INTRODUCTION
2001 was the first year of governance of the Social Democratic Party (former PDSR-Party of Social Democracy of Romania) which came back to power after the parliamentary elections of November 2000.
From the point of view of APADOR-CH, an association whose activity is focused on civil rights and rights of the national and religious minorities, the new administration sent contradictory messages, the negative ones were predominant.
From among the positive measures, the association mentions: abrogation of article 200 of the Criminal Code (by an Emergency Ordinance issued by the Government in June 2001), passing of two extremely important laws (The Law on local public administration and the Law on access to public information) and the issuance of a Government decision on the establishment of the National Council for the prevention and sanctioning of all forms of discrimination (the decision, given in application of Ordinance 137/2000, was issued in December 2001, a year after the date when the respective normative act came into force).
The negative signals refer both to the legislative field and to the more and more obvious trend of the Government to exercise control over all domains. In the legislative field, it should be mentioned that, just right after the elections, some draft laws initiated by the former administration were withdrawn from Parliament (The Criminal Code, the Criminal Procedure Code, the Law on carrying out terms in prison, the Status of the Penitentiary Staff, the Police Law, the Status of Police Officers etc) in spite of the fact that these drafts intended to bring the legislation closer to the European standards. Some have been reintroduced in Parliament after having been modified (The Police Law and the Law on the Status of Police Officers) others are pending. The Law on classified information, passed in the plenary session of the two Parliament Chambers in a form that is extremely threatening to human rights, aroused firm protest from non-governmental organizations, which mass media also joined. The Constitutional Court has also been notified and decided that the law was not constitutional (in point of procedure of approval by Parliament). The law was stopped before being promulgated and subsequently withdrawn from Parliament. Unfortunately, the new legislative initiative on this topic does not correspond either to the European standards. Another negative signal was that an older legislative initiative on the status of journalists - vehemently criticized both by non-governmental organizations dealing with freedom of speech and by the majority of journalists - was given opinion on - with several amendments, that is right - by a committee of the Chamber of Deputies, which means that discussions on this text can be resumed any time.
Out of the much too numerous common and emergency ordinances issued by the Government in 2001 there are some that caused the protests of non-governmental organizations. Unfortunately, until they are debated in Parliament, these normative acts are still in force and produce juridical effects. APADOR-CH repeatedly stood against issuance of ordinances because through this procedure the executive practically substitutes the legislature. More than that, there is no deadline for debating ordinances in Parliament.
As to the control which the Government pursues to obtain on all domains, the trend is visible especially in mass media. Under a Government Decision, the national news agency ROMPRES was transferred to the administrative, financial and practically political subordination of the Ministry of Public Information (MPI). The very establishment of this ministry, in January 2001, raises a series of problems because its main attributions refer to the creation of a positive image of the Government and to the problems of minorities (until the elections of 2000 the State Secretariat for minorities was in the subordination of the Government and the head of the institution was a minister). It is clear that placing the national news agency in the subordination of a ministry which deals strictly with the Government's image affects both freedom of speech of the journalists in the agency and the public's right to get correct and complete information. For ensuring independence - or at least autonomy - of ROMPRES parliamentarians of the opposition have introduced a draft law in the Chamber of Deputies. After many delays and sterile discussions and in spite of the obvious opposition of the members of PSD (The Social Democratic Party) and UDMR (The Ethnic Hungarians' Democratic Union of Romania) in the Committee on culture, arts and mass media the draft law - substantially improved - received the positive opinion of the Committee and is to be debated in the plenary session of the Chamber. After being approved in the plenary session the draft law will follow a similar procedure in the Senate. Meanwhile, ROMPRES remains in the subordination and total control of MPI.
During 2001, APADOR-CH continued its good cooperation with the General Directorate of Penitentiaries. Even if the law on the detention regime dates back to 1969 and its provisions are almost all obsolete and in spite of the fact that the funds it has are always insufficient, the General Directorate of Penitentiaries has not ceased efforts for improving the detention conditions.
