1999 Report

HUMAN RIGHTS DEVELOPMENTS IN ROMANIA THE ACTIVITIES OF THE ROMANIAN HELSINKI COMMITTEE (APADOR-CH)
1999 REPORT

An inconsistent evolution, this is how the situation of human rights in Romania in 1999 can be summed up.

1999 brought only to a small extent the long awaited improvement of the legislation related to human rights and fundamental liberties. In the field of civil rights, there is still a lot to cope with. The criminal law, including the Law on the Carry Out of Punishments by Deprivation of Liberty, the Law on Police, the Law on National Security, etc. has still not been amended. The Law on Access to Information of Public Interest has not been adopted yet, therefore the restrictions instituted by the 1990 law, which is incompatible with the democratic norms of an open society, are still in force. It is true that the Government initiated in the fall of 1999 a series of draft bills submitted to the Parliament. If they are taken over and amended by the Parliament, many of them will ensure a closer compatibility of the Romanian legislation and practice with the European standards. This situation also means a step forward because it is for the first time that “political will” goes from the declarative stage to actual facts at the governmental level.

One of the few concrete measures taken with regard to the protection of civil rights is the adoption in the summer of 1999 of a law by means of which contraventional prison is replaced by work for the benefit of the community. The introduction of a practice that has become the rule in countries with well-founded democratic systems and the reduction of overcrowding in prisons, even to a small degree, are important consequences of this law.

Freedom of belief and religion continued to experience a unique situation. Due to the shortcomings of the law and of the authorities' practice alike, many obstacles hindered the life of most religious communities in Romania in 1999. These hindrances touched the very substance of the freedom of religion and belief. In the last part of the year, the Government adopted and submitted to the Chamber of Deputies a draft bill on the general status of religious denominations, which contains provisions liable to violate freedom of conscience, belief and religion.

As in the previous years, APADOR–CH focused on the legal process in the field of fundamental rights and liberties. The advocacy before the authorities involved in the field was correlated with the association's collaboration with other non-governmental organisations.

The association's working relationship with the General Directorate for Penitentiaries was constantly good. Although no new legislation in the field of penitentiaries was adopted this year, the DGP officials did their utmost to improve detention conditions. The relationship with the General Police Inspectorate was good and APADOR–CH succeeded in carrying out its programme, namely in monitoring the conditions in police lockups and the relationship between police officers and natural entities.

In 1999, the Romanian state lost two cases before the Strasbourg European Human Rights Court (the cases Brumarescu and Dalban, the former on the right to property, the latter, very important in view of the trend towards changing the legislation and mentalities, in the field of freedom of expression).

In the second half of 1999, the Government submitted to the Parliament several draft bills, either as new initiatives or as amendments to laws currently in force.

APADOR–CH focused on the draft bills (either promoting new laws or aiming to modify current laws) that are directly related to its fields of activity: the Penal Code, the Penal Procedure Code, the Law on Police, the Statute of Police Officers, the Law on the Carry Out of Punishments, the Law on the Security of State and Job-Related Secret Information, the Law on Access to Information. All these draft bills were submitted to the Parliament by the Government in the fall of 1999, except for the Law on the Security of State and Job-Related Secret Information, which was introduced in the Parliament in 1993, and for the Statute of Penitentiary Staff, which had not yet been submitted to the Legislative at the end of 1999.

In the first part of 1999, APADOR–CH was involved in a working group co-ordinated by the Centre for Legal Resources, which included NGO representatives and experts. The group sent its comments and suggestions to the Ministry of Justice before the latter completed the draft bills — in particular the Penal Code, the Penal Procedure Code, the Law on the Carry out of Punishments — and submitted them to the Government. The contents of the draft bills introduced in the Parliament as Government initiatives prove that some suggestions of the working group were taken over by the Government while others were not.

APADOR–CH also commented on the draft bills submitted to the Parliament and disseminated these comments to the members of the specialised commissions.

On the other hand, APADOR–CH disseminated its materials to other non-governmental organisations involved in one or several of the fields approached by the draft bills and asked them to support the association's opinions — fully or partially — if they embraced them, by means of letters to or direct contacts with MPs.

The draft bill on the freedom of religious denominations is a unique case. When the draft bill was submitted to the Parliament, APADOR–CH issued a press release commenting on the chapter that regulates the establishment and running of religious associations. The association also initiated contacts with representatives of religious denominations and associations in Romania, as well as with international organisations involved in the field of freedom of conscience and religion, in order to establish a common strategy.

The 1999 APADOR–CH annual report is structured on chapters. The Law on Police and the Statute of Police Officers are commented upon in the chapter on Police, the Law on the Carry Out of Punishments and the Probation — in the chapter on penitentiaries, and the Law on Religious Denominations, in the chapter on religious denominations.

The annual report presents summaries or excerpts of the association's comments on most draft bills.

The Government chose to divide the draft bill for the modification of the Penal Code into two:

a) the text entitled “Draft Bill Aiming to Synchronise Some Provisions of the Penal Code and of the Penal Procedure Code with Resolution 1123 (1997) of the Council of Europe” deals with the articles that incriminate same sex relations, criminal offences against dignity (insult, libel) and crimes against authorities (offence against authority, outrage);

b) the second text — “Draft Bill for the Modification and Completion of the Penal Code” — deals with the other articles of the Penal Code.

The first draft bill maintained insult as a criminal offence (Art. 205) but eliminated punishment by detention; libel (Art. 206) was maintained; only the terms in prison were lowered (2 months to 2 years as compared to the current 3 months to 3 years).

APADOR–CH urged the Legislative to repeal both articles. “Sedition” must trigger civil rather than criminal liability, and only if bad faith can be proved.

The draft bill did not modify the offence named “dissemination of false information” (Art. 168/1: “The communication or dissemination, by any means, of false news, data or information, or forged documents, if the deed is liable to jeopardise state security or Romania's international relations, shall be punished by prison from one to 5 years.”). Although the text makes no explicit reference to the mass media, it is obvious that the journalists run the highest risks, because, given the nature of their profession, they “disseminate” “... news, data or information, or documents”.

APADOR–CH strongly believes that this article must be eliminated, because its broad scope allows value judgements to fall under the incidence of this article. Moreover, the minimal guarantee — the possibility to establish the journalist's good or bad faith — is missing.

APADOR–CH also considers that Art. 236 (which punishes “any show of contempt for Romania's symbols” or for the “emblems and signs used by the authorities”) should be repealed, as respect for symbols or emblems cannot be gained through fear of sanctions. Other countries (i.e., Germany or the United States) hold that attacks against national symbols are part of freedom of expression and must not be punished.

The association also declared in favour of the modification of Arts. 166 and 317 (“propaganda in favour of a totalitarian state” and “nationalist-chauvinistic propaganda” respectively), advocating for the introduction of a condition, namely the existence of a genuine threat that such ideas, concepts or doctrines might be actually put into practice.

It should be mentioned that the draft bill proposes the repeal of Art. 200 (same sex relations), Art. 238 (offence against authority) and Art. 239 paragraph 1 (verbal outrage). The association has been advocating for these changes for many years.

APADOR–CH prepared extensive comments on the second draft bill for the modification of the Penal Code. The most important issues are as follows:

— APADOR–CH advocates for the elimination of criminal liability of legal entities: on the one hand, according to the current principles of criminal law, criminal liability is individual and the legislation in force provides for enough means of triggering the criminal (and civil) liability of natural entities; on the other, the sanctions proposed by the draft bill (Art. 51/2) seriously jeopardise freedom of association;

— a matter of serious concern, which runs counter to the Romanian Constitution and to the international documents ratified by Romania, is that Art. 52 defines the punishment and its purpose as “a means of constraint, the nature of which shall subject the convict to physical or moral suffering, as well as a means to re-educate the perpetrator.” (emphasis added). The compulsory infliction of physical and moral suffering during the carry out of punishments is unacceptable. According to the constitutional provisions and to international documents, it is forbidden to inflict physical pain, whereas the mental suffering that may occur in detention can by no means be regarded as the purpose of punishment;

— the draft bill does not propose the modification of Arts. 64, 65 and 71 that provide for the limitation of certain civil and political rights. In the opinion of APADOR–CH:

a) the overall denial of the right “to elect and to be elected” (Art. 64 letter a) is unjustified. While the exercise of the right to be elected can be temporarily restricted, there is no reason why the right to elect should be. The convicts must be able to exercise their right to vote as any other citizens;

b) the denial of the right “to profess” (Art. 64 letter c) (namely the occupation exercised at the time when the offence was perpetrated) is preposterous, because it actually forces the convict to train for another profession;

c) the denial of parental rights (Art. 64 letter d) should be restricted to cases in which the victim of the crime was the minor child of the convict or another minor child;

d) if all sentences to terms in prison of 2 years or longer allow for the application of the additional punishment consisting of denial of certain rights (Art. 65) for up to 10 years, the exercise of fundamental rights is actually denied to most of the persons sentenced to prison in criminal cases;

e) according to Art. 71, the restrictions provided by Art. 64 are effective throughout the whole term in prison. Still, Art. 49 of the Constitution provides that “the restriction shall be proportional with the extent of the situation that determined it and may not infringe upon the existence of the respective right or freedom”.

APADOR–CH advocated for the elimination of Art. 71 and the modification of Art. 66, according to which the denial of one or several rights is a punishment ordered and motivated by the court, effective throughout the term served in prison and/or afterwards.

— Art. 90/1 provides for the possibility to replace criminal liability with administrative liability, if the deed poses “a minimal threat”; this measure can be ordered “during the criminal investigation and during the trial”. APADOR–CH believes that only the court should be entitled to make this decision and not the criminal investigation bodies, because the court is the only instance that can pronounce a person guilty or innocent;

— Art. 99, in its new version, lowers the age of criminal liability from 14 to 13 years. By way of correlation, the draft bill proposes that the age of presumed legal capacity be lowered from 16 to 15 years. APADOR–CH asks that the current age limit be preserved, especially as in civil law the minimal age of limited capacity is 16. There are no grounds to institute different ages of legal capacity: 16 for civil law and 15 for criminal law;

— the project does not propose the modification of Art. 152 (“deed perpetrated in public”). APADOR–CH requests that the text of the article currently in force be modified, because it allows for many possibilities of interference with privacy. APADOR–CH suggests an all-encompassing definition, such as “in a place which, by its nature or destination, is always accessible for the public, if two or more persons are present”;

— the draft bill does not set out to modify the articles that define offences against national security and maintains a vague, too broad wording (“liable to weaken state power”, “liable to jeopardise, by any means, the national security” or “other documents and data”, etc.); thus, criminal prosecution cannot fulfil the requirement of predictability;

— the draft bill introduces Art. 261/1 (“tampering with the activity of the judiciary”); in practice, the article allows criminal investigation bodies to gain access to all the data and documents owned by natural or legal entities, including unrestricted access to their premises, and completely ignores the confidential nature of the work of certain professional categories (journalists, doctors, lawyers, priests, etc.). APADOR–CH holds that this article is unconstitutional, because it violates and denies the right to privacy and the inviolability of domicile.

a) the double role of the prosecution is preserved: they are bound by law “to gather evidence with a view to learning the truth and to clearing up the case under all aspects”, for which reason they “gather evidence both in favour and against the accused or the defendant” (Art. 202). It is obvious that the same person cannot play both roles at the same time. Once the criminal investigation begins, the pertinent bodies have expressed their subjective view, namely that the accused is guilty.

Until this aspect is regulated by law, APADOR–CH suggests that these bodies should be bound by law to record all the information in favour of the accused/defendant they come across; intentional failure to observe this provision should be regarded as a criminal offence;

b) the appointment of a judge invested with competencies during the criminal investigation is welcome, in the opinion of APADOR–CH, but it raises questions related to the assignment of competencies. According to the draft bill, the prosecutor is the one that supervises and controls the investigation conducted by the police. The association believes that the prosecutor should only be competent to decide on the prosecution of a person, while the judge invested with competencies during the criminal investigation should supervise and control the investigation, being entitled to order the carry out of any investigation he deems necessary. This is the only way to guarantee to a satisfactory degree the well-foundedness of measures taken and acts issued during the criminal investigation.

— the draft bill does not set out to modify Art. 19 paragraphs 2 and 3 and Arts. 20 and 22, which subordinate the civil suit in a criminal trial to the course and the results of the latter. The current system, based on the principle “the criminal suit replaces the civil suit”, violates Art. 21 of the Constitution and Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees free access to justice of any persons that claim a civil right;

— Title II, Chapter I (that regulates the activity of military courts) has not been modified. APADOR–CH strongly supports the continuation of the reform process that began by the elimination of the military department of the Court of Justice, namely the elimination of all military courts, which would involve a substantial change of Law No. 54/1993 on the Organisation of Military Courts and Prosecutor's Offices. The association considers that maintaining military courts amounts to a violation of the principle of separation of powers in the state, as these judges are subordinated to the executive based on the military hierarchy;

— the draft bill does not modify Art. 64 (“means of evidence”). APADOR–CH considers that it is necessary to introduce among the means of evidence the hearing of law enforcement officers (police officers or other categories) that have documented the perpetration of a crime, based on the principles of cross-examination and equal arms;

— the draft bill introduces new texts related to the wiretapping of calls and communications. APADOR–CH considers that Art. 91/1 must be improved as follows:

— the phrase “unless otherwise provided by law” which appears at the end of paragraph 3 must be eliminated, in order to limit the wiretapping period to a maximum of 30 days, so that to prevent the extension of this period by means of a special law;

— paragraph 3 should be completed by “and will indicate the person whose calls or communications are intercepted and recorded, as well as the topics of the calls and communications subjected to these activities”. The possibility to intercept the calls or communications of other persons that use the telephone under surveillance (family, colleagues) will be thus eliminated and the constitutional right to privacy of communications restricted as little as possible;

— Art. 91/1 should be supplemented with a final paragraph that reads as follows: “The interception and tapping of a person's calls and communications shall be authorised only once during the criminal investigation conducted in a particular case”;

— Art. 100 (searches): APADOR–CH requests the elimination of paragraph 2, which provides for an exception to paragraph 1 and entitles the prosecutor to order a search “in well-grounded cases of emergency”. Inviolability of the domicile is a fundamental right and it should be up to the judge to restrict this right, irrespective of the stage reached by the criminal trial. Moreover, paragraph 3 provides that the search can be conducted even in the absence of a warrant issued by the judge with competencies in the criminal trial in cases of flagrante delicto, therefore a new exception to the rule is unnecessary;

— the draft bill does not eliminate the provision of Art. 103 according to which “a search started between 6 a.m. and 8 p.m. can be continued during the night”. APADOR–CH asks for the elimination of this text which runs counter to Art. 27 paragraph 4 of the Constitution (“searches during the night shall be prohibited, except in cases of flagrante delicto”). The exception — cases of flagrante delicto — is already provided by Art. 103, therefore no other exceptions to the constitutional provisions are admissible;

— the draft bill adds a new paragraph to Art. 111, according to which the remises of public institutions can be searched and their documents seized “also during the night”. On the basis of the same Art. 27 paragraph 4 of the Constitution, APADOR–CH asks for the elimination of this paragraph, as the Constitution makes no distinctions function of the place to be searched;

— Art. 148 (cases in which the defendant can be arrested) has been partially modified. APADOR–CH asks for:

— repeal of letter a, as the lack of evidence needed to establish the identity or domicile of the accused cannot justify deprivation of liberty;

— repeal of letter d, because the evidence against the accused must exist before someone is deprived of liberty. Moreover, any relative or friend of the person held in custody has the opportunity to tamper with the means of evidence;

— repeal of letter f, as the relapse cannot justify deprivation of liberty; relapse is merely a circumstance taken into consideration when establishing the punishment;

— repeal of letter g, because, same as relapse, aggravating circumstances are mere occurrences the court of law must take into account;

— repeal of letter h, which actually allows for the arrest of any person suspected of having committed a criminal offence punished by law whose sentences exceeds a certain threshold. The “threat to public order” is a condition that cannot be actually proved; hence, it is ignored in practice. The situation provided for under letter e (when “the information held reveals the need to prevent the perpetration of another crime”) is sufficient;

— erasement of letter i (newly introduced in the draft bill), as its text overlaps the provisions of letter e.

APADOR–CH wishes to point out that the circumstances under which deprivation of liberty is permitted are listed explicitly and limitatively in Art. 5 of the European Convention and that the Romanian law cannot depart from the provisions of the Convention.

— Art. 155 (extension of the arrest period during the criminal investigation) and Art. 160/2 (holding the defendant in custody during the trial) should be modified, in the opinion of APADOR–CH, so as to allow for extensions or for maintaining the defendant in custody only if new elements occur as compared to the state of facts existing at the time of arrest. This condition results from the case law of the Strasbourg Court;

— although it appears in a modified form, Art. 172 paragraph 4 maintains the provision that any contact with the legal counsel can be forbidden for up to 5 days. APADOR–CH asks that this text be eliminated, as both Art. 24 of the Constitution and Art. 6 letter c of the European Convention guarantee the right to defence without exception;

— Art. 183 (subpoena) paragraph 2: APADOR–CH advocates for the introduction of a list of situations when a subpoena can be issued and for the elimination of the last part of paragraph 4, more specifically of the following text: “... or, if it is not possible, within 24 hours”. The person for which a subpoena was issued must be heard immediately, as paragraph 3 implicitly provides. The hearing can by no means take place “within 24 hours”, because it would amount to deprivation of liberty and would unlawfully exceed the bounds of the subpoena;

— the draft bill introduces “Title VI — Provisions related to the investigation and prosecution of legal entities”. Having proposed above that such crimes be eliminated from the Penal Code, the association asks that this chapter be dropped.

Other suggestions made by the association refer to the newly introduced provisions related to “investigators under cover” (Art. 224/1-224/5), to the possibility to lodge a complaint against the measures taken and actions carried out during the criminal investigation by criminal investigation bodies (Arts. 275–278, modified by the draft bill), to the procedure before the court (Arts. 295, 304, 319, 327 — unmodified), etc.

3. The draft bill on the security of state and job-related secret information

Submitted to the Senate as far back as 1993, this very disputed draft bill was adopted in 1996 and submitted to the Chamber of Deputies, according to the rules of procedure. In 1998, the Government submitted to the Chamber of Deputies a new version, titled “Law on the Security of State and Job-Related Secret Information”. Although it does modify, to some extent, the draft bill adopted by the Senate, this draft bill does not solve the basic issues that have been raised for years by non-governmental organisations and even by some parliamentarians.

At the end of 1999, the Committee for Defence, Public Order and National Security and the Legal Committee for Discipline and Immunities of the Chamber of Deputies released a joint report on this draft bill. The result was a combination between the text adopted by the Senate in 1996 and the Government proposal, the latter taking precedence in most matters.

a) APADOR–CH reaffirms that the issues related to state secrets should have been regulated after or, at least, concurrently with a law on access to information. As the latter is missing, the constitutional guarantee provided by Art. 31 of the Constitution does not function;

b) the association stresses again that the job-related secret must not be regulated by law (either by this one or another), that it is up to the management of each legal entity to establish the categories of information, documents, data, etc. classified as job-related secrets;

c) the legal regulations related to the state secret can be applied to private legal entities only if they are under contract with state institutions directly involved in the field of national security and only in matters related to the actual object of those contracts;

d) the competencies granted to the Romanian Intelligence Service (Romanian acronym SRI) exceed by far the limits established by Law No. 14/1992 on the organisation and functioning of this institution;

e) the association notes that, same as the previous ones, the new version does not ensure the free access to justice of legal (or natural) entities that consider that the authorities have violated their right to access to information.

