HUMAN
RIGHTS DEVELOPMENTS IN ROMANIA THE ACTIVITIES OF THE ROMANIAN HELSINKI COMMITTEE
(APADOR-CH)
1998 REPORT
CONTENTS:
I. PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
II. COLLABORATION WITH OTHER HUMAN RIGHTS
III. THE
RELATIONSHIP BETWEEN INDIVIDUALS
AND THE POLICE
1. General aspects
2. The relationship between APADOR–CH and the police
3. Cases documented by APADOR–CH
IV. ASPECTS
FROM PENITENTIARIES
A. Detainees' protests (Bucharest-Jilava penitentiary,
February 1997)
B. General aspects
C. The situation
in several penitentiaries.
Individual
cases
VI. NATIONAL
SECURITY AND INTELLIGENCE SERVICES
1. The legal
framework
2. The
project “Intelligence Services in Constitutional
Democracies”
3. Individual cases
VII. MINORITIES
IN ROMANIA
A. Religious minorities
B. National minorities
VIII. NON-PROFIT LEGISLATION IN ROMANIA
IX. OTHER ACTIVITIES
1998 recorded a series of political turmoils both within the ruling coalition and between the coalition and the other parties. That is why the executive and the legislative were practically paralysed during the first few months. After the Premier resigned and a new Prime Minister was appointed, almost the whole activity of the executive — as a draft bill initiator — and of the legislative focused on economic issues. Consequently, no progress was recorded in the field of civil rights protection, as the essential laws in this field — the Penal Code, the Penal Procedure Code, the Law on Police no. 26/1994, the Law on National Security no. 51/1991, etc. — did not change. The Government submitted to the Parliament a draft bill for the modification of the Penal Code and of the Penal Procedure Code, but the proposal was rejected. Other draft bills of extreme necessity, such as the Law on Access to Information, the Law on the Protection of Personal Data, the Law on the Carry Out of Punishments, the Law on Probation, the Status of Penitentiary Staff, the Status of Police Officers, the Law on Religious Denominations, the Law on Minorities, etc. have either not even been sketched or have been drafted but not yet submitted to the Parliament.
In 1998, the Council of Europe decided to interrupt the special monitoring on the observance of human rights by the Romanian state, although Romania has complied with few of the commitments made before the European forum in 1997, when it was decided that the monitoring be interrupted for one year.
The Romanian state lost in 1998 two cases before the European Human Rights Court in Strasbourg (the Vasilescu and Petra cases).
Throughout the whole year, APADOR–CH continued its attempts to determine Romanian authorities to improve the legislation related to civil rights, both by means of comments and suggestions on laws and draft bills and by calling attention to individual cases of human rights violations. APADOR–CH continued to conduct fact-finding missions on the basis of complaints regarding alleged police abuses. And same as during the previous years, the Military Prosecutor's Office issued no indictment decisions in most cases. APADOR–CH believes that such decisions — most of them disputable — maintain the idea of police “impunity” and block the victims' access to justice, which obviously runs counter to Art. 21 of the Romanian Constitution. Actually, it is worth reminding that the Constitutional Court itself issued a decision, published in the Official Gazette of 6 March 1998, which ruled that the decisions pronounced by prosecutors (be them civilian or military prosecutors) must be subject to the control of courts of law.
APADOR–CH co-operated closer than before with other non-governmental associations involved in the fields of civil rights and minorities (mainly national and religious minorities).
1998 witnessed improved relations between APADOR–CH and the General Police Inspectorate and a substantially developed co-operation with the General Directorate for Penitentiaries.
I. PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
From a legal standpoint, 1998 did not record the expected progress towards a genuine and effective protection of civil rights. The penal legislation — one of the most oppressive in Europe — remained the same. Several obsolete laws (the Law on National Security, the Law on the State and Job-related Secret) that should be radically amended have been submitted to the Parliament. Other draft bills aiming to reorganise thoroughly the police and the penitentiary system have still not been submitted to the legislative.
1. The Penal Code and the Penal Procedure Code
In order to comply at least with part of the commitments made by the Romanian state before the Council of Europe on the occasion of the one-year suspension (April 1997–April 1998) of the special monitoring process Romania underwent since it jned the European forum, the Government forwarded to the Chamber of Deputies, shortly before this one-year period expired, a draft bill on the modification of the Penal Coded and of the Penal Procedure Code. Summing it up, the draft bill meant to decriminalise same sex relations between consenting adults under all circumstances, to eliminate punishment by prison for insult and libel, to abrogate the offence against authority and verbal outrage, with subsequent modifications of the Penal Procedure Code.
APADOR–CH had called attention repeatedly and publicly (by means of television and radio broadcasts and press declarations) to the fact that a mere draft bill submitted to the Parliament — that would discuss and adopt or reject it — did not mean that the Romanian state had complied with the commitments made before the Council of Europe. Such conclusion could have been drawn only if the draft bill had been voted by both Chambers and promulgated.
Unfortunately, the draft bill was rejected in June 1998.
2. The law against abortion
At the beginning of February 1998, a senator submitted to the Parliament a draft bill against abortion. Upon the request of the Commission for Human Rights of the Senate, APADOR–CH made the following comments:
“1. The lengthy statement of reasons made by the initiator of this draft bill starts from the premise that all guarantees related to human and children rights are applicable from the very first hours of foetal existence. But all international human rights documents (the UN Convention on the Rights of the Child included) make reference to children rights after birth and to the mother's protection both before and after birth.
“2. The initiator mixes up religious morals with some medical information in order to justify not only the ban on abortion, but also on the use of contraceptive methods. The disastrous consequences of the similar measure taken during the Ceausescu regime, extended over a 30‑year period, have been deliberately overlooked. The results of that measure are well-known: thousands of women died because abortions were performed empirically, unwanted children were born and sometimes abandoned, women had to endure the humiliation of compulsory gynaecological examinations, stress was ever present in the life of couples, women were turned into breeding animals, etc. If repeated, this tragic error would probably have similar consequences.
“Demographic growth can be ensured by the state by means of social and economic measures meant to encourage families to have children rather than by the extreme methods provided in this draft bill.
“It should also be mentioned that in the Western countries where abortion is banned (Italy, Poland, Ireland, etc.), contraceptive methods, family planning and other similar practices are employed at a large scale.
“In addition, certain contraceptive means are at the same time a must in a society that wishes to protect people against HIV infection and, for these reasons, should protect itself by means of a strong campaign aimed at promoting such contraceptive means.
“3. Art. 22 of the Romanian Constitution (the right to life, to physical and mental integrity) invoked in the statement of reasons refers, obviously, to the right of persons; only by a far-fetched interpretation could this right be extended to the unborn child. Moreover, the initiator of this draft bill overlooked Art. 26 of the fundamental law (the right to personal and family privacy), proposing an inconceivable state interference with private life.
“For all these reasons, APADOR–CH urges the special commissions and the members of the Romanian Parliament to reject this draft bill.”
The draft bill was not submitted to the plenum of the Senate.
3. The Law on National Security
A draft bill for the modification of Law no. 51/1991 was introduced in the Chamber of Deputies at the beginning of 1998. In March 1998, APADOR–CH wrote and sent the following comments to the specialised commissions:
“1. Background
Law no. 51/1991 on National Security in Romania was adopted before 8 December 1991 when the Constitution came into force. The law contains several provisions counter to the Constitution, especially those related to human rights and fundamental liberties (protection of family, intimate and private life, secrecy of correspondence, freedom of expression, access to information, free access to justice, etc.). Despite the fact that the law has been repeatedly criticised by the civil society, the Romanian Government and the institutions directly involved showed no intention to modify the law. A proposal for the modification of this law, signed by seven deputies, was submitted to the Parliament no earlier than December 1997.
“A first remark would be that, although the draft bill contains slight improvements, it takes over almost all the principles on which Law 51/1991 was based and it adds other provisions liable to jeopardise human rights and the rule of law:
— it completely ignores the idea of public interest;
— it includes among the threats to national security certain activities that represent the natural exercise of human rights;
— it defines threats to national security too broadly — and very often too vaguely;
— it creates a legal hybrid, namely ‘the community of information’, by means of which it broadens too much the categories of persons and bodies entitled to carry out operative activities;
— there is no transparency with regard to the activities of intelligence services;
—t does not entitle the damaged party to the right to justice;
— it lacks provisions able to ensure a genuine effective control exercised by the civil society;
— it maintains the Protection and Watch Service, the intelligence department within the Ministry of Justice (the General Directorate for Penitentiaries) and the Special Tele-communications Service on the list of intelligence services, which makes Romania one of the few exceptions in Europe with regard to the inclusion of such bodies among intelligence services.
“Besides, the draft bill increases the role played by the Supreme Council for National Defence, broadening the scope of its competencies established by the law that regulates its activity.
“2. The draft bill on national security
Chapter I — General provisions
“Art. 2 maintains ‘the (citizens') moral obligation to contribute to the achievement of national security.’ The idea of a ‘moral obligation’ does not find its place in a law, because it cannot be quantified and cannot trigger legal consequences if not observed. Moreover, it could be invoked in order to determine a person to provide information, even though Art. 29 specifies that ‘human sources’ enter ‘a confidential consensual relationship’ (emphasis added) with the representative of the community of information.
“Art. 3 defines national security by listing the actions that represent threats to national security. Their number increases from the 12 mentioned in Law no. 51/1991 to 18 in the draft bill: this should not represent a problem in principle, provided that definitions are clear and impossible to interpret arbitrarily. But letter a) refers to actions and plans aiming at suppressing or violating the sovereignty, independence, unity and indivisibility of the Romanian state ‘in any way’, which could easily lead to abusive interpretations.
“Letter e), which regards espionage and the disclosure of state secrets ‘which jeopardise national security or prejudice Romania's international relations’, ends with the phrase ‘as well as any other violations of legal norms on the defence and protection of the state secret’, which means that the scope of this letter extends to other actions that have no connection with national security.
“Letter f) — communication of false news, data and information if the deed is ‘liable to prejudice national security’ overlooks an idea which is essential in any democratic state — and so does the Penal Code — namely the existence (and proof) of bad faith as a basis for sanctions. To be more specific, even if the legal or natural entity had communicated in good faith a piece of news which later on proved false, that entity will automatically fall under the incidence of either the Penal Code or the Law on National Security, which is tantamount to a serious threat to freedom of expression.
“Letter i) refers to ‘organising, perpetrating or supporting totalitarian, extremist or any other kind of action that could jeopardise the fundamental rights and freedoms of Romanian citizens, the rule of law or constitutional order, generally speaking...’ The vague wording employed again in this case allows for abusive interpretations. It should be noted that the draft bill does not promote the idea that in order to hold someone accountable, national security should be exposed to a genuine danger which could be demonstrated by competent bodies rather than to a theoretical threat (the phrase ‘that could jeopardise’ is very frequently employed in this draft bill).
“Letter j) deals with the idea of ‘defamation of the country and nation’, also present in the Constitution, despite the criticism, often expressed, that this conceptepresents a threat to freedom of expression.
“Letter s) refers to the activities of ‘unauthorised associations’, ‘if liable to jeopardise national security.’ The compulsory registration of associations is currently based on a very old law (Law no. 21/1994), which is going to be modified in order to be brought in line with international standards, which provide that associations can function without being officially registered. This formality should be observed only if the associations wish to enjoy a number of facilities provided by law. Actually, the existence of ‘unauthorised associations’ is constitutional, as freedom of association is guaranteed by the fundamental law.
Chapter II — establishment, organisation and co-ordination
of the ‘community of information’
“The community of information is a hyper-centralised body whose establishment is unjustified. Art. 6 lists the structures that it includes: intelligence services (SRI and SIE), ‘autonomous public authorities that contribute to accomplish national security’ (SPP and STS) and ‘departmental intelligence structures’ (within the Ministry of National Defence, the Ministry of Interior and the Ministry of Justice). It should be stressed again that structures such as SPP, STS and the intelligence department within the DGP (the Ministry of Justice) — the first two autonomous, the third with limited competencies — do not exist in any democratic country, SPP should be dealing with no more than its name indicates: a protection and watch service with no competencies as an intelligence service, subordinated to the Ministry of Interior, for instance. SPP should merely receive orders to protect certain dignitaries and places. The Special Tele-communication Service ensures from the logistic point of view the protection of communications at governmental level. As for the intelligence service within DGP — the only one of this kind in Europe — one could say that such body is useless. Any kind of information that might be potentially connected to national security (or any body of the judiciary) could be discovered during the criminal investigation and conveyed immediately to the prosecuting authorities (police, prosecutor's office). Some detainees might learn information of this kind from other inmates, reveal it to the penitentiary management which in turn could send it to DGP. The General Directorate could send them directly to the intelligence services (or to the judicial bodies) without maintaining a separate structure for this kind of activity. Art. 6 includes another objectionable provision: while SRI, SIE and STS function on the basis of special laws (the draft bill for the organisation and operation of SPP is being discussed), the intelligence structures within the Ministry of National Defence, the Ministry of Interior and the Ministry of Justice are regulated by means of governmental decisions, therefore they are not accountable to the Parliament.
“Art. 11 increases the competencies of the Supreme Council for National Defence (CSAT), so that this body:
— ensures ‘the collaboration between the bodies within the Community of information... and other public administration authorities’ (letter f),
— approves ‘the structure, number of staff and regulations on the basis of which the bodies of the Community of information function’ (letter g),
— approves budget plans (letter h).
“The same idea is resumed in Art. 25 para. 2, according to which CSAT can decide ‘on the percentage of employees working under cover out of the total staff number of each body within the Community of information.’
“Therefore, CSAT, a body with practically full powers that establishes its own competencies and is accountable to the Parliament only on theory will have full control over all intelligence services in Romania. The danger of establishing a power centre that escapes any genuine control is obvious.
“Art. 12 increases this danger, as it provides that CSAT decisions ‘shall be enforced by means of governmental decisions and orders of ministers and of the directors of bodies within the Community of information.’ This provision is obviously unconstitutional, as according to Art. 107 para. (2) of the Constitution, governmental decision ‘shall be issued to organise the execution of laws.’ But CSAT decisions are not laws. Moreover, it should be reminded that governmental decisions are not submitted to the Parliament for approval.
“It should be specified that regular citizens have no access to CSAT and governmental decisions, as all intelligence services are military structures and according to Art. 107 para. (4) of the Constitution, such decisions ‘shall be conveyed only to the institutions concerned.’
“Arts 30–34 regulate the interception of communications, surveillance — electronic surveillance included — and access to residences and other premises belonging to natural or legal entities. A first remark would be that, similarly to the provisions of Law 51/1991, prosecutors are the ones entitled to issue warrants to subject suspects to wiretapping and surveillance, although the Law on the organisation of the judiciary specifies clearly, after the latest modifications, that they are part of the executive power. It would be desirable for such warrants to be issued by magistrate judges; that would ensure an effective control of the judiciary over intelligence services as institutions of the executive.
“Art. 30 para. 2 provides that an application for such warrant ‘shall contain well grounded data and indications as to the existence of one of the threats to national security...’ The law should provide that the intelligence service is bound to prove to the magistrate that such surveillance methods are a last resort in solving the case, after all the other specific methods have been exhausted.
“Art. 31 establishes the duration for which such warrant is effective: six months, which can be extended by up to four three-month periods. It is an improvement as compared to Law no. 51/1991, which allows for an indefinite number of extensions ordered by the prosecutor. Still, besides the time limit, the law should also have introduced an assessment of the results and of the opportunity to continue the operation, made by the entity that issued the warrant, that is, the obligation that the intelligence service that applied for a warrant to report every three months to the authority that issued it.
“Art. 33 maintains a provision included in Law no. 51/1991 regarding ‘exceptional situations’ when interception, surveillance activities, etc. can be conducted ‘even without a warrant... which shall be requested (emphasis added) as soon as possible, but no later than 48 hours.’ The interpretation of this sentence is that intelligence services have the obligation to apply for the warrant, not necessarily to obtain it.
“Arts 31 and 34, final paragraphs, provides for the possibility — also stipulated by Law no. 51/1991 — of all citizens who consider that their rights have been violated to complain against the methods employed by intelligence services. Same as previously stipulated by Law 51/1991, citizens cannot resort to justice; the only remedies are complaints filed with the general prosecutor from the Supreme Court of Justice, with the Ombudsman or the specialised parliamentary commissions. All these choices are either insufficient or inefficient and they cannot be equated with access to justice, the citizens' protection being practically reduced to nothing.
“Moreover, the law does not provide for the obligation of the body conducting surveillance to notify the person that he/she had been under surveillance.
“Art. 35 and the following regulate the access to information owned by intelligence services and the flow of information. Their classification as state secrets, the access of a very limited range of persons and public institutions to this information, the high punishments provided under. Arts 41–47 for disclosure of such information and the refusal to enforce the provisions of Arts 30 and 31, etc. turn intelligence services into institutions intangible for the civil society. The ‘public interest’ for activities carried out by these services is disregarded by law, although these services are paid mainly from the taxes provided by taxpayers who have the right to know how their money is used.
3. Proposals to improve the draft bill on national security
a) the concept of ‘community of information’ and implicitly the structure bearing this name should be given up;
b) the Protection and Guard Service, the Special Tele-communications Service and the intelligence department within the General Directorate for Penitentiaries should no longer be included among the intelligence services;
c) several vague wordings included in Art. 3 should either be given up or clarified lest they should be misinterpreted;
d) judges should be the only ones entitled to issue warrants for interception of communications, surveillance, etc. Any judge from a county court should be entitled to issue such warrants after a thorough examination of all evidence provided by the intelligence service applying for a warrant. The judge should issue the warrant only if all the other specific methods used to gather information have been exhausted by the respective service;
e) the warrant should be valid for 6 months and followed by up to two three‑month extensions. Half through the first 6‑month period, the intelligence service will be bound to come up with the results of surveillance before the judge who issued the warrant. The latter will decide whether the surveillance should continue. If no new elements capable of justifying the need for surveillance have been discovered after the first 6 months, the judge shall not extend the warrant;
f) Art. 33 on exceptional situations should include not just the intelligence service's obligation to apply for the warrant, but also to obtain it;
g) citizens who consider that their rights have been violated by the activity of intelligence services should be able to lodge complaints with instances ranking higher than county courts. At the end of the surveillance warrant, if no legal measures are taken, citizens should be informed that they had been the object of such action; upon request, they should be given explanations about the grounds for surveillance. If the intelligence service refuses to provide explanations or if the evidence that triggered this procedure is unfounded, the citizen can sue the Romanian state, asking for pecuniary and/or non-pecuniary remedies for the damages caused by surveillance;
h) disclosure of secret documents, information and data will not be sanctioned if they reveal illegal activities carried out by intelligence services, given that such disclosures are a matter of public interest;
i) all intelligence services should be bound to provide to the public a minimum of contact information (addresses, phone/fax numbers, names of directors and their deputies, names of public relations officers, types of activities carried out) and to make public their annual activity reports;
j) the obligation of intelligence services employees and former employees to preserve the state secret should be limited in time function of the categories of secrets, so as not to deny the very substance of the freedom of expression and of the right of access to information.”
As far as APADOR–CH knows, this draft bill has not gone past the specialised commissions of the Chamber of Deputies. The association has learned about a similar draft bill initiated by the Democratic Party, introduced in the Parliament but not discussed yet by the specialised commissions.
APADOR–CH, together with other non-governmental organisations, has sketched another draft bill for the modification of Law 51/1991 on National Security. (See the chapter on “Intelligence services/structures.”)
4. The Law on the Security of State Secrets and Job-related Secrets
The draft bill was submitted to the Chamber of Deputies by the Government on 14 July 1998. APADOR–CH has issued the following comments, which have been distributed to the specialised commissions.
“A first draft bill for the modification of Law 23/1971 on the Protection of Secrets in Romania and of the Council of Ministers' Decision no. 19/1972 on some measures related to the protection of state secrets was introduced in the Romanian Parliament in 1993. The draft bill that resulted after lengthy discussions, controversies and amendments was adopted by the Romanian Senate on 7 February 1996.
“APADOR–CH constantly stressed the shortcomings of the draft bill and of the versions debated in the Senate up to the 1996 elections and insisted on the need to promote a draft bill on state secrets in parallel with or subsequent to the adoption of a law on access to information. In July 1998, the Romanian Government submitted to the Chamber of Deputies a draft bill on ‘the security of state secret information and job-related secret information’ which takes over to a great extent provisions formulated in the draft bill adopted by the Senate in 1996. By introducing such draft bill in the Parliament in the absence of regulations able to turn a constitutional guarantee (Art. 31 — access to information) into hard truth, the document's initiators ignored the provisions of their own governance program.
“APADOR–CH hopes that the Romanian Parliament will understand that the Law on the Security of State Secret Information and Job-Related Secret Information — which can only be restrictive from the perspective of human rights and fundamental liberties — must be immediately counterbalanced by a law on free access to information.
1. The draft bill on the security of state secret information and of job-related secret information
a) General remarks
“a.1. APADOR–CH stresses again that the latter category of information (the job-related secret) should not be regulated by means of the same — or another — law. The categories of information, documents, data, etc. that could be classified as job-related secrets should be established by the management of each legal entity. In order to avoid potential abusive decisions on the citizens' access to information owned by these legal entities, it would be sufficient if Art. 31 of the Constitution were brought into practice by means of a law;
a.2. The association believes that legal regulations on state secrets could be extended to cover legal entities under private law only if they run one or more contracts with state institutions directly involved in the field of national security. The law should cover only the field of activity covered by that or those contract(s) and not all the activities carried out by that legal entity;
a.3. APADOR–CH stresses again that the competencies the Romanian Intelligence Service (SRI) would gain on the basis of the new draft bill introduced in the Parliament exceed — same as provided in the previous draft bills — the limits established by Law 14/1992 on the organisation and operation of SRI;
a.4. The association points out that the new draft bill fails in its turn to ensure the access to justice of natural (or legal) entities who regard themselves as victims of violations of the right to access to information perpetrated by authorities.
b) The draft bill
b.1. Institutions which are not subject to SRI control
“Art. 9 para. 1 provides that SRI is in charge of ‘co-ordinating the activity and controlling measures related to the security of state secret information.’ Para. 2 lists the institutions which are not subject to SRI control: the Parliament, the Romanian Presidency, the Supreme Council for National Defence, the Ministry of National Defence, the Ministry of Interior, the Foreign Intelligence Service, the Protection and Guard Service, the Special Tele-communications Service and the Ministry of Justice, which are entitled to establish their own structures to defend state secret. In addition to this list, one should also remind the Central State Office for Special Issues and the National Administration, an institution subordinated to the Ministry of National Defence with regard to the co-ordination and control of measures related to the defence of state secret information.
“It should be stressed that while the activities of SRI, SIE, SPP and STS are subject to the control exercised by specialised parliamentary commissions, all other structures established to ensure the security of state secret information within the above mentioned bodies escape democratic control, which is unacceptable. Moreover, as far as APADOR–CH knows, no other country with a well-established democratic system has any structure within the Ministry of Justice that owns state secrets. (Romania is, according to the information gathered by APADOR–CH, the only European country that has a ‘secret service’ in charge of penitentiaries, subordinated to the Ministry of Justice).
“Art. 3 provides: ‘Defence of the state secret represents a legal obligation and a civic duty of all Romanian citizens, by means of which they express their fidelity to the country.’ This wording takes over the constitutional thesis according to which ‘Fidelity to the country is sacred’ and develops the idea expressed in the Law on National Security, according to which, in the light of this fidelity, ‘Romanian citizens have the moral duty to contribute to the achievement of national security.’ It is disputable whether notions such as ‘moral duty’ or ‘civil duty’ find their place in a law, as they create obligations which, if violated, cannot trigger the application of a sanction. APADOR–CH believes that the duty to protect state secrets is up to the restricted categories of persons that actually work with state secrets.
“According to Art. 4, authorities and public institutions, business entities, as well as any other legal entity under private law are entitled to establish their own regulations in order to restrict access to job-related secrets. Further details in this respect are provided in Chapter III (Arts 14–18). Job-related secrets are defined quite vaguely as ‘other than those representing state secrets, established as such by the head of the institution... and whose disclosure is liable to jeopardise the institution's interests.’ The legal logic governing the rule of law imposes the obligation of all laws to specify the contents or elements of the terms they use. But it should be specified first and foremost that job-related secrets should not be regulated in a law on state secret. In the absence of a law on access to information, this article actually bans any possibility to obtain information, regardless of the source, on account of the ‘job-related secret.’ It is true that Art. 18 forbids ‘the classification as job-related secrets of information meant to insure, through their nature or contents, citizens' information with regard to public affairs and to matters of private interest, or in order to help or cover up for attempts to evade the law.’ But the guarantee that these actions are correct, namely judicial control, is missing. It is imperative that the establishment of these categories of secrets be challengeable in court, because no head of an institution, irrespective of the nature of property, could be invested with full powers in this field.
“Art. 4 corroborated with the competencies gained by SRI by Art. 19 letter i) allows this institution, upon the request of natural and legal entities under private law, ‘to grant specialised assistance for the protection of the secrets they own, other than state secrets...’ (emphasis added). This is actually a gross violation of the character and competencies of the Romanian Intelligence Service, which is, according to Art. 1 of Law no. 14/1992, ‘the state institution specialised in the field of information relating to Romania's national security, a component of the national defence system...’ (emphasis added).
“The 14 paragraphs of Art. 7 list the types of information classified as state secrets. The draft bill includes certain categories which can obviously be labelled as state secrets. On the other hand, letters f) and g) include among these categories the activity, means, methods and equipment of ‘public authorities that carry out activities in the field of information’, that is, SRI, SIE, SPP, STS and the similar structures of the Ministry of Interior, the Ministry of National Defence and the Ministry of Justice. This eliminates any opportunity for the civil society to exercise control over the activities of these structures/bodies. Letters h) and i) provide that documents relating to ‘the whole national geodesic and gravimetric network’, ‘topographic maps and sketches’, ‘studies and geological surveys by which the national reserves and rare, precious, disperse and radioactive metals and ore are assessed’ are state secrets. This sounds childish at a time when hundreds of satellites launched by the big — and smaller — powers can gather all this information. One may infer that the state secrets mentioned under letters h) and i) are protected only from the potential curiosity of Romanian citizens.
“Art. 7 letter j) deserves special attention: ‘scientific, technological or economic activities, including investments connected to state security or national defence or which present special importance for Romania's economic or technical and scientific interests’ (emphasis added). A legal text which classifies certain data and information as state secrets should define them limitatelively. In the case under scrutiny, the wording is very general, exceeding by far the field of national security, national defence and state secret.
“Art. 7 letter m) introduces an additional series of information classified as state secrets, namely those relating to ‘the Romanian state's foreign relations and activities, apart from those that can and must be made public, according to the law.’ However, in the absence of regulations relating to data, information, documents that can and must be made public and of a law on access to information in general (although the constitutional guarantee does exist), any information relating to external relations and activities can be blocked by virtue of this legal text.
“Art. 7 para. n) mentions ‘other fields established by law.’ What law? The current one, or future law(s)? Could one infer from this wording that any future law will be able to add new categories of state secrets, apart from the 14 fields already mentioned by this draft bill?
“Art. 8 provides a classification of state secrets into three categories — ‘top secret of special importance’, ‘top secret’ and ‘secret’; the only function of this classification could be to further the confusion for, as long as these notions are not defined in any way, there are no specific sanctions applicable for their violation and no different regulations as to their registration and protection. The draft bill also introduces the term ‘confidential’ whenever state secret information ‘is meant to be disclosed strictly to specific persons.’ The article does not specify whether any information may be labelled as confidential, regardless of the category it belongs to.
“The classification is going to be established by governmental decision, therefore it will not be subject to parliamentary approval.
“The law does not provide anything in connection with the declassification of state secrets: within what terms they can be disclosed, under what circumstances, when the ‘confidential’ character disappears and who is entitled to decide on that, what happens if a piece of information is proved to have been erroneously classified as a ‘state secret, irrespective of the category’, etc. But first and foremost, how could the decision to include among state secrets information that do not have this character be challenged and sanctioned?
“Art. 11 provides that ‘public authorities... as well as other central institutions shall draw up their own lists including categories of information classified as state secrets in their own fields of activity. The lists... shall be sent both to subordinated bodies, for which they are compulsory, and to the Romanian Intelligence Service.’ The Parliament, the Presidency, the Superior Council for National Defence, the Government, other intelligence services are exempted from this obligation. APADOR–CH considers that all these lists, without exception, must be made public so that each citizen may be aware of what kind of state secrets (and not documents as such) are managed by each public authority and central institution. Thus, no Romanian citizen could be accused of failing to observe a law that classifies even the lists of secrets.
“Art. 19 letter a) entitles SRI to check on how legal norms relating to the security of state secret information are observed and enforced. This actually means that this institution substitutes itself to the judiciary, violating at the same time Art. 5 of Law no. 14/1992, according to which SRI provides assistance upon request.
“According to Art. 19 letters c) and d), SRI ‘carries out verifications and provides data on persons currently or going to be employed... in positions that suppose access to state secret information’ and ‘approves proposals to appoint persons that shall carry out activities related to the security of state secret information...’ Persons who are ‘currently or going to be employed’ will be asked to give their written consent to be checked out. What happens if such person refuses to consent? Will he or she be fired — or not employed — because of that? Will this situation not run counter to the Labour Code, the Law on the Collective Labour Contract and other laws in the field? As for the approval of proposals ‘to appoint persons that shall carry out activities related to the security of state secret information’, the law does not specify whether this approval is binding or optional.
“Art. 19 letter f) entitles SRI to carry out ‘preliminary activities relating to the violation of norms on the security of state secret information, in accordance with conditions stipulated by the Penal Procedure Code’ (emphasis added). Law no. 14/1992 provides under Art. 12 para. 2 that ‘Upon the request of competent judicial authorities, specially appointed employees of the Romanian Intelligence Service can offer support in conducting criminal investigations in cases of crimes related to national security.’ The Penal Procedure Code, modified in 1996, provides under Art. 224 para. 2 that ‘...in order to gather the data necessary for the penal investigation bodies to initiate the penal procedure, preliminary acts can also be carried out by operative staff of the Ministry of Interior, as well as of the other state bodies involved in the field of national security, specifically appointed to this end, for deeds representing threats to national security under the law.’ It should be noted that the wording evolved from ‘upon the request of judicial bodies’ and ‘may offer support’, used in the Law on the Romanian Intelligence Service, to ‘may carry out’ (without prior request) in the Penal Procedure Code and the imperative ‘shall carry out’ used in the draft bill under scrutiny. Actually, this provision means that SRI will be entitled to ask for a warrant to intercept one's phone calls and to conduct surveillance activities for 30‑day periods on the basis of Art. 224 of the Penal Procedure Code, under the pretext that they carry out preliminary activities for deeds which could represent threats to national security, besides the similar warrant they can apply for on the basis of Art. 13 of the Law on National Security (valid for six months, but which can be extended for an indefinite number of times). In other words, instead of providing an increased protection against potential abuses perpetrated by authorities, the draft bill diminishes this protection.
“Art. 19 letter j) entitles SRI to ‘check whether the norms relating to the security of state secret information are observed and to apply the sanctions provided by law; when the deeds represent crimes, to notify the competent judicial authorities.’ However, according to Law no. 14/1992 on the organisation and operation of the Romanian Intelligence Service, the application of sanctions does not fall under the competencies of this body.
Chapter V refers to duties, responsibilities and sanctions.
“Art. 21 para. 2 provides that persons entrusted with state secret information are bound to ensure their security even ‘after the person has ceased to provide that service or to occupy that position or the circumstances under which that person learned about state secret information or job-related information have disappeared.’ As long as this obligation is not limited in time and because the law makes no provisions related to the declassification of information, one may infer that a person who has come across state or job-related secrets will never be entitled to disclose such information under any circumstances, not even when the public interest so requires.
“Art. 23 para. 1 provides that the employee must ‘notify at once’ the manager of the institution who will notify, in his/her turn, the Romanian Intelligence Service and the penal investigation bodies, if necessary. Art. 23 para. 3 provides that any person ‘who learns about the contents of state secrets or takes possession over such secrets outside his/her duties’ must notify the Romanian Intelligence Service. Given that no one can know for sure what data, documents or information are state secrets, the provisions of this article can encourage denouncements and abuses.
“Practically speaking, presumption of innocence becomes inoperational. Anyone is supposed to be informed about everything that may be classified as state secrets and to notify SRI, the penal investigation bodies, etc. if he/she learns about the contents of such information. One should also bear in mind that each institution is under the obligation to draw up lists of documents, information, data, etc. classified as state secrets and that these lists are practically not accessible to the public.
“Arts 25, 26 and 27 refer to sanctions. The punishments range from 2 to 7 years' imprisonment and the denial of certain rights for ‘the theft, unauthorised destruction or modification of state secrets’ and from 3 to 10 years in prison and the denial of certain rights for ‘any form of unauthorised disclosure, transmission, dissemination or publication of state secrets’ (Arts 25 and 26). The attempt to perpetrate such deeds is punishable in both situations. Both provisions run counter to the current version of the Penal Code, which provides different punishments for such crimes. Art. 27 refers to offences established by governmental decision (which escape parliamentary control); such punishments are also applicable to legal entities. The agent in charge of establishing and sanctioning the perpetration of such offences is the Romanian Intelligence Service (Art. 19 letter j), although, as mentioned above, Law no. 14/1992 does not allow this.
“According to Art. 29, the Government is entitled to issue decisions relating to the classification of state secret, to data registration, drafting, multiplication, transportation, transfer, etc., as well as to the conditions regulating access to state secret information, norms on the protection of job-related secrets provided under Art. 15, offences, etc. Actually, the conditions regulating access to job-related secrets should be provided in a separate law and not be established by governmental decisions. If this provision is maintained, it follows that the executive substitutes itself to the legislative.
CONCLUSIONS
“1. The draft bill seriously jeopardises fundamental rights and freedoms such as access to information, free flow of information, freedom of expression, presumption of innocence, etc. At the same time, the draft bill represents an invitation for citizens to denounce each other, while SRI becomes a control body whose competencies go beyond those stipulated by Law no. 14/1992;
“2. The law does not provide for any possibility to challenge in court potential abusive decisions made by SRI and, even to a lesser degree, those made by other state agencies exempted from the provisions of the current draft bill. On the other hand, neither does the law provide that a person whose request for information was denied on grounds that it is classified as a state or job-related secret can challenge this decision before a court. Art. 21 (access to information) and Art. 31 (right to information) of the Romanian Constitution are thus grossly violated;
“3. The law does not provide any possibility — generally prescribed by the legislation of democratic countries — for the regular citizen to invoke unawareness of the classified character of information in his/her defence;
“4. The law makes no provisions with regard to the declassification of secret information after a certain period of time. The totalitarian state's conception that the public should be banned access to a wide range of information for an unspecified period of time is thus preserved;
“5. The law regulates both state and job-related secrets, although the latter should be left up to the management of business entities;
“6. The law allows the Government to issue decisions relating to a high number of aspects connected to state and job-related secrets, which could trigger supplementary limitations of access to information, all the more as no law renders operational the guarantee provided in Art. 31 of the Constitution.”
The draft bill had not been discussed in the Chamber of Deputies up to the end of 1998.
II. COLLABORATION WITH OTHER HUMAN RIGHTS
NON-GOVERNMENTAL ORGANISATIONS
In 1998, APADOR–CH developed its co-operation with other non-governmental organisations involved in the fields of civil and minorities' rights.
1. In April 1998, before the Council of Europe session that was to decide whether the special monitoring process on Romania was to be abandoned or to continue, Amnesty International held a press conference in Strasbourg and demonstrated, based on its own fact-finding missions and on data provided by Romanian non-governmental organisations, press excerpts, correspondence with Romanian authorities and other sources that Romania had not complied with the commitments made in April 1997. Surprisingly, the Romanian Government chose to disparage Amnesty International; several publications, radio and television channels launched a vocal campaign against non-governmental organisations, mainly against those involved in human rights. As this adverse reaction occurred shortly after another press campaign during which non-governmental organisations and foundations had been accused of illegal sales of tax-free imported cars, four Romanian non-governmental organisations, well-known in the country and abroad, held a press conference to clarify this situation. The press release issued on this occasion read as follows:
“Lately, state officials and several publications, television and radio channels have launched repeated campaigns against human rights non-governmental organisations, questioning the fairness of their stands.
“Expressing their concern for the consequences of such actions,
The Association for the Defence of Human Rights in Romania — the Helsinki Committee (APADOR–CH)
The League for the Defence of Human Rights (LADO)
The League Pro-Europe (LPE)
The Romanian Independent Society for Human Rights (SIRDO)
declare the following:
“1. The Romanian state authorities are bound to comply with the Constitution and with the commitments made by means of international documents ratified by Romania, which have thus become part of the domestic law.
“2. The state authorities and part of the media ignore the actual role of non-governmental human rights organisations. The Romanian state, through its central and local authorities, is charged with guaranteeing and protecting the exercise of human rights and fundamental freedoms. As anywhere else in the world, the aim of Romanian non-governmental organisations is to monitor how the authorities comply with these duties. To that end, among others, these organisations call attention to cases of human rights and freedoms violations, either due to lacks of the current legislation or to abuses perpetrated by authorities. At the same time, non-governmental organisations ask the competent bodies to hold the perpetrators responsible for their deeds and to remedy the situations.
“The victims of such abuses may be individuals (persons held/arrested and investigated abusively, persons sentenced to prison following unfair trials, persons whose private lives are subject to state interference, persons detained in inappropriate conditions, persons whose right to property is infringed, etc.) or collective (campaigns and actions launched against national, religious or sexual minorities, interference with the freedom of association and peaceful demonstration, etc.).
“Denying the existence of human rights violations or understating their importance on grounds that they represent ‘unimportant exceptions’, as is the case nowadays in Romania, could only lead to an increasing number of such cases. Those responsible for human rights violations are thus led to believe they are intangible, which in turn will encourage others to act similarly, without fearing they might be held accountable.