Unlike GDP, the Police continued to be an eminently conservative institution that refuses dialogue with non-governmental organizations of human rights that criticize it. APADOR-CH found out that in 2001 there were an increasing number of police officers who shot on suspects that did not put anybody's life in danger, and carried out raids in which the use of force was totally disproportionate. There was even a case (the village of Ciocanari, county Dambovita) in which the raid took the form of reprisals against all the inhabitants, regardless of age or sex. Complains about bad-treatment by police officers have also increased.
The demilitarization of the police will be a purely theoretical one (taking into account the version adopted by Parliament, not promulgated yet) and its decentralization is still a desideratum.
APADOR-CH continued its programs and activities, in spite of all the difficulties encountered especially in relations with the Parliament committees, the only exception being the Committee on culture, arts and mass media of the Chamber of Deputies.
For further information on the association activity see our site www.apador.org.
I. HUMAN RIGHTS LEGISLATION
The Parliament that resulted from the November 2000 elections took a series of measures meant to step up the procedures for passing new laws. Thus, the essential role now comes to the parliament committees that have to give their opinion. Any amendment to a legislative proposal should be presented in writing by an MP at least 5 days before the date when the text is debated. Only the amendments rejected by the committee could be also supported before the plenary session of the Senate or Chamber of Deputies. If there are no rejected amendments or if the initiator of the rejected amendment does not want to support it, the plenary session passes the text of the law in the form adopted by the committee.
Acceleration of the rhythm of the proceedings is commendable. Unfortunately it was not doubled by transparency, as well. With the exception of the committee on culture, arts and mass media of the Chamber of Deputies all the other committees that debate draft laws of maximum importance for civil rights (mainly the committees on defense, national security and law enforcement and the legal committees) work behind closed doors. Non-governmental organizations or professional associations that show their interest in certain legislative proposals cannot take part in the proceedings neither can they submit suggestions/comments to the committees unless a parliamentarian acknowledges them. In addition, if in the Chamber of Deputies there is an information center that gives to those interested the legislative proposals, in the Senate there is no such center. There have been many cases when non-governmental organizations heard about a legislative proposal only on the day when the committee was already debating it, so too late for possible reaction.
Although the number of laws passed by Parliament in 2001 is impressive, many of the legal provisions in force have not been yet modified in order to be harmonized with the international or european standards in the field of human rights protection. From among them APADOR-CH has been constantly preoccupied with:
1. The Criminal Code and the Criminal Procedure Code
1.1. The Criminal Code
Article 200 (same sex relations) has been an extremely controversial topic. APADOR-CH has consistently upheld the need for abrogating this article ever since 1993. In June 2000, the Chamber of Deputies repealed article 200 (and other articles referring to freedom of expression). The Senate should have passed the draft law as well, which has not happened till the end of 2001. In exchange, in May 2001, the Ministry of Justice tried a legislative artifice under which apparently article 200 was decriminalized, in fact being maintained by modification of other articles referring to crimes of a sexual nature (201 and 202). The joint reaction of APADOR-CH and ACCEPT strongly supported by European institutions (The European Union, the Council of Europe) but also by members of the European Parliament and of the Parliamentary Assembly of the Council of Europe put an end to the false decriminalization of homosexuality. Eventually, in June 2001, the Government issued an emergency ordinance under which it decriminalized sexual relations between persons of the same gender. Until the end of 2001, the Senate and the Chamber of Deputies passed this ordinance in slightly different forms. A joint mediation committee is to harmonize the two versions.