— Art. 7 lists the categories of state secrets. Some of them can indeed be labelled as such. Still, letters f) and g) include the activity, means, methods, technique and equipment of “public authorities involved in intelligence work”, that is, SRI, SIE (the Foreign Intelligence Service), SPP (the Watch and Guard Service), STS (the Special Telecommunications Service) and the intelligence departments with the Ministry of Interior, the Ministry of National Defence and the Ministry of Justice, eliminating the possibility to exercise democratic control over the activities of these bodies/structures. Letters h) and i) define as state secrets maps, topographic plans, air surveys, geological surveys, gravimetric measurements, etc. “by means of which the national reserves of metals and rare, precious, disperse and radioactive ore are assessed”, which is preposterous, as the hundreds of satellites in orbit can gather almost all this information. Letter j) includes “scientific, technological activities... related to national security or defence or which present special importance for Romania's economic, technical and scientific interests”. Definitions should be clear and limitative in such a draft bill. Actually, such general terms exceed by far the field of natural security, national defence and the state secret. Letter m) — “foreign relations and activities of the Romanian state, which, according to the law, are not meant to be made public”; as neither this law nor others make reference to this topic, it follows that any information from this field can be blocked in accordance with this text. Letter n) — “other fields established by law” — has been introduced at the end of Art. 7. The question is, what law is that? One may infer that (a) future law(s) might add new categories of secret information to the 14 already listed in this draft bill;

— Art. 8 introduces a new classification of state secret information into three categories: “top secret of special importance”, “top secret” and “secret”, which increases the confusion, as these notions are not defined, the sanctions for revealing them are the same, and their recording and preservation follow the same rules. Another adjective used here is “confidential”, but the draft bill does not make it clear if any information, regardless of the category it belongs to, can be labelled as “confidential”. The classification with be established by governmental decision and thus will not be subject to parliamentary approval;

— there are no provisions related to the declassification of state secret information: when they can be declassified, under what circumstances, when they are no longer “confidential”, and, in particular, how one could counteract the decision to classify as state secrets information that do not fall under this category;

— Art. 11 regulates the way public authorities draw up their own lists of state secret information. “The lists... shall be sent both to the units in their suborder and to the Romanian Intelligence Service.” APADOR–CH considers that all these lists of state secret information should be made public, so that each citizen may be informed about what kind of activities each public authority carries out. Thus, no one could be accused of failing to observe a law that turns into secrets even the lists of classified information;

— Art. 19 entitles SRI to check how the legal norms on the security of state secret information are observed and enforced (letter a), to run checks on the persons that will work with state secrets (letters c and d). Letter f) allows SRI to carry out “preliminary acts related to the violation of the norms on the security of state secret information, in accordance with the conditions set by the Penal Procedure Code” (emphasis added). What this actually means is that, in accordance with Art. 224 of the Penal Procedure Code and of Art. 91/1 of the Penal Code, SRI will be entitled to tap phone calls and place a person under surveillance on the basis of a 30‑day warrant (which can be extended for an indefinite number of 30‑day periods), besides the similar warrant SRI can apply for on the basis of Art. 13 of the Law on National Security (a warrant valid for up to six months, but which can be extended indefinitely). In other words, instead of ensuring a better protection against potential abuses perpetrated by the authorities, the draft bill supports the contrary. Letter j) entitles SRI to “apply contraventional sanctions for violations of the norms regarding the security of state secret information”. According to Law No. 14/1992 on the Romanian Intelligence Service, this body is not entitled to apply contraventional sanctions;

APADOR–CH considers that this draft bill violates rights and liberties such as access to information, the free flow of information, freedom of expression, presumption of innocence, access to justice, etc.

This law, adopted in 1991, before the Constitution had come into force, must be urgently and substantially modified. In this sense, three draft bills were submitted to the Parliament in 1998 and 1999, but only one attempted to amend — partially — the fundamental principles on which the protection of national security is founded, while the others preserved almost intact the spirit and the wording of the law currently in force. None of the draft bills has been debated in the Parliament. At the end of 1999, the Supreme Council for National Defence (CSAT) drafted its own version, which should be submitted to the Parliament as the initiative of several MPs.

Constantly concerned with the threats the 1991 law poses to civil rights — the too vague definition of threats to national security, the high number of intelligence services/structures, the practically unlimited number of warrants for phone call interception and surveillance of persons, escaping the control of the judiciary, the victim's lack of efficient legal remedies to protect him/her against potential abuses, etc. —, APADOR–CH has joined efforts with other four non-governmental organisations to prepare a draft bill for the modification of this law. The final outcome was forwarded to a caucus that was supposed to submit it to the Parliament. Unfortunately, this had not happened as of this writing.

The draft bill prepared by non-governmental organisations promotes the following changes:

— a clear definition of each of the categories of threats to national security (the elimination of some of the current definitions and the replacement of others with more precise ones that no longer include phrases and sentences such as “liable to...” or “that might endanger...”, because the threat must be genuine (not a mere supposition);

— judicial control must be instituted both over the issuance and extension of interception warrants as well as over the grounds invoked by intelligence services when they apply for a warrant and the results obtained during the carry out of warrants;

— interception warrants should be limited to 6 months, with only one 3‑month extension, if necessary;

— the persons placed under surveillance must be entitled to be informed about this when the warrant has expired and to institute proceedings if they consider their rights have been violated.

Other articles refer to the limitation the number of intelligence services/structures, to the civil control to be exercised over them, to a reasonable degree of transparency related to the activities of these services/structures, etc.

II. THE POLICE: LEGAL FRAMEWORK, THE SITUATION IN POLICE LOCKUPS, INDIVIDUAL CASES

The year 1999 witnessed the first actual legal steps towards the change desired by human rights non-governmental organisations, namely toward demilitarisation of the police. In fact, the Council of Europe and the European Union strongly advocated, in their turn, in favour of this measure.

The draft bill for the modification of Law No. 26/1994 on the Organisation and Functioning of the Police and the draft bill on the statute of police officers, in particular — both submitted to the Parliament (the Chamber of Deputies) in the fall of 1999 — prove that the intention to demilitarise the Romanian police has left the declarative stage. What is left to be seen is how fast the Parliament will adopt these laws, which are paramount to the protection of civil rights. According to the Minister of Interior — Constantin Dudu Ionescu — and to the report of the Ministry of Interior to the Council of Ministers of the Council of Europe, demilitarisation will be completed in stages by the year 2005.

In 1999, APADOR–CH established a permanent collaboration with the Criminal Investigation Department (Romanian acronym DCP) with the General Police Inspectorate, which granted the association permission to visit police lockups. The association was asked to comply with three conditions: a) not to discuss with the detainees the legal aspects of their detention; b) to announce DCP whenever it paid a visit to a police lockup; c) to be accompanied on each visit by a DCP representative. APADOR–CH complied with the last condition on the occasion of its visits to the Bucharest, Ploiesti and Campina lockups. On the other occasions, the association went on fact findings during which it also covered other issues on the association's permanent agenda: visits to penitentiaries, investigation of individual cases reported to the association, etc. The logical situation that was worked out was that on their visits to police lockups in localities other than Bucharest the APADOR–CH representatives would be accompanied by a representative of the local County Police Inspectorate, usually the chief of the Criminal Investigation Department. Still, in December 1999, following an article printed in the French daily “Libération” following a two-hour interview with the APADOR–CH president, where the author presented only the aspects he considered most interesting and shocking about the Romanian police, the General Police Inspectorate retorted by deciding that the association's representatives would from then on have to announce their schedule of visits to police lockups long before and to be accompanied by an officer representing the DCP with the General Police Inspectorate. It is obvious that, on the one hand, APADOR–CH does not find it suitable for a DCP representative to be informed on all the organisation's actions during a fact finding mission — including those that do not concern the police directly; on the other hand, fact findings cannot be organised function of the IGP representatives' schedule. APADOR–CH hoped that these differences will not jeopardise the good working relationship established by the association with IGP prior to December 1999.

As mentioned before, two important draft bills are on the agenda of the Chamber of Deputies. APADOR–CH strongly believes that they are of utmost importance in order to synchronise Romanian norms with European standards; still, it has expressed some objections and suggestions.

1.1. The draft bill on the modification of Law 26/1994 on the Organisation and Functioning of the Romanian Police

The newly introduced Art. 7/1 provides, under paragraph 2, that the “orders of ranking superiors... regarding the solution of criminal cases shall be laid down in writing and cannot run counter to those established by the magistrate” (emphasis added). It is obvious that this provision runs counter to the Penal Procedure Code, as the prosecutor is currently the only one entitled to supervise the way criminal investigation bodies within the police discharge their duties. Therefore, ranking superiors cannot give orders related to the solution of criminal cases. APADOR–CH asks that paragraph 2 be eliminated.

Paragraph 3 of the same article is an absolute novelty in the field, in the opinion of APADOR–CH: according to it, the cases with unknown authors can be transferred to the passive records “by common order of the Minster of Interior and of the General Prosecutor with the Supreme Court of Justice”. The cases with unknown authors are frequent in the activity of all police forces in states with well-founded democratic systems. As far as APADOR–CH knows, France is an example of efficiency in solving their cases, with almost 50% percent of cases solved. The Netherlands, often invoked as a model, solve about 30-35% of their cases. The existence of cases with unknown authors does not mean the police are inefficient; it actually indicates they are careful not to wrongfully charge innocent people with someone else's deeds. APADOR–CH considers that, although the intention to ease the pressure constantly born on Romanian police officers to solve as many cases as possible is praiseworthy, it should not take decisions of the Minister of Interior and of the General Prosecutor to transfer cases with unknown authors to the passive records. The police officer who investigates a case should propose its transfer to the passive records, the final say in this sense being his ranking superior's. Only in serious cases with unknown authors should the decision be made by the chiefs of local police departments or by chief inspectors at the county level.

Section III (Arts. 14/1–14/4) regulates a completely new institution, the Police Authority, an instrument by means of which the civil society monitors the activity of the police. Its competencies are listed under Art. 14/2. Letter e) authorises the institution to “take the necessary steps in order to solve the complaints that refer to violations of fundamental human rights and, if the deeds are not crimes or offences, to refer them to the Ombudsman to be solved, according to the law”. It is not clear what the role and powers of the Police Authority are. Apparently, its role will be confined to refer cases of human rights violations to the Prosecutor's Office (or to the judge in charge of criminal investigations) or to the Ombudsman, whose competencies are so restricted that it goes without saying that this latter institution will not be able to remedy the damages suffered by victims.

APADOR–CH believes that the police authority should be entitled to conduct its own investigations, to hear the alleged victims and the police officers involved and to propose the sanctions to the police officials, except for criminal cases, which should be referred to the competent bodies.

Art. 14/6 paragraph 2 of Section IV provides for the possibility to set up new police units, stations or precincts upon agreement with the county or local councils, which will make available the necessary premises.

APADOR–CH considers that, having in view the current trend towards decentralisation, the new police units, stations or precincts should be set up at the request of county and local councils, which are more familiar with the communities' needs.

Art. 14/8 provides that “territorial police units shall co-operate with the local councils and townhalls to carry out the latter's written orders and decisions... in the field of public order”. APADOR–CH considers that the police should not “co-operate” to “carry out orders” but simply carry out orders.

The police duties as listed under Art. 15 paragraph 1 of Law 26/1994 are modified by the draft bill. Most modifications are welcome, with the following specifications:

— having in view the latest discussions on the role of the gendarmerie, it would be advisable for all competencies related to the defence of public order and peace to be taken over by this institution. Therefore, letters b), c) and d) of the current draft bill should be modified;

— to letter t) (“carries out any other duties provided by law”) the draft bill added “decisions of the Government and of the Supreme Council for National Defence”.

As the decisions of these two institutions are not subject to any kind of control, APADOR–CH fears that the police might act function of momentary political interests. The association asks that letter t) be preserved as it appears in the current Law No. 26/1994.

APADOR–CH notes that letter b) (“leading” to the police station) is preserved, although Art. 23 of the Constitution provides that the only form of deprivation of liberty in the absence of a warrant is the 24‑hour police custody. The “leading” to the police station for up to 24 hours is also a form of deprivation of liberty, and the “observance of the right to defence” included in the draft bill does not solve this stray from constitutional norms. APADOR–CH strongly advocates for the repeal of the “leading” to the police station. A person can be deprived of liberty only if serious evidence or indications prove that he/she has committed a criminal offence. Under such circumstances, the police can resort to the police custody order, a measure that complies with constitutional norms. APADOR–CH suggests that the police custody order be issued as soon as serious evidence or indications prove the perpetration of a criminal offence, but that the first statement of the person held in police custody should be made only in the presence of a lawyer.

Letter i) (controls and raids) has not been modified, although numerous cases of abuses have been reported during such police actions. This has been possible exactly because there are no clear regulations regarding the organisation of controls and raids. Obviously, a law must not go into the minutest details, but it must be clear enough not to leave room for such abusive interpretations.

Art. 19 (use of weapons) has been modified; the list of situations when the police can resort to this extreme measure has been eliminated. The draft bill specifies only that weapons can be used “in accordance with the law”, which probably refers to Law 17/1996 on the use of fire weapons and ammunition. Art. 47 of this law lists ten situations when fire weapons can be used, twice more than Law 26/2994. APADOR–CH has constantly stressed that police officers should be entitled to resort to fire arms only in two situations: a) when their lives and the lives of others are in imminent danger; b) if the person to be arrested resists by making use of a fire weapon. All the other situations listed in Art. 47 of Law No. 17/1996 (“posing a threat to a guarded objective/target”, “persons that enter or exit illegally guarded areas or premises”, “groups of persons or persons that unrightfully try to enter the premises of public authorities and institutions”, etc.) cannot be invoked to justify the use of fire arms. Also, APADOR–CH considers that the use of fire arms against those who try to escape from a crime scene is unacceptable, because it has been proved that in most cases no lives are endangered. On the other hand, such an extreme measure does not observe the principle of proportionality.

APADOR–CH strongly advocates in favour of limiting the number of situations when police officers are entitled to make use of fire arms to the two cases mentioned above.

APADOR–CH suggests that the phrase “side arms” used in paragraph 1 be replaced by “means for prevention and neutralisation provided under Art. 18 paragraph 1”.

The newly introduced Art. 32/1 authorised the police “to use informers and police officers under cover... in order to prevent and fight crime, as well as to ensure public peace and order” (paragraph 1); “in order to prevent and fight organised crime” the police can “set up... legal entities...” (paragraph 2).

a) if the informers become legal, this will revive the suspicions that used to poison the Romanian society during the communist regime. Police forces all over the world use informers to solve particular cases. This method is not and should not be generalised;

b) in order to defend public peace and order, the police has to be visible to discourage potential perpetrators. The use of informers and police officers under cover for this purpose would be unjustified;

c) the idea of setting up fake legal entities is very dangerous; it can have negative effects over the non-governmental field and especially over the business environment, by creating a state of general mistrust.

The association requests that paragraph 1 be modified by eliminating the word “informers” and the phrase “in order to ensure public peace and order”; paragraph 2 should also be repealed.

The newly introduced Chapter V/1 regulates the financial and logistic endowment. APADOR–CH suggests that Art. 45/1 paragraph 3 should be completed as follows: “Medical assistance for the police staff shall be ensured by doctors and medical assistants hired especially for that purpose. The police staff will resort to the medical body in charge of the state of health of persons detained in police lockups only in cases of emergency.” The association feels compelled to suggest this because, although currently this medical body is small, it has to look both after detainees and the police staff, failing thus to deliver quality medical services.

Having in view the transparency that should characterise a democratic police, APADOR–CH proposes that the detailed budget of the General Police Inspectorate be made public each year.

The statute of police officers is a law that should have been adopted as far back as 1994. After repeated postponements and reviews, the draft bill was submitted to the Chamber of Deputies on 2 November 1999, together with the draft bill for the modification of Law 26/1994 on the Police.

APADOR–CH wishes to draw attention to an inconsistency: although, according to the Statute, the highest police rank is “General Quaestor”, both the Statute and the draft bill for the modification of the Law on the Police use several times the title “General Police Inspector”.

The draft bill establishes clearly the rights and duties of police officers and unequivocally states the demilitarisation of police. Still, in the opinion of APADOR–CH, some articles should be modified.

Thus, Art. 33 paragraph 1 of Chapter III, Section 1 — The rights of police officers — provides for financial support in terms of “long-term credits with minimum interest, in accordance with the law” for police officers up to 35 years of age who want to buy or build a residence. Given the substantial incentives provided for the police officers' accommodation in rented houses under Art. 30, APADOR–CH considers that such support for buying or building a residence is exaggerated. In order to avoid any suspicion — based, among others, on the fact that police officers have obtained preferential credits anyway — APADOR–CH asks that Art. 33 paragraph 5 be eliminated.

Art. 46 letter b) of Section 2 — The duties of police officers — forbids police officers “to receive complaints that they are not competent to solve or that they have not been assigned to by a higher ranking officer...”. APADOR–CH has learned of many cases where the persons who reported to the police station to lodge a complaint — especially in the evening or during the night — were either turned down or asked to return the next day, on grounds that “the chiefs were not there”. The association believes that police officers should be bound by law to receive any complaints, regardless of the time of day or night, to file them and submit them to the higher ranking officers as soon as the latter arrive at the police station. The superiors will decide immediately who to assign to the case. The police officer who refuses to receive a complaint should even be sanctioned, because they are serving the citizens and not vice versa.

Art. 49 paragraph 3 letters d and e of Section 3 — Restriction of rights and freedoms — institute excessive limitations of freedom of expression. Personal opinions cannot and must not be subjected to censorship, even if they run counter to the institution's interests or are “calumnious”. Any criticism expressed by a police officer against his superiors or against the methods employed by the institution could easily be interpreted in the sense of letters d and e. Such restrictions of freedom of opinion can be understandable only in the case of a strict military discipline, which cannot be the case of a demilitarised institution. APADOR–CH urges that letters d and e be eliminated.

Art. 49 paragraph 4 allows, in principle, police officers to present in public information and data and to comment on them. Still, the second part of this paragraph is so restrictive that it actually prevents the exercise of this right. It is no longer clear what exactly a police officer has the right to say in public, except, maybe, for very general and ordinary aspects of police activity.

Art. 50 stipulates the situations when a police officer can be transferred to a different locality. Letter f mentions the situation when “the police officer's image is tainted in the locality where he/she works”. APADOR–CH considers that a “tainted image” is a matter that regards the police officer's relationship with the members of the local community. In many cases documented by APADOR–CH, especially in the countryside and in small towns, whenever the police officers' image was tainted, their relationship with the locals was strained. It was not a matter of the citizens being partial, but rather the police officers' behaviour was incompatible with their position as defenders of the law. If such police officers are transferred to another police station, the problem is not solved, it merely changes place with them. Whenever the relationship between police officers and the community members is tense, APADOR–CH urges the General Police Inspectorate to investigate the case and determine whether the police officers should not be discharged from the force.

Chapter IV Section 2 deals with liabilities and sanctions. Art. 59 and Art. 61 employ the phrase “intentional” in connection with “failures to carry out duties” (Art. 59) and “violations of discipline”. If the term “intentional” was used with the meaning assigned by the definition provided in Art. 17 of the Penal Code, it does not find its place in the two articles of the Statute, because the failure to carry out duties and strays from the discipline refer to internal regulations of the institution. If intention refers to criminal liability, the use of this term is redundant, as a deed perpetrated unintentionally does not fall under the incidence of criminal law. APADOR–CH considers that this word must be eliminated from Arts. 59 and 61.

Art. 60 exonerates the police officer who “by discharging his/her duties in accordance with the law has injured or caused pain to certain persons or has prejudiced their patrimony”.

APADOR–CH believes that Arts. 44, 45, 47 and 51 of the Penal Code, which refer to the circumstances that eliminate the criminal character of a deed, are all-encompassing and valid for all the citizens, irrespective of their profession. Therefore, police officers do not require special regulations in this sense.

With regard to the material damages caused by police officers to third parties, APADOR–CH suggests to the Ministry of Interior to establish internal procedures to remedy such damages. The third parties will resort to civil courts only when a settlement out of court cannot be reached.

In 1999, the APADOR–CH representatives visited 13 police lockups: 3 in Bucharest (the General Municipal Police Directorate, precincts 12 and 14), and 10 in Baia Mare, Bacau, Campina, Deva, Iasi, Ploiesti, Tulcea, Turnu-Severin and Satu Mare.[1]

Until 1999, police lockups were run by the rules established by means of Order 0410/1974, issued by Emil Bobu, the Minister of Interior at that time. Being a military institution, the police used to abide by these rules, although many police officers regarded them as void.

The association's interviews with police officers revealed that the new Order No. 901/1999 brings about some improvement, the most important being that the client–lawyer relation is confidential and that chains are used only to transport detainees regarded as dangerous. It should be mentioned that, while the old Order was classified as a “state secret”, the new Order is a “job-related secret”. This means that the Order is accessible only to police officers. But this document contains information of public interest, and transparency is the pre-requisite of any legal regulation, according to international law.

APADOR–CH applied to the Ministry of Interior for a copy of this document, but got no reply as of this writing.