“3. The four organisations wish to express their surprise at the vocal response of high state officials and a number of journalists, following the alarm signals triggered by NGOs — international organisations included — that monitor human rights developments in Romania. Direct or indirect accusations regarding ‘doubtful interests’ or the existence of a ‘hidden political motive’ underlying the criticism expressed by national and foreign human rights non-governmental organisations are groundless and mislead public opinion by disparaging such associations.
“4. The current campaign launched against human rights non-governmental organisations is part of a broader trend that aims to discredit all non-governmental foundations and associations. Lately, they have been repeatedly accused in the media of ‘smuggling tax free cars, cigarettes, coffee and alcoholic drinks’ into the country. APADOR–CH, LADO, League Pro-Europe and SIRDO declare that, if some organisations and foundations have indeed carried out illegal activities, the competent state bodies (the Ministry of Finances, the Internal Revenue Service, the General Directorate for Custom Taxes, etc.) should do their duty, in accordance with the law. Accusing a whole sector of the civil society might jeopardise the very process of turning Romania into a democratic society.
“Human rights non-governmental organisations are determined to continue their activity by calling attention to human rights violations and by resorting to all available legal means.”
2. In May 1998, three non-governmental associations constantly concerned with the development of the penitentiary system — APADOR–CH, GRADO (The Romanian Group for the Defence of Human Rights) and SIRDO (The Independent Romanian Society for Human Rights) — were invited by the General Directorate for Penitentiaries (DGP) to take part in a program aiming to monitor the situation in penitentiaries. As the initial proposal made by DGP was not very clear and involved the joint participation of officials and civil society representatives, the three non-governmental organisations decided to convey to DGP their point of view:
“Given the novelty of a program aiming to allow the community to monitor the penitentiary system by means of visitor groups in Romania,
“Taking into consideration the experience of several NGOs — mainly APADOR–CH, GRADO and SIRDO — in this field,
“Confident that this initiative aims to establish an effective systematic monitoring of Romanian penitentiaries,
“Confident that the establishment of mixed groups, including both representatives of the authorities and of the civil society, could lead to no results, compromising the very idea of efficient supervision over the penitentiary system,
“APADOR–CH, GRADO and SIRDO wish to make the following comments and proposals:
“1. Community monitoring of the penitentiary system by means of visitor groups must be well defined:
— if the penitentiary system is to be supervised by the civil society, the presence of representatives of the central or local authorities (ministries, police, prosecutor's offices, etc.) in these groups is not justified;
— if monitoring is to be equivalent to state control, involving representatives of central or local authorities, the presence of NGOs would be ineffective;
“2. Proposals:
2.1. Monitoring of the penitentiary system by civil society representatives:
2.1.1. to establish at the local level, in each locality where there is a penitentiary, a penitentiary hospital or a re-education centre for minors, a group of minimum five persons made of lawyers, doctors, representatives of local NGOs who wish to become involved in this process, as well as private persons interested in issues related to the penitentiary system. The groups must not necessarily be legal entities; their only obligation would be to inform the General Directorate for Penitentiaries and the management of local penitentiaries on the composition of such groups and on any subsequent changes. These groups should enjoy unrestrained access to the penitentiary in the area, their role being to assess the situation in that penitentiary and to suggest possible solutions. The local penitentiary management would be bound to place at their disposal the internal regulations and to answer any questions related to the penitentiary's organisation and operation. After each visit (monthly or paid whenever necessary), the group should draw up a concise report including their findings and suggestions. The report should be signed by at least half plus one of the total number of members.
The report will be sent to the penitentiary management, to the General Directorate for Penitentiaries, to the Penitentiary Inspection Department with the Ministry of Justice and to the group of NGOs that wish to become involved in this project at the national level.
2.1.2. to establish, at the national level, a group of NGOs interested in monitoring penitentiaries. This group will examine the reports issued by local monitoring groups and synthesise them.
APADOR–CH, GRADO and SIRDO offer to prepare a minimal screening procedure to be followed by local groups monitoring penitentiaries.
2.2. The representatives of central and local authorities should monitor the penitentiary system by means of a second category of groups, made of representatives of these authorities.
Once a semester or whenever necessary, the representatives of the two types of groups should hold meetings during which to discuss both the reports centralised by the NGO group established at the central level and the findings of the group made of central and local authorities representatives.
The results of these discussions will be made public.
“3. APADOR–CH, GRADO and SIRDO specify that, regardless of the final solution to be adopted in connection with the institutional monitoring of the penitentiary system, they will continue to develop their own programs on penitentiaries. Their involvement — or lack of it — in the penitentiary monitoring program by the community through visitor groups cannot affect their own programs.”
3. APADOR–CH and GRADO analysed the two draft bills on the carry out of punishments and on probation, drafted by the General Directorate for Penitentiaries, and made comments on them. As far as APADOR–CH knows, part of these comments were included in the final versions of these texts. Unfortunately, the draft bills had not been discussed by the Government by the end of 1998.
4. Another instance when several non-governmental organisations — APADOR–CH included — reacted jointly was the Eva-Maria Barki case. (See Chapter “Freedom of expression”).
5. At the end of 1998, APADOR–CH and the Ecumenical Association of Churches in Romania (AIDRom), the Romanian Group for the Defence of Human Rights (GRADO), the Independent Romanian Society for Human Rights (SIRDO) decided to establish the Romanian Council for Refugees. The Romanian Council for Refugees, an independent, non-governmental, politically and religiously unattached non-profit organisation, became a legal entity by Decision no. 181/29 June 1998 of the Bucharest Court.
The Romanian Council for Refugees aims to promote and defend, by all legal means, human rights in general and the rights of asylum-seekers and other persons persecuted in their countries of origin or residence, in accordance with the Romanian Constitution, the Convention and Protocol on the rights of refugees, the European Convention for the Defence of Human Rights and Fundamental Freedoms, as well as with other international treaties Romania is a party to.
The Romanian Council for Refugees is the result of its founders' wish to co-ordinate and join their previously separate efforts to support asylum-seekers and refugees by setting up a more effective, democratic, transparent structure. The foundation is open for any natural and legal entities who wish to join this structure.
The foundation's short-term aim is to organise an executive structure, based on professionalism and personal commitment. On the medium and long term, the foundation's members and the executive structure will develop and conduct programs to support the above mentioned target groups:
— legal counselling and assistance;
— establishment and development of a network of lawyers willing to take up cases screened by the Council;
— monitoring border control points and detention places for aliens;
— establishment of a documentation centre and resources on the issue of refugees and asylum-seekers;
— draft bill monitoring and improvement of the current legislation in the field.
III. THE RELATIONSHIP BETWEEN INDIVIDUALS AND THE POLICE
1. General aspects
APADOR–CH has noted that the laws regulating directly the relationship between individuals and the police (the Law on Police no. 26/1994, the Penal Code, the Penal Procedure Code, Law no. 61/1991 on Petty Offences, Law no. 17/1996 on the Use of Arms and Ammunition, etc.) — frequently criticised by national and international human rights organisations — were not amended in 1998 either.
Still, demilitarisation of the police — which is essential in order to bring the relationship between individuals and the police on a normal path — seems to have gained ground. To the knowledge of APADOR–CH, the Ministry of Interior has drawn up two draft bills for the modification of Law no. 26/1994: the former is aimed to genuinely demilitarise police, the latter is a sort of hybrid in transition, where final control would continue to be exercised at the current hyper-centralised level, but local civil authorities would also have a say. None of the two versions was taken up by the Government and submitted to the Parliament as a legal initiative by the end of 1998. In exchange, a draft bill which should have been submitted to the Parliament back in 1994 — namely, the statute of police officers — has finally been introduced in the Parliament. Unfortunately, the Statute — which would need several amendments in order to be brought in line with the European standards in the field — refers to a civilian police force and could be adopted by the Parliament only once the Law on Police no. 26/1994 is modified.
The general issues repeatedly highlighted by APADOR–CH have remained unsolved from a legal perspective:
— while deprivation of liberty without an arrest warrant — the 24‑hour holding — is a provision included both in the Constitution and in the Penal Code, the leading to the police station (an additional provision contained by the Law on Police), which can last for another 24 hours, is unconstitutional. There should be only one 24‑hour detention period in the absence of an arrest warrant;
— the absence of a legal counsel (either hired or appointed ex officio) throughout the 24 hours of “holding” (plus the additional 24 hours of “leading”). The presence of a lawyer is mandatory once a criminal investigation begins (therefore, since the first pre-trial arrest warrant has been issued by a prosecutor), but not during the 48 hours of deprivation of liberty for which the arrest warrant is not required;
— inhuman and degrading treatments, sometimes even torture, perpetrated by some officers in police stations in order to determine the individuals held or “led” to the police station to confess to one or more crimes. The association has constantly asked that statements made in the absence of a lawyer — i.e., during the 24 + 24 hours of deprivation of liberty without warrant — be disregarded both by prosecutors and by courts;
— the levity in issuing fining reports on the basis of Law 61/1991 and the habitual practice of the police, which asks courts to convert fines into terms in prison. In August 1998, the Government submitted to the Parliament a draft bill on replacing such terms in prison with work for the benefit of the community. The draft bill had not been approved by the Parliament by the end of 1998;
— house searches continue to be conducted upon the resident's agreement. In the opinion of APADOR–CH, this method — provided both by the Penal Procedure Code and by the Law on Police — is unconstitutional (the Romanian Constitution provides the following under Art. 27 para. 3: “Searches may be ordered only by a magistrate and carried out exclusively under observance of the legal procedure”) and can trigger numerous abuses. APADOR–CH believes that, except for cases where perpetrators are caught in the act, house searches should be conducted only on the basis of a search warrant issued by a judge, not by the prosecutor. The prosecutor in charge of the criminal investigation should not be also entitled to issue such warrant;
— the police resorts quite frequently to fire arms under circumstances that, although specified by law (Law 26/1994, Art. 19 letter d), are inconsistent with the provisions of international documents. First and foremost, one should take into account the proportionality of police interventions with the circumstances and seriousness of crimes.
Besides the above mentioned concerns, APADOR–CH wishes to mention another source of tension between the population and the police, namely police raids. The Law on Police provides for the possibility to organise raids (Art. 16 letter i), but it does not specify the procedure. Consequently, unless “secret” orders are involved, the police should comply with the provisions of the Penal Procedure Code (search warrants, observance of legal search hours, issuance of seizure reports, etc.). APADOR–CH investigated two raids (in Lugoj and in the Merisani village) and considers that such interventions were unjustified in both cases. The current procedure is as follows: the local police draws up a report submitted to the County Police Inspectorate (IPJ), describing numerous instances — or potential instances — of law violations that would justify why a pub, village, area should be raided. If the report is approved by the Chief-Inspector of the IPJ, the local police, accompanied by military from the departments for the protection of public order, put up a genuine show of force in terms of numbers and equipment. In the two cases documented by APADOR–CH, the results were feeble: several fines were issued, no person previously sentenced or involved in a trial which could have hidden in the area got caught, no drugs or objects reported stolen were discovered. In exchange, over 75% of the persons “led” to police stations following the two raids complained they had been beaten by police officers. APADOR–CH has learned about similar police actions that occurred in Timisoara and Bucharest. The association does not argue about the right of the police to organise raids if there is proof that crimes have been or are about to be committed in the respective places rather than on the basis of mere allegations or assumptions made by local informers. The way things stand now, raids are aimed rather at frightening the local population that at discovering criminals or preventing the perpetration of anti-social acts.
APADOR–CH stresses again the inequality of “arms” in cases of abuses perpetrated by police officers. A person who believes to be the victim of a police abuse can apply only with the Military Prosecutor's Office. In order for a police officer to be prosecuted, the prosecutor in charge of the case must have clear evidence and must be convinced of that police officer's guilt. Practically speaking, the burden of the proof falls entirely on the victim. APADOR–CH wishes to remind that, in 1998, the European Human Rights Court in Strasbourg pronounced a decision against Bulgaria (the Assenov case) for the violation of several rights provided by the European Convention. What is also relevant for the Romanian legal system is that the applicant had complained against the investigation conducted by the Bulgarian Military Prosecutor's Office in a case of abuse committed by several police officers; the investigation had resulted in two no indictment decisions. The Strasbourg Court ruled that the Bulgarian authorities had not conducted a thorough and unbiased investigation and that they had deprived the applicant of the right to access to justice. Bulgaria was pronounced guilty of having violated Art. 3 of the Convention.
Consistently, APADOR–CH notes that the Romanian Constitutional Court itself has reached the conclusion that the current investigation procedures employed by the Prosecutor's Office (the military department included) deny access to justice, guaranteed by Art. 21 of the Constitution. Decision no. 486 of the Constitutional Court of 2 December 1997, published in the Official Gazette no. 105 of 6 March 1998, specifies the following: “...as these acts and measures are taken by the prosecutor in the course of a criminal trial, they should be subjected not only to a hierarchical control within the Public Ministry, but also to the control exercised by the courts of law” (emphasis added). “This individual right is obvious in the case of acts by means of which the prosecutor closes a criminal conflict, genuine or apparent, such as no indictment decisions, Art. 228 para. 6, Art. 11 para. 1 letters b) and c) of the Penal Procedure Code. As these are acts by means of which justice is administered, it is natural that they be checked and acknowledged or dismissed by courts of law, the only authorities involved in administering justice (Art. 125 para. 1 of the Constitution)”. (emphasis added). Obviously, Constitutional Court decisions are binding for the future. But as long as the Penal Procedure Code is not modified accordingly so as to clarify the competencies (what level of the court the victim can apply to, what is the judge's role, what kind of decision can the judge make, how can the decision be enforced, etc.) Constitutional Court decisions remain a mere theoretical acknowledgement of the Romanian juridical system's shortcomings.
2. The relationship between APADOR–CH and the police
1998 was a year of contrasts with regard to the relationship between the association and the police.
Under the pretence of establishing a “better mutual acquaintance”, an employee of the Ministry of Interior, chief-editor of “Pentru Patrie” magazine, the Ministry's official publication, had a very long talk, at the APADOR–CH headquarters, with the association's two co-presidents. The result was an article printed in Issue no. 6/1998 of this magazine, full of misinformation, half-truths and malevolent comments regarding the association. APADOR–CH sent the editorial office an explicit answer which has never been published, as far as APADOR–CH knows.
The General Police Inspectorate officials declared they did not share the points of view presented in this article (although the magazine is an official publication of the Ministry of Interior). Shortly afterwards, APADOR–CH was highly surprised at the Inspectorate's sharp change of attitude: the association's representatives who went on fact-finding missions to investigate cases of potential police abuses had the opportunity to discuss the relevant cases with the local County Police Inspectorates. Obviously, it would have been desirable to talk to the police officers directly involved. Still, this step forward on the path to a normal relationship between a human rights NGO and the public authority under scrutiny is noteworthy.
A second remarkable step forward was recorded at the end of October 1998, when the General Police Inspectorate (IGP) consented to allow APADOR–CH representatives to visit police lockups. The fact that the Criminal Investigation Department had to be announced and an officer appointed to accompany APADOR–CH representatives visiting police lockups is obviously disputable, but what is essential is that APADOR–CH was allowed to enter such detention places. Another aspect worth mentioning is that Order no. 0410/1974 on arrests is classified and has not been modified after December 1989. This order used to cover all detention places, which used to be subordinated to the Ministry of Interior until December 1989. In 1991, the General Directorate for Penitentiaries (DGP) was transferred to the Ministry of Justice, while police lockups remained subordinated to the Ministry of Interior. Although DGP modified — sometimes in a radical manner — the 1974 order, IGP continued to enforce them as such. Theoretically speaking, a person is transferred from a police lockup to a penitentiary once a prosecutor has issued an indictment act, therefore when the criminal investigation is over. The problem at stake is that there should be no difference between a person under investigation and one who has been indicted; both are detained on remand and both should benefit from the presumption of innocence. Actually, detention conditions are different for persons detained on remand in police lockups and penitentiaries; differences result from the modification and preservation, respectively, of Order no. 0410/1974:
— sharp objects — razor blades included — are forbidden in lockups, although they have been accepted long ago in penitentiaries;
— radio and TV sets are not allowed in lockups, but were long time ago permitted in penitentiaries. A person detained in a police lockup does not enjoy the minimum right to information, except for the few newspapers authorised by the management;
— detainees can still be immobilised with chains in lockups, which is forbidden in penitentiaries;
— punishment by severe isolation can be extended to a maximum of 20 consecutive days; the same punishment goes up to 10 days in penitentiaries;
— detainees are not allowed to lay on their beds from rouse to light out in lockups; this provision is no longer enforced in the vast majority of penitentiaries. Forcing persons who have nothing to do from 5 a.m. to 10 p.m. to keep or not a certain body posture can be regarded as an inhuman treatment;
— in police lockups, any talk between detainee and legal counsel must be attended and approved by the investigating officer/prosecutor. In other words, the client-lawyer relationship enjoys no privacy. DGP has eradicated — at least in principle — this source of violation of the right to defence by introducing the rule according to which wardens must keep a distance so as not to be able to hear the detainee and the lawyer. In some penitentiaries, wardens do not enter the room where the meeting takes place.
3. Cases documented by APADOR–CH
a) Old cases that have not been solved by the Military Prosecutor's Office or by military courts[1]
Radu Daniel Achim (Bucharest, 1994)
Deceased in January 1994 at the Filaret hospital, where he had been transferred a week before from the Bucharest penitentiary hospital, Radu Daniel Achim had been interned in 1992 in the Special Labour and Re-education School in Gaiesti. He died just before turning 18. Radu Daniel Achim's mother sued the Romanian state. The trial began in 1997; in 1998, after numerous hindrances, the second instance referred the case back to the first instance. APADOR–CH provides moral and material support to Radu Daniel Achim's mother during the trial.
Tudorel Tanase and the Dragnea-Tanase families (Mihai Voda village, municipality of Bolintin, 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 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 was “lucky” enough to get away 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. The information gathered by APADOR–CH with regard to the investigation of the police officers involved in the 1995 events is conflicting: on the one hand, the General Police Inspectorate said in March 1998 that a no indictment decision had been pronounced, on the other hand, at the request of a British political figure interested in this case, IGP replied that the police officers involved had been prosecuted and that the case was pending at the Bucharest Military Court.
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 order.” 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. During the appeal, the military court considered that the criminal fine had been too high a punishment and acquitted the four police officers, turning their criminal fines into administrative sanctions. The second appeal, tried in 1998, confirmed the decision pronounced by the court that had tried the appeal. APADOR–CH considers this case scandalous because of the way some military judges enforce the law. APADOR–CH will support Viorel Constantin if he decides to apply to the European Human Rights Court in Strasbourg.
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 9th precinct. Three days later, on 16 April 1996, he was taken — in a very bad state — first to the Bucharest-Jilava penitentiary hospital, where he was not admitted, and then to the Fundeni hospital. He died on 3 May 1996. His wife, his brother and several friends who had visited him in hospital said he had told them he had been “rolled” in a carpet and beaten savagely at the 9th precinct. The investigations conducted by the Military Prosecutor's Office constantly resulted in no indictment decisions in favour of the 9th precinct police, considering that the cause of death had been the car accident occurred on 13 April 1996. Although Gabriel Carabulea's wife no longer wished to be involved in the investigation meant to establish the cause of her husbands' death, Carabulea's brother decided to apply to the European Human Rights Court in Strasbourg.
Marius Popescu (Buzau, 1996)
On 21 February 1996, Marius Popescu, aged 29, got home around 1 a.m. in a state of complete amnesia and with visible blow marks. He was admitted to hospital the next day, in a critical state, to the Buzau municipal hospital and then to the Bucharest emergency hospital. He was diagnosed with “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.” What is the connection between this case and the police? On the night of 21 February 1996, when his mother and sister had undressed him, they had found in his pocket a police report dated 21 February 1996, according to which he had been fined. In 1998, the Military Prosecutor's Office issued a no indictment decision in favour of the Buzau police, ignoring all the arguments brought forth by APADOR–CH and the victim:
— if on the night of 21–22 February Marius Popescu was indeed found by the police fallen to the ground and unconscious, how could one explain why the police did not take him to hospital, as their duty would have required, instead of the police station, where he was issued a police report and he was fined?
— who had taken Marius Popescu home, in that state of aphasia?
— why did the Buzau police officers insist on destroying the police report and Marius Popescu's copy?
In February 1997, Marius Popescu had his handwriting examined to determine whether the signature on the police report was his. He had not found out the result of this examination until the end of 1998.
Constantin Balasa (Targu-Jiu, 1996)
Constantin Balasa was involved in an ordinary car crash in mid-June 1996. On 18 June, Balasa was invited verbally to report to the Road Police, which he did, accompanied by his son, aged 11 at that time. Scared of the large number of police officers gathered there, he left the police station, on grounds that he did not have the insurance with him. He was brought back by force by three or four police officers. Constantin Balasa felt sick, lost consciousness and came to at the county hospital. The medical certificate issued by the Gorj county Forensic Institute on 20 June 1996 mentions head injuries, a number of scratches on the right shoulder, the thorax and the elbow, as well as bruises on the internal side of both arms and recommends 5-6 days of medical treatment.
Constantin Balasa lodged a complaint with the Craiova Military Prosecutor's Office against the Targu-Jiu police, which issued a no indictment decision (13 November 1996). Constantin Balasa challenged this decision by means of an application lodged with the Military Department of the General Prosecutor's Office on 27 February 1997. The Military Department of the General Prosecutor's Office dismissed the first decision and ordered that the investigation be completed.
On 20 February 1997, i.e., eight months after the incident, Constantin Balasa was asked to go to the Prosecutor's Office with the Targu-Jiu Court, where he found out, to his amazement, that he had been charged with “destruction and outrage.” While the first accusation was to be expected in a way since late October 1996, — he had been charged at the end of October with having destroyed the police car while being taken to hospital — the outrage charges were a novelty. Apparently, one of the non-commissioned officers involved in the 18 June incident had obtained a medical certificate according to which he had allegedly required 2-3 days of medical care as a result of Constantin Balasa's blows.
Constantin Balasa asked that the trial be transferred. His case is currently pending at the Pitesti County Court application was approved and the case is currently pending at the Pitesti Court.
As far as APADOR–CH knows, the Military Prosecutor's Office had not finished investigating the abuse committed by the Targu-Jiu police by the end of 1998.
The association considers that the Constantin Balasa case is a gross mystification, where the victim of police abuse has been turned into a criminal.
APADOR–CH supports Constantin Balasa morally and financially, both in the suit for destruction and outrage and in his efforts to obtain a fair solution from the Military Prosecutor's Office.
Danut Iordache (Bucharest, 1997)
On 3 February 1997, around 6 a.m., several police officers from the 14th police precinct stormed into the Iordaches' house and started searching the house without presenting any warrant or asking for the written permission of the lodgers. After about one hour, the police left, taking Danut Iordache along to the police station. He was not released until 5 February in the afternoon, long after the expiry of the 24‑hour term prescribed by law. Art. 16 letter b) of the Law on Police no. 26/1994 (“leading” a person to the police station for an additional 24 hours) cannot be invoked, as this (unconstitutional) measure is applicable when the identity of a suspect cannot be established, which was not the case as long as Danut Iordache had been held at home. A pre-trial detention warrant would have been issued for at least five days; how could then one explain why Danut Iordache was released after two days and a half?
It is certain that upon release, on 5 February, Danut Iordache exhibited clear marks of beating. The medical certificate issued on 6 February 1997 mentions “haematoma at the level of the right cheek”, “fracture of the right side of the jaw” (acknowledged by the Emergency Hospital on the basis of an X‑ray examination), and prescribed “50-55 days of medical care.”
On 19 February 1997, the Iordaches' house was searched again by the police and Danut was held one more time. He is currently arrested on remand at the Bucharest-Jilava penitentiary.
On 4 April 1997, Danut Iordache lodged a complaint with the Military Prosecutor's Office against the 14th precinct police, following the 3–5 February 1997 event.
As the Military Prosecutor's Office had not solved this case until the end of 1997, the APADOR–CH representatives went to the Bucharest-Jilava penitentiary in May 1998. After talking to Danut Iordache, the association sent to the Military Prosecutor's Office the following letter:
“The Association for the Defence of Human Rights in Romania–the Helsinki Committee (APADOR–CH) notified the General Prosecutor's Office (Letter no. 50/15 May 1997) on the case of Danut Iordache, residing on 30 George Georgescu St. Bucharest, held for two days and a half by the 14th precinct police from 3 to 5 February 1997. Danut Iordache said he had been tortured for two days and two nights at the police station. During the ‘breaks’, Danut Iordache was allegedly locked in a garage behind the police station, in the cold, with police dogs running around him free, with their muzzles on. The torture was aimed at making him admit to the fact that he had broken into several houses accompanied by two accomplices.
“Danut Iordache filed a complaint with the Military Prosecutor's Office about the treatment applied by Colonel Florin Patroiu and non-commissioned officers Mihai Popa and Branduseasa. The victim was issued a medical certificate, attached to his file, according to which he required 55 days of medical care.
“Danut Iordache, detained on remand at the Bucharest penitentiary, still complains of frequent headaches and nose bleeding.
“APADOR–CH kindly asks you to order that a thorough investigation be conducted in this very serious case.
“APADOR–CH wishes to remind that torture and inhuman or degrading treatments are forbidden both by the domestic law and by the international treaties ratified by Romania.”
Belmondo Cobzaru (Mangalia, 1997)
On the evening of 4 July 1997, Belmondo Cobzaru left for half an hour the apartment he shared with his concubine, Steluta Mecu. When he returned, he knocked at the door, but no one opened. He got scared and decided to break the door in the presence of a neighbour. He saw that Steluta Mecu was not in the apartment and went out in the street. He met there Steluta Mecu's brother-in-law, Crinel Marin, accompanied by three persons. Crinel Marin came to him menacingly and accused him that he had broken into the apartment to steal from it. According to Belmondo Cobzaru, as he was outnumbered, he preferred to run away and avoid any physical confrontation.
Shortly after this incident, he passed by a police officer and heard instructions regarding the pursuit of an individual over the latter's walkie-talkie. When he realised that he was the one they were looking for, he went to the police station. On the way to the police station he met a friend whom he told what had happened and who accompanied him to the station.
Belmondo declares he was beaten in the police station by non-commissioned officers Gheorghe Gavrila and Didel Curiu, with the participation (or in the presence) of four more persons in plainclothes. Belmondo declares he was hit with the fists over the head until his nose started bleeding and then kicked, after which a newspaper was placed on the nape of his neck and he was beaten with a wooden club. Finally, he was forced to sign a declaration that he had been beaten by Steluta's brother-in-law and his companions.
After approximately two hours — around 10:30 p.m. — he was released from the police station. When he saw the state his son was in, Cobzaru's father took him first to the hospital in Mangalia. He was then sent to the neurosurgery department of the Constanta county hospital. The medical certificate issued on 7 July 1997 by the forensic laboratory mentions “occipital tumefaction”, “fingers 3-4 of the right hand tumefied and bruised”, bruises on the chest, right thigh and shank. The report concludes: “the patient requires 14-15 days of medical care.”
Belmondo Cobzaru filed complaints against the Mangalia police officers both with the County Police Inspectorate in Constanta and the Ministry of Interior and the Constanta Military Prosecutor's Office. The Constanta Military Prosecutor's Office issued a no indictment decision and the Military Department of the General Prosecutor's Office backed this decision in 1998.
APADOR–CH considers that the case of Belmondo Cobzaru, who was deprived of his right to access to justice by two no indictment decisions issued by the Military Prosecutor's Office, is similar to the case Assenov versus Bulgaria. The association will support Cobzaru if he decides to apply to the European Human Rights Court in Strasbourg.
Other cases documented by APADOR–CH (see the association's 1997 Annual Report), still unsolved by the Military Prosecutor's Office or solved by no indictment decisions:
Nicolae Grigore (Bucharest, 1997) — complained that he had been beaten on 27 February 1997 by police officers from Police Station no. 4, Bucharest and that there had been attempts to get him admitted to Balaceanca mental hospital by force. He was issued a medical certificate; he also has a letter from the Bagdasar hospital, where he was admitted when the idea to admit him to Balaceanca was given up. Both document that Nicolae Grigore had no mental problems. He was fined on the basis of Law no. 61/1991. Neither him nor APADOR–CH got any written reply with regard to a potential decision pronounced by the Military Prosecutor's Office.
Costica Nazaru (Braila, 1997) — alleged that he had been attacked by five men in plainclothes who said they were “from the police” on 13 May 1997. The five then forced him to go to the Police Station in Galati St. where they beat and threatened him again; finally, he was fined on the basis of Law 61/91. He was issued a medical certificate and has witnesses. Neither him nor APADOR–CH got a reply from the Military Prosecutor's Office.
Ioan Bursuc (Piatra-Neamt, 1997) — alleged having been attacked by a group of police officers on 27 January 1997, first in a pub and later on at the police station. He has a medical certificate issued by the Forensic Institute and several others issued by various medical authorities, as well as witnesses. The Military Prosecutor's Office issued a no indictment decision in favour of the police officers. The Prosecutor's Office with the Neamt Court decided to prosecute Ioan Bursuc on charges of outrage with violence against the police.
Adrian Matei (Bucharest, 1997), Ioana Enuta (municipality of Berceni, County of Ilfov, 1997), Olga Pusnei (Piatra-Neamt, 1997), Vasile Holindrariu (Piatra-Neamt, 1997), Pantelimon Zait (municipality of Tasca, county of Neamt, 1996), Dumitru Auras Marcu (municipality of Razvad, county of Dambovita, 1997) are all cases of alleged brutality perpetrated by police officers solved by no indictment decisions issued by the Military Prosecutor's Office.
b) Cases taken up by APADOR–CH in 1998
1. Abusive behaviour/investigation, torture
Alexandru Iloaiei (Tandarei, county of Ialomita)
In the evening of 30 April 1998, Alexandru and Florica Iloaiei, spouses, went to the “Gambrinus” restaurant around 11 p.m., accompanied by two friends, Marian Stanciu and Ionela Preda. They had a beer and rented the pool table. Officer Manolache, who was drunk, asked them to turn the pool table over to him. The four turned him down and the officer promised to “take care of them.” Believing that this was just a minor incident, the four did not pay any more attention to it and started playing pool. Several minutes later, Alexandru Iloaiei was hit over the head and fell down to the ground, almost in a fainting fit. Marian Stanciu and Ionela Preda saw clearly the attacker, namely non-commissioned officer Ion Tudor, but not the weapon. A mere punch could not have caused a bleeding wound. The wound had a strange form, being shaped like the letter Y. Marian Stanciu also got hit over the face by the same non-commissioned officer, “helped” by public guardian Vasile Tudor, under officer Manolache's eyes.
Alexandru and Florica Iloaiei went to the police to file a complaint, accompanied by Marian Stanciu and Ionela Preda. Later on, they went to the Tandarei hospital, where Alexandru Iloaiei was admitted (around 3:30 a.m.) and diagnosed with “head trauma — concussion.” It should be noted that the medical certificate issued subsequently by the Tandarei hospital (on 8 May 1998) mentions “alcoholic intoxication”, which the Iloaieis and their friends strongly denied. An extremely serious issue is that during the three days spent in hospital Alexandru Iloaiei was kept under observation without being treated or undergoing a specialised examination; he was simply given painkillers. On 3 May, he was transferred to the Slobozia county hospital where he was immediately placed under intensive care for 24 hours and transferred afterwards to surgery, until 18 May 1988. His release record (issued on 18 May — medical record no. 9795) reads: “acute closed head trauma with concussion.”
Alexandru Iloaiei spent 19 days in hospital. During this spell of time, he was repeatedly visited by various police officers, the commander of the Tandarei police included, who asked him “to forgive non-commissioned officer Ion Tudor”, “to make up”, “to reach an agreement”. The victim's wife got similar proposals. The police officers hinted frequently to another case occurred in Tandarei in 1995, when Viorel Constantin had been beaten in a disco, in the presence of numerous witnesses, by a group of police officers and public guardians, one of which was the same Ion Tudor. The Military Court of Appeal ruled in favour of the police officers who had attacked Viorel Constantin. They were sentenced to pay a small criminal fine by the first court; during the appeal, the sentence was turned into an administrative fine and the extraordinary appeal confirmed this decision. Thus, the police and guards involved will not have criminal records and will not be dismissed from the police. It seems that Ion Tudor relapsed in Alexandru Iloaiei's case.
The day after he was released from hospital, Alexandru Iloaiei went to the forensic expert with his medical records. The Slobozia forensic laboratory issued him, on 26 May 1998, medical certificate no. 436 mentioning that “he required 2-3 days of medical care since the day the trauma occurred, unless further complications arose!” Therefore, forensic expert Adrian Jipescu disregarded completely the 19 days spent in hospital.
The waitress who had waited on them at the “Gambrinus” on 30 April said she had seen Alexandru Iloaiei fall to the ground, but was unable to say who had hit him and with what object. She admitted there had been an argument between non-commissioned officer Ion Tudor, seconded by public guardian Vasile Tudor, and the Iloaieis. She did not mention Manolache's name. She made a similar statement at the police station.
Alexandru Iloaiei filed a complaint with the Military Department of the Prosecutor's Office with the Supreme Court of Justice (sent as a registered letter under no. 4391/7 May 1998).
It is also worth mentioning that Alexandru Iloaiei had entered a contract to paint a building that should have started on 1 May 1998. Being unable to fulfil his obligations, he had to find a replacement.
APADOR–CH repeatedly suggested that the police officers investigated by Military Prosecutor's Offices be suspended or moved to another police station or sent to do office work until the case is solved, function of how serious the charges were. This did not happen in Tandarei and as a result, a police officer already prosecuted for abusive behaviour seems to have committed a new abuse.
The doctors' levity in treating Alexandru Iloaiei at the Tandarei hospital during the first three days after the incident could have had tragic results. The victim notified the Ministry of Health of this extremely serious aspect.
The medical certificate issued by the Slobozia forensic laboratory, which disregarded completely the medical records presented by the victim, might suggest an attempt to minimise the consequences of the abuse perpetrated by the police officer in Tandarei. Unfortunately, military prosecutors interpret the Penal Procedure Code in a restrictive manner, so that they take into consideration only certificates issued by forensic experts. This exclusiveness enjoyed by the Forensic Institute and the disregard for all other medical institutions is one of the sources of the high number of no indictment decisions pronounced by military prosecutor's offices in cases of police abuses against individuals.
The fact that the Tandarei police tried insistently to convince the Iloaieis not to press charges against non-commissioned officer Ion Tudor, public guardian Marian Tudor and non-commissioned officer Manolache can only be interpreted as an acknowledgement of the abuse committed in the evening of 30 April 1998.
IGP sent APADOR–CH their comments on this case. According to them, “there was an argument between the Iloaieis, Marian Stanciu and Ionela Preda on the one hand and public guardian Vasile Tudor on the other; the latter was non-commissioned officer Ion Tudor's brother”... “the argument and the incident occurred between Tudor Vasile, who slapped him and Iloaiei Alexandru, who fell and hurt his head on the pool table” (emphasis added). The IGP letter also mentions Ion Tudor's statement, according to which “Iloaiei Alexandru had punched him in the face, which had determined Vasile Tudor to hit Alexandru Iloaiei, who fell and hurt his head on the pool table.”
IGP also mentioned that non-commissioned officer Tudor Ion's case file had been sent to the Military Prosecutor's Office.
Sebastian Fitzek (Bucharest)
On 21 August 1998, Sebastian Fitzek, aged 16, a student at the Bucharest Catholic Theological Institute, helped a colleague of his to find the address of a relative the latter had not seen for many years. As the relative was not home, the two youngsters rang at a neighbour's door to ask whether the relative still lived there. They were told she did, so the two said they would be back later. Around 2 p.m., they returned and were very surprised to find there a group of police officers (one uniformed — non-commissioned officer Boncu — and three in plainclothes) who handcuffed them and led them to Police Station no. 21, without giving them any explanations. The two gave statements, were fingerprinted and photographed. A police officer in plainclothes hit Sebastian Fitzek over the face so hard that he was diagnosed with “traumatism of the left ear with fissure of the left eardrum” by the “Dr. Victor Gomoiu” hospital — medical certificate no. 1933/24 August 1998.
Moreover, according to the victim, the police officers made malicious comments about the Catholic church and asked the youngsters to sing religious hymns in the police station! This behaviour is equivalent, in the opinion of APADOR–CH, with a degrading treatment.
Called by the police, Sebastian's father went immediately to the police station. In order to clarify the situation, they went again to the address the youngsters had looked for and returned to the station accompanied by one of the aunts, who confirmed their statements. The police merely said that “such mistakes occur sometimes.”
The Fitzeks lodged a complaint with the Bucharest Military Prosecutor's Office (no. 604 of 2.09.2998) on the treatment the 16‑year old youngster had been subjected to. The second youth involved in this incident has left the country for an indefinite period of time.
The Military Prosecutor's Office had not replied by the end of 1998.
Marin Cornea (Bucharest)
Marin Cornea of Dracea village, municipality of Crangu, county of Teleorman, currently detained on remand at the Bucharest-Jilava penitentiary, complained about the brutal treatment he was subjected to by police officers with Police Station no. 20 from Bucharest in April–May 1998.
He declared that in the evening of 11 April 1998 he had been taken by a police patrol from a pub named “Cloraz Impex S.R.L.”, situated in 37 Orhideelor St. in Bucharest, to a building (an institute?) next to the Basarab railway station. The police searched him and found lei 250,000 on him. The police officers wanted to take all his money first, then gave him back lei 120,000. He was given no proof to enable him to claim back the money seized by the police. The police accused him of a robbery which had taken place several hours before. Marin Cornea denied the accusations. He was hit repeatedly by one of the non-commissioned officers.
Around 10 p.m., he was driven to Police Station no. 20 in Crangasi. A police officer in plainclothes (who was part of the judicial department of the station, as Cornea found out later) and other police officers beat him for several hours in order to make him admit to his guilt. Marin Cornea gave up in the morning and wrote a statement dictated by the police officers. After less than two hours, he was handed over to Captain Barbu who treated him in the same manner.
