PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
The relationship with the Executive
The relationship with the Parliament
RELATIONSHIP BETWEEN INDIVIDUALS AND THE POLICE
The relationship between APADOR-CH and the Police
Cases documented by APADOR-CH
The General Police Inspectorate lock-up
IV. ASPECTS FROM PENITENTIARIES
Religious minorities: Freedom of conscience
FREEDOM OF EXPRESSION
The project “Freedom of expression: The media and democracy”
Access to information
SECURITY AND INTELLIGENCE SERVICES
Law No. 51/1991 on national security of Romania
The institutional framework
The project “Secret services in constitutional democracies”
The case of Captain Constantin Bucur
VIII. OTHER ACTIVITIES
1997 has been a year of contradictions for Romania. It stood out through the fact that the authorities became more open towards the civil society and displayed a tendency to collaborate with non-governmental organisations involved in various fields. Apart from this achievement, the situation of human rights has recorded no development, following the path traced during the previous years. It is true that many more issues related to human rights have been brought to the public attention and discussed, but it is the media — both written and electronic — which deserve all the merits for this situation. In 1997, television and radio stations, newspapers and magazines dedicated a higher number of broadcasting time and pages than ever before in the six previous years of democratic regime to this issue.
Legally speaking, the most important issue was related to legislating by means of Government orders and emergency orders. Never before has the legislative delegation, made possible by the Constitution, been so often employed. Moreover, the initiative of the previous Government which ruled until November 1996 to issue emergency orders in the field of organic laws continued. This procedure accepted by the Parliament in 1996, turned into a habit, although it runs counter to the principle of separation of powers in a state.
Besides the issues of legal stability and the role played by the Parliament such procedure involves, legislation by means of orders and emergency orders made it almost impossible for the civil society to respond promptly and efficiently to the contents of legal documents thus adopted. In most cases, the response came unavoidably too late and was — unfortunately — inefficient.
Public authorities continued to violate human rights. APADOR-CH (Association for the Defence of Human Rights in Romania — the Helsinki Committee) was notified of more cases than ever during the previous years, which may have a two-fold explanation: either the number of such violations was higher or the number of persons who know their rights and resort to legal mechanisms increased. But the cases were more serious, especially those involving police officers, gendarmes, public guards, including the number of instances when they used fire weapons and made victims. Three types of police behaviour were quite frequent in the cases investigated by APADOR-CH in 1997:
— some police officers employed violence against individuals and acted fast, by lodging complaints on charges of outrage, as a further measure of intimidation;
— in order to intimidate their victims, police officers abused the provisions of Law No. 61/1991 and repeatedly fined individuals already molested in order to intimidate them; such behaviour can be regarded as a genuine harassment;
— Military Prosecutor's Offices took much longer to solve the victims' complaints against police officers than the civil prosecutors did to solve the complaints of the police officers against the same victims.
An obvious imbalance in favour of police officers continued to be manifest in 1997, strengthening the idea that the ordinary citizen is the last to be protected by the Romanian legal system and state institutions.
With regard to minorities issues, 1997 was also a year of contradictions. If the first half of the year recorded a normalisation of the relationship with national minorities — both legally and practically speaking — the second half was characterized by a recrudescence of nationalism, both in the Romanian Parliament and in the media. A consistent feature of the relationship with minorities was the alarmingly high religious intolerance. The differences between the Romanian Orthodox Church and the Greek-Catholic Church are far from solved. Some attempts to solve this matter through legal channels were answered by highly aggressive press releases issued by important hierarchs of the Romanian Orthodox Church. The media also signalled and presented numerous cases where persons belonging to denominations or faiths other than orthodox were actually forbidden to practice their specific rituals. The citizens were joined in their intolerance by some priests, with the open or implicit support of central and local authorities.
The instruments and constitutional institutions meant to ensure the exercise of citizens' rights were only partially established in 1997. Thus, although the institution of the ombudsman was established in May 1997, it still did not have the necessary premises and staff until the end of 1997; the law on access to information, the law on ministerial accountancy, the law on civil servants have not been drafted.
With regard to the role of justice, the modification of the law on the organisation of the judiciary did not lead to an increased confidence in the act of justice. In this context, the decisions of the European Human Rights Court based on complaints lodged against the Romanian state are worth mentioning. Recently, the first case against Romania was submitted to the European Human Rights Court.
In 1997, APADOR-CH was constantly present and active in public life. The written and electronic media have been of real help and APADOR-CH considers it is a duty of honour to thank those television and radio stations, newspapers and journalists who joined the association in defending and promoting human rights.
II. PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
1. General framework
Legally speaking, 1997 featured an excessive use of the constitutional provisions regarding legislative delegation. According to Art. 114 of the Romanian Constitution, legislative delegation represents an opportunity for the Government to issue orders with legal power on behalf of the Parliament. The Constitution specifies that the Parliament must first issue an enabling law mentioning the field and the date up to which orders can be issued (usually, during the Parliamentary recess). It is also specified that the Government is not authorized to issue orders in fields regulated by organic laws. The last paragraph of this article provides that the Government may issue emergency orders in exceptional cases.
In 1997, the Romanian Government issued approximately 50 orders on the basis of enabling laws and about 100 emergency orders, some in fields regulated by organic laws. Several issues regarding legislative delegation must be specified:
— the constitutionality of these orders is not previously verified as it happens to laws adopted by the Parliament, but they become effective immediately, simply by being published in the Official Gazette, and are compulsory from that moment on, being subsequently discussed and adopted by the Parliament. It follows that an unconstitutional law may be effective and compulsory if included in an order.
— With regard to the approximately 100 emergency orders issued by the Government in 1997 (during the parliamentary session), it is worth mentioning that if some of them were initially justified, the use of this way of legislating soon became an abuse. Although some of these emergency orders contain appropriate, necessary provisions, the procedure is open to criticism for several reasons:
— firstly, because it reduces to a great extent the Parliament's role — a fundamental institution in a democracy and the supreme representative of the people's sovereignty — and makes both the parliamentary majority and the opposition feel useless;
— secondly, because such procedure gives raise to the idea that exceptional situations occur in Romania all the time;
— thirdly, because it creates a dangerous precedent, as any future Government could pretend that an exceptional situation has occurred and could legislate by means of emergency orders, which would seriously jeopardize the country's juridical system.
As for the legal framework relating to human rights protection, it has remained fairly the same as during the previous years. Criminal law, regarded as one of the most oppressive in Europe, has not been modified so as to grant genuine human rights protection.
2. The relationship with the Executive
Legislation by means of Government orders and emergency orders made useless the response of the civil society to the contents of legal texts thus adopted. Few draft orders were announced in advance so that one could react to their contents in time. In most cases, the contents of orders became available upon their publication in the Official Gazette.
A. A legal document which imposes unjustified restrictions on freedom of movement — the Law on passports — was adopted towards the end of 1997. Its history dates back to the beginning of the year, when, following visit to Belgium, the Minister of Interior promised to restrict the right to travel abroad of persons the police regards as capable to jeopardize the country's image. APADOR-CH reacted promptly and issued a press release taken over and extensively commented by the media:
On 8 February 1997, upon returning from the visit to Belgium, Mr Gavril Dejeu, the Romanian Minister of Interior, declared to the press that the ministry he heads will be involved in restricting the right to free movement of Romanian citizens who touch Romania's image abroad through their behaviour or declarations. At the same time, he voiced his intention to monitor the activity of those who disparage their country.
With regard to this position, APADOR-the Helsinki Committee declares:
1. It is unfortunate that 7 years after the change of regime in Romania and 5 years after the adoption of a Constitution proclaiming Romania as a state governed by the rule of law a Minister of Interior makes declarations regarding potential restrictions of human rights outside the existing legal framework.
2. It is unacceptable for a member of the Romanian Government to threaten to monitor abroad Romanian citizens who make ‘unpatriotic declarations.’ Freedom of expression and freedom of movement in the country and abroad are fundamental human rights enshrined in the Constitution (Art. 30 and Art. 25) and in many international documents ratified by Romania. The threat to resort to police measures to intimidate these citizens and restrict such rights are measures reminding of a police state, not of a state governed by the rule of law.
3. Actually, it is declarations and initiatives such as those recently voiced by the Minister of Interior that jeopardize Romania's image abroad, presenting it as a state unable to adopt a democratic behaviour, ready to resort to constraints against its citizens.
4. The Romanian Helsinki Committee hopes that the absence of any reference to human rights protection from the Government Programme is a mere omission and that the authorities will turn to good account the spirit of this programme: respect for the citizens, for their constitutional rights and freedoms.”
Part of the media supported the association's view, but some newspapers considered that APADOR-CH posed as a defender of potential criminals. After the order was adopted by the Government, it was discussed by the two Chambers of the Parliament. As the amendments adopted by the Chamber of Deputies make it even more restrictive, APADOR-CH drafted an analysis submitted to the Romanian Senate:
“APADOR-CH COMMENTARIES ON THE MODIFICATIONS
PROPOSED BY THE CHAMBER OF DEPUTIES
TO THE ORDER ON PASSPORTS (No. 65/28 August 1997)
With regard to the recent modifications proposed by the Chamber of Deputies to the Governmental order on passports in Romania, currently debated by the Senate, APADOR-CH wishes to point out the following aspects:
1. Art. 25 of the Romanian Constitution guarantees freedom of movement within the national territory and abroad. A possible restriction of this right should be ‘proportional to the extent of the situation that determined it and may not infringe upon the existence of the respective right or freedom.’ (Art. 49 of the Romanian Constitution).
Art. 14 letter e) of the version adopted by the Chamber of Deputies provides for the possibility to turn down temporarily an application for passport filed by a Romanian citizen or to withdraw the already issued document if that person ‘committed in the country or abroad (emphasis added) deeds liable to jeopardize national security, public order... established by court decisions or under criminal investigation:...’ (emphasis added). It follows that a person who was sentenced by a court in the country or abroad and carried out the sentence may be restricted the right to freedom of movement, which actually amounts to a supplementary punishment exceeding the framework established by the Penal Code with regard to the carrying out of sentences, utterly unjustified and left to be decided by the Passport Department.
The last paragraph of Art. 14 letter e) creates a new category of Romanian citizens whose right to freedom of movement is restricted, namely persons expelled ‘in accordance with agreements concluded by Romania with other states.’ This would mean that a person in this situation is punished twice for the same deed: once by expulsion from that country and secondly by means of the interdiction — temporary, it is true — to leave Romania. Moreover, the withdrawal of passport deprives the Romanian citizen of the right to travel to any country, not only to the country he/she was expelled from. APADOR-CH regards this restriction of the freedom of movement as disproportionate to the situation which determined it.
2. No time limits are set for the restriction introduced by Art. 14 letter b) regarding the possibility to turn down an application for passport or withdraw such document. A criminal investigation may take a long time, even years, which means that someone charged with a crime could be deprived of freedom of movement for the whole duration of the investigation, so that the very substance of this right is imperiled.
Although the measures provided under letter e) are limited to 3 up to 12 months, the legislator did not stipulate how many times such restrictions may be applied to the same person.
3. Art. 14 letter a) provides for turning down an application for a passport or for withdrawing an already issued one if the person ‘committed a crime for which the sentence exceeds one year’ (emphasis added) if there are well grounded indications that he/she will use the passport in order to elude prosecution. The measure shall be taken upon the request of the police for a period up to 7 days’ (emphasis added).
APADOR-CH reminds the Senate that Decision No. 71 of 23 May 1996 of the Constitutional Court ruled that ‘refusal to issue a passport or its withdrawal’ must be measures ‘ordered by a magistrate’ (emphasis added). Therefore, the police, acting as a penal investigation body, is not entitled to ask that this measure be enforced. Again, it should be specified that the text does not mention how many times a person may be subjected to these restrictions of the freedom of movement.
APADOR-CH would also like to draw attention to the fact that over 90% of the terms in prison provided by the Penal Code exceed one year by far. It follows that any suspect of a crime may be deprived of the freedom of movement for a period up to 7 days, but that this measure may be applied an indefinite number of times.
APADOR-CH urges the Romanian Senate not to adopt the above mentioned restrictions, which introduce unjustified limits to the freedom of movement for some Romanian citizens, infringing upon the presumption of innocence and violating a decision of the Constitutional Court. Irrespective of what obligations the Romanian state may have assumed in its international relations, these may not be observed by overlooking the rights of its own citizens.
22 December 1997
The Board of APADOR-CH”
The order is expected to be discussed and adopted by the Senate.
B. APADOR-CH also took action to prevent an emergency order regarding the extension of pre-trial arrest warrants from being adopted. To sum it up, the order aimed to eliminate the procedure according to which the courts are bound to review pre-trial arrest warrants every 30 days and to automatically extend them for defendants whose cases have reached the trial stage.
On 11 June 1997, the association sent the Prime Minister a letter denouncing with arguments the danger represented by such law. The letter reminded: “... Art. 23 para. 4 of the Constitution of Romania, provides that ‘arrest shall be carried out on the basis of a warrant issued by a magistrate, for a maximum period of thirty days... The period of arrest may be extended only by a decision of the court.’ Analyzing the claim of unconstitutionality raised with regard to Art. 149 of the Penal Code (duration of a defendant's arrest), the Constitutional Court clearly ruled by means of Decisions 60/1994 and 20/1995 that the courts must discuss whether arrest warrants are to be extended or annulled before they expire, irrespective of the stage reached by the trial. According to the fundamental law, decisions issued by the Constitutional Court are binding.”
The letter also specified that “The issuance of emergency orders aiming to eliminate this measure would amount to a violation of the Constitution and of Constitutional Court decisions. Actually, according to the provisions of Art. 114 para. 4 of the Constitution, emergency orders should be issued only in exceptional cases. Resorting to emergency orders which come into force immediately, eluding constitutional control until they are discussed by the Parliament but taking effect in the meantime runs counter to the principle of separation of powers in a state and to the norms of the rule of law.”
C. Together with other non-governmental organisations, APADOR-CH was involved in endorsing the Governmental order on stimulation of research-development and innovation. Issued on 31 January 1997, the order enabled for the first time in Romania the stimulation of research on the basis of projects in a competition system open to all, including non-governmental organisations and individual researchers. The order was received with hostility by Romanian research institutes, which felt threatened to lose the exclusivity they used to enjoy.
APADOR-CH and other non-governmental organisations called a press conference to support this order, launching an appeal in this sense. The appeal read:
“Besides this clear goal, Order No. 8 has the remarkable merit of changing radically some of the rules concerning the use of public money with a view to achieving general goals. The order provides for the following:
1) consulting with and stimulating civil society structures to involve themselves in defining and achieving the policies in the field of research-development and innovation;
2) establishment of an advisory body made of representatives of the scientific community, the education system, associations of entrepreneurs, employers' organisations, professional associations, non-governmental organisations with know-how in local development, etc.;
3) making available funds from the state budget as grants for expenses, on the basis of contracts concluded with non-governmental organisations, business entities or natural persons;
4) opportunities for non-governmental organisations, and if the case may be, for business entities and public institutions to be assigned the management of projects by the Ministry of Research and Technology, in a competitional system;
We stress the importance of a ‘project market’ created through the enforcement of Order No. 8, in which various beneficiaries may participate; the decrease of nepotism by a transparent competition among projects; the positive effects of the new strategy on the competencies of the Ministry of Research and Technology. Order No. 8 represents a guide for legislative developments aiming to adapt Romanian institutions to the standards of well-developed democracies.
Finally, one may add that Order No. 8 is the first legal norm that complies with the obligation assumed through the Government project, that of achieving the partnership between state and the civil society.”
3. The relationship with the Parliament
A. In the first half of 1997, APADOR-CH was asked by the Secretary General of the Senate to comment on some draft bills placed on the agenda of the Standing Bureau of this Chamber. The association analyzed the draft bills and submitted its comments to the Standing Bureau of the Senate.
“THE POINT OF VIEW OF APADOR-CH
on the draft bill
regarding some measures to protect the Vlach-Romanian
cultural and linguistic minority
The draft bill aims to protect the cultural-linguistic minority of Vlach-Romanians whose members live in Romania as well as in Bulgaria, Macedonia, Greece, Albania.
1. Even though not worded as such, the main idea of the project is that special measures that could be labelled as positive discrimination are required in order to protect this minority.
APADOR-CH has expressed its opinion that the idea of positive discrimination should not be rejected de plano, as it is indeed necessary in some cases for a minority to be able to maintain and affirm its identity. One should always analyze, however, to what extent positive discrimination is actually needed.
The current draft bill aims to create a legal framework regarding education in Vlach-Romanian, different from what applies to the other national and linguistic minorities living in Romania. Such measure is not only unsuited — it would be preferable to modify the Law on education instead — but also unnecessary, even considering the current provisions of this law.
Art. 1 of the draft bill asks the Ministry of Education to organise ‘optional classes’ to teach ‘the language (dialect), literature and history of Vlach-Romanians.’ Such initiative does not require a special law; it would suffice if such request were addressed directly to the Ministry of Education. Obviously, in order to organise such classes, there should be a certain number of applicants (students); otherwise, the law (or application) is nothing but words on paper.
The obligation to organise such classes ‘when the request originates with one of the officially registered associations of Vlach-Romanians in Romania, on condition that they ensure the attendance of at least 10 students for each class’ (Art. 2) is surpassed by the current Law on education as well as by the envisaged modifications to this law.
2. Art. 3 of the draft proposal refers to the way the Ministry of Foreign Affairs, the Ministry of Culture and the Ministry of Education will negotiate in the future with the governments of countries where members of the Vlach-Romanian minority live. Such legal obligation would run counter to the way democratic countries regulate their foreign policy, as the existence of specific legal ‘indications’ regarding what should be written in a bilateral document makes negotiations almost impossible.
APADOR-CH considers that a special law to protect the cultural-linguistic minority of Vlach-Romanians is not necessary. However, it is very important that a legislation aiming at protecting all national and linguistic minorities that live in Romania be developed.
With regard to Vlach-Romanians living in other countries, there is no need for a framework-law to establish what various ministries must do during negotiations with counterparts from those countries. It is sufficient if these requirements are communicated to the respective ministries, invoking the provisions of Art. 7 of the Romanian Constitution; the Parliament could then express its opinion upon ratification.
This draft bill, in its present wording, risks to produce opposite effects to what the initiators intended.
The Board of APADOR-CH
14 February 1997”
The draft bill was not debated in the plenum of the Senate.
B. A second draft bill APADOR-CH was asked to comment on regarded access to former Intelligence Service files. This subject has been discussed in Romania for 8 years, but no actual action was taken. The fact that political parties whose members used to be direct victims of the former Securitate repression came into power led to the idea of a legal regulation of this situation, in the sense of allowing access to former Securitate files. Three draft bills were elaborated in this sense. One of them — the “Ticu Dumitrescu” draft — submitted to the Romanian Senate, was taken into consideration by the Secretary General of the Senate, who asked APADOR-CH to analyze it.
In the association's opinion, the subject to be regulated by law was not very clearly defined, which could have led to different interpretations and to abusive enforcement.
on the draft bill regarding access to one's file
and revealing the character of political police
of the former intelligence service
Art. 31 of the Romanian Constitution enshrines the right to access to information, a right which includes individuals' access to their own files compiled by the former intelligence service bodies. According to the 1991 Constitution, the right ‘of access to any information of public interest’ is guaranteed, which includes access to information regarding appurtenance to the former intelligence service (‘Securitate’) or collaboration with this institution of persons appointed to public positions.
APADOR-CH considers that a legal regulation regarding access to this kind of information is welcome and necessary. At the same time, due to the broad implications the provisions of such law may have, it must be both comprehensive and compatible with human rights values, which are universal and therefore applicable to all persons.
1. Art. 2 para. 1 of the draft bill lists the persons with regard to which an interested party may ask for information concerning their appurtenance to the former Securitate bodies or collaboration with the latter. The legal text leaves unsolved, however, the issue of the results of such public disclosure.
There are three categories of persons about which one may ask for information:
a) Persons who have been elected or wish to run for an elected position: President of Romania, MP, mayor, deputy mayor, president or deputy president of a local council. Their situation is relatively simple. No sanctions are provided for those who belonged to the former Securitate or collaborated with it, especially if the disclosure occurs during their mandate, but a moral-political sanction may appear if they run again for such positions and are not (re)elected. The fundamental idea is that, once correctly informed, the constituent is the only one to decide what is best.
b) Persons who wish to be appointed or have been appointed to a position: Several remarks must be made with regard to this category:
— the first category identified in the text is that of ‘member of the Cabinet,’ with the specification that it includes ‘functions ranging from Prime Minister to director in a ministry.’ At least the wording of this text is incorrect, given that few of the persons appointed to these positions are actual members of the Government. Even some state secretaries, not to mention the directors in ministries, are civil servants. They must be listed separately if the initiator wishes to include them in this category.
— other categories provided for refer to the director and deputy director of the Romanian Intelligence Service and Foreign Intelligence Service, general managers and directors of public television and radio channels, prosecutors, leading positions in the Financial Audit, the Police, etc. The question raised in connection with these categories refer to how they might be sanctioned in case of public disclosure. The law does not provide anything in this sense, which might appear as a positive thing at first sight. One may even infer that the law does not set out to punish them, but then, one may wonder what the reason of this law and of disclosures is.
At the same time, practically speaking, some of these persons might be dismissed for having worked as agents or collaborators of the former Securitate. The draft bill should have included safety measures for such circumstances.
— starting from the idea underlying this legislative initiative — founding the Romanian society on truth and the wish to protect certain categories of persons from blackmail — providing a deadline before which persons appointed to certain positions could have the opportunity to make public themselves their relations with the former Securitate would represent a good solution. Personal disclosures would also prevent them from being dismissed for reasons connected to this relation. After more than seven years since the fall of the communist regime, the honesty of former Securitate agents and collaborators should be appreciated as such.
c) Persons who wish to be appointed or have been appointed to a position and are inammovible — judges. This situation does not regard those who wish to become judges, but those who have already been appointed. Again, the draft bill provides no sanctions, which seems right at first sight, but, under these circumstances, what is the reason of such a law? Maybe the solution offered above could also function for judges. It is true that they are inammovible, but, according to Art. 76 letter b), magistrates may be dismissed ‘if the magistrate was removed from this position (...) as a disciplinary sanction(...).’ Thus, it would be a good solution if a deadline were provided for judges to disclose themselves their relation with the former Securitate, because failure to do so could be regarded as a reason for disciplinary dismissal.
— the draft bill provides no solutions for the situation of judges from the Constitutional Court, for instance, who are appointed for limited periods of time. What happens if, during their mandate, it is found that they belonged to the former Securitate or collaborated with it? The same question applies to judges from the Supreme Court of Justice.
2. Art. 7 (5) and Art. 12 (2) introduce restrictions regarding the persons who may be part of the Council (the board of the National Securitate Archives Research Committee) and those who may be employed to work in the Committee. Listed among these persons are those ‘against whom a criminal sentence was pronounced for crimes other than political, even if they were amnestied.’ We believe that these restrictions are much too tough and unjustified, as a common law crime should not be regarded as a hindrance to hire the Committee staff. Moreover, the draft bill does not distinguish between crimes perpetrated intentionally or unintentionally.
4. Arts. 14 and 15 provide the procedure by means of which one may get access to one's own file. It should be noted that the draft bill mentions that the application will be solved within 180 days, plus the 30 days within which the person may apply to the Council to contest the decision and 60 more days for the contestation to be solved. It follows that, all in all, it would take 9 months — therefore too long — to solve an application.
5. Art. 16 refers to the solution of applications for candidates to elected positions. It is noteworthy that the 60‑day deadline provided to solve the application is not correlated with deadlines provided by the electoral law and renders the provisions of the current draft bill unapplicable.
6. Art. 24 provides punishment by prison for refusal to hand in a file or for purloining, hiding, estranging, forging or deteriorating it. A first remark would be that most of these deeds are already incriminated by the Penal Code (purloining, forging, destroying) and a second incrimination, by means of a special law, is unjustified. A second remark regards the spirit of this draft bill, consistent with the spirit of the current Romanian criminal legislation, which institutes extremely severe sanctions, providing for terms of 2 to 8 years in prison for the deeds listed above, which runs counter to the spirit of a modern democratic state.
7. Art. 25 institutes criminal liability for cases where the Committee asks for files from legal or natural entities and these do not observe delivery deadlines. It should be noted, however, that the text is wrong when providing for ‘lei 3,000,000 to lei 5,000,000 fines for each week of delay.’ The fine, as any other sanction, is applicable only once for one deed. In addition, the law should provide means of contesting fines in court, so that access to justice, as a fundamental right, may function under any circumstances. According to the correct procedure, after the first fine, the Committee should issue a new application for files and, if delivery is delayed, ask again that the respective entity be fined. Otherwise, the same deed would be punished twice.
APADOR-CH considers that the draft bill should be amended in the sense presented above, so that it may be brought in line with the Romanian Constitution and the international documents which protect fundamental rights and freedoms.
The Board of APADOR-CH
16 April 1997”
The story of this draft bill is not yet concluded. The Senate repeatedly postponed discussing it. The Minister of Interior, member of the same party as the initiator of this draft bill (PNTCD) elaborated a set of amendments with a view to respect the framework of the Gauck law in Germany. Actually, some of the amendments tried to instate the exclusive, discretionary control of political parties over their members' past, by providing that political parties are the only entitled to obtain information regarding their members' collaboration with the former Securitate and have the right to decide whether to make this information public. It is useless to stress how dangerous such procedure can be, as it would not only violate the constitutional principle of access to information, but it would also create premises to continue the political blackmail that has been used in the Romanian society in the past few years.
Simultaneously with the submission of these amendments, the Juridical Commission of the Senate debated and approved the initial version of the “Ticu Dumitrescu draft bill.” In the meantime, another legislative initiative was submitted to the Chamber of Deputies by other PNTCD members. The text provided the Ombudsman's obligation to manage the former Securitate files. The second draft bill proved the initiator's aim to block access to former Securitate files, profound ignorance of the Ombudsman institution and overlooked the Romanian Constitution.
None of the two Chambers of the Parliament had adopted a legal text regarding access to former Securitate files as of this writing.
C. In the spring of 1997, APADOR-CH was involved in discussing a draft bill on the profession of journalist. The proposal belonged to a deputy and was submitted to the Standing Bureau of the Chamber of Deputies. The draft bill was endorsed by the Association of Professional Journalists. APADOR-CH had previously elaborated an analysis of this draft bill which it sent to the Minister for the Government's relationship with the Parliament, urging him not to approve the draft bill.
DRAFT BILL ON THE PROFESSION OF JOURNALIST
1. The draft bill often sends to other legal texts (regulating particular aspects of this profession) that would thus become binding (for instance, the journalists' Code of Conduct), although they have not even been drafted yet. It would have been normal for the draft bill to be submitted accompanied by the documents it invokes, so that the Parliament may have an overall picture.
3. The draft bill contains unconstitutional provisions. For instance, it sets Romanian citizenship as a condition to profess journalism, although, according to the Constitution, this condition is applicable only for public office or dignities (Art. 16 para. 3). It is true that, in order to exercise some of the constitutional rights and freedoms, such as the right to elect, to be elected, training in the military service, Romanian citizenship is a pre-requisite, but only due to the specificity of those rights and duties, stemming from the fact that they are a consequence of citizenship. It is unjustified to set such conditions to journalists; it is even absurd, given Romania's aim to become integrated in the institutionalized European structures, namely the European Union, within which labour relations are established differently, mobility being one of the most important conditions.
4. The draft bill institutes procedures which run counter to the domestic legislation:
— Art. 9 stipulates the journalists' right ‘to be assisted by members of the National Board or appointed representatives of the professional union’ if they are charged with job-related offenses, as well as the right of these assistants ‘to make professional testimonies with value of evidence before the court to defend the journalist.’ As far as this text is concerned, it is not very clear what kind of assistance is intended. Legal assistance is out of the question, because it is regulated by law. What kind of assistance would that be then? The draft bill makes no mention in this sense. On the other hand, if the draft bill provides for the ‘right’ of assistants to ‘make professional testimonies,’ another principle of the Romanian law (present both in the Penal Code and the Penal Procedure Code) is infringed, namely that the judge assesses the solidity and opportunity of the evidence to be admitted. As the two Codes are organic laws, they could not be modified (not even in part) by an ordinary law.
— Art. 43 institutes a different procedure with regard to petty offenses. According to the Romanian law, petty offenses are ascertained by a ‘recording agent’ who also establishes the sanction; the reports drawn up on such occasions may be contested in court. The draft bill provides that the court is the instance entitled to ascertain the petty offence, upon notification by the journalist or the media company he/she represents.
Moreover, the draft bill provides that such cases must be tried ‘in an emergency procedure’ and that the court decision is to be regarded as final and enforceable, which represents a serious threat to the right to defence as well as an impairment of the principle regarding the existence of more than one degree of jurisdiction.
5. Finally, the project contains numerous provisions liable to jeopardize fundamental human rights and freedoms (apart from the above):
— Art. 7, which refers to the National Board, introduces unjustified and unacceptably restrictive conditions for a journalist to become part of this body: at least 10 years of journalism and at least five years as a member of the union.
— Art. 11 introduces a kind of residency period as a journalist, with the obligation to pass an examination to become a professional, but set as a condition a two‑year term of ‘employment in an editorial position, with a job contract concluded for an indefinite period,’ although the kind of work contract should make no difference, especially as this condition is unfavourable for the journalist: he/she is at the manager's beck and call and it would be absurd not to acknowledge a journalist's right to go in for an examination only because of a different ‘staff policy’ which does not allow for job contracts concluded for an indefinite period of time.
— Art. 13 provides for the obligation of state public institutions and bodies, as well as of other institutions with public activity, of business entities with activities in the public field to appoint ‘nominees, with Press Cards, for PR with the media, whose duties consist of supporting journalists to contact sources of information.’ Such obligation — to create a position or establish the competencies of a certain person — is unacceptable from the perspective of institutions working in the public field (therefore non-governmental organisations included) or of business entities with such activities. Each institution of this kind has the right to regulate its press relations the way it wishes. Actually, state (public) institutions should not be forced to create certain positions either. It would be more natural for a law on access to information to be adopted, in order to clearly establish the obligation to provide information of public interest, procedures to obtain such information and remedies in case of refusal. This law should refer to access to information of all individuals (according to Art. 31 of the Constitution), not just of journalists.
— Art. 14 regulates the way journalists should present ‘personal opinions, comments or their position on facts, events or actions they cover,’ which represents a violation of the journalists' freedom of expression, instituting supplementary obligations to those already provided by Art. 30 of the Constitution.
— Art. 18 para. 2 represents a dangerous attempt to regulate relations established naturally in a professional group: ‘guild solidarity is incompatible with tolerating professional inability, dishonesty, violations of the professional Code of Conduct... or any other action which could hurt Romania morally, financially or politically.’ This wording violates both freedom of expression and freedom of association.
— another gross violation of the journalists' freedom of expression is worded in Art. 19, which bans publication of materials that ‘lead to the defamation of the country and nation.’ Even though this phrase is also present in Art. 30 para. 7 of the Constitution of Romania, it should be specified that it runs counter to the international law concerning the fundamental right to freedom of expression (mainly to Art. 10 of the European Human Rights Convention and the case-law of the European Human Rights Court); according to Art. 20 para. 1 of the Constitution, international law takes precedence over domestic law. (...)
— Art. 19 also grossly violates the journalists' right to privacy, by forbidding ‘personal manifestations (of journalists)... which might touch on the dignity, honour or private life of a person.’ Actually, the draft bill does not specify how journalists will be monitored in order to establish if they make themselves guilty of such deeds.
— Art. 20 institutes the ‘legal obligation’ of Romanian and foreign natural and legal entities (operating in Romania) ‘to support journalists in the discharge of their duties, to provide them with information unbiased by personal, material, political or other interests.’ Such obligation poses serious threats to freedom of conscience, freedom of thought and opinion, freedom of expression, right to private and intimate live guaranteed by the Romanian Constitution (Arts. 29, 30, 26). In order to understand the full scope of this article, it should be mentioned that it can be corroborated with Art. 35, according to which ‘to provide deliberately false information, or information which may result in exposing the journalist to the risk of misinforming, if published...’ is a crime punished by fine from lei 1,000,000 to lei 10,000,000. (Among others, the draft bill wishes to introduce individuals' obligation to provide correct information on their private, intimate and family relations, although this field is protected by the Constitution and by the international human rights law).
— Art. 23, concerning the protection of professional secret, contains derogations from confidentiality of sources, which render this protection inoperable.
APADOR-CH regards this draft bill as additional proof that Romania does not need a law to regulate media activities and the profession of journalist, as the already existing legal regulations of the Penal Code and the Penal Procedure Code are sufficient. At the same time, it is obvious that Romania needs a law on access to information for everyone, whose first beneficiaries would be exactly the journalists, due to the specificity of their profession.
The Board of APADOR-CH
Subsequently, these commentaries were taken over by the media and discussed on the occasion of a round table organised by “22” magazine and attended by newspapers managers, MPs, journalists' unions, APADOR-CH and other non-governmental organisations.
Towards the end of the parliamentary session, the Commission for Culture of the Chamber of Deputies decided to discuss the draft bill in the presence of representatives of APADOR-CH and the three journalists' unions, AZR, SZR and AZP. Following the discussion, the Commission for Culture decided to reject the draft bill which never made it to the Chamber's agenda.
D. Another draft bill APADOR-CH protested against refers to the Protection and Watch Service (SPP). As usual when it was attempted to regulate the activity of services involved in the field of national security, the organisation analyzed the draft bill, pointing out to its shortcomings.
The association's commentaries were sent to the Parliament and the media and were the starting point of interesting debates in the media.
on the draft bill on
THE PROTECTION AND WATCH SERVICE
1. General remarks
a) With regard to the Law on national security
The draft bill on the organisation and operation of the Protection and Watch Service is based on the provisions of Law No. 51/1991 on national security. APADOR-CH repeatedly pointed out that this law, adopted before the 1991 Constitution, contains provisions which run counter to constitutional guarantees and to international human right documents. Such is the case of Art. 13, that allows for an indefinite number of extensions of the warrant issued by a Prosecutor's Office to watch/survey an individual by any of the bodies involved in the field of national security; of the final paragraphs of Arts. 13 and 16, according to which the citizen who considers his/her rights were violated may not appeal to justice; of Art. 15, according to which the issuance of a warrant for the activities under Art. 13 (watch/surveillance) can be eluded, although these activities represent in themselves gross violations of fundamental human rights and freedoms. Other provisions are so vaguely worded that they can cover almost everything, such as, for instance, Art. 3 letters e), f), h) and l) which define threats to national security.
APADOR-CH considers that the Law on national security must be amended in an emergency procedure before other laws based on it are drafted.
b) With regard to the Protection and Watch Service
It is unclear why the Protection and Watch Service will have — according to the law — attributions in the field of national security and consequently its own system of gathering information, including the possibility to carry out activities in accordance with Art. 13 of Law 51/1991, that is, to watch/survey individuals, its own telecommunications system (although a Service for Special Telecommunications has already been established), its own archive and records, etc. In addition, it may ‘carry out economic activities in order to provide to its own needs’ (Art. 19, letter f). It follows that this service is granted special powers, which, theoretically speaking, may turn it into a self-sufficient paramilitary structure placed beyond democratic control.
c) With regard to the term ‘dignitary’
The draft bill does not define the term ‘dignitary’ or the criteria to be taken into account in order to establish the categories that will benefit from protection and watch services. The bill assigns this competence to the Supreme Council of National Defence (CSAT), an institution also established by law before the Constitution was adopted in 1991, whose legal framework should be modified in order to become compatible with the requirements of the fundamental law.
d) With regard to sanctions
The draft bill does not provide sanctions for potential abuses committed by this service or a legal procedure to be followed by persons who consider their rights were harmed by the activities of this service.
2. Provisions that violate human rights
According to Art. 13 letter b), listed among the activities SPP is entitled to carry out is ‘to collect, check and turn to good account information needed to carry out its own mission.’ But Art. 4 of the project mentions that ‘in order to fulfil its duties, the Protection and Watch Service shall collaborate with the Ministry of National Defence, the Ministry of Interior, the Romanian Intelligence Service, the Foreign Intelligence Service, with the other ministries and specialized bodies of the central and local public administration.’ According to para. 2, this collaboration is compulsory for all the institutions listed above. Given that all the information SPP might need could be provided by the already existing specialized bodies, one may ask what is the need for one more institution whose very activities represent a violation of fundamental human rights and freedoms.
Art. 13 letter c) specifies that SPP ‘organises and coordinates the activity of all institutions involved in transports and special telecommunications in the country and abroad for Romanian and foreign dignitaries whose protection it ensures’ (emphasis added). This competence practically doubles the activity of the Special Telecommunications Service.
Art. 13 letter g) introduces the right of SPP to give its approval for ‘hiring the staff which carries out their duties in protected objectives.’ Given that the ‘protected objectives’ include the Government, the Parliament, ministries, etc., SPP is invested with the power to check on the employees, which is way beyond the aims that led to the creation of this service, namely to protect and watch.
Art. 13 letter h) gives SPP the opportunity to fulfil ‘other attributions specific to its field of activity, to be established by internal regulations’ (emphasis added). Therefore, apart from the legal provisions that will be adopted by the Parliament, SPP will be able to establish itself other competencies. As it is a military structure, SPP internal regulations will not be made public, which means that it may include any kind of competencies escaping democratic control, CSAT being the only institution able to control SPP.
Art. 19 letter f) gives SPP the right to organise ‘economic activities in order to provide for its own needs...’ A similar provision, which gave raise to much criticism, appears in the Law on the organisation and operation of the Romanian Intelligence Service. It should be specified that no other intelligence service in Europe has such privileges. Economic activities carried out by the SPP would be even harder to justify. Due to their sources of information and information gathering activities, fears have been expressed that the Romanian intelligence Service, but also the Protection and Watch Service, as a result of this draft bill, could use for their own interests the information they gather in the economic field. This means not just unfair competition, but also a violation of the principles of market economy. It could also be perceived as legal support to corruption.
Art. 24 allows SPP to establish, together with the bodies of the Ministry of Interior, ‘protected areas in the close vicinity of the respective objectives, where access of individuals and vehicles will be restricted.’ The measure will be introduced when ‘the temporary or permanent objectives... are in danger or there is information that actions which might endanger them are organised or about to be organised.’ Although the measure refers to exceptional circumstances, reality has demonstrated that it is permanently applied (restricted access on some streets, brutal intervention of SPP employees against mere passers-by, etc.). The draft bill should mention at least SPP's obligation to cease these restrictions if the danger disappeared.
Art. 25 para. 2 gives SPP the right to make ‘verifications’ similarly to the police or the Romanian Intelligence Service (‘to demand and obtain objects, documents of official information from public institutions,’ ‘to take photographs and video records,’ ‘personal findings, by technical operations included’) ‘or to ask a prosecutor to issue the warrant provided under Art. 13 of the Law on national security to carry out the activities thus authorized.’ A first remark refers to the word or, which implies that all the activities mentioned in the first half of the paragraph, including the ‘technical operations’ SPP would carry out are not subject to a magistrate's approval. A second remark regards the right given to SPP, in addition to the Police and the Romanian Intelligence Service, to tape phone conversations, to monitor correspondence, to enter houses in order to leave or seize objects, etc. which represents another serious threat to human rights, especially to the right to privacy, and a violation of Art. 26 of the Constitution, according to which ‘The public authorities shall respect and protect the intimate, family and private life.’
APADOR-CH considers that this draft bill grants too much power to a mere service which should only ensure the protection and watch of dignitaries and which could very well function as part of the Ministry of Interior, without a separate law and a new military structure subjected to control only formally (the Parliament — without specifications regarding the procedure) and lacking transparency (CSAT). According to this draft bill, SPP would carry out a series of activities which cannot be justified taking into consideration the purpose of this service and which double or treble the powers and activities of already existing bodies (the Romanian Intelligence Service, the Special Telecommunications Service, the Police, public guardians).
APADOR-CH urges the Parliament to reject the present version of this draft bill, to modify the Law on national security as well as the other laws currently in force Law 51/1991 is based on.
15 May 1997
The Board of APADOR-CH”
At first, APADOR-CH's position was criticized by some journalists, who believed that a non-governmental organisation is not competent to discuss matters pertaining to national security. Moreover, some asked why one would be interested in having a weak SPP. Later on, the draft bill was analyzed during a broadcast of the television channel Tele 7abc, where the same journalist who had criticized it discovered its good parts when he talked to the vice-president of the Defence Commission of the Chamber of Deputies.
Eventually, some of APADOR-CH's remarks were taken into consideration when the draft bill was discussed in the plenum; one of the most important achievements is that SPP cannot establish and own business entities.
4. Other initiatives
A. In June 1997, APADOR-CH received a draft bill on ministerial liability from one of its collaborators to the Romanian Human Rights Quarterly. As APADOR-CH regarded this initiative as extremely important, the association decided to publish this text in the Romanian Human Rights Quarterly No. 14 and organised a press conference, making the text available to journalists and announcing its support for the draft bill.