Under this initiative of May 2001, the Ministry of Justice attempted also the cancellation of the amendments brought by the Chamber of Deputies in June 2000 to articles 205, 206, 238 and 239 paragraph 1. These provisions threaten freedom of speech in general and freedom of the press, in particular. APADOR-CH reacted by a public protest with the following content:
This proposal violates Resolution PACE and the practice of democratic states. The European Court consistently upheld that “not only the information and ideas received favourably or with indifference must be protected but also the information that offends, shocks or disturbs” because “these are the requirements of pluralism, tolerance and open mind without which there is no democratic society.” The term in prison for offenses of opinion constitute a type of censorship which discourages journalists to discuss matters of public interest and hinders the press from exercising its role of supplier of information and of a “public watch dog”. The intention to maintain the terms in prison sentences is unacceptable and constitutes a permanent danger for the press. APADOR-CH requires in principal the decriminalization of the offences of insult and libel or, at the very least, the elimination of the term in prison sentence.
The differentiated and increased sentences for insulting people that exercise power is typical for dictatorships and runs counter to European case law. The European Court repeatedly mentioned that “ politicians should accept inevitably and conscientiously the strict verification of every word and fact…and, consequently should prove a higher level of tolerance”. (Lingens v. Austria). Maintaining article 238 infringes also the principle of equality before the law, placing politicians above the others. The rule in a democracy is opposite to article 238 because the very people who exercise power should be subject to control by the media and public, control which includes a tinge of exaggeration and provocation. (Dalban v. Romania). Incrimination of insulting the institutions proposed by the Minister is in itself a measure typical for dictatorships justified and maintained by invocation of collective interests. In addition, it is absurd to pretend that institutions have “honour”, this being a concept exclusively ethical and personal. Institutions have a certain public image that they create through their own activity and not through the silence imposed for fear of punishments.
The argument provided by the Ministry of Justice for retaining article 238 - protection of state authority - is unacceptable and non-constitutional. “State authority” is an abstract concept and is protected by criminal punishments only in dictatorial regimes like the regime in which the very 238 article was adopted (in 1969). In addition, “state authority” is not to be found among the reasons why article 30 of the Constitution allows for restraining freedom of speech.
Consequently APADOR-CH requires the elimination from the Criminal Code of article 238.
Because article 239 paragraph 1 raises similar problems as regards criticism of civil servants, the association requires also the elimination of the respective text, as the Chamber of Deputies did in 2000. Politicians and civil servants insulted or libeled should use the law provisions (art.205 and 206) applicable to all persons.
The proposal of the Ministry of Justice was withdrawn. Unfortunately, until the end of 2001, the Senate has not discussed the variant already passed by the Chamber of Deputies in June 2000 on the articles mentioned from the Criminal Code.
The Ministry of Justice announced that it worked on modifications of substance of the Criminal Code and Criminal Procedure Code but no legislative proposal was submitted to Parliament to this effect by the end of 2001.
1.2. The Criminal Procedure Code
No initiative on the modification of the Criminal Procedure Code materialized until the end of 2001. It should be mentioned that the 1996-2000 legislature drafted a text of law including modifications of substance to the criminal procedure. The text was not discussed in the previous legislature. The Ministry of Justice withdrew - after the elections of November 2000 - the legislative proposal regarding the modification of the Criminal Procedure Code.
2. The law on classified information
APADOR-CH made comments on every variant of the law on state and professional secrets ever since 1993. The association insisted every time on the danger that every version posed to human rights and basic freedoms. In February 2001 the association asked Parliament to reject entirely the draft law in the final phase of being voted in the plenum for the following reasons:
In spite of all the arguments, Parliament passed the law. APADOR-CH together with a group of non-governmental organizations sent to Romania's President a letter asking him not to promulgate the law. In parallel, a group of parliamentarians contested the law at the Constitutional Court that decided that the procedure of passing the law in Parliament was not constitutional, without analyzing the content. Given the internal and external reactions against the law Parliament took advantage of the decision of the Constitutional Court to give up altogether that bill.
On June 14-th 2001 a group of three senators and seven deputies submitted a new draft law on classified information to the Chamber of Deputies. On December 21-st 2001 the Committee on defense, law enforcement and national security and the Committee on legal issues, discipline and immunities drew up a joint report on the legislative proposal that is to be debated in the Chamber plenum in 2002.