On 13 April, he was taken to the Prosecutor's Office and was issued a 5‑day detention warrant, on condition that the prosecuting authorities could produce proof of his guilt. In other words, at that time, the only evidence against Marin Cornea was his own statement, given after one night of inhuman treatment.
On 15 April 1998, he was taken again to the Prosecutor's Office and told he was charged with robbery. The lawyer appointed ex officio, present at the Prosecutor's Office, advised him insistently to admit to his guilt, because “things would go better for him that way.” The defendant said he had found out afterwards that the lawyer had been a police officer himself, actually a colleague of Captain Barbu.
On 7 May, the court extended his pre-trial detention warrant. Marin Cornea tried to explain to the court what had happened at the police station, but to no avail. When he returned to the lockup of Police Station no. 20 he was beaten again. On 10 May, he was admitted to the Bucharest penitentiary hospital. Marin Cornea said he was vomiting so much blood that the hospital initially refused to admit him. His bad state of health was the result of beatings, according to the defendant. However, he was diagnosed with lung TB upon admission.
The first hearing was held on 5 November at the Bucharest Municipal Court, 2nd criminal department (Case File no. 1293/98). He was able to read the indictment act for the first time on that occasion. The defendant had not been brought before the court again for an extension of the arrest warrant from May till November.
Marin Cornea lodged a complaint with the Bucharest Territorial Military Prosecutor's Office (no. 461/July 1998) to complain about the police treatment. He was heard by magistrate Major Alexandru in September.
Marin Cornea alleges that he was beaten by the police first at the “institute” (?!) and then at Police Station no. 20. It is obvious that neither the officers directly involved nor their colleagues will admit to that. His only witnesses could be the persons found in the police station who saw him when he was brought there after the questioning. He does not have — and could not get — a medical certificate issued by the Forensic Institute.
APADOR–CH has received several similar complaints, but the victims prefer not to initiate legal procedures, because they do not have medical certificates or witnesses and it is improbable that they might win under the circumstances. The association believes that Marin Cornea's complaint is credible and that the Military Prosecutor's Office should demonstrate whether the victim is right. In other words, it is up to the authorities to conduct thorough and fair investigations instead of forcing the victim to produce all evidence, as it currently happens.
Razvan Dragus (Galati)
Razvan Dragus is part of a family settled in Germany in 1990. He is the only one that has returned to live in Romania so far, after finishing his musical studies.
On the night of 15/16 August, around 12:30-1:00 a.m., Razvan Dragus was going home, accompanied by two friends. He stopped the car in front of a private shop and the three got off. When they realised the shop was closed, they got back to the car, at which time Razvan was attacked by two drunk youngsters. The blows resulted in bruises, scratches and the coronary fracture of two upper incisors. According to Razvan Dragus, he did not know the attackers and had had no previous conflict with them.
Razvan Dragus went home and, together with his brother who was on holidays in Romania and their friends, went to the county hospital. On the way there, they met again the attackers, accompanied this time by about 15 other persons. Insults, threats and blows were exchanged until the Dragus brothers and their friends withdrew. It should be mentioned that the youngster who had hit Razvan Dragus in the first place and took part in the second incident shouted that “he was going to take care of the three, because his father was a police chief.” Razvan went then to hospital and further on to a medical centre where he received first aid.
Sunday, 16 August, around noon, two police officers dressed in plainclothes (Lieutenant Dobre and a non-commissioned officer) went to Razvan Dragus's to take him to the police with them. Two more police officers waited on he stairs and other two in the van they had come with. Therefore, six police officers went to Dragus's place to “lead” or “hold” one person. The friends involved in the incidents occurred one night before and an old friend of the family happened to be at Dragus's. The family friend, who was familiar with the law, succeeded in relieving the tension and went to the police station with the youngsters. Once they arrived there, the youngsters gave statements about the incidents occurred the night before. Razvan Dragus says that both him and his brother were threatened and intimidated by the police. The Dragus brothers and their friends were kept at the police station until 11 p.m. Around 10 p.m., they were all taken to a room where there appeared Mihai Tanase, son of Colonel Tanase, deputy chief of the Galati Municipal Police. Razvan Dragus says that Mihai Tanase, who had taken part in both incidents occurred during the night of 15/16 August, was one of those who had hit him. Mihai Tanase declared in front of the youngsters and the police officers that he had not hit anyone during those incidents and that, in fact, he had been hit by those present in the room.
On Monday, 17 August, Razvan Dragus went to the Galati forensic laboratory to be issued a medical certificate. He was very surprised to find there Colonel Tanase, who had come in a police car. The medical certificate that he eventually received after having insisted for quite a while (no. 1741 of 17 August 1998) mentions the scratching and the coronary fracture as well as the fact that Razvan Dragus complained of headaches and pains in the “right back side of the thorax.” The medical certificate concludes that the young man needed “7-8 (seven-eight) days of medical care to heal and a prothesis for the damaged teeth, unless further complications arise.”
Razvan Dragus lodged a complaint directly with the Galati County Police Inspectorate for the beating he took on the night of 15-16 August. The complaint was lodged on 18 August and registered under no. 13703.
Razvan Dragus said that since the incident he had been stopped several times by the traffic police, under various pretexts, and even threatened directly.
General Inspector Luca Diamandi ordered that the inquiries into the conflict involving the Mihai Tanase and Razvan Dragus groups be taken over by IPJ in order to eliminate any potential suspicion as to the impartiality of the Galati Municipal Police, given that Mihai Tanase's father works there as deputy chief. But this happened no sooner than 18 August, when Razvan Dragus had lodged his complaint and the municipal police had already gone to Razvan Dragus's residence and interrogated him and his friends (on 16 August).
APADOR–CH asked why the group of six police officers went to Dragus's on 16 August, as long as no one had lodged any complaint with regard to the incidents occurred the night before. Razvan Dragus filed his complaint with IPJ on 18 August; as for the Mihai Tanase group, one of the youngsters involved — Tarala — who had to be hospitalised, filed his complaint also on 18 August. It should be mentioned that, prior to the discussion between the APADOR–CH and the IPJ representatives, which took place at IPJ, Mihai Tanase had filed neither a complaint against Dragus or his friends, nor a medical certificate. Actually, when the association asked who had notified the police about this incident, the IPJ representatives avoided a direct answer by phrases such as “maybe an anonymous call” or “an indignant citizen” but that anyway that was not important. It is hard to believe that the police does not have an evidence of the calls they receive and their authors, especially when these calls are followed by specific action from the police.
As the police had not received any complaint on 16 August, one could infer that the only reason why Razvan Dragus was held and him and his friends interrogated by the police was that Mihai Tanase was the son of the deputy police chief, Colonel Tanase.
APADOR–CH considers that the police visit to Razvan Dragu_'s on 16 August was illegal. APADOR–CH stresses that Art. 180 of the Penal Code provides under paras. 2 and 3 that if “the hitting or violence acts that have caused a harm which requires up to 20 days of medical care...” “criminal proceedings shall be initiated upon the previous complaint of the damaged party” (emphasis added). Art. 279 of the Penal Procedure Code provides that the “previous complaint shall be lodged with: a) the court, in case of crimes provided for in the Penal Code under Art.180...” (emphasis added). Therefore, in the situation created by the incidents occurred on the night of 15/16 August, the police did not have any competence to intervene.
The reply sent by IGP specifies that “whenever a citizen with serious body injuries reports to a hospital and declares they had been caused by aggression, the hospital notifies the police body in charge of the area where the incident occurred. This could explain why the police went to Razvan Dragus's place on 16 August 1998 and asked him to accompany them.” (emphasis added). The reply also mentions that the police is entitled to investigate cases of “beating or other types of violence” and “physical harm”, and that “it will decline its competence later on, in favour of the court...” Given the penal provisions already mentioned, APADOR–CH continues to believe that the police intervention was illegal in this case.
The cases from Nereju, county of Vrancea
Nereju, a municipality which includes four other villages, is situated approximately 75 km from Focsani and counts around 5,000 inhabitants. Being situated in a mountain area, the only sources of revenue of villagers are the woods and animal breeding. There are no plots of land to be given to the villagers in property, so that whoever does not have animals has no other means of survival save from cutting wood from the forest, either legally or illegally. Sometimes, the illegal aspect of this activity was brought about by the forest guards themselves, as, after having hired some of the villagers to cut wood for them, they paid them in kind with wood instead of money, without any papers. The Nereju police repeatedly found them “illegally carrying wood”, seized the wood and fined them.
Many villagers said that beating is a common practice of the police, who punch and kick them and sometimes use truncheons. Gun threats are also one of the police officers' favourites; Valentin Gaina is especially known to use this method. The police officers use to drink for free in the village pubs and sometimes ask to be served in the middle of the night, after closing hour. Toader Dragu, owner of a small pub, recounted in detail two such recent “visits” occurred after closing hours. On the first occasion, Dragu's wife, who was alone with the children at that time, was sworn at, insulted and threatened when she refused to serve them after closing hours; on the second occasion, non-commissioned officer Valentin Gaina had drawn his pistol and threatened Toader Dragu to shoot him if he refused to open the pub. The next day, when the latter had complained to the police chief, Gelu Vlad, he was told ironically: “And what would you have expected him to draw? A pitchfork?” Toader Dragu had several such experiences with the police. He carries the supplies for his pub with his own Dacia car. One day in the month of August, he was coming back to Nereju with the car full of merchandise. The police stopped him, checked the merchandise and discovered he did not have the necessary papers for three cases of drinks. They seized the goods (the seizure report was written on a small piece of paper without a letterhead, without a record number and with two illegible signatures) and fined him lei 300,000. Dragu, who was sure he had bought the merchandise with the proper documents, went back to Focsani, took the invoice he had forgotten and reported to the police station the next day. He insisted in vain; the only answer he got was “you did not have the appropriate documents when we stopped you, now it's too late!” In order not to get in conflict with the police, Toader Dragu paid the fine. Moreover, he paid the lei 300,000 directly to the police and got no proof he had paid it in return for his money. Many villagers — not only in Nereju — are not familiar with legal provisions or the remedies they can resort to in order to defend themselves against potential abuses. As for the information that should be provided by the police themselves, it does not go farther than “if you do not pay, we'll arrest you tomorrow!”
Death cases in Nereju
a) Ion Putoi, shot to death in April 1995
According to Marcel Putoi, the victim's brother, in February 1995 the two of them had gone bowling at a pub in the village. Non-commissioned officer Ion Cherciu was also there, dressed in civilian clothes; they started playing for drinks. At a certain point, Marcel Putoi and Ion Cherciu had an argument on who had one the game and who had to buy drinks. They started pushing each other; at that point, Ion Putoi had come between the two and the conflict was settled. Next day, several police officers went to Ion Putoi's, took him from home to the police station and beat him savagely, accusing him and his brother of having attacked Ion Cherciu. Eventually, he was released. Seeing what had happened to his brother who was innocent, Marcel Putoi ran away and after a while he reached Brasov, where he got a job at a workshop. Until he was caught, the Nereju police searched his house and his in-laws' several times, breaking the doors and windows on several occasions. During one of these searches, they set the police dogs on Marcel's sister who was left with a mental trouble as a result of the fear. Marcel Putoi was discovered in Brasov by the police, taken to the Vrancea IPJ lockup and beaten savagely to declare it had been his brother, Ion, and not him, Marcel, who had attacked the non-commissioned police officer. Marcel says he had constantly refuse to make this statement and that he could not understand why he was asked to blame it on his brother. It was not until later that he found out Ion Putoi had been shot to death by the police officers on 4 April 1995. Marcel Putoi was tried and sentenced to 2 years and 6 months and released after having served the minimal fraction, according to criminal law. He had been accused of outrage and robbery, the latter based on the false testimony of a forest guard who had hired him to cut wood and had paid him only part of what was due to him. Marcel had asked him to pay him the missing lei 10,000 and eventually got the money after long delays and discussions. The forest guard, summoned to the Nereju police station, had declared Marcel Putoi had robbed him of lei 10,000. After being released, Marcel Putoi was asked by the police to leave Nereju; as he refused he was repeatedly summoned to the police station and beaten each time. Marcel Putoi filed a complaint with IPJ Vrancea, but no measures have been taken.
Coming back to Ion Putoi, it should be mentioned that he was also issued a pre-trial detention warrant. The police went repeatedly to his house, too, used tear gas on his wife, broke doors and windows. At that time, Ion Putoi was working at a house located quite close to his own. At the beginning of April 1995, (the death certificate was issued for 4 April 1995), the police found out where Ion Putoi was. A group of about ten police officers — according to some witnesses — went for him at night time, beat him savagely and shot him in the heart from the front. His wife, Niculina Putoi, believes he was already dead when they shot him, because otherwise one could not explain why the shot wound did not bleed at all. Several black-and-white pictures taken at the burial (of a quite poor quality) show a clear blow mark at the left temple and a less visible one at the nose. Niculina Putoi and several other persons who washed the body said Ion Putoi's testicles were very swollen and blue. Ion Putoi's murder stirred up a vivid reaction from the villagers and many of them attended the burial. About 40 police officers were brought from IPJ to prevent any protests. The villagers continue to believe that Ion Putoi was killed for nothing and that he was innocent. It should be noted that a representative of the Military Prosecutor's Office and a forensic specialist went to Nereju, performed a post-mortem on the spot and left with the dead's clothes. The family has not been able to get the clothes back. A letter of the Military Prosecutor's Office (no. 1120/P/1995) of 5 November 1996 announced Ion Putoi's wife that a non-indictment decision had been pronounced in favour of the police officers who had allegedly acted legally and “in an emergency.” The letter does not specify what the “emergency” cased by Ion Putoi consisted of: earthquake, flooding, revolution? Niculina Putoi, widowed and with two young children, did not know she had the right to challenge this decision of the Bucharest Territorial Military Prosecutor's Office.
With regard to the Ion and Marcel Putoi case, APADOR–CH considers that the Nereju and IPJ Vrancea police resorted to extremely brutal methods to “punish” an argument between Marcel Putoi and non-commissioned officer Ion Cherciu, who was off duty, in a pub. The whole operation organised in order to apprehend Ion Putoi (high number of police officers, resort to very violent blows and eventually to fire arms) was completely disproportionate to the deed he had been charged with, that is, outrage. It should also be reminded that Marcel Putoi, detained at the time when his brother was shot, was beaten to declare that Ion had been guilty of outrage. To put it differently, the Nereju police were trying to fabricate a reason to justify why they had killed Ion Putoi. Non-commissioned officer Ion Cherciu was transferred from Nereju after this very serious incident.
b) Toader Elinoiu
Toader Elinoiu, aged 42, died on the night of 15/16 August 1998 in the house of his sister, Anica Asaftei.
Witnesses' accounts:
— Marcel Putoi said that on Friday 14 August he saw the police officer Fane Alexandru kicking and punching Toader Elinoiu in front of a small private shop owned by Panaite Bratu, nicknamed Dragoi. Marcel Putoi was passing by and heard the police officer tell the owner to take Elinoiu inside and “wash him.” After 10-15 minutes, Marcel Putoi, who was coming back on the same path, saw Elinoiu covered in blood and crying out in pain in front of Bratu's shop;
— Anica Asaftei, Toader Elinoiu's sister, said he had paid her a visit on Friday, on his way to the village centre around 2 p.m., Toader Elinoiu got back to Anica Asaftei. His lips were swollen, his back hurt and he told her he had been beaten by police officer Fane Alexandru and later on by the owner Panaite Bratu. Anica tucked him in for the night and found him dead the next morning. Notified immediately, police officers Fane Alexandru and Valentin Gaina went to Anica's immediately, locked the door and did not allow anyone to see the dead, returned after 15 minutes and took the body to the Focsani morgue. The police did not allow anyone of the family to accompany the body to Focsani. The result of the autopsy was “alcoholic coma” followed by death. Anica Asaftei says she saw how badly her brother had been beaten only when some journalists from Focsani had undressed him and taken pictures of him before the burial, as none of the dead man's relatives had been allowed to participate in washing and dressing the body at the Focsani morgue. Anica also said that her husband, Luca Asaftei, had been summoned to the police station and beaten over the palms by Valentin Gaina to declare he had had an argument with Toader Elinoiu and that the latter had died because of the spirit he had drunk. Scared and in pain, Luca declared exactly what the police officer had asked him to;
— Gheorghe Chirica, a half-paralysed villager whose speech is impaired, said that on Friday 14 August he had gone to the village centre with Toader Elinoiu. They bought a bottle of spirit, but did not drink it right there. When they reached Bratu's shop, Elinoiu got sick and vomited. Police officer Fane Alexandru made them blow to see if they were drunk. Chirica had had a previous unpleasant experience with a police officer some time before, so he preferred to leave. He saw Fane Alexandru hit Elinoiu and heard the police officers telling the owner to take Elinoiu “to the back.” Chirica went to a pub nearby, had a drink and returned to Bratu's shop after about 15 minutes. He found Elinoiu there, who complained he had been cruelly beaten. Chirica said that the left side of Elinoiu's body was blue and had a number of strange horizontal scratches which were bleeding, as if he had been hit with a board that had a nail at one end. Chirica helped Toader Elinoiu to go home and left him close to Anica Asaftei's.
Other villagers knew that after having been beaten by police officer Fane Alexandru and Bratu, Elinoiu had gone to his sister's house and had died there. They though the incident had occurred on Saturday, around noon.
The fact that they mix up the date does not change facts, namely that Toader Elinoiu had been beaten first by the police officer and then by Panaite Bratu.
The newspaper Monitorul de Vrancea published several articles about the Elinoiu case and other alleged abuses of the Nereju police. An article published on 22 August mentions that the Press Office of the Vrancea Police had issued a communiqué on 17 August, according to which Toader Elinoiu had died because of the consumption of medical spirit and “the body did not exhibit any marks of violence.” Actually, on the one hand, the autopsy had taken place on 18 August, one day after the communiqué had appeared, on the other, the journalists who had gone to Nereju — including reporters from the Focsani branch of the national television channel — had seen and filmed the clearly visible beating marks on the face and body of the deceased (swollen split lips, bruises on the face and body, scratches, “round marks, possible signs of strong, concentrated blows with a blunt object”, the skin tore off from extended areas). Later on, it was discovered that the autopsy also revealed Toader Elinoiu had three broken ribs.
The journalists from “Monitorul de Vrancea” also raised the issue of the way the 20 August investigation carried out by the two officers from IPJ Vrancea had been conducted. The police officers heard a number of villagers who had said there had been no beating and therefore no police officer involved. Only when the journalists insisted did they agree to also talk to the other villagers who were of a completely different opinion.
Toader Elinoiu might have died of alcohol consumption or as a result of the beating, or as a result of the two causes combined. No matter what the true version is, it cannot preclude a serious investigation of the blows dealt both by police officer Fane Alexandru and the owner Panaite Bratu. The police officer's guilt is increased by the fact that his duty was to protect Toader Elinoiu from Bratu's anger, not to encourage the latter to beat him up savagely for the “guilt” of having thrown up in front of the store.
The attempt to hush up the Elinoiu case results from the constant denial of facts by the local police, despite the medical documents and the numerous witnesses. IPJ Vrancea tried in their turn to hush up the case, fact proven by the way the 20 August investigation was conducted and by the haste in which the Press Office communiqué that contained information counter to reality was released.
The villagers who knew anything about the Elinoiu case were intimidated by the local police in order to withdraw — or not to give — statements about the events occurred.
APADOR–CH wishes to stress again that torture, inhuman and degrading treatment are forbidden by the Constitution and the international human rights documents ratified by Romania; employing such means is punished by the Penal Code and the punishment is increased if the victim dies. But beating, threats to resort to fire weapons and the actual use of fire arms (see the Ion Putoi case) seem to range among the “usual” methods employed by the Nereju police.
APADOR–CH also notes that, after its representatives' visit to Nereju, the newspaper Ziua informed that several police officers from the Vrancea Police Inspectorate went to the village to “talk” to the villagers. If these talks were meant to intimidate those who had spoken with the association's representatives, APADOR–CH, — that has already received a letter from the County Police Inspectorate which denies any potential illegality committed by the local police — wishes to make it very clear that the police could be charged with obstructing the Nereju villagers' right to opinion, freedom of expression and right to petition.
As for the Toader Elinoiu case, the General Police Inspectorate seems convinced that his death was due to alcoholic intoxication. APADOR–CH was blamed for having taken into account Gheorghe Chirica's account (“handicapped, incoherent... [suffering from] a permanent disability consisting of lack of bone matter — paresis of the left side”) as well as Marcel Putoi's (“well known for his previous criminal record, having been sentenced several times for crimes involving the use of violence”). The County Police Inspectorate asserted that “no conflicts or tense situations, including the activity of local police officers, had been recorded in the village.” Still, the case file of Toader Elinoiu's death has been forwarded to the Bacau Military Prosecutor's Office that will pronounce a solution, “with regard to the crime of abusive behaviour allegedly committed by non-commissioned officer Alexandru Fanica.”
With regard to Ion Putoi's case, the General Police Inspectorate considered that the police officers' actions had been legal. Moreover, the Bacau Military Prosecutor's Office, which investigated the case, forwarded it to the Bucharest Territorial Military Prosecutor's Office, which issued a no indictment decision.
Nicolae Cazacu (Poiana Lacului)
Nicolae Cazacu recounted that on 5 September 1998, around 12:00 a.m., three local police officers (Gabriel Nadragea, Octavian Florea and Marius Dobrin) had gone to his house, accusing him of having stolen a bicycle, had driven him in the police car to the police station. On the way there, they hit him with a lever over his legs and back. At the police station, the three police officers continued to punch and kick him, to hit him with the lever and their truncheons. He was forced to lay face down on a table to which he was tied and beaten with rubber truncheons until he had passed out. They threw water over him and, when he had recovered consciousness, they struck him over the palms of his hands and soles. Nicolae Cazacu says that Lazar, the chief of the local police, was also there, dressed in plainclothes, but the officers from the Arges County Police Inspectorate stated that he had not been at the police precinct at that time. The young man constantly denied having committed the theft, but this merely irritated the police officers. The torture lasted for 5-6 hours, until the damaged party (known as Mr Marinel) came to the police station and declared that Nicolae Cazacu was not the one who had stolen his bicycle.
Nicolae Cazacu's father and his neighbours said they had never seen anyone so badly beaten: the palms of his hands were purple-black and swollen, his back was striped with red and purple marks, his face bore marks of beating and he could hardly stand on his feet. There are colour photos to testify to his state; two of them have been printed in the daily Curierul zilei from Pitesti which entirely confirm that description. All the neighbours declared that, despite the fact that the Cazacus are very poor, they had never stolen a thing. Actually, the bicycle has not been found yet. Apparently, after being released, Nicolae Cazacu was driven home by the very complainant, who left him close to the place where he lives. After getting off the car, he was close to losing consciousness right in front of a small shop where there were several villagers at that time. Therefore, numerous witnesses saw him and heard what had happened to him at the police station. He was taken to the county hospital in Pitesti, where he was X‑rayed and his hands were bandaged.
On 7 September, Nicolae Cazacu went to the forensic laboratory in Pitesti and was issued medical certificate no. 1074 which mentions multiple bruises, scratches and blow marks and concludes that “the traumatic lesions [had been] produced by blunt and blunt oblong objects and require 8-9 days of medical care since the date when they were inflicted.”
When the certificate expired, Nicolae Cazacu went again to the forensic laboratory and was issued a second certificate, for an additional period of 8-9 days of medical attendance. It should be mentioned that the police officers took Nicolae Cazacu from home to the forensic laboratory for another examination, conducted by a different doctor who said that the additional 8-9 days of medical care were “unjustified”, because his wounds had healed. Costel Cazacu, Nicolae's brother, remembered that the police officers had come with a private car on 21 or 22 September, therefore after the investigation conducted against them had begun.
The APADOR–CH representatives talked to a neighbour who said that one week after the beating she had seen Cazacu's hands which were far from being healed.
On 24 September, Nicolae Cazacu lodged a complaint with the Bucharest Territorial Military Prosecutor's Office, registered under no. 447 in the audience records.
The group of four children
The very day Nicolae Cazacu was tortured at the police station, four children aged 13 to 16 were also taken to the police station for the same bicycle theft. The children were kept at the police station for 7-8 hours, without their parents being notified, they were beaten and threatened and asked to sign the statements written by police officers. All the children attend the school in Poiana Lacului. On the very first day of school (14 September), they were summoned again to the police station, this time with their parents. Several police officers from the Arges County Police Inspectorate and the General Police Inspectorate were also there. The children withdrew their original statements.
The APADOR–CH representatives talked to two of the four children. Mihai C., born on 30 May 1985, is still shocked by the experience undergone at the police station. According to him, first time he went there he was hit by police officers over the nape of his neck and forced to sign two statements written by one of the police officers. He knows the other three children had also been beaten and that Nicolae Cazacu was at the police station same time they were; he could hear him cry out. Mihai C. lives with his grandmother who had not been announced that her grandson had been kept at the police station for 7-8 hours.
Costel A., born on 6 February 1984, had also been taken to the police station and beaten over the palms and soles to admit to the theft. Eventually, he had signed the self-accusation. Scared of what could have happened to the child, his parents had bought a bicycle to give it to the theft victim. The police officers took this as a clear proof of the child's guilt.
The children had not been taken to the doctor to ascertain the results of the treatment applied by the police and the families had not filed any complaints, partially because they were not aware of their rights and did not know what to do, but also because they had been afraid to.
Colonel Fatuloiu from the Arges County Police Inspectorate was familiar with the Poiana Lacului case. He ordered an investigation on 7 September, the very day when Curierul zilei had printed the article and colour pictures regarding Nicolae Cazacu's case. He confirmed that the Police County Inspectorate had “notified” the Pitesti Forensic Laboratory with regard to the issuance of Nicolae Cazacu's second medical certificate — which was actually “refuted” (?!) — and said he suspected that Cazacu had arranged for the number of days of medical care to be doubled. A police officer from the County Police Inspectorate who also took part in this discussion said that someone must have prodded Nicolae Cazacu to file complaints everywhere in order to discredit the Poiana Lacului police.
On the other hand, Colonel Fatuloiu said he had already ordered that three of the four police officers from Poiana Lacului be transferred to another locality as of 1 October 1998. At the same time, following the inquiry on the way Nicolae Cazacu and the four children had been investigated by the Poiana Lacului police, the County Police Inspectorate declined its competence and forwarded the case file to the Bucharest Territorial Military Prosecutor's Office.
With regard to the theft, the County Police Inspectorate reached the following conclusions: it was suggested that two of the four children, who admitted initially to having stolen the bicycle (Costel A. and Dorel R., born on 1 July 1983), be investigated by officers specialised on juvenile issues, from the Pitesti Municipal Police. Nicolae Cazacu was prosecuted for Art. 211 Penal Code (concealment) as he had allegedly admitted he had sold the stolen bicycle for lei 50,000. The County Police Inspectorate did not seem to have thought of the way the statements had been obtained or of the fact that the material evidence had not been found. Moreover, two more stolen bicycles have appeared and their theft was also blamed on the two minors.
The treatment Nicolae Cazacu was subjected to at the Poiana Lacului police station is a clear-cut case of torture, forbidden by the Constitution and by all international documents ratified by Romania and punished by the Penal Code.
The Poiana Lacului police officers' behaviour towards the four children is a case of inhuman treatment, punished by law. The resort to such methods in order to determine the suspects to incriminate themselves is also punished by the penal law.
The fact that the County Police Inspectorate intervened with regard to Nicolae Cazacu's second medical certificate issued by the Pitesti Forensic Laboratory can be regarded as an interference of the police in the medical act. At the same time, the fact that Nicolae Cazacu was seized by the police taken to the Forensic Laboratory represents an illegal deprivation of liberty.
APADOR–CH wishes to point out to the Ministry of Interior and the Military Prosecutor's Office that attempts to intimidate both the doctor who signed the second medical certificate and the person who helped and advised Cazacu how to react to the gross violation of his rights have been or are going to be made.
APADOR–CH learned that the three (or four) police officers involved in the case of torture from Poiana Lacului were still discharging their duties in this municipality at the end of 1998. None had been transferred, as Colonel Fatuloiu had promised.
The reply received from IGP with regard to this case suggests that Nicolae Cazacu had not actually been beaten at the police station, and anyway “a final conclusion with regard to the non-commissioned officers' innocence or guilt towards Nicolae Cazacu and the three minors involved would be premature.” The IPJ Arges declined its competence in favour of the Bucharest Military Prosecutor's Office.
2. Resort of police officers to fire arms
Marin Remus Marin (Vizuresti village, municipality of Ciocanesti, county of Dambovita, 1997)
Marin Remus Marin was shot on the night of 8/9 August 1997 in the town of Buftea by non-commissioned officer Nicu Toma from the “Car thefts” department of Police Station no. 8. The Marins found the youngster around 5:30 a.m., lying in a pool of blood next to their fence. He was taken immediately to hospital, where he underwent surgery. Three bullets were extracted; he had been diagnosed upon admission with “shot wounds in the right elbow, right deltoid and scapular area, right lower jaw.” He is currently detained on remand at the Bucharest-Jilava penitentiary.
1. Description of the August 1997 events as reported by the victim's family
Marin Remus Marin is 21 years old and father of two children aged 3 and one and a half. Pursued for participation in several burglaries committed in February 1997 (the defendant admits to a single burglary), the youngster used to stay away from home quite a lot, spending most time in Bucharest.
On the morning of 9 August 1997, around 5:30 a.m., his mother, Floarea Marin, found him unconscious, his clothes full of blood, in a ditch, several metres away from the family house in Vizuresti. She woke up the whole family at once and they drove him to the Bucharest emergency hospital. They learned that Remus had been shot (four shot wounds in the right arm and one next to the right ear; this last bullet was found in his neck). He underwent surgery twice and was treated in hospital until 25 August. He was permanently guarded by police officers from Police Station no. 8 who did not allow him to get in touch with his family. The same police officers took Florina Stoican, mother of Remus' children from hospital on 9 August. She was taken to Bucharest Police Station no. 8 and asked for a statement regarding the circumstances under which the youngster was wounded (?!). Florina Stoican said she was subjected to a degrading treatment (she was forced to undress and was locked in a sort of wire cage) until around 10 p.m., when she was transferred to the Buftea police lockup. She was released the next day (August 10) around noon.
On 25 August 1997, Marin Remus Marin was transferred from the emergency hospital to the Buftea police lockup. After about 24 hours he was admitted to the Bucharest penitentiary hospital. He was taken back to the Buftea police lockup on 17 September and detained there until 26 November when he was transferred to the Bucharest penitentiary. Apart from the period spent in the penitentiary hospital, the defendant was not entitled to receive visits and parcel until he was taken to the penitentiary (December 1997).
Marin Remus Marin is currently indicted on the basis of two indictment acts: the first refers to the thefts committed in February 1997 (Arts 208 and 209 of the Penal Code), the second to the charges of robbery and destruction (Art. 211 para. 2 and 217 para. 1 Penal Code), allegedly committed on 8 August 1977.
2. Marin Remus Marin's account
The defendant admits to having participated in a burglary in February 1997 (one of the four or five he has been charged with) but denies having taken part in the August 1997 crimes.
The youngster had come from Bucharest on 8 August 1997 on the last bus for Buftea, where he arrived around 11 p.m. There are about 8 km from Buftea to Vizuresti and he prepared to walk all the way there when a cart driven by two youngsters and an older man caught up with him. He asked if they could take him along and they accepted, specifying that they were going to Ciocanesti, a village on the way to Vizuresti. Marin Remus Marin told then what his name was and where he lived, but did not ask them the same questions. When they left the town of Buftea, they found a Dacia car with all lights off stopped on the right side of the road. The moment the cart appeared, all lights went on. The cart driver goaded the horse on and they went round the car on its right side, over the field. Remus says he saw four men in plainclothes standing next to the car which was a regular one, without any police markings. When the cart had moved about 15 metres farther, the men opened fire. Remus Marin, who was sitting in the back, was shot five times. He had no verbal warning and no warning shots. He could not remember anything from the moment he was shot until he got to the hospital.
3. Unclear aspects of the 8 August 1997 incident
a) who were the three persons in the cart? Were they heard? Are they under arrest? Why was Remus Marin turned down when he asked that the cart owners in Ciocanesti be summoned for identification?
b) the identity of one of the four men standing next to the car was discovered (he was a police officer off duty). Who were the other three?
c) what happened after the bullets that wounded Remus Marin were fired? Did the car follow the cart? And if so, what happened to the three other men in the cart? If not, why did the four men standing next to the car give up continuing an action they considered legal?
d) if — as the second indictment act mentions — the police officer who was on holiday caught a group of criminals — Marin Remus Marin included — while they were breaking into a private shop in Buftea, why did he not resort to a fire arm on the spot? How did the four men in the car know which way the criminals were going to take and, first and foremost, how could they be sure that the persons in the cart were the ones who had attempted to break into the shop? It should be stressed that it was dark (about 11:30 p.m.) and the visibility was reduced;
e) according to Marin Remus Marin, one of the witnesses (who are the witnesses? Those who accompanied the police officer on holidays?) had allegedly identified him as the cart driver. If so, how could one explain how he was shot in the right side of his body, given that they had rounded the car on the right side of the road? If he were the driver, he would have been shot in the left side;
f) how could one explain why the police officer on holidays had the weapon on him? Do the Ministry of Interior regulations allow police officers to carry a gun with them while on holidays? How many used cartridges did the police officer report? Marin Remus Marin had five shot wounds and none of the bullets could have ricocheted, therefore the police officer had shot at the cart at least five times;
g) how could one explain the complete isolation Marin Remus Marin was subjected to by Bucharest Police Station no. 8 over the period he spent in the emergency hospital? Why was he not allowed to get in touch with his family? Is the crime allegedly committed by Marin Remus Marin so serious? Could an attempted burglary — if the charges prove to be real — justify the show of force usually employed in the case of important criminals?
h) how come Marin Remus Marin was abandoned by the police officer who had shot him? Obviously, it was the police officer's and his companions' duty to drive him to hospital in order to receive the necessary medical treatment to save his life.
Regardless of how serious the crime Marin Remus Marin was charged with could have been, APADOR–CH considers that nobody could justify the resort to fire arms under the given circumstances. The imbalance between the alleged crime (burglary attempt) and the response of the police officer, who fired his weapon at least five times, hit Marin Remus Marin in the upper part of his body and endangered his life is obvious, as long as he was unarmed and was not attacking anyone.
According to APADOR–CH, the defendant Marin Remus Marin should have been prosecuted for the alleged burglaries committed in February 1997; the trial on the potential August 1997 burglary should be postponed until the territorial Military Prosecutor's Office has solved the use of fire arm by the police officer.
APADOR–CH resorted to amicus curiae — a method unused and unaccepted in Romania — which consists in the involvement of a non-governmental association in a case, on behalf of one of the parties. This practice is widely spread in many countries with a well-established democratic system. This practice is also applied at the European Human Rights Court in Strasbourg. The first such attempt in Romania belonged to AAPADO Brasov (the Lawyers' Association for Human Rights) which failed in this attempt. APADOR–CH tried again to use this procedure in 1998, in the Marin Remus Marin case, when it submitted to the Sector 1 Court where this case was pending an application asking the court to suspend the trial on the crimes Remus Marin was suspected of having committed in August 1997 until the use of fire arm by a police officer had been solved, in connection with the crimes the defendant was charged with. APADOR–CH's application did not receive an answer. The military Prosecutor's Office had not pronounced a decision in this case until the end of 1998.
Marian Ciulei (Codlea, county of Brasov)
On 12 June 1998, two APADOR–CH representatives went to Brasov, Codlea and Ghimbav to check a piece of information provided in the media, according to which a minor had allegedly been shot by a non-commissioned officer in the town of Codlea.
The two representatives expected the minor — who had been shot in the liver — to be still hospitalised at the Brasov county hospital. Actually, he had been released since 5 June. As the hospital records did not mention the victim's address or whether he had been transferred to another hospital, the two representatives went to the hospital in Codlea. There, they learned that Marian Ciulei, aged 16, had been admitted to hospital on the evening of 24 May 1998, with a shot wound in the right side of the body, internal haemorrhage and “hypovolemic shock.” He had been transported immediately by an ambulance to the Brasov county hospital. Marian Ciulei lives in Ghimbav, 30 Garii street.
Marian Ciulei is a student at the Brasov Constructions Industrial School Group. On the day of the APADOR–CH visit, he had been to school to hand in his medical certificate (55 days of medical care) in order to motivate his non-attendance. According to his mother and father, the youngster felt quite well, his wound is healed, but he needed to report to the doctor every 20 days and was on a very strict diet.
Marian's father — Dumitru Ciulei — recounted the following: on the evening of 24 May 1998, Marian and three friends and neighbours — the oldest aged 19 — went by the 8 o'clock evening train to Codlea to the disco. The dance had not started yet, so the four went to a bar and drank half a litre of cherry brandy (about 125 grs. each). They returned to the disco where, for no obvious reason, a young man from Holbav, who was drunk, punched Marian. As they did not want to start a fight and knowing that the last train from Codlea to Ghimbav was leaving at 11:30 p.m., Marian told his friends to go to the station. The oldest, however, jumped at the aggressor, picking on him for having hit Marian. In the fight, the aggressor's golden chain broke. Someone called the police; there is a police station rights across the road from the disco. Marian and his friends started ran away. Two of them stopped at the police summons, the third jumped in the train, while Marian continued to run for several metres. A non-commissioned officer followed him, summoned him to stop and then shot at him, at the very moment when the youngster plunged to the ground. The bullet penetrated the right side of his body and touched his lung, liver and kidney. Fortunately, the bullet did not touch any nerve.
Trying to minimise the guilt of having shot at a minor, the police officers introduced him to the county hospital as a “street kid” and the doctor on duty said Marian was presumably gay (because he was wearing an earring!) and could have been HIV positive! Unfortunately, all this false information was taken over by the media, placing the Ciuleis in a very embarrassing situation in such a small town as Ghimbav. The “street kid” had identity papers and a domicile; the data filled in the hospital records and the fact that two police officers went to the Ciuleis' on the night of the incident, around 3:30 a.m., to announce what had happened to the family are obvious proofs in this sense. If the doctor who admitted Marian to hospital did make the allegation that Marian might have been HIV positive, this proves a gross lack of professionalism and medical deontology.