Subsequent developments proved, however, that the Government has not been and is not interested in promoting a law on ministerial liability, although this is a constitutional requirement.
B. In 1997, APADOR-CH was involved, together with other organisations, in elaborating a draft bill on associations and foundations, based on a modern conception regarding the establishment and operation of such structures, consistent with the legislation and practice in European countries with a strong civil society. The draft bill will be completed and submitted to the Parliament.
C. The draft bill on sponsorship and mecenate was closely connected with the draft bill mentioned above. APADOR-CH actively supported this draft bill which would finally give the local sponsors the possibility to invest in the Romanian civil society. While the draft bill was being discussed by the Commission for Culture of the Chamber of Deputies, the ideas and even about 95% of the text as such were taken over by a Governmental order which modified the law on sponsorship. The order was adopted on the basis of the enabling law that the Parliament issued for the Executive for the time of the winter recess.
III.THE RELATIONSHIP BETWEEN INDIVIDUALS AND THE POLICE
1. GENERAL ASPECTS
APADOR-CH remarks that unfortunately 1997 did not witness the long-awaited changes in the sense of increased protection for individuals in their relationship with the representatives of the Romanian Police. None of the laws frequently criticized by national and international NGOs have been modified (the Law on Police No. 26/1994, Law No. 61/1991 on petty offenses, Law No. 17/1996 on the use of arms and ammunition, the Penal Code, the Penal Procedure Code, etc.).
Holding by police and pre-trial detention continue to be very controversial and disputed. An individual may be held by the Police up to 24 hours, according to the Constitution, the Penal Procedure Code and to Art. 16 letter d) of the Law on Police No. 26/1994. Besides this 24‑hour period, the Law on Police also provides for “leading” to the police station (Art. 16 letter b) those suspected of having committed a crime and who do not carry their identity card. “Leading” is aimed at identifying the individual, which can take up to 24 hours. Therefore, the police can deprive an individual of liberty, without an arrest warrant, for 24 + 24 hours. It should also be noted that the Law on Police does not specify the formal procedures relating to the “leading,” while the holding is regulated by the penal law. The right of an individual “led” or held by the police to resort to a legal counsel is not provided by any of these laws. Art. 171 of the Penal Procedure Code provides this right for the duration of the “legal investigation and of the trial,” but not for the time when a person is “led” or held by the police. Moreover, it should be mentioned that the police often abuses the possibility to “lead” an individual to the police station; in many cases, persons who are not suspected of any crime and simply do not carry identity papers undergo this treatment.
The only changes occurred in the Police have focused on individuals (in many cases, there has been only a job rotation) instead of matters of principle. It is also noteworthy that police officers still do not have a regulated status, although — in accordance with Art. 54 of Law 26/1994 — such a text should have been submitted to the Parliament within 90 days since the adoption of that law. It is true that a draft bill for the status of police officers was submitted to the Parliament more than one year after Law 26/1994 had been passed, but it has never been discussed. APADOR-CH learned that this draft bill was withdrawn by its initiators after the November 1996 elections. The draft bill contained a series of provisions establishing special privileges for police officers, going as far as to set a kind of “immunity.” It is fortunate that the respective draft bill was withdrawn, but the status of police officers must be regulated by law. APADOR-CH believes that the delay in submitting a draft bill in this field to the Parliament is mainly due to the touchy issue of the demilitarization of the Romanian Police. The association brought to public notice a set of concrete proposals in this sense (see the supplement to “22” magazine of December 1996). The only response to these proposals came from several mayors who asked that local police stations be transferred under their orders, which would represent a major step towards demilitarizing the police.
Police officers continue to commit abuses, the most frequent consisting of:
— “leading” to the police station individuals who do not carry their identity cards. It should be specified that — apart from the passport — no other document, even if provided with a photo and a stamp, is regarded as valid by police officers. Moreover, as the circumstances under which one can be “led” to the police station are not regulated by law, many individuals are deprived of liberty for up to 24 hours without any legal procedure;
— tough treatments applied by police officers to the persons “led” to or held in police custody;
— levity in issuing fines on the basis of Law 61/1991. Sometimes, such police reports are not signed by any witnesses or their signature is illegible, so that the witness is hard to identify. There have been cases where the alleged offender did not know he/she had been fined until summoned to court, where the unpaid fine was turned into a term in prison;
— resort to fire weapons, either by failing to observe the principle of proportionality (see the Tanase-Dragnea case, Mihai Voda village, Bolintin Deal municipality) or by ignoring the presence of passers-by through those areas (see the cases of Laurentiu Cotea — Bucharest or Ionut Vlase — Mangalia, both occurred in 1996 and solved in courts of law).
As mentioned in the previous yearly reports, Military Prosecutor's Offices investigating such abuses continue to pronounce no indictment decisions in most cases. Military prosecutors invoke insufficient evidence. What would sufficient evidence mean? Firstly, a medical certificate. The Penal Procedure Code mentions, indeed, the Forensic Institute as the only institution competent to issue such medical certificates, but not to the detriment of other medical institutions. However, only such medical certificates are taken into consideration by prosecutors, military prosecutors included. Still, on various occasions, APADOR-CH has noted that the Forensic Institute and its laboratories in the country refused to issue certificates when victims declared they had been subjected to police aggression.
“Sufficient evidence” also means witnesses. However, if victims are beaten in police stations, it is obvious that their only witnesses could be other police officers, who would not testify against their peers. If the abuse is perpetrated outside the police station in the presence of witnesses, they either refuse to testify, fearing police retaliation, or are subjected to pressure by the police to withdraw or change their statements. This procedure is employed especially in small localities, where victims and their witnesses meet the police officers charged with abuse daily. Only in certain cases did the Ministry of Interior decide to move those police officers to other localities or even make them retire, in extremely serious cases.
If the Military Prosecutor's Office pronounces no indictment decisions in favour of police officers charged with abuses, the victims can apply to the hierarchical superior of the prosecutor in charge of the investigation. The former may invalidate the findings and ask for the investigations to be completed. Usually, it is again the first prosecutor that will resume the investigation. If the no indictment decision is maintained, the victim can complain to the General Prosecutor. A new examination of the investigation, concluded with the same decision, actually brings the case to an end. APADOR-CH repeatedly suggested that the Penal Procedure Code be modified in the sense that the decision pronounced by the Prosecutor's Office should be analyzed by a judge. This would guarantee free access to justice on the one hand; on the other, it would represent an additional guarantee that the investigation was conducted thoroughly. Currently, a no indictment decision is equivalent to preventing the victim's access to justice and consequently to a civil suit for pecuniary and non-pecuniary compensations.
2. THE RELATIONSHIP BETWEEN APADOR-CH AND THE POLICE
In 1997, the General Police Inspectorate through the then chief General Pavel Abraham, made the first attempt to establish a normal working relationship with APADOR-CH. The Inspectorate had “frozen” this relationship in 1994, following a documentary broadcasted by the public television channel: “When some policemen become again militiamen,” on the basis of materials provided by APADOR-CH.
However, in July 1997, when the daily “Curierul national” published several cases of police abuses, provided again by APADOR-CH, the Press Office of the Ministry of Interior replied in an article titled “APADOR-CH — the only non-governmental organisation to present a biased image of the Ministry of Interior.” The article read: “... we would like to inform you that, due to interests that escape us (emphasis added) APADOR-CH is the only non-governmental organisation which continue to present in the country and abroad a biased image of the Ministry of Interior...” ... “APADOR-CH stubbornly continues to present to the public opinion their subjective point of view, ignoring not just the evidence, but also legal solutions pronounced by the specialized institutions of the state — Military Prosecutor's Offices, the General Prosecutor's Office, courts of law.”
Given the charges brought against the organisation, APADOR-CH specified the following, in an article published in the same daily, together with other cases of police abuses:
“1. APADOR-CH is a non-governmental, nonpartisan organisation whose aim is to defend the rights of persons when these are violated by Romanian state authorities. In this sense, as a representative of the civil society, APADOR-CH has both the duty and the right to constantly monitor the relationship between police officers, as representatives of public authority, and individuals. At the request of the damaged parties and in compliance with the legal regulations currently in force, APADOR-CH has investigated scores of human rights violations perpetrated by police officers. The association's reports are public documents placed at the disposal of anyone interested, including the media, which is free to take over any information included in these reports. Without ‘extrapolating’ the conclusions ‘from particular cases to the level of the whole institution’ — as the Press Office of the Ministry of Interior writes — APADOR-CH considers that the Ministry of Interior and the Romanian Police are responsible for the behaviour of their employees.
2. The allegation made by the Press Office according to which ‘...APADOR-CH is consistently presenting to the public opinion its subjective point of view, ignoring not just the evidence, but also legal decisions pronounced by specialized institutions of the state — Military Prosecutor's Officers, the General Prosecutor's Office, courts of law’ is completely inaccurate. The Ministry of Interior may have its own perspective regarding the ‘evidence’ which must not necessarily be shared by everyone. As for the way APADOR-CH ‘ignores’ legal decisions pronounced by competent bodies — we refer here only to Military Prosecutor's Offices — we would like to specify that the organisation cooperates with such bodies on a permanent basis. It is also noteworthy that the information provided by APADOR-CH to Military Prosecutor's Offices has been regarded as sound enough to dismiss no indictment decisions pronounced in favour of police officers charged with abuse.
4. APADOR-CH notes the fact that the language employed by the Ministry of Interior (‘artificially created context,’ ‘biased image of the Ministry of Interior, obviously contradicting evidence’, ‘interests [of APADOR-CH] that escape us,’ etc.) have unfortunately not changed for the past seven years. The association hopes that the long-awaited reform focused on democratizing all state institutions will be effected as soon as possible within the Ministry of Interior and of the Romanian Police.”
Another event, relevant for the way the Police reacts to human rights non-governmental organisations, occurred in April 1997, when the Targu-Mures police took a strange initiative with regard to the association Liga Pro-Europa based in that town. APADOR-CH sent the following letter to General Pavel Abraham, chief of the General Police Inspectorate at that time:
“The Association for the Defence of Human Rights in Romania — the Helsinki Committee (APADOR-CH) notifies you that the Targu-Mures police has recently took an initiative which exceeds its competencies and jeopardizes the development of the civil society in Romania.
In fact, the police sent a well-known NGO from Targu-Mures — Liga Pro-Europa — a questionnaire regarding its members, headquarters, equipment, sponsors, relationship with other organisations from the country and from abroad etc., although Law 21/1924 on the basis of which legal entities under private law function does not authorize such police interference with their activities.
Please find attached copies of the questionnaire sent by the Targu-Mures police and of the joint APADOR-CH–Liga Pro-Europa press release, in the hope that you will take all appropriate steps to put an end to such practices which run counter to democratic norms.”
Several days ago, Liga Pro-Europa from Targu-Mures received a letter from the Targu-Mures police through which, on account of ‘the common aim (of the two institutions) to protect and support the social reinsertion of certain categories of disadvantaged minors and young people, as well as in order to disclose the illegal activities of some organisations,’ the former was required to place at the disposal of the police information regarding the organisation and operation of the association:
— the address, phone number and profession of the Board members;
— the list of sponsors;
— aspects regarding the organisation's equipment (electronic appliances and office equipment, cars, etc.);
— description of the actual place where the organisation's activities take place;
— Romanian and foreign organisations the association is in contact with;
— main activities.
APADOR — the Helsinki Committee and Liga Pro-Europa protest against the behaviour of the Targu-Mures police, illustrated by this initiative, with questions which remind of those the police of an authoritarian state would dare ask.
The right to association is a fundamental right, provided by Art. 37 of the Constitution of Romania, and the organisation and operation of legal entities under private law is regulated by Law No. 21/1924. This law does not provide for the right of the police to control associative structures.
The initiative of the Targu-Mures police runs counter to the Constitution which governs the Romanian society, demonstrating a dangerous maladjustment of some police officers to the spirit of the times we live.
The two associations urge that such practices be brought to an end immediately, as they run counter to the principles of democracy and the rule of law.
The Board of APADOR-CH The Board of Liga Pro-Europa”
The General Police Inspectorate responded promptly and agreed with the two non-governmental organisations, admitting that the method employed by the Targu-Mures police had been wrong. The initiators of the respective actions were sanctioned.
3. CASES DOCUMENTED BY APADOR-CH
a) Older cases still unsolved by the Prosecutor's Office or the courts of law
Radu Daniel Achim (Bucharest, 1994)
Deceased in January 1994 at the Filaret hospital, where he had been transferred one week before from the Bucharest penitentiary hospital, Radu Daniel Achim had been detained in the Special Labour and Re-education School in Gaiesti since 1992. The death occurred shortly after he had turned 18. Almost four years after his demise, the Military Prosecutor's Office has not yet succeeded in pronouncing a decision. The young man's mother decided to sue the Romanian authorities, claiming pecuniary and non-pecuniary compensations. If she wins the case, a first breach would appear in the Romanian judiciary, which functions on the principle “first a criminal court decision, only then a civil suit.” APADOR-CH supports her both morally and financially in this attempt.
Tudorel Tanase and the Dragnea-Tanase family (Mihai Voda, Bolintin Deal, 1995)
In the morning of 17 November 1995, Tudorel Tanase, his father, Grigore Tanase and Constantin Dragnea, son of Grigore Tanase's concubine, were shot by a group of police officers led by Captain Lepadatescu. The action — completely out of proportion — aimed to apprehend Tudorel Tanase, suspected of having acted as accomplice in three robberies. The three injured had to undergo emergency surgery. Tudorel Tanase was removed a kidney and his wounded leg was repeatedly cast in plaster. Grigore Tanase was removed part of the bowel, while Constantin Dragnea “escaped” only with a shot wound in the leg. Tudorel Tanase was tried as an accomplice to robbery and sentenced to one year and two months in prison. As he had already served most of his term at the time when he was sentenced, Tudorel Tanase refused to file an appeal, preferring to be left with a sentence — pronounced, according to APADOR-CH, on the basis of flimsy evidence — than to remain in detention in the penitentiary.
Until the end of 1997, the Military Prosecutor's Office which investigated the disproportionate action of the group of police officers had not succeeded in pronouncing a decision. According to the information received by APADOR-CH, the latest pretext on which the decision was postponed was a new psychiatric examination performed on Captain Lepadatescu. In the opinion of APADOR-CH, the pronouncement of a decision in this case was deliberately postponed. Obviously, the association does not deny anyone's right to defence through all possible legal means. However, it is inconceivable that almost two years and a half after the events the police officers guilty of a gross human rights violation are not yet tried, despite the solid evidence brought against them.
Viorel Constantin (Tandarei, 1995)
Savagely beaten by a group of five police officers and public guardians, in front of numerous witnesses, Viorel Constantin ended up with his hearing impaired and with a fine for having “disturbed public peace” (?!). The Military Prosecutor's Office prosecuted — one year and two months after the incident — four of the five police officers and guardians involved. The first instance military court sentenced the perpetrators to a criminal fine smaller than they had given Viorel Constantin. There will follow an appeal, filed by all the parties involved. Viorel Constantin's case is also an example of the kind of pressure put by the accused police officers and guardians on the victim and his witnesses. It should be mentioned that the law-enforcement officers involved in the 1995 incident continued to discharge their duties as if nothing had happened; one of them was even promoted.
Gabriel Carabulea (Bucharest, 1996)
On 13 April 1996, Gabriel Carabulea, wanted by the 9th precinct police for robbery, ended up at the 14th precinct following a minor collision of the car he was driving with another car. He was transferred the same day to 14th precinct. On 16 April 1996 he was taken, in a very serious state (blood pressure 4), first to the Bucharest penitentiary hospital, where he was not admitted, and then to the Fundeni hospital. He died on 3 May 1996. His wife and several friends succeeded in talking to Gabriel Carabulea only when the door of his ward opened and declared the young man had told them he had been rolled up in a carpet and savagely beaten at the 9th precinct. Several photographs taken by his family before his burial testify for the bruises on his legs and for a huge haematoma in the genital area. After a first no indictment decision was pronounced in favour of the 9th precinct police officers, on grounds that Gabriel Carabulea had died as a result of the trauma following the car accident dated 13 April (!), this decision was repealed and it was ordered that the investigations be completed.
On 21 January 1997, the APADOR-CH representatives sent the Military Department of the Prosecutor's Office in Bucharest some specifications regarding the Carabulea case:
“a) The family is dissatisfied with the result of the post-mortem examination, as they say Gabriel Carabulea had never been ill or complained about any pain. The bruise from the genital area could not have been caused by a minor car crash. The family suggest that a new P.M. be performed;
b) The family maintains that Ilie Mihai, Carabulea's accomplice to robbery, was not heard by the military prosecutor in charge of the investigation, although he had been present when Carabulea was questioned in the police station. Ilie Mihai is detained on remand at the Bucharest penitentiary. The family suggest that this important witness be heard;
c) The Carabuleas do not know the name of the person who owns the car Gabriel Carabulea collided with on the morning of 13 April 1996, when he was held by the 14th precinct police officers. The information relating to the car crash should be recorded at this police precinct and we believe the owner of the other car should have been heard in order to establish how serious the crash was. We would also want to specify that Gabriel Carabulea's brother took from the police station the car the former was driving that day and that only the front bumper and the radiator mask were slightly damaged. If the owner of the other car is heard, this could help confirm or deny the allegations of the 14th precinct police — according to which Gabriel Carabulea died on 3 May as a result of the 13 April accident.”
Up to the end of 1997 APADOR-CH had not been notified on the results of the investigations completed by the Military Prosecutor's Office. In the opinion of APADOR-CH, this is an extremely serious case of torture which caused the victim's death.
Ioan Rosca (Bucharest, 1995)
Ioan Rosca and his son, Marian Lucian Rosca, were mistreated by three persons in plainclothes, but armed, and later on by police officers from 14th precinct Bucharest on 16 September 1995. They were issued forensic certificates and have witnesses. Despite that, by the end of 1997, the Military Prosecutor's Office had not reached any conclusions regarding this case, which is quite clear in the opinion of APADOR-CH. It is noteworthy that in the initial stage (September 1995) the 14th precinct police officers tried to obtain a pre-trial detention warrant for “outrage.” The prosecutor noted that there were not enough indications that Ioan Rosca had perpetrated this crime against the police officers and released him. However, in 1997, the 14th precinct police officers tried to charge Ioan Rosca again with outrage, but failed again. If the prosecutors proved to be impartial this time and did not allow the police officers to influence them with regard to this case, there are, unfortunately, at least three other cases documented by APADOR-CH where the charge of outrage brought by police officers against the victims of their abuses were taken seriously and the victims were prosecuted, becoming thus defendants instead of accusers.
Viorel and Marius Burueana Damian (Turceni, 1995)
On 29 January 1995, the Novaci police tried to seize two objects the Damian brothers were trying to sell at the fair in Turceni. The brothers agreed to leave the objects at the police station, but asked for a police report, which was perfectly legal. The police officers turned them down and the brothers went home with the objects (a chain saw and a transformer). In the evening, several police officers went to the Damians, beat them, forced them to get into a car that did not belong to the police and continued to beat them all the way to the police station. Several people witnessed the police brutality. The Damian brothers were taken immediately to the lock-up of the Gorj County Police Inspectorate and the Prosecutor's Office with the Targu-Jiu Court issued a 30‑day arrest warrant. Viorel and Marius Damian were charged with outrage against the Turceni police officers.
Marius went on hunger strike, asking that his brother and himself be examined by a forensic specialist. He was examined on 2 February and his brother Viorel on 6 February, therefore more than a week after the events occurred on the night when they were retained by the police. However, both medical certificates mention numerous bruises and traumas. It must be mentioned that the Turceni police officers who had declared they had been beaten by the Damians were issued medical certificates from the Gorj Forensic Institute after Marius had been examined.
The Damian brothers were released on bail after 25 days of deprivation of liberty. The outrage suit was moved to Bucharest. Sector 3 Court declared the two brothers innocent. There will probably follow an appeal filed by the Prosecutor's Office.
On the other hand, the Damian brothers lodged complaints with the Craiova Military Prosecutor's Office against the police officers who brutalized them on the evening of 29 January 1995. According to the information received by APADOR-CH, a first no indictment decision was pronounced, but it was invalidated by the Military Department of the Prosecutor's Office, which ordered that the investigations be completed. APADOR-CH considers that this case is typical for the way police officers try to defend themselves when charged with abuse, invoking outrage to justify the fact that they resorted to brutal methods.
Ion Laurentiu Corneliu Apostolescu (Bucharest, 1996)
Mr Apostolescu and his nephew, Mihai Damian, were beaten by police officers and individuals in plainclothes (who recommended themselves as firemen) on the night of 17/18 November, in the Unirea underground station. They were then held for several hours at the “Underground” police station, where they were forced to write statements. They were both fined for having “disturbed” public order (a thing that several other tens of thousands inhabitants of Bucharest were doing on that night of presidential elections!). Although they also had a witness, the Military Prosecutor's Office pronounced a no indictment decision in favour of the police officers and firemen involved in the incident. Unfortunately, the Military Department of the General Prosecutor's Office backed this decision. The engineer and his nephew contested the decision. APADOR-CH considers that the investigation should be resumed and completed.
Two more cases should be added to the ones above:
Istvan Kiss — deceased in Satu Mare in 1995, after having been taken to the police station with a warrant. He was supposed to testify in a trial where the two parties were civilians.
Andrei Mardare — held at the 7th police precinct in Bucharest and mistreated by police officers on 10 June 1996; (the complaint lodged by the Mardares was filed at the Military Department of the Prosecutor's Office under No. 14756/1 August 1996). Both cases are not yet solved.
b) Cases taken up by APADOR-CH in 1997
Adrian Sandu and Mihai Alexandrescu (Bucharest, 1996)
On the night of 11/12 December 1996, around midnight, Adrian Sandu and Mihai Alexandrescu were returning from a visit. They were stopped by a massive group of police officers (three patrols of three persons each, with two police dogs) in the Dristor neighbourhood where they both live. They were asked for their identity cards. The first page of Adrian Sandu's identity card bears several words which seem to be a short list with the necessary documents, written probably at the police. Adrian Sandu said that those notes were scribbled by the police when the validity of his identity card was extended and he tried to explain that to the patrols, but he failed to make himself heard. Eventually, Adrian Sandu told them he would leave them his identity card and that he could be asked to go to the police station for clarifications if necessary. When he was several steps away, the police set the dogs on him. He returned to the police patrol and from that moment on both him and Mihai Alexandrescu were kicked and punched savagely after they had been ordered to get down on their knees. They were both bitten by the dogs and one of the police officers hit Adrian Sandu with a flashlight in the head. The police officers then called a police team with a car to take the two to the police station, but the latter refused to do so. After the police team left, the two were handcuffed and taken to a pub nearby — called “Scaricica” — where they were beaten again and forced to sign the police reports by which they were fined lei 80,000 (Adrian Sandu) and lei 5,000 (Mihai Alexandrescu — because he did not have his blood type written on the identity card).
Both Adrian Sandu and Mihai Alexandrescu were issued medical certificates (No. A2/12243 of 12 December and A2/12242 of the same day, issued by the Forensic Institute, which clearly prove the cruel treatment applied by the police officers. Both complained to the Military Prosecutor's Office (file No. 1557/P/1996), attaching both copies of the medical certificates and colour photographs taken right after the incident. Both also identified two of the aggressors. It should be noted that, although the pub was fairly busy, none of the customers had the courage to interfere or to appear as witnesses.
Adrian Sandu and Mihai Alexandrescu also complained to the police. Consequently, they were both invited to the 11th precinct on 26 December 1996, where they were suggested to “make up” with the police officers who had beaten them.
Throughout 1997 their case was frequently presented by the media. after about ten months of investigations, according to the information provided both to APADOR-CH and the victims, two of the police officers involved in the December 1996 incident were going to be prosecuted. Adrian Sandu was even notified that those non-commission officers had been detained on remand. Despite that, Adrian Sandu and Mihai Alexandrescu had the occasion to see them working again at the same police precinct as if nothing had happened!
Marius Popescu (Buzau, 1996)
APADOR-CH was notified of this case in 1997.
On 21 February 1996 Marius Popescu, aged 29, came home around 1 a.m. in a state of complete amnesia, with a split lip. It was discovered later on that the amnesia had been caused by a blow dealt over the left lower side of his head. The victim's mother and sister found in the pocket of his shirt a police report (No. 47832/21.02.1996), drawn up that very night (11:45 p.m.) by non-commissioned officer Gheorghe Teodor on grounds that Marius Popescu had been inebriated and “had refused to give information regarding his identity.” Marius Popescu was fined lei 20,000 on the basis of Art. 2 letter t) and Art. 3 letter a) of Law 61/1991. It should be noted that although the young man did not have his identity card on him, the police report — which was not signed by any witness — contained all the necessary personal data. Popescu maintains that the signature on the police report under “offender” is not his.
The next day, on 22 February 1996, Marius Popescu was hospitalized, in a critical condition, first at the municipal hospital in Buzau, where he was diagnosed with medium cerebral contusion focused on the left hemisphere, aphasia, split upper lip, bruising of the inside of the left ear. As Marius Popescu's condition did not improve in the neurosurgery department, he had to be transferred to the Bucharest Emergency Hospital on 26 February 1996. According to the medical certificate No. A2/1868 of 14 March 1996, Marius Popescu exhibited “injuries which could have been inflicted on 21/22 February 1996 by repeated blows with a blunt object and requires 35-40 days of medical care.”
The victim, his mother and sister alleged he had been beaten by the police, as:
— the attacker could not have been a robber, because nothing was stolen (neither the money, nor his fur hat or leather coat);
— had he fallen, he could not have injured himself at the same time in all the places mentioned in the medical certificate. Actually, his coat was not full of mud, while his trousers had mud spots only on the back side, placed so that they suggested kicks rather than a fall. The trousers were analyzed by the Buzau police, but the victim's family was not notified on the findings.
Marius Popescu was aphasic for 48 hours and declared he could still not remember anything about that night's incident.
While he was in hospital, (February 1996), his sister was summoned to the Buzau police station, where the two police officers involved in the incident tore in front of her their copy of the police report, annulling (?!) thus the lei 20,000 fine. They told her they wished her brother did the same with his copy so that the “incident” could thus be forgotten.
The behaviour of the police officers involved in the incident deserves special attention. They pretended they had found Marius Popescu fallen near a pub, that they had first taken him to a school nearby from which they had made a call to the police station for a car, after which they had gone to the police station, where they had searched him, written the report and let him go.
Several questions cannot be avoided:
— if Marius Popescu was found fallen to the ground, in a state of aphasia, shouldn't the police officers have taken him to the hospital instead of the police station?
— given that the young man did not have his identification card, how could one explain that the police report includes all his personal data (name, address, age, job);
— how come Marius Popescu could go home by himself in his state of aphasia? Marius Popescu stated that although he did not have his identity card on him, his home address was written down in an address book he had with him. This detail could explain how the police report was filled in with all the necessary data, but one could also assume that the young man was taken home by the policemen themselves, when they realised the serious state he was in;
— which could be the reason why the Buzau police officers annulled the police report (by tearing it up!) and why did they insist that Marius Popescu do the same with his copy? Couldn't this document be the only proof that one way or the other the police officers had been involved in the incident that caused so much suffering and trouble to the victim and his family?
In February 1997, one year later, Marius Popescu learned that the police officers had allegedly found a witness, a woman who worked at the pub near which he had been found by the police. The witness allegedly said that Marius had been found by the police fallen on the ground. The suspicion that the officers had hit Marius would thus be excluded. A second recent version would be that the police officers had found a piece of TV aerial next to the youngster, which had supposedly fallen over him. This version was suggested to the victim and his mother on one of the occasions when they were summoned to the police. Only Marius had a fur hat which would have protected him to a certain extent and it is hard to believe that the aerial could have hit him first over the lip and then over the left lower side of the head, not to mention the blows over the backside of his legs.
In April 1996, Cristina Galeata — Marius Popescu's sister — filed a complaint with the Military Department of the Prosecutor's Office in Bucharest. On 22 May 1996, she was notified that her complaint had been sent to the Ploiesti Military Prosecutor's Office to be reviewed and solved, which had not happened until the APADOR-CH representatives' visit.
In February 1997, Marius Popescu and his mother were summoned to the police again, where the two policemen (non-commissioned officer Gheorghe Teodor and gendarme Ionita) insisted again that the young man bring his copy of the police report written one year before in order to “tear it up together.”
It was also in February 1997 that Marius Popescu's handwriting was examined by Colonel Gavrila from the Buzau police, in order to determine whether the signature on the police report belonged to him. He was not notified of the result of this “expert examination,” conducted in other circumstances than those required by the Penal Procedure Code.
To the knowledge of APADOR-CH, the case has not been concluded yet by the Military Prosecutor's Office.
Constantin Balasa (Targu-Jiu, 1996)
APADOR-CH was notified of this case in 1997.
Constantin Balasa was involved in a car crash in mid-June 1996. The two vehicles that collided suffered only minor damages. On 18 June, Balasa was invited verbally to report to the Road Police with his car insurance. Accompanied to the police station by his 11‑year old son, Constantin Balasa got scared when he saw the number of police officers gathered there, especially as he also saw the other driver he had run into several days before. Under the pretext that he did not have the car insurance with him, he got out of the police station (it should be mentioned again that he had been neither led nor invited in writing, so much the less held by the police). Three or four police officers rushed after him, hit him, immobilized him and took him back into the police station by the hands and feet. In the station, they threw him into a chair, at which time Constantin Balasa felt sick. He said he did not know what had happened from that moment on until he came to in hospital. He was driven in a police car to the Targu-Jiu county hospital, but his wife insisted that he be sent to Bucharest, to the Bagdasar hospital. The specialists there ascertained the presence of a skull and brain traumatism without fracture. Constantin Balasa preferred to return to Targu-Jiu and to be treated at home. Medical certificate No. 1205 issued by the Gorj county Forensic Institute on 20 June 1996 mentions, apart from the head injuries, a number of scratches on the right shoulder, the thorax and the elbow, as well as bruises on the internal side of both arms and recommends 5-6 days of medical treatment.
Constantin Balasa lodged a complaint with the chiefs of the municipal and county police, with no result. On 16 July 1996 he also lodged a complaint with the Craiova Military Prosecutor's Office, which issued a no indictment decision in favour of the police officers charged with abusive behaviour (letter of the Craiova Military Prosecutor's Office date 13 November 1996). Constantin Balasa appealed the no indictment decision by means of a petition lodged with the Military Department of the General Prosecutor's Office, registered under No. 9957/27 February 1997.
In the meantime, Constantin Balasa was summoned again to the police several times to describe what had happened on 18 June 1996. On 23 October 1996, he found on the door of his house summons No. 77855 by means of which he was required to go to the police station as a defendant in the case regarding the destruction of the police car registered under license number GJ 05 PRG. Another summons with exactly the same contents was left at his place on 11 November 1996. The “destruction” he had been accused of was estimated at lei 108,006 and consisted in damages to the defrosting system (situated in the front part of the car), as well as to a door handle and lock and of the ornament on one of the rear thresholds (!?). A witness declared that while driving Constantin Balasa to hospital, the police car stopped for fuel and that at that precise moment Balasa allegedly kicked the rear window and damaged the threshold.
On 20 February 1997, eight months after the accident, Constantin Balasa was asked to go to the Prosecutor's Office with the Targu-Jiu Court, where he found out, to his stupefaction, that he was charged of “destruction and outrage” (non-commissioned officer Liviu Teodorescu had allegedly been issued a medical certificate ascertaining that he had required 2-3 days of medical assistance as a result of the blows he had been dealt by Constantin Balasa). It should be specified that on no other occasion had Constantin Balasa heard from the police officers involved in the June 1996 incident that he had hit any of them. The Prosecutor's Office has already indicted him, case file No. 5551/1997 is pending in court and a hearing was scheduled for 9 April 1997.
Constantin Balasa asked that the trial be transferred. His application was approved and the case is currently pending at the Pitesti Court. After a first hearing for which Constantin Balasa was not summoned to court, the following hearing was scheduled for 13 January 1998.
On the other hand, the Craiova Military Prosecutor's Office has not yet concluded the investigation in the case of the Targu-Jiu police officers charged with abuse by Balasa.
It is also worth mentioning that after Constantin Balasa lodged the complaint against the police officers his family — wife and two kids — were continuously intimidated and subjected to pressure. The family has a long list of license plates of the cars that park right in front of their house, drivers (?) blow the horns or speak loudly late at night, reply rudely when approached; the children are afraid to go to school, especially as the 11‑year old boy witnessed a good deal of violence against his father.
APADOR-CH regards this case as the grossest example of reversed situation; Constantin Balasa, the victim of police abuse, has become a defendant in an outrage trial.
APADOR-CH grants moral and financial support to Constantin Balasa, both in the outrage trial and with regard to his efforts to have a fair decision pronounced by the Military Prosecutor's Office.
Pavel Nicola (Orsova, 1996)
APADOR-CH was notified of this case in 1997.
The initial conflict occurred on 29 May 1996 and involved Pavel Nicola and Octavian Serbu, who owed the former some money. A policeman in plainclothes, non-commissioner officer Zorila, intervened and summoned the two to the police station.
Pavel Nicola went to the police station the next day (30 May 1996) and was received by Lieutenant Adrian Meteleauca, who reproached him the dirty language he had used the previous day in front of non-commissioned officer Zorila. Pavel Nicola denied this, which probably aggravated Meteleauca. He took a wooden stick (that he kept behind a metal locker) and hit Pavel Nicola, bruising him and splitting his upper lip, as shown in medical certificate No. 698 of 31 May 1996. The lieutenant hit him with the fists over the face, but at the sight of blood he stopped and led him outside the police station.
The victim's father (Constantin Nicola) and brother (Petru Mirel Nicola) were waiting in front of the police station; on their way home, they had seen Pavel's car parked there and stopped to see what was going on.
Matei Nicolae from Drobeta-Turnu Severin and Milan Nicola, Pavel Nicola's cousin, were also there, in front of the police station, having been informed by the victim's wife that Pavel had been taken to the police.
Another eye-witness was Augustin Tudor, who was in the yard of the fire squad next to the police station; he saw that the victim was full of blood on the face and clothes when he went out of the police station.
When Constantin Nicola, the victim's father, saw his son full of blood, he started shouting “Criminals!” and the inhabitants of the neighbouring blocks of flats looked out through the windows to see what was happening. Lieutenant Meteleauca threatened the victim's father to “arrest him if he does not shut up.”
According to the medical certificate, Pavel Nicola needed 3-4 days of medical care as a result of the beating administered by Lieutenant Meteleauca.
All witnesses (Constantin Nicola, Petru Mirel Nicola, Matei Nicolae, Milan Nicola, Augustin Tudor and Jean Pervu) backed the above elements.
Pavel Nicola filed a complaint with the Craiova Military Prosecutor's Office about a month after the incident (June 1996). Military prosecutor Jean Alexandru heard the witnesses in September 1996 in Drobeta-Turnu Severin. The victim, however, received no answer from the Craiova Military Prosecutor's Office regarding his file. He was verbally notified of a non-indictment decision pronounced in favour of Lieutenant Adrian Meteleauca. Nicola filed a second complaint, this time with the Military Department of the General Prosecutor's Office (No. 13043 of 18 March 1997).
It should also be mentioned that Pavel Nicola was fined lei 100,000 (Law 61/1991): for the initial incident with Octavian Serbu (lei 50,000) and because the day after the incident he went to the police station without his identity card (lei 50,000). He paid the fines. Milan Nicola, one of the witnesses, was also fined (lei 25,000) on the basis of Law 61/1991, for not having gone to the police station where he had been summoned. The witness paid the fine, although police report series A No. 403906 of 19.06.1996 bears two signatures under “police agent” and none under “witness” and “offender.”
The abusive use of the provisions of Law No. 61/1991 represents one of the specific methods of police harassment.
Nicolae Grigore (Bucharest, 1997)
On 27 February 1997, around 7:30 p.m., four police agents went to the Grigores, called by Constanta Ivancioiu, a neighbour with whom the family is in conflict (there is a criminal case pending in court in this sense).
The four police officers bullied Mrs Grigore and took Mr Grigore, aged 60, to the police car (an ARO four wheeler), where they handcuffed him. On the way to the 4th police precinct, the police officers (two of them being non-commissioned officers Gheorghe Tomescu and Mitica Paraipan) hit Nicolae Grigore with their feet and fists in the rib cage and over the face.
The injuries caused by the beating are attested by medical certificate No. A2/1818 of 12.03.1997, acknowledging the fact that the injuries could have been caused on 27.02.1997 by hitting with blunt objects and required 12 to 14 days of medical care to heal. The certificate specifies: “Thoracic region: fracture of the left 7th rib... with bone displacement” and “6/4 cm purple discontinuous bruise on the left side of the chest.”
At the police station, Nicolae Grigore was locked in what he and his wife labelled as “an Ilascu-type cage.” The police officers intended to move Mr Grigore to Balaceanca mental hospital (they had their orders in this sense from one Captain Stan) but as Mrs Grigore objected, the officers took the two with an ambulance (license number 35-B-9669) to Bagdasar mental hospital.
Nicolae Grigore was examined around 10:30 p.m. at the emergency room; the doctor assessed that he had no mental problems and consequently could not be admitted to that hospital; the police officers accompanying Nicolae Grigore were notified of the doctor's decision. The Bagdasar hospital issued a note (No. 712 of 03.04.1997) in this sense, signed by the medical deputy manager, dr. G. Popescu Tismana.
Later on, the Grigores received by mail two police reports issued by non-commissioned officers Mitica Paraipan and Gheorghe Tomescu the night of the incident; the Grigores had known nothing about these reports. Clara Grigore was issued report No. 2335197 by which she was fined lei 240,000, while Nicolae Grigore was fined lei 1,200,000 (report number 0073211). They were accused of having disturbed public peace and order, but both Clara and Nicolae Grigore deny these accusations.
The Grigores contested the police reports in court and complained to the Military Department of the Prosecutor's Office–Bucharest on 17.03.1997.
Clara and Nicolae Grigore were summoned again to the police station, but they were afraid to go.
The police attempt to get a mentally healthy person to a psychiatric hospital is an incredible abuse, reminding of the practices prior to December 1989. The police officers should have been called to account for their deeds in court. Unfortunately, this had not happened as of this writing; the Military Prosecutor's Office had not solved this case until the end of 1997.
Danut Iordache (Bucharest, 1997)
On 3 February 1997, around 6 a.m., several police officers from the 14th police precinct stormed into the Iordaches' house and started searching the house without showing any warrant or asking for the written permission of the inhabitants. After almost one hour, the police left, taking Danut Iordache along to the police station. He was not released until 5 February in the afternoon. It is obvious that there had been no arrest warrant issued on his name, as a prosecutor would have issued it for a five‑day period at the least. Therefore, the legal 24 hours for which a persons can be held by the police according to the Penal Code were exceeded. Art. 16 letter b) of the Law on Police No. 26/1994 (“leading” a person to the police station for an additional 24 hours) cannot be invoked, as this (unconstitutional) measure is provided for cases when the identity of a person who “endangers public order, the lives of people or other social values” cannot be established, which was not the case.
Upon release, Danut Iordache exhibited marks of beating on the face. Medical certificate No. A2/823 of 6 February 1997 mentions “haematoma at the level of the right cheek” and, according to medical note No. 1862/5.02.1997 issued by the Emergency Hospital, a “simple contusion of the thorax, fracture of the right side of the jaw.” Conclusion: “He requires 50 to 55 days of medical care.” Danut Iordache told his family and friends that he had been beaten in the police station by several police officers and that the fracture is the result of a bat blow.
On 19 February 1997, the Iordaches were visited again by the police, who searched the house again, without presenting any warrant or asking for the written consent of the inhabitants and seized some objects from the house. When they finished the search they held Danut Iordache again. At the time of this writing he was detained on remand at the Bucharest penitentiary. Mention must be made that the Iordaches have no idea why the searches were conducted and what Danut Iordache was charged with.
Danut Iordache lodged a complaint against the abusive behaviour of police officers with the Military Department of the General Prosecutor's Office (No. 11297/779/1997 of 4.04.1997).
Until the end of 1997, APADOR-CH had not been informed whether the Military Prosecutor's Office had pronounced a decision in this case.
Laurentiu Toma, Leonard Marcopol, Gabriel Hussein (detained at the Braila penitentiary, 1997)
The three detainees placed in pre-trial detention at the Braila penitentiary complained about the inhuman treatment they had been subjected to by police officers from Braila.
They claimed they had first been arrested for breaking into a private house and then their charges has been changed to “robbery attempt.” The three state they are innocent. Laurentiu Toma, arrested on 3 February 1997, said he had been beaten “on the grill” by the police to admit to his deeds. The other two — Leonard Marcopol and Gabriel Hussein — complained both the police and Prosecutor Radu treated them the same. The three applied to the Ploiesti Military Prosecutor's Office (Braila falls under the jurisdiction of this Prosecutor's Office) but there have been no inquiries in this matter so far.