APADOR-CH considers that, although the text is better than the law that was stopped before being promulgated, a series of problems are pending.
Matters of principle in connection with the text of the draft law on the protection of classified information
The respective factors of decision are not obliged to inform the public on the de-classification of secret state information and neither are they compelled to make public the categories of secrets held (not the information as such). By virtue of access to information the person should know to what categories of information has access and to what not, being of course able to decide if he/she will contest in court the decision of the holder to render secret certain information.
Matters regarding the text of the draft
APADOR-CH requires elimination of letters h), i) and n) as well as of the second part of letter j).
APADOR-CH requires the elimination of letter j).
APADOR-CH requires the elimination of all the provisions regarding the professional secret from the draft law under consideration in the sense of the arguments presented above.
It should also be mentioned that the Law on access to public information -a frame-law - came into effect on December 23rd 2001. Consequently, some provisions of the draft law on the protection of classified information will have to be modified according to the frame-law.
3. The law on access to public information
Guaranteed by article 31 of the Constitution, access to information could not be applied because of absence of the necessary legislative framework. Although there was a legislative initiative of some deputies and senators of PNL (National Liberal Party) ever since 2000, it came into shape only in February 2001. The draft was submitted to the Committee for culture, arts and mass media of the Chamber of Deputies. Shortly after, the Ministry of Public Information (set up by the one-color government resulting from the November 2000 elections) proposed to the same committee its own draft on access to public information.
APADOR-CH made comments on both drafts of law some substantive issues being valid for both drafts, like:
-”The draft should mention that this text shall be the frame-law and that all the laws in force that include constraints regarding access to information should be interpreted in the sense of the provisions of this draft. The same principle should work for the future laws or proposals of modification of the existing ones. This remark should be included in article 1.
-Exceptions from access to public information should mention clearly that:
-It is necessary to protect the sources that make disclosures of public interest.”
The debates in the Committee on culture, arts and mass media in the Chamber of Deputies on access to public information could be an example for the way in which laws should be voted in Parliament. First of all, the initiators of the two drafts agreed to negotiate a joint text; secondly, the representatives of some non-governmental organizations interested in the topic had access to the proceedings of the committee and especially their opinions were considered. Eventually, the final text - even if it is not entirely in agreement with the requirements of the non-governmental organizations - is the result of a cooperation that exceeded “animosities” and “competition” among parliamentary political parties. The form adopted by the committee was voted also in the plenum of the Chamber of Deputies and subsequently -with slight differences - also by the Senate. The law was published in the Official Gazette of October 23rd and came into effect on December 23rd 2001.
The law provides for some norms of application. In the case of this law, the Ministry of Public Information, with the cooperation of a group of non-governmental organizations, including APADOR-CH is drafting the norms. The association signaled some shortcoming in the initial draft norms such as the justifications that the claimant should present when requiring the information or how to pay for the copies of the required papers.
The law came into effect on December 23rd 2001 and the application norms - which should have been finalized by the same date - are in delay.
4. The law on national security
Law 51/1991 on national security of Romania was passed before the Constitution of December 8, 1991 came into effect. The law includes many provisions that run counter to the Constitution, especially in the field of human rights and basic freedoms (protection of intimate, family and private life, secret of correspondence, freedom of expression, access to information, free access to justice etc). With all the signals and critical remarks that repeatedly came from the civil society, Romania's Government and the directly interested institutions showed their intention of modifying the law only in December 1997 when a proposal in this respect was submitted to Parliament. For over 3 years nothing happened so that the promoter - PDSR deputy Ovidiu Cameliu Petrescu - re-submitted the legislative proposal on March 5-th 2001 in the Chamber of Deputies. According to the latest information the initiative was taken over - in its essential parts - by a groups of parliamentarians of PSD (Social Democratic Party, former PDSR). That is why, the report includes only the observations in principle of APADOR-CH:
The draft bill takes over almost all principles upon wich Law 51/1991 is based, plus several provisions which seriously threaten human rights and rule of law.