APADOR–CH has permanently pointed out the unconstitutionality of this form of deprivation of liberty of up to 24 hours, provided by Art. 16 letter b) of Law No. 26/2994 on the Police. The Romanian Constitution provides under Art. 23 that the only form of deprivation of liberty in the absence of a warrant is the 24‑hour detention in police custody. Apart from the detention in police custody, regulated by the Penal Code and by the Penal Procedure Code, the leading is a measure left up to police officers by means of which they can deprive a person of liberty for an additional 24‑hour detention, for which there are no legal procedures. Art. 16 letter b) provides only that the persons suspected of having jeopardised “public order, the lives of persons or other social values” “whose identity could not be established” must be led to the police station.

The police officers APADOR–CH talked to — including high-ranking officials with County Police Inspectorates — state that:

a) the “leading to the police station” is merely an administrative measure, not a form of deprivation of liberty;

b) Art. 16 letter b) involves two conditions that must be fulfilled at the same time (a person should be suspected of having committed a crime/offence and have no identity papers), as, according to the Law on Population Records, Romanian citizens must have their identity cards on them at all times. In other words, anyone can be asked by any police officer to present one's I.D. at any time, anywhere, and, if one fails to do so, can be led to the police station and detained there for up to 24 hours, even if one cannot be charged with any crime.

In the opinion of APADOR–CH, the first argument is quite frail, as a person that cannot leave whenever he/she wants is obviously deprived of liberty. The association believes that Art. 16 letter b) must be repealed and that the only legal form of deprivation of liberty without an arrest warrant should be the 24‑hour detention in police custody. To put it differently, no one should be deprived of liberty, not even for one minute, unless there are serious grounds to believe that the person has committed a crime. The mere fact that a person fails to show an identification cannot be a reason strong enough to be led to the police station.

The second argument invokes the Law on Population Records (No. 105/1996) and the Law on Police. It should be mentioned, however, that the former lists a number of contraventional sanctions, none of which refer to the situation when a person does not have the identity card on him/her. It is therefore clear that the two conditions of Art. 16 letter b) must be fulfilled at the same time. It is not devoid of importance to mention the mentality of some police officers (in this case, one of the chiefs of the Prahova County Police Inspectorate), according to which a person who walks in the street at night time “legally” does not have to fear a police check-up.

As mentioned before, the procedure to be followed when leading a person to the police station is not regulated by law. As there are no rules — or, if there are such internal regulations, they are not enforced in a unitary manner — each county police inspectorate acts as it deems fit. Out of the 13 lockups visited by APADOR–CH, 5 counties (Satu Mare, Maramures, Mehedinti, Hunedoara and Tulcea) and precinct 12 from Bucharest had “sorting rooms”, that is, a place where persons “led” to the police station are confined.

“Sorting rooms”, situated on the premises of county police inspectorates (Tulcea, Baia Mare — county of Maramures) or on the premises of town police departments, are usually small rooms (about 4 square metres), with one or two benches and a row of bars, guarded by a police officer. The persons have no contact with their family or a legal counsel (cannot make phone calls or contact anyone from the outside by any means); all they can do is wait until their identity is checked.

The county of Iasi is an exception to the rule: both the chief- inspector and the chief of the criminal investigation department declared they did not use this method and had no “sorting rooms”. If a person looks suspect and has no identification papers, his/her identity is checked through the walkie-talkie. If there are clear indications that a person has committed a crime, he/she is immediately taken to one of the two lockups in the county (Iasi County Police Inspectorate or Pascani) and a police custody order is issued.

Another exception — negative, this time — is precinct 14 from Bucharest, where no records are kept of the persons led to the police station and no police reports are drawn up. In other words, a person deprived of liberty for several hours (up to 24) cannot prove it. This situation seems to be unique, at least by comparison with the other lockups visited by APADOR–CH, where the association's representatives saw at least an evidence of the persons led to the police station and/or reports drawn up by the police officers who brought them in.

Art. 6 paragraph 4 of the Penal Procedure Code stipulates that “any party has the right to be assisted by a legal counsel throughout the penal procedure”. The management of the General Police Inspectorate assured the association that the presence of a lawyer is compulsory at the time when a person deprived of liberty gives the written statement preceding the issuance of a police custody order.

Still, many detainees from police lockups complained they had had no legal assistance at that time (12 precinct Bucharest, the General Police Directorate of Bucharest, Iasi County Police Inspectorate, Bacau County Police Inspectorate). In Hunedoara, the police officers declared that the presence of a lawyer “was not compulsory” and that such measure would represent a violation of the laws currently in force.

It should be mentioned that most of the persons who were assisted by a lawyer declared the latter had not stepped in at all during the procedure; most lawyers simply signed for presence. Some lawyers even prompted their clients “to admit to everything, to make things easier for themselves”.

In April 1999, the General Police Inspectorate sent to APADOR–CH a letter registered under No. 10482, informing the association that they had ordered that all police lockups post in full view lists of ex officio lawyers, their schedules and contact information. With one exception (the Campina lockup), none of the lockups visited by APADOR–CH has posted these lists. They do exist, but are kept locked in drawers.

APADOR–CH has noted that most police officers (except for an officer from the Dolj IPJ) believe that legal counsels are under the obligation “to contribute to learning the truth”. What truth, whose truth? Obviously, it is the investigator's duty to gather evidence in order to prove the defendant guilty, and the lawyer's, to defend. In other words, the court will have to weigh the arguments in favour and against and to establish the legal truth, which can be different from the actual truth, function of how strong the evidence is. APADOR–CH has constantly stressed that the evidence must be gathered before a person is arrested, not vice versa, as it often happens, especially in cases of theft or robbery.

The lawyer has the clear role of defending the client. Therefore, he/she must consider all opportunities that would help the client be acquitted or the deed look less serious, which is impossible in the presence of the investigator or of another police officer. This is how things used to stand until August 1999, when the new Order 901/1999, which ensures the client-lawyer privacy, came into force.

Still, most persons detained at the Iasi, Maramures and Satu Mare IPJs during APADOR–CH's October and November 1999 visits declared their talks with lawyers were attended by police officers who heard the whole discussion. The police officers acted strange, to say the least, and said the lawyers should ask to be left alone with their clients. But as long as Order 901/1999 is classified as “job-related secret”, one can by no means expect the lawyers to be familiar with regulations banned to the public. It is therefore the police officers' duty to inform the lawyer and the client that they can avail themselves of this right. A second “reason” was that police stations allegedly lack appropriate facilities for confidential discussions. Therefore, the police officers will hear everything, even if they do not mean to, no matter where the lawyers and clients talk. The solution is simple: the police officer can wait outside, leaving the door open, in order to see but not to hear.

Most counties have up to four lockups. Out of the counties visited by APADOR–CH, only Dolj has four lockups; the others have two or three. The capital city is an exception: out of 23 precincts, 20 have their own lockups. To these should be added the lockup from the General Directorate of the Bucharest Municipal Police (Romanian acronym DGPMB) — where all women held/arrested in Bucharest and the county of Ilfov are brought — and the IGP lockup.

Most lockups are situated in the basements of police stations. Regardless of where they are situated, the windows can only be opened from the outside and are provided with wire netting so thick that neither light no air can go in. In the DGPMB and IPJ Maramures lockups, the cells have no windows at all and the only air vents are the peepholes.

As there is no natural light, most cells are provided with weak light bulbs or neon lights, placed above the door behind a grill.

The rooms are not provided with plugs, so that the detainees cannot use any kind of appliance (electric shavers, radio and TV sets). The explanation was that detainees might destroy them or try to electrocute themselves. APADOR–CH considers that both versions are pretexts and that the police actually believe that a detainee must be isolated from the outside world as much as possible, by denying them the right to information provided in the mass media, hoping that they would co-operate better, in the sense that the former attach to this word. If things stood differently, how could the police explain why battery operated radio and TV sets are banned as well? The only exception to the rule is the IPJ Bacau lockup, where the APADOR–CH representatives saw two TV sets and a stereo. Some lockups are provided with loudspeakers (Campina, Turnu-Severin) and the detainees can listen to broadcasts selected by the lockup management. The APADOR–CH representatives were often assured that all the cells of police lockups would be provided with loudspeakers, as soon as there is enough money for that. How come some lockups have got the money while others have not, as long as the budget is managed from the centre?

In some lockups, the beds and tables are made of stone (IPJ Prahova, where the walls are also very damp, which may represent a health risk for the detainees).

Except for IPJ Prahova, which has its own kitchen, the lockups visited by APADOR–CH are provided with food from the closest penitentiary. The association has repeatedly noted that the quality of penitentiary food is very poor. Therefore, any comments about lockup food are useless. Still, some aspects are worth mentioning:

a) In Bucharest, only two cars carry all the food from the Rahova penitentiary to the 20 lockups, so that the bad quality of food is associated with delays in delivery;

b) all lockups are provided with a refrigerators where the parcels of food from home are kept. The problem is that the food must be taken out of the fridge at 6 a.m. in most lockups, so the detainees must develop the skill to take out only the necessary amount of food, given the poor hygiene in the rooms, where the food can go stale very quickly.

The visited lockups had one or two lavatories. Each consists of one to three seatless toilets and two to four showers (two showers at DGPMB for almost 150 detainees, one shower at IPJ Tulcea for 50 persons, four showers at IPJ Dolj for almost 120 inmates, etc.). It should be mentioned that most toilets cannot be flushed properly and that the detainees have to resort to hoses or plastic bottles to clean them up. Many lavatories are in a bad state: water on the floor, broken showers, no wooden grates, leaking plumbing.

Some lockups do not have the money to provide the detainees with soap and detergent (e.g. DGPMB).

Under these circumstances, it is impossible for the detainees to maintain an acceptable degree of hygiene.

It should be mentioned that in most lockups the shower and sink taps are placed outside the lavatory and can be turned on and off only by the police officers. APADOR–CH believes that this practice, by means of which the detainees depend entirely on the good (or bad) will of police officers with regard to the elementary right to cleanliness, can be labelled as a degrading treatment.

One of the most serious problems in police lockups is related to the way detainees relieve themselves. Except for IPJ Dolj (where 17 rooms out of 31 are provided with seatless toilets with no partition walls), in the other lockups detainees are forced to resort to plastic bottles or buckets. In most cells the air was hard to breathe as a result of the combination between urine, unwashed bodies and no airing. It is inconceivable that thousands of persons are “scheduled” to go out three times a day in order to relieve themselves! Even if there is a “schedule” of emptying “urinals” — also three times a day —, the humiliation suffered by the detainees who are forced to relieve themselves in a plastic bottle or a bucket, in the presence of the other people, is a clear example of a degrading treatment.

The 20 lockups in Bucharest (plus the DGPMB) are serviced by one doctor and four medical assistants. In June 1999, there were about 600 detainees in all Bucharest lockups. It should be also mentioned that the doctor and the medical assistants also tend to the police staff.

According to Order 0410/1974, any person arrested/held in police custody must be examined by a doctor within 24 hours. The new regulations have not changed this procedure. The APADOR–CH representatives were told that all detainees are taken to DGPMB to be examined. If afterwards they require medical attention, the doctor or one of the medical assistants will visit them in the lockup where they are detained.

Still, the APADOR–CH representatives found at the 12 precinct police a person who had been detained for six days without being examined. Another detainee in the same lockup had fits of suffocation and had insisted to be examined by a doctor, which happened two days later.

Some of the women detained at DGPMB complained about the unbearable conditions of detention and about the lack of medical attention (one was a TB patient, two were pregnant and had health problems related to pregnancy).

In the country, the situation is somehow better, at least as far as the number of doctors and medical assistants is concerned.

IPJ Satu Mare has two doctors and two medical assistants that tend both detainees and the police staff. In November 1999, two persons detained for three days had still not been examined by a doctor.

IPJ Tulcea has two doctors. One of them mentioned cases of scab and other skin diseases. “They have brought them from the outside”, said the doctor. Although this might be the case, the APADOR–CH representatives wish to stress again that the hygiene is very poor, which represents a serious threat to the detainees' health. The Tulcea lockup still use cutting the detainees' hair “to the skin” when transferring them to the penitentiary (“for health reasons”, according to the doctor).

All lockups have their own “surgeries” provided with a bed, a table and a chair, but no medical equipment, where the detainees are examined. However, police stations have well-equipped surgeries where detainees are examined only under exceptional circumstances.

Although the doctors who examine the persons arrested/held in police custody must write down in their medical records all their diseases, APADOR–CH has learned of situations when the doctors either ignored certain diseases, either because they regarded them as “inventions” or because the subjects' state of health would not have permitted them to bear detention, or in order to hide the signs of the brutal treatments applied by police officers before the issuance of a police custody order. The case concerning Mr. Nita from Ploiesti is an example for the first two hypotheses: his medical record mentions neither his psoriasis nor the metal rod in his leg, which was so hurtful that he considered surgery to have it removed. APADOR–CH does not understand why the doctor decided not to mention the psoriasis, especially as this skin disease, although hard to treat, is neither mortal or catchy — at least in principle. The second case, which might confirm the third hypothesis, concerns the minor Florin Evelin Grosu (aged 15) detained at IPJ Iasi at the beginning of the month of November 1999. Held in police custody by 5 precinct Iasi with another minor, on 21 September 1999, Grosu said he was forced to lean against the heater while he was being beaten with the night stick, punched and kicked by “a tall lean fair-haired non-commissioned officer”. Brought to the IPJ Iasi lockup, the youth complained about headaches that he had started experiencing after the beating. The medical record mentions the “headache”, but not its probable cause. On 6 October 1999, when the APADOR–CH representatives talked to the minor, he showed them a bruise on his back which could have been the result of the beating taken at the police station.

All the lockups visited by APADOR–CH are provided with walking grounds. The orders — both new and old — provide that all detainees are entitled to spend 30 minutes a day in the open. The walking grounds usually consist of one or several yards no bigger than the cells, with thick iron grills for ceilings. There are no benches, no sports gear, so that all the detainees can do is stand or walk in this small space. Even this half hour is often ignored (at DGPMB, the women are taken out for 15-20 minutes once a week; at IPJ Maramures, the women and the minors had been taken out for a walk the day prior to the APADOR–CH visit, after spending over two weeks in the cells; at IPJ Iasi, the minors had been taken out once for 15 minutes during the 10 days that had preceded the APADOR–CH visit). With one exception (IPJ Maramures), APADOR–CH saw no detainees walking in the yards. “There are too few non-commissioned officers to watch them” was one of the justifications. However, these yards are separated by iron doors from the rest of the lockup and there is no way the detainees could escape.

The right to correspondence of persons detained in police lockups is drastically restricted. Both the old Order 0410/1974 and the new Order 901/1999 provide that detainees are entitled to send one postcard and to receive one every month. It is obvious that censorship is still in force, although Romania was sentenced by the Strasbourg European Human Rights Court for having violated Art. 8 of the European Convention — namely, for censoring the penitentiary detainees' correspondence (case Petra versus Romania). APADOR–CH considers that the difference in treatment between the persons detained in police lockups and those in penitentiaries is unacceptable (not only with regard to the right to correspondence).

Even so, APADOR–CH has learned of many cases in which detainees did not even get the monthly postcard they are entitled to (DGPMB, IPJ Iasi). The officials of IPJ Maramures said the persons detained there were allowed to correspond freely, which would have represented a noteworthy exception. However, it was eventually revealed that all letters, except for those sent to the Military Prosecutor's Office, were read. Still, this is a small step forward which should become the practice at the level of the whole system.

Description of the incidents occurred at the beginning of March 1999, as described by the two victims (Petre Ilie and Gheorghe Nedelcu):

On 4 March, three persons committed a robbery against the owner of a truck that contained a high quantity of coffee. The victim and several witnesses described the three, mentioning that two of them were fair-haired. A foreign citizen had asked Petre Ilie — a young business owner, well known in Buftea — to find him a place where to store his merchandise (coffee), a group of loaders and a watchman. The foreign citizen assured him he had all the required documents.

After several days, Petre Ilie, the dockers (Gheorghe Nedelcu and Victor Gheorghe included) and the night watch found out that the police were looking for them. Consequently, on 11 (or 12) March, Petre Ilie, Gheorghe Nedelcu and Victor Gheorghe went to the police of their own accord. They discovered that they were suspected of having committed the robbery that had taken place at the beginning of the month. Obviously, they vocally denied any involvement and gave statements to that effect. Knowing that they were innocent and believing that the statements would solve the problem, they decided not to resort to a lawyer at that stage. But several police officers from the Ilfov County Police Inspectorate also showed up. That is when the abuses started: the three were hit savagely; the beating resulted in broken teeth, cracked skulls, broken legs, etc. Their initial statements were torn into pieces and they were forced to write others, under dictation; they were turned down when they asked for the lawyer they had asked for, this time.

Several persons found in the police station, in the yard or in the street at that time can confirm they heard screams and the sound of broken glass (Petre Ilie flung himself through the window and threatened to cut his throat if the inhuman treatment did not cease).

Finally, after the intervention of some police officers from Buftea — an intervention which should have occurred from the very beginning, in the opinion of APADOR–CH — the three “suspects”, whose innocence could be easily established by organising an identification with the witnesses of the 4 March robbery, were washed of blood and transferred to the Bucharest Police lockup.

Petre Ilie and Gheorghe Nedelcu admitted that, when they had been taken to he Bucharest Police lockup, they had not complained against the inhuman treatment they had been subjected to at the Buftea police station. They were afraid to do so; they also knew no measures were going to be taken against the police officers involved. It is hard to explain, however, why the doctor who examined them several days after their arrival in the police lockup did not ask any questions regarding the visible marks of beating and did not prescribe any supplementary examination or treatment, although — according to regulations — he should have done so within the first 24 hours.

Petre Ilie and Gheorghe Nedelcu also said that, while on remand, they submitted to the chief of the Bucharest Police lockup a complaint regarding their situation, including the inhuman treatment suffered at the Buftea police station. It is not clear whether that complaint was sent to the competent authorities.

The APADOR–CH representatives could not talk to the Buftea police commander, because he was out of the station. The officer on duty contacted the commander; unfortunately, he could not make it to the police station until much later, when the APADOR–CH representatives had scheduled to meet with the victims.

By means of registered letter No. 144.884/22.06.1999, IGP informed the association that, on 12 March 1999, when the three “placed themselves at the disposal of investigation bodies of their own accord”, it was established “following investigations” that they were the authors of the robbery. “Before legal counsel Braileanu Ioan arrived at the headquarters of the Buftea police, Ilie Petre hit his head against a window pane of the office where he was. Without injuring himself, while Gheorghe Victor, found in another room, smashed a window with his fist.” (emphasis added) The letter also specifies that the police reports recording Ilie Petre and Nedelcu Gheorghe’s placement under the custody of the DGPMB lockup mention “no marks of violence”. Still, Gheorghe Victor’s report mentions that “the prisoner exhibits... marks of violence on the palm of the left arm. His wound was dressed. He declared he had hit himself during the day, prior to being placed in custody.” (emphasis added) The three were released on 28 April 1999 by decision of the Bucharest Court of Appeal. Although there was only a “verbal complaint” regarding the perpetration of abuses by police officers with the Buftea Police (complaint confirmed by a prosecutor with the Bucharest Territorial Military Prosecutor’s Office), “the IGP Control Body decided to start an investigation” and the resulting material was sent to the Bucharest Territorial Military Prosecutor’s Office on 9 June 1999.

On Friday, 30 April, around 10:30 p.m., Constantin Buzatu was driving home in his brother’s Mercedes, which had Timisoara license plates. On the way home, several persons from a Dacia car (license plate No. OT 99 (Mr. Buzatu could not remember the ensuing combination of letters) made obscene gestures at him and abused him verbally. In front of “Jiul” hotel, the Dacia car blocked the road, forcing him to stop. Another Dacia car stopped right behind him. Everybody got off the cars — Constantin Buzatu and two persons from each of the two cars — and the four started punching Buzatu. While they were punching him in the head, Constantin Buzatu identified and called by name one of the aggressors — Lieutenant Constantin Berbecel from the Craiova 4th precinct police — who told the others to stop hitting Buzatu. Constantin Buzatu got in the car and went to the 4th precinct police, where he wanted to lodge a complaint related to the incident. Meanwhile, Lieutenant Berbecel himself arrived at the police station and pretended not to know why Constantin Buzatu was there. The officer on duty refused to receive the complaint, urging Mr. Buzatu to return there the next day, in the morning, when the police commander would also be there.