Although the Military Department of the General Prosecutor's Office was notified by APADOR-CH of this case, the association does not hold further information as to the stage of the investigation, if such investigation is conducted at all.
Costica Nazaru (Braila, 1997)
Costica Nazaru, aged 63, had opened a little pub with a terrace in a wing of his house. On 13 May, around 10:00 a.m., a person the petitioner identified as a non-commissioned police officer proposed to sell him some bottle cases. Costica Nazaru turned him down. He was convinced that they were trying “to test him,” because he had been “accused” several times of having bought “groats and wrappers,” which would have meant that he had failed to observe the conditions laid down in the license for his small pub.
Around 12:00 a.m., in the presence of several clients that were sitting on the terrace (approximately 12, more then half of which are ready to testify), three civilians climbed down from an ARO four wheeler and headed for the terrace. Two “clients” — also dressed in plainclothes — joined them. The five, who said they were “from the police,” but refused to show any identification documents, hit Costica Nazaru who fell to the ground. They dragged him to the car and came back for his daughter — Lenuta Hurmuzache — but eventually gave up. The five accused Costica Nazaru again of buying groats and stolen sacks and of allowing gambling at his pub.
Costica Nazaru was taken to the police station in Galati St., in a basement room where he was hit again at the nape of his neck and over the head (medical certificate No. 658 of 15 May 1997 mentions “injuries that could have been produced by blunt objects” that “require 3 to 5 days of medical attendance”) and was asked to answer the non-commissioned officers' questions in writing. The victim asked for a lawyer, but the officers laughed this off.
He was kept in the police station for about 3 hours, then released. The police made him a report — No. 2052239/13.05.1997 (Art. 2 paras. 20 and 26 of Law 61/1991) and fined him lei 800,000. Costica Nazaru refused to sign the document. It should be mentioned that, while the reporting officer's signature is readable, because his name appears in clear in the document, the witnesses' signatures are completely illegible. Costica Nazaru had no idea that the report could have been contested in court, so all he did was ask the municipal police to quash the fine. At the end of the 30‑day term provided by law (15 days for appealing the fine in court or a 30‑day term within which the fine can be paid), the police might ask that the fine be converted into a term in prison.
Costica Nazaru complained immediately at the municipal police, where three of the five civilians involved in the incident were brought for identification. Nazaru identified all three of them: non-commissioned officers Nicolae Baba (the one who drew up the report), Nicolae Voicu and Gigi Mocanu. The fourth participant — non-commissioned officer Florentin Kirgolici — was also identified later on.
On 9 July 1997, Costica Nazaru reported to the police with his witnesses. Non-commissioned officer Nicolae Baba, who was present at the police station, threatened to beat them all if they do not change their declarations.
Costica Nazaru brought his case before the Ploiesti Military Prosecutor's Office (registered letter sent on 27.05.1997).
APADOR-CH regards the brutal intervention of the above mentioned non-commissioned officers as an abuse punishable by law. Irrespective whether the charges brought against Costica Nazaru (buying groats and stolen sacks, cases or other wrapping materials and allowing gambling) were founded or not, it is obvious that the officers' behaviour — who hit Nazaru, led him to the police station and fined him lei 800,000 — was disproportionate and unfounded.
The APADOR-CH representatives learned that the police officers are now accusing Costica Nazaru of having hit them. Leaving aside that it is hard to imagine how a 63 year old man could have attacked five police officers, in this case, as in many other similar ones, the police may happen to try to turn a victim of their abuses into an attacker, under the charge of outrage.
Ioan Bursuc (Piatra-Neamt, 1997)
Ioan Bursuc, legal adviser with the Autonomous Roads and Bridges Company of the Neamt county complained against the violence he was subjected to by a group of police officers on 27 January 1997.
Mr Bursuc went to the pub located at the headquarters of the Democratic Party that night and had a beer and a coffee. The only thing that happened in the almost deserted bar was that Bursuc scolded the bartender because she did not have matches. Several minutes later, two non-commissioned officers (from the traffic department) entered the bar and asked him quite rudely to state his identity. Ioan Bursuc admits he had replied the same, but the police reaction exceeded any limit: they hit him with the truncheons over the head, handcuffed him, drove him in their car to the police station where they continued to beat him. Six more police officers joined them; they threw Ioan Bursuc down on the ground, face down, and trampled all over him with their boots. The eight police officers' names were mentioned by the victim in the complaint lodged with the Bacau Military Prosecutor's Office on 29 May 1997.
His wife, Laurentia Bursuc, who is a lawyer, went to the police station around 2 a.m. and found her husband in a terrible state. She insisted that Mr Bursuc be taken to the Neamt county hospital (neuro-psychiatric department) and transferred several hours later to Hospital No. 3 Iasi (brain surgery department) where he was diagnosed with “acute skull and brain trauma, detached retina,” etc. Strangely enough, after ten days spent in hospital he was released without further medical analyses. Ioan Bursuc went to Targu-Mures for medical investigations. He was found with cerebral oedema, ischemic cardiopathy, post-traumatic angina pectoris, post-surgical anal fissure, etc.
Medical certificate No. 165/29 January 1997 mentioned initially 4-5 days of medical care, later extended to 18-19 days.
Contrary to Mr Ioan Bursuc's account — backed by his wife and supported by medical evidence — on 31 January 1997 the police sued him for outrage with violence, asking that the victim be investigated and prosecuted for having hit two police officers and a warden. There is another strange aspect that should be mentioned: the night the incident occurred the police officers called TV reporters who filmed inside the police station. Finally, it should also be noted that Ioan Bursuc had run for the latest round of elections and that his picture had been posted all over the town. Therefore, it is hard to believe that the police officers who attacked him had not recognized him.
Mr Ioan Bursuc filed a complaint with the Bacau Military Prosecutor's Office, but received no answer, and with the Neamt County Police Inspectorate, which answered that “the facts are not confirmed.”
The case was extensively covered by the local and national media. It must be noted that Mr Bursuc's wife is a lawyer and that she had several trials where she invoked abuses of the Piatra-Neamt and neighbouring towns' police. Some of these cases have been taken over by APADOR-CH.
Up to the end of 1997 the Military Prosecutor's Office had not concluded its investigations in this case.
Adrian Matei (Bucharest, 1997)
On the evening of 9 January 1997, two non-commissioned officers from the 5th police precinct mistreated Adrian Matei. He was stopped by a police patrol around 9:30 p.m. at about 200 meters from his house. He did not carry his identity card, so he suggested that the police officers accompany him to his place so that he may show them his documents. According to Adrian Matei, the two non-commissioned officers bullied and hit him without any particular reason, handcuffed him and took him to 5th police precinct, where they continued to abuse him. Adrian Matei lost his conscience. The police officers took him again into the police van and abandoned him next to his house. Medical certificate No. A2/197 of 10 January 1997 mentions multiple bruises and scratches (including a massive tumefaction of the scrotum) and the fact that Adrian Matei “requires 5-6 days of medical care.”
On 14 January Adrian Matei requested an audience with the chief of the 5th police precinct and was granted it, after which he lodged a memoir on the brutal treatment he had been subjected to by the two non-commissioned officers, filed under No. 8877015 of 16 January 1997. On 24 January, ten days after the audience, Adrian Matei received by mail a police report (No. 0045362, dated 9 January 1997) by which he was fined lei 300,000 on the basis of Law 61/1991. The police report had been drawn up by non-commissioned officer Ciolca, who had been directly involved in that incident.
Adrian Matei appealed the fine in court and, besides the memoir sent to the chief of the 5th police precinct, he also filed a complaint against the two non-commissioned officers with the Sector 1 Military Prosecutor's Office (case file No. 517/P/97).
The police officers from 5th police precinct sued Adrian Matei for slanderous denunciation. In other words, the complaint he had lodged with the Military Prosecutor's Office regarding the abuses committed by police officers that night, which was under investigation, is regarded by the police officers as a slanderous denunciation. Therefore, without waiting for the Military Prosecutor's Office to pronounce a decision, the police officers charged with abuse initiated investigations they conducted themselves, together with their colleagues for an alleged crime perpetrated by the victim! This is therefore a second means to turn victims into criminals, apart from the much too often used “outrage.”
Ioana Enuta (Berceni village, county of Ilfov, 1997)
Ioana Enuta, aged 48, single, lives alone at 343 I.C. Frimu St., Berceni village, county of Ilfov. Ioana Enuta had a previous conflict with the Borcan family, who owns the neighbouring plot of land. Two of the Borcans are police officers working in Bucharest.
Ioana Enuta had been fined twice on the basis of Law 61/1991 for “unlawful disturbance of the inhabitants' peace.” In fact, in both cases she had had arguments with the Borcans. The police reports (No. 0605424 of 17.06.1995 and 0717915 of 16.05.1996), written by the same person — non-commissioned officer Iulian Paun — are not signed by Ioana Enuta, and the witnesses' signature is illegible. She was fined lei 100,000 each time. Ioana Enuta contested the second fine. She lost in the first instance, but appealed the decision and was supposed to have a hearing on 14 February 1997, at the IV Civil Department, Bucharest Court. At the request of the Ilfov County Police, however, the amount of lei 100,000 was converted into a ten‑day term in prison on 21 February 1997. Ioana Enuta appealed this decision.
On 1 May 1997, around 5:30-6:00 a.m., non-commissioned officer Iulian Paun, accompanied by another police officer, entered Ioana Enuta's house and asked her to follow him to the police station. She refused, because he had no arrest warrant. The police left. Shortly afterwards, Ioana Enuta got out of her yard to go to the mayor's office in order to call her lawyer. In an ARO four-wheeler parked in front of her house there was a citizen — Gh. Dimitrica, who had been handcuffed. Non-commissioned officer Iulian Paun and the other police officer tried to force Ioana Enuta into the car. They threw her to the ground, dragged her, kicked her with their boots. The villagers had to intervene to cool down the two police officers. One of the witnesses, Alexandrina Tone, declared she had seen the two police officers dragging and hitting Ioana Enuta and that she had asked them to stop. (Later on, the Borcans reproached Ms Tone with having defended “that crazy woman”). When she escaped the hands of the two police officers, Ioana Enuta took refuge with the Tanase family. The non-commissioned officer got in after her and tried to take her out of the house by force. The Tanases intervened and asked him to leave the house immediately. Finally, the police officers left the area and did not try to arrest Ioana Enuta again. Therefore, there are several witnesses who testified to the police's abusive behaviour. Ioana Enuta filed a complaint with the Military Prosecutor's Office, recorded under No. 335/17 July 1997 in the audience records.
The investigation conducted by the Military Prosecutor's office was concluded with a no indictment decision, contested by the victim and APADOR-CH, but received with happiness by the Borcans, who feel they were involved in this incident (on what grounds?).
The Military Department of the General Prosecutor's Office backed the no indictment decision, on grounds that the police officers “went to Ioana Enuta's domicile to carry out the arrest warrant issued by the Buftea Court, in accordance with which she was to serve a 10‑day term in prison...” (emphasis added) No mention is made of the police officers' brutal behaviour in the morning of 1 May 1997 or of the fact that they did not show her any arrest warrant (letter No. 2215 of 20 January 1998).
Belmondo Cobzaru (Mangalia, 1997)
Vasile Cobzaru is president of the Roma association in Mangalia. He is a musician and tries, together with a small group, to attract the members of the Roma ethnic group in educational and cultural activities. His son Belmondo, born in 1973, has graduated the 10th grade and a welding school. He does not have a job for the time being, but he helps his father organise the activities of the Roma association.
Belmondo Cobzaru has been living with Steluta Mecu since 1996. Their relationship is characterized by frequent quarrels, the reason of which is in many cases Steluta's mother, Elena Mecu, according to Belmondo. The two have been living together either at Steluta's or at the Cobzarus'. On 17 May 1997, after an argument between Steluta and Belmondo, the latter tore the clothes he had bought her and left the young woman's place. After about ten days, Steluta gave up to her mother and sister's pressure and filed a complaint with the police, alleging that Belmondo had beaten and insulted her. Several days later, Belmondo made up with Steluta, who withdrew her complaint on 3 June. However, on 25 June, Belmondo Cobzaru received a police report by which he was fined lei 395,000 for threatening and insulting Steluta. Steluta's mother told Belmondo that both the identity card number and the signature that allegedly belonged to her on the police report were fake. Belmondo Cobzaru appealed the police report in court, where the trial is still pending.
According to Belmondo Cobzaru, he was coming on the night of 4 July 1997 with Steluta from the latter's place around 7-7:30 p.m. He left again because he had to get some money; when he returned, after approximately 20 minutes, he knocked at the door but no one opened. He climbed down the stairs, asked the neighbours if they had seen Steluta go out again; when they said no, he prepared to break into the apartment. He says he was afraid Steluta might have tried to commit suicide, as she had tried that before over the past several years. Belmondo admitted he had no proof regarding her other attempts at suicide and that the girl had never been hospitalised on that ground. It is certain that, in the presence of a neighbour whose name he does not know he broke into the apartment, saw that Steluta was not there and went out in the street immediately. It was 8:00 p.m. Right in front of the apartment building, he saw Steluta's brother-in-law, Crinel Marin, and three other persons. They started threatening him, accusing him that he had broken into the apartment to steal, and took their knives out. Belmondo maintains that he ran away when he realised he was alone in front of the other four, and that no actual fight took place. He invokes in this sense the presence of two elderly people who were in front of the apartment building and witnessed the whole incident.
Belmondo declares that shortly after this incident he passed by a police officer and heard instructions regarding the pursuit of an individual over the latter's walkie-talkie. When he realised that he was the one they were looking for, he went to the police station. On the way to the police station he met a friend — Venusa Lupu — whom he told what had happened and who accompanied him to the station, after which she left to announce the Cobzarus.
Belmondo declares he was beaten in the police station by non-commissioned officers Gheorghe Gavrila and Didel Curiu, with the participation (or in the presence) of four more persons in plainclothes. Belmondo declares he was hit with the fists over the head until his nose started bleeding and then kicked, after which a newspaper was placed on the nape of his neck and he was beaten with a wooden club. Finally, he was forced to sign a declaration that he had been beaten by Crinel Marin — Steluta's brother-in-law — and his companions.
After approximately two hours — around 10:30 p.m. — he was released from the police station, where he was told to go again the next morning with his father, Vasile Cobzaru.
Venusa Lupu was waiting for him outside. She took Belmondo to her place, where his father joined them. When he saw his son lying unconscious, Vasile Cobzaru took him first to the hospital in Mangalia. He was then sent to the neurosurgery department of the Constanta county hospital. Belmondo was diagnosed upon admission with “skull and brain traumatism” and underwent a puncture to assess whether there had been any brain damage. As the result was negative, Belmondo Cobzaru was released on 7 July. He went to the Forensic Institute in Constanta the same day, where he received medical certificate No. 1355/T, recording “occipital tumefaction,” “fingers 3-4 of the right hand tumefied and bruised,” bruises on the chest, right thigh and shank. The certificate also mentions that Belmondo Cobzaru “complains of headache, dizziness, aches on the hairy part of the head,” as well as “chest pains worsened by breathing movements.” The report concludes: “the patient presents injuries which could have been produced by hitting with blunt objects (emphasis added). They can date as far back as 4.07.1997. He requires 14-15 days of medical care from the moment the injuries were inflicted.”
After release, Belmondo Cobzaru was examined again by a doctor in Mangalia and another from the Gh. Marinescu hospital in Bucharest. In both cases he was recommended to get readmitted to the neurosurgery department of the Constanta county hospital. After one attempt to get readmitted to hospital, which resulted in a failure under the pretext that “there was no one present at the admission counter,” the Cobzarus gave up trying to get Belmondo hospitalized.
Vasile Cobazu and his son filed complaints against the Mangalia police officers both with the County Police Inspectorate in Constanta and the Ministry of Interior and the Constanta Military Prosecutor's Office (No. 270/P/1997 of 21 July 1997). Belmondo Cobzaru's case was covered by the Neptun TV channel and the “Telegraf” daily, both from Constanta.
The commander of the Mangalia police station was working exactly on the Belmondo Cobzaru case at the time of his meeting with the APADOR-CH representatives. He was answering some questions asked by the General Police Inspectorate and the Ministry of the Interior. Although he repeatedly stated he could not provide any information because the investigation had not been completed, it appeared quite clearly that, in his opinion, the police officers accused of abuse were completely innocent and that Belmondo Cobzaru had been beaten by the brother-in-law of his concubine and his companions, which was proved by the very declaration Belmondo had signed at the police station that night. When the APADOR-CH representatives asked if the circumstances under which Belmondo Cobzaru had signed the declaration had been investigated, the commander did not answer. The question regarding the police obligation to facilitate medical assistance for victims of aggression was also left unanswered, because, if the police officers' statement that Belmondo had been beaten by his acquaintances proves true, the representatives of the public authority should have taken him to the hospital instead of keeping him in the police station. The commander also declared that Steluta Mecu had been kidnapped by Belmondo Cobzaru, although this accusation had nothing to do with the discussion on the treatment applied by the police.
Undoubtedly, Belmondo Cobzaru was beaten on 4 July 1997. The medical evidence and the witnesses bring sound proof in this sense. The question is who beat him? If he was beaten by Steluta's brother-in-law and his companions, the police officers from the Mangalia police station had the duty to take him to a doctor, especially as the injuries were serious enough to require 14-15 days of medical care, according to the medical certificate. Actually, if Belmondo had been beaten before reporting to the police station, he would have rather gone to a doctor first, taking into account the serious condition he was in. If he was beaten in the police station, it is the duty of the Military Prosecutor's Office to establish the truth and bring the culprits before the court. However, it is almost impossible to explain why a man who had been beaten by an individual he had a private conflict with would choose the difficult and risky way of accusing the police for the beating he had taken. Admitting that Belmondo Cobzaru signed the declaration regarding the aggression perpetrated against him by Crinel Marin of his own accord, it is important to find out the consequences of this declaration: was Crinel Marin summoned to the police? was he fined on the basis of Law 61/1991? is he subject to a criminal investigation for having beaten Belmondo Cobzaru? Belmondo Cobzaru stated that Crinel Marin and his three companions had taken out their knives, at which time he ran away. The medical certificate acknowledges that Belmondo's injuries were produces by “blunt objects,” which means more than a simple fist fight, but excludes knife wounds. Who used “blunt objects” against the victim? There are at least three witnesses who could shed some light on the 4 July events: a) the two elderly men who were standing in front of the apartment building at the time Belmondo met the group led by Steluta Mecu's brother-in-law. If they confirm that there was no actual fight between Steluta Mecu's relatives and Belmondo Cobzaru, it is obvious that the ecchymoses, tumefactions and the skull trauma could only be the result of the treatment applied by the Mangalia police; b) Venusa Lupu, who had accompanied Belmondo to the police station and had waited for him to come out. It is hard to believe that Belmondo Cobzaru had told the young woman all that had happened without mentioning that he had been beaten by Crinel Marin and his companions. On the other hand, Venusa Lupu had witnessed with her own eyes the physical state in which Belmondo Cobzaru had left the police station.
The minor A.C. (Constanta, 1997)
The minor A.C., aged 10, domiciled in Constanta, was the victim of incidents occurred on 25 June and on the night of 25/26 June 1997.
Camelia Paraschiv's account:
Camelia Paraschiv, the minor's mother, is divorced and raises her two children with the help of her parents with whom she lives in Constanta, Liliacului St., in a well-tended house. Camelia Paraschiv recounted that A.C. — her younger son — is a very good child, who gets high marks at school and asks his mother or grandparents for permission whenever he wants to go out to play. That is exactly why it remains a mystery how the child left home without telling anyone on 25 June. Scared, his mother took leave of absence, looked for him in the neighbouring streets, went to Eforie Sud, a town situated at about 20 km from Constanta, where her former husband lives, called the police, checked with the hospitals, wandered through the whole neighbourhood with the child's photograph asking everyone if they had not seen him and took the photograph to the local daily, “Telegraf,” which published it the following day as “missing.”
Around 3:30 a.m., Camelia Paraschiv was called by the Basarabi police station (Basarabi is a village 14 km from Constanta) to go and pick up her boy. As she does not own a car, she asked a relative to drive her immediately to the police station. The child was brought in from another room. He was so scared that he even avoided his mother at first. The first thing Camelia Paraschiv and her relative noticed was that A.C.'s palms were very swollen. She asked the police officers what had happened, what they had done to her child. They answered: “there's nothing wrong with him, take him home and that's that.” She wanted to talk to the police chief, but was told to get back at 8:30 a.m. and was literally chased out of the police station. She was not asked to sign any register or fill in any form to take her son home. When they got back to her place, where they also found her former husband, it became obvious that A.C. had been beaten. Both Mrs Paraschiv's parents and her former husband declared they had undressed the child and that both his buttocks and thighs were black, with stripes running in all directions, which clearly demonstrated that he had been beaten with a blunt object, possibly a truncheon. Several very suggestive colour photographs were taken and handed in with the file sent to the Constanta Military Prosecutor's Office.
In the morning of 26 June, Camelia Paraschiv took A.C. to the forensic specialist at 7:00 a.m., where she was issued medical certificate No. 1266/T of 26.06.1997, which lists the following findings:
— blue-violet bruise and scratches on the right side of the forehead; bruise on the left side of the forehead;
— swollen left cheek;
— bruised left ear;
— multiple dot-like bruises on the left side of the thorax;
— bruised palms;
— both buttocks swollen, with red-violet-brown bruises, multiple bruises shaped as stripes with various orientations, predominantly vertical, “increase of local temperature, teguments under tension”;
— multiple bruises on both thighs, etc.
The medical report concluded: A.C. “exhibits traumatic injuries which could have been produced by repeated blows with blunt objects, one of them oblong... The injuries require 13-14 days of medical care since occurrence.”
Around 12:00 a.m., mother and son went to the Basarabi police station and talked to the police chief in the village. Mr Nazaru, who owns a small booth in Basarabi, was also present. The reason for his presence there was that A.C. had been found by the owner in that booth around 10:00-10:30 p.m., after which had been taken over by the police. Why and how the child got into the booth, in a village outside Constanta, where neither him nor his family knew anyone remains a mystery. A.C. does not want — or does not remember, in case he is amnesic — to recount anything about what he did, where he went and with whom he had left home on 25 June, around noon. However, this aspect is irrelevant for what happened that evening and night. What is certain is that A.C. entered the booth long after closing time and ate... two ice creams. Someone called first the owner who came and found the boy there and then the police.
The Basarabi police chief saw haw badly the boy had been beaten and showed him to the police officers on morning shift, expressing his indignation that such a treatment had been applied in the police station. Nazaru was also shocked to see that A.C. had been beaten savagely and declared that all he had done was pull the boy's ear and slap him once, when he found the child in the booth. He also said he had no further claims from Camelia Paraschiv for the damage her son had caused and gave a written statement in that sense.
Camelia Paraschiv no longer mentioned in the statements written that day at the police station that her son had been beaten, believing it was enough that both the police chief and the other police officers had seen the telltale signs on the child's body. This fact was invoked later on by the Constanta Military Prosecutor's Office to question the truthfulness of Camelia Paraschiv's account. It would be sad if, starting from this omission — irrelevant for what had happened at the Basarabi police station on the evening and night of 25-26 June — a no indictment decision were pronounced in favour of the police officers involved in the 25/26 June events.
Camelia Paraschiv took A.C. to the Constanta County Hospital, where she also got admitted on Friday, 27 June. The medical record mentions multiple trauma, bruises and scratches. Camelia Paraschiv told everyone in the hospital what had happened to her son at the police station. Immediately after the week-end, on Monday morning, when the doctor found out the police had been involved, he decided to release the boy from hospital on grounds that “the boy was perfectly healthy” (?!). A tomographic examination performed on 20 August — therefore almost two months after the incident — acknowledges the existence of a “pronounced diffuse cerebral oedema.” It was also in the month of August that he started developing facial tics, vertigo and modifications of behaviour (aggressiveness, testiness), as a psychiatrist from a private cabinet mentioned.
Following the complaint lodged with the Constanta Military Prosecutor's Office (case file No. 254/P/1997 of 4 July 1997) Major Adrian Rotlender issued an order on 18 August asking for a psychiatric examination to be performed on minor A.C. Camelia Paraschiv reported in with the child, but she was told the boy had to be admitted to hospital for three days and that she would have to pay the money for the medical examination. Under these circumstances, she refused; this fact was also used against the victim by the military prosecutor.
Minor A.C.'s account:
As mentioned before, A.C. provided no explanations for the way he had spent the day of 25 June from 1:00-1:30 p.m. when he had left home until 10:00-10:30 p.m., when he was found by Nazaru in the booth in Basarabi. From that moment on, he narrated the following: Nazaru arrived accompanied by another person, but apart from the fact that he was slapped once and his ears pulled he was subjected to no other form of violence. Driven in he police car, the child was taken to several addresses (five or six) where the residents were asked to identify him. A.C. said that the police were trying in fact not to take him home, but to discover if someone in Basarabi could establish a connection between him and a group — which has not been identified — which had allegedly committed a robbery at the same kiosk several months before. Asked where he lived, A.C. had answered “on Liliacului street.” Unfortunately, there is a street in Basarabi by the same name and, when the child could not identify his home, the police officers got mad, believing that he was mocking them, while A.C. was scared and confused. The child said that at some point the police car stopped on the bridge, he was dragged out of the car, taken by the head and feet and threatened to be thrown if he did not tell who he had been with. He was then taken to the police station, where he was told to take his trousers off and bend down with the head between his legs. He was beaten with the truncheon, but also with the fists and feet. A sheet of paper was placed on his palms and he was repeatedly hit over the palms of his hands, which explains the swelling his mother had noticed from the very beginning. This treatment was also aimed at making the child confess to whom he had met that day, what they had done, how he had got in the booth, with whose help, etc. A.C. said that the persons who abused him were the driver of the ARO police car, sergeant Dan Rusu and a guardian. He also said that two women in uniform — either police officers or gendarmes — assisted to the beating without intervening. A.C. stated the sergeant had threatened him with the pistol and with the “grill.” He believes he was beaten for about two hours, after which he was asked for his phone number. Afterwards, he was locked in a room “plated with stone, with a stone bed and two empty crates” — probably in the police lock-up.
Discussions at the Constanta Military Prosecutor's Office:
Lieutenant-colonel Adrian Prosan, first deputy military prosecutor, and Major Adrian Rotlender, who is directly in charge of the A.C. case, accepted immediately to talk to the APADOR-CH representative. Mr Rotlender complained that A.C.'s mother did not co-operate enough, refusing the psychiatric examination and making statements which raise the question of the military prosecutor's impartiality. He seemed genuinely surprised when he learned that two women in uniform had been present at the police station at the time of the incident whose victim was A.C. Camelia Paraschiv said that A.C. had described those persons when he had talked to the prosecutor in her presence. The prosecutor seemed to be more concerned that Mrs Paraschiv had not mentioned that the boy had been beaten in the statement given at the Basarabi police station. It is not clear why he believes that this omission from the declaration given after one sleepless, tense night could raise doubts regarding the incidents of 25/26 June 1997. The chief of the police station — not to mention the others — had seen the state the child was in and this had been enough for Camelia Paraschiv. There are also witnesses — Camelia Paraschiv's parents and ex-husband — who were present when she discovered how A.C. had been treated, but who, until the visit of the APADOR-CH representative, had not been invited to the Prosecutor's Office to be heard. Prosecutor Rotlender admitted that he had been shocked when he had seen the colour photos which demonstrated beyond any doubt that A.C. had been treated with cruelty, but he made a “joke,” saying there is no much difference between a truncheon and a... stirring stick, implying that it would not have been impossible for the mother to beat her child so savagely!
However, the prosecutor admitted that it was almost impossible for A.C. to have made up the whole story. Both the first deputy prosecutor and the major who investigates the case assured the APADOR-CH representative that the investigation would be impartial and carried out with utmost attention.
The APADOR-CH representative tried to contact the heads of the Constanta municipal police and of the County Police Inspectorate. At the municipal police, she was told that all the officials were in a meeting and that no one would be there until the afternoon, “possibly”; after two attempts to talk to an authorized person from the County Police Inspectorate, the APADOR-CH representative had to give up.
According to the information gathered on the spot, APADOR-CH believes that A.C. aged 10 was a victim of torture. It should be reminded here that the Constitution of Romania (Art. 22 para. 2), the Penal Code (Art. 267/1) and the Law on Police (Art. 27) as well as international human rights documents (The International Covenant on Civil and Political Rights, The European Convention on Human Rights, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments, the European Convention for the Prevention of Torture and the Convention on Children's Rights) strongly forbid such actions.
APADOR-CH considers that, in such situations where the victims are children, it is necessary that the criminal investigation — or at least the minors' hearing — be conducted either by prosecutors specialized in children's psychology or at least in the presence of a psychologist specialized in children. Minors who have undergone such experience are shocked and need a lot of care and attention not to be caused additional psychic trauma.
At the end of 1997, the police officers involved in this case were prosecuted. The first hearing in this case was scheduled for 21 January 1998. APADOR-CH supports the victims both morally and financially.
Olga Pusnei (Piatra-Neamt, 1997)
Olga Pusnei, aged 44, sublets rooms of her apartment to single young women for a living. In the period 7–22 April 1997, she sublet a room to a young woman for which she did not fill in all the legal forms, but, given the short time the latter was going to spend there, this was not really necessary. Following a conflict between the landlady and the tenant, the latter was asked to leave the house, but only after having returned Olga Pusnei some things she had appropriated by fraud. As the young woman refused to do so, Olga Pusnei kept a suitcase of her clothes. Two days later, on 24 April 1997, the young woman returned to Olga Pusnei's place with a police officer in plainclothes and one in uniform, who muscled their way in the hall of Olga Pusnei's house without showing her any kind of identification or search warrant. Mrs Pusnei was issued medical certificate No. 799 of 25 April 1997 establishing that she exhibited several bruises on the right arm and recommending “2-3 days of medical care unless any complications arise.” Olga Pusnei also complained of headaches because one of the police officers allegedly bumped her head against the wall.
After she repeatedly complained about the way she had been treated by the two police officers on 24 April 1997 (in writing and verbally to the Neamt County Police, to the Bacau Military Prosecutor's Office, where she was received in audience on 26.06.1997 and on 24.07.1997 and to the Military Department of the Prosecutor's Office in Bucharest), she received a written answer only from the County Police Inspectorate, by which she was announced that “non-commissioned officers Perju Ioan and Isache Gabriel, who came to your residence on 24.04.1997, are not guilty of trespassing or of beating. We regret you did not accept our invitations of 24.04.1997 (the very day the incident took place — our note), 15.05.1997 and 29.05.1997 to discuss and clarify the purpose of the two non-commissioned officers' visit.”
APADOR-CH considers that, as long as the two non-commissioned officers did not have a search warrant and they entered the apartment against Olga Pusnei's will, they should be charged with trespassing. It is not clear how the County Police Inspectorate established they had not hit Mrs Pusnei unless it did so on the basis of their own declarations, and according to Olga Pusnei one of them was the brother of the young woman who triggered the whole scandal.
In less than a month, Olga Pusnei received two police reports (being fined lei 100,000 and lei 300,000) for illegal renting. She appealed both fines. Following an ordinance issued by the court, Olga Pusnei was compelled to return the personal objects of the girl. Another young woman who was present when the ordinance was carried out declared that the police officer who accompanied the executor threatened to hit Olga Pusnei and herself, if she refused to sign the police report.
Olga Pusnei is an extremely sensitive person. After what she has been through she is afraid of everyone, does not answer the door and spends most of the time locked in her house.
Therefore, it appears that the non-commissioned officers who entered Mrs Pusnei's house on 24 April 1997 without a warrant and without the owner's written consent used their position to solve a personal problem of one of their close relatives (a sister), which represents an abuse.
The investigation conducted by the Military Prosecutor's Office had not been concluded until the end of 1997.
Vasile Holindrariu (Piatra-Neamt, 1997)
Vasile Holindrariu lodged several complaints with the Ministry of Interior against several employees of the Piatra-Neamt police, mainly against Major Nistor Carbunaru. Holindrariu alleges that these police officers granted special protection to a charity foundation chaired by a Swiss citizen in exchange for benefits such as foreign cars and electronic equipment. Consequently, on 13 March 1997, non-commissioned officer Vasile Onciu on duty at the Valeni Annex, Piatra-Neamt, went to Vasile Holindrariu's around 10:00 a.m. and invited him verbally to the police. Holindrariu says that he was beaten there first by non-commissioned officer Onciu and later on by Major Carbunaru himself, to “teach him a lesson.” The victim declares that Major Carbunaru kicked him in the stomach and punched him in the face in the presence of Major Stefan Petrov, to whom Carbunaru told he did not care about the minister or the entire police. (Major Stefan Petrov received Holindrariu's complaint regarding the police complicity in the affairs of the charity foundation “Muriset”). Vasile Holindrariu was not told why he was being held during the six hours he spent at the police station. When he returned home (around 7:00 p.m.), his whole family saw the blow marks.
From that moment on, Vasile Holindrariu was repeatedly summoned to the police (12 times with a written invitation which does not mention the reason of such visits and 9 times verbally). All the “invitations” were meant to intimidate him and make him withdraw his complaint against the police officers he had accused of corruption. Vasile Holindrariu says he was beaten many times. The chairperson of the charity foundation lodged a complaint against Vasile Holindrariu for... poultry theft. Holindrariu lodged a complaint with the Bacau Military Prosecutor's Office (file No. 1367/P/1997) regarding the abusive treatment he was subjected to by Major Carbunaru and non-commissioned officer Vasile Onciu.
Until the end of 1997 Vasile Holindrariu had not received any answer; he was merely invited to the Bacau Military Prosecutor's Office to give a declaration, on 10 September 1997.
APADOR-CH believes that the repeated “invitations” to the police (21 in seven months!), where Vasile Holindrariu was held for 2 up to 10 hours each time clearly represents an abuse of the Piatra-Neamt police officers. This harassment is meant to intimidate him; he was constantly asked to withdraw the charges of police corruption. Although the spells of time for which Vasile Holindrariu was deprived of liberty did not exceed the legal 24 hours, the fact that this measure was repeated 21 times can no longer be legally justified.
The case had not been solved by the Military Prosecutor's Office until the end of 1997.
Pantelimon Zait (Tasca village, county of Neamt, 1996)
APADOR-CH was notified of this case in 1997.
Pantelimon Zait worked as a forest guard in the period 1979–1996. On 27 January 1996, while hunting (he held a legal license), he found a chamois wounded by gunshot. This scene was witnessed by the people who accompanied him. He tried to drag it out of the hunting ground, but was not able to because of the snow. Then, according to regulations, he obtained a certificate from the veterinary doctor and shot the animal which could not be saved. He gave the animal's skin and horns to one of his companions. Shortly afterwards he went on holidays. Pantelimon Zait alleged that one of the police officers from the weapons and ammunition department of the Piatra-Neamt police had hunted illegally and shot down two chamois, wounding the third — the one he had found.
On 20 February 1996, when he returned from vacation, Pantelimon Zait was arrested by two police officers from the Tasca village police station, without any official document, and taken to the Piatra-Neamt police, to the weapons and ammunition department. There, Pantelimon Zait was allegedly beaten by Major Stoica and Captain Neamtu and forced to make “genuflexions” with a car tire (??). He was kicked, punched and hit with a board over the left leg. In the meantime, in a separate room, non-commissioned officer Milea was beating Gheorghe Scurtu, one of Zait' companions on 27 January 1996. Two witnesses saw the police officers beat Zait through the window — Gheorghe Scurtu's wife and another person.
Pantelimon Zait was held in the police station for 24 hours, during which time, due to the way he had been treated, he signed a declaration written by the police officers without reading it. Later on it was proved that Pantelimon Zait had thus admitted that he was guilty of poaching and that he had shot the chamois, a deed for which he was sentenced to a six‑month term in prison and to a high fine (approximately 1.5 million lei). Moreover, he was fired. The whole Zait family — counting six minor children — continued to live off Mrs Zait' wages and the state indemnity for children.
On 21 February, after the 24 hours spent in the police station, Pantelimon Zait was brought home. His house was searched and his hunting rifles were seized. He had to sign that he had agreed to the search, as well as the seizure report.
Pantelimon Zait also said that his witnesses were intimidated by the police officers and that even the doctor who had signed the papers for the chamois he had shot had to declare that the date on the certificate was incorrect.
Pantelimon Zait also said that he had seen, in the weapons and ammunition department, another police officer threatening with a lit brazing lamp a person who had been held because the police had found a certain amount of TNT in the loft of his grandfather's stable.
Pantelimon Zait was issued medical certificate No. 322 of 26 February, which reads: “nasal contusions with tumefaction and epistaxis and bruises inflicted with a blunt object which could date from 20 February 1996. These require 6-7 days of medical care unless further complications arise.” As mentioned above, there are witnesses who saw what happened in the weapons and ammunition department, apart from his family, who saw him after he had been beaten.
Pantelimon Zait lodged a complaint with the Bacau Military Prosecutor's Office (case file No. 357/P/1996), which issued a no indictment decision. The decision was rejected and an additional investigation is under way.
The Marcu family (Razvad village, county of Dambovita, 1997)
The Marcus have settled in Razvad recently and opened a small colonial goods shop. Dumitru Auras Marcu had an argument with a neighbour regarding the placement of a partition fence. On 9 May 1997, following a verbal argument with the neighbour, five police officers entered the Marcus' yard, used tear gas against Dumitru Marcu and pushed him. It is unclear who had called them; anyway, it had been neither the Marcus nor the neighbour they had had the argument with. In any case, the neighbour had admitted that Dumitru Marcu was right. Several days later, however, Dumitru Auras Marcu received a police report by which he was fined lei 200,000 on the basis of Law 61/1991 for disturbance of public peace. On 28 May he received a second police report by which he was fined an additional amount of lei 200,000 for “not having reported to the police station,” although Dumitru Marcu maintains that he had not been summoned either verbally or in writing. He did not pay the fines.
On Sunday evening — 20 July 1997 — Dumitru Auras Marcu and his wife, Mariana Marcu, their son aged 9, Radu Ioan Dragos, and two nephews went to the “Robertino” pub in Razvad. They met Dumitru Auras Marcu's sister, Madalina Toader, and her husband, Gheorghe Toader. The Toaders owed some money to the Marcus. The discussion on this topic resulted in a quarrel that, although rather violent, did not degenerate in a fight. The argument took place in front of the pub around 10:30 p.m. Dumitru Auras Marcu alleges he went into his brother-in-law's car to prevent him from driving after having drunk. The Toaders went to report on him to the police station and came back to the pub. Several minutes later, two non-commissioned officers came to the pub and used tear gas against Dumitru Auras Marcu and his wife. One of the police officers hit Mariana Marcu with the fist in the chin and she fell down. Dumitru Auras was handcuffed and dragged to the police station, where he was tied to the metal frame of the notice board. The police officers beat him with the fists all the way from the pub to the police station. When the victim asked that a police crew be brought from Targoviste (a town situated at 4 km from Razvad), the officers went into the police station. In the meantime, Mariana Marcu came to after the shock caused by the tear gas and the blow and went to the police station. Several minutes later, one of the officers took Dumitru Auras' handcuffs off and told him to go home “in peace.”
Dumitru Auras was issued a medical certificate (No. 1295 of 23 July 1997), acknowledging, among others, the fact that his back was badly bruised, with “reddish-black crusts” on the left side; the X-ray showed two broken ribs (7th and 8th ribs, left side). The medical certificate concluded that “he would require 15-16 days of medical care.” It should be mentioned that, in order to be issued a medical certificate, Dumitru Auras had to pay a fee of lei 67,500, that is, a rather important amount of money for him. The lack of money was the reason his wife, Mariana Marcu, did not ask for such certificate.
Several days later, the Marcus were sent by mail police reports by which both Dumitru Auras and his wife were fined lei 500,000 each, on the basis of Law 61/1991. The Marcus alleged that the Toaders had received similar fines. The Marcus contested the two police reports at the Targoviste Court.
The Marcus complained against the aggression perpetrated by the two non-commissioned officers at the Targoviste police and the Ploiesti Military Prosecutor's Office. The latter complaint was sent by registered letter (and reached its destination on 13 August 1997). Following the complaints, the Marcus were invited to the Targoviste police, where non-commissioned officer Serban asked them to write statements in connection with the 20 July incident.
It should also be mentioned that — according to the Marcus — one of Dumitru Auras' nephews who had witnessed the 20 July incidents was invited to the Razvad police station and asked not to say a word about the police treatment.
APADOR-CH considers that the Razvad police's actions were disproportionate with the incident — a mere quarrel, with no physical violence — among relatives. The use of tear gas — which seems to have become a custom for these police officers — as well as the fact that Dumitru Auras and his wife were beaten and the former was handcuffed represents an unjustified show of force, which can be labelled as inhuman treatment, which is explicitly banned by the Constitution, the Penal Code and the Law on Police. The three fines received by Dumitru Auras Marcu under flimsy pretexts represent an additional proof of the abusive use of Law 61/1991 by the police.
