90 days from the adoption of Law 26/1994. The deadline passed by the end of August 1994; by late December 1994 this document meant to regulate important aspects of the relationship between police and individuals was not forwarded to the Parliament yet.
*
SIGNIFICANT INDIVIDUAL CASES DOCUMENTED BY APADOR-CH
a) Cases started in 1993
1. The Comanesti (county of Bacau) case
On November 22, 1992, the brothers Ciprian and Florin Banu from Comanesti were lethally shot in their own yard by police officers from the same locality. A third brother, Aurel Banu, against whom an arrest warrant had been issued for a previous offence, escaped the police but was arrested the next day. Likewise, during the November 22 incident, the father of the Banu brothers was also wounded in the leg by a gunshot. The data gathered during fact-finding missions and extra-judicial investigations led APADOR-CH to the conclusion that the intervention of the police was disproportionate in relation to the offence perpetrated by the Banu brothers (they had started a scandal in a local disco, resulting in insults, broken glasses, etc.).
The investigation of the Bacau Military Prosecutor's Office concluded that no charges be brought against the police officers involved in the incident on the grounds that they acted in self-defense. In all subsequent meetings with representatives of the Ministry of Interior, and of the Bucharest and Bacau Military Prosecutor's Office, APADOR-CH brought up the disproportionate use of force in the Comanesti case. While Aurel Banu was serving his sentence for the offence committed previous to the November 22 incident, the Comanesti police solicited that he be prosecuted for outrage perpetrated against police officers on the occasion of the mentioned incident, when the police made use of firearms. His file was returned by the court to the Prosecutor's Office for completion. In June 1994, the Military Prosecutor's Office notified APADOR-CH that they requested to see the files of the two cases with a view to analyzing the initial solution. Until late December 1994, APADOR-CH did not receive any further information.
2. The Costel Covalciuc case (Dorohoi)
Arrested on June 29, 1993, judged according to the emergency procedure and sentenced to 3 months in jail for breaking Law 61/91, Costel Covalciuc, father of 6, died on July 4, 1993, in the police lock-up or in the police van, on the way to a hospital. The Military Prosecutor's office investigated the case and concluded that Covalciuc died of a heart attack and, consequently, the Dorohoi police cannot be held liable for his demise.
There have been allegations relating to Covalciuc's death coming from the parents of the deceased, but also from APADOR-CH, whose representatives visited Dorohoi three times. According to Covalciuc's parents' testimony, he had bruises on his chest, traces of violent attack on the head and wounds indicating cuffing. The post-mortem made first in Dorohoi and then on separate organs in the Forensic Section of the Iasi County Hospital established heart-attack as the cause of death, without any mention as to what might have provoked it.
Covalciuc's parents requested the excavation of the body for a second autopsy. The Military Prosecutor's Offices Department decided to complete the investigations but refused to unearth the body. The initial decision was eventually confirmed, absolutely clearing the Dorohoi police officers. They were not even held liable for the fact that, despite being responsible for the physical and mental integrity of offenders under arrest or custody, they did not ensure a health check at the time of Covalciuc's arrest, which might have helped to save him, and did not react promptly by calling a doctor and taking the man to hospital, which also might have avoided Covalciuc's subsequent death. As a matter of fact, the idea that the police is responsible for the physical and mental integrity of those under its custody is hardly accepted among the police officers themselves.
3. The Dorel Dinca case (Bors)
On February 20, 1993, Dorel Dinca, a watchman in a private parking lot from Bors, was beaten up by three police officers. As the forensic certificates prove, Dinca subsequently had to be placed under medical care for as long as 12 days. Following the complaints filed with the Military Prosecutor's Office and the Ministry of Interior, the Oradea Military Prosecutor's Office carried out investigations that initially concluded by a no-indictment decision for the police officers involved in the case. The investigations also concluded that the police officers had hit Dinca and punished them by administrative fines. Upon the insistence of APADOR-CH, the Military Prosecutor's Office Department within the General Prosecutor's Office invalidated the first decision in April 1994; in June 1994, officers Gheorghe Mihalcea, Mihai Palcut and Carol Varodi were prosecuted on charges of abusive conduct under art.250 para.2 of the Penal Code. The first instance, the Timisoara Military Court, fined them by 150,000 lei each, which represents too light a punishment for the deed they committed and pleaded guilty of, but the Military Prosecutor's Office appealed this decision. The higher court decision is still pending.