On Monday, 3 May, he went to the Forensic Laboratory where he was issued medical certificate No. 985/A2 of 3.05.1999, which mentions tumefaction and bruises around the eyes, nose and mouth and prescribes 7-8 days of medical care.

The same day, he lodged a complaint with the Craiova Military Prosecutor’s Office. He had found out that, apart from Berbecel, two other aggressors were police officers — non-commissioned officers Mihai Fanuica and Ioan Borcan. The fourth person involved was Marian Fanuica, non-commissioned Mihai Fanuica’s brother. It should be mentioned that all four were dressed in plainclothes and that the two Dacia cars were private.

Constantin Buzatu turned to the local press, television and radio; all the local media covered his case. There is a video recording with the broadcast made by Terra Sat television channel, where the bruises on the victim’s face show very clearly.

The Craiova Military Prosecutor’s Office broke all records by solving the case in four days. In the opinion of APADOR–CH, the Military Prosecutor’s Office was superficial rather than efficient. By letter No. 294/P/1999 of 7 May, Constantin Buzatu was notified that the Prosecutor’s Office had issued a no indictment decision in favour of the three police officers and that only the civilian Marian Fanuica, against whom he could press charges in court, had hit him. Mr. Buzatu mentioned a fact that puzzled him very much: Marian Fanuica himself had got a medical certificate which mentioned the same kind of injuries and the same number of days of medical care.

As he was not satisfied with this decision, Constantin Buzatu resorted to the Military Department of the General Prosecutor’s Office.

The APADOR–CH representatives wanted to get the opinion of 4th precinct police officers about this incident. Unfortunately, the commander was not at the station and his deputy knew nothing about the case, because he had been on holidays in April! No one else from the police station was able — or willing — to volunteer any information.

By means of registered letter No. 144.884 of 22 June 1999, IGP repeated the conclusions reached by the Craiova Military Prosecutor’s Office: the police officers had not hit Constantin Buzatu, who had only had a fight with the civilian, Marian Fanuica.

Sascut–Targ, Sascut–Sat, Schineni and Pancesti are part of the Sascut municipality, which has a police station staffed by four non-commissioned officers, headed by non-commissioned officer Eugen Caleap. One of the non-commissioned officers has been “transferred” to the traffic department; actually, he supervises the traffic, several kilometres off Sascut.

In 1993, a local commission appropriated one hectare of forest to each inhabitant of Sascut; the ownership titles were issued only as late as 1995 and 1996. On the basis of the commission’s decision, the villagers felled wood and had numerous conflicts with the Forest Guards, who continued to regard the forest as state property. The forest guards often resorted to the Sascut police for help, which resulted in the issuance of a high number of fines. Some villagers appealed these fines in court and won, others preferred to pay them, although they considered that they were innocent.

APADOR–CH representatives found it obvious that many of the villagers fear the Sascut police. Many of the inhabitants of Sascut alleged that the police in Sascut take action — or not — according to their whims. Vlase Popa, aged 67 and almost blind, with a 1st degree handicap certificate, was fined lei 700,000 and 400,000, respectively, for having allegedly harvested corn from a plot of land that did not belong to him and for having disturbed public peace.

Margareta Verbuta from Schineni declared she was being harassed by her own family: she had been beaten several times and even admitted to hospital as a result; her property was stolen; she no longer dared to live in her own house. She complained many times to the Sascut police, but no investigation has taken place and her relatives have not even been fined. Margareta Verbuta no longer trusts the Sascut police, because each time she tried to complain against her relatives, over the past year, the police replied: “Shut up or we’ll fine you.”

Gheorghe Dumitrache, born in Pancesti (Sascut), lives in Bacau. He does not have a criminal record. After having worked at the plane factory, he is now unemployed; he helps his mother, who lives in Pancesti. After being appropriated with one hectare of forest, Gheorghe Dumitrache had several frictions with the forest guards, each time he tried to fell wood for his mother. In November 1996, he was fined lei 200,000 (police report No. 006353/27.11.1996) and 400,000, respectively (police report No. 006402/28.11.1996), both police records signed only by police officers. Gheorghe Dumitrache appealed the lei 400,000 fine, lost in the first instance and appealed the decision, while the complaint against the second fine had not been considered yet by a court (the instance had scheduled a hearing for the month of May and had even summoned a witness). However, the Bacau Court joined the two case files into a single one and decided to turn the fines into 40 and 20 days of contraventional prison respectively — therefore, a total sentence of 60 days — on 3 March 1997. Arrested on 3 April 1997, Gheorghe Dumitrache finally succeeded in contacting his family, which paid his fines. He was released after 12 days spent in prison.

Prior to the arrest, on 16 January 1997, Gheorghe Dumitrache, accompanied by a young man named Daniel Eftimie, who worked as hired help for room and board, was returning home with a wagon full of wood for his mother. Around 4 p.m., they were halted by a the four police officers from Sascut, who were driving a car, namely by non-commissioned officers Eugen Caleap, Neculai Dragomir, Neculai Ciuta and Popa. Dragomir took the saw and the axe from the car, while his colleagues handcuffed Gheorghe Dumitrache, punched and kicked him, dragged him into the car and drove him to the police station. Dumitrache’s only response was to tell them he would go to the police station himself after taking the wood home; obviously, the police officers ignored him.

Gheorghe Dumitrache spent almost 7 hours in the police station, on the basis of Art. 16 letter b of the Law on Police No. 26/1994 — “leading to the police station”. Medical certificate No. 141/17 January 1997 mentions trauma that “requires 3-4 days of medical care”. The victim lodged a complaint with the Bacau Military Prosecutor’s Office, specifying that he had some eye witnesses. Only one of the witnesses was heard, because the second — Daniel Eftimie — was under age. The Bacau Military prosecutor’s Office pronounced a no indictment decision in favour of the police officers (No. 49/P/1997 of 18 July 1997); the decision was confirmed by the Military Department of the General Prosecutor’s Office on 9 March 1999 (letter No. 36345/97/2145/1998).

Meanwhile, Gheorghe Dumitrache was prosecuted for illegal felling of trees — Article 97 par. 3 and 4 of Law 26/1996, corroborated with Article 74 final paragraph and Article 76 letter d of the Penal Code, and for outrage (Article 239 of the Penal Code). the victims in the second count were two police officers from Sascut — Dumitru Enache and Neculai Ciuta — and a forest guard, Sorin Paris. On 12 January 1998, the Bacau Court sentenced Gheorghe Dumitrache to two years in prison for the tree felling — the crime being amnestied — and to six months for outrage. The Bacau Court of Appeal acquitted him for the outrage count by means of criminal decision No. 177/16 June 1998 and reduced the punishment for the wood felling to 6 months. the decision was not appealed and thus remained final.

The APADOR–CH representatives interviewed three eye witnesses of the 16 January 1997 incident: Daniel Eftimie, the youth who was working for Dumitrache at that time, who currently lives in Bacau, Gheorghe I. Popa and Eugen Popa from Pancesti. Each declared having seen the police officers punch and kick Dumitrache, handcuff him and push him into the car. Each said the victim did not resist arrest. Eugen Popa is the only witness who had been heard by the Military Prosecutor’s Office.

It should be mentioned that, on 16 January 1997, Daniel Eftimie had also been taken to the police station for a short time. He was asked to declare in writing that the police had not bullied Gheorghe Dumitrache.

APADOR–CH considers that the fining and suing in criminal trial for outrage prove that the police officers from Sascut — in co-operation with the Forest Guards — have used abusively certain legal provisions to “punish” Gheorghe Dumitrache.

The association strongly believes that the Sascut police committed an abuse when the “led” Gheorghe Dumitrache to the police station. It should be reminded that Article 16 letter b of the Law on Police No. 26/1994 entitles police officers to lead to the police station a person who does not have identity papers, in order to be identified. It is obvious that the police officers knew who Gheorghe Dumitrache was. If the fact that he had felled trees illegally — that he was tried for — was so serious as to justify his deprivation of liberty, Gheorghe Dumitrache should have been taken to the Bacau County Police Inspectorate and a police custody order should have been issued in his name. APADOR–CH believes that the Sascut police had no grounds to deprive Gheorghe Dumitrache of liberty for 7 hours.

By means of registered letter 141.279 of 30 July 1999, DGP states that investigations were conducted in all the cases of abuse raised by the villagers and that all accusations brought against the police officers were unfounded. The letter also mentioned that Gheorghe Dumitrache “often causes scandals, is unruly, has an abnormal social behaviour, for which reason he is prone to give raise to conflict in the village of Sascut”. As for “some of the villagers of Rancesti (probably Pancesti — our note), part of the municipality of Sascut”, the letter states that they are “professional and notorious complainers” and therefore “they cannot be expected to be objective”.

On the occasion of an APADOR–CH visit to the Turnu Severin Penitentiary, the association was notified by one of the detainees — Viorel Haica — about the way he was held by two police officers from Targu-Jiu.

In the night of 18/19 August, he was shot in the leg and allegedly stabbed with a bayonet and hit in the head with the butt of a gun by two police officers from Targu-Jiu (one of them, Felix Talmacel, had been identified). The two police officers took him to hospital — first to the “Tudor Vladimirescu” hospital in Targu-Jiu, then to the Craiova neuro-surgery hospital and finally to the Dolj county hospital. He was charged with robbery and arrested on 24 August 1998. The penitentiary medical records mention that he had been “shot in the right thigh” and that his right sciatic nerve had been damaged.

On 24 August 1998, a pre-trial detention warrant was issued in Viorel Haica’s name, under charges of robbery. He was taken from the hospital to the police lockup. Upon the police request, Viorel Haica was examined by the Forensic Laboratory (under No. 1037/1 September 1998) and declared fit to be placed in detention and to be treated in the system of the General Directorate for Penitentiaries. It was recommended that he be hospitalised in a penitentiary hospital.

On 9 September 1998, Viorel Haica, who was still detained in the police lockup instead of the penitentiary hospital, as the Forensic Laboratory had recommended, was taken again to hospital and underwent emergency surgery following a “phlegmonous acute appendicitis”.

Viorel Haica lodged in May 1999 a complaint against the Targu-Jiu police officers with the Craiova Military Prosecutor’s Office.

APADOR–CH notified the Military Department of the General Prosecutor’s Office about this case and got no reply as of this writing.

On 14 July 1999, two APADOR–CH representatives visited the lockups of the Prahova County Police Inspectorate and of the Campina police station. At the County Police Inspectorate lockup, they wanted to talk to Liviu Constantin Nita from Ploiesti, as the association had been notified about potential violations of his right to defence and about his state of health. The meeting could not take place, because Liviu Constantin Nita was scheduled to appear before the Court and returned to the lockup around 9 p.m. Moreover, the APADOR–CH representatives were told they could not have discussed with the defendant without the approval — and unattended by — Prosecutor Buliga from the Prosecutor’s Office with the Prahova County Court, who was documenting the case.

The two APADOR–CH representatives returned to Ploiesti on 16 July, when, after having discussed with high officials with the Prosecutor’s Office, they were permitted to talk to Liviu Constantin Nita. Prosecutor Buliga and Colonel Malaescu from the County Police Inspectorate attended the discussion.

Liviu Constantin Nita was brought to the Prahova County Police Inspectorate headquarters on 14 June 1999, around 11:30 a.m., directly from the Petrobrazi company. The police had been notified several days before that Liviu Constantin Nita, the majority shareholder at the “Sunoil” company, had issued bad checks, the prejudice amounting to about lei 113 billion, according to press information. Mr. Nita requested that lawyer Anca Midan and a “Sunoil” jurist be called; the former arrived at the Prahova County Police Inspectorate after about 3 hours. Liviu Constantin Nita gave a statement in her presence, after which he was kept for 9-10 hours in an office with the only explanation that “a prosecutor must arrive”.

Around 1 a.m. — on 15 June, therefore — an order for police custody was issued; at 2:15 a.m., Liviu Constantin Nita was detained in the County Police Inspectorate lockup.

The APADOR–CH representatives have repeatedly raised the issue of deprivation of liberty in the period preceding the issuance of the police custody order. The Law on Police No. 26/1994 provides under Article 16 letter b) the possibility to “lead” to the police station a person who had no identity papers and who is suspected of having committed “deeds that jeopardise public order, the lives of persons or other social values”, “leading” which can last up to 24 hours. In Liviu Constantin Nita’s case, the “leading” to the police station was out of the question, because he obviously had been identified before being held; under these circumstances, one may wonder what the legal basis used to deprive him of liberty was, from the moment he gave the statement in the presence of his lawyer and until the police custody order was issued.

On 15 June, Liviu Constantin Nita was taken to the Prosecutor’s Office where he gave another statement and Prosecutor Buliga issued a 30‑day pre-trial detention warrant, in the presence of his lawyers.

The prosecutor decided that she be announced about any issue related to the detainee — from connections with the outside world (family visits, parcels, press, medicines) to contacts with lawyers, representatives of non-governmental organisations or journalists — and that nothing could be done without her approval. Consequently, all Nita’s meetings with his lawyers were attended by Prosecutor Buliga and a County Police Inspectorate escort. The basic principle related to the privacy of the client–lawyer relation is thus ignored, which drastically limits the opportunity to build a genuine defence. Unfortunately, this aspect is generalised to the whole country during the criminal investigation and the association has repeatedly called attention to it, regarding it as a violation of the right to defence.

The defendant Nita had suffered a serious car accident in 1990. Following a multiple fracture, he was implanted a metallic rod in a leg. The rod disturbs him and should be removed. Mr. Nita also has psoriasis, a skin disease that is very hard to treat and cure, and ulcer. While the metal rod and the ulcer suppose x‑ray examinations, the psoriasis is visible with the bare eye for anyone who has even a smattering of medical training. Moreover the detainee declared he was suffering from all these health problems when he was examined by the lockup doctor. Still, the medical section of Liviu Constantin Nita’s penitentiary file does not mention any of the three health problems mentioned above. APADOR–CH believes that this omission was intentional.

1. The officials of IPJ Prahova publicly declared that APADOR–CH had tried to bully the investigation bodies, to launch a press campaign and that it had manifested unusual concern for the Nita case, going all the way to Ploiesti only for him. These statements are inaccurate: the association cannot intimidate the police and the Prosecutor’s Office; the Nita case got intensive press coverage about a month before the APADOR–CH visit; the association visited the Ploiesti and Campina lockups on a day when the defendant was scheduled for court hearings. Finally, the IPJ officials vocally denied that Mr. Nita had psoriasis. The issue at stake is not whether he does have psoriasis (the association’s representatives are positive he does) but the refusal of the lockup doctor to write down in Nita’s medical record the diseases he declared he was suffering from, the metal rod in his thigh included.

2. By means of registered letter No. 17478/4130 of 25 November 1999, the Prosecutor’s Office with the Supreme Court of Justice informed APADOR–CH that “the investigations conducted revealed that both the provisions of the Penal Procedure Code related to the rights of defendant Nita Constantin Liviu and those related to the rights of his legal counsel have been observed”.

Vili Rupa, born on June 30, 1973, lives in Hunedoara. He has graduated the 10th grade, is not married and unemployed.

On January 28, 1998, the Hunedoara Municipal Police organised an action “to catch Vili Rupa in the act”, as they had learned that Rupa had some quicksilver that he was trying to sell. A group of eight police officers tried to catch Rupa at 5:30 p.m., in front of the “Rusca” hotel, where the latter was talking to a person. The youngster got scared and ran away; according to some witnesses, he dropped a half-litre plastic bottle containing 2.4 kg of quicksilver. Vili Rupa was caught by the police officers and taken to the police station, where they drew up a report on the incident. He said the police had beaten him until he had fainted and that he had constantly denied having been the owner of that bottle of quicksilver. Actually, he did not even sign the police report.

On March 11, 1998, the Prosecutor’s Office issued a subpoena for Vili Rupa. The group of about ten police officers who carried out the warrant used a trick, telling Rupa — who refused to get out of the apartment — that they had a TV crew with them. He was not shown the warrant. Vili Rupa has a medical certificate testifying to the fact that he had a mental condition. He said he would not leave his apartment in the absence of a lawyer. Finally, his lawyer appeared and Rupa was taken to IPJ Hunedoara.

Vili Rupa was accused of drug traffic and of outrage against the police officers who had attempted to arrest him (allegedly, he had threatened them with a pen-knife and had hit a police lieutenant with an axe in the belly, without harming him at all, because the latter... had had an address book in his pants that had served as a shield). He was sentenced for drug traffic (Art. 312 Criminal Code) to one year and 2 months’ imprisonment by the Hunedoara Court, by means of penal decision No. 160/1999, case file No. 1841/1998. He was also sentenced for outrage, for which he got two terms in prison of 2 months each. The sentences were joined; therefore Rupa was supposed to serve a one year and 2 months’ sentence, which he had already served in pre-trial detention at the Hunedoara lockup and the Barcea penitentiary. The sentence was passed on May 5, 1999. The appeal filed with the Alba-Iulia Court of Appeal confirmed the one-year and 2-month sentence by means of penal decision No. 250/A/1999 of September 30, 1999. The second appeal was going to be heard in February 2000 by the Supreme Court of Justice.

Vili Rupa was sentenced on the basis of the police report dated January 28, 1998, and on the testimonies of four witnesses. Two of them were the police officers who signed the police report. As for the two witnesses from outside the “system”, one of them died before the hearings before the Prosecutor’s Office and the second declared in court he had no idea what Vili Rupa had done during the set-up.

The pre-trial detention at the Hunedoara County Police Inspectorate lockup (March 11–June 4, 1998)

Three days after having been arrested, Vili Rupa was chained because he had repeatedly protested against his arrest and punished by 10 days in isolation for having broken some light bulbs and knocked on the peephole. He was punished again to 15 days in isolation for having kicked a windowpane at the Court seat.

Vili Rupa said he had been chained for 82 days, that is, until June 4, 1998, when he was transferred to the Barcea penitentiary, being labelled as a “very dangerous detainee”. He also said he had been taken to court in chains three or four times. Mr. Alexandru Pop, the lawyer who assisted him before the first instance court, confirmed his allegations.

Titus Jelea, detained at the IPJ Hunedoara lockup in November 1999, had been locked in the same room as Vili Rupa for two weeks, from the moment the latter was arrested. The disturbance caused by Rupa several days after his arrest consisted in his asking why he had been arrested. On March 14, about 8 soldiers entered the room and cuffed his hands and legs; a vertical iron bar linked the chains. He was also cuffed to the bed. Titus Jelea said Rupa was uncuffed only when he went to the toilet. There were times when he was not allowed to go to the toilet and the other detainees had to help him urinate in the bucket. He could neither bend nor bend his knees because of the iron bar, so the other inmates had to help him wash. They also helped him feed himself, although he had trouble eating because of the position. Titus Jelea also said that Vili Rupa was visited only by a military prosecutor from Craiova — who saw him chained — because he had lodged a complaint with the Military Prosecutor’s Office about the action undertaken by the police from Hunedoara on January 28, 1998. Titus Jelea was transferred to the Barcea penitentiary at the end of March. Vili Rupa’s situation was unchanged at that time.

Matei Martian was detained at the Barcea penitentiary in November 1999. He was locked in the same room with Vili Rupa at the County Police Inspectorate lockup, in May 1998. Matei Martian declared that Vili Rupa had chains on his legs, which prevented him from walking properly and especially from climbing stairs, at which times he had to be helped by two other detainees. Vili Rupa had told Matei Martian, whom he had met in penitentiary, that the former had been taken to court chained even after being transferred to the Barcea penitentiary.

There are other witnesses who could testify to the treatment undergone by Rupa at the Hunedoara County Police Inspectorate: Catalin Draganescu (transferred to the Timisoara penitentiary) and Viorel Bota, released, who lives in Orastie.

APADOR–CH considers that chaining and cuffing a person for a long period of time (82 days, according to Vili Rupa — at least half of this duration was confirmed by two former cell mates from the County Police Inspectorate lockup; at least 25 days are confirmed by means of the punishment reports in his penitentiary file) represents at least an instance of inhuman and degrading treatment, if not torture.