APADOR-CH was notified by the Military Department of the Prosecutor's Office through letter No. 2541/1997 of 29 December 1997 that a no indictment decision was pronounced in favour of the Razvad police officers, because “all the witnesses that were heard declared that the police officers had not committed violent acts against Marcu D. Auras...” “Quite the opposite, Marcu D. Auras, who threatened to kill the police officers if they intervened, was guilty of outrage, provided by Art. 239 P.C.; consequently, the competent Prosecutor's Office was notified.” The letter makes no mention of the use of tear gas, the way Marcu's wife was hit and he himself taken to the police station and handcuffed to the notice board. As for the “death threat” (Art. 239 para. 1 P.C. — “verbal” outrage), APADOR-CH has repeatedly and publicly expressed its opinion that this paragraph should be removed.
Remus Marin (Vizuresti village, municipality of Ciocanesti, county of Dambovita, 1997)
The Marin family notified APADOR-CH at the end of 1997 of an extremely serious case, making the subject of case file No. 1345/P/97 at the Bucharest Territorial Military Prosecutor's Office.
Jian and Floarea Marin declared that their son, Remus Marin, aged 21, had been shot on the night of 8/9 August 1997 by non-commissioned officer Nicu Toma from the “car theft” department of the 8th police precinct, in the Buftea town area. His parents found him lying full of blood in the morning, around 6 a.m., near the fence of their yard. He was taken to hospital and operated in an emergency procedure; three bullets were extracted from his body. The diagnosis he was admitted to hospital with was “shot wounds in the left elbow, right deltoid and scapular region, right lower side of the mandible” (admittance medical record No. 225/16 of 9 August 1997 issued by the Bucharest Emergency Hospital). It is easy to determine that the person who shot him aimed for the upper part of his body, head included, and that the victim survived by a miracle. Art. 51 of Law 17/1996 on the use of fire weapons and ammunition provides that the weapon should be used “... so that the individuals it is used against be immobilized, by shooting at the feet to the extent possible, in order to avoid causing their death.”
The victim's parents found out he was allegedly charged with having tried to break into a booth in the Buftea area.
APADOR-CH considers that the police officer reacted in a disproportionate and unjustified manner — even admitting that Marin had actually attempted to break into the booth — proving lack of respect for a human life. This attitude is also proved by the fact that the police officer involved did not even try to help the wounded, although, according to the Law on Police No. 26/1994 it was their duty to do so.
As far as the Marins know, Remus was transferred from the emergency hospital to the Bucharest penitentiary hospital and then to the lock-up of the town of Buftea police station.
APADOR-CH asked the Military Prosecutor's Office for information on where Remus Marin is detained and the grounds on which the pre-trial detention warrant was issued — if such warrant does exist —, as well as on the stage reached by investigations in case file No. 1345/P/97.
4. THE GENERAL POLICE INSPECTORATE LOCK-UP
For the first time since the inception of the programme monitoring police abuses, i.e., since 1993, APADOR-CH was granted permission to visit the General Police Inspectorate (IGP) lock-up. The association visited such detention places in 1993, but only in the company of foreign organisations representatives. A request sent in 1996 to the General Directorate of the Bucharest Police in this sense, by which APADOR-CH asked for a permanent pass in order to be able to visit police lock-ups in the capital was turned down.
It should be mentioned that the visit to the IGP lock-up took place at the request of some of the persons detained there on remand. Subsequently, the association wrote a report sent to the authorities:
“The situation of defendant Ioan Doru Miclea
Arrested on 25 April 1996, Ioan Doru Miclea was charged with fraud, forgery and use of forgery against trade companies he used to do business with. The complaint that led to him being arrested has not been solved yet. In the month of May 1996, a second trade company lodged a complaint against him following which Ioan Doru Miclea was brought to trial in November 1996. There followed four more complaints, all dated May 1996, only one of which made the object of criminal investigation.
Ioan Doru Miclea brought to the attention of the APADOR-CH representatives several procedural issues that jeopardize the right to fair trial or which plead for the need to modify several laws currently in force.
a) Throughout the whole detention period, the defendant applied several times to be released and tried at large; some of these applications were admitted by the first instance and rejected following the appeals of the Prosecutor's Office. One element to be pointed out is the procedure employed by the instance in connection with Miclea's application to be released filed in November 1996. On 9 December 1996, the instance decided to release the defendant. The Prosecutor's Office appealed the decision on December 12 and motivated the appeal on 20 January 1996. The instance pronounced its decision on this appeal only as late as February 1997, admitting the Prosecutor's Office appeal and denying the defendant's application. To put it differently, the defendant had to wait four months for a decision on his application to be tried at large, which violates Decision 60/1994 of the Constitutional Court (that has remained final after the appeal was denied by Decision No. 20/1995), according to which a pre-trial detention warrant must be extended by a judge every 30 days, including the trial period, in which case the judge is obliged to do so without being specifically asked to;
c) Any discussion between persons in detention and their lawyer must take place in the presence of the investigator, which annuls the confidentiality between legal counsels and their clients. Moreover, persons in detention cannot contact their lawyer but through the investigator. There are persons in the IGP lock-up who are investigated either by the Criminal Investigation Department within the IGP or by the Prosecutor's Office. A person investigated by the prosecutor will have to wait until the latter will contact the legal counsel and find the time to be present at the lawyer's meeting with the client, which could take days if not weeks. The right to defence is practically annulled by this procedure;
With regard to how his right to defense was observed, Ioan Doru Miclea claimed that he had not been informed about any of the answers he received to the memoirs he had addressed to public authorities. This creates a status of permanent uncertainty and prevents him from continuing to do whatever he thinks is necessary to prove his innocence. He also mentioned that he is not allowed to keep paper and a pencil permanently with him, which means that any time he wants to write a memoir he must follow the long series of formalities provided by lock-up regulations. Besides this restriction, the regulations also ban radios, the only source of information being a loudspeaker which works only for 3-4 hours a day. It is not clear why the regulations forbid the persons in police lock-ups from owning radios (let alone television sets), although these are allowed in penitentiaries, irrespective of whether their owners are in pre-trial detention or have received their final sentences.”
Visit to the IGP lock-up
“The lock-up was designed for 200 people; at the time of the APADOR-CH visit, 84 persons (four of which were women) were detained here. There were no young people between 18 and 21. The lock-up has never been overcrowded according to Captain Negut, chief of the lock-up.
Each room is provided with a toilet and a shower that are not separated from the rest of the cell. The lack of a door or at least a screen to separate the two spaces places the detainees in the humiliating situation of having no privacy at all. Apart from this negative aspect, it should however be mentioned that the hot and cold water run all the time, there are no roaches or other insects, the sheets were relatively clean, the food acceptable and the detainees were taken out for half-hour walks every day. The only thing the detainees complained about was the difficulty to meet their lawyers who can only be contacted via the investigator, as already mentioned.
The discussion with the doctor revealed another aspect that must be mentioned, namely how the HIV test is performed. The doctor, who decides who must undergo the test, stated that he had explained in detail each time what the test means, what its results can be and what are the consequences of a positive result. The doctor said the detainees never refused to have the test performed. Asked what would have happened if the detainees had refused, he could not answer. The HIV positive persons (only one in 1997, three or four in the previous years) had been confidentially notified by the doctor on the results and, under various pretexts, moved to other cells, all by themselves.”
Police demilitarization does not yet represent a major concern either for the Executive or for the Legislative. Still, this idea gains more and more ground, especially as far as the civil society is concerned. It is also encouraging that a group of mayors have asked that the local police be placed under their orders. Actually, military discipline, so often invoked by the supporters of the present structure of the Ministry of Interior is quite often violated. The Minister of Interior, Mr Gavril Dejeu, declared in an interview published in “Romania libera” of 11 October 1997 that 5,717 law infringements had been committed during the first semester of the year by the Ministry's staff (police, gendarmes, the fire squad, border police, etc.).
Whenever people complain about police abuses, the investigations conducted by Military Prosecutor's Offices last far too long and are usually concluded with no indictment decisions. Victims cannot complain to criminal or civil courts, being thus deprived of their constitutional right to free access to justice. Even though prosecutors — military prosecutors included — are regarded as magistrates, their investigations cannot be equated with the notion of fair trial as defined by international human rights documents and in accordance with the standards set by the European Human Rights Court in Strasbourg.
The police professional training — especially in rural areas and small towns — is still poor. Graduates of the Police Academy or other faculties, employed by the General Police Inspectorate, do not go to work in rural areas or small towns. Police stations in such areas are staffed mainly by non-commissioned officers, poorly trained. The few human rights courses/seminars they attend regard only theoretical aspects, with no connection with their day-to-day life, so that they fail to achieve their initially planned goals, while the police officers' psychological training — if any — does not appear to influence the relationship between law-enforcement officers and individuals.
Many detainees from the penitentiaries APADOR-CH had visited complained about the treatment they were subjected to in the police stations. Few had the courage the complain to Military Prosecutor's Offices and even fewer succeeded in presenting solid evidence to support their statements. Except for the Damian brothers mentioned above, the association has not learned of any other case where a person detained in a police lock-up had been examined by an expert doctor and issued a medical certificate. One must also keep in mind that the doctors from the penitentiary system try to avoid mentioning in the newly arrivals' medical records the signs of bad treatment endured in police lock-ups. In most cases, such bad treatments consist in beating the suspects either in order to make them admit to their deeds or to make them assume things they did not do (which solve the famous cases of “crimes with unidentified authors”), or because the police officer, “indignant” at how serious the deed allegedly committed by the suspect is, feels he is entitled to punish the “criminal” himself, without awaiting the decision of the courts. APADOR-CH has suggested that any declaration made in a police station in the absence of a lawyer should be disregarded by prosecutors and courts.
The police officers' ignorance or misinterpretation of laws has given raise to abuses. The best example is the way police officers enforce Law No. 61/1991 on petty offenses which provides substantial fines or terms in prison up to six months. Art. 16 letter b) of the Law on Police, providing for the “leading” to the police station of an individual up to 24 hours — apart from the legal 24‑hour holding provided by the Constitution and the Penal Code offers another opportunity to perpetrate abuses. The “leading” is not regulated by law while the “holding” supposes an order issued by a prosecutor or by the chief of the police station. Under these circumstances, individuals are frequently deprived of liberty for many hours without being able to defend themselves or to appeal this decision.
As during the previous years, APADOR-CH worked well with the Military Department of the Prosecutor's Office, which took into consideration the association's reports and the potential additional specifications, rejecting some no indictment decisions pronounced in favour of several police officers and requesting that the investigations be completed in several cases. APADOR-CH is familiar with the difficulties encountered by the Military Prosecutor's Offices, but these are not sufficient to justify the length of investigations (see the Achim, Ioan Rosca, Tudorel Tanase cases and others). The association also objects to the practice of sending a file back to the same prosecutor who pronounced the first decision for the completion of investigations.
Three types of behaviour appeared frequently in the cases investigated by APADOR-CH in 1997:
— police officers who unlawfully beat more or less seriously some individuals and who took fast steps in order to intimidate those persons by complaining themselves that they had been victims of outrage, many times under ridiculous circumstances, which should disqualify them for the kind of duties they are supposed to discharge;
— police officers who make use of Law No. 61/1991 in an abusive manner in order to intimidate their victims and repeatedly fine people who have already been molested, thus harassing them;
— Military Prosecutor's Offices solve complaints lodged against police officers twice or three times slower than it takes the Prosecutor's Offices to solve the complaints of the same police officers against those who had previously complained against them.
This obvious imbalance in favour of police officers can only strengthen the idea that the ordinary citizen in Romania is the last to be protected by the legal system and the state institutions.
IV. ASPECTS FROM PENITENTIARIES
1997 seems to have marked the passage from declarations of intention to actual efforts to improve detention conditions and to reform the penitentiary system. Thus, a working group made of penitentiary commanders and experts from the General Directorate of Penitentiaries has drawn up a set of legal proposals regarding the carry out of prison sentences the status of penitentiary staff and the creation of the probation officer institution. Measures such as alternative punishments, demilitarization of penitentiary staff, setting up an assistance and control system for released detainees, broader autonomy for each penitentiary will lead to substantial changes in this field if they are passed by the Parliament. Unfortunately, the legislation process is too slow and the penitentiaries will continue to function on the basis of outdated regulations which run counter to European standards in the field as long as the new legislation is not passed.
A. THE FEBRUARY 1997 PROTESTS
An unprecedented event occurred in February 1997, when detainees started protest movements first in the Bucharest penitentiary and later on in other Romanian prisons. According to the information received by APADOR-CH, the initial reason consisted in the fuzzy explanations detainees were given regarding the new system of release on parole, on the basis of the amendments to the Penal Code and the Penal Procedure Code passed in November 1996. The protests extended then to other issues: length of trials, overcrowding, bad food, etc. For about one week, the media extensively covered these protests which were mainly peaceful, except for the Timisoara penitentiary (hunger strike, blocking the cell doors, shouting slogans). On 23 February 1997, the General Directorate of Penitentiaries (DGP) decided to use force to quash the protests of Bucharest penitentiary detainees.
The APADOR-CH representatives were allowed to enter the penitentiary and the penitentiary hospital only on 27 February, after long talks with the DGP. The little information the association was able to gather on the spot was summed up in a report which, at the request of the DGP, was brought to public notice long after the visit. The report notes, among others:
“Several days before the beginning of the detainees' protest, one of the instructors employed by the penitentiary had read over the loudspeaker the newly adopted provisions of the Penal Code relating to the carry out of sentences: the modification of Art. 59 and 60 was the main issue that upset the detainees, who asked immediately that the Parliament return to the former version of the Penal Code and that detention conditions be improved. In a nutshell, the new version of Art. 59 extends the minimal compulsory detention period (the time served before becoming eligible to appear before the parole board) from a half to two thirds for sentences up to ten years and from two thirds to three fourths for sentences that exceed ten years.
Some detainees went on hunger strike. The penitentiary commander, Col. Ion Parjol, voiced his opinion that the extensive coverage of the detainees' protest encouraged them and fuelled their protests.
In order to solve the conflict, the penitentiary management called up 500 prison staff who stormed the penitentiary in the evening of 23 February. According to the commander, the staff was authorized to use only rubber truncheons and 3-4 vials of tear gas in the cells where detainees had blocked the doors. Mention must be made that the number of persons who carried out this action exceeds the actual number of the Bucharest penitentiary staff, but the commander refused to specify where the rest of the military had come from.
At the time of the visit, that is, four days after the occurrence of these incidents, the commander asked the APADOR-CH representatives not to talk to the detainees and not to enter the cells lest ‘they should stir them up’ again after the penitentiary staff had calmed them down. The APADOR-CH representatives agreed to this request; however, they still visited the surgery.
The surgery visited by the APADOR-CH representatives covers Sections 5 and 6 of the penitentiary. They were, however, also allowed to check the medical records for Sections 3 and 4.
Checking the medical records for 23, 24 and 25 February, therefore shortly after the show of force of the penitentiary staff, the APADOR-CH representatives noted that several detainees (about 20) had reported to the surgery with traumas which could have been inflicted by force. No such cases had been recorded before the intervention. The following examples were selected from Sections 3, 4 and 6:
Section 3, Room 43:
— Nastase Bobancu — half-chest, arm and leg traumatism;
— George Chirilencu — severe bruising, haematoma;
— Vasile Viorel — severe bruising;
— Dutu Viorel — severe bruising;
Section 3, Room 49:
— Motoc Marian — superficial wound on the parietal and occipital left side of the head;
— Ivan Nicolae — severe bruising;
Section 3, Room 42:
— Constantinescu Gheorghe — severe trauma;
Section 3, Room 44:
— Copilu Mirel — severe bruising/haematoma;
Section 3, Room 50:
— Burcea Marin — haemarthrosis of the left elbow;
Section four is occupied mainly by TB patients; according to Dr. Tanasescu, this section was not stormed by the penitentiary staff and no requests to report to the surgery were recorded.
Sections 5 and 6: Room 93:
— Gheorghe Mihai — self-inflicted injuries;
Sections 5 and 6: Room 109:
— Marcu Viorel — severe bruising on the shank;
Sections 5 and 6: Room 55:
— Burca Marian — suspected of upper arm fracture;
— Macelaru Ion — chest trauma;
Sections 5 and 6: Room 65:
— Busuioc Florica — incised wound;
Sections 5 and 6: Room 49:
— Memet Alexandru — lumbar contusion;
Sections 5 and 6: Room 71:
— Ciuraru A. — post-traumatic bruising;
Sections 5 and 6: Room 58:
— Mihai M. — right knee-cap bruising;
Sections 5 and 6: Room 79:
— Zaicareanu Constantin — epistaxis;
— Stan Constantin — bruising under the left eye;
— Stan Emil — spinal lumbar traumatism;
Sections 5 and 6: Room 80:
— Dumitru Florin — spinal lumbar traumatism;
Sections 5 and 6: Room 92:
— Duduianu Nicolae — bruising;
The APADOR-CH representatives could not check the medical records for Sections 1 and 2. Despite the assurances of the Bucharest penitentiary commander, one can conclude that the penitentiary staff resorted to force more than necessary during their intervention against the detainees. It should also be mentioned that Dr. Tanasescu declared that he had witnessed the intervention and had warned the staff ‘not to hit the detainees in the vital areas.’
Upon leaving the penitentiary, the APADOR-CH representatives were approached by a close relative of one of the detainees (Ion Filias, detained on remand since 1996) who said that the family had tried to see him but were turned down. The relative was told — by a source he could not identify — that Ion Filias had allegedly been hit in the genital area by the penitentiary staff and that he had been admitted to the surgery in a very serious condition. As the APADOR-CH representatives could not return to the penitentiary, the relative was advised to apply to the General Penitentiary Department.”
At the penitentiary hospital, the APADOR-CH representatives talked to Lieutenant-colonel Adrian Olteanu, second officer in command in charge of guard and diet, who provided all statistic data regarding the hospital patients. No incidents similar to the ones in the penitentiary had been recorded, apart from a patient from Room 207 who refused to eat for half a day, making common cause with the detainees in the Bucharest penitentiary.
The APADOR-CH representatives reached the conclusion that the intervention of the Bucharest penitentiary staff to settle the conflict was justified, but there are serious indications as to the excessive use of force. APADOR-CH considers that the Ministry of Justice and the Military Prosecutor's Office must start investigating the methods used during this intervention.
In the following months, further information which presented another side of the show of force occurred at the Bucharest penitentiary was gathered. Initially fuzzy, this information became more and more credible, as an increasing number of detainees plucked up the courage to talk openly about the events on 23 February and on the night of 23/24 February.
In September, Ilie Ghita (released from penitentiary in the meantime) told an APADOR-CH representative and a member of the London International Secretariat of AMNESTY INTERNATIONAL that after the 23 February intervention there followed a strictly punitive action against a number of detainees selected by the penitentiary management (figures range between 70 and 100). These detainees — seemingly chosen on account of their influence over the other detainees and of the guards' antipathy for them — were gathered at arrival point number one and beaten with wooden clubs, truncheons, kicked and punched by approximately 70 masked persons from 10:30 p.m. to around 5 a.m. In the “breaks” between beating rounds, the detainees who could still stand up had to pick up glass pieces, pebbles, etc. All the beaten detainees were taken — some were carried in blankets! — in other cells than those they had been taken from. Few of them made it to the surgeries to receive medical care and even fewer to the penitentiary hospital, located next to the penitentiary. Ilie Ghita and some of the other detainees lodged complaints with the Military Prosecutor's Office, denouncing the inhuman and degrading treatment they had been subjected to. They identified the representatives of the DGP and of the penitentiary who had directly coordinated the repression: Colonel Stroescu (DGP), commander Parjol (Bucharest penitentiary), Colonel Olteanu (penitentiary hospital). Ilie Ghita mentioned the names of the detainees who had lodged complaints with the Military Prosecutor's Office and of those willing to talk openly about the events.
Following the discussions with Ilie Ghita, the APADOR-CH representatives went again to the Bucharest penitentiary and penitentiary hospital on 19 November 1997. The fragments of the APADOR-CH report relevant for the February 1997 repression are quoted below:
a) Viorel Vasile (nicknamed Jaga), the Bucharest penitentiary hospital
“The detainee is one of the victims of the brutal repression of the rebellion which took place on 23 February 1997 at the Bucharest penitentiary, and one of the few who took the courage to complain openly about it.
According to Viorel Vasile, on the evening of 23 February 1997, a group of masked persons stormed into his cell (Room 43, Section III), beat savagely all the inmates with wooden clubs (either rounded or with sharp edges) and truncheons. Shortly afterwards, several of the masked people got back and called three names from a list. Viorel Vasile was one of the three. They were dragged along the hall, between two rows of masked people who hit them again. Either in the room or while he was being dragged out, Viorel Vasile had a leg broken. The fracture was confirmed at the medical office. Viorel Vasile was sent back without any medical assistance. He was beaten again by masked persons and then fainted. He was taken to another Room (86, Section V) and had the leg cast in plaster as late as 27 February. About one week later, when he was brought in front of a commission (probably the Senate Commission), some of the penitentiary staff took off his cast and asked him ‘to keep his trap shut,’ which Viorel Vasile refused to do; he told the commission about the whole show of force. The detainee identified Colonel Stroescu from the DGP, the former commander of the penitentiary — Mr Parjol — and Colonel Olteanu, who worked at that time at the penitentiary hospital, from where he was transferred to the penitentiary in April or May 1997. Viorel Vasile lodged a complaint with the Military Prosecutor's Office, but up to that point had received no answer and had not been heard. As far as he knows, Viorel Vasile is the only left in hospital of those beaten on 23 February. The others, hospitalized at various points, had been either sent back to the Bucharest penitentiary or transferred to other penitentiaries in the country.”
b) George Nastase Bobancu, Bucharest penitentiary
“He was part of the group of detainees beaten on the night of 23/24 February 1997. He recounted that on the evening of 23 February he was taken out of his cell (Room 90, Section V) to the arrival point. Several detainees were placed in each arrival room, where they were forced to lie down on the concrete floor. Bobancu was placed in the same room with 6 or 7 other detainees. They were driven out into the yard after nightfall and beaten until 5 a.m. According to George Nastase Bobancu, approximately 50-60 detainees were beaten by about 70 persons, very few of which were not wearing masks. Amongst them, Bobancu identified Stroescu, Baditoiu, Parjol and Olteanu. The detainees were beaten with clubs (either round or with sharp edges) — which seemed to be table and chair legs, manufactured in the penitentiary workshop — with truncheons, punched and kicked.
George Nastase Bobancu, a former circus artist, with a very robust body, said his sternum was broken and that he was repeatedly hit all over his body. Finally, he was carried in a blanket first to a cell and later on to the surgery where he spent about two weeks. Brought back to a cell in the penitentiary (No. 109), he was punished by six months of restrictive treatment (he was withdrawn the right to receive parcels, visits, mail, etc.). After 15 days, he was hospitalized at the Bucharest penitentiary hospital until mid-October. In the period spent in hospital, he was not granted any specialized assistance for the sternum fracture. Moreover, he was permanently told ‘to see to his business, because nothing was wrong with his sternum.’ George Nastase Bobancu's chest still ached at the time of the APADOR-CH visit. In May, the detainee lodged a complaint with the Military prosecutor's Office about the February 1997 repression.
Brought back to the Bucharest penitentiary, he was placed again under restrictive treatment; the second officer in command explained that ‘the period spent in hospital is not subtracted from the six‑month punishment.’ At the time of this visit, George Nastase Bobancu was detained in a very small room (604, Section VI, restrictive treatment), with 14 other inmates, in tiered beds on three levels.”
1. Viorel Vasile's and George Nastase Bobancu's accounts on the 23/24 February repression of the Bucharest penitentiary rebellion is similar to Ilie Ghita's former account. The three said they had lodged complaints with the Military Prosecutor's Office about the inhuman and degrading treatment they had been subjected to, but only Ilie Ghita was summoned for declarations. APADOR-CH has learned about three other detainees — Florin Mergescu, Amet Metin and Gigi Constantinescu (nicknamed ‘Boieru’ — the Boyard) — who lodged complaints with the Military Prosecutor's Office. It seems that Amet Metin was contacted by a military prosecutor.
It should be mentioned that all the persons APADOR-CH talked to stated that during the one week peaceful protest, the detainees were encouraged by the penitentiary staff, who told them several media representatives were present in the penitentiary;
2. Other detainees were also subjected to the same brutal treatment applied when detainees were punished, but they are afraid to talk;
3. The intervention of the penitentiary staff to settle the protest was disproportionate in the first stage, when they stormed into the cells by force, beat the detainees and even resorted to tear gas, although the detainees' protests never acquired violent accents;
4. The intervention of penitentiary staff in the second stage was completely unjustified, having a punitive character;
5. According to all accounts, the ‘selection’ of detainees who were beaten all night long was made function of their personality (their influence on the other detainees, the way they expressed themselves, etc.) and of the potential animosity between them and the penitentiary staff;
6. According to Ilie Ghita, Viorel Vasile and George Nastase Bobancu, between the rounds of beating on the night of 23/24 February the detainees — many of which could hardly stand up, were forced to ‘clean’ the yard by gathering pebbles, glass pieces, etc. They were subjected to the same degrading treatment the following days;
7. The lack of medical assistance or the doctor's delay in granting it is impossible to justify and can be equated with an inhuman treatment.
APADOR-CH sent the complete reports on the two visits to the Bucharest penitentiary and penitentiary hospital, as well as to the General Directorate of Penitentiaries (DGP), the Minister of Justice an the Military Department of the General Prosecutor's Office.
It is noteworthy that one of the direct participants in the punitive action carried out on the night of 23/24 February, identified by several detainees — Colonel Olteanu — has been transferred from the penitentiary hospital to the penitentiary!
It is also worth mentioning that a Commission of the Senate made their own investigations regarding the events occurred at the Bucharest penitentiary on 23 February and the following night. However, judging by their report, they did not reach the conclusion that the detainees had been subjected to a degrading, inhuman treatment.
The Military Department of the General Prosecutor's Office with the Supreme Court of Justice informed APADOR-CH by means of registered letter No. 59/P/1997 of 19 December 1997 that:
“A no indictment decision was pronounced by means of a resolution of the military prosecutor, because it was acknowledged that the penitentiary staff intervened to restore peace and order in accordance with the legal regulations.
The staff used force only after all non-violent means had been exhausted and the action was carried out in accordance with Framework-plan No. 40710/21.02.1997, approved by the State Secretary Dorin Clocotici, which provides for what measures to be enforced and in what manner whenever group violations of internal regulations occur.”
The association considers this decision totally unsatisfactory and in obvious contradiction both with the provisions of the Romanian Constitution and international human rights documents ratified by Romania, part of the domestic law. APADOR-CH urged the Military Department of the Prosecutor's Office to order that the investigations relating to the repression of the Bucharest penitentiary detainees' protests be resumed and completed.
B. GENERAL ASPECTS
Overcrowding continues to be one of the most serious issues in the Romanian penitentiary system. As during the previous years, it continues to be due to the levity of prosecutors in issuing pre-trial detention warrants (up to 30 days) and of judges in extending them for successive 30‑day periods. The Constitutional Court has decided that a judge may only extend an arrest warrant for 30 days, irrespective of the stage reached by the criminal trial. In other words, a person detained on remand on the basis of a warrant issued by a prosecutor has the right to have his/her situation analyzed once every 30 days by a judge, who must decide if deprivation of liberty is still justified. According to the Constitution, the decisions of the Constitutional Court are legally binding.
At the beginning of 1997, the Ministry of Justice suggested to the Government to issue an emergency ordinance in order to give up the obligation instituted by the Constitutional Court. Therefore, the Ministry of Justice tried to determine the Government to issue an emergency ordinance which would have withdrawn the minimal guarantee granted to persons deprived of liberty on grounds that it was discovered that the practice required by the Constitutional Court was the exception rather than the rule in the penitentiary system. In March 1997, (incomplete) statistics of the DGP showed that approximately 10,000 defendants whose criminal suits had reached various stages did not enjoy this guarantee.
At the end of its first 1997 session, the Parliament passed a law by which some crimes were amnestied and some sentences pardoned; consequently, about 2,000 detainees were released. This measure, however, could not solve the issue of overcrowding. The new Rahova penitentiary, located in the capital, which became operational in the fall of 1997, simply took over some 600 detainees of the over 3,000 detained at the Bucharest penitentiary (located at about 14 km from the city).
During its visits to penitentiaries in 1997, APADOR-CH remarked that Bistrita was the only penitentiary not faced with overcrowding. In most prisons, detainees often sleep in twos in the same bed or three in two beds, in tiered berths on three or four levels. Thus, very little room is left. Under these circumstances, detainees who do not work (because there is nowhere for them to work or they are temporarily unfit to) can only sit or lye in their beds for 23 hours a day (the daily walk takes half an hour up to one hour, function of the walking area of the penitentiary). Detainees also eat in their cells, as there are no separate mess halls. In several penitentiaries — Bistrita, Iasi — separate areas have been created for some detainees (especially women) to be able to eat in more decent conditions.
Detainees receive newspapers — in most cases not enough for the high number of inmates — and have access to libraries, but most are poorly supplied. There are also TV and radio sets, most of which belong to detainees; only few are provided by penitentiaries. Penitentiaries also organise literacy courses (1st to 4th grade in some cases, 1st to 8th in others), but all these activities take too little of the detainees' time and are far from preparing them for life after release. Under these circumstances, it is obvious that stress is laid on the punitive character of detention; the educational side is left on a much lower level.
b) Religious assistance
Each penitentiary has a full-time orthodox priest employed by the DGP. Without questioning his potentially beneficial role in the detainees' moral rehabilitation, APADOR-CH noted that in some penitentiaries the priest is perceived as a “man from within the system,” which caused suspicion and led to the detainees' refusal to confess. Most penitentiary commanders say that the representatives of other denominations are welcome. However, these have to receive first an approval from the DGP, then to talk to the orthodox priest; in some penitentiaries, only the denominations acknowledged by law by the Romanian state are allowed. At the Gherla penitentiary, the orthodox priest attends all the meetings of other denominations' representatives with the detainees, which actually amounts to an interference in their privacy and a violation of their freedom to practice a certain religion, as the presence of the orthodox priest to these practices is a pre-requisite.
The most serious violation of religious freedom in the penitentiary system is that it is forbidden to pass from one denomination to another. The commanders argue that a person deprived of liberty has a specific mental state which does not allow him/her to make a right choice. Some of the orthodox priests APADOR-CH talked to declared that the representatives of other denominations try to “entice” believers by bringing them small gifts or doing them small favours. APADOR-CH does not understand why the priests strive to keep in their “flocks” those detainees who wish to join another religion, irrespective of their reasons. The Romanian Constitution guarantees freedom of conscience under Art. 29, which involves each one's freedom to choose their religion freely, irrespective of whether they are in a calm or a tough period of their lives.
c) Insufficient funds
This reason is very often invoked by penitentiary commanders, although some measures meant to improve detention condition require minimal expenses if any. APADOR-CH has constantly suggested that more time be allotted for physical exercise. The shortcomings related to lack of space or difficulties in providing the necessary guards can be solved with goodwill and respect for the human being. The association also insisted that a more consistent link between detainees and the world outside be ensured. The limits established by regulations (a visit every two months for multi-offenders, one a month for first-time offenders, four a month for juveniles, etc.) represent a barrier to the detainees' integration in the society after release.
Moreover, any association or foundation willing to do something for the social reinsertion of former detainees should be encouraged rather than subjected to bureaucratic formalities which may discourage it.
APADOR-CH remarked that efforts to improve detention conditions are made, even if money is scarce, in penitentiaries where there is a genuine concern for detention conditions (Bistrita, Poarta Alba, Iasi, Bacau). On the other hand, APADOR-CH would like to point out to the situation at the Galati penitentiary where, after the old prison (built in the 19th century) was demolished, the prison management had to move all the detainees in the unfinished new building (which is also overcrowded) because they ran out of funds to build the second wing.
The diet remains a problem. What is called meat actually consists of bones, hooves, tails and lard, although many penitentiaries have their own animal farms. The DGP establishes the number of calories per day and per categories of detainees; these norms are unique and compulsory for the whole penitentiary system. APADOR-CH suggested that the DGP should establish only the minimal share of calories a day, leaving it up to each commander to improve the menu function of the local possibilities.
Hygiene is unsatisfactory, with very few exceptions. In most penitentiaries, cells are provided with one or two toilets and sinks with three or four taps, which is insufficient considering the high number of detainees. Inmates are still entitled to a weekly shower, but the time allotted for each cell (20-30 minutes) is too short, given the high number of detainees. Beds, sheets, blankets are old and worn out.
d) Medical assistance
APADOR-CH repeatedly talked to penitentiary commanders and to the doctors working in the penitentiary system about the possibility to provide detainees with condoms. It is obvious and it would be a hypocrisy to deny that inmates have sex. During the visit to the Bucharest penitentiary hospital, the association's representatives learned that two detainees had recently tested HIV positive. The arguments of penitentiary commanders, according to which providing inmates with condoms would be equivalent to “encouraging such practices” can be easily countered by the genuine risks of HIV and V.D. contamination. Taking into consideration the costs involved in treating each detainee infected with HIV, gonorrhoea, syphilis, etc. and the cost of condoms (which can also be supplied by means of donations), it appears clearly that the main problem at stake here is the mentality, not the money.
Medical assistance is far from normal standards. In most penitentiaries, there are too few doctors. This situation upsets the detainees who feel they are either ignored or badly treated by doctors. It is obvious that a doctor who examines tens of patients or more every day cannot give the necessary attention to each and every one of them. It is true that some detainees pretend to be ill in the hope to be transferred either to the Bucharest penitentiary hospital or to a regular hospital or released on health ground. There are also detainees who maim themselves to attract attention to the length of their trials or for various other personal reasons. Each penitentiary should employ at least one psychologist, who could both help lower the number of detainees who maim themselves or go on hunger strike and prepare them for life after release.
Like the priests, the doctors are also employees of the DGP. As the penitentiary system is still a military structure where the superiors make the rules, fears have been expressed as to how doctors and nurses discharge their duties. The first and most flagrant example that comes to mind is that of the repression at the Bucharest penitentiary, which was carried out in the presence of a doctor. The medical care which should have been granted to the victims was either delayed or inappropriate. APADOR-CH considers that the doctors and nurses from the Bucharest penitentiary and the Bucharest penitentiary hospital tried to minimise the results of the intervention carried out on 23 and on the night of 23/24 February.
Another aspect is related to the medical records issued for each detainee brought to penitentiary. As far as the association knows, none of the medical records of persons brought from police lock-ups mention signs of violence as a result of the treatment undergone in the police stations. Moreover, in all penitentiaries, the commanders and doctors maintained without exception that there had not been cases of persons brought from the police to penitentiaries with marks of beating. One might conclude that no police officer has ever hit a person transferred from a police lock-up to a penitentiary. However, many defendants/detainees declare quite the contrary.
APADOR-CH suggests that, similarly to the penitentiary priests, the doctors and nurses should no longer be employed by the DGP, in order to avoid all suspicions about the way they do their job.
e) Punishments applied to detainees who violate penitentiary regulations
As noted in the previous years, no copies of the penitentiary regulations were posted in cells in 1997. There are a few exceptions, especially after the DGP issued a guide for detainees. Without going into details about some of the texts it contains — which leave enough room for improvement — the guide is one step forward towards informing detainees of their rights and duties.
However, in the absence of such guide posted in each room, it is hard to believe that persons deprived of liberty will remember all the rules they are read upon arrival at the penitentiary. The punishments for failure to observe the regulations are as follows:
— withdrawal of one or more rights (parcels, visits, mail)
— simple isolation (up to 15 days) or severe isolation (up to 10 days);
— restriction (3 to 12 months; deprivation of all rights, including the right to watch TV or listen to the radio);
— transfer to the maximum security section (where detainees do not have the right to work, security is higher; the measure can be taken/called off by the penitentiary commander for any length of time).
The type of punishment is established by the penitentiary commanding officers on the basis of a punishment report drawn up by wardens. The issue at stake here is to what extent a detainee charged with infringement of prison regulation can defend him/herself and how. Even if — as some penitentiary commanders said — the detainee is always heard, it is his word against the warden's. After the form of punishment is decided, the detainee is theoretically speaking entitled to lodge a complaint with the Military Prosecutor's Office, which may decide to conduct an investigation. The problem is that all detainees know their mail is read and they are convinced that a complaint against the staff could hardly reach its destination. Consequently, most prefer to be punished even if they are innocent and the punishment report weighs a lot when they become eligible for parole.
It should also be mentioned that as soon as the wardens dislike what a detainee tells the other inmates, they will immediately draw up a punishment report (see below the case of Dan Ziegler from the Bistrita penitentiary and the case of Mihai Prundaru, who secretly sent a complaint to APADOR-CH for which he declared he had been beaten and punished by severe isolation at the Gherla penitentiary).
f) The right to defence
Even though it concerns the penitentiary system to a small extent, one should analyze how the constitutional right to defence is observed, as — according to official figures — around 33% of the penitentiary population is detained on remand. After many visits to penitentiaries, APADOR-CH considers that actually more than 50% of the penitentiary population are detained on remand. The difference from 33% to 50% results probably from the fact that in the opinion of penitentiary officials persons sentenced by a first instance are no longer detained on remand. The legal principle according to which a person is regarded as innocent until found guilty by a court that issues a final decision in this sense is therefore ignored. All the statistics APADOR-CH had access to contained a separate heading “sentenced by a first instance.”
Most persons detained on remand do not have the financial means to hire a lawyer, so they content themselves with ex officio lawyers. With few exceptions (Bistrita, for instance), ex officio lawyers do not go to talk to their clients in penitentiaries, make no efforts to actually defend them and usually ask for “clemency” for the defendants instead of pleading their case. In quite a number of cases defendants never get to talk to their lawyers. When they do, this happens either in the registrar's office, in the presence of other detainees and wardens, or in the court hall, before or during the trial. Undoubtedly, material incentives are minimal for ex officio lawyers (up to lei 150,000 irrespective of the length of trial, no travel expenses, etc.). In order to prevent the right to defence from remaining mere words on paper, the Bars and the private firms should establish a system of incentives for lawyers willing to take up such cases.
Penitentiaries could contribute to the observance of this right by means of several measures involving minimal expenses: a) allowing lawyers to talk to any person detained on remand/client, not just to the one he was appointed to; b) allowing all detainees to call by phone any lawyer, as many times as they wish. This would suppose setting up pay phones in each penitentiary and allowing the detainees to keep either change or phone cards on them at all times. (There are few pay phones in the penitentiary system, for instance in Bistrita, but detainees may call only upon the approval of the commanders, who also order that they receive the necessary change. Detainees are not allowed to keep money); c) ensuring privacy of the lawyer-client relationship. Privacy is already ensured in some penitentiaries but, as it is not officially regulated, it is up to commanders whether to grant it or not. This would mean that there should be no penitentiary staff within hearing distance; they should only be able to see what happens.
g) Social reinsertion
Apart from local NGO initiatives facilitate readjustment of former detainees to live at large, there is no coherent nation-wide programme in this sense. Such program — which should be drafted, conducted and financed by the state — is a must to avoid relapse and for the social reinsertion of former detainees. They are, practically speaking, punished three times: once by court decision, deprivation of liberty being a punishment for anti-social deeds; secondly by the inhuman conditions they endure in the penitentiaries where they serve their sentences; thirdly, by the society's reluctance to accept them upon release. A former detainee risks to be left without home and family (if the spouse filed for divorce or the other members of the family reject him), without job, because of the criminal record, in a world where unemployment is a matter of general concern. There are no social workers to help detainees solve important social and family matters while imprisoned. Under these circumstances, relapse is quite frequent. The probation officer could represent a solution. Until the institution of the probation officer is created by law and passed by the Parliament, all efforts made by local or national organisations to support the social reinsertion of former detainees should be welcome.
C. ASPECTS FROM PENITENTIARIES. INDIVIDUAL CASES
1. The Bucharest penitentiary hospital (see also para. A “Protests”)
1.1. The 27 February 1997 visit
At the time of the APADOR-CH visit, the hospital accommodated 874 detainees (52 of them women); the maximum capacity of the hospital is 1,500.
As during the previous visits, the TB section was the most crowded — 346 patients.
As for the other sections, the patient distribution was as follows:
— psychiatric department — 175 patients
— surgery department — 84 patients
— medical department — 76 patients
— V.D. and infectious department — 42 patients
— nursery — 23 patients
The medical staff consists of 32 doctors and 120 nurses.