4. The Andrei Zanopol case (Galati)
A journalist with the local publication "Impartial" and a correspondent of some Bucharest-based dailies ("Ora" and "Ziua"), Andrei Zanopol was arrested on June 27, 1993, and charged with influence peddling for a deed he had allegedly perpetrated in 1991. Upon his arrest, two plain clothes police who did not have a warrant, handcuffs or a police van with them, immobilized Zanopol by tying his hands with wire to a metal bar, and then beat him. The incident occurred around 8 p.m., during daytime, between apartment buildings in the Mazepa neighbourhood in Galati. He was subsequently taken to the police station, where -- according to him -- was further beaten. Upon the request of Zanopol's defense lawyer and of APADOR-CH, the case was transferred to Bucharest. At the end of an investigation that lasted 21 days, during which Zanopol was kept in the police lock-up, the Criminal Investigations Department no.1 within the General Prosecutor's Office decided to drop charges. However, in order to probably justify his being held in detention, Zanopol was punished with an administrative fine, decision which he contested.
The Iasi Military Prosecutor's Office (which has jurisdiction over Galati) investigated the brutal conduct of the two non-commissioned officers -- Ion Dima and Costin Cotoranu -- who had arrested Zanopol and decided not to prosecute them. Upon the insistence of APADOR-CH, the Military Prosecutor's Offices Department decided to complete the investigations, which lasted until November 1, 1994, when the following conclusion was reached: "Since the person concerned (Andrei Zanopol) resisted arrest, and, at the same time insulted and threatened the police officers, they immobilized him by means of force, tying his hands with wire and cord to a metal bar...Under these circumstances, the evidence, including the forensic reports, points to the fact that Zanopol was injured and needed to be placed under medical care for 7-8 days...Considering the mentioned circumstances, the Iasi Military Prosecutor's Office appreciates that the conduct of the two police officers should be punished by means of an administrative fine under art.91 of the Penal Code." (emphasis added) It has thus been admitted that the two police officers have acted with brutality and the victim needed medical supervision as a consequence of their misconduct. It is clear though that "immobilization by means of force" alone, be it with the help of wire and cord could not cause injuries that needed medical care for so many days; obviously, the two police officers had beaten Zanopol savagely. However, the final decision is not to prosecute them.
On the evening of November 9, 1994, Zanopol together with Sorin Titei and Viorica Caprita, municipal council member, were attacked by 5 employees of the private company "Autobloc" (towing illegally-parked vehicles) in the presence of several police officers that did not intervene in the incident in any way. Zanopol and Titei were there in their capacity of journalists with "Impartial," trying to investigate a conflict between the above-mentioned municipal councillor and employees of "Autobloc". During the incident, the aggressors destroyed a camera and a tape recorder belonging to the "Impartial" publication. As of this writing, the complaints lodged with the Galati Police have not received any answer. Zanopol and Titei also complained to the Iasi Military Prosecutor's Office about the passivity of the police officers witnessing the incident.
5. The Ion Trifan case (Bucharest)
Ion Trifan was one of the victims of the miners who plundered Bucharest in June 1990. Between June 14-21, 1990, he was "held" in the military unit of Magurele "for investigations". The moment he was taken there, he was confiscated everything he had with him, including a sum of money -- rather large at the time -- destined for the purchase of health treatment resort tickets. No report was made and nothing could be recuperated after his release.
Ion Trifan decided to sue the authorities, i.e. the Ministry of Finance, the Legal and Administrative Review Department, asking for moral and material damages. After many delays, Civil Section no.4 of the Bucharest Court pronounced sentence 31 on January 18, 1994, rejecting Trifan's claims of 600,000 lei worth of damages; the reasoning was that the complainant could not prove the connection between his 8-days "arrest" -- without a warrant -- and the deterioration of his health condition, on the one hand, and, on the other hand, that those who confiscated his possessions could not be identified. Consequently, considering his material damage claim unjustified, the claim to moral damages was also "forgotten". Moreover, Ion Trifan had to prove that no warrant had been issued in his name to justify his detention in the Magurele military unit. It was only in November 1994, that the Military Prosecutor's Offices Department and the Prosecutor's Office with the Bucharest Court issued documents confirming the fact that no arrest warrant had been issued for both cases (resulting from the splitting of the initial file) concerning Trifan. The Court of Appeal, seized by Trifan after the rejection of his case by the first instance, refused to include new documents in the file and rejected his claim once more. The appeal filed again by Trifan is due for 1995.
The Ion Trifan case is clear: an individual was held under arrest illegally for 8 days, under very harsh conditions, without having perpetrated any crime. There is evidence to show that a decision not to prosecute him had been taken, and there are two notifications of the fact that no warrant was issued for his arrest. Trifan was therefore placed under arrest illegally in June 1990. He is therefore obviously entitled to be paid damages by the state, which is responsible for the conduct of its agencies. The Romanian judiciary, however, has been procrastinating for almost 4 years taking a decision in this case.