The Craiova Military Prosecutor’s Office, that Rupa resorted to while detained at the County Police Inspectorate lockup, conducted a merely formal investigation — as has happened before — and issued a no indictment decision in favour of the Hunedoara police officers, related to the set-up and to the way Rupa was led to the police station where he was mistreated. Vili Rupa lodged a second complaint with the Bucharest Territorial Military Prosecutor’s Office, invoking the treatment undergone at the Hunedoara County Police Inspectorate lockup. He sent the complaint right after his release from penitentiary, on May 24, 1999, and received confirmation that the complaint had been received on May 27, 1999. Still, no investigations had been conducted until the APADOR–CH visit to the Hunedoara County Police Inspectorate lockup and to the Barcea penitentiary (November 5).

By means of registered letter No. 141.668 of 13 December 1999, IGP informed the association that Vili Rupa had displayed a violent behaviour for the duration of his arrest at IPJ Hunedoara and that he had been punished twice, with 10 and 15 days of “simple isolation”, respectively, during which time he was immobilised with chains and cuffs and that afterwards his feet were chained and his hands were cuffed “when he was taken to be questioned”. How could one explain why Matei Martian saw him chained all the time after the second punishment by isolation? The material sent by IGP changes the initial accusation brought by the Hunedoara police officers, according to which Vili Rupa had hit one of the police officers with an axe in the belly. In the IGP letter, this was changed into an intention to hit the police officer with an axe. IGP concludes that the police officers from Hunedoara and IPJ Hunedoara acted legally and committed no abuse. This fact is confirmed by the no indictment decision issued by the Military Prosecutor’s Office. (That is, the 22 May 1998 decision regarding the set up.)

Tiberiu Sofica, a law student, and his cousin aged 17, named Gavriliuc, were held by police officers from 12 precinct Bucharest and then placed under arrest on remand under charges of robbery. They were held on 15 June 1999, around 11:30 a.m. The police officers threw them down on the pavement, handcuffed and hit them in the presence of occasional passers-by. Tiberiu Sofica’s lawyer said that there are eye witnesses that could testify to this case of police brutality.

Brought to the station, the two continued to be mistreated by the police (Tiberiu Sofica mentioned one Captain Serban, and a sub-lieutenant whose name he did not know) in order to admit to having committed several robberies (namely, stealing golden chains from passers-by).

Their lawyer saw them the next day, when the prosecutor issued their pre-trial arrest warrants, and declared she had never seen anyone so terribly beaten: Tiberiu Sofica’s ears were blue with bruises and he had marks of beating on the body, while Gavriliuc’s face was swollen up. Actually, Tiberiu Sofica declared he had heard Gavriliuc cry: “Stop beating me, I can take no more.”

Despite the inhuman treatment, Sofica did not admit to being the author — or co-author — of the robberies he was accused of. Gavriliuc, however, signed a declaration to that effect, prior to being placed in arrest and in the absence of his lawyer. Actually, 12 precinct police considers that the presence of a lawyer is not necessary during the period that precedes the issuance of a police custody order. This situation runs counter to IGP’s statements, according to which any statement that precedes the issuance of a police custody order is given in the presence of a lawyer in all police stations.

During their visit to the 12 precinct lockup, the APADOR–CH representatives talked, among others, with Sofica and Gavriliuc. The former said he had been repeatedly hit over the head and body (especially in the kidneys), while the second — who still had visible marks of beating under the right eye — said, in the presence of the precinct commander and of other officers, that he had hit his face against the bed in the lockup.

A complaint was lodged against the officers with the 12 precinct police with the Military Prosecutor’s Office. The association wishes to point out the following aspects:

— assuming that the accusations against the two young men were real — although the lawyer said this was a case of gross judicial error — the nature of the deed does not justify the excessive use of force. APADOR–CH considers this case one more example of lack of proportion between aim and means;

— beating used as a means of determining a person to confess amounts either to abusive investigation or to inhuman treatment, both deeds being sanctioned by the Penal Code;

— at the time when the APADOR–CH representatives visited the lockup (21 June 1999), Sofica’s medical record contained only his personal data. The IGP doctor had made no mentions. It is obvious that the detainee had not been examined by a doctor, although he had been in the lockup for 6 days. Order 0410/1974, in force at that time, stipulates that any person placed under arrest in a lockup must be examined by a doctor within 24 hours.

As for Gavriliuc, his medical record was “missing”, although the lockup records showed he had been examined by a doctor on 18 June. The lockup staff made an unconvincing attempt to explain the disappearance of his medical file.

The two young men were released, but they are still under investigation for robbery. On the other hand, APADOR–CH has learned that the Bucharest Military Prosecutor’s Office investigates the complaint regarding the abuse committed by the 12 precinct police officers. The case was still not solved as of this writing.

Nicu Olteanu and his son were walking, on 16 May 1997, in the area of the Chisinau Boulevard, close to Post Office No. 49. Nicu Olteanu wanted to play a trick to an acquaintance whose car was parked nearby and took a 6‑pack of mineral water placed on the boot of the car. Several liquor bottles were also placed on the boot and they were much more expensive than the mineral water, therefore it is hard to believe that Olteanu intended to steal the water. What is certain is that two non-commissioned police officers from 9 precinct saw him take the 6‑pack and invited him to an office... in the post office building. Nicu Olteanu declared that he was hit and threatened. Scared of the possible consequences of what he had regarded as a joke, he threw himself through the post office window into the street, where his son was waiting for him. At that time, one of the police officers shot his weapon, wounding Nicu Olteanu in the left leg. He was taken to the hospital and then to the lockup. He was prosecuted under arrest for outrage, on grounds that he had verbally abused the two non-commissioned officers, that he had reacted in a violent manner and that, after breaking the window, he “had thrown himself at the non-commissioned officer to hurt him” (quote from registered letter No. 697/1999 of 9 December 1999 of the Military Department of the General Prosecutor’s Office). At that time, “non-commissioned officer Baboi Eduard Viorel had made use of his fire weapon, after the three legal warnings” (idem).

APADOR–CH has repeatedly protested against the police officers’ resort to fire weapons in situations in which the potential wrongdoers have committed minor offences (for instance, the theft of six bottles of mineral water). The following questions should be asked:

1. Why was the “criminal” taken to the post office instead of the police station?

2. If Olteanu threw himself at a non-commissioned officer with a piece of glass in order to hurt him, how come his colleague had time for the “three legal warnings”?

3. If Baboi resorted to the gun to save the other non-commissioned officer’s life, how come Olteanu was hit in the foot and not in the head, belly or any other frontal part of his body?

Last but not least, Nicu Olteanu was not prosecuted for “stealing” the six bottles of water, but for outrage.

APADOR–CH considers that the 9 precinct police officers committed an abuse. In order to justify it, they made up the threat to one of their lives.

The Bucharest Military Prosecutor’s Office pronounced a no indictment decision (Nicu Olteanu was notified about it on 11 November 1999, and the Military Department with the General Prosecutor’s Office confirmed it).

On 9 September 1999, Cristian Venus Dumitrescu (19 years of age) and his sister Gianina Dumitrescu were taken from home to the Dolj County Police Inspectorate (IPJ Dolj). The police told Cristian he was charged with having robbed a Korean citizen, in complicity with three other young men and allegedly stolen from him $7,000, two credit cards and an identification card on the night of 28-29 August 1999 in the bar where his sister Gianina used to work.

Gianina Dumitrescu declared that her brother, investigated by an IPJ officer, told him in the several seconds when she was able to see him that “he could not bear it anymore” and that “he was going to commit suicide”. He threatened against to commit suicide in the presence of the investigating officer.

On 9 September, around 2 p.m., Cristian’s girlfriend was also summoned to the police station, by means of a note hand-written by a police officer. The young man told his girlfriend that he had been constantly threatened by the police officers (“you will spend 15 years in prison”) and kicked in the liver. Around 5 p.m., Cristian was going to be placed in arrest. Cristian took several steps in the hall, then all of a sudden, he dashed on and, threw himself through the window, from the third floor, falling on a paved alley. He died the next day at the Craiova Clinical Hospital.

The investigation conducted by the Craiova Military Prosecutor’s Office is not over yet. Still, one could easily anticipate the conclusion, as the prosecutor in charge of the investigation told both the friends of the youth and one of the alleged accomplices to robbery that the police officers are innocent.

Another “accomplice”, Ionut Patrascu, was still detained on remand on 15 September 1999, at the Craiova Municipal Police. The family was not allowed to see him, although they had the Prosecutor’s Office approval, which strengthened their suspicion that he had been beaten.

APADOR–CH has not received any answer related to the circumstances of Cristian Venus Dumitrescu’s suicide as of this writing.

3.10. The case of Aurel Uluiteanu (municipality of Barcanesti, county of Ialomita)

Aurel Uluiteanu, aged 44, who lived with his parents in the municipality of Barcanesti, died on 24 (or 25) September 1999, following a beating applied at the police station in his village.

According to his father, one day before this tragic event, the chief of the police station in the village and his deputy had led Aurel Uluiteanu to the Urziceni Court, where he had a case pending, because several villagers had accused him of disturbance of public order. Uluiteanu succeeded in escaping from court and returned home. He spent the night in the corn field, but the next day, around 10 a.m., he was found by the police and taken to the police station. It seems that one of the police officers was celebrating his birthday at the police station and that several civilians also attended the party. It is unclear what happened there; however, it is certain that the Uluiteanus were informed that afternoon that their son had died.

APADOR–CH considers that this case is extremely serious: a man died in a police station, following the blows applied by a police officer, helped or simply assisted by civilians who were partying at the police station.

The Military Prosecutor’s Office ordered the arrest of the police chief, who was directly involved, and of one of the civilians who attended the party.

In order to reply to IGP, that always complains that APADOR–CH “never listens to the other side of the story”, the association wishes to mention that it tried, as in all the other cases, to talk to the police chief or to other police officers, but the answer was — as usual — that only the Press Office of the County Police Inspectorate was entitled to give details about the case. The association insisted and found out that the non-commissioned officer who had committed this deed was indeed under arrest.

On Sunday, 21 November 1999, the chief of the Borcea police station, accompanied by the manager of the agricultural trade company in the village, went to Nicusor Sima’s. Without presenting a warrant, the police officer searched the house and annexes, looking apparently for some grain that had been stolen from the company’s warehouse. Although, according to the family, the police officer found no evidence related to the perpetration of crimes, Nicusor Sima was led to the police station, where he was beaten by one of the police officers — non-commissioned officer Vasile Zahiu, recently transferred from the municipality of Stefan cel Mare — with the night stick, first over the palms of his hands and then over the legs. Although he does not have a forensic certificate (most villagers from Borcea do not even know what that is and that they could obtain it), there are witnesses who saw the clear marks of beating (his father, Radu Sima and a neighbour, Radu Soloiu). Moreover, another villager — Mioara Manea — was summoned to the police station when Nicusor Sima was there and asked to declare if she had bought grain from him. The woman denied and urged the police officers to “quit beating him for nothing”.

Nicusor Sima did not give in and did not admit to having broken into the warehouse. Around 6 p.m. he was released. Sima declared that, while he was being investigated, other two persons were brought to the police station — the warehouse height watch, Costica Rotariu and a young man called Dan — who were also beaten, even worse than him. Both Costica Rotariu and Dan left the village after the incident.

Apparently, the only evidence the police based their accusation on was that Sima was a multi-offender.

— the presence of the company manager during the search, although he was not authorised to conduct or take part in such procedures;

— the inhuman treatment applied both to Sima and to the other two suspects, in order to make them confess to the deed they had been charged with.

APADOR–CH received no answer from the Military Prosecutor’s Office regarding this case as of this writing.

3.12. The case regarding the Foundation Action, Tradition and Trans-Communication (ATT) (Bucharest)

Starting November 1999, ATT has run a programme by means of which it informs economic enterprises on the legislation in the field of consumers’ protection. The association provides documentation as well as subscriptions to the brochures they publish. Following some “intimations” of citizens who complained that the ATT members introduced themselves as inspectors of the Office for Consumers’ Protection, the 23 precinct police organised a “check up” (actually a search) at the foundation’s premises, seized several documents, without mentioning the number of pages in the police report. ATT states that some of the documents have disappeared.

According to ATT, the chief of 23 precinct insulted the president of the foundation, calling him “crook”, “embezzler” and swearing at him.

Regardless of the suspicions — founded or not — about the activity of this foundation, APADOR–CH considers that:

— the search was illegal, as long as it was conducted without a search warrant or the approval of the foundation’s president;

— even if the search were legal, the police report drawn up when the documents were seized should have contained a detailed list of the documents seized and the number of pages of each document;

— the confiscation of documents essential for the activity of a foundation amounts to rendering it inoperable, a decision that only a court can make.

The Bucharest Territorial Military Prosecutor’s Office pronounced a no indictment decision in favour of the chief of 23 precinct police Bucharest, as “the evidence gathered in the case does not confirm the existence of any penal aspect that the officer under investigation or his subordinates could be charged with” (letter No. 1089/P/1999 of 28 September 1999).

III. CARRY OUT OF SENTENCES IN UNITS OF THE GENERAL DIRECTORATE FOR PENITENTIARIES

During the second half of 1999, the Government submitted to the Parliament the draft bill on the carry out of sentences and on preventive measures with deprivation of liberty and the draft bill on the organisation and functioning of probation services.

APADOR–CH considers that the two draft bills are welcome. Especially the former, if adopted by the Parliament, will finally rescind Law 23/1969 on the Carry Out of Punishments by Deprivation of Liberty. The draft bill for the organisation and functioning of probation services aims to set up a special institution of public utility, long-established in democratic countries. The main role of this institution is to provide an alternative to incarceration and help convicts reintegrate in the society. If the two draft bills are adopted by the Parliament, Romanian domestic standards will finally become compatible with the European norms in the field. APADOR–CH submitted its comments on the two draft bill to the specialised parliamentary commissions. Summing up, APADOR–CH made the following remarks:

a) Draft bill on the carry out of sentences and on preventive measures with deprivation of liberty

If pre-trial detention centres are established by law, they should be accountable to the Ministry of Justice (to the National Administration of Penitentiaries) instead of the Ministry of Interior. This would solve the current situation, in which the criminal investigation body, belonging to the Ministry of Interior, has full powers over persons under investigation and is entitled to prevent them from being visited by the family, from exchanging letters and having access to information of public interest, as it currently happens. Such solution would completely avoid the current practice, namely that first comes the arrest and only then is evidence gathered, although the opposite should be the rule.

APADOR–CH believes that the provision (Art. 5 paragraph 3) according to which convicts can be visited by legal entities (human rights organisations included) “under penitentiary staff supervision” should also be reviewed. Otherwise, it is hard to believe that an inmate who wishes to complain about the conditions of detention or about the behaviour of penitentiary staff will dare do so “under supervision”.

Thirdly, from Art. 25 paragraph 2 (on the judge in charge of the carry out of sentences) it can be inferred that the final solution in matters this judge is competent to address will be up to the president of the court, by means of resolutions. APADOR–CH believes that the decision of a judge can be challenged only by a higher court in a state governed by the rule of law. Therefore, the judge in charge of the carry out of sentences should rule on a case and the instance he/she belongs to should not be entitled to censor the decision. Moreover, one should always bear in mind the consistency with the other laws in the field, mainly with the Penal Procedure Code.

Art. 7 paragraph 2 stipulates that probation services “shall be” established subordinate to second instance courts and “can be” established subordinate to first instance courts. According to APADOR–CH, the establishment of probations services subordinate to first instance courts should be an imperative norm, first because one may infer from the draft bill that some first instance courts will have such services while others will not (which would institute a difference in the treatment of convicts) and secondly, because most beneficiaries of probation are persons who have not committed a very serious deed (and who are judged by a first instance court).

The Legal Commission for Discipline and Immunities with the Chamber of Deputies has modified the initial version of the draft bill with regard to the funding of probation services, in the sense that Art. 9 paragraph 5, which provided that “the sums resulted from unpaid work shall represent extra-budgetary income” (emphasis added) was changed so that such sums become exclusively budgetary. APADOR–CH is in favour of the initial version, especially as, the modification suggested by the Commission would maintain a centralised system and the bureaucracy would hinder the probation services' opportunity to adapt their activities to the state of facts at the local level.

APADOR–CH also opts for the initial version with regard to the participation of probation officers in judging applications for release on parole (Art. 13 paragraph 2). APADOR–CH considers that the participation of parole officers in these hearings must be compulsory (as provided in the Government's version) and not “upon the court's request” (the Commission's version), because the parole officers must find out immediately if their client has been released and under what circumstances. This solution is imperative, especially as the Romanian judicial system continues to experience problems related to procedure that cannot be solved in the near future: delays in issuing and communicating sentences/decisions, the fact that registrars register only summaries of hearings, under dictation from judges, etc.

With regard to the access to individual probation files (Art. 16), APADOR–CH considers that the categories of persons whose access is permitted (“the convict, the legal counsel, courts of justice, the judge in charge of enforcing court decisions, the judge in charge of the carry out of punishments and the prosecutor”) should be expanded to include “any natural or legal person, upon the convict's request or agreement”. In order to control the quality of the probation officer's work, the superior of the probation officer who drew up and managed an individual probation file should also have access to the file.

At the end of 1999, the two draft bills were pending in Parliament prior to being discussed in plenary session.

APADOR–CH continued in 1999 its good working relationship with the General Directorate for Penitentiaries (Romanian acronym DGP); its officials and penitentiary directors/commanders expressed their openness and the APADOR–CH visits took place in the best of conditions. The DGP officials and its General Director, in particular, were open to the recommendations and remarks made in APADOR–CH's reports; very often, immediate measures were taken to rectify shortcomings. In 1999, the APADOR–CH representatives visited the following penitentiaries: Craiova — the adult and juvenile penitentiaries (on 1 and 2 March respectively), Tulcea — including the Chilia Veche section (24 and 25 March, respectively), Turnu Severin (2 June), Deva (4 June), Margineni (16 July), Mandresti (4 October), Iasi (5 October), Baia Mare (2 November), Satu Mare (4 November).

Although no new laws have been adopted in this field in 1999 either, DGP and the penitentiary management continued to make efforts to improve the situation in penitentiaries. An additional number of civil magistrates were appointed as penitentiary directors.

With regard to the demilitarisation of the penitentiary system, APADOR–CH regretfully noted that the draft bill on the statute of penitentiary staff, prepared by DGP in 1997, had not been submitted to the Parliament by the end of 1999.

Overcrowding continued to be the most serious problem encountered in the penitentiary system in 1999. The efforts made to expand and stream line detention spaces are insufficient and it appears that this problem cannot be solved in a reasonable term. The most overcrowded penitentiaries visited by APADOR–CH in 1999 were Turnu Severin (1,309 detainees for a capacity of 709), Iasi 1993 detainees for a normal capacity of 900, with 1,900 beds currently in use), Mandresti (1,448 detainees for a capacity of 670, with 990 beds currently in use), and Craiova — adults (2,415 detainees and 2,060 beds for a normal capacity of 1,450 places). Besides the physical and mental discomfort it causes, overcrowding raises serious issues related to the ratio between detainees on the one hand and penitentiary staff who work directly with the detainees and trainers, on the other. In 1999, this ratio was 10-12 detainees per staff member; actually, it is even higher, given that penitentiary staff work in shifts (12 hours on duty, 24 hours off). These figures are twice as high as what DGP itself has announced (one to six) and way higher than the European standards in the field. Part of the tension between guards and detainees, as well as the inefficiency of educational activities, stem from this situation.

Besides the lasting scarcity of funds needed to expand and modernise detention places, the situation is made worse by the judges and prosecutors' levity in issuing pre-trial arrest warrants. There are cases in which the proportion of persons detained on remand goes up to 20% of the total number of detainees. For instance, when APADOR–CH visited the Satu Mare and Mandresti penitentiaries, 180 out of 855 detainees — and 232 out of 1,448 detainees, respectively — were detained on remand. The Romanian legislation is very permissive from this point of view: pre-trial detention warrants can be issued and extended, according to the Penal Procedure Code, in a number of situations that exceed the limits set by Art. 5 of the European Convention. According to the Romanian criminal law, pre-trial detention can go up to half of the maximum punishment provided for the crime the person is suspected of. That is not how things stand in many democratic countries, where pre-trial detention cannot exceed 3-6 months. It should also be mentioned that, when defendants spend half of the maximum term in prison on remand, the courts sentence them to the very term they have already served before releasing them.