Detention conditions had not changed since 1996 in the wards visited by APADOR-CH (TB department — Room 105: 58 patients in 55 beds; Room 109: 23 patients in 25 beds; V.D. and infectious department — Room 410: 6 patients in 13 beds; Room 415: 10 patients in 13 beds) with regard to the equipment and hygiene: old mattresses and blankets, worn out uniforms, rudimentary facilities — one or two toilets and a sink with three or four taps for each room. However, some rooms were looking better than others; for instance, there were substantial differences between the T.B. and V.D. and infectious wards; in the latter, each room is provided with its own shower and the number of patients is equal to or smaller than the number of beds, which makes patients' life bearable. On the other hand, big differences can occur even within the same section. Such is the TB department, where some rooms are overcrowded while in others there are more beds than patients. Obviously, the distribution of patients according to the stage of their illness is justified from the medical perspective, but a more judicious management of available room could solve both the medical aspect and the distribution of patients in each ward.
Some wards receive two newspapers daily (“Curierul national” and “Jurnalul national”), others, only one every two or three days. The patients in Room 105 — TB department — complained about the improper diet (beetroot soup, powdered eggs, lard, unwashed cabbage, etc.) and about the fact that they had not been taken out for walks for three months (Colonel Olteanu declared in this sense that he did not have enough staff to watch them!!). The patients also declared they were denied access to the hospital library and that they were not allowed to wear anything but undershirts (no T-shirts or cardigans).
The TB patients' medication consists of synerdol, pyrazinamide, etanbuthol, hydrazide, injectable streptomycin, but the lack of fresh air and the overcrowding interfere with their healing.
Dr. Abagiu from the V.D. and infectious department said that the most common diseases were syphilis, psoriasis and hepatitis. The doctor also declared that he had two HIV positive patients, one of which had already developed AIDS (he was discovered in September 1995, following a voluntary test). The two HIV positive detainees were kept together with four minors and the ward chief. Asked if the other detainees were aware of their mates' disease, the doctor answered “in a way”(!).
1.2. The 19 November 1997 visit
a) Detention conditions
Overcrowding remained an important problem, although two other penitentiary hospitals have become partly functional (Dej and Targu Ocna).
The APADOR-CH representatives visited the psychiatric ward, with 114 patients (95 men, 7 women and 12 juveniles). Part of the detainees were there for expert psychiatric examinations.
The doctors said that the most common mental problem consists in personality disorders, without violent outbursts. As a matter of fact, there are no separate rooms for violent patients and no straight jackets — the only method used to immobilize the few trouble-makers is to handcuff them to the beds.
A problem not clarified yet is the way the diagnosis of low discernment is established. According to the penal legislation in force, lack of discernment eliminates penal accountability. The concept of “low discernment” — disputable in itself — does not eliminate penal accountability and, if sentenced to imprisonment, the person will have to actually serve that term in prison. The APADOR-CH representatives met in many penitentiaries in the country detainees with obvious mental disorders, who should have been hospitalized and treated in specialized institutions instead of being kept in prison.
There were more patients than beds in the rooms visited (201, 203 — juveniles and 204). For instance, in Room 201 there were 9 detainees and only 7 beds, in Room 203, 11 detainees and 8 beds and in 204, 20 patients and 16 beds. Rooms 201 and 203 were provided with one toilet and a lavatory with three taps each, while in 204 there were two toilets and a lavatory with 4 taps. It is obvious that these facilities are hardly appropriate to ensure the detainees' personal hygiene. In Room 204, the APADOR-CH representatives found a 22 years old man arrested for use of drugs (heroine). He could hardly stand and made obvious efforts to speak, although he made perfect sense. He was treated only with sleeping pills, as the hospital was not provided with methadone (the medicine used as a treatment for drug addicts). The APADOR-CH representatives consider that his place would be in a specialized medical institution rather then a penitentiary, in order to receive both the necessary medication and the medical assistance he needs to recover. In this context, one must mention a flaw of the Penal Code, which punishes by the same term in prison the “production, possession or any other operation related to the flow of narcotics or toxic substances” (Art. 312), without differentiating between the danger of personal use and drug traffic, for instance.
Some of the patients complained about bad food (a dish in the morning, a soup and a hot dish with more lard than meat for lunch and tea and biscuits for dinner).
The daily walk takes half an hour, but only when the weather is fine. The patients spend the rest of their time in the rooms, watching TV (provided there is a TV set in that room) or listening to music (if they have a radio or a tape player).
2. Mandresti (Focsani) penitentiary (the 8–9 April 1997 visit)
a) Structure of detainee population
At the beginning of April 1997 there were 1,318 persons in the penitentiary. 732 — that is, more than a half — were detained on remand. 708 of them were men (out of whom 103 were youngsters between 18 and 21 years of age and 64 juveniles) and 24 women (20 adults, one youngster and three juveniles). 84 of the 686 detainees whose final sentences had been pronounced were petty offenders (83 men and one woman).
Overcrowding remains the most important issue. Actually, this holds true for the whole Romanian penitentiary system. Statistics at the Mandresti penitentiary show that 55.5% of the detainees are detained on remand, which raises again the question of the prosecutors' levity in issuing pre-trial detention warrants which are then extended — with the same levity — by judges.
6.4% of the detainees were sentenced for misdemeanours on the basis of Law 61/1991, according to which unpaid fines are converted into terms in prison. In some of these cases, the conversions had been operated overlooking the two decisions of the Constitutional Court of October and November 1995 (when an unpaid fine is turned into a term in prison, one must take into consideration the amount of the fine provided in the initial version of Law 61/1991 instead of the amounts increased by governmental ordinance in August 1994), which means that the amount of the fine was divided by lei 300/day. In some other cases, the fine was divided by a coefficient established arbitrarily (lei 1,000/day, lei 1,500/day, etc.). Since October 1996, according to the amendments to Law 61/1991 passed by the Parliament, the amounts of the fines have been divided by lei 10,000/day to calculate the terms of contraventional prison. Still, some courts have continued to divide the amount of the fine by lei 300/day or by a coefficient established ad-hoc. Such an example is the case of Constantin Avram, who was fined lei 50,000 (police report No. B-2443160 of 17 June 1996). The unpaid fine was converted into 33 days imprisonment; therefore, the Buzau Court decided to divide the amount of the fine by lei 1,500, as provided neither by the old nor by the new calculation system.
b) Detention conditions
According to the data provided by the penitentiary physician, nine penitentiaries have been included in an HIV testing programme. At Mandresti, 90 detainees had been tested for HIV. They had been explained what the test was about, what they could expect, etc. The medical staff stated that all the detainees had been willing to have the test performed. It seems that for financial reasons this HIV testing programme has been interrupted.
The diet had improved as compared to August 1995 when the APADOR-CH representatives first visited the penitentiary. The daily ratio of calories was 2,855/day.person plus supplements for various categories (juveniles, working or sick detainees, etc.). The bread is made at the penitentiary's own bakery and each detainee's share amounts to approximately 600 g/day. The animal farm was well equipped and tended, same as the vegetable garden and the greenhouses. Both the farm and the garden provide an important share of the food for detainees and the penitentiary staff. Still, the food continued to contain little meat and much lard. There were only 5 packs of butter in the pantry, although the APADOR-CH representative was assured that each detainee received butter or margarine daily.
Detainees may make subscriptions to any newspaper they choose. However, few have the money to subscribe and usually there is only one copy for each room (“Adevarul,” “Evenimentul zilei,” “Vocea Romaniei”).
Unfortunately, hygiene remained precarious. There were only two toilets for each room, taps were broken an detainees were entitled to only one hot shower a week that takes only a few minutes. However, pest-control was performed more often.
One of the most difficult problems is to find jobs for detainees. They work several months a year at the forest inspectorate, being paid approximately lei 200,000 — lei 250,000/month, 10% of which they can use as they wish (shopping, newspaper subscriptions, etc.).
c) The state of cells
In Room 19, designed for the obligatory 21‑day quarantine every detainee has to go through, irrespective of whether they are detained on remand or have received their final sentences, there were 49 beds and 51 detainees. For some of the detainees this is the first contact with penitentiary life and the overcrowding and cohabitation — be it even brief — with multi-offenders can have a negative impact on them.
Room 4 (multi-offenders) had 47 beds and 55 detainees. In Room 39 there were 37 beds and 59 detainees; practically, they were sleeping by two in a bed. It is interesting how detainees are allotted the beds: the penitentiary staff decide who is going to sleep where. Younger detainees are assigned to the third rank of beds; if one is older or sick, one would be given the lower bed, etc. The question is how detainees are paired up to sleep by two in the same bed.
Room 41 (youngsters between 18 and 21) had 37 beds and 62 detainees, 20 of which had received their final sentences, while 42 were in pre-trial detention. The APADOR-CH representative was explained that the penitentiary organises monthly youth teams to work in the garden and that it is very difficult to reorganise these teams all the time. It is obvious that a solution should be found to separate detainees in pre-trial detention from those already sentenced, as the regulation requires.
d) Special cases
Didina Turcitu, born in 1969, domiciled in Braila, got married and moved to Buzau with her husband without the legal forms. By sentence No. 796 of 24 April 1996, she was sentenced to one year in prison on the basis of Art. 208 para. 2 of the Penal Code (“Any kind of energy with economic value shall be deemed as an asset...”) in conjunction with Art. 224 para. 1 of the Penal Code (“Theft from the public property shall be punished by prison from 6 months to four years; qualified theft shall be punished by prison from one to 7 years). In fact, Didina Turcitu stole electric power worth lei 226,000. It must also be mentioned that she had no previous criminal record, therefore she was a first time offender. A young woman aged 28, with an unemployed husband and a 8‑year old child was sentenced to prison for a deed that poses no threat for the society. This example is one more argument that pleads for the modification of the substance of the Penal Code and Penal Procedure Code. Such a case should have been solved by sentencing Didina Turcitu to community work instead of deprivation of liberty. Even under the present circumstances, it would have been more natural for Didina Turcitu to receive a suspended sentence, as she fulfilled all the three conditions required by Art. 81 of the Penal Code.
Marian Ionel Gheorghiu was sentenced to a 6‑month suspended term in prison for theft in 1995. In 1997, he was brought to the Mandresti penitentiary with a pre-trial detention warrant for having been found by the police with a sackful of Coca-Cola lids. Inquiries revealed that he had got the sack from two people working at a private company in Focsani in order to sell them. One of the two persons who had given him the sack was issued a no indictment decision, the other is tried at large. Marian Ionel Gheorghiu risks to be sentenced to 3 to 15 years for qualified theft. He also has serious psychic problems; he would have been more fit for a mental institution instead of a penitentiary. Moreover, his deed poses no threat to the society.
3. The Galati penitentiary (the 10 April 1997 visit)
a) General aspects
The old penitentiary — built in 1880 — was more than half demolished. The new penitentiary will have two wings; only one has actually been built. Despite the intention to provide better detention conditions, overcrowding remains the most critical issue. State budget funds are not enough to erect the second wing, which means that all detainees are packed in the 59 rooms of the new building. At the time of the visit there were 1,156 detainees in 758 beds. Approximately 350 detainees were detained on remand and 159 were petty offenders. Rooms have 12 beds each and a bathroom with a toilet, a sink and a shower. Even if there were to be only 12 detainees in each room, it is hard to believe that the toilets and washing facilities are enough to ensure a normal hygiene. But under the present circumstances, with the number of detainees exceeding by far the capacity of rooms (Room 13 — 22 detainees; Room 3 — 26 detainees; Room 205 —20 detainees; Room 206 — 17 detainees, etc.) this is actually impossible.
Due to the building activities inside the penitentiary, the walking area is reduced to a very small yard; therefore, detainees are taken out for walks once every two or three days. The detainees — both those in pre-trial detention and those whose final sentences have been pronounced — wear the striped uniforms, sometimes visibly worn out. These uniforms are so much the more striking by comparison with the Mandresti penitentiary, where strong efforts have been made to replace the striped uniforms with less degrading outfits.
b) Special cases
Room 206 accommodated 17 persons sentenced to contraventional prison by conversion of unpaid fines. All the offenders complained that the courts had divided the amount of the fines by lei 300/day. One detainee — Bebe Robert from Tecuci — had to serve a term of over 400 days for three unpaid fines (lei 100,000, lei 50,000 and again lei 50,000). This is another example which proves the extremely repressive character of Law No. 61/1991. It is certainly obvious that, by turning unpaid fines into terms in prison, the state does not retrieve the money, it spends money with the detainee who must enjoy a minimum of food and comfort, and the educational effects of this kind of punishment are actually nil.
4. The Braila penitentiary
4.1. The 4 June 1997 visit
a) Detention conditions
The penitentiary has 960 beds, which exceeds by far the initial capacity of approximately 650. According to the data provided by the penitentiary management, on 4 June the penitentiary held 1,050 detainees, almost half of them in pre-trial detention. 26 women, 2 juveniles included, were in various stages of criminal proceedings, awaiting to be transferred to the Targsor penitentiary after the pronouncement of their final sentence. 22 petty offenders were serving terms either as a result of unpaid fines turned into terms in prison or directly, on the basis of Law 61/1991. The penitentiary is staffed by less than 200 people.
The second officer in command, Colonel Dumitru Ursan, said that there had been no trouble at Braila during the penitentiary uprising started in Bucharest and spread to other penitentiaries in the country. The detainees followed the developments on television but took no action.
When new detainees arrive from police lock-ups, they are examined by the penitentiary physician, who decides whether they can be admitted, function of their physical state. It appears that if they exhibited clear signs of violence, they would be returned to the police for the appropriate medical treatment.
About half of the total number of detainees work, especially in agriculture. Their average wage amounts to lei 300,000/month, but the detainees actually get only 10% of what they earn. Unfortunately, it is almost impossible to find work for detainees off season. Hence, their opportunity to qualify for a useful trade upon release are practically nil. No social reinsertion programmes are provided for former detainees; actually, this is a general problem all over the country.
Medical assistance is provided by three doctors (two physicians and a dentist) and four nurses. The penitentiary works very well with the Braila municipal hospital, where emergencies or cases requiring specialised care are transferred. Detainees who have AIDS cases in their families as well as to those with symptoms such as lasting diarrhoea, rashes that resist medical treatment, etc. are testes for HIV. Both the doctors and the nurses said that each detainee was informed what kind of test this was, what HIV/AIDS means, which are the potential consequences of a positive result.
With regard to religious life, the Braila penitentiary has a full-time employed Orthodox priest. The representatives of the Adventist denomination also have access to the penitentiary each Wednesday. The second officer in command declared they would not prevent representatives of other denominations from visiting the penitentiary, if persons with other religious orientation were detained in this penitentiary.
The kitchen was damp because of the faulty airing system. The meat and meat by-products seemed sufficient on paper (108 kg meat, 49 kg by-products and 66 kg lard). However, the soup and pilaff contained few bits of lard and several bones. According to the management, the daily food costs about lei 5,000/detainee. This is little money, but the Braila penitentiary — as most penitentiaries in the country — has its own animal farm and vegetable garden. Unfortunately, according to prison regulations, the excess cannot be used to improve detainees' diet or sold on the market in order to use the money for repairs. The only possibility would be to trade these products in kind with other penitentiaries, which requires the permission of the DGP.
Each floor is provided with a shower room with 9 showers. Detainees take a hot shower every week, according to the general practice in Romanian penitentiaries. Obviously, the time allotted for showering is too short to ensure a proper hygiene. This is so much more serious for the detainees working in workshops or in the field and who do not have the possibility to shower after work.
Another issue that was raised is connected with the detainees' clothing when they are brought to court. Although a decision of the Constitutional Court provides that persons in detention should be brought to court in plain clothes, except for cases when their clothing is in a poor state, the exception provided by the Constitutional Court has been turned into rule at the Braila penitentiary. It is true that detainees no longer wear striped uniforms, but the uniforms worn by all detainees when brought to instance makes them different from the others, which touches on the presumption of innocence.
As opposed to other penitentiaries, Braila keeps accounts relating to the validity of arrest warrants and, if the court (or the prosecutor) “forget” to fulfil this task, the penitentiary management informs them five days before the end of the 30‑day legal term.
b) Visit to detention rooms
Although there are only 90 detainees more than beds, overcrowding continues to be a problem, especially as the penitentiary was initially designed for 650 beds. The 310 supplementary beds were introduced either by reducing the free space in the rooms or by introducing a supplementary tier over the existing beds.
Women are detained in three rooms. In Room No. 26, 17 inmates shared 15 beds and a so-called “bathroom” consisting of a toilet and a sink. Women are supposed to clean the staff building which could potentially be regarded as a degrading treatment.
There were 14 beds and only 9 inmates in Room 47. According to the penitentiary staff, they were part of a well known gang from Braila and were kept separately because they had a feud with the members of another gang detained in the same penitentiary. The management decided not to allow these detainees, regarded as dangerous, to go out to work. Consequently, they can only take some exercise in the half hour allotted for the daily walk, Monday through Thursday. They remain indoors round the clock on Friday, Saturday and Sunday; their only pastime is to watch TV.
In Room 31 (young people aged 18 to 21) there were 20 detainees in 18 beds. As everywhere else in the penitentiary, this room was provided only with a toilet and a sink.
c) Individual cases
Constantin Negrei from Braila was sentenced to a 4‑year term in prison for theft from private property. Although his account was rather unclear, it turned out that despite the fact that he had no connection with the Vrancea area, starting October 1996 he had been transferred twice temporarily to the Focsani penitentiary where he was investigated by the local police for deeds of the same nature perpetrated in the county of Vrancea by unknown authors. Constantin Negrei — who was going to be transferred for the third time to the Focsani penitentiary at the time of the APADOR-CH visit — maintains that the Vrancea police “want to lay the blame on him for crimes committed by unknown authors.” The penitentiary staff, however, claim that this is a “trick” used by some detainees who want to be transferred to another penitentiary; they declare they committed crimes in that county, are transferred there for investigations and later on retract their declarations.
In Room 58, three detainees claimed they had first been arrested for breaking into a private house and then their charges have been changed to “robbery attempt.” The three state they are innocent. Laurentiu Toma, arrested on 3 February 1997, maintained he had been beaten by the police to admit to his deeds. The other two — Leonard Marcopol and Gabriel Hussein — complained both the police and Prosecutor Radu treated them in the same manner. The three applied to the Ploiesti Military Prosecutor's Office (Braila falls under the jurisdiction of this Prosecutor's Office) but there have been no inquiries in this matter so far.
4.2. The 1 October 1997 visit
a) Structure of detainee population
At the time of the APADOR-CH visit 1,055 persons were detained in the penitentiary, although initially the penitentiary had been designed to take in only 638; the capacity was increased to 979 by adding supplementary beds. The composition of the detainee population on ages, sexes and sentences was as follows:
— women: 25, out of which one was a minor sentenced by the first instance court;
— men: 1,030, 111 of them youth from 18 to 21 years of age; no juveniles;
— final sentences: 702 and 8 petty offenders (all sentenced to terms in prison from the very beginning);
— on remand: 353.
It must be noted that the penitentiary system also differentiates between detainees who have already been sentenced by a first instance court and those awaiting to be tried, due to a misinterpretation of the presumption of innocence.
The “meat by-products” to be used for the detainees' food were deposited in plastic barrels in the pantry. The “by-products” consisted of meatless bones. The mist was very dense in the kitchen, as the airing system was just being repaired. Lunch was different for the various categories of detainees: non-working — bean soup and a potato dish; working — vegetable soup and cabbage; diet menu (113 detainees) — vegetable soup and a potato dish. As in all penitentiaries, the first and second course looked almost the same, both consisting in a broth with various vegetables, pieces of lard and, from time to time, bits of meat. At the Braila penitentiary, diet food was cooked separately, which is quite unusual in penitentiaries, but the share of meat (100 g/detainee) consisted in pieces of fried lard, not exactly suitable for those with stomach or liver troubles.
c) Detention rooms
The two isolation rooms were provided with six and three beds respectively. At the time of the APADOR-CH visit none of the detainees was punished by isolation.
In Section I Room 3 there were 62 detainees in 40 beds, which means that about one third of them sleep by two. The beds are tiered on four levels, so that those sleeping on the upper berth could only lye down, as there is very little space left to the ceiling. As in the whole penitentiary system, each room has a chief appointed by the penitentiary commanding officers. In Braila, it is up to him, among others, to allot the beds. It is not so hard to imagine that there is “business” going on regarding these beds. In other penitentiaries, beds are allotted by non-commissioned officers, function of the physical state of each detainee, which sounds much more reasonable. The sanitary facilities consisted of two toilets and a sink with 6 taps, obviously insufficient for the 62 detainees.
In Room 8 there were 28 beds for 33 detainees; there was only one toilet and a sink with 4 taps.
None of the rooms had a partition wall to separate the toilet from the rest of the lavatory; thus detainees have to relieve themselves in the presence of other inmates.
The “classical” half an hour walk is the only exercise for non-working detainees. The ground floor is provided with one shower room with 18 showers. Detainees are entitled to one hot shower a week, as in most penitentiaries visited by the APADOR-CH representatives so far. Each detainee has only a few minutes to wash, which is to little to maintain a normal hygiene.
d) The right to defence
As in all penitentiaries visited so far, the issue related to lawyers, whose presence is essential in the various stages of trials, was raised. Few detainees can afford a lawyer. Even fewer of their lawyers come to the penitentiary. Most detainees are assisted by ex officio lawyers, who talk to their clients for several minutes in court, right before the beginning of court sessions or during it, with the judge's approval. The APADOR-CH representatives saw in various penitentiaries the lawyers' arguments, as recorded in the court decisions: “We leave it to the judge to decide,” “we ask the judge for clemency” for their clients, which can hardly be regarded as pleading for a defendant.
Obviously, there is a series of financial difficulties an ex officio lawyer can invoke: they are hired for lei 50,000 to 150,000 per case, irrespective of the length of trial; they would have to pay themselves to talk to their clients (the train fare or the petrol, hotel accommodation, food) and that would also mean postponing other files pending in court. But nothing can justify the lack of interest of ex officio lawyers in their clients' cases, which amounts to a violation of the right to defence. APADOR-CH believes that the Bar Association and the firms all over the country should analyze these situations and take steps to ensure the observance of the right to defence.
e) The relationship between persons placed under arrest and the police
As noted in other penitentiaries in the country, most of the Braila detainees are brought from police lock-ups. The ones APADOR-CH talked to complained about the way they and other detainees were treated by the police: they were beaten, threatened, intimidated in every possible way, in order to admit to the charges brought against them or to other crimes with unidentified authors. There are also cases of police officers who pose as “justice-makers” and punish the offenders arbitrarily. Few of those who were subjected to such treatments lodged complaints with the competent authorities. Most consider that such a treatment comes without saying, ignoring the fact that such methods are against the country's laws. APADOR-CH's opinion is that a minimal guarantee that the rights of persons held by the police or detained on remand are observed would be for the magistrates (prosecutors and judges) to ignore all declarations made before the police in the absence of a lawyer, be it even ex officio. Thus, there would be at least one witness from outside the police system who could calm down the police officer's zeal.
f) The case of Iulian Marian Stanciu
Born on 18 July 1973, Iulian Marian Stanciu was held by the police on 16 February 1991 and detained on remand at the Braila penitentiary on 21 February 1991. At the time he was arrested, Iulian Marian was still under age and attended a turning vocational school. He is one of the many who declared he was beaten at the police station. Charged with two crimes (accomplice to theft — Art. 208 Penal Code — for having bought a jacket he should have known had been stolen, and accomplice to robbery — Art. 209 Penal Code because, together with Marius Neacsu, pulled from the victim's head a hat worth lei 2,000), Iulian Marian Stanciu was tried and sentenced to two and a half years for the first crime and to 3 years for the second (Decision No. 1859/29 October 1992, pronounced by the first instance). The two sentences were joined into a 3‑year term in prison.
Before the first instance pronounced its decision — which remained final — on 17 March 1992, a fight occurred in the room where Iulian Marian Stanciu was detained and one of the other inmates — Valentin Eftimie — died (date of demise: 10 April 1992). In fact, Valentin Eftimie, a newly arrival to the penitentiary, was obliged to fight Ion Florentin Gabriel, but after the fight ended it seems that the former continued to be beaten by other minors in that room, which allegedly led to his death as a result of brain trauma. Following the investigation conducted by the prosecutor, three detainees were prosecuted for “blows resulting in the victim's death”: Marius Neacsu, the room chief, Ion Florentin Gabriel, the one Eftimie had fought with, and Iulian Marian Stanciu, who constantly denied he had hit the victim. At that time, the Penal Code provided sentences of 3 up to 10 years for this crime (Art. 183). The Prosecutor's Office issued a pre-trial arrest warrant for the three defendants. It is noteworthy that Iulian Marian Stanciu had been the room chief before Neacsu and that he had a reputation as a “bad and tough guy” among the other inmates. Heard as witnesses, 21 of the 40 juveniles detained in the respective room declared that Iulian Marian Stanciu had also hit Valentin Eftimie after the fight was over. According to Stanciu, only 14 of the 21 were brought as witnesses in court and most changed their statements, saying that the prosecutor in charge of the investigation had forced them to blame Stanciu. This aspect is also mentioned in criminal sentence No. 11/7 February 1994 pronounced by the Braila County Court, which specifies that the change of statements was “irrelevant” for this case.
The Braila County Court decided to change the charges from “blows resulting in the victim's death” to “homicide” (Art. 174 para. 1) and sentenced the three to 15 years in prison each. The Court of Appeal agreed with this decision. During the appeal, the Supreme Court of Justice quashed the decision of the Braila County Court and sent the case back to the first instance. The appeal was scheduled for 19 November 1995, while the decision of the Supreme Court of Justice is dated 21 November 1995. It is hard to explain why the case was not tried again until 19 May 1997 when the first hearing was scheduled, therefore for 18 months. The three young men were detained on remand all this time, without having their warrants extended every 30 days by a judge, as provided by Decision No. 50/1995 of the Constitutional Court.
Iulian Marian Stanciu finished serving the initial 3‑year sentence in February 1994. Since 26 January 1993 he has been detained on remand for the second deed, which means that on 26 January 1998 he will have been detained on remand for 5 years, half of the maximum sentence provided for “blows resulting in the victim's death” as provided by the Penal Code at the time when he was sentenced. It should be reminded that he appealed the sentence pronounced on this charge and that his trial is pending at the Braila Court. Art. 140 of the Penal Procedure Code provides that “Pre-trial detention shall legally cease when it exceeds half of the maximum sentence provided by law for the crime one was charged with... if a first instance has not pronounced a sentence.” Given the fact that the Supreme Court of Justice quashed the first sentence (and the verdict reached at the appeal) and sent the case back to the first instance, the provisions of Art. 140 are applicable in the case of the three defendants.
Legally speaking, their situation is paradoxical, to say the least. Art. 37 of the Penal Procedure Code provides the following: “...the cases shall be regarded as joint if they are tried by the first instance.” Therefore, as Iulian Marian Stanciu had not been issued a final decision for the first deed (accomplice to theft and robbery) at the time when he allegedly committed the second (blows resulting in the victim's death), the two cases must have been joined and the higher sentence pronounced. As shown before, the maximum sentence for the crime provided under Art. 183 of the Penal Code at that time was ten years' imprisonment. Therefore, if he had been sentenced to 10 years, the sentence would have been joined with the first (3 years) and he should have served a ten‑year sentence. According to the provisions of the Penal Procedure Code (before the November 1996 modifications), Iulian Marian Stanciu would have been eligible for parole since January 1996, when he had served half of the sentence. He would have had a fair chance, because, after the March 1992 incident, he became an example of good behaviour, his penitentiary file being full of bonuses.
On 30 June 1997, Iulian Marian Stanciu asked the instance to be released on parole/under judicial control. His application was rejected. On 12 September 1997, he applied again for release on parole and was turned down again.
The APADOR-CH report concludes:
— arrested while he was still under age, Iulian Marian Stanciu has been detained at the Braila penitentiary for almost 7 years;
— the Braila Court made a serious mistake when changing the charge from “blows resulting in the victim's death” to “homicide”; this error led to deprivation of liberty of a person who came of age while in detention;
— the Ministry of Justice has the duty to conduct investigations on the 18‑month postponement of his case at the Braila Court, especially as, according to the criminal law, the cases where defendants are detained on remand take precedence;
— according to the experience gained by APADOR-CH and irrespective of whether Iulian Marian Stanciu is guilty or innocent, one may fear that he and the other two defendants will be sentenced anyway in order to justify the long time they spent in detention, thus avoiding a case against the state for illegal deprivation of liberty;
— the Ministry of Justice should also inquire why the Braila judges do not observe the decision issued by the Constitutional Court regarding the extension of the arrest warrant every 30 days (and implicitly why they violate the Constitution). After he served the first 3‑year sentence, Iulian Marian Stanciu continued to be detained on remand on the basis of the first warrant issued by the prosecutor in January 1993 and of the court hearings in the second case. The Constitutional Court has decided that, irrespective of the stage reached by the criminal trial, pre-trial arrest warrants can be extended only by a judge, for 30‑day periods. According to the Romanian Constitution (Art. 145 para. 2), “The decisions pronounced by the Constitutional Court shall be binding and effective only for the future.” To put it differently, the judicial authority from Braila has overlooked this guarantee granted to persons placed in detention.
In November 1997, APADOR-CH received from the Ministry of Justice letter No. 4652/J/1997 of 17 November 1997 regarding Iulian Marian Stanciu's status. The letter reads:
“The aspects mentioned in your letter were carefully analyzed both from a legal and penitentiary perspective.
With regard to the strictly legal aspect, we appreciate that under no circumstances did the instances that pronounced these sentences violate the law and that the above-named person's detention was legal at all times. Please note that the second pre-trial arrest warrant did not have to be extended, because at the time when it was issued as well as throughout the trial for homicide the detainee was already in detention, serving a sentence previously pronounced. Obviously, if the convict believes he was wronged on account of the final and irrevocable sentence pronounced against him he may apply to the General Prosecutor from the Prosecutor's Office with the Supreme Court of Justice and appeal the respective court decisions.”
As the letter's authors did not seem to have understood the case, the association sent the Ministry the following letter on 4 December 1997:
With regard to your letter No. 4652/J/1997 of 17 November 1997 concerning the situation of Iulian Marian Stanciu, detained at the Braila penitentiary, we would like to specify the following:
APADOR-CH never invoked the fact that ‘the instances violated the law.’ Iulian Marian Stanciu appeared as a defendant in two cases: the former, for which he was arrested on 16 February 1991 and sentenced to 3 years in prison, regarded the crimes provided by the Penal Code under Articles 208 and 209; the latter, a deed committed in penitentiary on 17 March 1992, before the pronouncement of a final decision for the first two crimes, fell initially under ‘blows resulting in the victim's death’ (Art. 183 Penal Code); the charge was later on changed by the first instance (the Braila Court) to ‘homicide’ (Art. 174 para. 1 Penal Code). APADOR-CH made reference mainly to the second case, specifying that this case file, in which Iulian Marian Stanciu had been sentenced to 15 years in prison for homicide was appealed at the Supreme Court of Justice, which quashed the sentence pronounced by the Braila Court and the Court of Appeal and sent the case back to the Braila Court (decision of the Supreme Court of Justice dated 21 November 1995). On 16 February 1994, Iulian Marian Stanciu had finished serving the initial 3‑year sentence but no pre-trial arrest warrant had been issued in the second case until 26 January 1993. After 16 February 1994, the pre-trial arrest warrant was no longer extended by any judge, as provided by Decision No. 50/1995 of the Constitutional Court according to which a judge must analyze every 30 days if the warrant should be extended or not, irrespective of the stage reached by the trial. Therefore, since he finished serving his first sentence (16 February 1994) and up to now Iulian Marian Stanciu has been detained on remand for the second deed and should have been applied Decision No. 50/1995 of the Constitutional Court. Therefore, the law was not observed, not ‘violated,’ as, according to Art. 145 para. (2) of the Romanian Constitution ‘The decisions pronounced by the Constitutional Court shall be legally binding....’
The second aspect mentioned in APADOR-CH's letter regarded the length of time (18 months) from the decision pronounced by the Supreme Court of Justice (21 November 1995) until the Braila Court scheduled the first hearing (19 May 1997). APADOR-CH had asked the Ministry of Justice to investigate the reasons of this delay, given that cases where defendants are imprisoned take precedence. It is so much more important to investigate these reasons as such delay also represents a violation of Art. 5 para. 3 related to para. 1 letter c) of the same article of the European Human Rights Convention.
We would also like to draw your attention to a situation which strikes us as strange, to say the least: had Iulian Marian Stanciu been judged for the second deed, he could have received a 10‑year maximum sentence. As the second deed was committed before the pronouncement of a final decision for the first crime, the two sentences should have been joined and the detainee should have served a total sentence of 10 years. As he has been regarded as a model of good behaviour since 1992, he would probably have become eligible for parole after five years, in the winter of 1996. Still, the detainee continues to wait for the first instance to pronounce a decision.
Hoping that we have succeeded in clarifying the aspects mentioned in the APADOR-CH report, we would kindly ask you to investigate once more the reasons for which the pre-trial arrest warrant has not been extended every month after the detainee had finished serving his first sentence and why it took the Braila Court 18 months to start trying this case again.”
The association had still not received a reply as of this writing; Iulian Marian Stanciu's situation had not changed either.
5. The Bacau penitentiary (the 5 June 1997 visit)
a) Detention conditions
The penitentiary, built in 1970, cover the counties of Bacau and Neamt and has been designed to accommodate 770 detainees. Captain Cornel Prejvara, the new commander of the penitentiary, has already started restoring the penitentiary in order to improve detention conditions. Thus, two new mess halls are being built (one for the women's section, the other for the men's section). This is a praiseworthy initiative which should be taken over by the whole penitentiary system.
Another welcome measure consists in ensuring the privacy between detainees and their legal counsels, as the penitentiary staff remains behind the closed door and therefore cannot listen to their discussion. People in pre-trial detention are entitled to keep their own clothes that they can also wear when they appear in court.
Another change regards the possibility to report to the commander, that is to address the commander with various private matters. According to this system, during the first stage the detainees discuss with the staff appointed by the commander, after which they can go to the commander himself at any time, giving up the “one day a month” system.
During the events occurred at the Bucharest penitentiary, part of the Bacau detainees expressed their solidarity with the Jilava protest and refused to eat. This was the only form of protest. No one was sanctioned and no force was employed.
When new detainees are brought in from police lock-ups, the physician examines them and decides whether to accept them. Refusal to accept newcomers can be motivated by signs of violence, parasites, skin diseases. At the time of the APADOR-CH visit, the medical office was staffed by one doctor — a dentist — and 6 male nurses. This is why the municipal polyclinic keeps one day a week to examine the detainees; emergencies are directed either to the polyclinic or to the county hospital. Approximately 100 HIV tests were performed in 1995, with the detainees' agreement.
With regard to religious options, the commander declared he has nothing against allowing representatives of various denominations access to the penitentiary. For the time being, apart from the Orthodox priest, representatives of the Baptist, Evangelical, Adventist and Catholic churches visit the penitentiary once or twice a week.
Only 30% of the detainees work, as it is quite difficult to find them jobs. Some are employed in workshops (tailor's and joinery). The counties of Bacau and Neamt have no programmes of social reinsertion for former detainees.
Pre-trial detention warrants are not extended by judges after the 30‑day term provided by law and the detainees are not familiar with this legal guarantee.
Overcrowding is a problem here too: there are 1,503 detainees, 573 whose final sentences have been pronounced and 816 in pre-trial detention.
The daily walk takes about an hour. The penitentiary management wants to bring in some gym equipment, the only problem being to find room for it.
The penitentiary has a shower room with 32 units. Detainees are entitled to one hot shower a week; however, as opposed to other penitentiaries, juveniles and working detainees may take two showers a week.
b) Visit to detention rooms
In Room 37 there were 33 beds and 37 inmates. The 33 beds are ranged in tiers, so as the distance between the top row and the ceiling is less then half a meter. In other words, the detainee that occupies the top bed cannot even sit up and has to lay down all the time. Room 37 (as well as other two rooms we visited — 44 and 36) is provided with two toilets and 3 sinks. In the juvenile section, however, rooms have only one toilet and two sinks, while the number of detainees goes up to 35-40. It was somehow surprising to notice that all juveniles were wearing uniforms provided by the penitentiary. The staff explained that the overwhelming majority of juveniles come from poor families or are orphaned by both parents, so that their clothes are simply impossible to wear.
The women's section was not overcrowded. The APADOR-CH representatives visited Rooms 47 and 53. Women have to clean only their own rooms; they are not supposed to work in other sections or clean the staff buildings.
6. The Iasi penitentiary (the 6 June 1997 visit)
a) Detention conditions
Although the penitentiary was designed to take 1,381 detainees, at the time of the visit there were 1,660 detainees. Approximately 780 are employed in agriculture or building sites. The penitentiary is staffed by 185 persons and Colonel Ioan Batea was appointed as commander in 1996.
A new building designed to accommodate 312 detainees was being built (four beds in each room, complete washing facilities: toilet, sink, shower). An old warehouse had been put down and the space thus created will be used for the daily walks and for a football field.
During the February 1997 uprising at the Bucharest penitentiary, approximately 80% of the detainees who were not allowed to go out to work went on hunger strike as a sign of solidarity. The Iasi detainees also took more violent action: they set fire to their mattresses and tried to block the door in a room for youngsters aged between 18 and 21. The commander declared he had to resort to force and isolate 36 of the most aggressive detainees for one night. The staff used tear gas in Room 27, where Flaviu Cioclu, one of the detainees, threatened to “cut himself” if the guards intended to force the entrance. No other measures were taken to punish the detainees.
Despite the facilities provided for religious denominations, we encountered here a special situation: beside the Orthodox priest who is employed full time and a Catholic priest who comes regularly, the penitentiary also used to be visited by representatives of the Humanitarian Service for Penitentiaries and of the Christian Mission for Penitentiaries. The Orthodox priest considered that the two organisations were trying to proselytise for the Evangelical Christian church, especially as they were giving detainees small gifts (envelopes, ball-point pens, etc.), and that their message was clashing with Orthodoxy. Hence, the two organisations were banned from visiting the penitentiary.
The “report” — that is, the opportunity to talk to the commander — is organised monthly, but it also takes place “whenever necessary,” as the commander said.
The Iasi penitentiary has its own animal farm and vegetable garden. The commander admitted openly that “the surplus of products — especially meat — is sold to the staff.” The APADOR-CH representatives had been informed about this practice before, but this was for the first time that a commander actually admitted this situation.
Newcomers arrived from police lock-ups are examined by the physician, who can refuse to admit them “if they have parasites.” If they exhibit signs of violence, the physician either refuses to receive them or makes a report mentioning the detainees' physical state.
As we have also noted in Bacau, the Iasi detainees do not have their arrest warrants extended by judges every 30 days. According to the commander, in approximately 700 cases the arrest warrants had not been extended by the instance, on grounds that this would follow automatically from the hearings set in cases pending in court.
Food was more or less similar to the other penitentiaries: little meat, some lard and meat by-products. 178 kg of meat, 158 kg by-products and 51 kg hard had been used the day of the visit to prepare the food for the 1,660 detainees.
As for the weekly shower, although there are two shower rooms (with 24 and 8 showers respectively) — in the men's sections — only the former one functions. Therefore, there are 24 showers for 1,660 detainees, insufficient to allow them to maintain a proper hygiene.
b) Law No. 61/1991 and contraventional prison
Due to the high number of petty offenders detained in the penitentiary, the APADOR-CH representatives asked to see several decisions by which unpaid fines had been turned into terms in prison (Law 61/1991). For instance, Maria Roman was fined lei 50,000 and failed to pay. Consequently, the Pascani Court had converted the fine into 167 days in prison by civil sentence No. 2274/3 June 1996. To put it differently, the judge divided the amount of the fine by lei 300/day in prison, ignoring the two decisions of the Constitutional Court of October and November 1995, according to which when fines are converted into terms in prison the judges must take into consideration the amounts of the fines established by Law 61/1991, not the amounts set by Governmental Decision in August 1994. The same happened to Neculai Darvaru, who had a lei 300,000 unpaid fine turned by the Iasi Court into a 180‑day term in prison by civil sentence No. 8261/13 September 1996. The same Court turned Ioan Scantei's fine into 166 days in prison by civil sentence No. 2855/15 March 1996. Although the amount of the fine is not mentioned in the decision, the APADOR-CH representatives believe that the sum taken into account by the instance is the one provided by the Governmental decision, not by Law 61/1991.
c) Visit to detention rooms
In Room 1 (the women's section) there were 14 inmates and 15 beds. The bath consists of a toilet, sink with two taps and shower. The hot water runs every day in this section. The detainees were wearing a combination of uniform (skirt or trousers) and plain clothes (cardigan, T-shirt, etc).
In Room 40 (youngsters aged 18 to 21), there were 30 beds and 43 detainees. The room was provided with two toilets and a tin sink.
Room 20 (juveniles) accommodated 44 detainees in 30 beds. They were wearing uniforms that were too warm for the season. One could hardly breathe due to the overcrowding and the smell of perspiration.
d) Individual cases. Mihai Tintila
On the occasion of the visit to the Iasi penitentiary, the APADOR-CH representatives talked to Mihai Tintila, aged 37, detained in this penitentiary and sentenced by the Iasi Court by civil sentence No. 3799/1996 to one year and six months' imprisonment on the basis of Art. 200 para. 1 and Art. 239 paras. 1 and 2.