Impressed by the non-commissioned officer's youth (23 years) and no longer fearing that Marian could be left crippled for life, the Ciuleis settled the matter out of court with the non-commissioned officer, who committed to pay the minor a sort of pension for two years. The total sum deposited at the Savings House amounts to lei 6,600,000.
It is obvious however that, irrespective of this settlement out of court, the Military Prosecutor's Office will have to conclude its criminal investigation.
On the other hand, after the 24 May incident, Marian's other three companions made statements at the police. None of them — Marian included — was summoned to report to the police afterwards and none was fined. It seems that a non-indictment decision will be suggested by the Codlea police.
APADOR–CH wishes to draw again attention to the enormous risks of allowing police officers (and public guardians) to use fire weapons. As long as few civilians are licensed to wear a gun and they are anyway closely supervised by the police, APADOR–CH considers that the use of fire weapons by police officers should be either eliminated — which would be ideal — or severely restricted by modifying Art. 19 of the Law on Police no. 26/1994.
In the case of juvenile Marian Ciulei, APADOR–CH believes that the non-commissioned officer from Codlea cannot invoke any of the situations provided under Art. 19, not even letter d) “holding criminals caught in the act who try to run away and do not obey the summons to remain at the crime scene” (emphasis added). It is obvious that the minor had not committed a crime and thus he could not have been caught “in the act.” A mere argument could be regarded as a petty offence at the most. Neither could the non-commissioned officer invoke Art. 21 para. 2, which would have allowed him to resort to his weapon had he been attacked by surprise. On the contrary, Marian Ciulei was shot in the right side of his back. If he had had the intention to attack the police officer, he would have been shot frontally. Moreover, the non-commissioned officer did not go by the rules established in Art. 21 para. 1, because after having summoned Marian to stop, he did not fire in the air as he was supposed to.
Given that the four youngsters had stopped when summoned, the resort to a fire arm against Marian Ciulei was completely unjustified also because — supposing that he had indeed committed a crime — he could have been identified later on the basis of statements made by the two other youngsters already on police custody.
The non-commissioned officer's explanation (presented on television) that he believed that Marian Ciulei was going to attack him and that he shot because he had panicked is a low mark for the police professional training. A policeman must be prepared both physically (good physical state, immobilising techniques, precision in using the gun so as not to endanger the suspect's life, etc.) and mentally (avoiding the danger of a police officer who panics and acts instinctively, teaching them to assess correctly how dangerous the suspect is, etc.).
APADOR–CH suggests to the General Police Inspectorate to ban the non-commissioned officer from Codlea from wearing a gun during the investigation conducted by the Military Prosecutor's Office, especially if a non-indictment decision is reached. APADOR–CH suggests that all police officers and non-commissioned officers equipped with fire arms be subjected periodically to a psychological examination.
After the association had sent its report on this case to the competent authorities, the Military Prosecutor's Office issued a no indictment decision in favour of the police officer from the Codlea Police Station. The decision was based mainly on Art. 19 letter d) of the Law on Police no. 26/1994, which authorises police officers to resort to “fire or side arms” to “apprehend criminals caught in the act who try to escape and do not obey the summons to remain at the crime scene.” Moreover, in Marian Ciulei's case, an important role in the pronouncement of this no indictment decision was played by the “agreement” reached by the family with the non-commissioned officer.
Ioan Herea (Brasov)
The APADOR–CH representatives wish to mention that — for well-founded reasons — they could not talk to Ioan Herea, who was allegedly detained in the Brasov County Police Inspectorate lockup. Neither did they have access to his file, which had already been transferred to the Military Prosecutor's Office. However, they talked to Colonel Mircea Bucur, commander of the Brasov municipal police.
On the night of 17/18 June 1998, around 2:40 a.m., Ioan Herea and Nicolae Pana tried to break into a small booth. They were caught by two patrols (each made of a non-commissioned police officer and a gendarme) and ran away. Following the repeated verbal summons of the two patrols, Nicolae Pana stopped and turned himself in. Ioan Herea went on running. Non-commissioned officer Ion Stanescu fired a warning shot, them fired his gun at the fugitive and shot him in the back, in the right side of his ribs. He was taken immediately to the Brasov county hospital and operated on in an emergency procedure. Ioan Herea is currently in no danger.
The mainstream newspapers stressed the idea — undoubtedly taken over from the Brasov Police — that Ioan Herea is a well-known hardened criminal, that although he is only 29 years old he has already succeeded in being sentenced to 20 years in prison — eight of which he has already served — for numerous thefts and burglaries, that he is a permanent “client” of the police and penitentiaries ever since he was 14, etc. APADOR–CH wishes to specify the following with regard to this presentation: a) even if Herea is a notorious criminal, he remains a human being who must enjoy all his rights, the right to life included. Actually, his life has been seriously endangered and it was mere chance that the bullet did not touch a vital organ; b) the many thefts and burglaries Ioan Herea has been sentenced for seem to have been used to justify the resort to a fire arm. However, it is clear that the non-commissioned officer who shot had no idea who the person he was pursuing was, which Colonel Bucur confirmed.
When the APADOR–CH representatives told Colonel Bucur that Ioan Herea could have been killed by the bullet fired by non-commissioned officer Stanescu in the dark, from more than 50 metres, the former answered he “would have been glad if that had happened”; the commander was firm in his conviction that the police officer's action had been “perfectly justified and legal”, so that he even awarded him a prize!
The problem raised by the APADOR–CH representatives is whether this was a case of “absolute necessity”, as long as Nicolae Pana, Ioan Herea's accomplice to the attempted burglary, had already been apprehended. Had Ioan Herea succeeded in disappearing, the police officers could still have identified and apprehend him later on without endangering his life.
Both cases presented above (Marian Ciulei and Ioan Herea), as well as others signalled by the media, demonstrate how dangerous for one's life the provisions of Art. 19 letter d) of the Law on Police can be. This provision should be repealed because it allows the resort to fire arms in case of minor misdemeanours, ignoring two articles of the UN document on the fundamental principles to be observed by law-enforcement officials when they resort to fire arms: Art. 5 letter a) — proportionality between the seriousness of the crime and the aims of intervention, and Art. 9 — resort to fire arms only in order to protect lives. The association considers that neither Marian Ciulei's deed (disappearance of a golden chain, found later on at the claimant's feet), nor Ioan Herea's the attempt to break into a small shop qualified for the use of fire arms.
Police officers should also be familiar with and apply all the other methods of identification, discovery, immobilisation of suspects, etc. The use of fire arms should be the last resort for police officers, “whenever absolutely necessary.” In both of the cases presented above, some of the suspects had been already held (one out of two in Brasov; two out of four in Codlea). Therefore, the police officers could have identified the other perpetrators without resorting to their guns.
In both cases, the Military Prosecutor's Office has issued no indictment decisions.
3. Raids
Lugoj (27 June 1998)
The town of Lugoj has approximately 60,000 inhabitants. One of the very few things young people can do in their spare time is go to the “Compact International” disco, whose owner lives in Timisoara and goes to Lugoj only from time to time. In the meanwhile, the business is managed by the local manager. The disco, which opened about one year ago, is located on an island, the only access road being a bridge. During the summer, the disco is open every day; off season, only on weekends. The apartment blocks in the area are situated at over 200 metres from the island, therefore the people who live in the neighbourhood can hardly be disturbed by the noise.
Two youngsters — Stefan Gomoescu and Petrica Balint — have established a bodyguard company. They followed all the legal steps to obtain the license, apart from asking for a permit from the Lugoj police, which they were going to do at the end of June. The company, with about ten employees, was already working at the disco on the island, providing watch and protection services. According to Stefan Gomoescu and Petrica Balint, none of the employees had a criminal record.
On the night of Saturday 27/Sunday 28 June, around 1:00-1:30 a.m., while there were over 1,000 people in the disco, a group of about 30 police officers — most from the Timis Department for the Defence of Public Law and Order, wearing masks — stormed the island, asked of the identification papers of over 100 people, hit several persons, handcuffed and led to the police station about 12 persons, four of them members of the bodyguard company. The Lugoj police that accompanied the masked people told them who to handcuff and take to the police station. No search warrant was shown and neither the owner nor his representative consented to this search. The ones “led” to the police station were made to kneel, face to the wall, and were kicked and punched. Some were asked to give statements, some others were not. Eleven people were fined (mostly on the basis of Law no. 6/91 — Art. 2 para. 1). No explanation were given. The ones “led” to the police station declared they had been asked what their names were after having been handcuffed and hit. Marius Calafeteanu (18 years old) was kept the longest in the police station, being deprived of liberty for over two hours and beaten both at the disco and at the police station. Mihai Homoc, who had also been beaten, was fined lei 1,400,000. He appealed the fine in court. Vasile Murgu underwent a similar treatment, being fined “only” lei 400,000 because the local police remembered that his father had just died! Sorin Iancu (nicknamed Alin Grasu) was taken from the police station directly to the hospital (“he had stopped breathing” — said the youngsters; “he was drunk” — said the police officers). Sorin Iancu's mother, notified by other youngsters, entered the police station and saw the masked people hit the youngsters who had been “led” to the police station, her son included. Stefan Gomoescu — initiator of the bodyguard company — was handcuffed in the disco, kept on the ground, lying down on his belly, for several minutes, taken to the police station and fined because his company had not asked for a permit from the Lugoj police, although, as mentioned before, this problem was going to be solved; Gomoescu had even been scheduled to report to the Timis county police on 29 June. Moreover, the disco owner was fined lei 2,500,000 for using the services of a company which had not been approved by the police.
Two other persons who wished to remain anonymous declared that they had entered the disco with their wives 10 or 15 minutes before the force intervention. Both were hit by the people wearing masks, handcuffed and taken to the police station, after which they were released without giving statements or being fined, but without being given any explanation either! One of them still hurt in the ribs area; he went to the hospital for an X‑ray. When he went to take his X‑ray, he was turned down by the hospital staff.
All the youngsters who got beaten that night said that, although they had not been downright turned down by the Forensic Laboratory doctors, they were told to return “the next day” or “in a few days' time.” They took the postponement as a refusal meant to protect the police officers.
Therefore, apart from the four bodyguards, eight more persons were hit, handcuffed and “led” to the police station. What was the purpose of and reason for this force intervention, as long as no incidents has been reported on the island and no one had filed any complaint? And on what criteria were selected the almost 100 people who were identified and the 12 “led” to the police station?
Colonel Valeriu Halbac, deputy commander of the Lugoj Police, lives close to the disco. He maintained that the inhabitants' peace used to be disturbed by groups of youngsters coming to and leaving the disco, more or less inebriated. He also said that there were “bushes” on the island (?!) and that many could happen because of the reduced visibility! The colonel showed the APADOR–CH representatives the action plan approved by the Timis county police, a plan which included all possible crimes, from drugs and rape to identifying people who avoid carrying out the punishments they had been sentenced to or which are pursued in the whole country! It should be mentioned at this point that the colonel admitted that no complaint had been filed in connection with any of the crimes mentioned above. He mentioned, however, that there was “information” according to which, over the year since when it had been opened, some people had been bullied in the disco but had been afraid to file complaints. The APADOR–CH representatives argued that this place being a disco, if indeed such situation had occurred, the owner or his representative would have been directly interested to announce the police in order to protect their business, which had not actually happened.
Colonel Halbac said that the force intervention had been meant to prevent the perpetration of crimes, even though nothing special had been reported since the disco had been opened. Moreover, the police did not use other means, which would have supposed less effort and expenses, in order to prevent the perpetration of crimes, such as to talk to the owner or the potentially aggressive persons who went frequently to this disco.
Colonel Halbac declared that no warrant issued by the Prosecutor's Office had been necessary for this raid, although the Law on Police no. 26/1994 provides under Art. 16 letter f) that police officers have the right “to enter... any place... in compliance with legal regulations. Any search or criminal investigation action should be carried out upon the consent of the management of such entities...” “No search was carried out”, said the colonel. The question is whether entering a private place without a warrant does not violate the constitutional guarantee which protects the right to property.
A summary of the results of this intervention reveals the following figures:
— persons asked to identify themselves — 87
— persons led to the police station — 12
— raids — 1
— people pursued countrywide — 0
— sanctions for petty offences — 11
— total amount of fines — lei 4,550,000
The whole operation carried out on the island took 7 minutes, a very short spell during which the police officers — wearing masks or not — identified in the dark almost 100 people and selected the 12 who were “led” to the police station out of over 1,000 people present in the disco.
The colonel said that most of the people who were dancing were not disturbed during the intervention. Moreover, according to him, he received several phone calls afterwards and was congratulated for the action on the island. On the other hand, the victims said that hundreds of people were ready to testify to the police brutality.
Colonel Halbac expressed the opinion that the disco on the island was a “disorganised” place (?!), escaping any kind of control due to its position and to the vegetation. Therefore, as the (police) control was hardly possible, serious crimes could be perpetrated on the island and that was why the prevention action had been necessary.
In the opinion of APADOR–CH, the intervention of the Lugoj Police accompanied by police officers from the Timis Department for the Defence of Public Law and Order around 1:00-1:30 a.m. in a private place, without a search warrant and without the owner's consent is a violation of legal provisions. There was no flagrante delicto, which would have been the only legal ground for such intervention. Similarly, no complaints had been filed prior to the intervention in connection with potential crimes perpetrated at the disco. It appears that the only reason for this intervention was the frustration experienced by the Lugoj police, who resented the fact that they could not control the thousands of youngsters gathering on the island. As the police had received no complaint in over one year, since the disco had been opened, this force action was organised to intimidate rather than to prevent crime.
Apart from Stefan Gomoescu, the other ten people “led” to the police station were substantially fined for “uttering obscene words in public.” Even supposing that this minor offence was real, did it indeed need the presence of about 30 police officers — many transported all the way from Timisoara — to be punished?
The persons hit during the intervention and later on in the police station have not been issued expert medical certificates. However, there are many witnesses who can testify to the brutal character of this intervention.
APADOR–CH has learned that the Timis Department for the Defence of Public Law and Order had organised a similar action in a disco in Timisoara — the Giroc neighbourhood. Therefore, such force actions carried out with the permission of the Timis county police seem to become usual in this county. Undoubtedly, such raids can be justified if there are well-grounded indications that serious crimes (or attempts) are perpetrated and if the legal procedures are observed. According to the information received by APADOR–CH, these conditions were not met. At least in Lugoj.
Merisani village, municipality of Babaita, county of Teleorman (30 July 1998)
The raid took place on 30 July, starting at 5 a.m. Ten houses were searched. In seven cases, the police presented search warrants issued by the Prosecutor's Office; in the other three, the villagers consented to their houses being searched. A police report was drawn up after each search, but only two persons — Ion Prailea and Ionel Nedelescu — received copies of these documents. Groups of 5-6 police officers and gendarmes entered each house.
The police held the identity cards of ten men and told them to go to the village school. The street where the school is located was full of police officers and gendarmes, the latter armed with shields and tear-gas cans (similar to fire extinguishers in size). The approximately 50 police officers and gendarmes, accompanied by police dogs, plus a big van, three cars and a four-wheeler threatened the villagers who felt as if under siege.
The ten villagers “summoned” to school were driven by van to the Teleorman IPJ in Alexandria, where they were divided into two groups for questioning. Seven of them complained of having been beaten by police officers to make certain statements. All say they were threatened with the “grill” and verbally abused and that they were not given any water or allowed to go to the toilet throughout the ten hours for which they were kept there.
Ionel Petculescu wrote several statements, because the police asked him to admit to something, without specifying what to. The only specific element invoked by the police was that they had discovered the remains of a bull that had supposedly been stolen on a field next to Merisani. Ionel Petculescu constantly denied any knowledge of the theft; he says he was beaten by the chiefs of police — and/or their deputies — from Babaita, Draganesti-Vlasca and Orbeasca as well as by Lieutenant Jianu from the IPJ.
Lieutenant Jianu punched Nelu Galeteanu in the head and “invited” him to write his statement by “lay your roe for us!”, after which he was hit with rubber truncheons by the Babaita police chief Marinescu and his deputy, Lungu, to declare that four of the other detainees “walk around during the night” (?!).
George Ciobanete was in his turn hit by the Babaita deputy police chief. During the search of his house, the police officers discovered three sacks of barley, a sack of wheat and one of meal and accused the villager of having stolen them, which he denied.
Marian Ciobanete was hit with a rubber truncheon and punched over the head and was threatened with the “sheet of paper” (striking the palms on which a sheet of paper or newspaper is placed) to tell what he knew about one of the other villagers who had been held.
Ionel Nedelescu was punched and kicked in the stomach and hit with the rubber truncheon on the head. He felt bad after this treatment and vomited blood for two weeks. During the search, the police found at his place — according to the report — 12 sacks of urea of “suspect” origin, in the police officers' opinion. Ionel Nedelescu said, however, that he had got them from the Agricultural Association in exchange for coupons.
Florin Bira, aged 17, was beaten worst of all. Six piglets were found at the Biras during the search. The minor, who has already been prosecuted for theft, declared initially he had found them in the field the previous evening, but eventually admitted to having stolen them. The youngster was hit over the palms and soles, over the head, dragged by the hair through the corridors to be taken outside whenever he fainted. Nelu Galeteanu was placed in the same room with Florin Bira at IPJ and saw several police officers beating him repeatedly. Florin Bira was released the same evening but he was taken again by the police four days later, driven to Alexandria and beaten once more. The next day, the Prosecutor's Office issued a 5‑day arrest warrant that he served in the IPJ lockup.
None of those beaten have been issued medical certificates. It so happened that the villagers thought they could not go to a forensic laboratory without their identity cards. But their identity cards were held by the Teleorman IPJ for 11 days.
Ion Prailea is one of the few who got away without being beaten; he was only threatened. The police report drawn up after the search includes a long list of objects regarded as having “suspect” origins, such as an electric pump for a well for which Ion Prailea has a warranty (therefore it had been bought, not stolen) and several other bits and pieces (“4 metres of blue hose”, “two 1.5 metres long brown pieces of hose” “2 Dacia rubber rims”, etc.) that one could hardly show any papers for.
Except for the question relating to the bull found in the field, none of the villagers was questioned about the animal thefts reported in the area. Actually, this was the main reason for the raid conducted by the Teleorman IPJ.
The villagers also said that some of them were searched again after the raid by the Babaita police officers, who “advised” them to “keep their mouths shut.” Instead, they filed complaints with the Ministry of Interior — which declined its competence and forwarded the complaints to the Bucharest Territorial Military Prosecutor's Office — to the Adevarul newspaper, which published in two successive issues articles about the events in Merisani, to the national television which presented a report on this case during the news broadcast, and to APADOR–CH.
Lt.‑col. Tiberiu Olteanu, deputy Chief-Inspector of the Teleorman County Police Inspectorate, said the raid had been organised by the Public Order Department together with the Criminal Police Department of IPJ on the basis of information gathered from the Police Stations in Babaita, Draganesti Vlasca and Orbeasca as well as because of the high number of animal thefts with unidentified authors. To put it differently, there have been several complaints of this kind that the police could not solve and consequently they organised this raid.
Lt.‑col. Olteanu said he doubted that the searches had begun before 6 a.m. — the time when searches are permitted to begin according to the law. Or the three Ciobanete brothers who live each in his own house said that the searches had taken place between 5 and 6 a.m. Lt.‑col. Olteanu also said it was impossible for the police officers not to have handed copies of police reports to all those who had been searched. But, as mentioned before, only two of the villagers said they had received such copies.
The impressive show of force was due to the fact that the village of Merisani is regarded as a highly dangerous place. Lt.‑col. Olteanu said that such raids had undoubtedly been organised before, while the Merisani villagers — including persons who were not involved in these events — said nothing like that had happened until then. There is no information as to the aggressive behaviour of the villagers towards the Babaita police, so that the label of “highly dangerous place” is questionable.
Lt.‑col. Olteanu said that the chiefs of local police stations take part in such actions (raids) to question the persons they hold. It was unclear, however, if deputy chiefs have the same right. Or non-commissioned officer Dorel Lungu's name — deputy chief of the Babaita police — appears in most of the villagers' declarations when they describe the brutal treatment they suffered at the IPJ.
Lt.‑col. Olteanu was surprised to learn that the identity cards of the ten villagers had been held by the IPJ for 11 days, but he said this could not have prevented them from obtaining medical certificates. The forensic laboratory in Alexandria confirmed that anyone can go there for an examination, even without their identity papers, on condition that they could prove they had paid the fee for such examination. APADOR–CH made inquiries at the Bucharest Forensic Institute and received a totally different answer, namely that the Bucharest Forensic Institute conducts such examinations only for persons living in Bucharest and the county of Ilfov and therefore one should show the identity card before being examined. The fee for such examination is lei 65,200. It is quite hard to believe that the Forensic Institute applies a set of rules and its own laboratories in the territory, another.
The deputy Chief-Inspector admitted that the expectation had far exceeded the results of this raid, as the only animal thief they caught was the minor Florin Bira. It is obvious that the 6 piglets had not been reported missing at the Babaita Police Station, as the theft had been committed the night before the raid.
Lt.‑col. Olteanu made no comment on the bad treatments applied at the IPJ, stressing that since they had declined their competence the matter had been left entirely to the Military Prosecutor's Office. He insisted on the preventive character of such raids and on the fact that little by little people will understand how useful such actions are.
APADOR–CH considers that the grounds for this raid are far from convincing. Many of the thefts and burglaries with unknown authors invoked by the IPJ prove only that police officers in the respective villages could not identify the offenders. Resorting to raids in order to “solve” such cases is a proof of their lack of professionalism. Actually, the information received by the IPJ was not confirmed, save for the 6 piglets found by chance. The association believes that the massive show of force and the expenses caused by such action are unjustified.
APADOR–CH wishes to know on what basis the list of ten persons whose houses were going to be searched was drawn up. The chief inspector of IPJ Teleorman declared to Adevarul newspaper that most of them are known to have previous criminal records. Actually, George Ciobanete had been sentenced for a conflict with a private person and Nelu Galeteanu had been sentenced to 8 months in prison for failure to report in time to be drafted. The only one who has been sentenced for theft is Ion Prailea (a suspended sentence of one year and two months); Florin Bira has a case pending in court, also for theft.
APADOR–CH also mentions that according to the two police reports held by the villagers, the search warrants had the same number: 2546/II/7/98. One could infer that the Prosecutor's Office had issued a single search warrant under this number, copied and filled in later on by police officers with the names of the seven persons initially envisaged, to which other three villagers — who were asked for their consent — were added. One might conclude that the prosecutor who issued the warrant had not been correctly informed on the potential crimes allegedly committed by the suspects.
APADOR–CH reminds that the criminal law punishes abusive investigations (Art. 266 para. 2). According to the villagers, the events occurred on 30 July 1998 at IPJ Teleorman could be labelled as “abusive investigation.” APADOR–CH considers that such raids — more and more frequent (see the raids in Lugoj, Tmisoara, Bucharest, etc.) — organised with a view to prevent crime, result mainly in frightening the inhabitants and consist of massive shows of force and impressive expenses.
Both raids were regarded as justified by the General Police Inspectorate, even if the results were not as good as expected. With regard to the Merisani raid, IGP states that all house searches had begun at 6:00 a.m. (the time provided by law) and that the Prosecutor's Office with the Teleorman County Court had issued a search warrant for “each particular suspect. The fact that all warrants were registered under the same number is not relevant; it is a shortcoming of the filing system that regards only the issuing authority, namely the Prosecutor's Office.”
4. Visit to the lockups of Police Stations no. 20 and 21, sector 6,
Bucharest (11 December 1998)
During the visit to the two police lockups the APADOR–CH representatives were accompanied by a captain from the General Police Inspectorate.
a) Background information
Lockups in the whole country keep enforcing Order no. 0410/1974 on the organisation and operation of police lockups issued by the Ministry of Interior. This order — which is a classified document — has not been modified since 1974, hence the obvious imbalance between the situation in police lockups and the minimal international standards in the field. Moreover, a similar imbalance is noticeable even between police lockups and penitentiaries, so that persons found in similar stages of the legal proceedings are subject to different treatments.
According to the police officers with the two lockups, none of the lockup cells in the country is provided with a lavatory. Detainees relieve themselves in plastic buckets with lids, which are emptied twice a day (every morning and evening). None of the lockup cells is equipped with plugs, so that detainees have no way of finding out what happens outside, as they cannot even listen to the radio. The APADOR–CH representatives learned that for the time being only the General Police Inspectorate lockup is equipped with loudspeakers placed in each room, but that apparently other lockups are going to be soon fitted with similar systems.
Out of the 23 police stations in Bucharest, 4 do not have lockups, so that the persons held here are transferred to other police stations in the same sector.
Order no. 0410/1974 of the Ministry of Interior provide that each detainee must be examined by a physician within 24 hours since arrest. None of the 19 Bucharest police stations that have lockups has either a medical office or qualified medical staff. Examinations are performed by the doctors (or nurses) with the General Bucharest Municipal Police Directorate. Several persons detained in the two lockups said that medical examinations are a mere formality (they consist of questions on the state of health of both the detainee and his/her family, disregarding completely the detainees' ignorance in medicine); the only real medical examination consists of a chest X‑ray. According to Art. 29 of Law no. 26/1994, the police staff “shall see to it that the health and physical integrity of persons whom they guard are fully protected.” Still, given the situation described above, this legal provision is almost impossible to observe.
Any contact between detainees and their legal counsels (either hired or appointed ex officio) is supervised by the officer in charge of the investigation. Therefore, the lawyer-client relationship enjoys no privacy. Both the discussion with lawyers and the investigations as such take place — at least at the Police Stations no. 20 and 21 visited on this occasion — in the police officers' offices, therefore in the presence of various persons besides the officer in charge of the investigation.
According to the latest orders of the General Police Inspectorate, each lockup has been provided with printed forms that inform detainees on their rights and duties. The forms contain provisions on the right to receive parcels, visits, mail, etc. but nothing about the right to defence and access to information. The right to defence is a very disputed subject between police officers (mainly those involved in criminal investigation) and APADOR–CH. The association considers that the right to defence should function from the very moment a person is deprived of liberty (either held or led to the police station) while police officers state the right to defence functions since the institution of criminal procedures (therefore since a prosecutor issues a pre-trial detention warrant). The argument focuses on the 24 hours when a person is held (plus the 24 hours of “leading” to the police station for identification purposes, an unconstitutional provision of Law no. 26/1994, Art. 16 letter b). During this spell of time, the person who is deprived of liberty can make statements that will be used to determine the prosecutors to issue a first arrest warrant. In some cases, defendants confessed that police officers obtain such statements under duress.
A last remark, connected to the fact that the police continues to be a military structure, is that police officers — regardless of their rank — fear the occurrence of certain “incidents” and their consequences. The APADOR–CH representatives were surprised to learn that, according to military regulations, whenever “incidents” such as escapes, instances of self-maiming, suicide, etc. occur, it is not just police officers directly involved that get sanctioned (even though not even they are always to be blamed), but also their ranking superiors. Thus, there occur absurd situations when a chief of sector that has no connection whatsoever with the “incident” gets sanctioned. As a result, the regulations enforced in police lockups are very strict and fail to comply with international standards in force in most civilised states.
b) The lockups of Police Stations no. 20 and 21, sector 6
1. Police Station no. 20 (Crangasi neighbourhood)
A number of 14 persons were detained in this police lockup at the time of the APADOR–CH visit, the lockup being designed to accommodate about 20 inmates. Beds are made of stone, with mattresses no thicker than 5 centimetres. The small windows are blocked by thick bars that do not allow the daylight in. The only source of light was a neon lamp about 30 cm long, placed above the entrance door, which obviously failed to provide enough light. Rooms were quite large and the heating worked well. Bed sheets were clean and changed once a week, according to the detainees.
As the lockup has no yard, the only “pastime” for detainees is to empty the latrines and go to the toilet (activities performed twice a day). Despite the fact that the APADOR–CH representatives had been assured the lockup had been repeatedly sprayed with insecticides, the rooms visited — 3 and 4 — were full of bugs. Although the detainees said they read the press every day, the association's representatives saw no newspapers or books in the two rooms. Police officers explained that when detainees finish reading they return the newspapers and books to their wardens.
As mentioned before, persons deprived of liberty do not even have the opportunity to listen to the radio. When asked if detainees are allowed to bring their own radio sets, the police officers contradicted each other: “it is forbidden by regulations” (Order no. 0410/1974) or “they could be allowed to bring their own radio sets, but they have not applied for it!” How could detainees apply to bring in their own radio sets if this is banned by regulations?
The lavatory consisted of two seatless toilets, a sink with three taps and two showers. The police officers stated that detainees can go to the toilet whenever they wish, if they so request.
Food is sent in ever day from the penitentiary, but the APADOR–CH representatives saw no appliances used to heat food. Still, detainees did not complain about the quality of their diet. The chief of this police station allows detainees to receive supplementary parcels on official holidays (Christmas, New Year, etc.) as well as on the occasion of private celebrations (birthdays, anniversaries, etc.).
2. Police Station no. 21 (Militari neighbourhood)
Colonel Udroiu, commander of the sector 6 police forces (Police Stations no. 20, 21 and 22) said that there are about 470 active police officers in this sector for a stable population of 410,000. The technical equipment of police stations is unsatisfactory, especially at Police Station no. 21 which hosts the headquarters of the sectorial police. Cars are run down and the officers in charge of penal investigations can hardly cope with the over 10,000 complaints lodged every year. The police lacks the minimal logistic means they need to carry out their activities normally.
As opposed to the lockup of Police Station no. 20, the beds here are the regular type, not made of stone. At the time of this visit, there were 17 detainees and 28 beds. Another difference is that the lockup has a very small yard of about 2 x 3 metres where detainees can walk and a stove to heat the food prepared at the penitentiary. The problem of lighting is the same: barred windows that do not allow daylight in and a neon lamp by which detainees could hardly read or write. The hygiene is also poor: buckets are used by detainees to relieve themselves and emptied twice a day, a sink with three taps and two showers. It is interesting to note that the faucets are unscrewed and kept by police officers. They are fitted only when detainees ask to take a shower. The argument was that “detainees use faucets for other purposes!”
Detainees continue to obey the regulation according to which they have to turn face to the wall whenever the doors open — a practice abandoned long ago in the penitentiary system. The APADOR–CH representatives experienced the ridiculous situation where the only detainee in Room 1 (juveniles) turned his back to the door and shouted “attention” when they entered the room, accompanied by police officers from that police station.
The lockup is provided with a cabinet for medicines. All — or almost all — medicines have been “inherited” from transferred or released detainees. These drugs are not enough to cover even regular emergency cases. Actually, any medical emergency is solved “at the Bucharest headquarters.” It is unclear, however, who establishes which cases are emergencies and which are not, as none of the police officers at this police station has even a smattering of medical training.
c) Conclusions and recommendations:
— Order no. 0410/1974 on police lockups issue by the Ministry of Interior should be abandoned immediately;
— new regulations should be issued so as to comply with the minimal international standards applicable to detention places (lighting, hygiene, daily walk, information through the media, contacts with the outside world, the right to defence, protection against potential abuses during the criminal investigations, etc.);
— the Ministry of Interior should conclude agreements with medical institutions so as to ensure a genuine effective medical assistance for all lockup detainees;
— all lockups in the country should post lists of lawyers willing to provide defence for persons detained in lockups (either as hired counsels or ex officio); these lists should be approved by the Bar associations functioning in the respective town;
— until the Penal Code and the Penal Procedure Code are modified, APADOR–CH urges the General Police Inspectorate to issue an order according to which any person brought to a police station (either “led” or “held”) be entitled immediately to the right to defence;
— all differences between detention conditions in police lockups and penitentiaries should be eliminated. It is true that, with regard to the latter, notable efforts have been made in order to bridge the gap between penitentiary conditions and the international standards in the field.
IV. ASPECTS FROM PENITENTIARIES
On many occasions, APADOR–CH has stated that the General Directorate for Penitentiaries (DGP) is the most open and willing to co-operate of the public authorities the association works with. Unfortunately, although 1998 should have been a year of revolutionary legal changes with respect to penitentiaries — as draft bills on the carry out of punishments, on the status of penitentiary staff and on the brand new institution of the probation officer had already been elaborated — no legal initiatives have been finalised and submitted to the Parliament.
Despite this situation, DGP decided that some measures — of paramount importance in order to improve detention conditions — can be taken even in the absence of laws. Thus, DGP approved the establishment of pilot-centres for probation as well as of a semi-open penitentiary department (see the APADOR–CH report on the Targu-Ocna penitentiary department), appointed civilians (prosecutors, judges) as penitentiary managers instead of military commanders, prevented the staff from opening and reading the detainees' mail, etc. With regard to this last aspect, it should also be reminded that in 1998 the European Human Rights Court in Strasbourg found the Romanian state guilty of violations of Art. 8 (observance of private and family life, privacy of residence and correspondence) and Art. 25 (the right of the individual to apply to the Human Rights Commission) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (case Petra vs. Romania). The case was brought before the European Council Court by a person detained at the Aiud penitentiary.
A. Detainees' protests (Bucharest-Jilava penitentiary, February 1997)
On 23 February 1997, the General Department for Penitentiaries — headed at that time by General Ioan Chis — decided to intervene against the detainees who had been protesting peacefully for about a week. The detainees protests against the increase of the share of punishment to be served before applying for parole, the length of trials, overcrowding, bad food, etc. The detainees were not violent; the protest consisted in hunger strike, shouting and writing slogans on banners and blocking some of the cell doors from the inside. None of the officers or non-commissioned officers were attacked. Still, forces exceeding by far the penitentiary staff broke into the cells, beat up detainees, resorted to tear gas and forced the detainees to lay down on the concrete floor for hours.
APADOR–CH constantly declared that this first part of the intervention was disproportionate to its legitimate aim — to re-establish order in the penitentiary.
A parallel action consisted of selecting the protest “leaders.” About 100 detainees were taken out of their cells into a yard on the basis of nominal lists, beaten with truncheons and wooden bats, punched and kicked until dawn.
With few exceptions, these detainees were not treated after the incident, although some had broken bones, others serious injuries. Moreover, some of the detainees who had been tortured all night long (Ilie Ghita, George Nastase Bobancu, Viorel Vasile, Amet Metin and others) were immediately punished by restrictive regime. Only as late as April 1997, following the visit of a commission that included Dr. Ciobanu, some of them were transferred in a critical state to the penitentiary hospital located in the immediate vicinity. It should be mentioned that Dr. Ciobanu started from a list of potential victims (about 20 persons) drawn up by the association on the basis of the little information it could gather several days after the intervention; eventually, this list proved to include about 70 persons.
Throughout 1997 and 1998, APADOR–CH continued to receive complaints signed by former or current Jilava detainees regarding the savage treatment applied in February 1997 by the authorities. The association sent each such piece of information to the Military Prosecutor's Office, the only body entitled by law to investigate employees belonging to the — still militarised — penitentiary system. APADOR–CH stresses that part of the detainees who had been beaten lodged themselves complaints with the Military Prosecutor's Office about the incidents of 23 February 1997 and the ensuing night.
The Military Prosecutor's Office issued no indictment decisions and reconfirmed these decisions. Their main arguments were as follows: “the force intervention took place after all non-violent means of intervention had been exhausted; the intervention was carried out in compliance with the Framework plan no. 40710/21.02.1997 approved by state secretary Dorin Clocotici...”
APADOR–CH has learned that framework plan no. 40710/21.02.1997 specified that force was to be used only if detainees had destroyed — or attempted to destroy — goods, equipment or buildings, which never happened.
Several former or current detainees declared they had been prompted by the guardians to continue their protest, being informed each time the media — mainly television channels — entered the penitentiary.
The repression exceeded by far, in the opinion of APADOR–CH, the framework established by the plan of action, because of the over-zealousness of some of the penitentiary staff, including the penitentiary commander at that time, Colonel Parjol, the deputy commander in charge of guard with the penitentiary hospital, subsequently transferred to the Jilava penitentiary — Colonel Olteanu — and especially Colonel Stroescu with the DGP, all identified in the complaints lodged by beaten and/or tortured detainees both with the Military Prosecutor's Office and with APADOR–CH.
APADOR–CH urged again the Military Prosector's Office to investigate the February 1997 Jilava repression fairly and thoroughly. The association has learned and informed the Military Prosecutor's Office of attempts to intimidate detainees directly involved; some of the military prosecutors in charge of this extremely serious case ignored their statements.
B. General aspects
a) Demilitarisation of the penitentiary system
This issue has been long debated over the past years, but a first step in this direction was made in 1997 when a draft bill on the statute of penitentiary staff was drawn up by the General Directorate for Penitentiaries. APADOR–CH is familiar with the first version of this draft bill, subsequently modified and still not submitted to the Parliament.
Opinions on the opportunity to introduce drastic changes of the status of penitentiary staff differ: some officers and non-commissioned officers fear the loss of benefits (salaries calculated on a different basis than those of civilians paid from the state budget, free clothes and transportation, preferential medical assistance, bonuses, etc.); on the other hand, “undressing” their uniform would mean losing their prestige with the detainees and civilians. Little by little, they started realising the advantages: the possibility to set up trade unions, a work schedule of 8 hours a day five days a week (instead of 12 hours on duty/24 hours off duty, a schedule often ignored because of the lack of staff), separate payment for supplementary hours, the right to refuse carrying out illegal or absurd orders, etc.