-total ignorance of the notion of public interest;
-total ignorance of the obligations of authorities with attributions in the field of national security to prove that disclosure of some information represents a real or identifiable danger to national security;
-the much too long definition and often too vague of the threats to national security;
-the creation of a legal hybrid, that is “community of information” by means of which the area of persons and bodies entitled to carry out operative activities is extended far too much, the decision-making and control power is concentrated in the hands of only one institution CSAT (Higher Council for the Country's Defense) which, excepting for the obligation to present an annual report to Parliament is not subject to any control;
-total absence of transparency regarding the activities of the intelligence services;
-absence of access to justice of the injured persons;
-absence of real and efficient control from the civil society;
-maintenance of the Protection and Guard Service, of the informative structure of the Ministry of Justice (SIPA) and of the Service for Special Telecommunications on the list of intelligence services which makes Romania remain among the few exceptions at the level of the continent regarding the inclusion of these services in the category of intelligence services, with all the attributions deriving from this attempt.
In addition to this, the draft law enhances the role of the Higher Council for the Country's Defense giving to it increased authority as compared to the law regulating its activity. The possible modification of the law on CSAT (Higher Council for the Country's Defense) does not solve in any way the mentioned perils.
Some aspects related to the legislative proposal of deputy Ovidiu Cameliu Petrescu should also be mentioned:
In the case Rotaru v. Romania, the European Court said that “for the secret surveillance systems to be compatible with article 8 of the Convention they should include guarantees established by the law, applicable in the process of supervision of the activities of the respective services. The supervision procedures should follow…the principle of supremacy of the law…the interference of the public authorities with the rights of a person should be subject to effective control which normally should be made by the judiciary…In this case, the Court notes that the Romanian system of collection and storing of information does not include such guarantees…” The association recalls that in the cases Vasilescu and Brumarescu the Court said that in Romania the prosecutors are part of the executive power and not of the judiciary.
The duration for which such an authorization is issued is six months with the possibility of a maximum of four extensions of three months each. Although it is apparently an improvement as compared to the law in force, in addition to the limitation in time it would have been necessary to also have an evaluation from the issuer of the authorization regarding the results and the opportuneness of continuing the operations, which would mean the obligation of the intelligence services that required the authorization to present periodically (for instance once in three months) reports to the issuing authority. In addition, as such operations affect the rights and freedoms of the suspect, the total of 18 months of surveillance is a period that is unjustifiably long. More than that, the draft says that if there is “ new solid data and indication” a new authorization can be issued for the same person. Practically, this means coming back to the possibility of surveillance a person for an indefinite period of time just as provided for by Law 51 at present, opposite to European norms.
Until the end of 2001 the draft law on national security has not passed beyond the committees of the Chamber of Deputies.
APADOR-CH permanently insisted on the need that the law on national security includes clear, non-interpretable wordings, the sphere of threats to national security should be limited to only those situations that put in real and provable danger national security, there should be efficient control from outside the system on the activities of all the bodies and entities involved in national security and the person in question should have the concrete possibility of defending himself/herself against possible abuses, first of all in court.
Any law on national security - that will modify also the way of action of the intelligence services - should take into account not only Romania's Constitution and the European standards but also the laws of 2001 on access to information and protection of personal data.
5. Government Ordinances that put in danger human rights
APADOR-CH repeatedly declared its reticence regarding the method according to which the Government issues ordinances. Although provided for in the Constitution, this procedure allows the Government to make decision on or to modify laws (including fundamental laws like the Criminal Code or the Law on the Romanian Intelligence Service) which come into effect usually at the date they are published in the Official Gazette. Subsequently, without any deadline, Parliament debates the respective ordinances that it passes, modifies or rejects. The major problem is in the situation in which such a normative act is modified or rejected because until the moment of the vote the ordinance has already produced juridical effects. Out of the over 150 ordinances (common or emergency) issued by Government in 2001 three have particularly drawn attention: two refer to the free movement of people and the third - passed under the pretext of the fight against terrorism - to the secrecy of the mail.
