SUMMARY:
I. INTRUDUCTION
II.
PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
General framework
The relationship with the Executive
The relationship with the Parliament
Other initiatives
III. THE
RELATIONSHIP BETWEEN INDIVIDUALS AND THE POLICE
General aspects
The relationship between APADOR-CH and the Police
Cases documented by APADOR-CH
The General Police Inspectorate lock-up
Conclusions
IV. ASPECTS FROM PENITENTIARIES
V. MINORITIES
IN ROMANIA
National minorities
Religious minorities: Freedom of conscience
Sexual minorities
VI.
FREEDOM OF EXPRESSION
The project “Freedom of expression: The media and democracy”
Individual cases
Access to information
VII. NATIONAL
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:
“PRESS RELEASE
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.
(...)
TO CONCLUDE,
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.
“APADOR-CH COMMENTARIES
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.
“APADOR-CH COMMENTARIES
on the
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
March 1997”
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.
“APADOR-CH COMMENTARIES
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.”
“PRESS RELEASE
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[1]
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. H