APADOR–CH noted that the penitentiary staff who have had the opportunity to see or learn how penitentiaries function in countries with a well-established democratic system are much more open to demilitarisation. The association knows that DGP encourages such contacts; among others, each penitentiary is free to establish connections with prisons from other countries (mainly the Netherlands).
b) Overcrowding
This remains one of the most serious issues in the Romanian penitentiary system. Obviously, this situation cannot be blamed on the DGP; according to the provisions of the Romanian legislation, the initial pre-trial arrest warrants can be issued too easily by prosecutors, in a number of situations that exceed the limits set by the provisions of Art. 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Similarly, the judges who extend such arrest warrants disregard the seriousness of the crime a person is charged with; they take into account mainly the provisions of the Penal Procedure Code — which run counter to the European Convention — and, secondly, the investigators' requests. The latter continue to apply the procedure “first we arrest and then we look for evidence”; therefore, they are interested in detaining suspects until they gather the incriminating evidence. In countries with a well-established democratic system, a person can be detained on remand without being tried for a limited period of time (up to six months, according to the information gathered by APADOR–CH). In Romania, this period can go up to half of the maximum term in prison provided for the crime one is charged with.
Ever since 1995, the Constitutional Court ruled on the extension of pre-trial arrest warrants, the validity of which should be extended by a prosecutor every 30 days. Although the decisions issued by the Constitutional Court are binding for the future, according to the Romanian Constitution (Art. 145 para. 2) a new decision on the same topic was necessary for courts of law and penitentiaries to start enforcing it. Obviously, the prosecutor that conducts or is in charge of an investigation is responsible for applying for an extension of the pre-trial arrest warrant. Still, what happens if the prosecutor is overburdened by his/her workload and fail to apply for extension in time? Whose responsibility is it then to apply for an extension — or invalidation — of the pre-trial arrest warrant? There are three possible answers, none provided by law: the defendant him/herself, the penitentiary management or the court of law. This uncertain situation leads to numerous cases where persons arrested on remand are detained in penitentiary for months on end; no court of law decides, in the meantime, whether the detention continues to be appropriate.
The partial observance of a Constitutional Court decision and especially the Prosecutor's Office credibility before the courts — reminiscent of an obsolete mentality relating to individual freedom — lead to extended detentions of the persons arrested on remand, who represent a third up to half of the penitentiary population, and consequently to overcrowding.
Throughout 1998, during its visits to penitentiaries, APADOR–CH noticed that the Tulcea and Targu-Ocna penitentiaries were not overcrowded, at least at the time of these visits. As for the rest of the penitentiaries, instances of three or even four detainees sleeping in two adjoining beds are frequent, not to mention the fact that tiered beds go up to less than half a metre from the ceiling or that free space is limited to a minimum by the addition of supplementary beds.
Overcrowding also influences the ratio between penitentiary staff (who work directly with detainees) and the number of detainees. DGP declared that the average number of detainees per employee is 6 to one, which places Romania on one of the last positions in the hierarchy of democratic European countries. In most penitentiaries visited by APADOR–CH, however, the association has found that the actual ratio is 10‑12 detainees to an employee; as employees work in shifts (12 hours on duty, 24 hours off duty), the number of detainees per penitentiary employee is even higher. Under these circumstances, one could hardly imagine a change for the better in the relationship between penitentiary staff and detainees unless the number of — qualified — staff is substantially increased.
c) Insufficient funds
This issue is very often invoked by both DGP and penitentiary’s management.
APADOR–CH has suggested that each penitentiary be invested with broader autonomy so that they can make good use of local material and human resources. It would be perhaps desirable for the possible surplus of products supplied by their own farms to be sold on the local market for competitive prices and that part of the money thus obtained be used to cover part of the demand for food and other products. It is obvious that no penitentiary can make do without state subsidies. This is neither possible nor desirable, as long as the state is accountable for both deprivation of liberty for anti-social deeds and the responsibility to ensure the social reinsertion of detainees after release. However, a broader administrative autonomy could be beneficial for the detainees' situation.
Food is usually bad quality: very little meat, mostly by-products (pig heads and legs) and lard, the second course almost similar to the first in terms of consistence, milk and dairy products are very rare. The ratio of calories/detainee/day established by DGP on categories of detainees are maintained in the whole country.
Hygiene leaves a lot to be desired, except for new or upgraded penitentiaries. The rooms in old penitentiaries are provided with two to three toilets and gullies (very rarely sinks) with three-four taps, insufficient for the high number of detainees. The detainees sentenced for life from the Craiova penitentiary are very small, with no screens for the toilets. The same is true for the isolation rooms in most penitentiaries. The weekly hot shower cannot compensate for the poor sanitary equipment in the rooms. Beds, mattresses, sheets, blankets are old, worn and hard to disinfect properly. Efforts have been made to change the equipment, but the high number of detainees and the small budget do not allow sensible improvements.
d) Cultural and educational activities
Detainees' education — or re-education — should be one of the priorities of the penitentiary system. Unfortunately, the number of trainers is too small as compared to that of the detainees. A trainer has to work with hundreds of detainees, so that his/her work is often ineffective. They organise conferences, but the topics are often unchallenging and do not trigger a response from the detainees. APADOR–CH has suggested that the detainees be asked what topics they would be interested in. For instance, lists of future events could be drawn up and circulated among the detainees; the final lists could take into account their options. Painting and sculpture classes have been organised in some penitentiaries — sometimes even exhibitions — but they are attended by a small number of detainees. Non-governmental and religious associations try to contribute to re-education by means of meetings and discussions with detainees. From time to time, especially on the occasion of important holidays, shows are organised by companies from the outside, sometimes even by detainees themselves. But all these events are sporadic.
APADOR–CH has continuously advocated for the idea that, besides overcrowding, the most important issue to be solved is how to occupy detainees' time. Relatively few detainees work; the demand is not high and they are employed mainly as seasonal workers in agriculture or on building sites. Many penitentiaries have their own workshops and almost all have agricultural farms tended by detainees. Still, APADOR–CH estimates that over half of the total number of detainees spend 23 hours a day in overcrowded cells. All they can do is read, watch television (if they do have a TV set), talk and wait for the daily walk (that takes 30 to 60 minutes every day). It is easy to understand the permanent tensions between detainees, but also between detainees and guardians. Things are even more complicated with detainees with long punishments, life sentences included. They live together for years on end; they are denied even the slight variation resulting from comings and goings — which are relatively frequent in departments where sentences do not exceed ten years. Some of them regret that the capital punishment has been abolished, because, as they say, they are hopeless under the current situation.
APADOR–CH considers that the cultural and educational system should be reformed and suggests the following:
— a higher number of qualified trainers;
— encouraging all associations/organisations/foundations interested in improving detainees' life to carry out regular activities on the basis of projects/programs;
— widening the range of activities organised in each penitentiary (for instance, contests between departments or rooms on various topics, with rewards for winners; establishment of theatre teams, with the support of professionals working with the local theatres; they could play not only in the penitentiary, but also for the local public — see the Targu-Ocna initiative, etc.);
— discussions between trainers and small groups of detainees on topics the latter are interested in;
— participation of detainees in shows, concerts, exhibitions in towns;
— special programs for detainees sentenced to long terms in prison, especially for those with life sentences.
c) Medical care
There are too few doctors for the high number of detainees, which aggravates the latter who feel they are either ignored or badly treated. The average of 100 examinations a day declared by most penitentiary doctors means about 4 minutes per detainee, not to mention the breaks taken by doctors during the 7 hours of daily program. Two arguments have been frequently invoked against this calculation:
The fist was invoked by penitentiary doctors — mostly internal specialists or general practitioners — who said they were familiar with the detainees' state of health and that in most cases all they have to do is prescribe them aspirin or other drugs. Moreover, medical assistants can deal themselves with part of the detainees who request medical examinations. I other words, each detainee would get all the attention due for their cases.
APADOR–CH thinks that 4 minutes are hardly enough for any doctor to realise if a patient shows the symptoms of old diseases, discovered, registered and monitored — not to mention the time necessary to obtain and study each one's medical record — or if they have a new illness. Moreover, the association reminds that penitentiary doctors also tend to the staff, who are given priority. APADOR–CH considers that the penitentiary staff should be examined by penitentiary doctors only in case of emergencies. As for the medical assistants, their work is necessary, but they are neither qualified, not entitled to act as substitutes for the doctors.
The second argument was invoked by DGP representatives, according to whom the number of detainees per doctor is similar to the one outside the penitentiary system.
APADOR–CH considers that this argument does not hold, because anyone at large can always resort to a different doctor or to any emergency hospital, state-owned or private medical business whenever necessary, etc.; this is not the case for a detainee. Moreover, the living standards of the two categories — accommodation, food, the opportunity to buy medicine, etc. — cannot be compared. (See the report on the association's visit to the Bacau penitentiary.)
It is also true that some detainees fake various diseases. However, each detainee should be examined thoroughly in order to decide who is faking and who is not.
Another noteworthy aspect relates to the admission of detainees in regular hospitals whenever they cannot be treated by the penitentiary doctors. Each penitentiary can establish a working relationship with the local hospitals — mainly the county and town hospitals — which could take over serious cases. Two of the main problems a detainee is confronted with whenever he/she is admitted to a hospital for “civilians” (given also that few hospital can provide separate rooms for detainees) are:
1. Safety
Detainees can be handcuffed to the bed. This decision is up to the penitentiary management, because, as they state, they are the only ones who could tell if detainees transferred to a hospital are dangerous or willing to escape. APADOR–CH believes that, once a penitentiary doctor had decided that a detainee's condition is so serious that he/she must be immediately admitted to a regular hospital (in less serious cases, detainees are transferred to the Bucharest-Jilava penitentiary hospital), the decision to tie him/her up to the bed should be up to the civilian doctor;
2. Guard
Currently, guarding a detainee admitted to hospital is the penitentiary's duty. Detainees are guarded by shifts of two non-commissioned officers who guard him/her round the clock. This system is clearly faulty: the respective guardians are taken out of the penitentiary, which decreases the — already small — number of employees who work in the penitentiary. On the other hand, the guardians are exposed not only to the risks of contamination with various germs, but also to the embarrassing attention paid by “civilian” patients. APADOR–CH suggested that sick detainees be guarded by gendarmes or public guardians. Their payment could be ensured from the town hall budget.
Another aspect connected to medical care regards the way the medical charts of detainees brought to penitentiary — especially those transferred from police lockups — are drawn up. Throughout 1998, as well as during the previous years, penitentiary doctors told APADOR–CH that the persons transferred from police lockups never exhibited traces of violence. Had such situations occurred — said all doctors — they would have refused to admit those persons to penitentiary. It was not clear at all, however, whether they would have drawn up a written report, if the event would have been recorded anywhere, if the person would have been treated or not, and, most important, if the penitentiary would have informed the authorities (the Military Prosecutor's Office, in that particular case) about such abuses. One might conclude that none of the persons transferred from police lockups to penitentiaries was mistreated by the police. Still, half of the detainees/defendants APADOR–CH has discussed with have stated the contrary.
Finally, APADOR–CH wishes to point out again that the obsolete mentalities of many of those who work in penitentiaries prevent them from admitting the increased risks of VDs and HIV in detention. The simplest protection would be to provide detainees with condoms. The costs would be much lower than the costly treatments for each infected detainee. It is true that, as opposed to the previous years, the APADOR–CH representatives met in 1998 fewer officers and non-commissioned officers who denied the occurrence of same-sex relations among detainees. But there is a long way from admitting that same-sex relations occur to actually ensuring the basic means of protection against sexually transmitted diseases.
As during the previous years, APADOR–CH suggests again that doctors and medical assistants cease to be DGP employees, in order to eliminate all suspicion regarding the way they do their job.
f) Punishments for violation of internal regulations
In 1998, the APADOR–CH representatives noted a genuine progress with regard to the information detainees get about their rights and duties. The detainees' guide can be read either in each room or at least at the library. Unfortunately, punishment procedures in case of violations of the internal regulations have remained unchanged. The warden acknowledges the misdemeanour, writes the punishment report (now called “incident report”) and proposes the punishment. The commander/director or his/her deputy makes the final decision, except for the cases where detainees are punished by restrictive regime (3 up to 12 months, with ban on the rights to work, receive visits, parcels, mail, watch TV or listen to radio) where the final decision is made by DGP. In principle, the detainee is heard, can advocate for his cause or ask for witnesses to be heard. However, APADOR–CH recorded at the Bacau penitentiary a case where two detainees had been detained in the isolation department for several days without knowing why and without having been drawn punishment reports. “They are isolated from the community until the matter is clarified”, explained the staff. No one could explain the difference between isolation as punishment and “isolation from the community.” (See the report on the Bacau penitentiary.)
In many cases, apart from the detainees' signature on the punishment report, there is no proof that they had been heard (statements of the detainees and of their witnesses, written reports, etc.). The only means of challenging the punishment decision is for the detainee to complain to DGP, therefore to a body inside the system. Therefore, for the time being, no independent and fair authority — a judge — can pronounce a decision on the fairness of a sanction. It is true that detainees can complain to non-governmental organisations or to the Ombudsman, but these institutions do not have decision powers; all they can do is ask DGP for explanations. A draft bill initiated by DGP on the carry out of punishments — not submitted to the Parliament yet — provides for the establishment of a new institution: the judge in charge of the carry out of punishments, whose duty, among others, would be to watch over the fairness of punishments for violations of internal regulations. Until this law is adopted, the whole penitentiary system could adopt the system used in Targu-Ocna (the report drawn up by the warden is a genuine “incident report” — namely, it records the incident without proposing a punishment). The penitentiary management could thus prevent the warden from feeling frustrated that the punishment he suggested was either reduced or dismissed. This is important both to boost the warden's moral and to preserve his prestige before the detainees.
g) The right to defence
A third to half of the persons brought to penitentiary are detained on remand. Obviously, the penitentiary system has no connection with the issuance and extension of pre-trial arrest warrants. Unfortunately, detainees on remand are subjected to the same detention conditions: overcrowding, poor hygiene, bad food, lack of physical exercise, etc.
DGP included in the draft bill on the carry out of punishments the establishment of “pre-trial detention houses” separately from prisons. This provision would solve many problems: it would be a step towards solving the issue of overcrowding in penitentiaries, it would allow the application of a different regime for those arrested on remand or considered innocent until proven otherwise and would suppress the suspicions related to the treatment they undergo in police lockups during the criminal investigation.
Many of the persons detained on remand have limited financial resources; consequently, they are defended by lawyers appointed ex officio. Most of those who talked to the APADOR–CH representatives said they had never talked to their lawyers before hearings and that their lawyers confined themselves to asking for clemency for their clients (“he is young”, “this is his first offence” or “he is the sole provider for the family”, etc.). Obviously, the current payment system for ex officio lawyers (about lei 200,000 per case, regardless of the length of the trial, and no coverage of travel expenses) is far from being an incentive. Solutions must be found by bar associations and private law firms, with more substantial state support, to turn the right to defence from a mere formality into a genuine right.
Although the penitentiary system is not directly involved in ensuring the right to defence, APADOR–CH considers that some measures could be taken to diminish the complaints of persons detained on remand and their mistrust in the justice system:
— to keep a strict evidence of pre-trial detention warrants and to announce the competent authorities when they are about to expire. This should be the duty of the prosecutor in charge of the investigation, but in many cases they fail to do so, either from negligence or because they misinterpret the two decisions of the Constitutional Court regarding the courts' obligation to analyse every 30 days if the pre-trial arrest warrant must be extended, irrespective of the developments in the trial;
— to ensure a easier access of lawyers to penitentiaries. Currently, they have to ask the commander/director for permission and to present their delegation issued by the bar association or private law firm. They are entitled to talk only to the detainee they were appointed to. If another detainee needs legal advice and the lawyer agrees, he/she must go through the whole procedure again;
— to allow detainees to make phone calls (if the penitentiary is provided with pay phones) any time they wish to talk to their lawyers. Once the guardians have made sure that the number they dialled belongs to the lawyer, the warden should keep a distance so as to be able to see the detainee, but not to hear him/her.
h) Detainees' social readjustment
Another legal initiative of DGP, unfortunately not finalised yet, is related to the probation system. As this institution is brand new in Romania and not yet regulated by law, a group of non-governmental organisations has taken over elements from the probation systems of other countries with a well-established democratic tradition and try to enforce them in pilot centres. In principle, probation officers conduct social investigations with regard to the defendants, suggest alternative punishments, work with them both while they serve their punishments (either in penitentiary or in the community, function of the type of punishment) and after they have been released on parole. They are not lawyers of the persons they are in charge of and do not intervene in the course of trials unless the judges so request and only by conducting social investigations. Their role is to help detainees readjust to the society, regardless of the nature and duration of their punishment.
Even if the law on probation (or the modifications to the Penal Code and the Penal Procedure Code supposed by the introduction of this institution) were adopted very fast by the Parliament, the penitentiary system would not be relieved of any concern in the field of social readjustment. If a person serves a sentence in penitentiary, the probation officer will have to co-operate with the penitentiary staff, to organise complementary actions without with social readjustment could be doomed to failure.
C. The situation in several penitentiaries. Individual cases
1. Visit to the Aiud penitentiary (10 March 1998)
a) Structure of detainees and general information
The penitentiary was designed to accommodate 2,589 inmates, by superposing a third and fourth tier of beds. At the time of this visit there were 2,427 detainees, including 39 women. The structure on categories of detainees was as follows: juveniles — 60, youngsters — 216, detained on remand — 692, detainees whose final sentences had been pronounced — 1,705 (sentences exceeding 10 years — 760, sentences under 10 years — 945), petty offenders — 18, multi-offenders — 788, foreign citizens — 4.
In the penitentiary perimeter (9.6 hectares) operates an autonomous metallurgical company which employs 77 detainees paid at the level of the minimum wages in the country. About 150 detainees are employed as seasonal workers at agricultural companies in the area, being paid approximately lei 330,000/month. A private company that makes furniture also operates within the penitentiary. There is also a department producing cardboard package cases for the Cugir appliances factory. The detainees also worked for the community; they helped build/repair some monasteries. The penitentiary also owns 36 hectares of arable land, including an animal farm and a vegetable garden. All the vegetables necessary for the detainees are produced exclusively by the penitentiary; 80% of the necessary quantity of meat is also provided by the penitentiary. The average meat consumption for the whole penitentiary amounts to approximately 200 kg.
The staff consists of 296 persons (18 officers, 268 non-commissioned officers and military foremen and 10 civilians).
In 1997, 120 detainees attended primary and junior secondary school; 106 have registered this year.
b) Detention conditions
1. Two pay phones with magnetic cards were set up at the “visits” department (they are not functional yet). Several posters with the same contents were boarded on the walls: “This phone is tapped.” When the APADOR–CH representatives asked about the role of these posters and about the actual possibility to listen in to phone conversations, the commander said this was only a way to make the detainees attentive to what they speak and that obviously the penitentiary did not have the equipment to intercept phone conversations.
2. Medical assistance
Medical assistance was provided by two general practitioners, a dentist and 8 assistants. The dentist's office seemed to be well equipped (the penitentiary received a donation of medical equipment from abroad in 1995). This office treats about 25‑30 detainees daily (including the staff, who are treated with separate instruments) and can even handle surgery and set dentures. The latter are paid by the patients, while extractions and fillings are free of charge.
The medical office for detainees (a separate one was provided for the staff) examines about 150‑200 detainees daily. It is obvious that the two doctors cannot cope with such rhythm, which aggravates he detainees. Although the doctor declared he had all the necessary medicine, he raised the issue of high prices, because the penitentiary must buy all drugs at market price, without price cuts.
In the doctor's opinion, approximately 180 detainees have psychic problems, over 20 of them serious ones. As the penitentiary is not staffed with psychiatrists and/or therapists, they cannot be cared for properly. There have been cases of VD (syphilis, gonorrhoea, etc.) but the doctor said that in most cases these diseases had been caught prior to the arrival to penitentiary.
All the sick rooms are cell-like, that is, very small. In the two rooms APADOR–CH visited there were four beds and four sick detainees in each. Given the little space, these rooms should accommodate one or two detainees at the most instead of four. The most serious issues are the lack of heating (a detainee declared that in the winter time the heaters worked for 30 to 60 minutes every night), the dampness and first and foremost the fact that the toilet is located in the room, without any screen.
3. Physical exercise
Besides the usual daily walk, the penitentiary succeeded in fitting a gym for physical exercise (weights, chest expanders, espaliers, etc. — all produced in the penitentiary). The gym is open daily and the detainees can exercise following a schedule which allows the access of all those interested. There are also two football fields, as well as a third that has not been finished yet. Each of the 8 sections of the penitentiary has its own walking yard.
4. Visit to the cells
In Room 344 (youngsters) there were 23 detainees and only 20 beds. The sanitary facilities consisted of a toilet and a sink, obviously insufficient to ensure the detainees' hygiene. According to old regulations, detainees were allowed to sit only on the ground and first tiers of beds.
In Room 338 (juveniles) there were 28 detainees and 28 beds. The sanitary facilities consisted of a toilet and a sink. Mattresses were old and torn.
In the high security area (dangerous and escaped detainees), the rooms, provided with four beds each, were extremely small; there was about half a metre left between beds and walls. The toilet and sink are in the same room, with no screens. The detainees from the two rooms visited by APADOR–CH complained that the heating worked only for about one hour a night in winter.
In the attempt to solve the problem of accommodation, the penitentiary management decided to fit up the ground floor of one penitentiary wing, known as “zarca” (the former isolation section), built in 1882.
5. The kitchen
The penitentiary management decided to start soon repairing this area that does not comply with the minimal requirements in terms of hygiene, airing, etc. The APADOR–CH representatives noted for the first time in a penitentiary that the second course no longer resembled the first course, therefore no longer looked like a thin broth. There was little meat and it was obvious that not every detainee would receive a piece of it. Detainees with diabetes had a more consistent food (including eggs). The daily share of bread varies from 300 grs. for detainees with diabetes to 868 grs. for working detainees in pre-trial detention. According to the commander, the penitentiary has enough room to fit up its own bakery — following the examples of Poarta Alba and Focsani penitentiaries — but has not yet received the approval of the General Department for Penitentiaries.
6. The shower room
The penitentiary has a shower room with 50 showers, used by almost all detainees except for the high security area and the women section, who have their own lavatories. It is obvious that these showers are insufficient for the over 2,000 detainees to maintain a normal hygiene.
The case of Mariana Cetiner
a) Mariana Cetiner's legal situation
Born in 1957, Mariana Cetiner graduated the Sports Institute, specialising in handball and swimming. She went to the Netherlands in the period 1991–1995 to coach a handball team, after which she returned to Romania and settled down in Alba Iulia. Mariana Cetiner was denounced at the Alba Iulia Police for having repeatedly proposed to have sex with Adina Vanea, a woman with whom she lived at a host named Mihailescu. On 6 October 1995, Mariana Cetiner was arrested and prosecuted on the basis of Art. 200 paragraph 4 (turned into para. 5 after the Penal Code was modified in October 1996 — enticing or alluring a person to perpetrate same-sex relations) and on the basis of Art. 192 para. 1 (trespassing). The Alba Iulia first instance court sentenced her to three years in prison by criminal decision no. 715/1996 of 17 June 1996 for the crime provided by the last paragraph of Art. 200, to six months on the basis of Art. 192 para. 1 and to denial of certain rights (Art. 64 in connection with Art. 71 of the Penal Code); the two sentences were joined and she had to serve the longest term in prison. At the appeal tried at the Alba Iulia tribunal in January 1997, Mariana Cetiner was acquitted on both charges and released on 15 January. The Prosecutor's Office appealed this decision; the appeal was tried at the Alba Court of Appeal which by Final Decision no. 166 of 6 May 1997 confirmed the sentence pronounced by the first instance and ordered that Mariana Cetiner be arrested again and continue to serve the tree-year sentence. On 16 May 1997, Mariana Cetiner was brought back to the Aiud penitentiary on the basis of a pre-trial arrest warrant for a theft allegedly committed on 12 April 1997 and a warrant to serve the rest of the sentence pronounced on the basis of Arts 200 and 192.
Mariana Cetiner said that on 12 April 1997 she went to Ms Mihailescu's to ask back for the money she had loaned her. Ms Mihailescu told her she did not have any money, but allegedly offered her a “Orion” television set worth about lei 2,500,000. When she left, Mariana Cetiner borrowed a jacket made of synthetic material. The next day, Ms Mihailescu lodged a complaint against Mariana Cetiner, whom she accused of having stolen the television set and the jacket. The Alba Iulia first instance court sentenced Mariana Cetiner to four years in prison for theft (Art. 208 Penal Code) and theft with aggravating circumstances (Art. 209 Penal Code) by Penal Sentence no. 1087/1997. Mariana Cetiner appealed this decision with the Alba County Court that incriminated her only on the basis of Art. 208 and cut her sentence to two years in prison, a punishment amnestied in 1997 (decision no. 107/A/1998). The court ordered that the defendant be released. On 9 March 1998, the Prosecutor's Office appealed the decision on grounds of procedure, not in order to contest the charge and the sentence. As at the beginning of March 1998 the President of Romania pardoned Mariana Cetiner's sentence on Art. 200 para. 5, she should have been released as soon as the appeal had been tried.
Mariana Cetiner was released at the end of March 1998.
b) Bad treatments undergone by Mariana Cetiner while in detention
During the 751 days spent in detention at the Targsor and Aiud penitentiaries, Mariana Cetiner was punished several times (by severe isolation included) following wrangles with other detainees or penitentiary staff. The issue raised again is valid for the whole penitentiary system: detainees punished for alleged violations of internal regulations do not have the opportunity to appeal these punishments outside the penitentiary system. The reports drawn up by penitentiary employees are approved — or rejected — by penitentiary commanders or, function of how serious the suggested punishments are, by the General Department for Penitentiaries. There is no impartial independent instance able to rule on the detainees' deeds and punishments.
Mariana Cetiner stated that she had been beaten by two non-commissioned officers at the Targsor penitentiary, Dragomir and Dragnea — so hard that she still had been left with marks on the leg and the rib cage. In Aiud, following a wrangle with a warden, Valeria Ticala, she was kept standing and handcuffed for about nine hours and repeatedly beaten by non-commissioned officer Ionica Moldovan. The warden vocally denied these accusations and complained that Mariana Cetiner had insulted and threatened her several times.
APADOR–CH has constantly advocated for the need to repeal Art. 200 of the Penal Code, especially paragraphs 1 and 5, on grounds that they run counter to the Constitution of Romania and to the European Human Rights Convention, as well as to the case-law of the Strasbourg Human Rights Court. The association considers that the sentence pronounced in the Cetiner case on the basis of Art. 200 para. 5 is a striking example of the way the Romanian state — in this case, the judiciary — does not respect the international pledges it had made. APADOR–CH reminds that the Council of Europe asked for the decriminalisation of same-sex relations both upon Romania's admittance as a member of the Council of Europe and when it suspended monitoring the way human rights are observed in the country.
2. Visit to the Tulcea penitentiary (22 May 1998)
a) Detention conditions
The old penitentiary has been almost completely demolished. A wing of the new building has become operational; the second will be ready before the end of the year. The project also includes a third wing where the visiting area, kitchen, club halls, quarantine rooms and others are supposed to be located. Until the project is brought to an end, the only old wing of the building that has not been demolished in still in use.
The penitentiary has a separate section in Chilia, where, according to Mr Constantin Avramoaia, second officer in command for logistic issues, accommodation conditions are poorer (detainees live in barracks, drinking water is a problem, access to Chilia is ensured mainly by ship, but cruises are irregular and the road is frequently flooded by the Danube). Still, some detainees prefer Chilia to Tulcea, because they work and spend practically all the time there in the open.
The penitentiary owns land in Tulcea (50 ha) and Chilia (150 ha) where they grow vegetables and fodder. Detainees work in the agricultural field — but contracts with outside beneficiaries are relatively scarce because of the economic situation of the county — and in small workshops (welding, tailoring, etc.) in the penitentiary. Unfortunately, the penitentiary does not organise courses to develop detainees' skills. According to an agreement with the Tulcea town hall, detainees are employed in the field of town maintenance.
Detainees can go in for literacy courses (1st to 4th grade) both in Tulcea and in Chilia; teachers have contracts concluded between the penitentiary and the School Inspectorate.
Two recent initiatives of the penitentiary management are praiseworthy: about 300 detainees were taken out to town to see a show, for the first time, and an exhibition of wooden sculptures created by the detainees was organised and very well received by the public. The officer in charge of the sculpture workshop as well as with organising the exhibition declared that some visitors even wanted to buy some of the exhibits, but unfortunately the penitentiary accountancy system does not allow for such financial transactions.
The visiting area is a problem to be solved as soon as the third wing is built. For the time being, this area is restricted to a small room of about 8 square metres, divided into two by a counter. This is where detainees receive both visits and parcels. Commander Chiriac declared that he had allowed the visitors to talk to the detainees in the yard in order to make up for the lack of appropriate space.
b) Structure of the detainee population
From all the penitentiaries visited by the APADOR–CH representatives in the last four years, Tulcea is the second exception from the rule of overcrowding (the first being the Bistrita penitentiary). According to the penitentiary management — statements confirmed by detainees — each detainee has his own bed. Moreover, there even are free beds. At the time APADOR–CH visited the penitentiary, there were 1,044 detainees plus the 483 from Chilia; 61 of them were in pre-trial detention (11 minors and a woman), 52 sentenced in the first instance (4 of them women), 603 first time offenders whose final decisions have been pronounced (7 of them women), 782 multi-offenders whose final sentences have been pronounced (one of them woman) and 29 petty offenders. The current number of detainees the penitentiary can accommodate (including the facilities in Chilia) amounts to 1,198.
APADOR–CH remarked that unpaid fines continued to be converted into terms in prison in the Tulcea county or that punishments by deprivation of liberty for periods up to 6 months are enforce directly (Law 61/91). The association wishes to stress again that such punishments for minor anti-social deeds should be carried out by means of work in the benefit of the community, especially as detention conditions for petty offenders do not differ from those for detainees with Criminal Sentences, apart from the right to receive visits and parcels. The examination of several prison records of petty offenders, taken randomly, demonstrated that the conversion of unpaid fines into terms in prison had been carried out correctly, by dividing the amount of the fine to lei 10,000/day. Civil sentences pronounced by the Babadag Court are the only exception, as they mention only the length of the term in prison and not the amount of the fine. Thus, Valeriu Gurei must serve a 140‑day prison term, according to civil sentence 1148 of 28.10.1997, Vasile Leah was sentenced to 40 days in prison by civil sentence no. 105 of 3.02.1998, Marian Tilichigiu to a 40‑day sentence by civil sentence no. 325 of 24.03.1998. None of these case files specify the amounts of the fines.
c) Medical assistance
The penitentiary is staffed by two general practitioners — one of them a resident — and a dentist, which is not sufficient for the over 1,000 detainees.
On the morning of the APADOR–CH visit, six staff members and 19 detainees had been treated at the dental surgery. The doctors use separate medical equipment for the staff. Given the new nation-wide regulations regarding medical assistance, APADOR–CH considers that the officers and non-commissioned officers working in penitentiaries should be treated outside the penitentiary system.
The doctor declared that the average number of examinations they perform daily is 80‑100 detainees in the 7 hours of program. The penitentiary commander himself — Mr Chiriac — admitted that this number is too high, but the solution he proposed (“that the doctor should make a selection rather than receiving all the detainees that come to be examined”) is inappropriate, because no doctor can establish whether a patient's problem is real or not without examining him. Even in cases where diagnoses are already established further complications may arise and they can only be solved after an examination.
The most common are digestive troubles. 40 detainees with (stabilised) TB are under permanent care. A special case is that of a detainee named Filip, who suffers from epilepsy, whose treatment consists of sleeping pills administered whenever fits occur. APADOR–CH raised the question whether a person suffering from epilepsy should serve a sentence in penitentiary. Another special case is that of Constantin Perpechitis. At the time of the APADOR–CH visit, he was detained in Room 2 (quarantine) of the old building. He is obese and suffers from thrombophlebitis in both legs. He cannot stand or walk unaided. The medicine he received from the surgery (tetracycline, codeine, paracetamol and Jecolan ointment) do not seem to help much. His only wish was to be moved to the new wing of the penitentiary where detention conditions are obviously better. Commander Chiriac asked the doctor to have him moved, although the three weeks he is supposed to spend in quarantine are not yet over.
d) The diet
The kitchen is still situated in the old building. The food is prepared in inappropriate conditions: damp walls, old equipment, improper washing facilities for dishes, a very dirty room where vegetables are peeled and washed, etc.
The penitentiary has its own animal farm (1,200 pigs, 700 sheep, 70 cows, 500 poultry) but it seems that the turnout cannot cover the penitentiary's needs. At the time of this visit, lunch was supposed to consist of potato soup with pasta and stew with potatoes and lard. Hardly any meat could be found in the pots that contained the second course. The room where vegetables are supposed to be prepared contained only a heap of potatoes that had developed big sprouts and therefore could no longer be cooked.
e) Cultural and educational activities
Besides the already mentioned sculpture club, the penitentiary management has organised chess games and tournaments in co-operation with the Youth Foundation and the Check Association of Tulcea. The relationship between the two organisations from Tulcea and the penitentiary is going to become permanent, which is a good sign with respect to the involvement of the civil society, on a local basis, in the attempts to improve detention conditions and to re-educate the detainees.
The penitentiary library counts approximately 1,700 books, but few titles. The management thought of conducting a poll among the detainees in order to establish what kind of books — even specifically what books — they would be interested in. The results of this survey were sent to the General Department for Penitentiaries that is in charge of buying books for penitentiaries.
The outing actually consists of a walk through the building site. The penitentiary fitted a gym with equipment from its own funds, in the newly built wing, but there were no detainees there at the time of this visit. It is unclear who uses the gym (detainees? staff?) and according to what schedule.
f) Visit to the detention rooms
In Room 2 of the old wing (quarantine), there were 21 detainees and 21 beds. The rooms was fitted with one single toilet, obviously insufficient.
Room 5 of the old wing (people in pre-trial detention) accommodated 30 inmates and contained 42 beds. The room was provided with two toilets and two sinks, only one of which was actually working.
The contrast between the old and the new building is striking; new equipment, clean rooms, big windows, more appropriate fittings. Despite that, the rooms where inmates under restrictive regime are detained, with two or three beds, are not separated from the toilets. Two supplementary lattice works (one between the door and the room, the other situated at about one metre from the window) severely limits the detainees' movement space (there are less than 3 metres between the lattice works and about one metre between the superposed beds and the opposite wall). As detainees who are punished are not taken out to work, the only exercise they are entitled to are the 30 to 60‑minute walk, not even that on a daily basis.
The situation of Stelica Dragomir and Petre Stoica, detained at the Tulcea Penitentiary under restrictive regime.
1. Stelica Dragomir
Sentenced to 16 years and 6 months for rape, theft and seizure of person, Stelica Dragomir has a strong personality, impressive appearance and a “big mouth” which caused him numerous troubles, including many punishment reports, mostly for “verbally abusing the penitentiary staff.” In August 1996, while he was serving his sentence at the Poarta Alba penitentiary, Colonel Dughila from the General Department for Penitentiaries ordered a search in some rooms, including the one where Stelica Dragomir was detained. He was seized a number of goods (TV set, clothes, food cans, cigarettes) that exceeded the limits provided by regulations. Shortly afterwards, a detainee named Gandac hid in the warehouse, where he was found after several hours. Stelica Dragomir was accused of having sent Gandac to the warehouse to retrieve part of the seized goods and was punished by one year of restrictive regime and moved to the maximum security area. Stelica Dragomir constantly denied having been involved in that incident and lodged numerous complaints, contesting the fairness of the punishment.
In November 1996, upon returning from court, Dragomir was very surprised to notice that all the detainees in the section, including the ones placed under restrictive regime, had been taken out. The presence of a specialist in electronics and of two civilians led him to the conclusion that they were bugging the detention rooms. His supposition soon proved true when he discovered a bug in one of the rooms. There followed days of threats and promises made by the penitentiary staff and by a civilian the detainee thought worked with the Romanian Intelligence Service, all aimed to make him “keep his mouth shut” and return the bug. Stelica Dragomir asked to be moved from the maximum security area and to have his punishment cancelled, which actually happened. Only four other detainees besides him knew about the microphone.
Nothing happened for almost one year, except for the strained relationship between the penitentiary staff and Stelica Dragomir, which led to punishment reports and severe isolation.
At the beginning of August 1997, Stelica Dragomir was — with the commander's approval — at the private bakery set up at the Poarta Alba penitentiary, together with two of the detainees who knew about the bug (Nicolae Alexandru and Ion Clamparu, the latter working as a baker). Captain Ailinei, accompanied by approximately ten of the penitentiary staff,~ntered the bakery and announced they would conduct a search, because “he held information that the detainees had hidden a cellular phone there.” Ion Clamparu opposed the search, invoking the owner's orders — the latter had told him that such search could be conducted at that private company only upon the express orders of the penitentiary commander. The captain and penitentiary employees gave up searching the place. On 8 August 1997, a large group of penitentiary staff, accompanied by dogs and armed with tear gas grenades seized Stelica Dragomir and took him to the Tulcea penitentiary, where he was immediately placed under restrictive regime (by Order no. 33986 of 11 August 1997, signed by Colonel Stroescu, enforceable as of 1 October 1997). The detainee's penitentiary record includes a letter signed by former Secretary of State Dorin Clocotici, specifying that Stelica Dragomir had organised a group of five detainees who opposed by violence perfectly legal actions that the Poarta Alba penitentiary were trying to enforce. Mr Clocotici concluded that the punishment (one year of restrictive regime) was totally justified. Petre Stoica, one of the other four detainees that were familiar with the bugging, was moved to the Tulcea penitentiary at the same time, although he had not even been in the bakery area at the time the search had been attempted. He was also placed at once under restrictive regime, without even knowing why. At the same time, the two detainees from the bakery (Nicolae Alexandru and Ion Clamparu) and Florin Moldovan (the fourth person who knew about the bug) were transferred to the Galati penitentiary. Same as Petre Stoica, Florin Moldovan had not been in the bakery area either at the time of the search.