A group of non-governmental organizations drew up protest against the three ordinances:
“……
2. The Government's Emergency Ordinance nr.112/30 August 2001 provides for punishments for the illegal trespassing of the frontiers of states other than Romania by Romanian citizens and stateless persons resident in Romania. According to the case law of the European Court of Human Rights expelling of a person illegally being on the territory of a member state of the Council of Europe represents an administrative measure justifiable by control over immigration. Government's Emergency Ordinance nr.112 qualifies the act that made a person be expelled as a crime, instituting a triple sanction: imprisonment from 3 months to 2 years, seizure of some goods or values and withdrawal (or delay of issuance) of the passport for a period of 5 years.
The signatory organizations consider that both the incrimination of the fact and the sentences are disproportionate and require Romania's Parliament to reject Government Emergency Ordinance 112, already put on its agenda.
3. Government Emergency Ordinance 144/25 October 2001 that will come into effect on December 1-st this year introduces a new measure that limits even more drastically the right to free movement. The Romanian citizens “who travel for private purposes” shall have to present when exiting the country, in addition to some compulsory papers, also “a minimum amount of hard currency …in an amount adequate to the one established by the national authorities of the states of destination or of transit, proportionate with the duration of the stay, but no less than 5 days.” Not mentioning that the transit visa are generally valid between 24 and 48 hours and so the period of 5 days is exaggerated, the measure affects wide categories of people like those who visit their relatives (the latter covering all the expenses for the stay), students who receive grants abroad (the respective amounts are paid after they reach the destination), people invited personally to deliver courses (in the same situation as the students) etc.
In addition, “the minimum amount of currency is established and is updated by order of the interior minister with the approval of the Foreign Affairs Ministry according to the decisions in the field adopted by the authorities of the respective states”. The possibility is thus created to establishing arbitrarily some prohibiting amounts that would affect the very substance of the right to free movement.
The signatory organizations require Romania's Government to withdraw Government Emergency Ordinance nr.114/25 October 2001 or Parliament to reject this normative act.
4. Emergency Ordinance nr.141/25 October 2001 sanctioning acts of terrorism and violation of public order provides at art.7 for the obligation of operators of “mail and telecommunications….to communicate immediately to the minister of communications and information….the information necessary for the identification of the persons that did the crimes provided for here….” It comes out that all the written mail or telephone correspondence of people in Romania will be surveilled on the basis of purely administrative measures taken in the ministry, outside any judicial control.
The signatory organizations consider such a measure is inadmissible, regardless of the pretext of fight against terrorism and ask Parliament to eliminate art.7 of Government Emergency Ordinance 141/2001.
(…)”
6. Restitution of real estate abusively taken by the state
In May 2001 at the request of some organizations and people outside the country APADOR-CH prepared an analysis of the legal framework that regulates the restitution of real estate taken over abusively by the Romanian state. Further presented are the most important excerpts from this document:
“Reparatory measures”
After December 22nd 1989, the authorities initiated, adopted and put into practice a number of reparatory legislative measures. (…)
On April 24-th 1997, the Parliamentary Assembly of the Council of Europe, under Resolution nr.1123, “encouraged Romania to solve the problem of the restitution of real estate confiscated or expropriated.” The Assembly “firmly asked the Romanian authorities to modify the legislation on the restitution of real estate confiscated or expropriated, especially Law nr.18/1991 and Law 112/1995 in order to provide for the restitution of these properties in integrum or giving fair compensations in exchange.” The European Parliament passed, on December 3rd 1998, Resolution nr.A4-0428 under which Romania is required also to modify Laws 18/1991 and 112/1995 and “to find a definite and fair solution to ensure the integral restitution of the properties or, if this is not possible, the payment of adequate compensations…” On October 1-st 1998, the House of Representatives of the United States passed Resolution 562 on the properties expropriated abusively by the former totalitarian regimes. The resolution has asked that the “states should restitute to the rightful owners the abusively expropriated properties and in case the restitution is not possible to give immediate, rightful and effective compensations.”