According to Mihai Tintila's account, confirmed by the indictment act and the penal sentence, on 4 June 1996 a citizen informed the Iasi station police of the presence of two men in one of the toilet cabins in the station. Mihai Tintila claims that the complainant could not have seen what was going on in the toilet; he could have heard it at the most. The police intervened promptly and broke in the toilet cabin to find Mihai Tintila and Gavril Bors. Although Mihai Tintila does not deny he had had same sex relations with Gavril Bors, he stated that they were both dressed when the police broke in and that they had not been caught in flagrante delicto.
Led to the Iasi station police precinct, Mihai Tintila pushed the non-commissioned officer and tried to run away. He was followed and caught by the police, at which time he started hitting his followers with a plastic bag containing an empty bottle, bruising one of the non-commissioned officers (who needed 3-5 days of medical care, attested by medical certificate). Mihai Tintila was arrested and prosecuted for same sex relations and outrage. As the non-commissioned officers felt insulted and threatened Mihai Tintila and his legal counsel, the latter asked that the cause be transferred to another court. The request was denied by the Supreme Court of Justice by decision No. 2219/10 October 1996.
The Iasi Court pronounced the sentence in the Mihai Tintila and Gavril Bors case on 31 October 1996 by criminal sentence No. 3799/96 which was not appealed and thus remained final. Mihai Tintila was sentenced to one year and three months' imprisonment on the basis of Art. 200 para. 1 Penal Code, eights months' imprisonment on the basis of Art. 239 para. 1 Penal Code and to one year's imprisonment on the basis of Art. 239 para. 2 Penal Code. The actual term he has to spend in detention is one year and six months, resulting, according to the court decision, from “joining the punishments into the longest term, one year and three months, increased by three months in prison.” Gavril Bors was sentenced to one year and three months in prison on the basis of Art. 200 para. 1; the punishment was suspended by the same court decision.
Mihai Tintila's situation is currently being considered by the parole commission of the Iasi penitentiary, as he has already served half of his term. According to the commission's report, his case was postponed and will be discussed in August 1997, despite his good behaviour. The reason for this postponement consists in the fact that he already had a criminal record (Mihai Tintila was sentenced to prison last year and released on parole after having served half of his sentence). He declared he had not been attacked in the penitentiary and that generally speaking he had not been persecuted by the other inmates, although they found out fast on what charges he had been sentenced. The most plausible source for this information was the penitentiary staff, the only ones who have access to his file.
To conclude, it should be mentioned that at the time when Mihai Tintila and Gavril Bors were sentenced Art. 200 of the Penal Code had already been amended by decision 81/15 of the Constitutional Court, according to which same sex relations between consenting adults are regarded as criminal deeds and punished only when perpetrated in public or resulting in a public scandal. One can argue whether a toilet cabin could be regarded as a public place as long as it is occupied. But neither the indictment act of the Prosecutor's Office nor the court's arguments mention these circumstances, although the defense attorney insisted during the trial on the fact that the place where the deed took place did not fall under the circumstances provided by the criminal law, amended by the decision of the Constitutional Court. The instance did not take into consideration this argument and mentioned only in the summary of the decision the fact that the deed “had been perpetrated in a public toilet.”
7. The Poarta Alba Penitentiary (the 15 September visit)
The case of Constantin Parvu and Mircea Rusu
Constantin Parvu and Mircea Rusu were detained on remand for “same sex relations” (Art. 200 para. 1 Penal Code).
Constantin Parvu, born on February 13, 1981, is illiterate. He had been admitted, some time before, to a “house” in Nedeleni, for three years, but he could not specify what kind of institution that was. Three weeks before the incident leading to the arrest of Constantin Parvu and Mircea Rusu (May 26, 1997), Constantin Parvu had left his parents' house after a conflict with one of his older brothers and joined a group of street children who had found shelter in one of the two huts, abandoned probably by a building company next to the theatre in Constanta. The other hut was inhabited by Gheorghe Murariu, born in 1958, who had no family, no job and was illiterate. Gheorghe Murariu had been sentenced to prison and had 171 days left to serve after release. Mircea Rusu had abandoned school after the seventh grade and used to work wherever he could in order to help support his family. He had never run away from home.
It should be specified that none of the two minors (Mircea Rusu turned 18 after being arrested) complained about having been beaten or threatened during the investigation.
Constantin Parvu denied having had sex with Gheorghe Murariu before May 26, but the indictment act states the contrary. Anyhow, on May 26, Constantin Parvu went to the movies, to “Tomis” (a cinema in the open), where he met Mircea Rusu. He invited the latter to go with him to the huts, told him about Gheorghe Murariu and about his kind of sexual preferences. Mircea Rusu accepted the invitation, with everything it involved.
Gheorghe Murariu had oral and anal sex first with Constantin Parvu, who then went out in front of the hut. Gheorghe Murariu then had sex with Mircea Rusu. In the meantime, two public guards saw Parvu and asked him what he was doing there. As he gave an evasive answer, the two guards went into the hut and caught Gheorghe Murariu and Mircea Rusu. The guards took the three to the police station around 11 p.m. The minors' parents were announced, but Parvu's family did not show up then or later. It should be noted that the Parvus had done nothing to find out what was happening to their son after he had run away from home. Only Mircea Rusu's mother went to visit her son in penitentiary.
Constantin Parvu said that Gheorghe Murariu had been beaten by the guards in front of him and that, at the police station, he was shown photographs and asked to identify other homosexuals he knew. Mircea Rusu was not asked to do such a thing.
According to the indictment act drawn up by the Prosecutor's Office with the Constanta County Court, Gheorghe Murariu was prosecuted on the basis of Art. 200 para. 2 in conjunction with Art. 33 a) (multiple crimes) and 37 b) (relapse) and Constantin Parvu as well as Mircea Rusu on the basis of Art. 200 para. 1 in conjunction with Art. 33 a) and 99 (setting the limits of legal responsibility for minors).
There are several unclear issues regarding the two minors:
1. They were held on the evening of May 26, but heard by a prosecutor for the first time on May 28 (therefore after more than 24 hours), and the date of arrest is May 29. What was their legal situation from May 26 to May 29 given that one cannot be held for more than 24 hours? Even if the police invoked the additional 24‑hour “leading to the police station” (a form of deprivation of liberty provided by the Law on Police, but regarded by most experts as anti-constitutional), this period still exceeds 48 hours;
2. If Gheorghe Murariu's situation seems rather clear, Art. 200 para. 1 on the basis of which the two minors were prosecuted, raises again the question of defining the terms “in public” and “public scandal.” Can the abandoned hut be regarded as a “public place”? If Gheorghe Murariu lived there — whether legally or not — could one state that the hut had become the home of that person? The indictment act invokes the fact that the minors from the second hut had watched the whole scene through holes poked in the walls. Even if it were so, it was their initiative to do that and this is not a reason sound enough to turn sexual relations performed in a closed space into a crime. The other element that defines the crime — “public scandal” — cannot be invoked.
3. It should also be mentioned that the list of evidence presented in the indictment act includes, besides the written report and the list of witnesses, expert medical reports (No. 73/S, 74/S and 75/S). The question is: what kind of medical examination and performed with what purposes? The use of force was never invoked, as the three persons had agreed to perform sex. If the medical reports were aimed to establish the sexual orientation of the three, they can be regarded as a degrading treatment.
4. APADOR-CH considers that due to his special situation, the minor Constantin Parvu, who is ignored by his family and illiterate, should be subjected to a psychiatric evaluation.
The first hearing took place on September 10, but the trial was postponed until October 15. The two minors have been appointed a lawyer with whom they have not yet talked about their defence.
To conclude, APADOR-CH believes that the circumstances of the crime provided under Art. 200 para. 1 of the Penal Code are not met in the case of Constantin Parvu and Mircea Rusu and that the defendants should be released immediately and the charges brought against them withdrawn.
In November 1997, the two minors and Gheorghe Murariu were tried and sentenced. Constantin Parvu was amnestied and Mircea Rusu was sentenced to the almost six months he had already spent in prison — both being released — while Gheorghe Murariu was sentenced to three years and a half in prison on the basis of Art. 200 para. 2 Penal Code, including what had remained from a previous sentence he had not served entirely. APADOR-CH will follow the developments in this case, because the sentence was appealed both by Gheorghe Murariu and the Prosecutor's Office.
8. The Craiova penitentiary (the 8 October 1997 visit)
a) Structure of detainee population
At the time of the APADOR-CH visit there were 2,015 detainees in the penitentiary and 2,038 beds. Initially, the penitentiary had been designed for a number of 1,450 inmates, but the capacity was increased by adding a four tier of beds. Only one of the four sections of the penitentiary was overcrowded (Section 3, which accommodates, among others, detainees with life sentences), where there were 377 beds and 480 detainees.
The categories of detainees were as follows:
a) men — 1936; women — 79 (including one juvenile);
b) detainees whose final sentences had been pronounced — 1,252; on remand — 743, out of which 386 had been sentenced by the first instance and 357 had not been heard by a court;
c) petty offenders — 21 (all sentenced directly to contraventional prison).
The Craiova penitentiary is the only one in the country that detains inmates with life sentences. Detainees who serve such sentences are treated more or less the same as the others, except that they do not work and do not benefit from schooling; they are entitled to 3 hours of daily walk, while the others are taken out only for half an hour a day.
Approximately 800 detainees work, especially in agriculture and on building sites. They may earn as much as lei 300,000-400,000 a month, of which they only get 10%, the remainder being deposited in the penitentiary's account. As detainees cannot keep money in the penitentiary, the 10% are deposited at the accountancy on individual records. They can make purchases on the basis of lists or send the money to their families on condition that their deposits amounts to lei 40,000 at least.
The prosecutor in charge of the Craiova penitentiary meets the parole board once a week; on such occasions, he also talks to the detainees who go on hunger strike or who apply to report to him.
As opposed to other penitentiaries, Craiova has already hired two psychologists whose activity is meant to counteract the effects of deprivation of liberty and help speed up the detainees' mental recovery.
The Craiova penitentiary has subscribed to the main countrywide newspapers (130 copies), about one copy per room.
b) Detention rooms
The building is over 100 years old and is below national standards, not to mention the international ones. The Galati penitentiary, built at about the same time and on the same pattern, was put down and a modern one is being built. This issue has not been raised yet with regard to the Craiova penitentiary.
In Room 2 of the women's section, an inmate — Niculina Nicolae — detained for three months, shows obvious signs of mental disturbance. As this section does not have a surgery she is detained with ten other inmates. The APADOR-CH representatives believe that Niculina Nicolae must be transferred immediately to the penitentiary hospital for a specialised examination.
Marioara Uta (Room 3, same section) had been detained on remand for two years, for intellectual fraud and taking a bribe. All this time she has not had the opportunity to talk to her ex officio lawyer; she does not even know his name. As in many other cases, the criminal trial exceeds a reasonable term.
Detention conditions are much better in the women's section: rooms are clean, hot water runs daily, each room is provided with showers. However, the fact that these detainees are employed as “maids” for the penitentiary staff (they wash their uniforms, the rugs in offices, clean, cook at the mess, sew, etc.) can be regarded as a degrading treatment.
Men's sections have two types of rooms: some are very small (2.5 meters long and 1.5 meters wide, with two rows of tiered berths; others are bigger, with four rows of tiered berths). Rooms 25 (4 detainees sentenced for life and 4 beds), 32 (6 inmates and 5 beds) and 35 (6 persons and 6 beds) are part of the first category. There is so little room that it is almost impossible to breathe in and all detainees can do is sit on their beds. The sanitary facilities consist of a toilet in a corner and a sink, without any partition wall. Thus, the detainees have no intimacy.
Although the commander said that the prosecutor talks to all the detainees that wish to report to him, Dumitru Cismaru (Room 35) said he had never had this opportunity, although he had asked for it twice. The same detainee raised a medical problem, namely the fact that he was vomiting blood. The other inmates confirmed his account, as well as the fact that he had not been treated. The case was brought to the notice of the penitentiary commander.
Room 20 is one of the bigger cells: 99 detainees and 92 beds, ranged on four tiers. The sanitary facilities consist of a toilet separated by a partition wall and two sinks. It is obvious that these “facilities” are completely unsatisfactory to ensure a minimum of hygiene. A hot shower a week can hardly solve the problem, especially as long as all the inmates in such a room have 20 to 30 minutes to wash.
The Craiova penitentiary has its own animal farm and vegetable garden. The products obtained from their own sources are not enough to cover all needs. If any surplus is obtained, that quantity of food is either transferred to another penitentiary or sold, the penitentiary staff having priority to buy these products. The kitchen was more or less acceptable with regard to the hygiene. All in all, the standards set by the General Department for Penitentiaries are met, but, as noted in all the other penitentiaries visited by APADOR-CH representatives, only few bits of meat are visible in the food. On the other hand, the two courses are alike to the point to which one can be taken for the other, because both consist of a fat broth; the only difference is the type of vegetables used.
d) Medical assistance
There are four doctors employed full-time at the Craiova penitentiary (two physicians, a specialist in internal medicine and a dentist). Although from this point of view the situation in this penitentiary is better than in others, it is obvious that the doctors cannot cope with over two thousands detainees. Therefore, some of the latter complain they do not enjoy the necessary treatment.
This penitentiary was one of those selected in 1994 for HIV testing. The staff said that each of the 200 detainees tested had known exactly what kind of test they were subjected to, and that they consented to be tested. The APADOR-CH representatives have expressed before, on the occasion of other visits to penitentiaries, their doubts regarding this aspect, due to the almost complete lack of health education of most inmates. The penitentiary was not informed on the outcome of the HIV tests.
One of the issues APADOR-CH has often discussed with commanders and doctors in various penitentiaries, Craiova included, refers to the possibility to use condoms. It is well-known that sexual relations are quite usual in penitentiaries. It is also common knowledge that, apart from the risk to be infected with HIV/AIDS (in February 1997 two detainees — one who was HIV positive, the other one diagnosed with AIDS, both diagnosed while in detention — were hospitalised at the Bucharest penitentiary hospital), there have also been infections with syphilis, gonorrhoea and other sexually transmitted diseases. Condoms cost much less than the treatment of such diseases. The opponency against this measure — recommended by the World Health Organisation — shown by most staff in the penitentiary system (“this would mean encouraging them”) is not justified, because such practices do exist — this is obvious — and a minimum of protection should be ensured in order to prevent sexually transmitted diseases from spreading — especially the HIV infection.
e) Religious assistance
As in all other penitentiaries visited, the Craiova penitentiary has an Orthodox priest employed full time. The APADOR-CH representatives learned that, starting 1 September 1997, representatives of other denominations and volunteers wishing to contribute to the social reinsertion of detainees, who do not carry out previously approved programmes and projects need a permit signed by minister Dorin Clocotici to enter the penitentiaries. This is hard to understand, given that the General Department for Penitentiaries in particular — and the Romanian state in general — do not have any coherent programme/project in this very important field.
9. The Gherla penitentiary (the 9 October 1997 visit)
a) Structure of detainee population
At the time of the visit, there were 2,763 detainees in the penitentiary, while the initial capacity was of 1,919 beds. According to the commander, ideally the penitentiary should have been designed for only 800 places; with 1,500 places, the detention conditions would have been acceptable. In other words, the number of detainees as of this writing is four times higher than the ideal capacity and twice higher than what is regarded as “normal.” In 2,276 cases the final sentence had been pronounced, 483 detainees were in pre-trial detention (414 sentenced by a first trial, the others not heard yet) and 4 were petty offenders (sentenced directly to a term in prison). From the total number of 2,763 detainees, 52 were women, 149 youngsters (from 18 to 21), 63 juveniles (in 22 cases the final sentence has been pronounced). One may wonder why the 22 have not been transferred to juvenile centres.
As opposed to other penitentiaries, where work groups are mixed (detainees on remand + detainees whose final sentences have been pronounced; first time offenders + multi-offenders) which entails the fact that they are all detained in one room to make it easier for the penitentiary staff to take them to work, a special work post was created for those on pre-trial detention, so that they are actually separated from the remainder of the detainees. 583 of the detainees work in agriculture and on building sites, while 450 work at the shoe factory situated right on the premises of the penitentiary (OLTIM company). There are other various joiner's workshops where detainees make doors, window frames, chairs, coffins, etc.
The penitentiary has its own animal farm and vegetable garden. If the products exceed the demand, the procedure is the same as in the case of Craiova or other penitentiaries: transfer/barter with other penitentiaries or sale, especially to the staff.
b) Detention rooms
Although the penitentiary was repaired to a certain extent two or three years ago, the work was rather sloppy, so that capital repairs are necessary again. All the walls are damp and the piping is old and in a bad state. The new commander, recently transferred from the Bistrita penitentiary, has big plans to improve detention conditions, consisting of placing showers in each room, separating toilets from lavatories, replacing the sanitary facilities and above all reducing the number of detainees to an acceptable limit. The women's section has already been improved.
Overcrowding is obvious at this point. For instance, in Room 37 (juveniles) there were 32 persons and 27 beds. The room had only one toilet. In Room 24 (detainees sentenced to terms of over 10 years) there were 80 detainees and 75 beds and the sanitary facilities consisted of one toilet and a washstand with 4 taps. It is obvious that hygiene cannot be maintained, as the weekly hot shower cannot solve this problem (there are only two shower rooms with 16 showers each for all the detainees). Mattresses are very old, therefore any attempts to sanitation are useless.
In their attempt to limit overcrowding, the penitentiary has completely given up “detainees' clubs,” turning them into cells.
The pantry seemed to contain only sacks of onion and boxes of rice and pasta. A group of detainees were preparing the vegetables to be cooked; they were also supposed to distribute food. It should be noted that the food distribution has been improved since the penitentiary has installed an elevator. The Gherla penitentiary is old, resembling very much the one in Sighetu Marmatiei, with high ceilings, making it very difficult to carry out this activity three times a day. Big quantities of overripe courgettes that were no longer fit to be used as food were peeled in the kitchen. However, the APADOR-CH representatives were told that these vegetables which should have been sent to the animal farm were going to be turned into a “wonderful goulash” (?!). The whole kitchen was exceedingly damp.
d) Medical assistance
The medical staff consists of two physicians, a dentist and 8 nurses, which is hardly enough for the number of detainees. The medical office in Section 6 acknowledged the existence of 112 persons with mental problems, at least one of which should have been interned in a psychiatric hospital instead of a penitentiary. The most common health problems relate to the teeth and the digestive apparatus. 17 TB patients are treated in the penitentiary. A detainee with smallpox had been isolated.
e) Religious assistance
Apart from the Orthodox priest employed full time, the representatives of other religious denominations (Greek-Catholic, Reformed, Baptist, Adventist, Pentecostal, Lord's Army, etc.) are allowed to visit the penitentiary. It is noteworthy that “Jehovah's Witnesses” were not allowed in the penitentiary, on grounds that their denomination is not officially recognized. All meetings between detainees and representatives of other denominations take place in the presence of the Orthodox priest! Explanations such as “the orthodox priest acts as a host when he has guests” cannot justify this obvious interference of the Orthodox priest with freedom of religious belief guaranteed by Art. 29 of the Romanian Constitution.
f) The case of Marian Tudorache
Born on 17 October 1970 in Adunatii Copaceni, county of Giurgiu, Marian Tudorache was arrested on 3 November 1989 and sentenced in 1991 to a term of 15 years in prison for homicide, after having gone through all the legal procedures, including an appeal at the Supreme Court of Justice and repeated requests for an extraordinary appeal. Moved from one penitentiary to another several times, Marian Tudorache has often been punished (severe isolation, simple isolation, he was denied the right to receive parcels, visits, mail, was reprimanded, etc.) and went on hunger strike several times (known as “rejection of food” in penitentiary terms). He maimed himself several times, and each time he was punished by simple or severe isolation. He was repeatedly admitted to the Bucharest penitentiary hospital, where he was also sanctioned with various punishments.
One could infer from the above that Marian Tudorache is a difficult detainee. But, starting from this detainee's situation, the APADOR-CH representatives raised the issue of punishments, which are very frequent in the whole penitentiary system. Undoubtedly, penitentiary regulations are much stricter than any other community rules, but they cannot contain provisions liable to annihilate a series of rights guaranteed by the Constitution: freedom of conscience, freedom of expression, secrecy of correspondence, the right to protect one's health, the right to petition, etc. Art. 49 of the Constitution lists under para. 1 the circumstances under which certain rights and freedoms can be restricted and specifies in para. 2 that “The restriction shall be proportional to the extent of the situation that determined it and may not infringe upon the existence of the respective right or freedom.” Moreover, restriction of the exercise of certain rights must be established by law and not merely by regulations. However, many punishment reports drawn up by penitentiary staff are based on opinions expressed by detainees that the staff consider insulting. (In this sense, see below the case of Dan Ziegler from the Bistrita penitentiary.)
A second issue resulting from the case of Marian Tudorache is that of self-maiming. This is a relatively frequent practice among detainees. Why do they resort to this solution? One of the most frequent reasons is the despair caused by the length of trial. There are many cases where detainees whose final sentences have been pronounced could apply to the parole board (after having served half of the term they had been sentenced to if the sentence is up to 10 years or 2/3 of the term if the sentence exceeds 10 years in case the sentences were pronounced or the crimes committed before November 1996, when the Penal Code and the Penal Procedure Code were modified), but they cannot apply to the parole board because the sentences have not reached the penitentiary!! On the other hand, often enough, people in pre-trial detention wait for years until their cases are tried in court (see for instance the case of the detainee from Craiova).
In such circumstances, detainees believe that they can attract the attention on their legal problems if they maim themselves. APADOR-CH believes that if the right to defense of every detainee were genuinely exercised by their legal counsels — especially by ex officio lawyers — part of these problems would disappear. Similarly, if the library of each penitentiary contained legal texts (especially the Penal Code and the Penal Procedure Code) detainees willing and capable to do so could prepare their defense by themselves.
One cannot leave aside the fact that there are other minor reasons for which detainees resort to self-maiming or rejection of food, such as the transfer to another penitentiary or the attempt to be sent to the penitentiary hospital, believed by the detainees to be a “milder” detention place. One should also take into account the — small — number of detainees who resort to self-maiming because of their mental problems.
Coming back to Marian Tudorache, it should be noted that he went through all the stages described above, apart from the last one. In 1997, he was diagnosed with a discopathy and an infection of the urinary tract. The discopathy cannot be treated in penitentiary hospitals. Moreover, doctors from outside the penitentiary system recommended surgery. Therefore, Marian Tudorache applied to the court for a leave on medical grounds. The APADOR-CH representatives tried to make sense of an intricate story concerning successive specialized medical examinations, the copies of which were present neither in the penitentiary file nor in the detainee's medical record, although such examinations had undoubtedly been performed. One of the doctors declared he had seen them with his own eyes, and so did another member of the penitentiary staff and the detainee himself. The commander explained that when such examinations are performed, one of the copies is kept by the Forensic Institute and the other is sent to the court, therefore it was natural that no such copies were included in the penitentiary file and the detainee's medical records. Actually, it seems that the penitentiary doctor, who had been directly in charge of Marian Tudorache's case had sent to the court an older report of such a medical examination — either by mistake or on purpose — and that the respective certificate was unfavourable to Marian Tudorache.
Marian Tudorache's medical records clearly show that the detainee was suffering from vertebral discopathy (the X-rays of 20 June 1997 and recommendation to be admitted to hospital dated 21 June 1997) which cannot be treated in the penitentiary medical network.
Marian Tudorache has served more than half of the 15‑year sentence pronounced for homicide. Undoubtedly, the high number of punishments weigh heavily in the parole board's decision. However, given the state of his health, APADOR-CH considers that he could be granted a leave on medical grounds, which represents another possibility to temporarily release a young man who was sentenced when he was 19 years old and has served 8 years of prison.
10. The Bistrita penitentiary (the 10 October 1997 visit)
a) Structure of detainee population
Since 1991 when it became functional the Bistrita penitentiary is the only one visited by APADOR-CH representatives which has never been overcrowded. A series of new buildings was raised for the penitentiary management. The detention space has been increased, as half of a new building lodging three sections has become operational. A second building is going to be raised, after which the old part of what used to be an annex of the Gherla penitentiary will be demolished.
At the time of the visit, there were 783 detainees (the maximum capacity being 978 and the optimum one — 837). The categories of detainees were as follows: 640 whose final sentences had been pronounced, 143 in pre-trial detention (54 after a first instance trial and 89 not heard yet by a court). 97 of the detainees were youngsters from 18 to 21, 9 juveniles and 3 petty offenders (sentenced directly to a term in prison). No women were detained in this penitentiary.
There was only one room where single and multi-offenders are placed together, because they are part of the same work group. The APADOR-CH representatives pointed out that mixing detainees is unjustified even in the case of such small numbers.
580 of the detainees go to work, especially in agriculture but also on building sites, on the basis of a contract with a private company.
As opposed to other penitentiaries, Bistrita succeeds in covering the whole quantity of meat they need from their own sources, but produces no vegetable or fruit.
Detainees receive visits according to three systems: a cabin with bullet-proof glass sheets for dangerous detainees, a room with three tables separated by partition glass sheets for ordinary detainees and another room without partitions for detainees who conduct themselves well. Discussions between detainees and their legal counsels also take place in the third room. Another important difference as compared to other penitentiaries is the presence of lawyers — either hired or appointed ex officio — who come to talk to the detainees.
Another notable difference consists in the fact that the penitentiary is provided with a public phone that can be used by any detainee for any kind of call, obviously, upon approval. The only problem is that detainees are not allowed to keep money, so that each time they want to make a phone call they have to ask the penitentiary management for approval and the coins they need. Commander Ioanitoaie had asked that very day the local phone company to provide the penitentiary with a magnetic card phone.
b) Detention rooms
Although statistically speaking the penitentiary is not overcrowded, detention conditions in the old building are still far cry from European standards. Thus, in Section IV, in one of the rooms there were 48 detainees and 51 beds (metallic structures with three superposed berths). The sanitary facilities consisted of two toilets, a lavatory with 4 taps and a shower, insufficient for the 48 inmates. Hot water runs every two days (according to the penitentiary management) or twice a week (according to the detainees). No matter which of the two versions is real, this is a substantial improvement as compared to the other penitentiaries visited by APADOR-CH, where hot water is a luxury detainees benefit from only for several minutes when they are allowed to take the weekly shower.
In Room 59 (TB patients) there were 15 detainees and 18 beds. The room was provided with a toilet, two sinks and a shower.
In Room 61 (detainees unfit for work) there were 18 detainees and 18 beds. The doctor explained that the persons exempted from work for short periods (up to several days) are taken to that room in order to make it easier for the medical staff to watch them.
Sections I, II and III have already been moved to the new building. The rooms are provided with an Intercom system connected to the supervisor's office, which enables the communication between detainees and the staff. (In all the other penitentiaries, detainees who want to ask for something or complain to the officer on duty must knock at the door until someone hears him/her).
According to the commander, when the construction is over each room will host four detainees at the most. At the time of this visit, superposed berths were still in use (on two tiers). Each room is provided with a lavatory plated with ceramic tiles, a stone table fixed in the wall and a bench. Detainees can eat at the table instead of in beds, as it actually happens in all the other penitentiaries visited by APADOR-CH. The whole section has one TV set, in the main hall. Detainees who want to watch TV can take the benches out of their rooms and go to the hall.
The penitentiary does not provide detainees with tooth paste, tooth brushes and toilet paper. They only get a small piece of soap. The commander argued that all the detainees' belongings — from uniforms and sheets to underwear — are washed in the penitentiary laundry and that the soap they get is enough to maintain their hygiene. Most detainees get tooth paste, tooth brushes, soap and toilet paper from home or, if they have money, they can buy them. Still, there are detainees who cannot afford it and the absence of these small articles of toiletry creates a state of discontent and frustration.
c) Medical assistance
There is only one medical office in the penitentiary where 70 to 100 detainees are examined daily. The most common affections appear in relation to the digestive tract, the respiratory apparatus and skin. 10 detainees had finished a treatment for syphilis. 25 to 30 detainees have mental troubles. There is no dentist in the penitentiary, so that many detainees who have this kind of problems must be taken to the town to have their teeth fixed.
d) Religious assistance
Apart from the Orthodox priest employed full time, the penitentiary is visited by representatives of the Greek-Catholic and Reformed denominations. The commander stated that after preliminary discussions with the representatives of these denominations, the Orthodox priest does not attend their meetings with the detainees.
e) The case of detainee Dan Ziegler
Dan Ziegler, born on 26 October 1962, has spent more than half of his life in penitentiaries, including four years in a reformatory as a juvenile. Up to 1989 he was sentenced several times on the basis of Decree 153 for theft; after 1989, he was sentenced once for robbery (to 3 years) and later on for major bodily injury corroborated with contempt of court (4 years and a half), plus a sentence for a car crash and driving without a license. He is now serving the 4 year and a half sentence.
The detainee admits he has committed several thefts, but he maintains that he was innocent in two cases (a pig theft and the major bodily injury). Dan Ziegler declared he had been beaten every time he was retained or arrested by the police and forced to admit to deeds he had not committed. He complained twice against the abusive behaviour of police officers and stated he had been forced to withdraw one of the complaints. As for the second complaint, the Military Prosecutor's Office allegedly started criminal investigations against the police officers who had beaten him.
Dan Ziegler complained that he had been frequently punished by simple or severe isolation in penitentiary and provided two examples: once for having told his father, during the latter's visit, to lodge a complaint with the Military Prosecutor's Office against the mental tortures he had been subjected to in penitentiary and the second time because a non-commissioned officer heard him tell the other inmates that “penitentiaries would be demilitarized and all the staff members would be kicked out.” The detainee also said he had been punished twice for the same deed — contempt of the court: once by isolation and a second time by the court's sentence. The APADOR-CH representatives checked Dan Ziegler's penitentiary file and found the punishment reports, which had been drawn up on exactly the same reasons as mentioned by the detainee. They believe that punishments by isolation are not justified, as in the first instance the detainee was exercising his right to petition, while in the second he was expressing an opinion, something that no set of regulations, no matter how restrictive, can forbid. As for the third, Dan Ziegler received a criminal sentence, therefore he should not have been punished a second time in the penitentiary.
Dan Ziegler also complained that he had been transferred for four months to a room under restrictive conditions (for detainees regarded as dangerous), where the detention was much harsher and some detainees were even handcuffed.
11. The Colibasi penitentiary (the 21 November 1997 visit)
a) Detention conditions
The Colibasi penitentiary receives detainees from three counties: Arges, Valcea and Teleorman. At the time of the visit, there were 1,825 detainees in the penitentiary, the designed capacity being of 1,195 places. 1,050 of the detainees had received their final sentences, 356 had not been tried yet, 398 had been sentenced by a first instance and 21 were petty offenders sentenced directly to prison. 264 of the detainees were aged 18 to 21, 8 were juveniles and 45, women. Approximately 800 detainees work both outside the penitentiary (seasonal jobs in agriculture, on building sites) and in the workshops within the penitentiary, where they make parts for buildings, wicker baskets, mattresses and pillows for all penitentiaries.
Primary school courses are taught in the penitentiary (first to fourth grade). There are 30 illiterate persons in the prison, only 17 of which attend these classes on a regular basis. Several of the other 13 work and are too tired to learn; some do not want to study.
Medical assistance is granted by two physicians, an internist, a dentist and nine nurses. Several years ago, 700 to 800 HIV tests were performed in the penitentiary. The doctors declared that the detainees who were tested had been informed what the test was about, but admitted they had not been asked for their agreement. The medical office has not received any results from the laboratory which had actually performed the test. The doctors also declared that many detainees had mental troubles, but that only up to 100 of these cases were really serious.
The airing system had just been disassembled at the kitchen; the new pipes were to be assembled soon. Consequently, the steam made the air hard to breathe and the dampness was visible everywhere. Lunch consisted of bean soup and pasta with meat; the diet menu consisted of soup with pasta and cabbage. The camp kettle where the soup was boiling contained, among others, spines and pig tails. The non-commissioned officer on duty tried to convince the APADOR-CH representatives that the meat was to be boiled until it fell off the bones (the meat on the tail?) and that it was to be added to the pasta to make the second course. Judging from what could be seen in the kettle, it is hard to imagine what little meat was there would be divided to over 1,800 detainees.
b) Detention rooms
Detainees unable to work are placed in Sections VII and VIII. Each room is provided with a shower, two sinks and a toilet. These are the only sections where overcrowding does not raise any problems and where each detainee has better conditions to keep clean. For all the other sections there is one shower room with approximately 40 showers.
In Room 51, there were 8 detainees and 9 beds. One of the detainees — Marin Baicoianu — complained that he is not granted any medical care for his constantly sore throat and for what seems to be a strange ailment: an uncommon laxity of the pharynx, larynx and of the trachea, which “migrate,” appearing as a visible swallowing of the neck. The detainee had been taken to the county hospital, but the doctors were unable to give him a diagnosis. Moreover, judging from his incoherent speech, Marin Baicoianu seems to have psychic troubles as well. Another detainee from the same room — Gheorghe Popa — exhibited obvious symptoms of psychic troubles. He had been subjected to an expert examination at the Bucharest penitentiary hospital and, although the examination established Gheorghe Popa was a psychopath, no recommendation was made for him to receive a leave of absence. In the opinion of the APADOR-CH representatives, these two detainees had better been placed in a psychiatric hospital instead of a penitentiary.
In Room 34 — Section IV — there were 24 detainees and 28 beds. This room accommodated detainees who had committed serious crimes — mainly homicides — whose trials have reached an advanced stage. One of the detainees — Gheorghe Plesa — complained about the length of his trial, which started in 1990 (he has been detained ever since). He has still not received a final sentence.
In Room 44 — Section V — there were 61 detainees and 60 beds. The room was provided with two toilets — the Turkish type, without seats — and a lavatory with three broken taps. The situation was similar in the neighbouring room (63 detainees, 60 beds).
The APADOR-CH representatives noted here, as in all the other penitentiaries visited so far — that one of the most serious problems people whose trials are pending in courts are confronted with is related to their right to defence. Most of the persons on remand come from poor or very poor families, who do not have the financial means to hire a lawyer. The defence is ensured by ex officio lawyers who — in most cases — do not come to the penitentiary to discuss with their clients before hearings. In most cases, they have the opportunity to talk to their clients either in the registrar's office, in the presence of other lawyers and detainees, or in the court. Many of the convicts declared that most ex officio lawyers merely plead for “lenience” for their clients. The institution of the ex officio lawyer should be fundamentally changed if the right to defence were to be genuinely observed.
c) Special cases
APADOR-CH has repeatedly pointed out the prosecutors' levity in issuing the first pre-trial detention warrant and the judges' in extending it. Leaving aside the fact that one of the guarantees established by the Constitutional Court (a judge is supposed to extend pre-trial detention warrants once every 30 days, irrespective of the stage reached by the trial) is hardly observed, prosecutors and judges ignore a basic human rights principle: freedom is the normal state; deprivation of liberty should be the exception.
Some of the detainees in pre-trial detention at Colibasi have been charged with minor crimes, which pose no threats to the society. For instance:
— Cristian Rauta, aged 33, arrested since July 18, 1997, not yet tried, was charged with stealing two sackfuls of onion and two of garlic;
— Costel Nedelcu, aged 21, not tried yet, was charged with having allegedly stolen a goose and a sheep;
— Adrian Plesa, aged 30, arrested since September 25, 1997, not tried yet, was charged with having stolen 14 planks used for raising fences;
— Petrisor Miu, aged 27, arrested since May 20, 1997, not tried yet, charged with having stolen onion and garlic from a garden;
— Gheorghe Stan, aged 24, arrested on October 10, 1997, not tried yet, charged with having stolen three window frames from a surgery.
d) Individual cases previously brought to the association's notice
Mihai Prundaru. Sentenced to 14 years and 3 months for homicide, the detainees accused bad treatments he was subjected to at Colibasi in 1995 and later on at the Gherla penitentiary, from which he mailed his letter to APADOR-CH. Mihai Prundaru said he had been repeatedly beaten by staff members at the two penitentiaries and especially hit in the head (this treatment ceased after his latest transfer from Gherla to Colibasi in August 1997). The detainee declared that, because he had sent his complaint to APADOR-CH, an inmate turned him in and that members of the Gherla penitentiary staff beat, handcuffed and isolated him. He declared that at least four detainees from Gherla could testify to the way he was treated. APADOR-CH would like to find out why the detainee was transferred from Gherla to Colibasi without appearing as a defendant in any trial pending in court, after he had sent the letter to APADOR-CH and had been punished. Moreover, he is going to be transferred back again to the Gherla penitentiary, because the Colibasi penitentiary was intended only for “detainees who have committed a first crime punished by up to 10 years.” Why did Mihai Prundaru have to be transferred from one penitentiary to another? APADOR-CH has sent the General department for Penitentiaries the request to send Mihai Prundaru to any penitentiary but Gherla, if he had to be transferred at all. The detainee was convinced that he was going to be beaten and punished again at Gherla.
The association's representatives have also noted that Mihai Prundaru's thinking and speech were incoherent, therefore, they suggest that he should undergo a psychiatric examination.
V. MINORITIES IN ROMANIA
A. NATIONAL MINORITIES
With regard to national minorities issues, 1997 was a year of contradiction: while its first half witnessed the most spectacular developments concerning the rights of national minorities, both legally and practically speaking, the second half marked a recurrence of the nationalist discourse, promoted by some political figures (MPs belonging to all parties) and by some journalists. Even though the Government and the Presidency clearly disavowed this trend, it obviously influenced legislative developments during the second half of the year.
The Government that came into office in 1996 includes for the first time a Department for the Protection of National Minorities (Romanian acronym DPMN), which incorporates an Office for the Roma as well as several territorial offices. APADOR-CH constantly collaborated with DPMN in 1997.
1. Amendments to the legislation regarding the rights of national minorities
For the first time in Romanian history the Hungarian minority became politically integrated, as the Democratic Alliance of Hungarians in Romania (DAHR) — the political representative of the Hungarian minority — was co-opted in the Government. It should be stressed in this context that the fact that DAHR was invited to become part of the Government, the appointment of DAHR members as ministers, state secretaries, prefects and deputy prefects was well received by the Romanian public opinion, which regarded this situation as a sign that the Romanian political life has entered a normal path. Even in the media, this cooperation was regarded — at first — as a normal fact. Little and insignificant criticism was voiced. Starting with the second half of the year, the criticism was voiced more often, succeeding to monopolize a good share of media space and to influence part of the public opinion.
During the first months of 1997, until the Government issued the emergency orders that modified the Law on education and the Law on local public administration, APADOR-CH organised a series of meetings with representatives of DPMN to discuss the legal framework created by the enforcement of the Romanian-Hungarian Treaty. As the Treaty included Recommendation 1201 of the Parliamentary Assembly of the Council of Europe, the latter has become part of the Romanian domestic legislation and could be enforced directly. As Recommendation 1201 contains explicit provisions regarding the use of mother tongue in administration, by corroborating these texts with those of the 1991 Constitution, there appeared the legal possibility to allow local councils to establish the instances where mother tongue could be used directly and effectively in local administration (for further details, see the 1996 APADOR-CH Report).
In March, the Department for the Protection of National Minorities and APADOR-CH organised a meeting with prefects, deputy prefects and representatives of prefects' offices from several counties inhabited by various national minorities. During the talks, it became obvious that the lack of a legal culture represents a major obstacle to progress. The representatives of most prefects' offices declared that it is almost impossible to explain at the local level that a treaty ratified by Romania is similar to a law (for instance, with the Law on local public administration) or that it takes precedence over domestic laws. It even became obvious that local legal counsellors are to a certain extent against references to the supremacy of the Constitution. To sum up, the message was that instead of a creative, open legal thinking, consistent with the principles of interpretation and enforcement of law, it would be more efficient to elaborate norms in order to modify the already existing Romanian laws.
In May 1997, the Government adopted Emergency Order No. 22/1997 on the modification of the Law on local public administration. The order became effective upon its publication in the Official Gazette of 29 May 1997. According to it, in administrative-territorial units where a national minority represents at least 20% of the population, persons belonging to that minority will be allowed to use mother tongue in their relationship with local administration. This means the possibility to apply to administrative bodies in the mother tongue and the administration's duty to reply in the same language. In this sense, the order provides for employing bilingual or multilingual staff (nationality does not represent a criteria for hiring, but knowledge of those languages does). It also provides for the right to bilingual inscriptions in administrative-territorial units where a minority represents at least 20% of the total population. On the other hand, in councils where the number of counsellors whose mother tongue is other than Romanian is at least one third, it is provided that they may speak their mother tongue, if they choose to. Under these circumstances, the presence of a qualified translator is obligatory.