Stelica Dragomir is now detained under restrictive regime at the Tulcea penitentiary. He went on hunger strike and, since he had been brought to the Tulcea penitentiary and until the APADOR–CH visit, he had been issued about ten punishment reports of ten days in severe isolation each. All these reports are based on the staff allegations of being “insulted” or “offended” by the detainee. Each punishment was added to the initial one year of restrictive regime; therefore this year has been supplemented by approximately one hundred days! If this pace is kept, the detainee might serve his entire sentence — 16 years and 6 months — under restrictive regime. His mail is read — according to the commander — including his private mail, and the few visits he receives must be approved by the commander. Few days before the APADOR–CH visit, Stelica Dragomir had been allowed to watch TV. Although Room 107 where he is detained is located in the new wing of the Tulcea penitentiary and is therefore acceptable by comparison with other penitentiaries (about 8 square metres for two persons), the mere fact that two detainees hang around in a room round the clock — apart from the daily half an hour walk — without anything to do to ensure, as far as possible, their social reinsertion, amounts to a supplementary punishment.
Stelica Dragomir has another special problem: he is involved in two trials pending one at the Constanta Court (Case File no. 925/97, Art. 213 — breach of trust — the victim being Stefan Bajenaru) and the second at the Medgidia Court (Case File no. 2746/97, entrusting a minor). The first case was dropped when the petitioner did not show up in court. The second is still pending (the following hearing is scheduled for the beginning of June). The Tulcea penitentiary management told the two APADOR–CH representatives that the detainee had refused to attend the trial and were even shown as evidence the summons on which the detainee had written that he had wanted to be transferred to the Poarta Alba penitentiary. According to the Tulcea penitentiary management, whenever a detainee is involved in a civil suit, the summons issued by the court must be accompanied by a transfer order to the penitentiary located closest to the court seat, the Poarta Alba penitentiary in Stelica Dragomir's case. It was not very clear from the discussion whether the Medgidia Court had required this procedure or this is the common practice. It is certain, however, that the Poarta Alba penitentiary does not want to receive the detainee back, not even for the short spell of time necessary for him to appear in court.
2. Petre Stoica
Petre Stoica, born on 16 May 1971, was sentenced to ten years in prison. In the period 1992–1997 (until he was transferred from Poarta Alba to Tulcea), he was issued a singe punishment report (in 1992), followed by numerous reward reports. In 1996, the counterintelligence officer from the Poarta Alba penitentiary asked for his collaboration. The detainee turned down this offer and from that moment on he was moved repeatedly from one section and one room to another. He was placed in the same room with Stelica Dragomir twice and he found out from the latter the story with the bug. He was involved neither in discovering the bug, nor in the refusal of the detainees from the bakery to allow a search at the location of that private company. Still, he was transferred to Tulcea together with Stelica Dragomir and was punished by one year of restrictive regime without being told why or allowed to defend himself. It should also be noted that, although he had been issued only one punishment report at the Poarta Alba penitentiary in 1992, he had been issued seven such reports at the Tulcea penitentiary!
Petre Stoica told the APADOR–CH representatives that a penitentiary employee had shown him the photocopy of a letter he had sent to his father, which proves beyond any doubt that his mail is monitored, as is Stelica Dragomir's.
3. Conclusions and questions:
— By virtue of Art. 13 of the Law on National Security, the bodies involved in this field (the General Department for Penitentiaries included, which is an exception in Europe) need a warrant issued by a prosecutor specifically appointed by the chief prosecutor to allow electronic surveillance. Such warrant is needed also in cases where surveillance is conducted in accordance with the Penal Procedure Code, Art. 91. Was such a warrant issued for the Poarta Alba penitentiary? If so, who signed it and what evidence did DGP produce regarding alleged threats to national security coming from the detainees or regarding the situations provided under Art. 91 of the Penal Procedure Code?
— Punitive measures (restrictive regime from 6 to 12 months, 15‑day simple isolation, 10‑day severe isolation, ban on receiving parcels, visits, mail) are established only on the basis of punishment reports issued by guardians, upon the commanders' approval. Detainees cannot resort to any remedies outside the penitentiary system (they are only allowed to complain to the DGP, that approves anyway the measure of restrictive regime and therefore pronounces its decision in advance). Therefore, besides deprivation of liberty as a punishment for anti-social deeds perpetrated by a person, supplementary punishments are possible while that person serves the sentence (restrictive regime), followed by others (the 10‑day severe isolation), in the precarious conditions — to say the least — provided in the Romanian penitentiary system. APADOR–CH believes that such punishments should be enforced only in cases of serious violations of penitentiary regulations (not merely on the basis of complaints lodged by penitentiary employees who feel “offended”);
— in the specific case of the five detainees from Poarta Alba, why were they actually transferred? If the only matter taken into consideration was the incident in the bakery, how come that it was not just the three that got transferred? Why was Petre Stoica transferred and why was he punished by restrictive regime?
With regard to the two individual cases, the general Directorate for Penitentiaries replied that all the sanctions enforces were legal and justified, that Stelica Dragomir was taken to the hearings established by the Constanta and Medgidia Courts, except for “the cases when instances considered that his presence was not compulsory”, that the limitations and censorship imposed on their correspondence was correct (with the specification that the detainees should have been informed about these measures — emphasis added) and that the General Directorate for Penitentiaries “does not have” electronic means to survey detainees in their cells.
3. Visit to the Bucharest (Jilava) penitentiary (19 May 1998)
a) Detention conditions
At the time of this visit, the penitentiary accommodated 3,190 detainees for a capacity of 2,624 beds. The penitentiary is permanently overcrowded and the number of beds — always insufficient — is anyway much higher than required by minimal standards regarding the space allotted to each detainee.
The detainee population structure was as follows: 31 juveniles, 31 petty offenders, 460 youngsters aged 18 to 21, 1,004 detainees whose final sentences had been pronounced, 1,112 sentenced by a first instance. Only 889 of the 3,190 detainees go to work; the others stay indoors round the clock, apart for the half an hour walk they do not even enjoy daily. The total lack of activity — not counting in the fact that detainees watch TV if they do have a TV set in their room — is one of the reasons of permanent tensions between detainees and staff. Re-education and preparation for live after release lack almost entirely; the efforts of the few trainers are in vain, given both the high number of detainees and the fact that they usually do not stay for too long in this transit penitentiary.
If the situation is extremely difficult for all detainees, the most affected category should be mentioned separately: that of detainees with life sentences. Undoubtedly, they have committed very serious crimes. A life sentence does not alter their status of human beings, neither does it completely annul their hope to be reintegrated in the society. There is only one detention place for persons sentenced for life in the Romanian penitentiary system: the Craiova penitentiary, where living conditions are very poor (an old building, minute rooms with the toilets inside the room and no partition walls, etc.). At the Bucharest (Jilava) penitentiary, where these detainees are transferred to appear in court, they are given the worst rooms and are subjected to the most severe treatment. Completely isolated, deprived of any kind of activity and without any perspectives to see their situation change, detainees sentenced for life are the most affected, both physically and mentally. APADOR–CH suggests that both the management of the two penitentiaries (Craiova and Bucharest) and the trainers, priests, etc. pay more attention to these detainees. One of the major shortcomings of the Romanian penitentiary system is the lack of organised activities for detainees but, until a generally applicable solution is found, a special schedule, including working hours, should be arranged in an emergency procedure for detainees with life sentences. APADOR–CH also suggests that detainees sentenced for life (about 40, according to the information gathered by the organisation) be transferred to a penitentiary with better living standards.
The staff of 463 (which includes the doctors, the priest and trainers, etc.) is far too small for the high number of detainees, taking also into account the specificity of this penitentiary, which is mainly a transit one. This actually means that detainees leave daily this penitentiary to go to others in the country after the Bucharest Courts have pronounced final sentences in their cases while others are transferred here because they have a case pending in court. The permanent flow of detainees makes it very hard for those supposed to re-educate them and prepare them for life after release to fulfil their tasks. Until 1997, a one-year school for non-commissioned officers used to function within the penitentiary. The school has been moved to Targu-Ocna for administrative reasons. APADOR–CH considers that the “best suited” penitentiary to train non-commissioned officers would have been Jilava, where the most varied and difficult cases can be encountered. Apart from that, the building where this school used to function was taken over as such and is used by the penitentiary administration instead of being employed as additional space for the detainees' quarters.
It should also be mentioned that too few non-commissioned officers graduate this school to cover the needs of the penitentiary system. About ten graduates were employed by the Bucharest penitentiary, the administration being forced to employ over 100 young people trained at this very penitentiary for no more than 3 weeks, which is obviously insufficient.
b) Medical assistance
Six doctors — two of them residents — and two dentists ensure the medical assistance for over 3,000 people. According to the doctor in charge of Sections 1 and 2 of the penitentiary, about 60 examinations are performed daily. Given the doctors' daily schedule — 7 hours (420 minutes) — it follows that each detainee is allotted about 7 minutes! If one subtracts the short breaks that could amount — optimistically speaking — to about 40 minutes in seven hours, each examination takes about 6 minutes. Obviously, too little to establish a correct diagnosis and treatment. The argument invoked in other penitentiaries with a fairly stable detainee population — that the doctors know their patients — does not apply to a transit penitentiary. Actually, the doctor in charge of Sections 1 and 2 had already examined 45 patients in three hours on the day of this visit; therefore, each examination had lasted for less than 4 minutes, although she had been transferred to this office two weeks before and had not had the time to become familiar with her patients!
Also, two dentists for over 3,000 detainees are hardly enough to ensure a proper medical assistance.
APADOR–CH has learned that the same doctors (including the dentists) also examine the penitentiary staff, which substantially diminishes the number of minutes allotted for detainees and implicitly lowers the quality of medical assistance.
c) The diet
A calculation made by the penitentiary staff demonstrates that the average amount spent for a detainee's food for one day is as follows: January — lei 4,465 ; February — lei 4,995; March — lei 5,345. At the time of this visit, lunch consisted of vegetable soup and vegetables with meat by-products (pig heads and legs — 160 grs. — and lard — 46 grs. per detainee). Dinner was going to consist of pasta with ketchup (60 grs. of pasta and 20 grs. of tomato paste each).
d) Visit to the cells
In Room 106, Section 1, there were 41 detainees and only 24 beds. A detainee — Ion Tanase, born on 22.04.1943 — had been detained on remand for driving without a licence for about 9 months and had not been tried yet in the first instance. Another detainee from the same room — Marian Ghita — charged with car theft, had been imprisoned on remand for one year and 8 months and had not been tried in the first instance yet. Five other detainees from the same room were sentenced to 6 months of contraventional prison (Vasile Nicolae, Gica Francu, Ignat Manole, Toma Dinca and Ion Costache, the first retired on medical grounds for 12 years). The management explained why they had been locked up in the same room with ordinary criminals: they wanted to avoid overcrowding in the rooms accommodating petty offenders (31 all in all, according to the penitentiary's statistics). This explanation, however, is unacceptable. Petty offenders are people who commit minor deeds outside the scope of criminal law. Living — be it even for six months — with persons suspected or proven to have committed serious crimes can result in very serious consequences over petty offenders. Room 106 was provided with two seatless toilets and a sink with two taps, totally insufficient to ensure the hygiene of the 41 detainees.
In Room 107, 38 detainees were sharing 27 beds. The room was provided with two seatless toilets and two sinks. Sheets had a doubtful colour although the detainees said they were changed once a week.
In Room 405 (juveniles), Section 4, 11 detainees shared 9 beds. The room was fitted with a seatless toilet, not separated from the rest of the room, and a sink. Obviously, these conditions can be equated with a degrading treatment, once inmates don't enjoy even a minimum of privacy.
The APADOR–CH representatives ran a random check among the case files of the persons detained for petty offences (Law no. 61/91). Several of the cases are listed below: Costica Nedea was fined lei 400,000 and failed to pay the fine which was converted into 80 days of contraventional prison (Sector 6 Court, Case File 1176/98) although, since October 1996, the amount to which the fine is divided when turned into terms in prison is lei 10,000). To put it differently, a lei 400,000 fine should have been converted into a 40‑day term in prison rather that 80, which is twice as much! Cornel Suciu (lei 800,000 fine turned into a 80‑day term by means of Decision 740, Case File 1041/98, Bistrita County Court), Viorel Moisescu (Decision 3187/98 pronounced by the Sector 1 Bucharest Court through which a fine whose amount is not mentioned was turned into a 10‑day sentence) and others are deprived of liberty and serve their sentences in similar conditions with actual criminals. APADOR–CH has drawn the authorities' attention to the fact that people who were fined and failed to pay should be sentenced to work for the benefit of the community instead of sentences in prison.
Talks with detainees
1. Viorel Roventu
Sentenced to death in 1983 by a military court for breaking into a militia station in a village and stealing two pistols, ammunition and a series of documents (Art. 208 and 209 corroborated with Art. 224 of the Penal Procedure Code), Viorel Roventu had his sentence commuted into a life sentence and subsequently, in 1988, into a 20‑year sentence to prison. In 1990, the General Prosecutor's Office introduced an extraordinary appeal which was rejected. Viorel Roventu escaped, was caught and sentenced to an additional 2‑year term, therefore to a total sentence of 22 years of which he has served 15.
Viorel Roventu considers that he was sentenced on a wrong charge (theft, theft with aggravating circumstances and theft from the public property with extremely serious consequences) and asked that the substance of his case be reconsidered. He filed numerous applications for a new extraordinary appeal, but was turned down each time.
2. Iulian Virgil Tihon
Arrested on 13 December 1996, he was sentenced to four years in prison for theft and outrage (Case File no. 3284/97, tried at the Bucharest Court, 1st Criminal Section). The detainee said he had been beaten in a police station in Sector 2 Bucharest where he had been taken by a group of 7‑8 police officers in the evening of 12 December 1996. On 13 December, around 3 a.m., he was taken to the emergency hospital to receive medical assistance, then taken back to the police lockup, beaten again and taken again to the hospital that very day. Iulian Virgil Tihon has a sprained shoulder after that night's beating, according to his allegations. The detainee declared he had complained against this treatment to the Military Prosecutor's Office in October or November 1997 but that he had not received any answer. He also said that he had been informed on the charges pressed against him in the police lockup, without being assisted by a lawyer.
The detainee had not yet received a final sentence; in the meantime, the instance held him in contempt of court.
3. Florin Alexandru Voinea
Sentenced to 5 years for theft, the detainee has another case pending since 1993 for having stolen the car of a German citizen who has not appeared in court at any hearing so far. The courts schedule the hearings at very long intervals (one or two hearings a year) (Case File 3149/93, pending at the Sector 6 Court). The defendant has not been sentenced in the first instance yet. The detainee said he had learned the petitioner had sent a declaration according to which he had dropped the charge. Still, the case is still pending in court after 5 years of postponement.
4. Visit to the Targsor penitentiary (4 June 1998)
a) Background information
The Targsor penitentiary is the only detention place for women in the country. There are women sections in other penitentiaries, but that is where detainees whose trials are pending in court are detained. Consequently, all types of sentences can be encountered here, from theft or prostitution to first degree murder.
Although it is fairly close to Ploiesti (about 20 km), access to the penitentiary is rendered difficult by the small number of trains and buses that link it with the town. This situation creates difficulties for both staff and detainees.
The penitentiary is located in a former monastery turned into a penitentiary for political prisoners in 1948. Since 1952, after the Mislea penitentiary was demolished, it became a detention place for women. Apart from being repaired in places and fitted out, nothing else was built or upgraded. The penitentiary runs high bills for heating (Diesel oil), which takes its toll on the hot water schedule (once and — very seldom — twice a week).
The penitentiary has a completely separate section for men (about 70 detainees) who ensure the services (plumbing, repairs, etc.).
Out of the 156 employees of the penitentiary, 102 work in the operative field (3 officers — a woman and two men and 99 non-commissioned officers — 51 women and 48 men).
b) Structure of the detainee population
At the time of this visit there were 1,013 detainees for a total capacity of 1,150 beds. Still, the penitentiary was overcrowded because the normal capacity of the penitentiary is 790 beds; the rest up to 1,150 are supplementary, which diminishes the available space. The latest measure consisted of moving the library on the club's premises; the former library was converted into detention rooms.
Out of the 1,013 detainees, 289 are multi-offenders and 724 first time offenders. 944 persons from both categories have received final sentences. The total number of inmates includes 77 detained on remand, 17 juveniles, 112 youngsters (18 to 21) and 7 petty offenders. With regard to the last category, APADOR–CH remarks that unpaid fines continue to be turned into terms in prison (see the cases of Florentina Raileanu, sentenced to a 20‑day term or Viorica Stefan, sentenced to 80 days in prison, both sentences passed by the Targoviste Court).
70% of the detainees work, especially in agriculture. The ones whose sentences exceed 10 years work in a ready-made clothes factory within the penitentiary. The factory organises training courses and issue detainees a certificate upon graduation, which could help them find a job after release. It should be mentioned that the penitentiary management has constantly striven to find former detainees jobs by means of permanent contacts with the Ploiesti local authorities. Unfortunately, they can only find jobs (and accommodation) by working for the green houses, but most of the released detainees have preferred to return to the towns where their families live.
c) Medical assistance
The staff that ensures medical assistance for detainees as well as the 156 employees is made of a general practitioner and a dentist (plus two nurses). The health reform has created the institution of the family doctor as well as regulations on how to resort to a specialised doctor. This law should also be enforced for penitentiary employees. Obviously, their working schedule (12 hours on duty and 24 hours off) does not allow them to be examined by a doctor from outside the penitentiary in emergency situations, but the procedure employed at the Targsor penitentiary is unacceptable: the doctor allots 6 hours a week (Tuesdays and Thursdays from 12 a.m. to 3 p.m.) for the staff, which is detrimental to the detainees. The doctor works 7 hours a day plus 24 hours on emergency duty every week, which amounts to 59 hours a week. Subtracting the six hours allotted to staff members, that leaves 53 hours a week to examine 1,013 detainees! According to the nurse, 40 to 100 detainees report to the surgery every day. Therefore, each detainee is examined for 4 to 10 minutes at the most, not to mention the short breaks the doctor takes.
APADOR–CH considers that health care should be urgently improved in Targsor. Obviously, the penitentiary has concluded a protocol with the Schuller municipal hospital from Ploiesti, which has special hours on Friday during which detainees are examined, but this medical assistance is insufficient for the over 1,000 detainees. Women have additional health problems as compared to men (periods, pregnancies, etc.) and the penitentiary should have a gynaecology section opened permanently.
It should also be noted that all detainees brought to the Targsor penitentiary are tested for HIV apart from the Wassermann test. The nurse said that each detainee is explained why they are drawn blood and what the HIV test means. APADOR–CH stresses that this test should be performed only upon the agreement or at the request of the detainee; the agreement should be expressed in writing.
d) The visit area
Although the panes of glass that used to separate the detainees from the visitors have been removed, the visit area is provided with a sort of counter 2.5 metres in width, divided into two (half for the detainees, half for the visitors) and so tall that detainees and visitors must stand up or even climb on a stool. Under the circumstances, it is obvious that visits can last for several minutes only and that not even a minimum of comfort is ensured. A separate room, with tables and chairs (empty at the time APADOR–CH visited the penitentiary) is allegedly used by families who bring in children to visit the detainees.
APADOR–CH considers that the way parcels are delivered is unsatisfactory, because detainees do not have the chance to see for themselves what they have received. Parcels are received, weighed and checked at a window, while the receiver stands in front of another window from which the former cannot be seen. In order to eliminate any shadow of doubt, the detainee and the visitor should be able to watch how the contents of these parcels are checked.
There is only one card phone for the whole penitentiary. In order to make a phone call, detainees must ask for permission in writing. This application may be approved or rejected by the commander.
e) Diet
Although the penitentiary has its own animal farm and vegetable garden, they cover only about 40% of the penitentiary's food needs. A solution other penitentiaries employ consists in paying the workers in kind with foodstuffs. The meat to be used for the detainees' food the following day consisted of pig heads and a piece of meat with a lot of lard for the detainees on diet. The APADOR–CH representatives were told at the kitchen that “meat is boiled in the soup and the second course only for the taste” (?!). Actually, at the time of this visit, the two courses (vegetable soup and beans) hardly contained any meat at all, apart from several traces of lard. The second course for the detainees on diet — rice — had several small pieces of meat. As if the penitentiary did not have enough problems of its own, the kitchen also prepares the food for the 200 detainees from the Ploiesti penitentiary.
Dishes are washed in three small sinks, insufficient to ensure a minimum of hygiene.
A positive aspect that must be noted is that lunch is served in the mess hall instead of the cells. All detainees — apart from those punished by isolation or who are disabled — eat in the mess hall; this means that they have an occupation that takes them out of the rooms at least for several minutes and especially that they eat in more hygienic conditions.
f) Training
The penitentiary has employed two trainers working on shifts, therefore a trainer every day for 1,000 detainees, which is ridiculous and insufficient. The penitentiary commander has recently persuaded two students in psychology to work with the detainees. This is remarkable, especially if this relationship is going to become permanent. The permanent presence of a psychologist or a psychiatrist or social worker is absolutely necessary in any penitentiary, so much the more in a penitentiary with over 1,000 women detainees.
The primary school teacher in Targsor teaches the 1st to 4th grades in the penitentiary. Commander Trandafirescu mentioned an initiative the APADOR–CH representatives regard as disputable to say the least: the teacher would head a group of detainees to analyse aspects of penitentiary life, especially punishment reports. APADOR–CH believes it cannot be beneficial to invest some detainees with such competencies and especially to appoint the teacher — a person who is not familiar with rules, regulations and issues specific to the penitentiary system — as “head” of this group. APADOR–CH, which has constantly advocated against the commanders appointing room chiefs, believes that any powers — be them to survey or even to make decisions — granted to some detainees over others will lead to animosity, tension, privileges and sources of profit for the former over the latter. APADOR–CH considers that, irrespective of how room chiefs or other detainees with certain prerogatives are appointed, this measure is entirely counterproductive and prone to lead to rivalry and unwanted rancour in the closed penitentiary universe.
Actually, there are very few cultural-educational activities for detainees. The library is poor (about 400 titles), the club shows one (old) movie every month, the penitentiary has about 15 TV sets, meaning that information is missing in rooms where detainees do not have the means to bring one in themselves.
g) Visit to the rooms
The rooms were clean, with relatively good quality bed clothes and acceptable blankets and mattresses, and above all changed according to regulations (once every two weeks).
In Room 36 (Section 4, multi-offenders), there were 12 detainees and 21 beds. All detainees were suffering from stabilised TB and were on medicines. As they do not work, they are taken outdoors daily for 30 or — seldom — 60 minutes. The room was provided with two toilets and two sinks with four taps, only one of which was working at the time of this visit. Obviously embarrassed in the presence of the commander and the accompanying non-commissioned officers, the detainees said that the only tap that worked was enough for them to wash themselves and their clothes, which was hard to believe.
In Room 34 (detainees unable to work) there were 26 detainees and 30 beds. The room was provided with only one toilet and two sinks. One of the detainees — Elisabeta Caldararu — had the left side of her body paralysed and was hardly able to move. She said that before being sentenced she had had an attendant for 8 years and that she found detention very difficult to bear. It is obvious that Elisabeta Caldararu should not serve her sentence in penitentiary, even if the other inmates help her satisfy her minimal needs. APADOR–CH raises the question of how a person who is half-paralysed can be kept in detention.
In the sick room — one for the whole penitentiary — there were only two patients: a detainee with sight problems and her attendant. The room was very clean and so were the bed clothes.
The shower room — one for the whole penitentiary — has 31 showers for the over 1,000 detainees. Inmates are entitles to one and sometimes two hot showers a week, according to the commander. Given that 70% of the detainees work either in the fields or in the ready-made clothes factory, one shower a week — or even two — is too little to allow them to maintain a normal degree of hygiene, especially as the rooms are not supplied with hot water.
The isolation room — empty at the time of this visit — has six beds and a toilet. The commander told the APADOR–CH representatives that the Targsor penitentiary does not have any restrictive regime area.
Individual cases
Despina Iliescu, sentenced to 20 years for murder, has been serving her sentence since 1994. Her penitentiary record is full of both punishment and reward reports. The detainee's intelligence is above the average, but she is also excessively irritable due to the fact that six years ago she had undergone a surgical ligature of the oviducts. The absence of periods might be the cause of her repeated nervous breakdowns. Despina Iliescu complained of unbearable headaches, of violent reactions she could not control (she breaks windows, bumps her head against the walls, cuts herself with the razor blade, attacks other detainees and non-commissioned officers, etc.). She did not undergo any psychiatric examination until 1998, when she was prescribed sedatives. The detainee also complained about kidney troubles (she urinates blood), for which she has not been examined yet.
Half of the punishment reports (most asking for 10 days of isolation) invoke “disrespectful attitude towards the staff”, that a detainee cannot argue against.
All that Despina Iliescu asks for is:
a) a proper medical treatment, which is almost impossible due to the strained relationship between the detainee and the penitentiary doctor;
b) to be moved to another room, because of the differences between her and the “room chief;”
c) to have the management regulate her tense relationship with non-commissioned officer Maria Pertea, who seems to constantly rouse Despina Iliescu.
She did not deny her guilt and did not ask for mercy. All she wants is to be punished only by deprivation of liberty, without unjustified and hard to control supplementary sanctions.
5. Visit to the Colibasi penitentiary (11 June 1998)
a) Structure of the detainee population
The Colibasi penitentiary, the buildings of which are inappropriate to accommodate people sentenced to long sentences in prison (small rooms with even smaller windows, damp kitchen, despite the fact that the ventilation systems had been changed, etc.) has started an official procedure to recover the buildings in Pitesti (the famous re-education penitentiary for political prisoners), currently occupied by several private companies. The success of this action is vital in order to put an end to overcrowding. The main idea would be to turn the Pitesti location into a section for persons detained on remand.
At the time of this visit, there were 2,308 detainees to 1,715 beds introduced supplementary, over the legal capacity of 1,194: 714 in pre-trial detention, 1,539 whose final sentences had been pronounced, 55 women, most in various stages of their trials, 17 juveniles, 223 youngster (aged 18 to 21) and 52 petty offenders.
APADOR–CH noted again that unpaid fines have continued to be converted into terms in prison, although there are no appropriate detention places for this category. Petty offenders serve their sentences in the same conditions as dangerous criminals: overcrowding, bad food, a 30-minute walk every day. The right to receive more parcels and visits is illusive, because most petty offenders come from very poor families that cannot afford to go to penitentiaries frequently or to spend money on food. Several penitentiary records, taken randomly, contained court decisions by which unpaid fines had been converted into terms in prison by dividing the amount of the fine to lei 10,000/day. The Turnu-Magurele Court, however, mentioned only the term in prison and left out the amount of the fine. (Burcea Marian — decision no. 27/12 January 1998 — 140‑day term in prison; Burcea Paul — decision no. 28/12 January 1990 — 160‑day term in prison). The Burceas, who live in Traian municipality, county of Teleorman, stated they had not received any police report regarding the fines; they had both been summoned directly to the Turnu-Magurele Court.
About 800 of the 2,308 detainees work mainly in agriculture. Some even work in the green houses, the animal farm, construction materials, mattresses, carpentry and osier weaving workshops within the penitentiary.
Detainees are taken to court in uniforms provided by the penitentiary. APADOR–CH stresses again that these uniforms make defendants who appear in courts stand out from the crowd. The association reminds the decision of the Constitutional Court according to which only persons detained on remand who do not own decent clothing should be issued standard uniforms.
b) Medical assistance
Two surgeries (one for the two sections for disabled people and another for the other six sections), six doctors (two internists, three general practitioners and a dentist) and ten nurses ensure the medical assistance for the over 2,300 detainees and the approximately 280 employees. APADOR–CH noted that, despite the health reform (family doctors, recommendation to a specialised doctor, etc.) penitentiary staff continues to resort to the doctors supposed to take care solely of the detainees. The association does not contest the right of employees to resort to penitentiary doctors in cases of emergency, but this should not be a hindrance to the medical assistance provided for detainees.
Similarly to other penitentiaries visited by APADOR–CH, a high number of detainees report to the surgeries every day: about 40‑50 examinations daily for the two sections for disabled persons and three times more, up to 150, sometimes, for the rest of the sections. It is obvious that both for the disabled (about 300, all in all) and especially for the second surgery allotted to the other 2,000 detainees, an examination does not take long enough to ensure a genuine medical assistance, as it takes between 10 minutes (disabled) and 3 minutes for the other detainees, on condition that the doctors and assistants take no breaks!
A positive step achieved by the Colibasi penitentiary with regard to medical assistance consists of concluding a protocol with hospitals in Pitesti, according to which each Monday and Thursday detainees are examined by specialised doctors. An unsolved problem from the point of view of APADOR–CH is that detainees who have — or pretend to have — health problems depend entirely on the goodwill of non-commissioned officers who guard them. If a detainee who does not have a good relationship with the guardians asks to report to the surgery (or to meet the commander or director), this request can be easily ignored by the penitentiary employees who do not get along well with that specific detainee.
The penitentiary does not have a psychiatrist, although, according to the medical staff from the surgery for the disabled (and not only them) at least 30 detainees have serious mental problems. One of these detainees is Florian Busu, born in 1956 and sentenced to 18 years in prison for homicide. He said he had been repeatedly admitted to various psychiatric hospitals, including Poiana Mare, and that he had been tried at large for a previous homicide. The chief-doctor of the Colibasi penitentiary believes this man's place is in a psychiatric institution rather than in a penitentiary. Still, the Forensics Institute expert examination conducted after the second murder committed by Florian Busu specifies that the detainee has a “low power of discernment”, therefore he can be held responsible for the deed committed and can serve his sentence in penitentiary!
During the visit to this penitentiary, many detainees declared they had been beaten by one of the assistants or handcuffed to the heater and left waiting for hours. Mr Burcea — chief of medical staff — made a note of this situation. APADOR–CH wonders why he had not done so before the association's visit.
c) Diet
Although the kitchen ventilation system has been recently replaced, the place is damp again.
On that day, the menu consisted of soup with pasta and stew with lard and potatoes. The menu for detainees on diet consisted of potato soup and rice with meat. Dinner was supposed to consist of rice with meat (regular meal) and pasta with cheese for detainees on diet. According to the records, 111 kg of meat, 129 kg meat by-products and 149 kg lard had been used for the detainees' meal, therefore about 150 gr. meat and lard per detainee.
All detainees complained about the poor quality of food; some even said they had found worms in their food.
d) Visit to the rooms
In Room 52 (disabled) there were 9 beds for 9 detainees. The wing where the two disabled sections are located is the only provided with showers in each room. The hot water runs for 30 to 60 minutes every week. Detainees receive newspapers (Curierul national and Adevarul) and spend about one hour a day outdoors. The two disabled sections have their own walking yard.
Room 37, Section 4 accommodated detainees who had gone on hunger strike either because of the length of their trials or because the court had turned down their applications to be released on parole. This last subject constantly crops up in every penitentiary visited by APADOR–CH. The parole procedure is as follows: a parole board made of the management of that penitentiary and other employees with competencies in the field of education, together with the prosecutor in charge of the case, examines the detainees' case files and propose them for parole. This application is sent to the court, where the judges decide whether to release the detainees on parole or not. The problem is that sometimes judges decide that one detainee or another have not been sufficiently re-educated, thus ignoring the board's recommendation, although the latter is the most competent to assess the evolution of each detainee proposed for release on parole. Some judges argue that the report drawn up by the commission, on the basis of which they must reach a decision, mentions nothing but the time already served, whether the detainee was punished or rewarded in penitentiary and several standard sentences about his/her participation to cultural activities. Under these circumstance, the judges find it very hard to assess whether the detainee is capable of social readjustment.
Unfortunately, detainees are dissatisfied with the postponements decided by the instance, because they understand neither the mechanisms of justice nor the role of courts. Such is the case of four detainees on hunger strike in Colibasi.
In Room 26, Section 3, nine detainees shared six beds. The window pane had been broken since winter. One of the inmates — Marian Florin Jagar, sentenced to 13 years in prison — had been transferred from the Bucharest (Jilava) penitentiary and although he said he had not been issued any punishment report there he had been sent directly to the “cellular” in Colibasi — a very small room, with a toilet and a sink. (The “cellular” usually represents the small rooms where dangerous detainees or those who are sentenced to a long term or punished by isolation are detained.)
In Room 27 there were 26 inmates (25 juveniles, which exceeds the number of 17 declared by the penitentiary management) sharing 18 beds. The room was provided with a toilet and a sink.
In Room 25 there were 27 detainees who shared 24 beds (one bed was used as a storage place). The room was provided with a sink and a toilet.
None of the rooms visited had any storage facilities for the food received in parcels, which is kept either on one of the beds or on the ground.
The heat in the rooms was unbearable. Windows were too small to ensure airing in a room inhabited by over 25 persons. One week before the visit of the APADOR–CH representatives, the management ordered that the iron doors of the cells be left open to let the air in.
Almost all detainees complained about the quality of food.
Detainees declared the cells were full of bugs, lice and mice. One month before the APADOR–CH visit the exterminators had been brought in.
The shower room — one for 6 sections (approximately 1,700 detainees) — was provided with 40 showers. An additional room had other 12 showers used by people with parasites. The APADOR–CH representatives asked why detainees were not allowed to take cold showers if they so wish. The question was left unanswered. This would require a minimum effort on behalf of the management and would help detainees cope better with the heat. Moreover, a better hygiene would be ensured, which is very hard under the current circumstances.
Talks with detainees
Most of the detainees APADOR–CH talked to have legal problems in connection with their trials. Others, whose final sentences have been pronounced, think they have been wronged.
One of the detainees — Ioan Florea — sentenced to 17 years in prison for murder complained about one of the officers who had allegedly issued him three punishment reports in only one day, all for minor things (a tape player turned on too loudly, an argument between detainees). Ioan Florea also declared that detainees were allowed to stay outdoors for only 30 minutes daily, except for Saturdays and Sundays and “for rainy days or whenever guardians just do not feel like it”, added the detainee. He also complained that, whenever he had asked to report to the surgery, he had been handcuffed to a pipe for hours until the doctor felt like seeing him. He also said that the only drugs he received from the surgery were sleeping pills, irrespective of what health problem he had complained about.
Ion Radu, sentenced to 4 years and 5 months for arson and failure to comply with the court decision, has another kind of problem. Aged 57, he has served one year in prison. He has asked the President of Romania to pardon him and was asked in reply to send his final sentence to the Presidency. Although he was judged on 30 April 1998, he had not received the decision in his case until 11 June 1998 (Case File no. 1656/97, Decision no. 272/R/98 of the Arges County Court of Appeal).
Ion Stanescu, sentenced to 3 years and 4 months (for trespassing and destruction) plus two years (for theft) complained that his health was so poor that he could no longer cope with detention. He showed his medical files, which demonstrate that: a) he had been repeatedly admitted to Gheorghe Marinescu psychiatric hospital, being mentally ill (this aspect was also invoked by his lawyer in one of the cases, but the instance considered that everything was to be blamed on alcoholism); b) he has a prolapse of the mitral valve and is under constant medical supervision (see the detainee's medical records issued by the cardiology section of the Pitesti hospital); c) he has a lead intoxication syndrome (see medical records issued by the Pitesti county hospital).
6. Visit to the Timisoara penitentiary (23 July 1998)
a) Background information
The penitentiary was built in 1907. Since then, only one more pavilion designed to accommodate 350 inmates has been built. The penitentiary has been repaired and fitted out; at the time of this visit, all the heating pipes were being replaced and the heating installation was being connected to the gas system.
The penitentiary covers two counties: Timis and Caras-Severin. It owns a plot of land of 10 hectares, where the vegetable garden and the animal farm (pigs, cattle, and poultry) are located. The meat output is sufficient to cover the penitentiary's demands. Unfortunately, vegetable crops are insufficient.
b) The structure of detainee population
On 23 July 1998, the penitentiary (with a capacity of 1,786 beds) accommodated 2,118 inmates, as follows: 268 in pre-trial detention, 328 sentenced by a first instance, 1,477 whose final sentences had been pronounced and 45 petty offenders. Out of the 2,118 detainees, 2,074 were men (1,728 adults, 284 youth aged 18 to 21 and 62 juveniles) and 44 women (35 adults and 9 youth).
Overcrowding is not merely the result of the fact that there are 332 detainees more than beds; it is especially due to the fact that beds are superposed on three tiers, the last tier being — in some of the rooms — situated at about half a metre from the ceiling. The heat and smell in the bigger cells are overpowering, although the windows and the metal door were being kept open round the clock.
About 700 detainees go to work, mainly in agriculture and on building sites. The penitentiary has succeeded in concluding a contract with the National Railroad Company whose object is the maintenance and repair of rails. The workshop in the penitentiary produces spare parts for electricity meters, on the basis of a contract. The detainees can also work in the penitentiary, either on the building site (for the new pavilion) or replacing the heating pipes.
The Timisoara penitentiary is staffed by approximately 232 persons, only six of which are officers. It follows, therefore, that there are about ten detainees for each employee!
c) The events occurred in the Timisoara penitentiary in February 1997
About one week after the beginning of the protests at Bucharest (Jilava) penitentiary, the detainees from the Timisoara penitentiary started themselves to write slogans on bed sheets and to voice their claims. The demonstration was peaceful up to the moment when several detainees from the 3rd section (top security), incensed by the Odobescu gang, regarded as one of the most violent in the Timisoara penitentiary, broke the cell doors and got off into the halls. Commander Ion Bala, who stayed in the penitentiary throughout the mutiny, decided that the guardians withdraw to Section I in order to protect them. The detainees who had got off their room broke the access door to the attic and set fire to mattresses, clothes and other such things deposited there. Around midnight, the staff realised that a fire had broken out on the top floor and called the fire brigade, which fought the fire for about ten hours.
In the meantime, the rebels were invited to appoint representatives for negotiations. The Timis county prefect and several journalists attended their talk with the penitentiary representatives. Over 250 penitentiary employees, gendarmes and police officers took hold of the penitentiary.
Commander Bala declared that no detainee had been hurt or treated harshly that night. The Timis prefect, who is a lawyer, spoke very firmly to the detainees, which seemed to work, because they all returned to their cells and the mutiny actually ended there. None of the penitentiary employees were attacked.