Subsequent to these resolutions Romania's Parliament passed Law nr.1/2000 on the reconstitution of the right of ownership over agricultural land and forestry required according to the provisions of Law 18/1991 and Law 168/1997, as well as Law 10/2001 on the legal status of some real estate abusively taken in the period March 6-th 1945 - December 22nd 1989. Owners of agricultural and forestlands consider that Law nr.1/2000 is generally acceptable. Causing concern however are some intentions made public by the new authorities resulting from the 2000 elections to delay the application of the Law and bring amendments to it.
Law nr.10 of February 8-th 2001 regulates restitution to owners - in kind or by reparatory measures in equivalent - of the real estate taken over abusively by the state in the period March 6-th 1945 - December 22nd 1989 and in 1940, on the basis of Law 139 on requisition. Law 10/2001 however rules out from its provisions the real estate that belonged to religious denominations and national minorities, establishing that their status will be regulated by subsequent “special normative acts” (article 8, paragraph 2). Law 10/2001 resumes the problem of the real estate for housing to which Law 112/1995 referred and regulates, for the first time after 1990, the situation of the assets nationalized under Law 119/1948 for the nationalization of industrial, banking, insurance, mining and transports facilities as well as those nationalized without valid title deed. The owners' organizations criticized the law saying that essentially the law is not able to ensure a real and equitable repair of the abusive expropriations suffered by the owners.
The Association for the Defense of Human Rights in Romania - the Helsinki Committee (APADOR-CH) appreciates that, by comparison with the situation before Law 10/2001 was passed a step forward has been made because reparatory measures have been made also for the owners of assets nationalized under Law nr.119/1948. The delay with which the Law was passed makes an equitable repair for owners much more difficult than in the first years after 1989. Because of the slow rate of privatization and management often lacking diligence of the “state” property in the over eleven years since 1989, the value of the assets that had to be given back decreased considerably in most of the cases.
“The reparatory measures” provided for by the law do not constitute, in the opinion of APADOR-CH, a real and effective compensation. Thus, in conformity with article 1, paragraph 2 of Law 10/2001 these measures consist of “assets and services”, “shares in listed companies”, “securities with face value used exclusively in the process of privatization” or “compensations in money”. Compensation in money is right now only a declaration. Article 40 says that the way in which, the amount and the procedures for the compensations in money to be given will be provided for in a subsequent law that is to be passed until August 11-th 2002. Together with the incertitude of passing such a law, what article 40 says about the ceiling of the compensations is a reason of concern. The other compensatory measures include, by their nature, a high degree of risk.
Law 10/2001 does not repair the unjust solutions deriving from the application of Law 112/1995 and by the cancellation, by the Supreme Court of Justice, of some final and irrevocable court rulings under which the owners had been given back real estate with the destination for housing of which they had been abusively expropriated. Thus, the law establishes, among others - art.46 paragraphs (1) and (2) - that the legal papers of selling of the properties to other persons than the owners remain valid if they were done by observing the laws in force at the moment of selling (the reference is made implicitly to Law 112/1995 as well) and in the case of real estate taken over “without valid title deed” if the papers were made “in good faith”. In relation to the second thesis of the law it should be noticed that practically in all the cases of sale of the assets, both the representatives of the public authorities that had the assets in their administration and/or the persons that acquired them knew they had been claimed by the real owners. Paragraph (3) of article 46 says that by exception good faith cannot be resorted to in the case of the sale of real estate confiscated from persons condemned for offenses of a political nature. In the opinion of the association, the same solution should have been resorted to in all the cases when the owners had been abusively expropriated by the communist totalitarian state (other than for a cause of public utility, with rightful and prior compensation). Art.49 of the Law gives to the owners the obligation to “compensate” the tenants for “the additional value put in the real estate for housing in the form of necessary and useful improvements”. Such a provision is obviously unjust considering that the owners are not paid damages for the abusive deprivation of their properties and for being used for tens of years. Law 10/2001 establishes different legal statuses for the real estate taken over “without valid title deed” and those “taken over with title deed”. In the opinion of APADOR-CH such a difference to the detriment of the owners of real estate in the second category is not adequate by that almost all the “title deeds” with which the totalitarian state expropriated its citizens were abusive, more often than not issued even contrary to the constitutional provisions in force at the respective date. The provisions of the law reconfirm the solutions given according to Law 112/1995 (among others art.18 letter (d) establishes that the restitution in kind of the real estate abusively expropriated will not take place in the situations in which “the real estate were sold to the former tenants by observing Law 112/1995).