The adoption and enforcement of the order gave raise to a rather strong negative reaction. In principle, the reproaches referred to the fact that Hungarian mayors and local counsellors enforced it too quickly. The stands voiced in some newspapers were joined by members of the Government: The Minister of Interior said that it was enforced “too quickly” and the state secretary of the Department for Local Public Administration, Mr Grigore Lapusanu, issued instructions which modified the text of this order, asking that its provisions be enforced only based on a decision of the local council. In time, these anomalies disappeared; the fundamental reproach remained that an organic law was modified by means of an emergency order. It was announced that the adoption of this text will be opposed when it was going to be discussed in the Parliament.
Subsequently, the Romanian Government adopted Emergency Order No. 36/1997 on the modification of the Law on education. It became effective upon publication in the Official Gazette of 14 July 1997. According to the new text, many of the previous restrictions were removed. Among others, the order provides for vocational training in the mother tongue, for teaching Romanian history and geography in the mother tongue at all levels, for establishing public universities in the mother tongue.
This order modifies another organic law, which represented a first reason for discontentment expressed by some journalists and MPs. When it was submitted to be discussed by the Parliament, it gave raise to further nationalist discourses, very much similar to the previous years'.
Under these circumstances, APADOR-CH elaborated a press release sent to the press and Senate members:
“APADOR-CH REMARKS ON MODIFICATIONS
TO THE LAW ON EDUCATION REGARDING MOTHER TONGUE EDUCATION
OPERATED BY EMERGENCY ORDER No. 36 OF 1997
1. The government programme and mother tongue education
It should be stressed that, as a result of the latest modifications, rights related to mother tongue education match the level prior to the adoption of the Law on education No. 84/1995. Thus, Art. 106 para. 2 of Law 28/1978 provided for tuition, not just for learning specialized terminology in the languages of national minorities in vocational and professional training. Moreover, the 1965 Constitution introduced in Art. 22 the obligation of hiring bilingual or multilingual staff. Obviously, in order to hire such employees, it was necessary to create optimal conditions for them to study those languages. Individuals belonging to national minorities were fully entitled to ask why they lost those rights after 1990, in a regime which pretended to be based on human rights protection.
2. Romania and the international legislation on the protection of national minorities
APADOR-CH stresses that Romania is legally bound to come back on the legislation which led to restrictions of national minorities rights, in accordance with international documents such as the ‘Framework-convention on the Protection of National Minorities,’ the Document of the Copenhagen Reunion on the Human Dimension, the UN Declaration on persons belonging to ethnic or national, linguistic and religious minorities, Recommendation 1201, which have become part of the domestic legislation, being included in the Romanian-Hungarian Treaty and the Romanian-Ukrainian Treaty.
If the solutions proposed by Emergency Order No. 36 were adopted, Romania would be placed at the highest level of international standards in the field. Special mention must be made of the fact that the modification of the Law on education by means of this order are consistent with the European Charter on regional or minority languages, a document signed by Romania which awaits ratification by the Parliament. With regard to international standards, it should be mentioned that, as they themselves stipulate, they represent minimal regulations that states may improve if the internal situation so requires. This explains why in other countries such as Finland, Italy, Spain national minorities enjoy a higher status, with regard to the situation of mother tongue education inclusively. APADOR-CH believes that the Romanian legislation on mother tongue education, as it stands after being modified by means of Emergency Order No. 36, is compatible with the present situation in Romania.
Lately, the public opinion was faced with several clichés, in a manner reminding of the former legislatures, when the nationalist discourse and incitement to inter-ethnic hatred were paid dearly by the whole Romanian society in its relationship with European and Euro-Atlantic institutions. Such a cliché is the one according to which, allegedly, ‘Mother tongue education represents a decision against the Romanian language and is detrimental to Romanian children.’
Mother tongue education is a right persons belonging both to the majority and to minorities should enjoy. Ensuring that minorities have the opportunity to learn and be educated in their mother tongue does not mean additional rights; it simply means that a proper framework is created for them to exercise a right, on the same footing with the majority.
The Romanian language can be protected by ensuring optimal education conditions to Romanian speakers (belonging both to the majority and to minorities), by developing the national culture and not by preventing minorities from benefiting from comprehensive education in their mother tongue. Studying the history and geography of Romania in the mother tongue while also learning Romanian toponymy cannot be detrimental to the Romanian language and the Romanian state, as the two subjects are sciences that can be learned in any language, be it Romanian or a minority, regional or international language.
APADOR-CH urges the Romanian Parliament not to take into account extremist nationalistic challenges and to contribute to enforcing the government programme as it was adopted in December 1996.
The Board of APADOR-CH
16 September 1997”
APADOR-CH proposed an amendment to the Order. It approaches the study of the history of the Romanians and geography of Romania in Art. 120 (2) as follows:
“In primary school, history of the Romanians and geography of Romania shall be taught in the mother tongue, using identical textbooks and curricula as for classes with tuition in Romanian. In secondary and high school, these subjects may also be taught, by request, in the mother tongue, using identical curricula and textbooks with classes with tuition in Romanian, on condition that Romanian toponymy and names are transcribed and learned in the mother tongue.”
According to its wording, the sentence “In primary school, history of the Romanians and geography of Romania shall be taught in the mother tongue, using identical curricula and textbooks as for classes with tuition in Romanian” treats the study of the two subjects in the mother tongue as compulsory, not optional. It would oblige all the persons belonging to the 18 minorities living in Romania to accept that their primary school children learn the history of the Romanians and the geography of Romania in the mother tongue, although many minorities — Italians, Roma, Albanians, etc. — do not speak their mother tongue even at home. (When speaking of “mother tongue,” the authors probably took into consideration only the Hungarians.) The problem is valid even for Hungarians. What if a Hungarian community want their children to learn a subject in Romanian, for various reasons? Why should they not avail themselves of this opportunity? The most significant example is that of the Csango minority in Moldavia, where whole villages are ready to claim their Hungarian identity, but wish that their children are taught in Romanian.
The version proposed by APADOR-CH would be (art, 120 (2)*):
“Art. 120 (2)*: In primary, secondary and high school, history of the Romanians and geography of Romania may be taught in Romanian or, by request, in the mother tongue, using identical curricula and textbooks as classes with tuition in Romanian, on condition that Romanian toponymes and names are transcribed and learned in the mother tongue.”
APADOR-CH submitted this proposal to the parliamentary groups. It was analyzed by DAHR and several other parliamentary groups. A senator from the majority coalition presented it extensively in a Senate meeting in December 1997.
2. The issue of the Csango living in Moldavia
In the summer of 1997, APADOR-CH was asked to analyze the situation of the Csango in the Bacau-Neamt-Iasi area, the rights persons belonging to this minority enjoy, as well as instances of human rights violations. In order to obtain basic information, APADOR-CH contacted the State Department for National Minorities and the Democratic Alliance of Hungarians in Romania, but did not succeed in gathering much information. Later on, two APADOR-CH representatives went to Miercurea-Ciuc and discussed with Mr Ciceu Antal (Csicso Antal), president of the Association of Csango Hungarians in Romania. Mr Ciceu presented several cases he regarded as gross violations of the rights of persons belonging to this minority. The APADOR-CH representatives discussed the same matter with Mr Szocz Janos from the Szekel Museum of Ciuc, who made available several documents on this topic, including articles published from 1990 to 1994 in “Desteptarea,” a newspaper from Bacau, and “Ceahlaul” from Piatra-Neamt.
Following these talks, APADOR-CH decided to make investigations in the areas inhabited by Csango in order to get in touch both with inhabitants and with public and church authorities. In the period 22–23 August 1997, two APADOR-CH representatives went to several villages in the county of Bacau and met with individuals belonging to the Hungarian Csango minority and with church authorities representatives. The “Report on the investigation aiming to establish the situation of the Csango in Moldavia” reads as follows:
“The investigations led to the conclusion that there is a category of persons that claim to be Csango of Hungarian origin and who have a series of problems relating to the claim of their national identity.
A. On the Csango in Moldavia
There are more than one points of view regarding the origins of Moldavian Csango. Romanian and Hungarian historiography as well as works of Italian priests advocate either for the Romanian or for the Hungarian origin of Moldavian Csango. These historical aspects hold too little relevance for a person's right to claim appurtenance to a certain nationality, a fundamental human right provided and protected by international conventions ratified by the Romanian state.
All Moldavian Csango are Catholics. Subsequently, the priest and religious authorities are the most important authorities for them. Part of the Csango claim to have Hungarian origin, using on a day-to-day basis the Csango language, a sort of old Hungarian. It should be stressed that this language has, in its turn, several dialects, function of where it is spoken. Last but not least, there are Csango who speak the same old Hungarian but stress their Csango origin, considering that there are differences between the Csango and Hungarians, even if such differences make their presence felt in few aspects (songs, dances, customs).
B. Problems encountered by the Csango of Hungarian origin
During the interviews with persons belonging to this minority — who represent a sort of local leaders of the community of Hungarian Csango — several aspects perceived by the interviewees as violations of their rights were outlined.
In Lespezi Village, we talked to Zediu Stefan (whose brother was also present), Olaru Ioja and the priest, Marian Fekete.
In Pustiana village, we talked to a retired primary school teacher, Beta Ioja, who provided several documents on the topic of the investigation.
During the same fact-finding mission, we had a long talk with dean priest Stefan Erdes, from the Bacau Roman-Catholic Dean's Office.
One point worth stressing regards the Csango's keen interest in establishing their national identity. Therefore, it is easy to understand why they wish to state their identity.
The villages of Lespezi and Pustiana are inhabited in a overwhelming proportion (over 90%) by Csango who speak the Csango language on a day-to-day basis. At the same time, they are fluent in Romanian, and in school tuition is provided exclusively in Romanian for all subjects. The Romanian is also employed in the relationship with church authorities, being the language of religious service, sermon, prayer, confession.
Zediu Stefan, Olaru Ioja, Beta Ioja, who believe they are of Hungarian origin, complained about several aspects regarding the Csango stating their appurtenance to the Hungarian minority in Romania. They declared that the strongest feeling the Moldavian Csango experience is that of being an abandoned minority, whose wishes and dreams are of no interest to anyone.
1. The possibility to use mother tongue in church
All the applications filed with the Iasi Roman-Catholic Bishopric and with the Bacau Roman-Catholic Dean's Office to ensure a minimal religious service in the mother tongue were turned down, although in the period 1947–1959 the Hungarian Csango used to employ their mother tongue during religious service. The refusal was motivated by the fact that the Csango are Romanians and Romanian speakers. In this sense, it is noteworthy that, in the issues of local publications dating from 1990–1994, the Csango's origin occupied a prominent place and that several interviews with the Roman-Catholic Dean Stefan Erdes highlight unequivocally his opinion that ‘Csango are Romanians like all Romanians.’
The APADOR-CH representatives' discussion with Dean Stefan Erdes focused on the same idea, namely the possibility to ensure religious service in the mother tongue, either completely or partially. The Dean declared that the Iasi Roman-Catholic Bishopric does not consider it necessary to fulfil this wish as long as all Csango are Romanian speakers. He insisted that the Csango are of Romanian origin, but admitted that many of them speak the Csango language; he himself spoke it and even officiated in that language.
2. The study of Hungarian
The Csango dialect, or to be more specific dialects spoken in the various areas inhabited by Moldavian Csango are actually a form of old Hungarian, different from modern literary Hungarian and which the Hungarians do not understand. The discussions with Hungarian Csango, with the president of the Association of the Hungarian Csango in Moldavia revealed that the Csango do not want tuition to be provided in Csango or Hungarian, but in Romanian. The interviewees even stressed that it is essential for their children to have good knowledge of Romanian, because they live and will continue to live in a region of the country where Romanian is the only language used. Moreover, they said that they teach Romanian first to their children, to make sure they will be able to understand what they are taught in school; only later on, after one or two years of primary school, they start teaching them the Csango language.
At the same time, insisting on the fact that many of them consider they have Hungarian roots, they would like their children to learn modern Hungarian in school as a foreign language, more specifically for two hours a week. The APADOR-CH representatives learned that several applications in this sense had been filed with the School Inspectorate of the Bacau county but were turned down. Moreover, the Ministry of Education approved in principle this initiative, which was subsequently blocked at the local level. These facts are supported by the stories published in the local press.
Under these circumstances, children of school age, especially secondary school students, are sent either to learn Hungarian or to study in Hungarian, function of their knowledge of the language in the county of Harghita. A school in Miercurea-Ciuc accepted such children as interns, which was presented in the newspaper ‘Desteptarea’ from Bacau as an attempt to ‘hungarize’ Moldavian children.
Another opportunity to learn Hungarian would be to do so in private. In Lespezi village, for instance, Olaru Ioja organised a Sunday school in the yard of his own house and taught about 40 children. With the help of several organisations from Hungary, the children had the opportunity to visit Hungary and Slovakia, took part in poem, dance and folk song contests and even won important prizes, due to their good knowledge of Hungarian.
Actually, the adults' initiative to present their own traditions were greatly appreciated both in Romania and Hungary, any time they were invited to take part in various festivals.
With regard to teaching Hungarian in private, Olaru Ioja declared that in the several years since he had started doing this he had had many troubles with representatives of the Catholic Church and of local authorities. Thus, Dean Fekete mentioned his name in church, asking rhetorically the parishioners how a man who did not go to school much himself could teach Hungarian to children, the priest's intention being to discredit both Olaru and the whole action. The following day, Olaru Ioja was paid a visit by the chief of the village police and later on he was summoned to the police station, being ‘advised’ each time, in a threatening tone, to stop this activity. Each time Olaru Ioja defended himself by invoking Art. 6 of the Romanian Constitution, according to which the Romanian state guarantees the right of persons belonging to national minorities to the expression and development of their identity.
When asked about all the above, the priest, Marian Fekete, denied he had sent the chief of the village police to Olaru Ioja's, but insisted that his question regarding Olaru's intellectual capacity to teach the children was fully justified. In addition, he argued that all the children who took part in the private classes had some kind of material benefits, such as trips to Hungary, which allegedly proved they had attended the classes because they were looking for advantages and not out of their genuine wish to learn Hungarian.
On the occasion of this fact-finding mission, the APADOR-CH representatives learned that similar private initiatives had also been recorded in other villages, as this is the only way for the children of Csango who state their Hungarian origin to learn Hungarian.
3. The relationship with local authorities
The interviewees complained about the hostility of local authorities, saying that nothing had changed from this point of view as compared to the communist regime. Thus, all the persons the APADOR-CH representatives talked to — Zediu Stefan, his brother, Olaru Ioja, Beta Ioja — said that the 1992 population census did not record them with the nationality they had declared. In order to record false data, all mentions made on census sheets were written down in pencil and when the data was published only one person — a teacher from the village — appeared as a Hungarian, although several dozens — the interviewees among them — had declared they were Hungarians.
Another fact proving the attitude of local authorities regards the hostility of the Bacau County School Inspectorate, the police interference in matters that do not concern public order, which contributed all to influence the behaviour of Romanian Csango living in Moldavian villages. Thus, two of the interviewees declared they had witnessed an incident occurred in Cleja in 1995, when the Association of Hungarian Csango in Moldavia tried to convene one of their meetings. The meeting could not take place because a mob armed with agricultural tools went out in the street and acted violently, overturning the bus that had driven the participants, setting fire to the books they found. Eye-witnesses declared that before this violent manifestation a massive group of police officers had been driven to Cleja, but that they did not intervene to calm down the demonstrators, who settled down only when the Bacau county prefect intervened.
This incident increased the Csangos' feelings of fear and mistrust in local authorities.
4. Associative life and the relationship with DAHR
After December 1989, several associations and foundations of Hungarian Csango were established, but they have little activity and influence. The most active has been the Association of Hungarian Csango in Moldavia, based in Sfantu Gheorghe and currently chaired by Anton Ciceu (Csicso Antal), native of a Moldavian Csango village but living now in Miercurea-Ciuc.
In June 1996, the Association of Hungarian Csango in Moldavia became a member of DAHR, with a status of observer that it wishes to preserve for some time.
In June 1997, the Department for Education of DAHR elaborated for the first time a recommendation on teaching the Hungarian language in villages inhabited by Csango. The recommendation is addressed to the DAHR leaders, to the State Department for Minorities and to the Education Commissions of the two Chambers of the Parliament and is based on the studies of two sociologists from the Babes-Bolyai University (Poszony Ferenc, ‘Proposal on the study of Hungarian in rural communities inhabited by Csango in Moldavia’ and Tanczos Vilmos, ‘How many Csango are there in Moldavia?’).
1. Stating one's appurtenance to a national minority is a fundamental human right, enshrined as such in numerous international treaties ratified by Romania. Any hostile attitude manifested by the authorities should be regarded as a violation of the Romanian Constitution and of international human rights law.
From this perspective, infringing the declaration of national appurtenance of Csango with Hungarian origins during the 1991 census represents a human rights violation which should be set right.
2. The special interest showed by some Hungarian Csango in stating their national identity was hindered by the fears of the other villagers, rooted in the denationalization policy of the communist regime in the past 30 years. The fears did not vanish after December 1989, although Romania was proclaimed as a democratic state governed by the rule of law.
3. APADOR-CH considers that the interference of local police bodies in activities that do not hinder public order should not be admitted. In this sense, the threats proffered with regard to the teaching of Hungarian in private or the harassment of those who carry out such activities represents an obvious human rights violation.
4. With regard to teaching Hungarian as a foreign language in schools, APADOR-CH considers that the willing Hungarian Csango should apply for it at Romanian state institutions; there is no reason why such application would be turned down.
5. As for the possibility to ensure religious service in the mother tongue (or in Hungarian), this is a matter which, although extremely important for the Hungarian Csango, does not fall under the competence of the Romanian state; it is up to religious authorities, more precisely to the Roman-Catholic Church, to satisfy this demand.
It should be clearly specified that religious freedom is a fundamental human right, the exercise of which supposes also the right to practice one's specific rituals. As long as a community wishes that religious service, or at least part of it, be officiated in their mother tongue, to turn down this request, irrespective of the arguments, should be regarded as a human rights violation”.
3. The “Cserehat case,” Odorheiu Secuiesc
One of the most important and serious issues, through its potential consequences, regards the situation occurred in Odorheiu Secuiesc with regard to the special school/orphanage in this town.
APADOR-CH was notified by several members of a religious association, “Congregatia Inimii Neprihanite,” of their relationship with local authorities in Odorheiu Secuiesc, as well as of the incidents occurred at the end of May 1997. In order to analyze the case, two APADOR-CH representatives went to Odorheiu Secuiesc and Miercurea-Ciuc on 11 and 12 August 1997 to talk to the local authorities and consult some documents from the Townhall and the Court archives.
In Miercurea-Ciuc, the association's representatives met and talked to Mr Kolumban Gabor, president of the Harghita County Council, involved in the Cserehat case, who tried during 1996 and 1997 to act as an intermediate between the Odorheiu Secuiesc authorities and the Swiss sponsor, Basel Hilft. Mr Kolumban placed at the two representatives' disposal all the documents he had relating to this case. In Odorheiu Secuiesc, the APADOR-CH representatives met the mayor, Mr Szasz Jeno, and the Townhall Secretary. They discussed extensively all the details relating to this case, presenting their point of view, the events occurred in May 1997 and the current situation, including the way they planned to approach this situation for the future. APADOR-CH was granted full access to the Townhall files in connection with this case and benefitted from the necessary logistic support to obtain copies from the documents they needed, including copies of the court decisions pronounced in case files regarding the Cserehat case and of the Land Records which mentioned the Cserehat field.
The association's representatives also visited the building erected on the Cserehat plot, without being able to enter it, because the doors were still sealed. The analysis of this case was summed up in a report issued on 17 October 1997. The report was published in the “22” magazine. Its conclusions regarding the issue of human rights are as follows:
“1. The use of threats, insults and force
The Greek-Catholic nuns were expelled from the building where they intended to set up a ‘special school for orphans’ through a mass action, prepared by the local press upon the urges of local leaders, among them the counsellor Bardoczy Csaba. The furious mob that gathered on 28 May 1997 near the building erected on the Cserehat plot threatened and insulted the nuns inside. Several persons entered the building and used force to drag out the members of the association ‘Congregatia Inimii Neprihanite.’
After having discussed with the Greek-Catholic nuns and with witnesses from Odorheiu Secuiesc, we can state without doubt that the four nuns were not beaten as some journalists and commentators stated. However, they were taken out of the building against their will, by force. The use of threats, insults and force to solve a conflict of interests represents an inadmissible act, for which the local press, individuals from Odorheiu Secuiesc and local authorities that took part in the incident are responsible.
APADOR-CH considers that no arguments could justify the events occurred in Odorheiu Secuiesc, where the nuns members of ‘Congregatia Inimii Neprihanite’ were taken out by force from the Cserehat building.
2. Freedom of movement within Romanian borders
Both the public opinion and local authorities from Odorheiu Secuiesc contested, through their points of view published in the press and actions the right of ‘Congregatia Inimii Neprihanite’ to settle in Odorheiu Secuiesc. Thus, a universally recognized human right, acknowledged and confirmed by the Romanian Constitution was contested, namely the right of every individual to settle anywhere in the country, irrespective of the ethnic, religious or national composition of a locality. Obviously, in the case under scrutiny one could not invoke resistance to a forced change of the ethnic composition in the region, an action forbidden by internal and international law.
3. Intolerance of the local community
The local community's response to the building erected on the Cserehat plot is typical for a closed community, which regards with suspicion any potential ‘intruders.’ One of the ideas voiced and fostered for months refers to a ‘conspiracy’ against Odorheiu Secuiesc, the Szekel area and the Hungarians or to the Basel Hilft foundation's intention to change the ethnic composition of this county by bringing in more Romanians. The hundreds of persons of Romanian origin regarded as populating the region traditionally inhabited by Szekels as a result of the activity of the ‘Special school for orphans’ were regarded as a threat to the local identity. Press articles on orphan children sheltered in the Cserehat building, the fact that it was turned into an institution that ensured medical care to children with AIDS or that the region was populated with disabled persons reflect the negative sensitivity of the local community to these categories.
4. The abusive behaviour of local authorities
During the fact-finding mission, the representatives of local authorities APADOR-CH talked to made strong statements regarding their duty to protect the local community and defend its interests. This determination led, under these circumstances, to an abusive behaviour the implications of which were not always assessed.
The argument of local authorities that they have the duty to watch over the community's wishes and will is obviously true. The same thing happens for instance when plots owned by local authorities are granted, as was the case of the Cserehat plot. However, taking into consideration the options of the local community cannot lead to infringements of the national legislation and of legal principles. It cannot be used as a reason to defy the decisions made at a certain point, the documents of the Odorheiu Secuiesc local council signed until 1996, which were binding to the same extent as the ones signed after a new local council was elected.
Under these circumstances, initiating negotiations of the two parties involved, as Gabor Kolumban, president of the County Council did, represents a welcome action. It follows the logical trend of the local community and responds to the interests of this community without overlooking the rules of cohabitation in a more general framework. The Declaration of intentions — using the building for humanitarian purposes, cooperation with the local community, educating the children, irrespective of their nationality, in the mother tongue, etc. — proves that appropriate solutions could be found. Unfortunately, one of the most important actors, the Swiss investor represented by Cyrill Burger blocked the negotiations.
5. The right to property
The legal status of the plot and building have represented one of the key-controversies of this file. Irrespective of how the court will decide to rule in this case, two aspects are worth mentioning:
— The Government could not grant the Cserehat plot to be used by the Greek-Catholic Bishopric as long as it was private property, the right of use being one of the features of the right to property;
— The local council must observe in good faith the commitments assumed, including those with regard to leasing the plot, the right to property on the building, management and use of the school for the children.
APADOR-CH considers that the events occurred in Odorheiu Secuiesc are a result of the call to emotions and instincts which prevailed over reason and the rule of law. APADOR-CH is looking forward to learn about the decisions pronounced in the cases under trial. But legal solutions will not suffice. The situation in Odorheiu Secuiesc highlights issues regarding the mentality of local communities. The Romanian state has the duty to strive to make local communities feel less threatened. In their turn, the latter should come to terms with the realities of a pluralistic, democratic country, without betraying their interests and identity.”
Further events occurred in Odorheiu Secuiesc in December 1997, drawing the public attention again on the situation in that town. At the beginning of the month, the members of “Congregatia Inimii Neprihanite” went to Odorheiu Secuiesc to take possession of the building. They were accompanied by the Secretary General of the Romanian Government. His presence was perceived by local authorities as an intrusion in matters of interest to the local community; the situation became strained, which determined the authorities to bring an impressive number of gendarme troupes in town in order to guard the building and the nuns.
Under these circumstances, APADOR-CH and Liga Pro-Europa initiated negotiations between local authorities, the Swiss investor, his entrepreneur and the congregation. Initially, the organisers wished to invite local authorities as a party in negotiations, taking into consideration the role they played in straining relations at the local level. The negotiations proved how little the Romanian society and especially the opinion-makers, mainly the press, are prepared to settle conflicts peacefully, how little people are prepared to accept conflict management.
On the scheduled date, the representatives of the two organisations were present in town, expecting all involved parties to be present. The presence of journalists of country-wide media and of a senator was surprising, especially as they had not been invited by the organisers. It took a lot of arguing and a solution of compromise to convince both the media and the senator to withdraw. The compromise consisted in forbidding the local press from taking part in the negotiations, although it had not been called to cover the story, but as a party. On the other hand, the negotiation process proved how important it is for parties who regard each other as opponents to sit at the same table and try to talk. The result of negotiations, although far from ideal, succeeded in calming down the spirits, “cohabitation” becoming possible until the trials on the right to property come to an end.
It is also important to mention that the involvement of the civil society in solving the conflict was well received by part of the political class. Thus, an attempt of the Human Rights Commission within the Senate to become involved in this situation (by conducting its own investigation) was rejected. The rejection was based on the fact that the involvement of the civil society seems to have led to better results than the involvement of political figures and local authorities. This decision is very important through its significance: it should be regarded as an alarm signal for all the politicians who want to take advantage of misunderstandings whose ethnic character, even if partial, is obvious.
APADOR-CH and Liga Pro-Europa intend to continue this process but are going to decide on the most suitable approach.
B. RELIGIOUS MINORITIES: FREEDOM OF CONSCIENCE
1. General remarks
15 denominations are established by law in Romania, 14 of which were also acknowledged by the communist regime. After 1990, only the Greek-Catholic denomination was officially recognized. Other religious groups asked for recognition but were not granted an official status, some of them registering as religious associations. These are traditional Christian groups in Romania such as “Jehovah's Witnesses,” present in the country for more than 80 years, or groups such as Baha'i, a non-Christian movement that has attracted followers in Romania for decades, as well as brand new religious groups.
At the institutional level, the State Secretariat for Denominations is in charge of religious activity in Romania. This structure draws its roots from the former Ministry of Denominations and took over most of the organisation and human resources of the old ministry.
2. Legal aspects
a) Constitutional provisions
The Romanian Constitution regulates religious freedom in the sense of the more general concept of freedom of conscience. Art. 29 of the fundamental law provides:
“(1) Freedom of thought, opinion, and religious beliefs may not be restricted in any form whatsoever. No one may be compelled to embrace an opinion or religion contrary to his own convictions.
(2) Freedom of conscience is guaranteed; it must be manifested in a spirit of tolerance and mutual respect.
(3) all religions shall be free and organised in accordance with their own statutes, under the terms laid down by law.
(4) Any forms, means, acts or actions of religious enmity shall be prohibited in the relationships among the cults.
(5) Religious cults shall be autonomous from the State and shall enjoy support from it, including the facilitation of religious assistance in the army, in hospitals, prisons, homes and orphanages.
(6) Parents or legal tutors have the right to ensure, in accordance with their own convictions, the education of the minor children whose responsibility devolves on them.”
Art. 32 (7) of the Constitution reads: “The State shall ensure the freedom of religious education, in accordance with the specific requirements of each religious cult. In public schools, religious education is organised and guaranteed by law.”
Finally, Art. 6 (1) is also relevant for religious freedom. This article provides: “The State recognizes and guarantees the right of persons belonging to national minorities, to the preservation, development and expression of their ethnic, cultural, linguistic and religious identity.”
Constitutional provisions guarantee religious freedom clearly enough. Although the Romanian Constitution does not expressly provide the secular character of the state, the aggregate of constitutional provisions make implicit the secular character of the Romanian state.
b) Other legal regulations
The most important legal regulation on religious freedom in Romania is enshrined in a provision of the European Convention for Human Rights, which, in accordance with Art. 11 and 20 of the Romanian Constitution, is part of domestic law and takes precedence over other internal regulations. Art. 9 of the Convention provides:
“(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A controversial legal norm is Art. 9 (1) of Emergency Order No. 36/1997:
“The curricula of primary, junior secondary, secondary and vocational school shall include religion as a subject of study. The student, upon the agreement of the parent or legal tutor, shall choose the confession.
Denominations officially recognized by the state may apply to the Ministry of Education to organise a specific education, suitable for training the denomination's personnel, as well as to establish and operate structures of laic education within the national education system, coordinated and supervised by the Ministry of Education. Financial support for these structures shall be ensured by the respective denomination and partially by the state, in accordance with norms approved by the Government. Denominations officially recognized by the state are responsible with elaborating education programmes and curricula to be approved by the State Secretariat for Denominations and by the Ministry of Education.”
This regulation is controversial because it runs counter to freedom of conscience, to the extent to which it forces the children of non-theist or atheist parents to study a subject with religious character and be examined in it. It should be specified that students have to study an actual religion and not the history of religions. With regard to this article, one must keep in mind the 1995 decision of the Constitutional Court on the counterpart of this article in the Law on Education No. 84/1995. According to the ruling of the Constitutional Court, if religion is introduced as a subject, it does not force the children whose parents refuse religious education to take part in religion classes.
An important legal provision regarding religious freedom is included in the Penal Code as “Hindering the freedom of denominations.” According to this text,
“Hindering or disturbing the freedom to exercise a religious denomination, organised and functioning under the law, shall be punished by prison from one to 6 months or by fine.
The same punishment shall be applied for the deed of coercing a person to take part in the religious service of a denomination or to carry out a religious act in connection with the exercise of a denomination.”
3. The State Secretariat for Denominations and violations of religious rights
a) The legal framework
A drawback of the current Romanian legislation is the fact that Decree No. 177/1948 on the situation of religious denominations has not been annulled. Obviously, the articles that grossly disagree with the Constitution are implicitly abrogated. But implicit abrogation is an extremely difficult procedure, because it always supposes an interpretation of the legal norm. If one interprets it, one reaches the conclusion that the text runs counter to the Constitution or not and whoever is dissatisfied with the result may resort to a court so that, based on a charge of unconstitutionality, a final interpretation of the respective legal norm be reached.
Many of the competencies related to the field of religious denominations provided by Decree No. 177/1948 are included in Governmental Decision No. 2218/10 April 1995 on the organisation and operation of the State Secretariat for Denominations (which replaced the Ministry of Denominations). The Secretariat exercises these competencies in a way that, in the opinion of APADOR-CH, lays at the basis of violations of religious freedom. Thus, according to Art. 2 of Governmental Decision No. 2218/95:
“The State Secretariat for Denominations shall have the following competencies:
3. analyzes applications to set up new denominations, draws up the necessary documentation and makes proposals for their recognition, under the law;
5. makes proposals for the recognition by decree of chiefs of denominations, of diocese leaders, of other hierarchs and others assimilated to them, at the denomination's request, under the law;
9. analyzes, approves and promotes technical-economic documentation for building and repairing churches and other buildings belonging to denominations, under the law;
21. together with specialized central bodies subordinated to the Government and with local public authorities, supervises law enforcement with regard to the exclusive production and sale of specific articles and goods by denominations (...)”
It is obvious that some of the competencies granted to the Secretariat for Denominations run counter to religious freedom: state involvement in establishing the denominations' leaders; the distribution of competencies in a state governed by the rule of law, such as the Secretariat's supervision of law enforcement; other competencies could be employed abusively by the Secretariat (preparing the documentation to recognize new denominations).
b) Failure to recognize religious denominations in Romania
One of the constant complaints APADOR-CH was faced with regarded the fact that the State Secretariat for Denominations does not recognize the status of denomination for important religious organisations in Romania. Confronted with such denial, these organisations resorted to the provisions of Law No. 21/1924, applying to courts in order to be granted the status of legal entities, as associations. APADOR-CH issued a press release to notify the public opinion, as well as the State Secretariat for Denominations as well as other authorities:
“APADOR-CH PRESS RELEASE
on failure to recognize religious denominations in Romania
1) Lately, international human rights organisations took a stand against what they regard as a ‘fast deterioration of the religious situation in Romania.’ It all went so far that, at a time when Romanian authorities strive to prove convincingly that our country is compatible with European structures, such organisations ask in Brussels, based on the situation of religious freedom in our country: ‘Can Romania become a member of the European Union?’ Such alarm signals are not ungrounded. They take into consideration last year's actions against freedom of assembly of Jehovah's Witnesses, the violence in Insuratei village and, more recently, against baptists in Ruginoasa village. One may add the March 1997 letter of the State Secretariat for Denominations, stating that ‘the local constitutive parts’ of the 15 denominations recognized by the Romanian state ‘can be issued permits to build churches’ and that they are also the only ones that ‘may have and maintain alone or in association with others cemeteries for their believers.’ As a result of the letter of 25 March 1997, several town halls refused to issue the necessary permits to religious organisations that wished to build churches.
2) APADOR-CH considers that the main element which explains the violations of freedom of conscience in Romania consists of the refusal of the State Secretariat for Denominations to observe normal procedures of recognition for denominations that applied for it. The decisions of the State Secretariat for Denominations are even more difficult to understand as the present government programme clearly expressed the will to create a democratic society and to bring the country closer to European structures. The State Secretariat for Denominations invokes articles of Decree 177/1948 on the general status of religious denominations in Romania that run obviously counter to the Constitution of Romania to contest the rights of religious groups that have not been recognized by the Romanian state. On the other hand, in order to block the requests of other denominations to be recognized, the Secretariat declares the same decree ‘obsolete.’ APADOR-CH reminds that Decree No. 177/1948 and Government Decision No. 218/1995 on the organisation and operation of the State Secretariat for Denominations allows and even obliges the Secretariat to carry out recognition procedures if any requests are formulated in this sense. It should be noted that recognition of a denomination by the state is part of the freedom of conscience of the denomination's members and of their right to exercise religious belief. These rights and freedoms are guaranteed by the Romanian Constitution (Art. 29 paras. (1), (3) and (5)) and by international treaties Romania has ratified.
3) Taking into consideration the restrictions imposed on freedom of conscience in Romania and the way our country was prejudiced by the recent violations of this freedom, APADOR-CH urges the State Secretariat for Denominations to set into motion as soon as possible the procedures provided by Decree No. 177/1948 in order to recognize the denominations which have filed applications in this sense. Any delays of the Secretariat in complying with this duty will result in new damage, will give rise to new local conflicts and will contribute to Romania's isolation.
APADOR-CH urges the Romanian Government to analyze the structure of the State Secretariat for Denominations. This institution is part of public authorities and should have a laic status, as a guarantee that it discharges its duties with competence and in good faith.
The Board of APADOR-CH”
c) Requests to annul or refusal to issue building permits for churches
On 25.03.1997, the State Secretariat for Denominations sent to all town halls a letter requesting that they annul already issued building permits and refuse to issue such permits to religious organisations that have not been officially recognized. Following the complaints received by APADOR-CH, the association sent the Secretariat on 21 April 1997 a letter. Among others, the letter mentioned the following:
“APADOR-CH received a complaint from the religious organisation ‘Jehovah's Witnesses,’ according to which local town halls in Satu Mare, Radauti, Avrig, Hunedoara, Petrosani and Bucharest had annulled building permits on the basis of the letter of 25.03.1997 sent by the State Secretariat for Denominations.
After having analyzed the documents, APADOR-CH considers that the letter of the State Secretariat for Denominations and the decisions of the above-mentioned town halls represent violations of the Romanian Constitution's principles and provisions that can prejudice the rule of law, the internal situation and Romania's position in the international community.
Please provide us with information on:
— other instances when the State Secretariat for Denominations sent letters regarding Jehovah's Witnesses;
— the existence of applications from public authorities or private persons or organisations that could justify the decision of the State Secretariat for Denominations.”
The answer of the Secretariat was sent both to the association and to the press (!), being published in some journals. To sum it up, it refers to a decision of the Secretariat issued after receiving APADOR-CH's letter, to the over 500 religious organisations established upon the approval of the Secretariat on the basis of the Law on associations and foundations, as well as to the fact that it is impossible for the Secretariat to recognize new denominations because the appropriate legal framework — the provisions of the 1948 Decree — is missing. It is interesting to note the way this decree is used: when it comes to recognizing new denominations, it is regarded as annulled; when it comes to invoking the competencies of the State Secretariat for Denominations and to this institution's interference in matters related to religious life, it is still in force.
It should also be noted that the State Secretary who heads the State Secretariat for Denominations became, since 1992-1993, firstly assistant lecturer, then lecturer and professor at the Orthodox Theological Faculty of the Craiova University. In his position, he made an oath of allegiance to the Romanian Orthodox Church in order to train students in orthodox theology in the spirit of this church. APADOR-CH believes that his professional and religious status are incompatible with the position of representative of a secular state who establishes the relationship between state and religious organisations (acknowledged or not as denominations) and manages the relationships among these organisations.
After having received the Secretariat's answer, APADOR-CH drafted a set of remarks that sum up some of the principles on which the activity of this institution should be founded. On 17 May 1997, the text was sent to the State Secretariat for Denominations:
1) Your latest letter and the additional instructions of 30.04.1997 merely reiterate the previous document of 25.03.1997. By presenting the instructions of 30 April as a supplement to the 25 March document and by highlighting the right of religious associations and foundations ‘to build administrative headquarters and meeting places,’ you simply stress the previous opinion according to which only ‘local constituent parts’ of the 15 religious denominations officially acknowledged by the Romanian state ‘may be issued permits to build churches’ and that they are the only ones that ‘may have or maintain themselves or in association with others, cemeteries for their believers.’ As the association tried to stress and argue in the press release ‘APADOR-CH point of view on certain measures directed against Jehovah's Witnesses,’ this position of the State Secretariat for Denominations violates constitutional norms on freedom of conscience and international documents Romania has ratified, which have thus become domestic norms that take precedence over any other laws.
2) The fact that the State Secretariat for Denominations persists in this position is so much more difficult to understand as the disastrous effects of its policy can be fully assessed today. The fact that the appeal launched by the organisation ‘European Association of Jehovah's Witnesses for the protection of Religious Freedom’ and the press release issued in Brussels by the association ‘DROITS de l'HOMME sans frontičres,’ titled ‘Can Romania be accepted as a member of the European Union?’ are now on the table of Western Cabinets represents a blow to the present government, which has strived to convince the European and Euro-Atlantic structures that Romania abides by the principles of human rights and freedoms, of non-discrimination on any criteria, religion included. Obviously, when one mentions the high external costs of the policy promoted by the State Secretariat for Denominations, one should always keep in mind that the internal costs are even higher, because the lives of people are affected, and conditions are created for clashes between those discriminated on religious grounds and those who seem to enjoy protection (see, for instance, the events occurred in Insuratei and Ruginoasa).
With regard to your statement: ‘the provisions of Decree No. 177/1948 on the general status of religious denominations in Romania are outdated as far as the recognition procedures are involved.’ Decree 177 was (implicitly) annulled only in connection with the articles that violate Romania's Constitution or other subsequent laws. Until a Law on denominations comes into force, the above mentioned Decree and Governmental Decision No. 218 on the organisation and operation of the State Secretariat for Denominations (10 April 1995) are the only documents that ensure the enforcement of a right such as the recognition of a denomination, arising from the right to exercise religious beliefs. The freedom of conscience of a denomination's members, the exercise of their religious beliefs include beyond any doubt the recognition of the denomination as such. This is why it is an urgent duty of the State Secretariat for Denominations to set into motion the procedures stipulated by Decree No. 177/1948 in order to recognize the denominations that have asked for recognition. The unjustified 7‑year delay in recognizing such denominations has already harmed many persons, led to local conflicts whose long-term effects are hard to assess, contributed to Romania's isolation that the Government you are part of tries so hard to overcome. Invoking the absence of a law on denominations in order to prevent people from exercising their religious rights, one of which is recognition of the denomination they belong to, represents a violation of the Romanian Constitution and of international law. APADOR-CH is determined to approach other public authorities to solve as fast as possible this negative state of facts.”
As the State Secretariat for Denominations did not solve this situation, APADOR-CH issued the following press release:
“THE OPINION OF APADOR-CH
on some measures directed against
The State Secretariat for Denominations invoked Art. 9 of Decree 177/1948 on the general status of religious denominations in Romania to state that ‘permits to build churches, chapels, worship houses, synagogues, mosques, etc. or annexes shall be issued only to the local constituent parts’ of the 15 religious denominations officially recognized by the Romanian state and that ‘only the local constituent parts of the recognized denominations may have or maintain alone or in association with others cemeteries for their believers. Thus, the Secretariat violates Art. 150 (1) of the Romanian Constitution.