For 3-4 days after these events, the detainees continued to shout slogans, without taking any kind of action. Following the orders of General Ioan Chis (chief of the General Directorate of Penitentiaries at that time) to immobilise and isolate the most violent detainees, commander Bala asked for support from the Timis County Police Inspectorate. The police officers were brought on purpose for the Odobescu gang, but their intervention was not required. The detainees were convinced to get out for their cells to be searched, they were handcuffed and transported immediately to the Arad penitentiary, where they remained for several months. Commander Bala said again that force was not employed for this intervention.
About 12 of the detainees who had taken an active part in breaking the doors and setting fire to the attic are prosecuted, while other 40 have been punished, some by restrictive regime.
d) Medical care
The Timisoara penitentiary is in a difficult position from this point of view. The three general practitioners are off as residents, so that the medical assistants (five, all in all) are in charge of all medical activities. Following commander Bala's insistence, two of the three doctors agreed to go to the penitentiary for 4 hours daily (the third is on a maternity leave). Consequently, the number of detainees admitted to hospitals — mainly the municipal and the county hospitals — has increased considerably, which also supposes an increase of the staff taken out of the watch system, the penitentiary being understaffed anyway. Each detainee admitted to hospital is guarded round the clock by two non-commissioned officers from the penitentiary watch system.
In an attempt to counter this situation, the penitentiary management has created a new section for detainees with health problems. The medical assistants work in two shifts of 8 hours each, therefore 16 hours a day. There are two medical assistants on each shift. According to the estimations of a medical assistant, about 70‑80 detainees report to the surgery daily, which means an average of 15 minutes per patient. This average is much higher than in other penitentiaries visited by APADOR–CH, but unfortunately the medical assistants' competencies and training are lower than a doctor's.
e) Education
The penitentiary has no specialised trainers. The four such openings are empty for the time being. In order to compensate, at least in part, for this shortcoming, the management has encouraged groups of the civil society to visit the penitentiary as often as possible and to organise various activities with detainees. Apart from representatives of religious denominations (Greek-Catholic, Roman-Catholic, Pentecostal), non-governmental associations such as “Orthodox Women of Timisoara”, “The Christian Centre Agape Church”, “Prison Fellowship” or “The Humanitarian Service for Penitentiaries” carry out detainee training programs.
An initiative which should be extended to the whole penitentiary system consists of allowing students in law and journalism to carry out practical terms in penitentiary.
Another initiative consisted of a meeting between the women detained in penitentiary and a class of children, on the occasion of 1 June.
One of the latest events was a cartoon exhibition; half of the cartoons had been drawn by an art student, the other half by detainees.
f) Legal assistance
Commander Bala said that one of the strict rules of the penitentiary is to bring detainees to court in order to extend their pre-trial detention warrants once every 30 days. This is the first penitentiary visited by APADOR–CH where this rule is observed. The duration of arrest warrants is recorded on computer and regardless of transport difficulties, detainees are driven to the 32 courts from the counties of Timis and Caras-Severin.
The commander also said that the detainees are visited by their lawyers — included the ones appointed ex officio — which was also a first in the penitentiaries APADOR–CH has visited. Talks are confidential; a penitentiary employee may attend only when requested by the lawyer.
The commander has placed mail boxes in each section. He is the only one that holds the keys. Detainees may thus complain to him in writing.
One problem consists in making phone calls outside the penitentiary. The penitentiary has only one card pay phone. Detainees who wish to make a phone call must make a written application to the commander, specifying the name and phone number of the person they want to contact. A non-commissioned officer must be present when the detainee makes the call, so that phone calls are not confidential, especially if the detainee talks to his/her lawyer. As long as the talks between a detainee and his/her legal council are kept confidential, so should be the phone calls.
Commander Bala said he supervises all punishment reports drawn up by prison guards, that he talks to each detainee involved and, on many occasions, he has rejected such reports. APADOR–CH would like to stress again the inequity of punishment procedures: detainees who have allegedly broken penitentiary rules are punished without being able to appeal this decision outside the penitentiary system.
g) Visit to the penitentiary
1. visiting area
The visiting section is made of two small rooms. The penitentiary staff must attend the visits. Due to the small dimensions of these rooms, it is obvious that the staff hear everything that is being said, while international standard norms provide only for visual supervision.
Parcels are received at a counter and, although the APADOR–CH representatives were assured that the receivers can see what they contain, there are some doubts, as the window where detainees wait is situated at a right angle to the counter.
2. kitchen
The menu consisted of rice and meat for breakfast, vegetable soup and a potato dish for lunch and tea with biscuits, cheese and marmalade for dinner. As in most penitentiaries, the first and second course were very similar (a broth containing vegetables, pieces of lard and few pieces of meat). According to the records, 89 kg pork, 123 kg meat by-products and 59 kg of lard had been used that day, that is, about 100 gr. meat and 28 gr. lard per detainee. Many of the detainees APADOR–CH talked to do not eat breakfast, even if they work, preferring to sleep a little longer in the morning.
3. sick room
In the surgery, there were 11 detainees with health problems and 14 beds. APADOR–CH noted two special cases:
a) Ionel Zarnica
Zarnica has haemophilia and very fragile bones. Any more serious touch can result in broken bones. APADOR–CH suggests that the Forensic Institute conducts an examination to assess whether this person can continue to live in detention.
b) Iosif Atanartu
Atanartu is 77 years old and has been sentenced to 16 years in prison for murder. He has served 3 years and 4 months. He has serious heart troubles, can hardly walk and is unable to take care of himself. APADOR–CH suggest that an expert medical examination be conducted in his case too.
4. detention rooms
In the women section, Room 12, there were 5 inmates for 4 beds. Four of them were serving a term for prostitution. The toilet had been broken for almost three weeks, so that the air in the room was almost impossible to breathe.
Section 3 is divided into two: working and dangerous detainees. In the second category, Room 15 — very small — accommodated 5 detainees for 5 beds. They had all previously escaped or attempted to escape, so that they were regarded as extremely dangerous. The only activity they are entitled to is a 30‑minute walk twice or three times a week. They do not have newspapers, cannot borrow books (the library was being moved), are not taken out for any activities and obviously do not work. The guardians write them punishment reports for any trifle matter, beat them and swear at them. These abuses are perpetrated only when the commander is out. The detainees asked for a TV set in their cell, but their request was turned down on account of the high number of punishment reports.
Visits for dangerous detainees are schedules only on working days, up to 3 p.m. Under these circumstances, it is very difficult for the members of their families who work to go to the penitentiary.
In another room from the dangerous section (Room 21) there were only three detainees for 4 beds. The difference between the former cell and the latter was striking. Room 21 was in a much better shape and better outfitted (books included). This is where one of the most famous detainees, Mujea Marcelini, serves his sentence.
In Room 27 (working detainees) there were 56 detainees and 48 beds. The “facilities” consisted of one toilet and... a trash bin! One could hardly breathe because of the heat and smell.
In Section 4 (quarantine), Room 34, there were 31 detainees and 24 beds. All the equipment was very old and mattresses were broken with the stuffing springing from all holes.
There are two big rooms in Section 5. In one of them (no. 40) there were 149 detainees and only 99 beds, placed in three rows. The facilities consisted of three toilets and two sinks.
In Section 6 (youth and juveniles), Room 52, there were 63 detainees and 42 beds, two of which were broken. One of the inmates, Aurel Ionascu, born on 8 September 1983, had been arrested on 23 March 1998 for shoplifting. Most of the deeds mentioned in the indictment act made by the Prosecutor's Office with the Timisoara Court (no. 1780/P/98) had been perpetrated before Ionascu had turned 14. Art. 99 of the Penal Code stipulates that “the minor who has not reached the age of 14 cannot be held liable for his crimes. The minor between 14 and 16 years of age is criminally liable only if proven to have perpetrated the deed with discernment.” APADOR–CH believes that Aurel Ionascu should be released from penitentiary under supervision or confined in a re-education centre.
The newly built pavilion provides much higher detention standards. Each room is equipped with its own shower, toilet and sink and connected to the guardians' room through an internal phone system. Asked on what criteria detainees are accommodated in the new pavilion, the commander answered that they are the detainees who carry out activities for the benefit of the penitentiary.
Apart from the women's section and the new pavilion, the rest of the detainees use two shower rooms with 20 and 22 showers respectively, which is obviously insufficient for them to keep clean.
7. Visit to the Margineni penitentiary, county of Prahova
(17 September 1998)
a) Background information
The Margineni penitentiary is a former monastery (built in the 15th century), turned into a penitentiary around 1850. The penitentiary was improved to a certain extent 15 or 20 years ago, according to the chief of the guardians' department. As most penitentiaries in the country, Margineni is overcrowded and the detention spaces and facilities are unsatisfactory.
There is a heating plant for the whole complex, but the water and heating pipes need to undergo capital repairs which have been planned but never carried out. Water does not run properly (only 9 hours every day). During the visit to the detention rooms, it turned out that due to low pressure water does not reach the second floor even during the 9 hours. The penitentiary director, Mr Victor Marcu, plans to build a water treatment plant in order to solve this problem.
The penitentiary covers the counties of Prahova and Dambovita; all inmates are male.
b) Composition of the detainee population
At the time of this visit, the penitentiary accommodated 2,276 detainees while the number of beds is 1,760 for a capacity of 1,150 beds. The penitentiary has 166 guards (out of the total staff of 245, 22 of which are officers and 223, non-commissioned officers); it follows that there is one guard for every 14 detainees, more than the double of the figure recommended by D.G.P. (1 to 6).
— 703 of the detainees are multi-offenders;
— 258 are youth (aged 18 to 21);
— 60 serve terms for petty offences (unpaid fines continue to be turned into terms in prison).
Approximately 600 detainees (less than a third) work on a full-time basis in a section of the “I.L. Caragiale” furniture factory, situated within the penitentiary but managed separately; 300 to 400 more are employed occasionally or perform seasonal activities.
c) Detention conditions
1. Detention rooms
The APADOR–CH representatives remarked notable differences between Section IV (high security) and the other sections, both with regard to the distribution of detainees and to hygiene, equipment, size.
Thus, although this section has 74 beds and accommodates 60 detainees — therefore they should not be overcrowded — in Room 30 there were 7 inmates and only 6 beds. The room was small (about 9 square metres), the sheets and mattresses worn out. The sanitary facilities consisted of a seatless toilet, separated from the rest of the room by a screen no higher than 1.5 metres, and a low sink. Room 26 of the same section, however, was in a much better state, bigger and apparently cleaner, with new mattresses. Still, this room was equipped with the same kind of toilet, practically speaking not separated from the rest of the cell. The visible difference between the two rooms cannot be blamed solely on the detainees' untidiness, as the penitentiary staff suggested. It is clear that the deplorable state of the equipment in Room 30 is due to the administration which — intentionally or not — punishes additionally the inmates from that room.
Section I accommodates the detainees working in the factory. Room 5 (approx. 60 square metres) had 60 beds. At the time of this visit, Room 5 accommodated 68 detainees. The room also had a table with two benches and a separate caboose and a bathroom with three toilet cabins and three sinks. According to the chief of guards and to the detainees, the whole penitentiary is equipped with TV sets (half of them purchased by the penitentiary) and all rooms get newspapers every day (Sportul, Cronica Romana, Evenimentul zilei, local newspapers).
In Room 12, Section II, there were 93 detainees with contraventional and criminal sentences, all of them first time offenders. The penitentiary management invoked lack of space. There are only 50 beds in that room, therefore almost all detainees have to sleep two by two in one bed or three in two beds; another fairly similar room (24, Section III) — approximately 55 square metres — accommodated 56 detainees in 48 beds. Both rooms were provided with one toilet and one sink, as well as several shelves for luggage on a wall (obviously too few and too small). It is clear that under these circumstances detainees can hardly maintain their hygiene and that privacy is completely ignored.
The juvenile room is very small; 37 inmates have to fit in 20 beds. The room is provided with a seatless toilet and two sinks. As mentioned above, the supply with water is a problem. The water did not run in any of the rooms visited, which makes it even more difficult for the detainees to maintain a normal level of hygiene.
The three shower rooms, with a total of 40 showers — 3 of which are completely separate, for TB patients — are situated in Section III. Given the small number of showers and the short period when the water runs, the 2,200 detainees cannot benefit from normal washing conditions.
The buildings are packed together, so that little space remains for the daily walk. The penitentiary also has a library and a school (primary and secondary school grades). The management plans to fit out two sports fields, which would partly solve the problem of physical exercise.
2. Diet
The penitentiary has its own animal farm and an arable plot of land of 40 hectares. However, the output does not cover the penitentiary's demands. On the day of this visit, lunch consisted of vegetable soup and beans. The food was supposed to contain 70 kg of meat, 48 kg of lard and 148 kg meat by-products. The two courses were prepared with a lot of lard and few pieces of meat. Cooked separately, diet food was actually the same, but without salt. The food for diabetics looked better: each helping had a piece of meat.
The kitchen was freshly painted and the airing system worked well. However, the dishwashers consisted of the same insanitary sinks, hard to use and clean, as in all penitentiaries.
3. Medical care
The over 2,000 detainees are tended by only one doctor who works 8 hours a day, 3 of which are reserved for the staff. Doctor Negut declared, however, that medical care is provided round the clock by the five medical assistants. The doctor examines 100‑150 detainees every day, therefore the average examination takes 2‑3 minutes! Detainees are sent for specialised examinations to Moreni or Targoviste, upon the doctor's recommendation. Although one of the reasons for which detainees are confined in the high security section is the fact that they have a mental condition, only two detainees have been sent to specialised institutions over the past 15 years.
The sick room is small (12 beds; 6 more can be superposed if necessary). One of the detainees in the sick room — Nicolae Voicea — is 75 years old and has the Parkinson disease. He must serve a 3‑year sentence for murder. APADOR–CH wishes to point out again that sick elderly people should be placed in specialised institutions, able to ensure proper medical care, rather then in penitentiaries. Obviously, the responsibility for sentences to terms in prison fall with courts. It would be desirable, however, that penitentiary doctors be more active and make the necessary steps for the elderly persons either to have their sentences suspended or to be transferred to specialised institutions. Otherwise, such persons who cannot bear detention risk to become involuntarily a burden for the other detainees.
There are 33 cases of evolutive TB; these persons are confined in a normal cell (with 25 beds). It is not normal for detainees in this stage of the disease to be kept in penitentiary and not transferred/admitted to a hospital in order to be treated properly, under permanent medical supervision.
Apart from the general practitioner (assisted by the five medical assistants), the penitentiary has also employed a dentist. It is obvious that the penitentiary is short of medical staff and therefore medical assistance is inappropriate. Actually, Mr Marcu, the penitentiary director, has tried to employ other doctors, to no avail.
4. Education
The Margineni penitentiary has five trainers who have graduated sociology, psychology, social assistance and law respectively. They ensure the permanent connection between the penitentiary and the Dambovita Directorate for Work and Social Protection, obtaining lists of vacancies which could be useful to released detainees. They also co-operate with the Social Security Department within the town hall and with the Humanitarian Service for Penitentiaries. Various cultural activities are organised occasionally, such as a painting exhibition with exhibits created by detainees. This activity was organised with the support of the Targoviste History Museum. ARAS (The Romanian Anti-AIDS Association) has concluded a protocol with the penitentiary for a three-month project on health education. A very good measure — which should be extended to the whole penitentiary system — consists of allowing students to carry out their summer practical training in the penitentiary.
Although such collaborations between the penitentiary and institutions or organisations from outside the penitentiary system are welcome, they are too few, and the problem of detainees who do not work (that is, half of them) and are confined in overcrowded rooms 23 hours a day remains unsolved.
Detainees are allowed to talk on the phone to the outside if they can afford a phone card, but there is only one pay phone in the penitentiary, and the procedure to be followed in order to use a phone involves filling in an application specifying the phone number, the name of the person the detainee wishes to talk to and the grounds of the phone call. The application must be approved by the management. The officer on duty also checks if the applicant dials the number mentioned in the application and attends the phone call. The confidential character of the discussion is thus lost; this situation is even more serious if the detainee wishes to contact his lawyer. As this procedure has been established by the General Directorate of Penitentiaries, it should be modified by the same institution with a view to respect the right to privacy and the confidentiality of the detainee-lawyer relationship.
Special cases
1. Ion Draguna
Sentenced to 7 years for attempted murder, he has served 3 years and 4 months.
He declares he did not commit the crime he has been sentenced for and that the real author, sentenced to prison for a different crime, has turned himself in and has admitted to his guilt.
According to him, while he was serving his sentence in Margineni, one of the medical assistants had turned down his request for help and threatened him with a punishment report. (The punishment report was drawn up by the medical assistant and rejected by the penitentiary commander at that time.) Ion Draguna asked for the diet for diabetics, but it took him a lot of time and much pressure to finally get it. His medical record mentions not just diabetes, but also kidney trouble and chronic hepatitis. He said he had not been given the necessary treatment. He has repeatedly tried to report to the penitentiary director, but has been turned down each time (several of the detainees the APADOR–CH representatives talked to complained of a similar treatment). Doctor Negut denied Ion Draguna's allegations and stressed that the detainee's medical record proved he was receiving medicine for kidney trouble and hepatitis. Apparently, Ion Draguna is quite a difficult detainee to deal with. Draguna himself admitted that he was easily irritable because of his state of health. However, this is not a reason to be refused medical assistance whenever he asks for it or not to be allowed to talk to the commander.
2. Minor Dumitru Georgian Rotaru
He has been under arrest for one year and a half, since he was 15, under charges of complicity to theft. No final decision has been pronounced in his case. Obviously, it is up to the justice rather than the penitentiary system to solve these aspects.
8. Visit to the Bacau penitentiary (15 December 1998)
a) The detainee population
At the time of this visit there were 1,938 detainees, 83 of which worked and lived at the farm. Legally speaking, the penitentiary should accommodate only 780 inmates. The number of beds has been increased to 1,350 (plus 85 at the farm) by reducing the space between beds and/or by adding a third tier of beds. Out of the 1,938 detainees, 55 were juveniles, 57 women, 275 youth (aged 18 to 21) and 1,551 adult males. Over a quarter (546) were detained on remand.
The penitentiary is faced with a shortage of jobs for detainees. At the time of this visit, only 70 detainees were working besides the 85 who work full time at the farm.
There are about 150 officers and non-commissioned officers who work directly with the detainees, that is, a ratio of 13 detainees per staff member, which exceeds by far not only the ratio encountered in democratic countries, but also the official figures of the General Department for Penitentiaries (6 detainees per staff member). It is obvious that, under these circumstances, there are constant frictions between detainees and employees and a lot of frustration.
b) Education
Four trainers helped by a technical non-commissioned officer have to cope with the educational needs of almost 2,000 detainees. None of them is a psychologist. They organise daily 2‑hour meetings with the inmates. This actually means that the detainees from one or two rooms are taken to the club, where they are lectured on a certain topic. The lecture is sometimes followed by discussions. Detainees were very much interested in a number of topics — history of the Romanian army, health education — and less in others (for instance, a lecture on the significance of 1 December). APADOR–CH suggested that trainers prepare a list of the topics they intend to approach, circulate it among the detainees and ask for their opinion. The meetings would then focus on topics they are interested in. The penitentiary management has concluded agreements with the Bacau Museum for Natural Sciences and the History Museum as well as with the Bacau Astronomical Observatory. Monthly conferences on specific topics are going to be organised throughout 1999 on the basis of these agreements.
Apart from this “classical” approach, trainers try to introduce a new system: work-groups made of a smaller number of detainees. Although the figure they envisaged (30‑40 detainees per group) is still too high for each detainee to actually benefit from educational activities, this would however be a step forward, given the current situation.
A praiseworthy initiative consisted of inviting the “George Bacovia” Theatre, who performed twice at the penitentiary in 1998. A company of children actors also performed for the detainees (juveniles and women). Another remarkable initiative consisted of allowing a detainee to set up a closed-circuit radio station with his own equipment. The station broadcasts music and news taken over from other radio stations every day from 8:25 a.m. to 3:35 p.m.
As most penitentiaries, Bacau provides primary and secondary education. At the time of this visit, 18 minors attended courses in order to learn how to read and write, 22 detainees attended first to fourth grade and 112, fifth to eighth grade. While the certificates issued upon graduation of such courses are easily acknowledged, vocational training is faced with some difficulties. A recent protocol concluded with the Ministry of National Education, the Ministry of Justice and the local department of the Ministry for Social Protection is supposed to ensure recognition of vocational training certificates. Unfortunately, the Bacau penitentiary provides a single 3‑month vocational course in vegetable growing for 23 detainees.
Besides the full-time Orthodox priest, detainees can also be visited by representatives of other denominations (Catholic, Pentecostal, Adventist) and of NGOs involved in the social and economic field. Visiting hours were agreed upon by the penitentiary and representatives of the above institutions.
The penitentiary collaborates directly with a Dutch penitentiary which has provided a certain amount of aids.
The APADOR–CH representatives praised the trainers' efforts and especially their wish to diversify their activities. Still, it is obvious that four trainers can hardly cope with the needs of almost 2,000 detainees. The sporadic presence of representatives of the civil society and the organisation of activities usually attended by a high number of detainees represent too little a contribution to the education and social reinsertion of persons in detention.
c) The diet
The kitchen and annexes were improved and painted in 1998 and the old airing system replaced with modern effective equipment.
Lunch consisted of vegetable soup and meat with potatoes. Both courses were in fact a sort of broth, the only difference being that the second one contained some lard and small pieces of meat. Lunch had been prepared 48 kg of meat, 55 kg meat by-products (pig heads and legs) and 209 kg of lard.
The women section has a mess hall where detainees eat every day. Men sections are provided with similar mess halls, but each detainee gets to eat there “once a week, because of the overcrowding” — according to the penitentiary staff — “never, because the mess hall only serves as an ornament” — according to some detainees.
An aspect worth mentioning is connected to some of the detainees' wish to fast on the occasion of certain religious holidays. The penitentiary management declared this was not possible because of an order issued by the General Directorate for Penitentiaries, according to which detainees have to receive a daily number of calories (2,700) that they could not get if they fasted.
d) Medical assistance
Medical assistance is provided by a doctor specialised in internal medicine (the second doctor has to complete a stage), a dentist and six medical assistants. The doctor said he examines 60 to 80 detainees every day, but only about 10‑20% of them have serious medical problems. The same doctor examines the approximately 200 employees. The doctor declared that if a person is brought to penitentiary from a police station with marks of beating this condition is noted in the medical records and the person returned to the police station until healing.
Despite the fact that the doctor is helped by six medical assistants — whose medical training is scarce to say the least — it is impossible to believe that one doctor can cope with 2,200 patients.
e) The women section
Out of the three rooms visited (46, 54 and 55) only the last was overcrowded, having four beds and five detainees. Rooms have up to six beds and are provided with lavatory made of a seatless toilet and a sink. A shower room with five shower heads is used by the whole section. Hot water runs twice a week. One of the rooms — no. 50 — has been converted into a workshop which contains all sorts of small objects manufactured by detainees, among them even a weaving loom. The whole section — including the mess hall — was clean.
As in most penitentiaries, detainees complained that their legal counsels (especially those appointed ex officio) do not come to penitentiary to talk to them before hearings, sometimes not even at the registrar's office or in the court hall. Most ex officio lawyers tend to limit their defence to a plea for mercy on behalf of their client. It should be mentioned that the cases of women detainees at the Bacau penitentiary are pending in court; if they are sentenced to prison, they will be transferred to the Targsor penitentiary, the only penitentiary for women in the country.
f) The men sections
In Room no. 38 — which was very small — there were four detainees and four beds. They receive newspapers every day (Adevarul, Cronica romana, Monitorul de Bacau) and can watch TV as long as they wish. Room 38 seemed almost acceptable by comparison with the others. It is hard to decide whether this situation is due to the fact that one of the inmates is the owner of the radio station in the penitentiary.
In Room no. 43 there were 50 detainees and 43 beds. Mattresses and sheets were old and worn out. The lavatory consisted of two seatless toilets and three sinks.
In Room no. 36 there were 62 detainees in 30 beds tiered on three levels. The distance between the ceiling and the upper tier is less than 50 cm, so that detainees who sleep in the upper beds can hardly move from side to side. There were about three of four detainees in two joined beds. Roaches and lice are present at all times. The Room was provided with two toilets and three sinks.
Beds were also tiered in Room no. 33 (juveniles), where 57 detainees under 18 slept four by four in two beds. The room has only one toilet. According to the older regulations still in force, an adult person is appointed chief in such rooms.
g) The isolation section
The isolation section has three rooms with two beds each, a toilet and a sink inside the room.
In the first room there were two detainees — Liviu Zota and Vasile Gheti — which had been brought there six days before, on 10 December — without being issued punishment reports, without being informed on the grounds on which such measure had been applied and without being heard. The penitentiary management said that they had stolen lei 500,000 from a teacher's purse, that they had bought a jacket for lei 100,000 from a minor, that the rest of lei 400,000 had been recovered and given back to the teacher and that all parties involved had admitted to the sale/purchase. If the situation was so clear, why had the punishment reports not been issued after 6 days? And why had the two been isolated before being heard, their reports issued and before the commander had decided on their punishment?
There were 6 detainees in the second room. The staff explained that the detainees from the third room, which was being sprayed with insecticides, had been temporarily moved to the second room. Even so, 6 detainees in 4 beds means overcrowding and this could have terrible consequences, given that the detainees punished by isolation are supposed to be dangerous. Out of the 6 detainees, two were serving a restrictive punishment (one for aggressive behaviour towards other detainees, the other for escape), while the other four were juveniles punished by 5 to 10 days of isolation for gambling. The minors had not been heard; they had been told only what they had been punished for and what the punishment was.
Discussion with detainees
1. Paun Sava
Paun Sava was sentenced to 22 years in prison for murder and has a second case pending in court for robbery. He complained about the behaviour of penitentiary staff who insult and beat detainees and subject them to inhuman and degrading treatments. One of the victims of such treatment was Dumitru Viorel who is gay and who was forced to masturbate his partner in the presence and for the amusement of several guardians. The APADOR–CH representatives expressed their wish to talk to Dumitru Viorel, but they were told that he had been transferred to the Poarta Alba penitentiary.
Paun Sava also mentioned the treatment undergone by two other detainees — Gheorghe Carmenel Lefter and Cornel Croitoru — while the three of them were punished by isolation in separate rooms.
In September 1998, Paun Sava was punished by 10 days of severe isolation because the guardians had found several canisters containing about 80 kg of fruit the detainees were macerating in order to obtain alcohol in the room whose chief he was. Paun Sava said he had repeatedly tried to inform the management of this unlawful activity, but he had not been allowed to report to the commander. In fact, Paun Sava was taken to the isolation section on 7 September, but his punishment report was drawn up after 14 days. He spent 24 days in isolation (from 7 September to 1 October 1998) but his penitentiary record mentions only a ten-day punishment by isolation. While he was serving his term in isolation, Cornel Croitoru and Gheorghe Carmenel Lefter had been brought to the room next to his. Paun Sava said they were savagely beaten and then handcuffed to their beds; they were not even allowed to go to the toilet. Consequently, as Lefter was handcuffed to the upped bed, his urine trickled on Croitoru.
2. Cornel Croitoru
Cornel Croitoru is in an even more difficult position. He was brought in 1998 to the Bacau penitentiary from the Moinesti Police Station, where he had been punished by 20 days of isolation because the guardians had found a razor blade on him. As he had not served his punishment in the police lockup, he was going to be sent to the penitentiary isolation section. Two detainees from the Bacau penitentiary, whose statements can be found in Croitoru's file, accused him of having proposed to have sex with them and that Croitoru had beaten them when they had turned him down. The file does not include any statement given by Croitoru with regard to these allegations and no medical report, not to mention any declaration made by witnesses to testify that an investigation took place and the detainee charged with this deed had had the opportunity to defend himself. Therefore, the 5 September 1998 report attached to Cornel Croitoru's penitentiary file mentions that he was punished by ten days of isolation for the attempt to have sex with two detainees by duress. Two days later — on 7 September — the guardians in charge of distributing the meal “forgot” to lock the isolation section doors. “They did it on purpose” — said Paun Sava and Cornel Croitoru — but while the former did not give in to the temptation, the latter and his inmate Gheorghe Carmenel Lefter got out. They had taken only two or three steps when they were caught by the guards. Paun Sava and Cornel Croitoru said that Lieutenant-colonel Lupascu had ordered non-commissioned officer Doru Panaite “to take care” of Croitoru. The latter was beaten by Panaite — and later on by other guardians — cuffed to the bed (so was Lefter) and deprived of food for days on end. Cornel Croitoru got an additional 5 days of isolation for “attempt to escape.” According to the report, “Croitoru made a violent attempt to escape the room while the meal was being served and became aggressive.” The reverse of the page contains the opinion of one of the trainers, according to whom the detainee is not willing to co-operate. It is not clear to what extent his opinion counted in establishing the punishment or why a trainer was involved in punishing detainees. The file does not contain any statement made by Cornel Croitoru, no proof of any investigation.
Leaving aside the seriousness of Cornel Croitoru's attempt to escape, the APADOR–CH representatives wondered how a detainee could have even dreamed to escape past the security systems of the isolation cell, the section and the penitentiary, in full daylight, with no weapons and no help from the inside or the outside? And how could the penitentiary staff have imagined that a detainee could actually have escaped from the isolation section?
The two punishments (10 + 5 days of isolation) were added to the 20 days decided by the Moinesti Police. Cornel Croitoru served in a row only 25 of the 35 days of isolation, as the 20‑day punishment decided by the police was reduced to 10 days.
It should also be specified that Paun Sava and Cornel Croitoru are detained in Rooms no. 1 and 7 respectively, Section I, and that there are 72 detainees and only 36 beds in each room.
APADOR–CH found that, apart from the women section, life in detention is very hard for the Bacau penitentiary inmates. It is true that most Romanian penitentiaries are overcrowded, but the situation in Bacau has changed for the worse as compared to the June 1997 APADOR–CH visit, when there were about 1,500 detainees and the same number of beds. Apparently, the only improvement are the mess halls.
The penitentiary management does not seem to take seriously the detainees' right to defend themselves when they are charged with violations of internal regulations. Actually, although there are mail boxes where detainees could leave their complaints regarding the treatments suffered at the hands of the penitentiary staff, few of them trust this method; most continue to resort to the “classical” methods (requests to report to the monthly meeting with the commander). The instances of punishment described above prove that people are first “isolated” from the rest of the detainees (as a trainer put it) during investigations, then “isolated” on the basis of punishment reports! In other words, some detainees are isolated first (see the case of Paun Sava, but also of Liviu Zota and Vasile Gheti, taken to isolation for 6 days in the absence of a punishment report and without observing the compulsory formalities) and only then does the penitentiary decide if and how they are going to be punished.
APADOR–CH considers that, as compared to June 1997, when no such cases were discovered (either they did not exist or the detainees did not have the courage to mention them), the relationship between detainees and employees has not been improved by the appointment of a new commander.
9. Visit to the Targu-Ocna penitentiary section (16 December 1998)
The penitentiary section is located on the premises of the vocational school for penitentiaries. A re-education centre for juveniles used to function there until 1997. When the school for non-commissioned officers was moved from Jilava to Targu-Ocna, only several ground-floor buildings were left to be used as detention space.
a) The “semi-open penitentiary” experiment
The section undergoes a transition period, aiming to become a semi-open penitentiary. This is a praiseworthy initiative, especially as the draft bill on the carry out of punishments (which provides, among others, a new classification of penitentiaries) has not yet been submitted to the Parliament.
The first sensible differences between this system and the situation in other penitentiaries are as follows:
— the access to this section is made through an ordinary gate, without the checking points of other penitentiaries. The APADOR–CH representatives did not realise when they left the school campus and entered the penitentiary;
— detainees are free to visit the inmates from the other rooms situated in the same building. They are free to go into the yard upon the warden's permission;
— as soon as a fence is placed between the campus and the penitentiary, detainees will be free to move about the space taken by the penitentiary at any time;
— detention rooms have regular doors (not iron doors with bars) with small bolts;
— a self-service mess hall is going to become operational very soon;
— there is no isolation section. As Lieutenant-colonel Pantaru said, guardians who draw up punishment reports following violations of the internal regulations will merely describe the incidents without suggesting a punishment.
An action worth mentioning took place on 13 December 1998, when a group of detainees and students of the vocational school performed before an audience in a show organised at the Targu-Ocna House of Culture.
In the future, detainees will be sent home for the weekend; other facilities specific to a semi-open penitentiary are also envisaged.
Several remarks should be made about the 237 detainees this section accommodated at the time of this visit:
— only part of them — those selected from the Bacau, Iasi and Focsani penitentiaries and several of the ones serving their time in Targu-Ocna before the status of this penitentiary changed — enjoy the opportunities of the semi-open penitentiary system;
— those selected to enjoy this kind of treatment meet a number of criteria: appropriate behaviour, punishments under 10 years, at least a third of the sentence already served, violence not involved in the perpetration of the deed they were sentenced for, stable relationship with the family and ages above 25.
b) Background information
The section is made of several ground-floor buildings. Several buildings have been fitted as locksmith's shops, turneries and dye works. As mentioned above, Targu-Ocna funct}ned as a centre for minors until 1997. Part of the foremen and engineers working as trainers stayed on after the centre was dissolved; consequently, the theoretical training needed to obtain a job qualification is ensured. Lieutenant-colonel Pantaru said that the penitentiary will be entitled to issue valid qualification certificates starting 1999, the only issue that remains unsolved being that of finding an institution to act as “moral guarantee.” To put it differently, in order to facilitate the employment of released detainees, certificates should bear the letterhead and stamp of an acknowledged “civil” institution.
The section has a farm which grows pigs and vegetables, mainly root crop. In the future, the farm will become an open penitentiary section with about 50 detainees.
Several organisations such as the Humanitarian Service for Penitentiaries, the “Rock of Ages” and the Christian Mission for Prisons visit the penitentiary on a regular basis.
The cultural-educational department has a single employee, but it closely collaborates with the vocational school.
For the time being, the kitchen and medical office serve both the school and the penitentiary section. In the near future, the penitentiary section will have its own kitchen, medical office and sick room. A general practitioner, a dentist, a dental technician and five medical assistants look after detainees, staff, students and teachers.
c) The section
Each of the 237 detainees has his own bed according to Lieutenant-colonel Pantaru, therefore the section is not overcrowded. The first building visited by APADOR–CH was older, that is, the lavatory was made of two separate rooms, one for toilets, the other for showers and situated at the end of the corridor. Detainees take two showers a week, but the shower room was very cold that particular day, because the heating did not work.
Rooms are quite large and bright, so that the air was not stale although there were about 20‑25 detainees in each room.
The second building was new. Each room has its own lavatory and a separate closet where detainees keep the food received from home and other personal belongings.
The doors to all the rooms were open, still there were no detainees in the corridors. Moreover, detainees did not seem convinced they could leave their rooms whenever they wanted. Eventually, the APADOR–CH representatives understood that they could go to other rooms, but only on condition that they ask the warden, who “must know where each man is in case someone looks for them.” Although the weather was sunny and quite warm, in the yard there were only several detainees who were working. Lieutenant-colonel Pantaru explained that the guardians and detainees had learned there was going to be an “inspection” and it had been decided that the latter had better be in their rooms.
Detainees were reluctant to answer when asked how punishment reports were issued.
The APADOR–CH representatives had the feeling that the idea of a semi-open penitentiary, even at this first stage, was quite unclear for both guardians and detainees. Actually, Lieutenant-colonel Pantaru admitted he had received the new regulations one month before, enough time to study but not to enforce it.
Despite the above reservations, the APADOR–CH representatives believe that the initiative of adopting some measures in order to achieve the transition to a semi-open system is fortunate. Apparently, this experiment is conducted in two other penitentiaries in the country, which proves that the General Directorate for Penitentiaries is determined to achieve a genuine reform of the penitentiary system. The procedure adopted in Targu-Ocna with regard to punishment reports — namely, the fact that the warden describes the incidents without suggesting a punishment — is welcome. APADOR–CH urges the general Directorate for Penitentiaries to enforce it in all penitentiaries, regardless of their type. APADOR–CH also suggests that each report, irrespective of the sanction adopted, be accompanied by the detainee's and his/her witnesses' written statements. All these documents should be kept in the penitentiary file.
APADOR–CH wishes to commend DGP's prompt answers to all questions raised by the association. DGP openly admits that many of the shortcomings highlighted by APADOR–CH are genuine and tries to remedy them even in the absence of an appropriate legal framework. There are also some points of conflict, such as medical assistance granted to the staff. DGP invokes military regulations which entitle the staff to free of charge medical examinations performed by penitentiary doctors and medical assistants. APADOR–CH believes that the medical staff — already too small for the high number of detainees and especially for the special health issues related to detention — has even less time available for detainees if they continue to tend to the staff.
10. Training penitentiary guardians: visit to the Targu-Ocna vocational school for penitentiaries (16 December 1998)
a) Background information
In the spring of 1997, the General Directorate for Penitentiaries decided to move the school for non-commissioned officers for penitentiaries from Jilava to Targu-Ocna, where there already functioned a centre for minors. Once the move was effected, a series of other things changed: the institution became a vocational school, it has radically changed its curriculum and provides a double qualification (penitentiary guardians and public administration clerks).
A centre for initial training (45‑day courses) for persons employed directly as guardians and a centre for continuous training for the rest of the staff (attended by penitentiary staff once every 5 years) function on the same premises.
The buildings, that include, apart from the school, hostels, gyms and festivity halls, are situated in a park. The campus also includes sports fields and courts and even a theatre in the open. The penitentiary section is separated from the campus by a more or less symbolic gate and fence.
b) The vocational school for penitentiaries
The vocational school organises 11‑month courses for high-school graduates. This year, the school is attended by 111 students plus about 40 persons who attend the initial training courses (those employed directly in the penitentiary system without having attended the vocational school). The curriculum is organised on categories of subjects: socio-human sciences, legal science, penitentiary theory and practice, administrative subjects, firing and physical training. The daily schedule includes six hours of lecture in the morning and three hours and forty minutes of individual study in the afternoon, plus a shift at the penitentiary section.