The Constitutional Court pronounced as far back as 1995 a decision related to the extension of the pre-trial arrest warrant by a judge every 30 days. Although according to the Romanian Constitution (Art. 145 paragraph 2) the decisions pronounced by the Constitutional Court are binding, its 1995 decision has been observed only in part. It took a second decision on the same topic, pronounced by the Constitutional Court in 1998, for this guarantee to be observed as such. Moreover, in 1999, the Criminal Department of the Supreme Court of Justice expressed the opinion that, although the Constitutional Court had ruled that the provision of Art. 149 paragraph 3 of the Penal Procedure Code (on the term the defendant can spend in detention during the trial) is no longer inapplicable, “the other provisions of the Penal Procedure Code on making, maintaining and revoking the decision to apply the measure of pre-trial detention shall not become inapplicable as long as the Constitutional Court has not specifically declared them unconstitutional”.

The scarcity of funds from the budget is another main problem of the penitentiary system. The most direct and serious consequence is that DGP disposes of minimal funds to expand, fit up and modernise detention spaces. Under these circumstances, the detainees continue to be subjected to what actually amounts to a degrading inhuman treatment. DGP must do the utmost to support the — indispensable — investments made to expand and modernise as fast as possible the detention spaces from Satu Mare and Tulcea and to fit up the former military barracks from Movila Vulpii, taken over by the Margineni penitentiary. Of course, the state budget funds are indispensable in solving the serious problems related to the conditions of detention. Still, penitentiary management should try to find other sources of money, within the legal limits. The fact that some penitentiaries have succeeded (the Mandresti penitentiary, for instance, through a partnership with a Dutch non-governmental organisation, has modernised some of the detention rooms) shows that such initiatives can be successful. In addition, APADOR–CH reiterates that a higher degree of autonomy of each penitentiary would create opportunities to turn to good account the human and material resources at the local level. For instance, if the output of animal farms and vegetable gardens owned by penitentiaries exceeds the internal demands, the products should be sold on the local market. The money obtained could be used to buy foodstuffs that the farms do not produce or other goods.

Food continues to be insufficient and low quality in most cases. The first reason is indisputably the lack of funds and the rigid feeding norms established by DGP, which do not allow for an improvement of the diet even if penitentiaries do have supplementary resources (as noted on the occasion of the APADOR–CH visit to the Chilia Veche penitentiary). APADOR–CH wishes to reiterate a suggestion already made, namely that DGP should establish the minimal feeding norms and allow the penitentiaries to improve on them, function of the local resources. During its visits to penitentiaries over several years, APADOR–CH has also come to the conclusion that the poor quality of food is also due to bad management of — and lack of control over — the ingredients. Actually, in all penitentiaries visited by APADOR–CH, the detainees complained about the lack of fundamental ingredients — mainly meat — from the food they receive, although the menus mention them. The APADOR–CH representatives saw for themselves that with few exceptions the food contained lard (and sometimes meat by-products) even when the menus and the books did mention meat. Such situations — obviously unpleasant for those that cause them — often get preposterous explanations, the most frequent being that “the meat melts when boiled”. It is regrettable that penitentiary management treat this issue with levity. APADOR–CH has constantly pointed out to these irregularities in its reports, as well as to the fact that the lack of effective control exercised by the detainees will perpetuate this situation. In part of the penitentiaries visited in 1999, the detainees have no control over the management of foodstuffs and the preparation of food (Baia Mare, for instance) while other have bureaucratic systems consisting in a file with the detainees' “opinions” on the food, mostly favourable and written in the same hand (Craiova-adults, Satu Mare, etc.). In Tulcea and Iasi, things stand better from this point of view and there are fewer complaints than in other penitentiaries. APADOR–CH urges DGP to institute at the level of each penitentiary an effective system of control exercised by the detainees through their elected representatives, who should check how the ingredients are used.

The hygiene in detention places is unsatisfactory in most cases. The explanations lay on the one hand in the scarcity of funds, and on the other in the lack of interest of many employees with competencies in this field. In some cases (Satu Mare, for instance) rooms that accommodate 80 detainees are provided with only one toilet, so that the detainees have to queue all the time. Besides the fact that it is impossible to maintain an acceptable degree of hygiene and besides health risks, APADOR–CH considers that this situation is degrading and humiliating for the detainees. In the same penitentiary — but in others as well — the toilets are separated from the rest of the room only by a curtain; it is obvious, under these circumstances, that the detainees' privacy is permanently invaded and that it is impossible to maintain a satisfactory degree of hygiene. The lack of funds fails to explain completely why some of the penitentiaries visited in 1999 continued to be invaded by lice, bugs and mice. If high amounts of money are needed in order to build and fit up detention spaces with hygienic lavatories, the maintenance of plumbing, which often leak, or spraying for bugs and mice would simply require more interest from the employees with competencies in this field. This is proved by the fact that, although they have at their disposal similar sums from the budget, some penitentiaries succeed in ensuring a fair degree of hygiene (Margineni, for instance), while others do not (Tulcea and Baia Mare — in the latter, some rooms had not been sprayed for bugs and mice for over one year and a half).

The cultural-educational activities carried out in penitentiaries did not become more effective in 1999. The trainers (a trainer for 300, 500 or more detainees) are insufficient, given the overcrowding penitentiaries are faced with and the serious issues related to the detainees education and re-education. Most trainers work with groups made of the detainees from one room. The disadvantages are obvious: the same detainees, who know each others' problems by heart, the high number of persons per group (some rooms accommodate 100 detainees or more), topics established by DGP, often uninteresting for the detainees, etc. APADOR–CH believes efficiency could be improved if trainers worked with small groups (up to 10 detainees, at it has already been tried), especially if the detainees' interest in certain topics is taken into consideration. This supposes, of course, a higher number of hired trainers, but it also imposes a change in the mentality of people working in the penitentiary system, as well as an effort to attract the highest possible number of organisations and persons from outside the system that would be interested in advancing the detainees' moral recovery.

Given that the conditions to organise cultural-educational and leisure activities in penitentiaries are modest to say the least, the penitentiary managers should be more concerned about finding solutions from outside the penitentiaries, especially by applying to cultural institutions at the local level. Unfortunately, there have been very few such attempts, although they are very beneficial when they succeed (for instance, the Tulcea penitentiary management succeeded in taking the detainees to six shows organised in town especially for them in 1998 and 1999). The meetings organised by the Craiova juvenile penitentiary with detainees and students from the schools in town are also noteworthy.

APADOR–CH suggests once more that the minors and the detainees with high sentences, especially life sentences, should be paid special attention in the planning and organisation of cultural-educational and leisure activities. The programmes organised at the Craiova juvenile penitentiary confirmed a genuine concern for minors and young adults, which proves that the mentality of officers and non-commissioned officers can be substantially changed for the better.

The APADOR–CH representatives noted that in most cases the walking grounds, obviously insufficient given the overcrowding, are not used to the fullest. In many cases the APADOR–CH representatives found the yards empty at hours when the detainees could have used them. Similarly, in some situations the daily walk was by no means a daily routine; the detainees complained that they were taken out very seldom (some rooms in Tulcea — once a week, in Deva, two or three times a week) and only for about 30 minutes. The daily walk, movement in the open, sports make poor detention conditions more bearable. One can easily realise that when the penitentiary staff understands this fact, their relationship with the detainees in less tense and the detainees' complaints fewer.

The high number of collaborations established between most penitentiaries and organisations from outside the system was a success in 1999. One should keep in mind the co-operation of the Deva, Mandresti, Margineni, Satu Mare, Baia Mare, Craiova–adults with the Humanitarian Service for Penitentiaries (Romanian acronym SUP). SUP organised training courses in partner-penitentiaries (for qualified plumbers, iron workers, masons, carpenters, tinsmiths) and health education courses and examinations with doctors and equipment from outside the penitentiary system. Another positive element is the co-operation with representatives of various religious denominations (Catholic, Reformed, Adventist of the 7th day, Baptist) and religious associations (God's Army, the Satu Mare Humanitarian Orthodox Society, Rock of Ages, the Hunedoara Association of Baptist Women). The faculty of psychology of the “Alexandru Ioan Cuza” University from Iasi provided assistance to groups of detainees facing adjustment and behaviour problems. Non-governmental associations such as the Romanian Anti-AIDS Association (ARAS), Alcoholics Anonymous of Baia Mare, People for People from Focsani, Social Alternatives from Iasi, Prison Fellowship (Cluj), and the foundation Connections also supported part of the penitentiaries visited by APADOR–CH in 1999.

During their visits to penitentiaries, the APADOR–CH representatives were informed that the detainees are forbidden to change their religion while in detention. APADOR–CH considers that this restriction is an unlawful limitation of religious freedom. The situations when this right can be restricted are clearly stipulated in the Romanian Constitution and in the international treaties in the field ratified by Romania, and the persons that serve a term in prison are not listed among these cases. Moreover, the restriction of fundamental rights and liberties can only be applied by legal means, and there is no such law in Romania. In November 1999, APADOR–CH notified DGP about this unusual situation. The DGP officials answered that “a very small number of detainees expressed the desire to change their confession” and that “in order to learn more on this subject, APADOR–CH should resort to the Religious Assistance Service with the Ministry of Justice, which co-ordinates this activity in penitentiaries”. The answer is inconclusive, because it appears to avoid an issue which is genuine, in the opinion of APADOR–CH. The association urges the DGP officials to throw light on this matter — if necessary, at the level indicated by APADOR–CH — and, if such interdiction does exist, to step in order to have it repealed as fast as possible.

The medical personnel that provides medical assistance to detainees is insufficient and improperly used.

The scarcity of medical staff — especially of doctors — is the most serious issue. It has many causes. Firstly, although the very employment norms provide too small a number of doctors for the number of detainees (and the health problems they are faced with), the doctors also have look after the military staff. It so happens that the example of the Mandresti penitentiary is representative for most Romanian penitentiaries: a general practitioner, a dentist and 7 medical assistants are responsible for the state of health of almost 1,500 detainees and over 200 employees. Although in all penitentiaries the number of detainees is 6, 7 or more times higher than the staff, the share of time allotted to the detainees on the one hand and to the staff on the other is detrimental to the former category. Some penitentiaries (Margineni, Baia Mare, Iasi, etc.) have separate medical offices for detainees and staff, in equal or almost equal numbers, while the same medical staff must nurse both categories. The small medical staff and the fact that they also examine the military staff lead to a decrease of the average examination of detainees to anything between 3 and 10 minutes. APADOR–CH repeatedly asked the DGP officials to order that the medical staff employed in penitentiaries take care exclusively of detainees, except for emergency cases. The staff live at large and can resort to the services provided by hospitals, dispensaries and medical practices outside the penitentiary system. A happy exception with regard to how this situation has been understood and solved is the Craiova juvenile penitentiary.

On 13 July 1999, DGP officials informed APADOR–CH (by means of registered letter No. 1653) of the issuance of an order providing that “starting with 01.07.1999, the military staff shall resort to family doctors for medical problems; the penitentiary medical offices shall ensure emergency services and periodical examinations, in accordance with the military law in force”. Still, APADOR–CH remarked that in the penitentiaries visited after that date the medical staff continued to provide medical assistance to the penitentiary staff.

On the other hand, the medical staff is insufficient because some job openings, fewer as they are, are not occupied. At Chilia Veche, for instance, there has been a position for a doctor for quite a while (and one medical assistant ensures the medical assistance for over 700 detainees and 84 employees), while at Margineni one general practitioner, one dentist and 6 medical assistants look after 2,100 detainees and a staff of 268, although the employment plan provides for two more doctors.

The poor quality of medical assistance is sometimes worsened by the lack of interest and responsibility and by behaviour counter to the ethical code of the profession of some penitentiary doctors. Right after its visits to the Tulcea and Iasi penitentiaries, APADOR–CH drew attention to the cases of dr. Nanu and dr. Oatu, respectively (further details about the later will be presented in the chapter describing the events that occurred at the Iasi penitentiary in September 1999). Dr. Nanu, the only general practitioner supposed to nurse the over 2,000 persons detained at the Tulcea penitentiary and the Chilia Veche penitentiary section, is often inebriated (on the occasion of the APADOR–CH visit to the Tulcea penitentiary, he was drunk at 10:30 a.m.). As Chilia Veche is isolated (a three-hour ride by the Tulcea penitentiary motorboat), APADOR–CH insisted that DGP should provide the section with a fast motorboat for emergency cases, in order to avoid the situations in which emergency cases at the Chilia Veche section make it to Tulcea in 6 hours (that is what it takes for the Tulcea penitentiary motorboat to get to Chilia Veche and back).

Psychiatric cases are another serious issue in penitentiaries. Their number is quite high, and penitentiary doctors confirmed APADOR–CH's suspicions that many of them should be admitted to specialised institutions rather than be detained in penitentiaries. At the Mandresti penitentiary, for instance, there were about 120 such cases, a third of which should have been admitted to specialised institutions. In Satu Mare, out of 25 psychiatric cases, 5 should have been admitted to hospital, while in Iasi 26 of the over 100 such cases suffered from epilepsy and required daily treatment.

Currently, the practice differs from penitentiary to penitentiary, as there are no consistent regulations issued by DGP. Some penitentiaries follow the procedures of the “punishment report” (Deva, Iasi, Baia Mare, etc.), others, the “incident report” (Tulcea, Mandresti, Margineni, Satu Mare, Craiova–adults, etc.). The latter is a more recent procedure, introduced as an experiment about 2 years ago as an alternative to the “punishment report”. APADOR–CH has strongly advocated in favour of the “incident report” procedure, which supposes the following stages: the officer or non-commissioned officer (usually the guard) who records the incident describes the events in writing, without proposing or suggesting a punishment; the report is analysed by a commission — usually made of the chief of the security and penitentiary treatment department, the chief of the social-educational service, the doctor and the section commander — which hears the detainee and the witnesses, if any, and establishes the punishment; if the detainee is dissatisfied with the punishment, he can challenge it before the commander or his deputy. This procedure is preferable to the “punishment report” for at least two reasons. Firstly, because if the non-commissioned officer who records the incident proposes a punishment (as it happens in the case of the “punishment report”) and if his superior disagrees with his suggestion, this will not prejudice the former's authority before the detainees. (On the other hand, if the suggested punishment is confirmed, the relationship between the detainee and the guard will become more tense than in cases where he simply describes the incident.) Secondly, in the case of the “incident report” the decision is made by a commission (not by the commander, as in the other case) and the detainee can challenge it before the commander. APADOR–CH asked DGP to order that all penitentiaries follow the “incident report” procedure, until the new legislation on the carry out of punishments by deprivation of liberty is adopted. The new legislation should institute a form of control from outside the penitentiary system over the application of sanctions. The DGP officials reassured the association that they will issue unitary regulations in this sense.

In the opinion of APADOR–CH, sanctions continue to be applied with some degree of levity. There are penitentiaries (Tulcea and Baia Mare, for instance) where the refusal to go to work is punished, usually by isolation, although no penitentiary in the country is able to provide work for all the detainees. Still, the detainees who, for one reason or another, refuse to go to work are punished, although dozens of other detainees would be more than happy to replace them. There are also numerous cases in which detainees are punished, usually also by isolation, for “disrespectful attitude towards the staff” (in Baia Mare and Satu Mare, for instance). It is questionable whether such severe measures are well-grounded, as it all comes down to the detainee's word against the word of the employee who was allegedly insulted. It is easy to infer that usually the employee's word is believed. Obviously, in some cases the detainees do raise their voices or use irreverent words, but APADOR–CH believes that the staff should take into consideration the constant stress the detainees are subjected to, the precarious degree of education of most inmates and the fact that detention conditions are often inhuman. APADOR–CH wishes to stress again the poor conditions in the isolation rooms. The stench is unbearable in many rooms, which are full of lice, with no sheets, torn dirty mattresses and poor medical assistance. All these prove that the conditions of detention are much tougher than in the other detention spaces, which causes suffering to those punished by isolation. In 1999, the worst such cases was documented by APADOR–CH in Baia Mare, Satu Mare and Iasi.

Although quite rare, there still are cases of detainees who complain about having been beaten by the staff. At the Baia Mare penitentiary, APADOR–CH discovered heavy wooden mallets with long handles, used “to check the iron bars”, according to the staff. Some detainees, however, revealed that the non-commissioned officers used to beat them with the wooden mallets and that a non-commissioned officer was even being investigated by the Military Prosecutor's Office for hitting the detainees. DGP denied that the detainees were beaten with mallets but confirmed that one of the non-commissioned officers (senior sergeant Ciprian Pop) was under investigation for having hit the detainees. In Iasi, several detainees complained about the violent behaviour of officers and non-commissioned officers (further details in the chapter describing the September 1999 events that occurred in this penitentiary).

In many cases, detainees complain about the length of trials, the inefficiency of ex officio lawyers, the delays in informing the penitentiaries of court decisions and the levity with which some prosecutors issue pre-trial arrest warrants. Some detainees practically had to defend themselves and ended by accusing themselves, as they were not familiar with the law. They suggested that the penitentiaries should employ legal counsels to advise them in such situations. Many do not trust the prosecutors in charge of penitentiaries, who visit the penitentiary they are assigned to once a week to participate in the sessions of the parole board and to talk with the detainees. Until a new law on penitentiaries is adopted, APADOR–CH asked DGP to look into the possibility to hire legal counsels. In some cases, minor detainees also complained about their ex officio lawyers that they can never talk to because the latter never go to penitentiaries and sometimes do not even show up in court, either because of their lack of interest or because of the unusual restrictions enforced in court rooms.

APADOR–CH learned that the secrecy of correspondence is observed in the penitentiaries visited in 1999. Letters are no longer read by the staff; still, all envelopes mailed or received must be closed/opened in the presence of an employee, lest the detainees should send/receive money, narcotics, etc. Unfortunately, in some penitentiaries (Tulcea, for instance) the correspondence continued to be limited to one letter mailed and one received every month. APADOR–CH received mail from detainees accompanied by form letters signed by the penitentiary commander and the chief of the records department (Iasi penitentiary). APADOR–CH cannot agree with such practice, liable to allow for violations of the privacy of correspondence by the penitentiary staff.

Most penitentiaries have pay phones that can be used by the detainees. The procedure differs from one penitentiary to another. In some penitentiaries the detainees are allowed to make as many phone calls as they want (Baia Mare), while in others — actually, in most — they are allowed to make only one phone call a month (Craiova—adults and Iasi). In the last two penitentiaries as well as in others the guards must be present near the detainee that makes the call, in which case the call is listened to and the secrecy of correspondence, obviously, violated. Another violation of the secrecy of correspondence (but also an instance of excessive, pointless bureaucracy, as long as the written correspondence is secret) are the restrictions and procedures often imposed on the detainees that want to make phone calls: phone cards are kept by a penitentiary employee, the detainee must apply in writing to the commander to be allowed a phone call (the application must include the phone number they want to dial, the person they want to contact and even the topic of conversation in some cases — in Turnu Severin, for instance). In some cases, the penitentiary management regard the right to make phone calls as a reward. APADOR–CH urges again DGP to give up any restrictions and limitations related to the detainees' right to make phone calls — besides those related to technical issues.

Most detainees serve their terms in the “classical”, closed system. Although the new law on penitentiaries has not been yet adopted, the others serve their terms in semi-open (in all the penitentiaries visited in 1999) and open sections (in Mandresti). As there are no precise unitary rules in this respect, the criteria according to which detainees are assigned to semi-open and open sections and the concrete features of detention in the two regimes are quite different and vague. At the Mandresti penitentiary, for instance, the difference between the two categories, quite hard to perceive in terms of concrete advantages for the detainees, are that the open section includes first time offenders who serve short terms while the semi-open section also includes multi-offenders. Normally, the first category should be accommodated “extra muros” (that is, in the penitentiary area, but not in the penitentiary itself), which does not happen, and should be able to go home for the weekend, which does not happen either. Practically speaking, both categories are accommodated in the penitentiary, but they are free to move from one room to another — only within their section — and to spend time in the yard. The detainees from both categories go to work accompanied by unarmed guards and wear distinctive uniforms. In some of the penitentiaries visited (Satu Mare, Baia Mare) there also is a category of detainees who are not guarded, mostly detainees who have satisfied the compulsory military service and help the staff carry out various activities, including guarding the other detainees. Although they are far cry from the European standards in the field, the semi-open and open sections introduced in some penitentiaries are a positive development, especially as the law still in force is obsolete, specific to a totalitarian system.

