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