The school seems to be well provided: two libraries with specialised literature and general information books, a computer room where students are taught computers, gym, numerous classrooms, etc.
The headmaster, Mr Tantaru, said that the curriculum has been modified following the pattern of similar institutions from the democratic countries. There have been talks about increasing the period of instruction and equating the period spent in training with the compulsory military service, in order to attract as high a number of students as possible.
The APADOR–CH representatives entered a classroom were about 20 students were having a written test in constitutional law. The homework was focused on their ability to learn by heart and interpret the Constitution. APADOR–CH believes it is an exaggeration to ask future penitentiary guardians or public administration clerks to interpret constitutional provisions. Actually, the whole curriculum seems too loaded, especially with regard to the “legal sciences.” Another aspect to be taken into consideration is that the persons employed directly by penitentiaries are supposed to cover during the initial training period (45 days) all the subjects the other students learn in 11 months, which is obviously impossible.
APADOR–CH suggests the following changes:
— to increase the capacity of the vocational school for penitentiaries (it is clear that 111 graduates, part of which are going to work as public administration clerks, are not enough, taking into account the current demands of the penitentiary system);
— to simplify the curriculum by giving up certain subjects which are not useful for the kind of work the graduates will perform;
— to give up those aspects of the training that are still related to the military system (obligation to live on campus, the system of leaves of absence, etc.), given the envisaged demilitarisation of the penitentiary system.
1998 recorded a series of unpleasant surprises related to the protection of freedom of expression: on the one hand, the Chamber of Deputies rejected the draft bill for the modification of the Penal Code and of the Penal Procedure Code that aimed, among others, to abolish punishment by prison for insult (Art. 205) and libel (Art. 206), as well as to eliminate Art. 238 (offence against authority) and Art. 239 para. 1 (verbal outrage); on the other hand, but directly related to the above, more journalists than ever were prosecuted, some of them being sentenced to prison for insult and libel through the media. Cornel Sabou, a journalist from Cluj, even served part of the ten-month term in prison; he was granted a three-month break (until 3 January 1999) for family related matters.
APADOR–CH issued in August 1998 the following protest in connection with this case:
“1. The Association for the Protection of Human Rights in Romania (APADOR–CH) protests against the ten-month imprisonment sentence pronounced against Cornel Sabou, a journalist from the Cluj-Napoca Ziua de Nord-Vest newspaper and against the lei 500,000 penal fine to be paid by Dan Calin Parcalab from the same publication, both charged with libel (Art. 206 Penal Code).
“APADOR–CH urges the court to order that the sentence to prison pronounced against Cornel Sabou be suspended and that the General Prosecutor of the Prosecutor's Office with the Supreme Court of Justice introduce immediately an extraordinary appeal against Criminal Sentence no. 846/1997 (Case File no. 2612/1997, Nasaud Court). The sentence remained final following the rejection of the appeal by means of Decision no. 43/R/1998 (Case File no. 389/1998, Bistrita Nasaud County Court).
“2. APADOR–CH has constantly advocated for the modification of the Penal Code, with a view to eliminate a series of articles, mainly those that jeopardise freedom of expression, guaranteed both by the Romanian Constitution and by international human rights documents. Such articles are: Art. 205 (insult), Art. 206 (libel), Art. 238 (offence against authority) and Art. 239 para. 1 (verbal outrage). Unfortunately, the Chamber of Deputies has rejected this year the draft bill on the modification of the Penal Code and of the Penal Procedure Code, which would have partially ensured the observance of freedom of expression. The negative consequences of the fact that provisions counter to democratic norms are maintained become ever more visible, as an increasing number of journalists are sentenced to prison for press offences.
“APADOR–CH urges the Ministry of Justice to change the draft bill for the modification of the Penal Code and of the Penal Procedure Code with a view to eliminate, among others, the articles that jeopardise freedom of expression, and to submit it to the Parliament as soon as possible.
“The association asks the Parliament to examine the new draft bill on an emergency procedure and to eliminate the provisions that represent a threat to human rights and fundamental freedoms.”
A second serious case involved two journalists from Monitorul de Iasi, sentenced by the first instance to one year in prison each and the payment of huge compensations for moral damages.
APADOR–CH issued in August 1998 a press release regarding this serious injustice:
“The sentence pronounced by the Iasi Court, by means of which two journalists were sentenced to one year in prison each without suspension and the denial of civil and political rights, as well as to the payment of compensations amounting to lei 1.5 billion for moral damages, is the most serious act of injustice committed against journalists.
“In connection with the case as such and the judicial system that has allowed the pronouncement of such decision, APADOR–CH specifies the following:
“1. The contents of the article for which the two journalists were sentenced does not include any slanderous remarks about Colonel Petre Susanu and his wife, judge Otilia Susanu. The information and the tone of this article do not exceed the normal limits imposed by freedom of expression and this profession.
“2. The sentence as such is disproportionate even in relation to the contents of this crime — libel; at the same time, this is the most severe decision ever pronounced by a Romanian court in a trial of this kind. It runs counter both to the Romanian legislation and to international documents that protect freedom of expression and the right to a fair trial. This sentence is a matter of personal revenge rather than the enforcement of principles applicable in a state governed by the rule of law.
“APADOR–CH believes it is up to the Superior Council of the Magistrates to discuss the behaviour of judges involved in this case, given the concrete circumstances of this trial. If the new Council fails to act as such and invokes the independence of the judiciary in such a situation, this could be interpreted as an attempt to encourage a behaviour specific to an authoritarian state, far cry from the requirements of the rule of law.
“3. The decision pronounced by the Supreme Court of Justice, which turned down the request to transfer the case from the Iasi Court, runs obviously counter to the interests of a state governed by the rule of law, where the judges' fairness and lack of bias should be protected beyond any doubt. The fact that the case was assigned to a court where the applicant's daughter was a judge and the former was herself president of the instance ranking immediately higher proves utter disregard for Romania's democratic development and the requirements of a state governed by the rule of law. The judges from the Supreme Court who ruled on the request to transfer the case to another instance are fully accountable for their decision. APADOR–CH believes that a mere appeal to honour should make them resign if they are still judges with the Supreme Court. At any rate, such attitude — which prove disrespect for the Romanian society's aims regarding the act of justice — should be taken into consideration by the Supreme Council of the Magistrates and by the President of Romania when making new appointments to the Supreme Court of Justice.
“4. APADOR–CH wishes to remind the public opinion that the Ministry of Justice initiated a draft bill for the (minimal) modification of the Penal Code, according to which insult and libel should have been punished only by fine and the crimes of offence against authority and outrage (committed while exercising freedom of expression) should have been abolished, but the draft bill was rejected. This failure should be a warning regarding the way the Romanian society is heading. The Romanian Government was the first to disagree with the initial draft bill and to insist that higher punishments be maintained, while the Chamber of Deputies rejected the whole draft bill in a session where the interests that prevailed had nothing to do with Romania's and its citizens' aims.”
The appeal had not been judged until the end of 1998.
A third serious violation of freedom of expression in Romania occurred in September 1998. An Austrian lawyer of Hungarian origin — Eva-Maria Barki — who had been denied access to Romania for a 3‑year period on account of her vocal pro-Hungarian attitude, returned to Romania and continued to advocate for her ideas in public, on various occasions. Therefore, she merely expressed ideas the listeners could have agreed with or not. Still, the Romanian Presidency's reaction was not just violent, but also out of proportion with this person who was merely exercising her right to opinion, without actually taking any action which could have been interpreted as a threat to the country's security.
The press release issued by the Presidency triggered the response of four non-governmental organisations, APADOR–CH included, which issued the following press release:
“On 28 September 1998, the Romanian Presidency issued a press release where President Emil Constantinescu, as guarantor of the Romanian Constitution, urges the state institutions to take measures against individuals and associations that violate Art. 30 (7) of the Romanian Constitution, making reference explicitly to some statements made by the Austrian national Eva-Maria Barki. In connection to the above-mentioned press release, THE ASSOCIATION FOR THE DEFENSE OF HUMAN RIGHTS IN ROMANIA — HELSINKI COMMITTEE, PRO-EUROPE LEAGUE, THE LEAGUE FOR THE DEFENSE OF HUMAN RIGHTS and THE ROMANIAN INDEPENDENT HUMAN RIGHTS SOCIETY declare:
“1. Freedom of opinion and expression are fundamental human rights and essential prerequisites for the very existence of the rule of law. According to the Romanian legal system, freedom of expression is guaranteed both by the Constitution (Art. 30) and by the European Convention of Human Rights (Art. 10), the International Covenant on Civil and Political Rights (Art. 19) and the Universal Human Rights Declaration (Art. 19).
According to Arts 11 and 20 of the Romanian Constitution, the above-mentioned international documents are part of the domestic law, and ‘constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to.’
“That is to say that the interpretation of human rights and constitutional liberties, as well as any potential restriction of their exercise, should comply with the international human rights law. Under these circumstances, the ‘restrictions on freedom of expression provided in Art. 30 para. 7 of the Constitution cannot be invoked unless they are consistent with the above-mentioned international documents.’
“2. The press release issued by the Romanian Presidency is part of a broader campaign unleashed by Romanian state authorities against freedom of expression, which resulted, for instance, in sentencing several Romanian journalists to prison.
“3. According to Art. 18 of the fundamental law, as an alien, Eva-Maria Barki enjoys ‘general protection of persons and assets, as guaranteed by the Constitution and other laws’, freedom of expression included. By asking that Eva-Maria Barki be prosecuted, the Romanian president attempts to sanction a person for her opinions. Although the signatory associations do not share Ms Barki's opinions, they believe that, whatever these opinions may be, her freedom of expression cannot and must not be restricted and sanctioned. Ideas can only be challenged by other ideas, therefore by dialogue. In the opinion of the Strasbourg Human Rights Court, freedom of expression ‘covers not only information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society.’
“The undersigned human rights organisations urge that the attempts to intimidate or to sanction freedom of expression cease immediately.”
This statement triggered the adverse reactions of several publications which proved thus not to understand that freedom of expression is a right that each and every person, not just journalists, should enjoy.
In 1998, the Minister of Justice ordered for a second time that Eva-Maria Barki be denied the right to enter Romania.
VI. NATIONAL SECURITY AND INTELLIGENCE SERVICES
1. The legal framework
The relationship between activities carried out by intelligence services involved in defending national security and respect for human rights is an often debated and disputed subject in many countries, including those with well established democratic systems. The Council of Europe, in its turn, is increasingly concerned by this aspect; many voices ask for the establishment of European norms in the field.
The two laws on intelligence services left to be adopted — the Law on the Foreign Intelligence Service and the Law on the Protection and Watch Service — were finally adopted in 1998. Unfortunately, both are based on Law no. 51/1991 on the Romanian national security that many experts consider obsolete and unconstitutional. All attempts to modify this law remained at the stage of draft bills by the end of 1998; they have not even been discussed by the specialised commissions of the Parliament. (See the chapter on human rights and the domestic law.)
Three of the implications of intelligence service activities over human rights are regarded as essential:
a) the protection of national security is invoked as a legal basis to restrict the exercise of certain rights (freedom of expression, free access to information, freedom of association, freedom of meeting, the right to privacy, including secrecy of correspondence, etc.);
b) the possibility for an individual to defend him/herself — even before a court — against potential abuses committed by intelligence services while discharging their duties;
c) the control exercised by the civil society over the operation of intelligence services.
At the end of 1998, the structure of Romanian intelligence services was as follows:
1. The Romanian Intelligence Service (SRI) (Law 14/1992)
2. The Foreign Intelligence Service (SIE) (Law 1/1998)
3. The Protection and Watch Service (SPP) (Law 191/1998)
APADOR–CH emphasises that the Special Tele-communications Service (STS) (Law 92/1996) is also part of the intelligence network, because “it has a military structure and is part of the national defence service” (Art. 1 para. 5) and “it ensures the enforcement of measures related to national security in its field of activity...” (Art. 11 para. h).
The Supreme Council for National Defence (CSAT) (Law 39/1990) organises and co-ordinates the activities of these services, STS included. It is true that they are controlled by parliamentary commissions, but the information related to this monitoring process that reaches the public is scarce and usually irrelevant.
Besides the four services mentioned above, the Ministries of Defence, Interior and Justice have their own intelligence structures, regulated by unpublished ordinances/decisions that, therefore, never reach the public. Their establishment and operation were based on the Law on National Security (Arts 8 and 9).
2. The project “Intelligence Services in Constitutional Democracies”
This international project was initiated in 1997 by the Polish Helsinki Foundation for Human Rights and the Centre for Studies on National Security in Washington D.C., a non-governmental, non-profit organisation aiming to defend human rights in situations where national security protection is invoked. The project sets out to monitor the activity of intelligence services in former communist countries from Europe and in the USA and aims to examine and compare the relevant legislation currently in force in these countries, to suggest improvements to these laws, to call the attention of authorities and of the public opinion on threats to human rights permitted by the current legal system. APADOR–CH is the Romanian partner in this project.
According to the project agenda, APADOR–CH prepared in 1998 a report on parliamentary oversight over activities carried out by intelligence services, translated and distributed the principles adopted by all partners relating to intelligence services, distributed the first issue of a bulletin printed as part of the project and prepared a draft bill for the modification of the Law on National Security. This last action was very significant, because it involved some other Romanian NGOs involved in the field of human rights (Pro-Europe League, The Lawyers' Association for the Defence of Human Rights, the Romanian Group for the Defence of Human Rights, the Civic Alliance, the Romanian Independent Society for Human Rights) in drafting the final version of this draft bill.
Summing up, the text has the following aims:
— to define clearly, by law, the role, competencies and limitations of each intelligence service/structure;
— to reduce the number of intelligence services. (See the number of such services in well established democracies: United Kingdom, France, Germany, Italy, Sweden, Belgium, Spain, Finland, the Netherlands — one up to two domestic intelligence services and one foreign intelligence service each. The Czech Republic, Slovenia and Slovakia have followed the same trend.);
— to demilitarise all intelligence services. The only possible exception would be the intelligence structure within the Ministry of Defence, whose role should be clearly defined and limited to the protection of information handled the ministry's employees by means of a law on the organisation and operation of this ministry. All intelligence services and structures should be bound by law to submit annual activity reports to the specialised parliamentary commissions;
— to institute a double judicial control — prior and subsequent — on intelligence activities that might violate human rights. The prior control should comply with the following rules: (i) the issue of a warrant authorising the use of surveillance methods provided under Art. 13 para. 1 should be up to the judge; (ii) the judge should be provided with all materials on which intelligence services base their request for such warrant; (iii) the warrants should mention clearly the aims and scope of each action, as well as the duration for which it is issued; (iv) the results of these activities should be controlled periodically by the judge, who can thus decide whether the surveillance of a person should continue. The subsequent judicial control is achieved by means of access to justice of those who consider that their rights have been violated by such surveillance. The limitation by law of the duration and number of warrants (a single warrant valid for six months, followed by a single 3‑month extension at the most), as well as the obligation to subsequently notify the person who had been placed under surveillance are essential conditions meant to ensure an effective judicial and public control;
— to prevent by law these services/structures from carrying out trade activities, both as legal entities and as employees of such services. The ban should extend over the employee's spouse. There are many reasons that justify this ban: economic/trade information gathered by law and used for the benefit of private firms/companies; unfair competition and distortion of the market; the danger of activities or groups acting above or under the protection of the law; uncontrollable income, etc.;
— people's access to information of public interest owned by such intelligence services/structures. Limitations of the access to information on grounds of national security should be clearly defined. The authorities should be able to demonstrate that: (i) access to a certain piece of information and its dissemination seriously endangers a legitimate interest relating to national security; (ii) the restriction is imperative in order to defend that interest; (iii) the restriction is necessary in a democratic society. Refusal of intelligence services/structures to disclose information that they hold should be subject to judicial control.
— to determine intelligence services/structures to demonstrate the existence of a genuine threat to national security in order to justify specific actions carried out with a view to annihilate this danger.
The Romanian non-governmental organisations that have contributed to drafting this text — which contains, among others, concrete proposals for the modification of Law 51/1991 — hope that Romanian MPs will be interested in this initiative, especially as many of them are convinced that this law should be brought in line both with the Romanian Constitution and with international human rights documents.
3. Individual cases
a) Kiraly Stefan
Kiraly Stefan is a geologist aged 58. Up to June 1990, he used to be an advisor on geological issues, mining and oil with a deputy Prime Minister. From June 1990 to August 1991, he was a deputy state secretary with the Mining Department within the Ministry of Industries, then a counsellor in the same ministry until October 1991 and deputy general manager of the Geological Department until June 1992. He was transferred to the “Ioszef Obernauer Company” Ltd. and retired in 1993.
In February 1995, he was arrested on remand on charges of “transmission of documents or data classified as state secrets to foreign powers or organisations or their agencies” (Art. 157 para. 1 Penal Code). There followed two house searches during which 347 documents were seized. None of them was classified “state secret” or “job-related secret.” The prosecuting authorities asked for the opinion of a specialist from the Ministry of Industries, who confirmed that none of the seized documents was classified as a state secret. They also resorted to a commission within the Ministry of Industries, which established that 12 out of the 347 documents were classified as “state secrets.” The legal basis on which the expert examinations were carried out is unclear. Moreover, the examinations were conducted during the penal investigation stage, without taking counsel with the defendant and without allowing him to question the experts. What is certain is that the repeated applications submitted by the defendant that a new expert examination be conducted by a group of independent experts were turned down by the courts of law. After his arrest, Kiraly Stefan learned hat his phone had been tapped and his mail checked by SRI for two years, that is, until he was arrested. The 15 November 1996 decision pronounced by the Bucharest Court of Appeal admitted that those documents had never been “registered as state secrets”, but ruled that they could have been regarded as such, following the expert examination conducted by the commission appointed by the Ministry of Industries. The Court of Appeal also admitted that none of Kiraly Stefan's phone conversations and letters intercepted by SRI could prove his intention to turn these documents over to a foreign power or its agents. Under these circumstances, the Bucharest Court of Appeal changed the charges and sentenced Kiraly Stefan to 7 years' imprisonment for “disclosing secrets that jeopardise national security” (Art. 169 para. 2 Penal Code). It should also be mentioned that the documents under scrutiny referred to mining and geological surveys with no connection to national security. Therefore, without exonerating him of the initial charges (Art. 157 para. 1), the Bucharest Court of Appeal sentenced him on the basis of Art. 169 para. 2.
Kiraly Stefan and the Prosecutor's Office appealed this decision. The appeal was judged by the Supreme Court of Justice on 17 October 1997. The Court admitted the Prosecutor's Office appeal and sentenced Kiraly Stefan to 16 years in prison for the initial charges of “treason by transmission of secrets.”
It is noteworthy that none of the instances was interested in hearing as witnesses the foreign businessmen who had used Kiraly Stefan's expertise in the field.
The hearings were held in public sessions at the Bucharest Court of Appeal; at the Supreme Court of Justice, hearings took place with closed doors.
All the applications for appeal filed by Kiraly with the General Prosecutor's Office were turned down. He applied for a presidential pardon, but received no answer.
Kiraly Stefan has been imprisoned for almost four years. According to the current legislation, he will be able to apply for parole in 2007.
b) Dan Razvan Socolescu
In the spring of 1996, Dan Razvan Socolescu was part of a UPETROM-Ploiesti delegation to the Republic of Moldova to negotiate with ASCOM Ltd. from Chisinau. The engineer had prepared a list of documents he was going to need — list approved by the institution he was working with — but shortly before leaving he decided to take with him a set of “instructions for repairs” as well as the company's offers and catalogues. He did not have the time to adjust the list, but he was not in the least worried about that as none of the supplementary documents was classified as “state” or “job-related” secrets or as “confidential.” Moreover, many of these documents had already been included in a former list. For instance, at the “instructions for repairs”, the “table of basic dimensions of threads for conic pipes NPFT USA standard” was included at point 3, titled “calculation and choice tables” under the last heading — “threads.”
However, the Otopeni International Airport customs authorities were of a different opinion. The documents were seized and Socolescu was prosecuted on the basis of Art. 20 Penal Code (attempt) corroborated with Art. 19 of Law 51/1991 on National Security (“...gathering and transmitting information classified as secret or confidential, by any means that evade the legal framework”). The Prosecutor's Office added to the charges Art. 242 Penal Code (“theft or destruction of a file, register, document or any other printed matter...”) and Art. 33 letter a) Penal Code (“corroborated crimes”). What sort of “theft” or “destruction” could this have been, as long as the engineer had only taken copies of the original documents, which are intact at UPETROM? And on what evidence could the prosecutor have based the charges defined under Art. 33 letter a) Penal Code, when he made reference to a “group of traitors”?
Letter no. 013/225 of 31 May 1996 sent by UPETROM lists all the documents found on Socolescu and two of his colleagues, mentioning for each case if the respective documents were classified as “job-related secrets” or “confidential.” The “instructions for repairs” are described as “confidential.” However, a prior official letter issued by UPETROM (no. 033/323 of 24 April 1996) listed the “instructions” among the documents approved to be taken abroad without listing them as “job-related secrets.” As for the offer documentation and catalogues, UPETROM made it clear that the form found on the engineer (Xerox copies) did not represent a “job-related secret.” One may infer that UPETROM had made an inventory of its documents and had established which were “state secrets” or “job-related secrets” or “confidential documents” only after the Otopeni event — at least as far as the documents seized from Dan Razvan Socolescu are concerned. Therefore, he could not have been charged with the attempt to take abroad secret documents as long as:
1. The company did not have an inventory of its own documents;
2. None of the seized documents had a “state secret”, “job-related secret” or “confidential” stamp on;
3. Socolescu had already been authorised by UPETROM to hold and take abroad with him these documents.
Apart from the two letters — the first of which, issued in April, was constantly ignored by the penal investigation bodies and the courts — the technical expert examination was followed by a report according to which none of the documents found on Socolescu and his colleagues had been classified as “job-related secret.” Both the report's authors and the specialists who were heard specified that the information included in the seized documents could not have been used anywhere to reproduce any piece of equipment. This statement contradicted the prosecutor's presumption that the equipment used in “the oil industry, designed and built in Romania, could have been reproduced by ASCOM Ltd. Chisinau.”
Despite all arguments used to defend Dan Razvan Socolescu, the defendant was sentenced by the Prahova Court to a one-year suspended sentence in prison and three years on probation for the crime provided under Art. 20 Penal Code and Art. 19 of Law 51/1991 (Court Decision no. 112 of 5 May 1998). The court exonerated Socolescu of the charges of theft of documents (Art. 242 Penal Code) and dismissed the charges of corroborated crimes (Art. 33 letter a) Penal Code). Both the defendant and the Prosecutor's Office appealed this decision.
On 5 October 1998, the Ploiesti Court of Appeal upheld, by Criminal Decision no. 308, the one-year sentence for attempt to commit the crime provided by Art. 20 Penal Code corroborated with Art. 19 of Law 51/1991, but this time the sentence was no longer suspended. The Court of Appeal also pronounced Socolescu guilty of “theft of documents” and sentenced him to an additional year in prison on that charge.
The constant use of Law 51/1991 on National Security proves that SRI is involved in the Socolescu case. Moreover, before the appeal was judged, the engineer was summoned the Prosecutor's Office to discuss about a series of phone conversations he had allegedly had with various persons since 1996. The obvious conclusion is that SRI (and maybe other intelligence services/structures as well) had wiretapped Socolescu's phone. The stubborn attempt to sentence the defendant despite all evidence and testimonies that exonerate him could only be explained as follows: Socolescu's acquittal would prove the frailty of the accusations, and the courts that solved this case could still feel timorous whenever national security is invoked, even if they are aware that Law 51/1991 is obsolete and unconstitutional.
Dan Razvan Socolescu appealed the decision; the appeal will be judged at the Supreme Court of Justice on 9 March 1999.
APADOR–CH believes that in both cases presented above the intelligence services — even if their names have not been mentioned — have used their almost unlimited prerogatives to conduct surveillance operations on the two defendants for periods up to two years (Art. 13 of Law 51/1991 on National Security authorises such actions for an initial six-month term followed by an unlimited number of 3‑month extensions). One may infer that the same services have influenced the expert examinations conducted to determine whether the documents seized from Kiraly Stefan and Dan Razvan Socolescu were classified as state or job-related secrets or as confidential. APADOR–CH also wishes to stress that several courts of law have pronounceysentences based on Law 51/91 corroborated with similar provisions of the Penal Code, though it is obvious that these laws are obsolete.
A. Religious minorities
Religious freedom faced the same problems in Romania as during the previous years. New cases of violence against believers who do not belong to the Orthodox majority were recorded. A new and relevant aspect was the debate whether the Bucharest University should be turned into an Orthodox propaganda centre. Given the complexity of this issue, APADOR–CH made public in April 1998 its position regarding the opportunity of turning the university space into a confessional centre.
“APADOR–CH has been repeatedly notified of various issues regarding freedom of conscience and its observance in the university. The association has learned about the actions organised by the Student League and by the Romanian Christian-Orthodox Student Association (ASCOR), including posters and materials printed under their aegis, political statements, debates on religious topics organised at the Bucharest University, ritual manifestations — such as blessing classrooms and student hostels — candles and icons placed in classrooms and libraries or the initiative to build an Orthodox church in the yard of the Law and Philosophy Faculty.
“At the same time, the association has been informed that the students contested these actions; starting from the premise that the university is characterised by freedom of thought, beyond all political and religious dogma, they stood up against ‘the intention to build an Orthodox worship place in the yard of the Law and Philosophy Faculties of the Bucharest University’ and ‘Orthodox icons placed in the classrooms of the Law Faculty’, considering that ‘the Student League and the Romanian Christian Orthodox Student Association have made religious propaganda for a long time in the university and venture to make exaggerate decisions.’ The students also state that ‘the university has become excessively politicised’, ‘an ideological monopoly has been instituted’, ‘extremist right-wing groups are in full swing’, ‘fundamentalist attitudes are tolerated and supported.’
“The climax of this situation was reached with the decision adopted by the Bucharest University Senate Board on 26 March 1998 not to allow ‘religious manifestations in the university.’ This decision is expected to be ratified by the Senate. In response to this decision, ASCOR published a standpoint signed by its president which denounces ‘the nonchalance of non-Christian groups who use some of our fellow students in philosophy to pressure the Bucharest University management.’ The Student League issued a press release dated 8 April 1998, which mentioned ‘a group of uncertain orientation (self-titled the Association of Bucharest University Students)’ and ‘a powerful offensive of communist forces and practices.’
“With regard to all the above aspects, APADOR–CH states the following:
“1. Religious manifestations are part of the right to religious freedom, a right acknowledged by the Romanian Constitution and by numerous international conventions Romania has ratified. Such manifestations may take place in private or public places, on condition that they do not prejudice the rights and freedoms of others.
“2. Debates organised on spiritual, religious and other topics are not merely compatible with the university environment; such events are characteristic to university. It is noteworthy, in this context, that the Bucharest University mission and aims, as set out in the University Charter, include the development of national culture, gathering and disseminating the values of human culture and civilisation, asserting the identity of our national culture.
“3. Other forms of religious or confessional manifestation are acceptable to the extent to which they prove compatible with university life. They are illegal if they touch upon the university's aims and mission. Point (7), Chapter II of the Bucharest University Charter reads as follows: ‘[The university] shall assume and achieve its mission as a centre of national civic conscience, aiming to promote free choice, critical and constructive analyses, the development of civic and political culture in Romania, defence of the democratic framework based on respect for the fundamental human rights and freedoms in a state governed by the rule of law.’ Any manifestation that runs counter to this article should be rejected by the University management.
“It is up to the Bucharest University Senate to distinguish between actions that run counter to the values of democracy and pluralism and those that comply with these values. APADOR–CH believes that the University Senate has the duty to establish a code of conduct applicable to all various events organised in the university, as most universities in well-established democracies have. Violations of this code — by propaganda, incitement to violence, intolerance, etc. — should result in preventing the persons or organisations concerned from carrying out other activities in the university.
“4. As for the initiative of turning the public university into a confessional centre, APADOR–CH considers that it runs counter to constitutional provisions. It represents a violation of the secular character of the state, of the rights and freedoms of students, professors and university staff. The icons placed on the walls of classrooms or halls and the initiative to build a church on the university premises violate the freedom of conscience of those who do not share the same religious options or ways of expressing their faith.
“As the above mentioned manifestations are counter to constitutional provisions, APADOR–CH considers that the University Senate or any other university authority are not competent to authorise them. Moreover, in order to comply with the constitutional framework, with the rights and freedoms of all students and professors, the Senate has the obligation to forbid such actions.
“5. In order to ensure freedom of choice, APADOR–CH believes that the Senate should specify and limit display areas, their management and sanctions for violations of these provisions.”
Another issue of great concern in 1998 remained the circular letter sent by the State Secretariat for Denominations on 25 March 1997, by which prefects and local authorities were urged to turn down or cancel building licenses issued for religious associations and foundations. The same measure was taken in 1998, despite the previous protests of the associations and foundations directly concerned, as well as of other national and international human rights organisations. On the occasion of an international meeting that took place in Bucharest in the fall of 1998, which brought to Romania a high number of representatives of all denominations, APADOR–CH conveyed to them and to the public opinion the following appeal:
“APADOR–CH salutes the international reunion ‘People and Religions’ with the topic ‘Peace is the name of God’, organised by the Romanian Patriarchy and the Sant' Egidio Community, upon the initiative of the President of Romania. The meeting of representatives of denominations from over 50 countries, of important religious leaders, under the sign of peace and understanding, represents a message in favour of the free exercise of religious conscience, belief and practice. We would like to express our appreciation for the initiative and will of those who wanted the traditional reunion of the Sant' Egidio religious community to take place in Romania.
“At the same time, APADOR–CH wishes to remind that such generous events should not cast a false light over the actual situation of religious life in Romania. APADOR–CH has repeatedly and publicly voiced its opinions and disclosed violations of religious rights and freedoms that various believers have fallen prey to: some have been threatened, some even attacked for the only ‘fault’ of having a religious faith other than Orthodox, which is the main faith in Romania. APADOR–CH reminds that the religious situation in Romania has worsened since March 1997, when, because of the policy of the State Secretariat for Denominations, religious organisations who have not been acknowledged as denominations have been denied elementary rights regarding the exercise of religious freedom, such as that of building worship places.
“The most vocal attempt to violate religious rights and liberties is the current draft bill on religious denominations submitted to the Romanian Parliament, elaborated under the aegis of the State Secretariat for Denominations. Among other unacceptable provisions, APADOR–CH wishes to draw attention to Art. 66, which reads as follows:
’In their organisation and operation, associations and foundations that have not applied to be acknowledged or have not been acknowledged as religious denominations cannot avail themselves of the rights and prerogatives of an acknowledged religious denomination (to carry out religious activities, to print religious books, to produce religious objects, to build their own churches, to employ religious staff, etc.).’
“The denial of rights that represent basic elements of religious rights and liberties — ‘to print religious books, to produce religious objects, to build their own churches’ etc. — runs counter to constitutional provisions and to the international commitments made by Romania and last but not least to actual religious values. We urge the representatives and religious leaders who take part in the international reunion ‘People and Religions’ to assert the values of religious freedom for everyone, irrespective of their faith religious beliefs.”
The draft bill on denominations
The most important issue with long-term implications was the evolution of the draft bill on denominations, which, according to the schedule, should have been submitted to the Parliament. In May 1998, the State Secretariat for Denominations took a new step in furthering the “Law on Denominations”, whose drafting had begun back in 1991. The draft bill was indeed submitted to the Parliament, but withdrawn shortly afterwards. In the summer of 1998, the State Secretariat for Denominations circulated a new draft bill, under the title “Law on Denominations and Religious Freedoms.” In November 1998, this draft bill was replaced with the “Law on the General Status of Denominations.”
There are several significant differences between the two latest versions. Three of these topics are especially important and worth mentioning, because they could soon become a sensitive spot in the parliamentary debate: the national church; atheistic versus religious options; the rights of religious associations and foundations.
Since 1990 until the spring of 1998, discussions on the law on denominations took place under the pressure exerted by the Orthodox church. The Romanian Orthodox Church (BOR) asked to be granted the status of national church and to become the state church. The draft bill on denominations made reference to the BOR request, presenting the differences between its opinions and those of other denominations. The latest two draft bills, the “Law on the General Status of Denominations” and the “Law on Denominations and Religious Freedoms” no longer included this request.
It is worth mentioning the opinion of the European Human Rights Court, which ruled that the existence of a state church does not violate the rights provided by Art. 9 of the European Human Rights Convention. The only problem is that a system based on a state church has to comply with a series of conditions. In the opinion of APADOR–CH, under the current circumstances, if the Orthodox Church is turned into a state church, the rights and freedoms of citizens of a different faith and generally speaking the secular character of the Romanian state can be seriously jeopardised.
According to the draft bill on denominations, completed at the end of May 1998, no state body or governmental institution is supposed to initiate, institute, license or subsidise atheistic propaganda programs (Art. 5). But according to the same draft bill, denominations can apply for and receive grants from the state budget to carry out their specific activities — therefore, money for religious propaganda included (art 56). This represents a discrimination among “types of opinions.” Freedom of conscience includes the freedom to believe and the freedom not to believe, while the state must respond the same to both situations. Actually, international law and the Romanian Constitution (Art. 11 and 20) provide that “freedom of opinion, conscience and religion”, which is the basis of a law on religious freedom in Romania (the law on denominations) goes beyond its mere religious contents. Krishnaswami, special rapporteur of the UN Sub-Commission for the Prevention of Discrimination and Minority Protection showed that the term “religion or faith” was used in his study to include various theist faiths, agnosticism, atheistic thought and rationalism. The same point of view was shared by the draft bill of the Convention on the Elimination of All Forms of Religious Intolerance Based on Religion or Faith and the preparatory works of the UN Declaration on the Elimination of All Forms of Religious Intolerance Based on Religion or Faith, 1981. Actually, the Final Document of the Vienna Meeting (CSCE, 1989) sets out in proviso 16 (a) the “effective equality between believers and non-believers.” Obviously, the Vienna final document is one of the political obligations assumed by Romania before the CSCE.
With regard to the rights of religious groups still not acknowledged as denominations, the latest draft bill represents a breakthrough, because it eliminates the article that forbids religious associations and foundations “to carry out religious activities, to print rite books, to produce religious objects, to build worship places, to employ paid staff, etc.”
The latest version of the draft bill elaborated under the aegis of the State Secretariat for Denominations under the title “Law on the General Status of Denominations”, does not contain the three disquieting provisions present in the previous draft bills. It is still not clear what the final version of the draft bill to be submitted to the Parliament will look like. Moreover, the latest version still contains flaws and continues to restrict religious freedoms.
Other provisions violate the denominations' autonomy, asserted — directly or indirectly — in the preamble to this draft bill. Thus, the statute for the organisation and operation of each denomination should be confirmed by the President of Romania (Art. 14). If this trend is followed, the President will have to take into consideration all the elements which determine the Romanian state to grant assistance to a certain religious group.
The provision that the law used to contain during the communist regime, according to which the heads of religious denominations, as well as metropolitan bishops, bishops, superintendents and others holding similar positions will be acknowledged by presidential decree, upon request, is almost unchanged. Similarly, all the persons holding such positions must be Romanian citizens (Art. 25).
The draft bill provides excessive powers for the State Secretariat for Denominations. Among others, the Secretariat would have to ensure the observance and achievement of the legal rights of denominations, to prevent any abuses, to mediate mutual relations among denominations and their relations with central and local public administration authorities. These competencies are excessive because they regard either specific activities of the denominations or deeds falling under the incidence of specialised state bodies, such as the judiciary. The role of a state secretariat for denominations is to grant support to religious activity and to guarantee religious freedom in Romania and nothing more.
Another important issue is related to funding denominations in Romania. Traditionally, denominations are subsidised directly from the state budget. Lately, the churches' requests — especially those of the Orthodox church — have mushroomed, and the state subsidies granted by the Romanian state to the acknowledged denominations — mainly to the Orthodox church — have sensibly increased. The recent governmental decision which decided that the priests of the 15 acknowledged churches be paid entirely from the state budget is circumscribed to this trend. As denominations are autonomous and the number of priests depends on their free will, the amounts of money allotted by the state to this item may get out of proportions. Moreover, the need for financial means determines the management of denominations to exert political pressures, which leads to an increased interference of the religious phenomenon in state life. This phenomenon is already visible and can seriously jeopardise the Romanian democratic life.
This is why APADOR–CH believes that the Ministry of Finances should be charged with distributing the resources due to denominations. The ministry would be able to adapt the financing mechanism of denominations to the new trends related to the creation of the national budget and the local budgets respectively, which would be a logical move. Once the system of taxation on global revenue is enforced, each Romanian citizen could be entitled to pay a percentage of his/her taxes to the church he/she belongs to or wishes to support, for whatever reasons. This solution complies with the state's will to support religious life in Romania but ensures, at the same time, a radical change. On the one hand, the revenues of every church would be an equitable expression of popular support, on the other, state institutions would be prevented from biased interventions contrary to the rule of law.
“APADOR–CH remarks
on the Draft Bill
on the General Statute of Religious Denominations
1. General remarks
a) The methodology employed in drafting the law on denominations
“The current draft bill on the general statute of religious denominations is the result of a close co-operation between the denominations acknowledged in Romania and the State Secretariat for Denominations, as a specialised institution of the Romanian state that mediates the relations between public authorities and religious denominations. The involvement of denominations proves respect for the democratic principle which provides that the norms which regulate the life of a given community should be established in agreement with that community. Still, the involvement of religious groups that have not been recognised as denominations would have been necessary for the same reasons. The specialists working with human rights organisations were not invited to take part in drafting this law, which proves that the initiators did not understand that the main aim of this law is to guarantee freedom of conscience, opinion and belief. This snag is evident in the draft bill.
“On the other hand, this draft bill comes closest to the normal standards of a law