Most detainees with life sentences live at the Craiova penitentiary for adults. They share small rooms in twos and threes, are not allowed to work and attend no cultural-educational activities. They said that the trainers merely distribute newspapers through the peepholes. The only good thing is that they are allowed to spend 2-3 hours daily in the open and that they can play football once a week. They are taken to the medical office only in case of serious emergencies. Usually, a medical assistant goes once a week with a box of medicines that he distributes in the guards' room, where the detainees are brought one at a time. The penitentiary used the small number of staff as an explanation. For the APADOR–CH representatives who visited the penitentiary is was obvious, however, that the staff are seriously afraid of this category of detainees, regarded as extremely dangerous. (Before entering the first room of this section to talk to the detainees, the APADOR–CH representatives were warned by the staff that they do so “on their own responsibility”.)

APADOR–CH considers that more attention should be paid to detainees with life sentences, alongside with the detainees with high sentences. Special programmes should be created for these detainees who are forced to stay for 21-22 hours a day in small rooms, doing nothing and with no hopes for the future. APADOR–CH believes that it would be beneficial to accommodate such detainees in other penitentiaries as well. Thus, the special issues related to this category would be easier solved if they are divided among more penitentiaries. A relevant — involuntary — experience occurred in the second half of 1999, when the Craiova section was closed for repairs and the detainees were spread to other penitentiaries. As far as APADOR–CH knows, none of them have caused special problems in the penitentiaries where they are accommodated temporarily.

On 3 September, 7 detainees climbed on the penitentiary roof and refused to go back to their rooms. The detainees protested thus against the brutal behaviour, the ill-will and the lack of interest of dr. Oatu. While the 7 detainees were on the roof, their colleagues gave them food and cigarettes, using ropes. The detainees in the rooms apparently expressed thus their solidarity with their colleagues, against the specific interdiction imposed by the penitentiary commander. Consequently, groups of officers and non-commissioned officers stormed several rooms and beat up the detainees. APADOR–CH considers that the military staff behaved in an unacceptable manner. Even if the detainees did stray from the discipline, the officers should have checked the situation and followed the legal procedure instead of resorting to such violent actions. The detainees on the roof returned to their rooms following negotiations with the penitentiary officials. As a sign of solidarity with the detainees who climbed on the roof to protest against the treatment they were subjected to in prison, about 20 other detainees maimed themselves. On 27 September, other 3 detainees climbed on the roof, but returned to their rooms the next day, following discussions with two DGP officers. The 10 detainees who climbed on the roof were punished by ten days of severe isolation. The penitentiary applied to DGP, proposing that they be subjected to restrictive regime for 8 to 12 months. There was no use of force against them.

The unlawful, violent and insulting behaviour of some employees of the Iasi penitentiary against the detainees is a very serious problem in the opinion of APADOR–CH. During the visit, the APADOR–CH representatives came to the conclusion that dr. Oatu and Major Ghituleasa (another officer against whom the detainees had complained) were the most abusive. The penitentiary management confirmed that 9 detainees had lodged complaints to the Prosecutor's Office against dr. Oatu in the past few years. Many detainees said dr. Oatu beat and insulted them frequently. Constantin Ghinda, for instance, was beaten in January 1997 by the doctor, suffering a spine trauma. In many cases, dr. Oatu examined the detainees superficially, telling some of them “to go to the bathroom” (that is, to masturbate) to solve their health problems.

Therefore, the 3 and 27 September events were a direct consequence of the treatment many detainees are subjected to by the penitentiary staff. That is also why a high number of detainees from the Iasi penitentiary maimed themselves — there were about 400 cases of self-maiming in 1999 alone, a much higher number than in all the other penitentiaries visited by APADOR–CH. The association urged the Ministry of Justice and DGP to start unbiased inquiries related to the brutal behaviour of some of the penitentiary's officers and non-commissioned officers.

1999 was a crossroads year with regard to freedom of belief and religion in Romania. This issue followed the trends set during the previous years: (1) obstacles to free exercise of religious life for religious communities that have not been acknowledged as denominations; (2) obstacles for religious communities that was to be recognised as legal entities; (3) religious discrimination; (4) the inefficiency of the judiciary in re-establishing the right to property, especially in the case of Greek-Catholic churches. A significant development was the ordinance by means of which it was decided that the clergy be remunerated entirely from the state budget. But the event that turned 1999 into a cornerstone for religious life in Romania was the adoption by the Romanian Government of the draft bill on the status of religious denominations, which was submitted to the Parliament.

1) Obstacles to free exercise of religious life for religious communities that have not been acknowledged as denominations

In principle, Romanian religious communities can apply to the State Secretariat for Denominations (Romanian acronym SSC) to be recognised as denominations. The only religious community that obtained recognition — by means of a Decree-Law issued by CPUN in 1990 — was the Greek-Catholic Church. Although other religious communities made similar applications, none has been so far recognised as a denomination. Baha'i and Jehovah's Witnesses scheduled appointments with public authorities representatives to advocate for their wish to be recognised as denominations, to no avail. It is significant to mention that SSC refused to make the necessary steps in order to submits the necessary documents to the competent authority — the President of Romania. (The above communities also applied to the presidency, with no results.) Therefore, SSC stands as an obstacle between the competent authority entitled to grant — or deny — the status of denomination and those who apply for it.

2) Obstacles for religious communities that was to be recognised as legal entities

A choice for religious communities who want to be recognised as legal entities is to apply for the status of religious association or foundation. Subsequently, they fall under the incidence of Law No. 21/1924. The status of legal entity is granted by the court of law. The court asks for an opinion — in this case, of the State Secretariat for Denominations that has an advisory role. Regardless of whether the opinion is expressed or not, positive or negative, the courts can make a decision. The only control exercised by the court refers to the constitutionality of associations and foundations and the consistency of their statute with the general provisions of Law 21/1924, with the observance of the right to association enshrined in the fundamental law.

The constant policy of SSC in 1999 as well as in the previous years was to issue negative opinions, for no serious reasons. (More precisely, this behaviour ran against the freedom of religion and belief SSC is supposed to defend.) Although in principle such negative opinions should not change the decisions made by courts, which should support freedom of association on a religious basis included, in practice they are often influenced by the opinion expressed by SSC. A typical case occurred in 1999, when the application of the Community of Christians in Bucharest was turned down subsequent to the negative opinion expressed by SSC. (The association was acknowledged as a legal entity following the appeal judged on 18 November 1999.)

There are various types of religious discrimination, such as the authorities' refusal to investigate complaints lodged by the members of minority religious communities, victims of violence perpetrated by the majority, or the policy of consistent negative opinions mentioned above. The two examples below demonstrate the scope of intolerance manifested against religious minorities.

a) In the Vadu Izei municipality there is only one church, built by Greek-Catholic believers in 1884. On the basis of Decree 358/1948, the parish church was taken over by the Orthodox Church, together with the parish house, the cemetery and the plots of land. The Greek-Catholic parish Vadu Izei was restored in 1996. As the Orthodox party did not allow the Greek-Catholic access to the church, the local council was asked to allot a space from the House of Culture, for two hours, on Sundays and holidays. The request was turned down, although public authorities are bound to ensure the necessary conditions for the observance of religious rituals — and these conditions could have been easily ensured by the local council. The representatives of the Greek-Catholic parish mentioned the opposition of the Orthodox parish representatives.

b) The Buzau Prefect's Office sent a letter to the townhalls in the Buzau county regarding the dissemination of materials qualified as “religious proselytism and propaganda” in the municipality of Sapoca. The authors were called “a group of sectarians belonging to the Evangelical Alliance”. Invoking the “traditional Christian faith”, “constitutional provisions” and the “Law on Local Administration” (obviously failing to understand the Romanian legislation that protects religious freedom, which includes the publication and dissemination of religious materials) the Prefect's Office euphemistically suggested that such activities should be “directed” (that is, kept under control) following an analysis made by the local councils.

4) The inefficiency of the judiciary in re-establishing the right to property, especially in the case of Greek-Catholic churches

Until 1999, the right to property on the former worship places, on the Hungarian churches in Romania and on the churches of the Mosaic denomination had been partially re-established. The most dramatic situation is that of the properties belonging to the Greek-Catholic Church. It should be reminded that 2,206 worship places of the Greek-Catholic Church were seized in 1948. A very small number was recovered in court and not all have been actually returned. Currently, about 160 worship places with used to belong to the Greek-Catholic Church are now owned by the Orthodox Church and are unused and locked, but the Orthodox Church refuses to return them.

Some courts delay judging applications for restitution in a manner that obviously violates the standards of fair trial. Thus, the trial for the retrocession of the St. Basil Church (the Polish Church), a symbol of the Greek-Catholic Church in Bucharest, began in 1999 and has still not been concluded.

On 23.03.1999, the Romanian Government submitted to the Chamber of Deputies a draft bill on the remuneration from the state budget of the clergy of acknowledged denominations. The draft bill was blocked by the negative opinion expressed by the Commission for Labour and Social Protection, which considered that the law would “lead to the violation of the constitutional principle according to which religious denominations are autonomous from the state ad enjoy state support” (Art. 29 (5)).

Despite this, the remuneration of clergy was decided by government ordinance. APADOR–CH considers that remuneration of clergy from the state budget runs counter to the autonomy of denominations. The support allowed by the Constitution must be granted so as not to jeopardise the principle of autonomy.

A secondary effect of direct funding from the state budget is the fact that the system leads to the interference of political interests with those of the clergy. The blend of the two kinds of interests threatens the secular character of the state. This situation has negative consequences over religious freedom and over public interests, as it has constantly happened in Romania over the last years.

The draft bill was adopted by the Romanian Government in September 1999 and submitted to the Chamber of Deputies.

The first measure taken to ensure religious freedom in Romania after December 1989 was to acknowledge the Greek-Catholic Church — the fifteenth denomination with this status. The Romanian Constitution, adopted in December 1991, enshrines the principle of freedom of thought, opinion, and religious belief (Art. 29). Still, as long as no other provision related to religious communities was adopted, Decree No. 177/1948 remained in force, except for the articles that blatantly violated constitutional principles.

Decree 177 had been drafted and adopted by the communist authorities in 1948, and obviously aimed at limiting and controlling religious life in Romania. Consequently, a new law on religious denominations has been envisaged ever since 1990. The State Secretariat for Denominations — an institution created following the pattern of the Ministry of Denominations that used to function until 1990 — was commissioned to finalise this draft bill. In principle, it was decided that the project be drafted following consultations with the 15 acknowledged denominations and a Commission was created in this sense. Several drafts have been proposed, but no one reached consensus.

After 1996, Mr. Gheorghe Anghelescu, professor of theology at the Craiova Orthodox Theological Faculty, was appointed head of the State Secretariat for Denominations. Given his position, the new State Secretary had a moral duty towards the Romanian Orthodox Church, the denomination with most adepts in Romania (19,762,135 members of the orthodox church, according to the 1992 census, over 80% of the country’s population). He was not impartial, as his position would have required; in many cases, he acted as a representative of the Romanian Orthodox Church, in accordance with the policy of the Orthodox Church, rather than as an official of a secular state.

During the first half of 1998, the State Secretariat for Denominations issued two new draft bills. None reached the consensus of the 15 acknowledged cults. The draft bills dissatisfied some religious organisations — Baha’I and Jehovah’s Witnesses among others — and were severely criticised by human rights organisations.

On 13 September 1999, the State Secretariat for Denominations submitted to the Romanian Government a “Draft Bill on the General Status of Religious Denominations” that differed from the prior draft bills in certain important aspects. Provisions that had previously been criticised before the public opinion for violating freedom of religious belief were changed for the worse. These provisions and other significant interventions made in the previous draft bills made obvious the authors’ intention to limit and control most of the Romanian religious life. In parallel, the draft bill intends to turn the Romanian Orthodox Church into an institution that enjoys a special relation with state authorities, that has a say in matters related to the religious and political life in Romania. It is significant that this version was kept hidden from the organisations and groups interested in the matter; the draft bill has not even been discussed in the Commission created specifically for that purpose.

The draft bill was endorsed by the Legal Commission — which exceeded thus its competencies — and by the Prime Minister — who, in his turn, used his position in an abusive manner. The draft bill was submitted to the Chamber of Deputies as a governmental initiative, which thus takes precedence over any other project initiated by MPs, in this field.

The draft bill on the general status of religious denominations was elaborated using the model of Decree 177/1948, that used to regulate the organisation and functioning of religious denominations in Romania under the communist regime. This fact deeply touches the draft bill, given that Decree 177/1948 used to aim at restricting religious life and instituting the communist state control over it. Same as Decree 177, the draft bill: (1) declares that the Romanian state guarantees freedom of religious belief; (2) grants a special status to a group of “acknowledged religious denominations”; (3) introduces regulations related to the structure of acknowledged denominations, while the leaders and the hierarchy of cults must be approved by the President of the country; (4) religious communities that are not acknowledged as cults can acquire the status of legal entities only as religious associations, upon the approval of the Government (through the Ministry of Denominations up to 1989, upon the approval of the State Secretariat for Denominations as of the adoption of the law on the general status of religious denominations).

Obviously, one cannot overlook the hard facts of religious life in today’s Romania, reflecting the system created on the basis of Decree 177/1948, which functioned for 50 years. But the fact that the current draft bill on the general status of religious denominations is a copy of Decree 177/1948, elaborated under the communist regime, is incompatible with a democratic country. A potential solution would have been to improve the current project so as to bring it in line with the principles of freedom of religion. Still, taking into account how extensively the freedom of religion and belief used to be violated by means of Decree 177, the logical conclusion would be that the current legislative initiative should be withdrawn. It should be replaced by a draft bill centered on an entirely new conception, in accordance with the spirit and the letter of the Romanian Constitution and with the standards provided by the international conventions elaborated within UN, OSCE and the Council of Europe (in particular the provisions of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief/1981 and of the Oslo Declaration on Freedom of Religion and Belief/1998).

The draft bill on the general status of religious denominations establishes the framework within which individuals, religious communities and denominations alike can manifest their freedom of conscience, opinion and religious belief. Consequently, the title should also make reference to freedom of religious belief, not just to denominations. The title demonstrates that the authors have not understood the goal of this law, which is freedom of religious belief in connection with the various forms of organisation of religious communities, rather than the status some communities have acquired in time.

The draft bill takes over and enlarges upon several declarative provisions from the Romanian Constitution, related to freedom of conscience, opinion and religious belief (Art. 29), but blatantly violates these freedom by means of its practical stipulations. The draft bill rejects the principle of state secularity (neutral/impartial state with respect to its religious subjects, excluding religion from public life) and promotes the principle spelled out in Art. 29 par. 5 of the Romanian Constitution, according to which religious denominations enjoy state support. In other words, certain collective subjects (churches, denominations) are free to act in circumstances where they enjoy substantial advantages as compared to other collective subjects. The advantaged groups represent a small share of the multitude of religious communities in today’s Romania and the current draft bill imposes conditions that will prohibit the expansion of the advantaged group.

Given the current political and religious situation in Romania and the way the current draft bill is attempting to make the best of it, the current initiative aims to ensure the domination of the Romanian Orthodox Church in the Romanian state as a whole.

MAIN CRITICAL REMARKS ON THE DRAFT BILL ON THE GENERAL STATUS OF RELIGIOUS DENOMINATIONS

The draft bill has several flaws related to its formulation and its construction, from a legal point of view. The following critical remarks are focused only on the conception of this draft bill, that is, on the content of its articles as such. These remarks follow the division into chapters and address only the main flaws.

1. Neither this chapter nor the whole draft bill, for that matter, contains a description of the contents of freedom of religion and belief. Given the frailty of the Romanian justice system, a vague definition of terms allows for arbitrary interpretations of the bounds of freedom of religion and belief by the Romanian institutions. The most striking example is provided by the policy of the State Secretariat for Denominations, which has urged the townhalls and prefect’s offices since 1997 to turn down religious associations and foundations that had applied for licenses to build worship places. (Many townhalls and prefect’s offices complied with this request.) That is why a law on the status of religious denominations and freedom of religious belief should necessarily define in depth the contents of freedom of religion and belief. The definition contained in the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief (Art. 6) should be used in this sense.[2]

2. The new form of the draft bill on the general status of religious denominations includes under Chapter I two articles: Art. 4, which is newly introduced, and Art. 5, which has been slightly amended and has a particular significance. The author’s interventions on the various versions demonstrate their intention to reduce religious life in Romania to a field strictly controlled by state institutions.

“The religious denominations are the forms of organisation of religious life in Romania. In Romania there shall also function religious associations and foundations.”

In other words, “religious denominations” — that is, “religious denominations acknowledged by the Romanian state”, in accordance with the law — are the legitimate forms of manifestation of religious life in Romania. But these are particular forms of organisation, enjoying a special status in comparison with other forms of religious manifestation. The reference to “religious associations and foundations” in a separate sentence sends implicitly to the restrictive provisions of Chapter III on religious associations and foundations and prove the existence of a strategy carefully designed to severely restrict the forms of manifestation of religious life in Romania. Such conception obviously runs counter to the principles of freedom of religion and belief.

“In Romania, religious denominations acknowledged by the state (emphasis added) are autonomous from the state. The Romanian State shall recognise, observe and guarantee their autonomy.”

The prior versions of the draft bill on the general status of religious denominations also make such references to the autonomy of religious denominations, but do not introduce the phrase underlined above, namely “acknowledged by the state”. This could mean that the Romanian state guarantees only the autonomy of religious communities that have acquired the status of denominations in the sense of the draft bill, which lists only 15 acknowledged denominations. The authors refuse thus to accept the fact that the “autonomy of religious denominations” is a general principle, applicable to all forms of religious organisation, not just to a small number of communities listed by the state. The modifications undergone by the previous draft bills prove a deliberate will to contest the general principle of autonomy for all religious cults (therefore, this is not a mere flaw in the wording of this article).

“The state shall support the activity of religious denominations, in accordance with the principle of proportionality”.

The support provided by the state to the activity of religious denominations can consist at least of guarantees, facilities, financial and patrimonial aid. Consequently, the principle of proportionality is devoid of content or has a limited sense with regard to the “support provided to the activity of religious denominations”. The guarantees and facilities cannot be provided by observing the principle of proportionality. It might seem logical to provide financial assistance to religious denominations function of the number of their members. But things change when it comes to allotting broadcasting frequencies by auction for religious broadcasts. Actually, Art. 39 par. 2 provides: “Religious denominations shall be granted free access to the state-controlled media, without discrimination, in accordance with the principle of proportionality”. If one takes into consideration that over 80% of the Romanian population are members of the Orthodox Church, to observe the principle of proportionality will actually mean to exclude all television and radio broadcasts other than those of the Romanian Orthodox Church. Given the discriminatory attitude of Romanian institutions towards the requests of some denominations other than the Romanian Orthodox Church, which applied for their own broadcasts, it is obvious that, by applying this principle, the authors have intended to instate the monopoly of orthodox broadcasts in the Romanian media.

4. Art. 8 of the draft bill on the general status of religious denominations reads as follows:

“The relations among denominations shall be based on the ecumenical spirit, on tolerance and mutual respect.

Any acts of defamation and religious feud, proselytism by religious aggression and by any form of compulsion shall be prohibited in the relations among the various forms of organisation of the religious life in Romania.”

A first remark is related to the first paragraph of this article. The ecumenical spirit, tolerance and mutual respect among denominations are natural principles. But Article 8 is included in the chapter that contains general principles, not in the one that regulates the status of religious denominations. Consequently, the reference to ecumenism, tolerance and respect should be made with respect to any forms of religious manifestation, not just to religious denominations. These norms of behaviour, listed only with respect to denominations — as legal entities under public law — represent in fact a limitation of the scope of these principles.

The remark above is strengthened by the second paragraph of Art. 8, which forbids proselytism for the first time. According to the wording above, proselytism is actually taken to mean all religious manifestations other than orthodox on the Romanian territory, regarded by an important share of the public opinion — and particularly by the Romanian Orthodox Church” as “orthodox territory”. This fact is confirmed by the numerous attacks initiated by groups of orthodox believers, led by their priest, against members of the Greek-Catholic and the Baptist church, Jehovah’s Witnesses, etc., only because the latter had gathered to take part in religious ceremonies. Evidence in the sense above is the declaration issued by the Bishopric of Bucovina and Moldavia. When an orthodox group molested, at the call of their priest, the participants in a Baptist reunion, in Ruginoasa, in December 1997, the Bishopric issued the following press release: “Neither the orthodox community nor the orthodox priests are to be blamed for what happened there. The culprits are those who came into an eminently orthodox community (...) and aggressed its spirit in its own home. They did not respect the Constitution, common sense, they defied the social and Christian morals by coming, with impudence and insolence — probably considering that the villagers are ignorant — and trying to proselytise for their belief”.