Art. 9 para. 1 of the European Convention is also infringed; the Convention is part of the Romanian domestic law and takes precedence over domestic norms where any inconsistencies occur (according to Art. 11 and 20 of the Romanian Constitution and to the Law on the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of the additional protocols to this Convention/1994).
For a country like Romania that applied to join the European Union the resolutions of the European Parliament which urge that the EU policy towards other countries be determined by firm respect for the secular state and religious freedom in those countries should be significant.
The right to religious freedom includes the right to practice the rituals of that denomination and consequently the right to build churches. The State Secretariat for Denominations does not distinguish between the existence of a denomination — whose religious freedom includes the right to build its own churches — and official recognition of a denomination, after which the respective cult would enjoy facilities granted by the state under the law.
A letter suggesting that Art. 9 of Decree 177/1948 is still valid, in order to influence local authorities to annul building permits for churches could be regarded as ‘hindering the freedom of denominations,’ a crime provided and punished by Art. 318 of the Penal Code.
Actually, the authorities' refusal to follow the legal procedure and register new denominations for seven years after the fall of the communist regime, on the basis of Art. 13 and 14 of Decree 177/1948 represents an infringement of religious freedom in Romania. The members of religious organisations that have not been recognized by the communist regime and the organisations as such were persecuted in the period 1990–1997. This fact shows that the refusal to recognize new denominations harmed the persons who try to exercise their religious freedom on the Romanian territory.
Given all these considerations, APADOR-CH:
1) Urges the State Secretariat for Denominations to annul the letter of 25.03.1997 and to inform the authorities it was sent to of this decision;
2) Asks the town halls to reconsider the decision to annul building permits for churches;
3) Urges the State Secretariat for Denominations to set into motion the procedures of official recognition for denominations which have applied to it in this sense.”
4. Violent actions based on religious appurtenance
During 1997, APADOR-CH received several complaints regarding violent actions directed against members of various denominations.
a) In Ruginoasa village (county of Iasi), on 30 March 1997, about 700 people gathered round the worship house used by a small group of baptists. When the 9 baptists got out of the house, they were assaulted by the mob. The local police officer did not intervene. The victims complained to the police. APADOR-CH asked the Ministry of Interior to investigate this case, stressing that in the association's opinion this was not “a wrangle between two groups of believers,” but an instance where baptist believers were mistreated in the presence and under the threat of hundreds of persons.
b) On 27 June 1997, in Rosu village, the orthodox priest Ion Ciuca assaulted together with other villagers 4 members of Jehovah's Witnesses religious association. Lieutenant Catanoiu, who was assigned to solve this case, pressured the harmed party, Rada Comarniceanu, to determine her to withdraw her complaint. According to Rada Comarniceanu, the police officer threatened to make trouble for her children at work.
Facut Teodor (as counsellor) and Dragoi Daniel (as a jurist), who assisted the victim in Rosu, also complained against the threatening and insulting behaviour of Lieutenant Catanoiu. The police officer did not conduct any investigation to solve the case.
c) On 23 June 1997, in Bobicesti and Lalosu villages, several members of Jehovah's Witnesses were assaulted by the orthodox priest Delureanu. The victims told the mayor about this incident. On 28 June 1997, a non-commissioned officer held the identity documents of the same persons and mocked them. He said he forbade them from distributing religious literature.
d) On 27 June 1997,in Tantareni village, six members of Jehovah's Witnesses were assaulted by the priest Stoica Alexandru from Tantareni, county of Gorj, in the presence of a non-commissioned officer from the police station in the village. Taken to the police, the six victims were insulted and hit by the priest; the chief of police did not intervene.
e) On 31 June 1997, in Cluj-Napoca, Sancraian Aurelia, member of Jehovah's Witnesses was fined by non-commissioned officer Mitrea Ovidiu for distributing religious literature.
f) In July 1997, in Pitesti, Oros Claudiu was stopped by an orthodox priest who forced him to go to the townhall. In the presence of the deputy mayor, the priest tore up Oros Claudiu's identification attesting his appurtenance to Jehovah's Witnesses. The deputy mayor declared he was against the existence of this organisation in Pitesti.
g) Other instances of violent behaviour against Jehovah's Witnesses occurred in Mizil (June 1997) and Tandarei (September 1997).
5. The MISA case
The organisation Movement for Spiritual Integration with the Absolute (MISA), a Yoga movement, was the target of libel and defamation in the media ever since it appeared in 1990. In 1996, these attacks were joined by public authorities interventions, which resulted in refusals to rent them rooms and even in assaults against several members. APADOR-CH stood up against the violation of the MISA members' freedom of conscience and made its position known to the public and authorities.
In 1997, the press campaigns against MISA continued; dozens of slanderous materials were published during the first half of the year in most dailies, not to mention television and radio broadcasts on this topic.
The APADOR-CH representative took part in Yoga classes held at Steaua sports club in March and confirmed that the articles which referred to these classes were ungrounded. During the investigation, the APADOR-CH representative encountered situations when, due to the pressures exercised by journalists and authorities, the management of some institutions reconsidered their decisions to allow MISA members to use the space as they previously agreed by contract or agreement.
Thus, on 9 March 1997, at 8 p.m., when the MISA students arrived at the Bucharest Factory for Electric Machines for their Yoga session, the door keeper announced that the session could no longer take place because he had his orders in this sense.
MISA also complained against other actions aimed at intimidating its members — such as the action of the 18th precinct police officers who stormed a MISA headquarters on 10 March 1997, 7 a.m., together with a group trained to fight terrorists. The persons found at the headquarters were handcuffed. In 1997, Gregorian Bivolaru, informal leader of MISA, was summoned every now and again to the police to give declarations on his activity.
In the second half of 1997, MISA was almost completely removed from the media's field of interest. At the same time, none of the complaints filed by MISA members led to any result.
6. The draft bill on denominations
In May 1997, the State Secretariat for Denominations brought in a new stage a draft bill on denominations that was required as early as 1991. It should be mentioned that the draft bill was discussed with representatives of the 15 recognized denominations, but that no human rights organisation was involved. This situation demonstrates a misunderstanding of the fact that not the denominations as such, but religious freedom of individuals should be protected . The draft bill has not been submitted to the Parliament.
The draft bill has numerous flaws and restricts religious freedom.
Thus, religious denominations are regarded and treated as entities under public law (Art. 16), instead of entities under private law. This is a misconception whose consequences are clear. The specific feature of entities under public law is that they are subject to imperative norms. Indeed, the authors of this draft bill mention the “denominations' duty” to contribute to “developing the moral-spiritual education of the whole society” (Art. 5). The draft bill states: “Within their activity, religious denominations have the right and the duty to organise the religious training and education of their believers” (Art. 35). Following this logical trend and trying to norm the internal life of denominations, the draft bill provides: “Nobody can be prevented from taking part in the religious service of another denomination” (Art. 9). But some religious services can be attended only by initiates. What kind of autonomy do denominations have and what specificity has their religious life if anyone may intrude at any time in their most private field?
Another fundamental flaw of the project is the different approach of religious opinions and atheist opinions. No state body or governmental institution is allowed to initiate, institute, homologate or fund programmes of atheistic propaganda (Art. 5). But denominations may ask and receive from the state the sums necessary to carry out their activities, therefore, funds for religious propaganda (Art. 56). This is a discrimination between “types of opinions.” Freedom of conscience involves freedom to believe and freedom not to believe. The state involvement in propaganda or its refusal to get involved can only be equal towards believers and atheists.
Some of the provisions above violate indirectly the autonomy of denominations, asserted in the preamble to the project. Others do so directly. Thus, the statute regarding the organisation and operation of denominations, established by each cult, should be confirmed by the President of Romania (Art. 14). The draft bill preserves almost word for word a provision of the communist regime, according to which leaders of denominations, as well as metropolitan bishops, bishops, superintendents, apostolic administrators and others holding similar functions shall be acknowledged, upon request, by presidential Decree... They should all be Romanian nationals (Art. 25).
The draft bill provides too broad competencies for the State Secretariat for Denominations. Among others, the Secretariat would ensure respect for and enforcement of the legal rights of denominations, eliminate any abuses, mediate mutual relations among denominations and their relations with central and local public administration authorities. These competencies are too broad because we are dealing above either with specific activities of denominations or with deeds falling under the incidence of specialized state bodies, such as the justice system. The role of a State Secretariat for Denominations is to assist religious activities in Romania and nothing more.
The articles most prone to criticism are the ones that intend to restrict freedom of conscience. Art. 22 provides: “In order to be able to function and organise their activity, religious denominations must be recognized by the state.” This provision is unconstitutional, as state recognition should not be a pre-requisite of religious freedom. Official acknowledgement of a denomination is merely meant to grant facilities the law is going to mention. Recognized denominations can live under the conditions mentioned in the draft bill, the others are practically excluded from religious life. The following article provides: “In their organisation and operation, associations and foundations that did not apply or applied and were not granted the quality of religious denomination cannot avail themselves of the rights and prerogatives of a recognized denomination.” What are these rights and prerogatives? “Carrying out religious actions, printing religious books, producing religious objects, building churches, employing paid staff.” All the elements mentioned above are part of their religious identity These provisions even run counter to the right of natural entities to carry out “religious activities,” to print religious books, to erect buildings (and churches, if they so wish) and so on.
APADOR-CH considers that what Romania needs is a law on religious freedom, not a law on denominations.
The basic principles of such law can and must be taken over from international documents, elaborated within the bodies Romania is a part of. Some of them: the principle of non-discrimination among various religious communities, the principle of equal treatment of believers and non-believers cannot be negotiated. It is also important to respect the denominations' right to define themselves. It is not for the state to decide if a religious group represents a denomination or not. Closely related to the requirement above is the right of religious communities to obtain the status of legal entity if they so desire. As for the prohibition of state intervention in the internal affairs of denominations, it obviously should include the state's non-interference in selecting or appointing the leaders.
7. The alternative utilitarian service
The Romanian Constitution provides under Art. 52 para. (2) that “The military service is compulsory for all Romanian male citizens aged twenty, except for the cases provided by law.” Practically speaking, the reference to cases provided by law represents the only constitutional support for the existence of an alternative service.
The law that enabled this alternative service is Law No. 46 of 5 June 1996 on preparing the population for defence. Art. 4 of this law defines this opportunity as the alternative utilitarian service:
“Citizens who, for religious reasons, refuse to discharge their military duties in arms shall execute the alternative utilitarian service as provided by the law herein.
The carry out of the alternative utilitarian service shall be established by Governmental decision.”
According to Art. 13, the duration of the alternative utilitarian service is 24 months. Art. 28 of the law also provides that the graduates of civil higher education institutions can avail themselves of the same opportunity. The duration of the service is 12 months in this case.
Therefore, the alternative utilitarian service is made possible only for those who invoke religious reasons, but not for those who refuse the military service invoking reasons of conscience.
Governmental decision No. 618 of 6 October 1997 dealing with the alternative utilitarian service takes over the conditions provided by law regarding the alternative utilitarian service chosen on religious grounds: “The alternative utilitarian service is a form of discharging the military service and shall be carried out by citizens capable to discharge their military service who refuse military service in arms on religious grounds” (Art. 1 para. 1).
It provides the procedures to carry it out, ways of enforcement, the rights and obligations of the employer and of the religious objector.
It is much to early to assess how this new institution will function. APADOR-CH joined a group of non-governmental organisations that will supervise the practical enforcement of legal provisions and will propose amendments to this law in order to extend the scope of alternative utilitarian service to situations where citizens invoke matters of conscience other than religious.
C. SEXUAL MINORITIES
Legally speaking, 1997 brought no changes relating to the criminalization of homosexual behaviour and preference.
With regard to individual cases, APADOR-CH continued to carry out its own investigations. For further details, see the chapters “The relationship between individuals and the police” and “Aspects from penitentiaries.”
VI.FREEDOM OF EXPRESSION
1. The project “Freedom of expression: The media and democracy”
An international organisation fighting censorship — ARTICLE XIX, based in London — coordinated a project on freedom of expression and free access to information. APADOR-CH and the Centre for Independent Journalism were the Romanian partners in this project developed in the period November 1996–June 1997. Four of the six seminars organised in Bucharest, Iasi and Brasov focused on the two topics — freedom of expression and free access to information — with journalists and jurists, one concentrated on information held by the Parliament and the last consisted of conclusions and recommendations, followed by the presentation of the Romanian translation of a guide for journalists issued by ARTICLE XIX.
The seminar focusing on information held by the Parliament concluded in fact the efforts of ten Romanian non-governmental organisation to draw up a set of concrete proposals to improve the relationship between MPs and constituents with regard to access to information. The following text was sent to both Chambers of the Parliament and made public.
“In order to ensure the transparency of Parliament debates in the two Chambers, the activities carried out in the specialized commissions included, as well as free access to information held by the Legislative, a group of ten non‑governmental organisations have drafted a set of concrete proposals that can be enforced immediately, without any modifications of the Regulations in force in the two Chambers.
Until the Parliament passes a law on free access to information, the ten non‑governmental organisations regard the implementation of these suggestions as an indispensable first step for the transparency of the constituent — MP relationship, guaranteed by the Constitution of Romania and characteristic to a democratic society.
1. To make the plenary sessions of the two Chambers accessible to any citizen, function of the available seats and without prior notification. In this sense, we propose the following:
1.1. to reserve a number of seats for the persons who wish to attend floor debates. Representatives of the media and accredited non‑governmental organisations will be exempted from this rule and allowed to attend both the plenary sessions and, upon request, the specialized commissions' meetings. On the basis of a prior application, they will benefit from accreditations valid for the duration of a parliamentary session. The criterion of the number of seats available shall not function for the above mentioned categories. Accreditations will be issued within 7 days since the application was filed;
1.2. the present system of access to the buildings of the two Chambers must be modified as follows:
a) to provide with badges distributed by a Parliament employee, function of the available number of seats, persons who wish to attend the debates;
b) to strictly limit the prerogatives of the Protection and Guard Service (SPP) to trace fire or other weapons carried by unauthorized persons;
c) to post in full view, in an accessible place, information relating to access to the Parliament precincts;
1.3. to appoint a person for each commission to work as a permanent liaison between commission members and the persons interested in commission works.
2. To ensure access to the Parliament's documents and agenda. In this sense, we suggest the following:
2.1. to post in accessible places at the entrances of the two Chambers as well as at parliamentary offices in each constituency the schedule and agenda of the two Chambers and the specialized commissions for the following week; such information should also be printed in the newspapers with national circulation;
2.2. to create a service (information office) able to make available, upon request, copies of the documents on the agenda of the Chambers and specialized commissions; (to establish a limit of pages that can be multiplied free of charge; to establish a minimal fee for whatever exceeds this limit); to provide information by phone/fax/mail, upon request, on the activity of the Chambers and specialized commissions; to ensure free access (remote access included) by electronic media to public interest information from the informational system of the Parliament;
2.3. to ensure free access to the libraries of the two Chambers and provide copies of the documents deposited in the two libraries for reasonable fees;
2.4. to post in an accessible place and publish in newspapers with national circulation the contact phones of Parliament members (commissions, parliamentary groups, standing offices) and of the technical staff of the Parliament;
2.5. to provide room for meetings between constituents and members of the Parliament;
2.6. for the printed and electronic media as well as for non‑governmental organisations, the accreditation grants automatically the right to access to all the documents on the table of specialized commissions or the plenum.
3. To observe the deadline (10 days) for the publication of full records of debates in the Chamber of Deputies in the Official Gazette, in accordance with the provisions of Art. 137 of the Chamber's Regulations. The same deadline must be observed for the Senate debates.
AAPADO—Brasov (Bar Association for the Defense of Human Rights)
AHNR—Arad (Association of Neuro‑Motor Disabled in Romania)
APADOR‑CH—Bucharest (Association for the Defense of Human Rights in Romania-the Helsinki Committee)
APD—Bucharest (Pro Democracy Association)
CPJ—Bucharest (Centre for Independent Journalism)
ALBAMONT Ecology and Mountain Tourism Club—Alba Iulia
CIVITAS Foundation for the Civil Society—Cluj‑Napoca
GRADO—Bucharest (Romanian Group for the Defense of Human Rights)
Liga Pro-Europa Targu-Mures”
Up to the time of this writing, the Senate had not responded to this text. The General Secretariat of the Chamber of Deputies, however, has taken a series of measures in the sense requested by the ten non-governmental organisations, establishing an office for the relationship with non-governmental organisations in particular and, in general, with individuals who seek access to sessions held by the Chamber of Deputies or ask for information. Unfortunately, a most important request — access to the meeting of the specialized commissions — has not been granted.
The recommendations adopted by the closing seminar of the project were made public. They cover the following aspects:
“1. To launch a public campaign in order to convince the Parliament to modify some articles of the Penal Code that jeopardize freedom of expression:
— Art. 168 para. 1: communication of false information should be subject to liability only where malice is involved;
— Art. 205 (insult) and Art. 206 (calumny) should be shifted from criminal law to civil law;
— Art. 207 (proof of truth) should also be shifted from criminal to civil law and restricted to ‘calumny’; it must include both the notion of ‘good or malicious intent’ and that of ‘public interest’;
— Art. 238 (offence against authority) and Art. 239 para. 1 (outrage) should be eliminated;
2. To launch a campaign to convince the Parliament to adopt as fast as possible a Law on free access to information. Such law should be passed before the Law on state secret;
3. To launch a campaign in order to convince the Parliament to modify the Law on national archives so as to severely limit restrictions to access to information.”
Throughout this project as well as after it ended APADOR-CH has constantly been concerned with concrete issues regarding violations of freedom of expression.
2. Individual cases:
a) Painter Constantin Ungureanu
One of the professional categories which are most prejudiced by limitations to freedom of expression is that of journalists who are prosecuted mainly on the basis of Articles 205, 206 and 238 of the Penal Code. Proving that they either are not familiar with or choose to ignore the case-law of the European Human Rights Court in Strasbourg, Romanian courts have sentenced to prison — with or without suspension — journalists charged with insult, libel or offence against the authority (see the following cases: Mazare-Cumpana from Constanta, “Opinia” from Buzau, Valentin Popescu from Constanta and so on).
A special case involved a painter, Constantin Ungureanu, investigated by the Suceava Prosecutor's Office under the initial charges of pornography, jeopardizing public morals, etc. after having opened a personal exhibition which shocked important prelates of the Orthodox Church. The investigation is still under way. The APADOR-CH representatives went to Suceava, saw the exhibition and talked to the painter and to other persons. The association's report reads as follows:
“Constantin Ungureanu has graduated the Art Institute and works as a teacher of art drawing at a school in Suceava. Meanwhile, he also enrolled for the courses of the Theological Institute in Iasi, but says he was expelled ‘for non-attendance.’ Constantin Ungureanu withdrew his school records, which specify that he had been expelled and registered at the Chisinau Theological Institute.
In 1996, he opened a personal exhibition, highly praised by both the public and art specialists. In parallel — and without questioning the artistic value of his paintings — several important representatives of the Orthodox Church declared they were shocked by the exhibition's poster, which depicted the painter's face surrounded by an aura, which was regarded as blasphemy.
In 1997, the painter opened a new exhibition, this time with no poster or promotion materials. The exhibition was organised in a basement difficult to access; there were no signs to point to its location. In other words, the exhibition was not accessible to any passer-by. The paintings represent male and female nudes; the sex is represented in minute detail, but there are no references to sexual acts. Some paintings clearly represent nudes of monks. The representatives of the Orthodox Church openly expressed their disapproval, considering that the paintings represent an encroachment on public morals, an impiety, a blasphemy and urging the police and the Prosecutor's Office to intervene. Besides the official complaints, priests from Suceava and the neighbouring localities were ‘instructed’ by high ranking prelates, according to Constantin Ungureanu and his wife, to ‘expose’ him in front of parishioners as a ‘madman,’ a ‘mental case,’ etc. Moreover, after the scandal stirred up by the exhibition, the murals he had previously painted in a church in Valea Putnei were erased upon the orders of orthodox prelates.
The indignation expressed by the Orthodox Church took its toll on the teachers form the school where Constantin Ungureanu is employed. His colleagues ‘exposed’ him, asked that he be fired, he was accused of lack of professionalism (?!), etc. An exhibition of his students' paintings gave raise to another wave of indignation at school, as the children's paintings ‘did not respect classicism, the only style authorized in schools.’
On the other hand, it seems that the Chisinau Theological Institute expelled Constantin Ungureanu. Moreover, the local press in Suceava started publishing accusations according to which the painter had used fake documents to be admitted to study in the Republic of Moldova.
The opening of his May 1997 exhibition was attended only by several persons expressly invited by the painter. It seems that one of the participants was as shocked as to call the police. On the other hand, the police might have been informed in advance. What is certain is that a group of police officers entered the exhibition and subjected the painter and some of his guests, who were forced to wait at the entrance of the basement, to a long questioning (which took approximately two hours and a half). The police officers tried to write a police report including a ‘description of paintings.’ Eventually, they gave up. The lawyers called by the painter's wife guaranteed that all the paintings would be photographed and the shots sent to the police, which actually happened.
Constantin Ungureanu gave two more statements to the police. Apparently, at the time of the APADOR-CH representatives' visit, the file drawn up by the police had been sent to the Suceava Prosecutor's Office. Constantin Ungureanu firmly believes that the pornography charges (?) had been dropped. He did not know what he could be charged with. Unfortunately, he also did not know for sure what the police had made him sign for: a declaration or a fine?”
b) Cases of journalists sentenced on charges of insult and libel
Several journalists were sentenced to pay fines on charges of insult and libel in 1997. In November 1997, three journalists were sentenced by different courts within several days on similar charges. APADOR-CH issued the following press release:
“APADOR-CH notifies the public opinion of the increasing number of journalists sentenced by courts of law in criminal cases. After the cases of journalists sentenced in 1996 to terms in prison — suspended or not — (see the cases of the journalists from Constanta or of the three journalists from ‘Opinia’ newspaper in Buzau) or to penal fines, this year at least three journalists have been charged with ‘insult’ (Art. 205 Penal Code) and ‘calumny’ (Art. 206 Penal Code) and sentenced to pay penal fines and pecuniary damages: Ada Stefan from ‘Romania libera,’ Florin Mircea Corcoz, press correspondent of the same newspaper and Marius Avram, a journalist from Cluj.
APADOR-CH wishes to draw attention to the fact that the present wording of Arts. 205, 206, 238 (offence against authority) and 239 para. 1 (outrage) runs counter to Art. 10 of the European Human Rights Convention and with the case-law of the European Human Rights Court, as well as to Art. 19 of the International Covenant on Civil and Political Rights. The association also reminds that, in accordance with Art. 20 para. 2 of the Constitution of Romania, ‘[W]here any inconsistencies exist between the covenants and treaties on fundamental rights Romania is a party to, and internal laws, the international regulations shall take precedence.’ Consequently, Romanian courts must pronounce sentences in accordance with international regulations in the field of freedom of expression.
APADOR-CH urges again the Romanian Government and Parliament to initiate and adopt in an emergency procedure a draft bill for the modification of the Penal Code abrogating Arts. 205, 206, 238 and 239 para. 1. Sanctions in the field of freedom of expression should be shifted completely from penal to civil law. Only thus could the exercise of freedom of expression, an essential right in a democratic society, be guaranteed.”
3. Access to information
Free access to information is in its turn guaranteed by the Constitution (Art. 31). However, as no law regulates its exercise, this constitutional right exists only on paper. Besides the difficulties stemming from the lack of a legal framework, free access to information is also hindered by other laws such as the Law on national archives or the Law on the Romanian Intelligence Service. It should also be mentioned that, although regarded as obsolete, the Law on state secret No. 23/1971 has not been explicitly annulled. There have been cases where leaders of institutions have prevailed themselves of the provisions of this law to turn down journalists seeking information. In 1996, the Romanian Senate passed a new draft bill on state secret and job-related secret, introducing restrictions almost as severe as Law No. 23/1971. According to regulations, the draft bill will also have to be discussed by the Chamber of Deputies. APADOR-CH, which has drawn up analyses of this draft bill during the past three years, stressing its serious shortcomings, will remain active at the moment when this law is discussed in the Chamber of Deputies.
VII. NATIONAL SECURITY AND INTELLIGENCE SERVICES
The issue of national security and its connection with human right represents a constant concern of human rights non-governmental organisations in many countries, including those with a strong democratic system, for at least two reasons: on the one hand, national security is often invoked as a legal basis to restrict the exercise of certain human rights (freedom of expression, free access to information, freedom of association, freedom of meeting, the right to privacy, including the confidential character of correspondence, etc.); on the other hand, because the actual activity of security and intelligence services may violate human rights; therefore, it is imperative both that the civil society monitor this activity and that these services are held accountable by the society.
Ever since it was established, APADOR-CH has expressed its concerns in this field, without actually developing a separate programme (such as the ones on police, minorities, etc.). APADOR-CH was the first Romanian non-governmental organisation to draft comprehensive analyses of the domestic legal framework and of the activity of intelligence services. Some of these analyses were published over several numbers of the Romanian Human Rights Quarterly as well as in other magazines, others were sent to the two Chambers of the Romanian Parliament or to the media.
1. Law No. 51/1991 on national security of Romania
The law was passed five months before the Constitution came into force. It often refers to the fundamental law which was still only a draft at that time. However, although it makes general references to constitutional principles, some concrete provisions of this law run counter to the letter and spirit of the Constitution, and the procedures it institutes are incompatible with the rule of law.
a) Thus, in situations regarded as threats to national security, Art. 13 of the law gives the opportunity “to carry out activities with a view to obtain information, consisting of intercepting communications, looking for information, documents or acts which, in order to be obtained, imply access to a place, to an object or to opening an object; seizing and placing back an object or document, examining it, gathering the information it contains, as well as recording, copying or obtaining summaries by any means; installing objects, maintaining and retrieving them from the places where they were placed...” Such activities impose restrictions on fundamental rights and freedoms guaranteed by the Constitution such as the right to privacy (Art. 26), inviolability of domicile (Art. 27), secrecy of correspondence (art 28) and by Art. 8 of the European Convention. Although the law specifies that such activities must be authorized by a prosecutor, Art. 13 para. 5 provides that “The warrant cannot be valid for more than 6 months. For well-grounded reasons, the General Prosecutor may extend the warrant for periods that cannot exceed 3 months.” As the law does not provide for a maximum time limit, theoretically speaking, it follows that such activities may be extended for as long as a person subjected to such control lives. According to Art. 49 para. (2) of the Constitution, restrictions to exercise of a right “may not infringe upon the existence of the respective right or freedom.” A pre-requisite for the right to exist is that its exercise may not be restricted on a permanent basis. Law 51/1991 provides for the possibility to restrict a right for undetermined periods of time, infringing upon its very substance.
A similar restriction is provided by Art. 27 of the law, according to which “Employees of intelligence services and persons with competencies in the field of national security shall be bound to preserve the state secret and job-related secret even when they leave the service under any circumstances.” As the law does not provide for a maximum period for which the obligation to preserve such secret is valid, freedom of expression of those employees (Art. 30 of the Constitution) and its corollary, the right to information (Art. 31 of the Constitution) are restricted to such extent that they are actually denied.
b) Given the fact that any restriction of the exercise of a right must be well-grounded in order to be justified, the law should have contained the necessary guarantees for such activities to be carried out in good faith. Unfortunately, Art. 15 allows the bodies involved in activities pertaining to the field of national security to carry out the activities provided under Art. 13 in the absence of an authorization “in situations which impose the elimination of imminent dangers.” The only obligation would be that the authorization provided by law (the warrant issued by a prosecutor) to be “requested as soon as possible, but no later than 48 hours.” Therefore, the obligation refers to requesting, not to obtaining the warrant. Moreover, the chapter on “Sanctions” provides that if activities subject to authorization are carried out without a warrant, this is punished by prison from one to 15 years, except for the cases provided under Art. 15. Therefore, simply by applying for a warrant, post factum, one is exonerated of responsibility, because the law fails to mention anything else for situations when the warrant is not issued, in which case such activities should be regarded as ungrounded, abusive, illegal.
c) Despite the fact that it refers to constitutional principles, the law infringes one of the most important of them: the separation of powers in a state and free access to justice. The final paragraph of Art. 13 provides that the person who feels harmed by the activities making the object of the warrant can only complain to the hierarchical superior of the prosecutor who issued the warrant. Obviously, if a warrant is extended by the General Prosecutor, this possibility disappears. It is true that the last paragraph of Art. 16 also provides that the harmed party may apply to “any of the standing commissions for defence and public order of the two Chambers of the Parliament,” but this situation can only confirm that the complaint procedures instituted by Law 51/1991 elude the judiciary. One could argue that after the Constitution came into force these provisions were completed with the “free access to justice” provided by Art. 21, but this would be a half-truth. It is necessary to institute procedures for this principle to become operational.
2. The institutional framework
Among state structures, the institutions involved in the field of national security play a decisive role in advocating for Romania's long-term interests at the international level. Given the very nature of their competencies, they are called to function independently of political circumstances. Their behaviour defines the state's capacity to defend human rights, to preserve internal stability and to ensure international credibility.
a) The Supreme Council of National Defence (Romanian acronym CSAT)
The institution with the highest and broadest powers in the field of national security is the Supreme Council of National Defence. CSAT was established by means of Law 39/13 December 1990 “to organise and coordinate in unitary command the activities pertaining to the country's defence and state security in times of peace and war...” The same law provided for the structure, powers and control procedures concerning this body. One year later, the Constitution, adopted by referendum, specified under Title III (Public Authorities), Chapter V (Public Administration) Section 1 (Specialized Central Public Administration), Art. 118: “The Supreme Council of National Defence shall organise and co-ordinate in unitary command the activities concerning the country's defence and national security.” Surprisingly, the Constitution does not specify its powers; the only mentions regarding this body refer to the examination of CSAT reports in joint sessions of the two Chambers (Art. 62 para. 2 letter f); the character of organic law of the legal text which regulates the organisation of CSAT (Art. 72 para. 3 letter d); the fact that the Romanian President shall preside CSAT (Art. 92 para. 1).
As for CSAT powers, they are not narrowly defined and enough controlled. While Art. 2 letters A, B and C of Law 39/1990 list the powers of this body, letter D reads as follows: “[CSAT] shall exercise any other competencies concerning the country's defence and national security” (emphasis added); there is no specification as to how these “other competencies” are assigned. Even the usual phrase “by law,” so often employed in Romanian law, is missing. It follows that this Council, although a public administration body, may substitute itself to the Parliament and has the power to take over any competence it regards fit in its field of activity, concerning the security of the country and its power structures. This fact is also demonstrated by Art. 9 of Law 39/1990, according to which “Decisions adopted by the Supreme Council of National Defence are binding for the country's citizens, as well as for the activity of all the other institutions and units it refers to.” As long as, according to Art. 58 para. 1 of the Constitution, “Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the state,” the binding character of CSAT decisions runs counter to the fundamental law, not to mention that, while a law is subjected to a constitutionality test either before it is passed or after, as an exception, these decisions issued by an administrative body are beyond any control.
It is obvious that ever since it was established CSAT was placed beyond any kind of democratic control. According to Art. 8 of Law 39/1990, it “...submits to the Parliament an annual activity report, through one of its members, and information at the request of the Parliament whenever the situation so requires,” but the law fails to specify the Parliament's powers — as supreme representative body of the people — in assessing this activity. Neither does the law provide for sanctions if annual reports are not submitted.
It should be mentioned that CSAT presented its first report to the Defence Committees of the two Chambers of the Parliament as late as 1997, that the report was not discussed in plenum and did not make the object of public debate in the media.
It should also be mentioned that, although the law provides that CSAT meetings take place trimestrially, CSAT met very often in 1997, practically speaking for any important decision concerning — even indirectly — national defence, the organisation of the Ministry of Interior, Romania's option to join NATO, the fight against corruption, so that at some point this institution was perceived as a parallel government.
b) The Romanian Intelligence Service (Romanian acronym SRI)
SRI was the first — and for a long time the only — body involved in the field of national security, functioning on the basis of a law and accountable to the Parliament.
Given the role of such a body in defending national security, therefore an issue regarding the interests of the society as a whole, the law should have provided guarantees regarding the independence of this institution. Although the SRI staff members are forbidden from joining political parties, neither the Constitution nor Law 14/1992 forbid the SRI director from being politically attached. He cannot be assimilated to the “SRI staff,” being appointed by the Chamber of Deputies and the Senate upon the President's proposal and ranking as a minister.
It is unacceptable for such institution with broad powers in the field of national security to be entitled, in accordance with Art. 43, to set up its own autonomous business entities. This means that an institution having access to all state secrets — including those which refer to trade companies whose activities present interest for the national security — is entitled to carry out trade and production activities. No parliamentary commission will ever be capable to make sure that SRI uses correctly in its trade activities the information it gathers to defend national security. This means that SRI is liable not only to fall under political influence, but also to be subjected to economic or financial pressure deriving from its interests in commercial transactions.
c) The Foreign Intelligence Service (Romanian acronym SIE)
In the period 1990–1998, SIE's activity was not regulated by law. Recently, the Parliament adopted and passed Law 1/1998 on the organisation and operation of the Foreign Intelligence Service. According to this law, SIE is “the specialized body in the field of foreign intelligence concerning national security and the defence of Romania and its interests.” Its powers are not specified in detail; its activity is “organised and co-ordinated” by CSAT. The SIE director submits reports regarding the way the institution discharged its duties only to CSAT. Actually, Art. 5 para. 2 of the law mentions the following: “the structure, staff, internal regulations and powers of the Foreign Intelligence Service shall be subject to approval by the Supreme Council of National Defence” (emphasis added). Thus, a legislative delegation was effected outside the constitutional framework, CSAT being entitled not just to set the priorities, but also the very powers of an extremely important intelligence service.
The decision of the Romanian Parliament to transfer part of its legislative competencies to CSAT comes as additional proof of a mentality according to which national security issues pertain exclusively to a special institution, beyond any control exercised by the citizens through the Parliament and so much the less through the civil society.
It is true that Art. 3 mentions the existence of parliamentary control through a commission made of three deputies and two senators, but the way this law is structured eliminates any possibility of control. On the one hand, Art. 3 para. 2 specifies the aim of parliamentary control as “checking if the SIE activity is consistent with the Romanian Constitution and with the policy of the Romanian state”; on the other hand, Art. 10 para. 2 stipulates that “sources of information, methods and means of work shall not be disclosed to anyone, under any circumstances” (emphasis added). It is true, the law specifies that “the means used to gather, check and turn to good account information shall not restrict citizens' rights and freedoms, their private life, their honour and reputation and shall not subject them to illegal restrictions,” but no one will be able to check compliance with this legal obligation as long as SIE means and methods cannot be disclosed to anyone, under any circumstances. This is a typical instance where constitutional guarantees are undermined by an inferior legal text.
Similar to the SRI, the SIE staff, made of military and civil employees, are banned from joining any political party; this obligation does not extend to the director of this institution.
d) Other “secret services”
It should be mentioned that, apart from SRI, there are several other institutions functioning in the field of national security in Romania. It is hard to specify how many there are, as some were established but do not function on the basis of laws; however, the SRI Director declared in the Parliament assembly hall in 1994 that there are six of them. Their activity is not subject to democratic control.
The activity of the Special Telecommunications Service was regulated by the Parliament only as late as 1996. Initially, it was established and functioned on the basis of Government Decision No. 229 of 27 May 1993. The service was created at the exact time when the Romanian Parliament was discussing the “Decision on the organisation and operation of the Joint Parliamentary Commission for SRI control.” The Governmental Decision did not specify its powers, stipulating only that the “organisation, operation and main attributions” will be established by CSAT. However, the decision stipulated the right of this service to carry out trade activities through its own companies. At the time when the law was issued, STS did not submit any report on its previous activities, regarding its potential trade activities.
3. The project “Secret services in constitutional democracies”
Given the past few years' developments and the Romanian authorities' lack of interest in effecting profound changes in this field, APADOR-CH intended to give new scope to its sporadic concerns for this issue. The first step was made when APADOR-CH took part in an international project on this topic.
The Centre for Studies on National Security, based in Washington D.C. — a non-governmental, non-profit organisation aiming to protect human rights in instances where the defence of national security is invoked — and the Helsinki Foundation for Human Rights in Poland initiated a project aiming to monitor the activity of secret services in Central and East European former communist countries and in the US, in partnership with non-governmental organisations from those countries. APADOR-CH is the Romanian partner in the project coordinated and managed by the two initiators. The project pursues to examine the legislation regulating the activities of such services, to compare the legislation of various countries in the field, to prepare some proposals meant to improve the legal framework, etc.
All partners met twice in 1997 and presented reports focusing on three aspects:
1. The legal framework regulating secret services in each country;
2. The legal framework for telephone and electronic surveillance, and
3. The right to information.
The participants also prepared a set of principles which, according to the participant non-governmental organisations should be taken into consideration by parliaments in each country when they adopt laws on national security and secret services.
As during the previous years, APADOR-CH continued to advocate for the modification of the law on the Supreme Council of National Defence, of the law on national security as well as of the laws ensuing from these which regard the organisation and operation of the Romanian Intelligence Service and of the Foreign Intelligence Service (recently finished). APADOR-CH expressed its reserves towards the law on the Special Telecommunication Service, officially not included on the list of secret services but exempted from democratic control (for instance, from the draft bill on the state secret). The association drew up commentaries regarding the draft bill of the Guard and Protection Service, not yet discussed by the Parliament. APADOR-CH consistently advocated for limitation of the number of secret services within ministries as well as for a clear definition of their powers and of the bodies they are accountable to.
4. The case of Captain Constantin Bucur
In 1996, Captain Constantin Bucur, former employee of the Romanian Intelligence Service, revealed to the public opinion the illegal methods used by this institution to wiretap the phone calls of journalists and politicians. Captain Bucur was investigated by the Military Prosecutor's Office and prosecuted on the basis of the law on national security.
At the beginning of this investigation neither the SRI nor the General Prosecutor's Office mentioned the existence of warrants to intercept phone calls. These warrants subsequently appeared, however, in his file. The court has the duty to ask the prosecutor who issued the warrants, at no matter what time, to bring arguments to support this decision. The SRI must also produce before the instance the evidence that determined them to ask for warrants to intercept the phone calls of journalists and politicians well-known for their criticism of authorities at that time. None of the surveyed persons was prosecuted for crimes related to national security. One may infer then that they were being monitored for reasons other than the defence of national security.
It should also be noted that at a time when the modification of the Law on national security is extensively discussed, because it fails to meet both constitutional guarantees and international standards, the Romanian Constitutional Court did not find Law 51/1991 unconstitutional. Therefore, the exception of unconstitutionality invoked by Captain Bucur's lawyers was rejected and the Military Court resumed hearings.
APADOR-CH believes that the situation disclosed by Captain Bucur is of public interest, which must prevail over any other considerations. Because the fact that SRI may intercept — with or without a warrant — the phone calls of whoever criticizes the power is of public interest and cannot be justified in a society which has the constitutional duty to respect the values of democracy and human rights.
VIII. OTHER ACTIVITIES
In 1997, APADOR-CH continued the activities developed during the previous years. The association:
— provided legal assistance free of charge in cases of human rights violations;
— provided assistance to the readers who attend the Documentation Centre functioning as part of the Human Rights Centre;
— issued the “Romanian Human Rights Quarterly”.
APADOR-CH also started a new two‑year project meant to review the whole Romanian legislation concerning the non-governmental sector, more specifically associations and foundations, and to provide draft bills or proposals to modify the current legal framework.
In 1997, the activity of APADOR-CH was sponsored by:
— The German Marshall Fund of the United States
— The Open Society Institute
— Mensen in Nood/Caritas (The Netherlands)
— USAID Democracy Network through World Learning Inc.
— Agir Ensemble pour les Droits de l'Homme (Lyon, France)
— The Phare Democracy Programme through ARTICLE XIX
— Charles Stewart Mott Foundation (USA)
 See APADOR-CH 1994, 1995 and 1996 Reports. See also R. Weber, “Siguran_a na_ional_ _i drepturile omului în România”, in the Romanian Human Rights Quarterly No. 6–7, 1994; M. _tef_nescu, “Din nou despre legea privind siguran_a na_ional_ _i Legea SRI”, in the Romanian Human Rights Quarterly No. 9, 1995; G. Andreescu, “Raportul Serviciului Român de informa_ii” (1993–1994) in the Romanian Human Rights Quarterly No. 6–7, 1994; G. Andreescu, “Raportul SRI, perioada 1994–1995: subminarea garan_iilor constitu_ionale”, in the Romanian Human Rights Quarterly No. 11, 1995; G. Andreescu and R. Weber, “Na_ionalism _i stabilitatea statului de drept în România”, in International Studies No. 1, 1995; G. Andreescu, M. _tef_nescu and R. Weber, “Access to information in Romania”, supplement of the Romanian Human Rights Quarterly, 1996.