*
b) Cases taken up in 1994
1. The Ionel Buzoianu case (Bucharest)
At the end of 1992, three officers of the Bucharest Traffic Police Brigade arrested Ionel Buzoianu. The police officers then showed up at the domicile of the suspect and carried out a domicile search in the presence of his girl-friend, confiscating a number of possessions -- which were subsequently returned to the owner -- and an important, according to Buzoianu, sum of Deutsch marks, never returned to him. Buzoianu notified the Military Prosecutor's Office, accusing the police officers that arrested him and conducted the search of abusive conduct. On March 31, 1993, he was summoned by the Bucharest Military Prosecutor's Office for April 8. But on March 1, he had already been arrested and prosecuted under the charge of offense against the authority for having written in graffiti on his brother's car, parked in a public place, that "the traffic police commander forces his employees to accept bribes so that he can buy himself a villa."
The court had not made any judgement for one year and a half, between the time of his arrest and early September 1994 when he was released, as to the charges brought against him under art.238 of the Penal Code. According to the Romanian law, an individual may be held under preventive arrest for as long as half of the maximal sentence provided in the law for the offence he had allegedly perpetrated. In Buzoianu's case, the Penal Code prescribes a maximal sentence of three years. As of this writing, neither the court made a judgement as to the charges brought against him, nor the Military Prosecutor's Office considered his complaint of abusive conduct of police officers, a complaint lodged more than two years ago.
APADOR-CH repeatedly notified the General Prosecutor, the Military Prosecutor's Offices Department, and the Ministry of Justice as to this case, and visited Buzoianu in the Bucharest Penitentiary in August 1994. Buzoianu has a criminal record containing several convictions (for theft of public or private property). His detention under preventive arrest for one year and a half on grounds that, on the one hand, he is a repeat offender, and, on the other hand, that he had expressed an opinion, is in violation of art.5 para.1 of the European Convention (liberty of the person) and of art.10 of the same document (freedom of expression), the exercise of both rights being guaranteed also under the Romanian Constitution.
2. The Emil and Virgil Macau case (Victoria)
In May 1991, Emil Macau, together with his wife and their five children, left Romania and, according to their own statements, were granted political asylum in Hungary in August 1992, based on allegations of abuses of Romanian authorities and violations of minorities' rights (the Macau family belongs to the Roma minority). In April 1993, the Macaus were repatriated from France to Romania: the French police had caught them only with their Romanian passports with no French visas. According to the Macaus' statements, this was due to the fact that their documents -- issued by the Hungarian authorities -- had been stolen from them during their stay in France. Upon their return to Romania, the police in the town of Victoria invited Emil Macau at the police quarters in order to register him, in keeping with the new regulations allegedly instituting a special registration procedure for repatriated Romanian citizens. Afraid of repercussions, Emil Macau refused to go to the police quarters, triggering thus a long history of harassment and persecution that continues to this day. Thus, Emil Macau was repeatedly fined under Law 61/1991 for refusal to come to the police quarters (even in the cases when he had been the one to complain to the City Hall against the police), inebriety, disturbance of public peace, and disturbance of the peace of citizens. Although he considered the fines to be unjustified, Emil Macau paid them each time, hoping to avoid further problems with the police.
According to Emil Macau's wife, in March 1994 the local police conducted a domicile search without having a previously issued warrant or a report made following the search. The Ministry of Interior denied these allegations. In February 1994, Emil Macau had an argument in a restaurant with an individual who subsequently reported to the police that Macau had hit him and broke his leg, following which he needed to be placed under medical care for 80 days. The Fagaras Prosecutor's Office started the investigations and summoned Macau to testify. He did not go to their quarters, and consequently, a subpoena (requiring law enforcement officers to bring him before the prosecution) was issued.
In April 1994, Emil Macau and his brother, Virgil Macau, while shopping in a local store with their wives, were beaten and forcibly taken to the police quarters (in Victoria) by police officers invoking the above-mentioned subpoena issued by the Fagaras Prosecutor's Office. According to the law, Emil Macau was supposed to be taken directly to the Fagaras Prosecutor's Office, without being brought first to the police station. The two brothers say that the police officers continued to hit them in the presence of the prosecutor (who had come from Fagaras to Victoria) and that they were forced to sign statements whose content was not known to them. After approximately one hour, the Macau brothers were taken to the Fagaras police quarters an