“The state shall respect and guarantee the freedom of organisation and functioning of religious denominations, in accordance with the law.”

The idea that the organisation and functioning of religious denominations must be respected and guaranteed “in accordance with the law” is appropriate in a law dealing with the organisation and functioning of religious denominations only if their organisation and functioning is restricted by the state. This goal is confirmed in the following articles, running counter to the principle of the autonomy of denominations, that the draft bill also spells out. Actually, the topic that the draft bill must solve under this chapter is related to the fact that a number of religious denominations are granted the status of “legal entities under public law” by the state (Art. 15 par. 3).

The draft bill provides that each religious denomination has “a central leadership or representation body, local management bodies and central and local worship units” (Art. 15 par. 1), that their “statutes shall be elaborated in accordance with the testimony of faith and their specific tenets and traditions” (Art. 14. par. 2) Religious denominations are acknowledged as “legal entities under public law” (Art. 15 par. 2) and that the status of legal entity is confirmed by the State Secretariat for Denominations (Art. 15 par. 4) after having been acknowledged by the Government, by means of a governmental decision, upon the proposal of the State Secretariat for Denominations (Art. 24 par. 1).

As for the authority that has the competence to recognise denominations, that should be the Government, according to the draft bill. However, one must take into account the fact that recognition of a denomination is followed by guarantees, facilities and financial assistance, as well as by a favoured symbolical position in the society. According to the Romanian Constitution, the government ensures the implementation of the domestic policy, in accordance with its government programme accepted by the Parliament (Art. 101). Similarly, the general policy of guarantees, facilities and assistance fall with the Parliament; all the Government does is to ensure the executive function in connection with this general policy. So much the more, the competence of the Executive is exceeded when in comes to establish the symbolic place of a religious community within the society. That is why it is the Parliament rather than the Government that should be entitled to acknowledge denominations as legal entities under public law.

The State Secretariat for Denominations, on the other hand, can ensure the assistance and communication but by no means should it be in charge of confirming or promoting denominations.

The remarks above are also valid for Art. 27 par. 1, which stipulates that “The leaders of denominations, as well as the metropolitans, bishops, apostolic managers and others holding similar positions, elected or appointed in accordance with the statute of each religious denomination, shall be acknowledged by presidential decree, upon the denominations’ request and as soon as the State Secretariate for Denominations has ascertained that the legal conditions have been observed”.

The election and acknowledgement of the leaders of religious denominations should be up to each particular denomination, as an expression of their autonomy. This principle is stressed in the comments of the UN High Commissioner for Human Rights, which interprets the autonomy of denominations as their right “to organise their entire internal life, such as, inter alia, the right to elect their leaders, clergy, teachers”. The Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief interprets the right “to train, appoint, elect or designate by succession leaders called for by the requirements and standards of any religion or belief” (Art. 6 par. g) as a constituent part of the freedom of conscience, religion and belief.

The nature of the leadership of a religious community can play a prominent role in granting the status of denomination as a legal entity under public law. But assessing the nature of the leadership is a judgement that falls under the competence of the state authority; it is not an act of recognition that would fall under the competency of religious communities.

According to the draft bill, in order to be acknowledged as a denomination — legal entity under public law — a religious community should have a number of followers of Romanian citizenship amounting to at least “0.5% of the country’s population, according to the latest census” (Art. 23 par. 2). Similarly, “Parishes and similar worship units can acquire the status of legal entity if they have as members at least 5% of the population under the jurisdiction of the townhall of that locality” (Art. 15 par. 5).

Consequently, a religious community other than the already existing denominations can be recognised as a legal entity only if it has at least 115,000 followers. Similar calculations can be made with respect to parishes. These figures are prohibitive. This actually means that no denominations apart from the already existing ones will be accepted in Romania.

Such thinking reflects a rigid perspective on religious life. Moreover, it represents a direct violation of the principle of equality among denominations. Indeed, only 3 of the 15 cults acknowledged today exceed 115,000 members; those situated on the lower positions on this list count only several thousand adepts. It is illegitimate to impose more severe conditions than the current ones; the principle of equality among denominations, which should be understood as “equal chances”, is thus violated.

According to Art. 18 par. 2 of the draft bill, “The clergy of religious denominations shall be remunerated from the state budget, upon request”. Also, “the other categories of staff shall receive a contribution to the salary from the state budget, upon the request of denominations”. Moreover, the “Teaching and administrative staff employed in education institutions that are not integrated in the state education system, who train the staff employed in worship places, shall be remunerated by denominations, with a contribution from the state budget” (Art. 45).

Religious denominations that “own or manage boarding schools, hostels and canteens for pupils and students (...) can benefit from subsidies from the state budget” (Art. 47). According to Art. 48, religious denominations can acquire articles and materials related to the rites and customs of a religion or belief, movables and real estate by means of contributions from the state budget. Besides, “Worship places, monasteries, cemeteries, parish houses, church-owned cultural establishments, education units, central, diocesan, area and local seats of denominations shall be exempted from taxes and duties...” (Art. 49 par. 1). The manufacturing and sale of “objects and goods related to worship activities (...) shall be exempted from taxes” (Art. 53). Upon the request of religious denominations, the bodies of local public administration can “allot, free of charge, to the extent allowed by the available resources, lands for: building worship places, monasteries, the establishment or development of confessional cemeteries, charity and social security institutions” (Art. 50 par. 2). According to Art. 51, the state supports the denominations in building and repairing worship places and the buildings hosting charity institutions; according to Art 52, the state can provide contributions to cover other specific expenses of denominations.

In the light of the provisions above, the assistance provided by the state to religious denominations is excessive. It consists of guarantees, facilities, and direct financial or pecuniary aid, including the allotment of lands and buildings and the remuneration of the personnel employed in worship places. Practically speaking, the Romanian state supports religious denominations same as it supports the education, health, defence, scientific research systems, etc.

Under these circumstances, the secular character of the state is questionable. The clergy and the worship activities share the budget and the spheres of authority with other institutions specific to public life. On the other hand, given the autonomy of religious denominations, they can resort to ways of action that are not accessible to other legal entities under public law. The clergy is one of the most prosperous categories in today’s Romania. Still, a governmental decision adopted in 1999 provided that the priests’ salaries be paid entirely from the state budget and a similar draft bill was submitted to the Parliament, although teachers’ salaries could not be paid regularly in the same period. As “the statutory bodies of any denomination shall establish, according to their requirements, the number of clergy, technical and administrative staff” (Art. 17 par. 2), religious denominations can expand indefinitely, on the basis of the ever growing assistance the Romanian state is bound to provide them, according to the draft bill.

The massive assistance provided by the state to denominations leads to an interconnection between the economic interests of the hierarchy of denominations and those of political figures, of decision-makers in the Parliament and the Government, of the President. The increased involvement of the hierarchy of denominations, first and foremost of the hierarchy of the Romanian Orthodox Church, in the Romanian political life confirms this phenomenon.

According to the case law of the European Human Rights Court, funding the activities of religious denominations from the state budget does not represent a violation of the taxpayers’ freedom of conscience. Still, such policy of massive assistance granted to religious denominations tends to jeopardise the Romanian citizens’ freedom of conscience.

The remarks above indicate serious flaws of the draft bill on the general status of religious denominations. The most serious matters, however, are related to the provisions that regulate the activity of religious associations. According to the draft bill, apart from religious denominations there can only function religious associations. Religious communities are bound to request to be registered as legal entities, but in order to do so they must have “at least 300 members, at least 2/3 of them Romanian citizens”, and only “upon the previous agreement of the State Secretariat for Denominations” (Art. 6 par. 2).

These conditions represent the most severe violation of the freedom of religion and belief by the draft bill. Actually, the activity of the State Secretariat for Denominations has constantly focused against the freedom of action of religious minorities, following closely the policy of the Romanian Orthodox Church — see the March 1997 letter requesting that applications for building licenses be turned down/withdrawn. Art. 62 of the draft bill actually provides the necessary means for the application of such policy. Besides, the intention to severely limit the freedom of religious action is brought to a climax in Art. 67: “Religious activities carried out by associations that have not acquired the status of legal entity, in accordance with Arts. 62 par. 2, 63 and 64, shall be sanctioned by fines from lei 50,000,000 to lei 150,000,000 and with the suppression of that association, in accordance with the law.”

The current version of the draft bill on the general status of religious denominations is the result of last-hour amendments to the previous draft bills made by the State Secretariat for Denominations. The Secretariat has tried to prevent religious communities, the organisations and individuals interested in this initiative from being informed on the new provisions. This fact demonstrates that the authors of the draft bill were aware of the concerns expressed in connection with the draft bill they proposed and tried to present the dissenters with an accomplished fact.

The provisions of this draft bill seriously violate freedom of conscience, religion and belief. It violates the autonomy of denominations and the equality among denominations. The draft bill suppresses the secularity of the Romanian state by means of the excessive duties of the Romanian state, bound by law to support the activities of religious denominations.Given the current political situation, exploited accurately by the draft bill, the adoption of this piece of legislation will eventually turn Romanian into an orthodox state.

Some of the provisions of the draft bill on the general status of religious denominations are even worse than the Law on Denominations adopted by the Russian Federation in 1997. Actually, this draft bill represents a decisive act, the most important measure taken by the Romanian authorities after 1990, which brings Romania closer than ever to the system of values prevailing in the Russian Federation.

Taking into consideration the logical trend of the draft bill on the general status of religious denominations, it follows that it cannot be significantly amended in order to be improved. It is imperative that the draft bill be withdrawn by the Government and a new one be elaborated, in order to avoid the threats posed so obviously by the current draft bill. The conclusions to be drawn from the analysis of the intentions of this draft bill indicate the principles of a new initiative: (a) religious communities should be registered in accordance with the title and the nature they assume, which represents a component of their freedom of religion; (b) the subsidies from the state central or local budgets must be eliminated; religious communities should be funded directly by tax-payers, by allotting directly a percentage of the taxes they pay to the state (probably 1%) for this purpose; (c) religious communities should be granted the status of legal entities under public law, so as to observe (i) the autonomy of denominations; (ii) the equality among denominations; (iii) the other principles of the secular state.

If the current initiative is not rejected and religious life in Romania is regulated by a law on the general status of religious denominations similar to this draft bill, the Romanian state will eventually replace — following a ten-year transition — the communist ideological collectivism by a religious collectivism; Romania will turn into an orthodox state.

APADOR–CH launched an extensive national and international campaign, pointing out the extreme danger represented by the current draft bill on the general status of religious denominations in Romania for the freedom of religion and belief in Romania. Following this campaign, most minority religious denominations criticised the draft bill and asked the Government to withdraw it. A considerable number of religious associations did the same. Also, several embassies and a great many international organisations, Commissions of the U.S. Congress and the State Department expressed their concern if the draft bill passes. The Romanian President, Government and Parliament received letters asking them to give up this legal initiative. Eventually, on 10 February 2000, under the pressure of the public opinion, the draft bill was withdrawn by the Government from the Chamber of Deputies.

No spectacular development related to the situation of national minorities occurred in 1999. Actually, one might say it was the first year when this topic appeared of much less importance than other issues of the Romanian society.

On 3 August 1999, Law No. 151/1999 on the Ratification of Emergency Ordinance No. 36/1997 on the Modification and Completion of the Law on Education No. 84/1995 came into force, being published in the Official Gazette. Chapter XII includes the new provisions related to the education for persons belonging to national minorities. One must pay special attention to Art. 123, which made the object of important debates between the Hungarian minority and the representatives of the majority.

Art. 123–(1) Groups, sections, colleges and faculties with tuition provided in the mother tongue can be organised upon request within the state-owned higher education institutions. In that case, the specialised terminology will be taught in Romanian. Multicultural higher education institutions can be established upon request, according to the law. Tuition languages will be established in the law by which these institutions are set up.

The long battle led by the Hungarian minority ended once the possibility to establish multicultural universities upon request, according to the law, was accepted. Obviously, this arrangement offers wide opportunities for the development of higher education in the mother tongue. The fact that the Parliament turned down the insistent request to establish a Hungarian higher education institution represents, however, the victory of an anti-minority attitude. APADOR–CH strongly believes that the interpretation of Art. 27 of the International Covenant on Civil and Political Rights in the Romanian framework should have obliged the Romanian authorities to comply with the request of the Hungarian minority.

By comparison with Emergency Ordinance 36, there are no significant differences with regard to the possibility of mother tongue education for national minorities. APADOR–CH considers that Law 151/1999 represents an important development in the system of national minority rights.

The Romanian Parliament also discussed the draft bill for the modification of the Law on Local Public Administration No. 69/1991. It should be reminded that the Constitutional Court ruled in 1998 that Emergency Ordinance No. 22/1977 on the Modification of Law 69 was unconstitutional. The current draft bill has already been modified in one important aspect. It relates to the percentage of minority population in a locality that imposes the use of mother tongue in their relationship with minorities. The percentage proposed was 20%, in accordance with the provisions of the former Emergency Ordinance No. 22/1997, but it has not been accepted at this stage of the legal process. Discussions on the draft bill for the modification of Law No. 69/1991 are expected to be resumed in the first half of the year 2000. The two laws — on education and on local administration — are the most important legal norms for the status of national minorities.

2. The initiative to draft a law on the elimination of all forms of discrimination

The most interesting initiative, which might have a considerable impact on the issue of discrimination in Romania, especially in the case of Roma, is the draft bill on the elimination of all forms of discrimination, elaborated under the aegis of the Department for the Protection of National Minorities. Members of APADOR–CH participated in drafting the legal proposal.

The draft bill defines discrimination as “any difference, exclusion, restriction, or preference aiming to or resulting in the restriction or prevention of equal recognition, use or exercise of human rights and fundamental liberties, in the political, economic, social, cultural or any other field of public life”. Starting from this premise, the draft bill establishes principles related to “Equal opportunity in economic activities, in terms of employment and profession”, “Access to public administrative, legal, health services, to other services, goods and facilities”, to “Access to education”, “Freedom of movement, the right to free choice of domicile and access to public places”. A special section is dedicated to the “Right to personal dignity”, which refers to “any behaviour that violates personal dignity or that of a community, consisting in indecent remarks, the use of insulting, pejorative or offending language, which subjects a person, a group of persons or a community to an unjust or degrading treatment, on grounds that they belong to a disfavoured race, ethnic background, nationality, social class, or based on their convictions, gender or sexual orientation, and respectively due to the appurtenance to an organisation the activity of which aims to protect any of the categories above”.

The National Council for the Elimination of Discrimination shall be established in order to enforce this law, as a specialised body of the local public administration subordinated to the Government. The institution has the competency to acknowledge the offences provided by the law and to apply sanctions. The acts that document such offences can be challenged in court, in accordance with Law 32/1968.

It is also important to note that the draft bill allows the human rights non-governmental associations to appear in court on behalf of the damaged party in order to ensure the representation of discriminated communities or groups of persons. Such organisations can also appear in court on behalf of the damaged party if the discrimination violated the rights of a natural person, on condition that the person mandates the respective organisation.

Free of charge legal assistance was provided by lawyers with the Bucharest Bar Association every Friday for two, three and even four hours, function of the demands. The weekly average number of persons that used this service was 10.

Most cases concerned civil cases (including the administrative solution of legal disputes) and several penal cases. The clients asked for free of charge legal assistance on the one hand because they did not have the means to hire a lawyer, on the other because of the trust they place in APADOR–CH.

In many cases, after exhausting all domestic legal remedies, these persons decided to lodge complaints with the Strasbourg European Human Rights Court. They were explained the conditions they had to fulfil and the procedure before the Court.

The situation of minority communities — national or religious — or of women has become a subject of international co-operation. The International Helsinki Federation for Human Rights has started a project in which APADOR–CH participates, aiming to the enforcement of a common system of analysis of the degree to which the states observe group rights, to be applied by all national Helsinki Committees.

At the initiative of APADOR–CH, the national Helsinki Committees have drafted civic reports on the enforcement of the Framework-Convention for the Protection of Minority Rights. In particular, APADOR–CH has drafted a textbook on the interpretation and enforcement of the Framework-Convention for the organisations involved in the protection of national minorities. The association also drafted a “civic” report on the enforcement of the Framework-Convention in Romania, in parallel with the report elaborated by the Romanian Ministry of Foreign Affairs, and sent it to Strasbourg, to the Secretariat of the Human Rights Directorate and to the Advisory Committee that examines state reports. Civic reports are very important for the experts with the Council of Europe, because it substantially helps to the understanding of specific problems national minorities encounter in each country. At the same time, it helps assess the good faith of national authorities.

Another topic approached in the framework of the Royaumont process is related to information of public interest.

All the sub-topics have been regarded by the European Union as important factors for the security on the continent. EU has initiated a strategy — named “The Royaumont Process” — that it funds, starting from the premise that the co-operation among civic organisations on the continent contributes to a better security.

This project, started in October 1997, which aims to identify the laws governing the non-profit sector which must be modified, to prepare draft bills on this topic and to promote them, continued throughout 1999. The most important laws discussed within this project — either in order to be amended or as brand new legal initiatives — were: the Law on Associations and Foundations, the Law on Sponsorship, the Law on Local Budgets and the Law on Voluntary Work. So far, only the Law on Sponsorship has been adopted as a Governmental Ordinance, subsequently passed by the two chambers of the Parliament. Unfortunately, the norms for the application of this law were postponed for a long time, so that APADOR–CH and the other non-governmental organisations the association works with on this project got the task of drafting them.

1. The year 1999 witnessed the beginning of a movement towards modernising and synchronising the Romanian legislation with European standards. Even if some of the draft bills under debate in the Parliament still contain disputable provisions from the perspective of civil rights (the Penal Code, the Penal Procedure Code, the Law on Police) and others should be either drastically amended (the Law on State and Job-Related Secret Information), or eliminated altogether (the Law on Denominations), the will to change the legal framework is obvious.

2. The General Police Inspectorate was more open than during the previous years and the first actual step towards the demilitarisation of the police has been taken when the draft bill on the Statute of the Police Officer was submitted to the Parliament. The orders regulating police lockups have also been modified, the most important aspect being that the lawyer–client privacy is now ensured. Detention conditions is police lockups continue to be poor, in particular as far as hygiene and medical assistance are concerned. APADOR–CH did receive in 1999 complaints related to police abuse (one of the cases resulted in the death of a person at the police station; in a second case, the person “led” to the station committed suicide). Unfortunately, most cases submitted by APADOR–CH to Prosecutor's Offices were solved by no indictment decisions in favour of the officers charged with abuses;

3. The General Directorate for Penitentiaries (DGP) continued its efforts to improve detention conditions in prisons, despite the scarcity of funds and the military structure that has been maintained, which supposes that every decision must be made at the top.

APADOR–CH considers that DGP is a good example of state institution that has taken small but safe steps in order to ensure consistency with the European standards in the field, despite the lack of an appropriate legal framework;

4. Freedom of religion and belief continues to be affected by serious legal shortcomings and by the practice of public authorities. The draft bill on the general status of religious denominations represents a major threat to religious freedom and to the democratic system in Romania. At the same time, positive steps were taken in the field of national minorities: the provisions related to mother tongue education have been improved in the new form of the Law on Education; nationalist chauvinist propaganda had a lesser impact.

Although a high number of human rights violations was recorded in 1999, APADOR–CH considers that the Government's initiative to start a substantial process meant to improve human rights legislation is an important step in this direction. It is imperative that the Parliament's vote confirms this initiative as soon as possible.

[1]A complete report was drawn up after each visit; it can be read by any interested person.

[2]Article 6 provides:

“In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:

a) to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;

b) to establish and maintain appropriate charitable or humanitarian institutions;

c) to make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;

d) to write, issue and disseminate relevant publications in these areas;

e) to teach a religion or belief in places suitable for these purposes;

f) to solicit and receive voluntary financial and other contributions from individuals and institutions;

g) to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

h) to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief;

i) to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.”