There are numerous exceptions from restitution in kind. Article 16, paragraph 1 says that compensatory measures are only in equivalent in case the real estate is hosting schools, health units, socio-cultural establishments (all inclusive phrasing), public institutions, political parties, diplomatic missions, consular offices, international inter-governmental organizations accredited to Romania or their diplomatic corps. In fact, many of the nationalized real estate or real estate that in any way came in the possession of the state are occupied by institutions or organizations of the kind excepted from restitution in kind, thus substantially reducing the owners' possibility of getting them.
Under these circumstances, the association believes that the new law does not meet the requirements that the Council of Europe and the European Union made to the Romanian authorities to amend Law 112/1995. Considering the provisions of Romania's Constitution, of the First Protocol additional to the European Convention, the case law of the European Court, in particular case Brumarescu v. Romania and Resolutions 1123/1997 and A4-0428/1998 of the Parliamentary Assembly of the Council of Europe and the European Parliament respectively, the association considers that an essential principle should be that of restitution of assets in kind and only where this is not possible because the assets no longer exist compensations should be paid.
…..
Meanwhile, the Association of Magistrates of Romania, known lawyers and numerous journalists have criticized a note which the Ministry of Justice sent to the courts of appeal which referred to the “complexity of the cases of eviction of tenants” and also to the fact that such cases “are to be permanently in the attention of the judiciary” (the note of the minister of justice was published in “Evenimentul Zilei” of April 4-th, 2001). The intervention of the minister was considered liable to affect the independence of judges and be in favour of the tenants in the nationalized houses. For the protection of tenants there is a recent legislative initiative, already in the parliamentary procedures, under which rental agreements for the nationalized houses are to be extended from 3 to 5 years. Another reason for concern is Emergency Ordinance nr.59/2001 extending from 6 months to 1 year the period in which the Prosecutor General can declare extraordinary appeal against final and irrevocable decisions in civil cases. The same act extended also the motives for such appeals in the cases in which “the appealed decision produced an essential violation of the law which caused a wrong ruling of the case or this decision is obviously groundless”, covering practically any situation, including interpretation of the evidence. The Ordinance violates the principles of the authority of the final judgement and the stability of judicial relations. In addition, the Ordinance gives to prosecutors the right to take part in judging a civil case and appeal any solution pronounced in a civil case. Practically, these provisions bring Romania back to the legislation of the communist period and cancel the beneficial modifications brought after 1990 in the sense of reducing the role of prosecutors in civil cases. Both the Constitutional Court and the European Court of Strasbourg (cases Vasilescu and Brumarescu v. Romania) described prosecutors as agents of the executive power and consequently their substantial role, including of control, in civil cases is not justified.
Conclusions
The Association for the Defense of Human Rights in Romania - the Helsinki Committee considers that the legislative and administrative measures undertaken by the Romanian authorities after 1989 were able to repair only partially the prejudices caused by the abusive confiscation and expropriation made by the Romanian state. They were insufficiently in agreement with the principle of restitution in integrum of the properties or granting of equitable compensation in exchange.
It is necessary that in the shortest time possible Parliament pass a final and equitable piece of legislation for the restitution of the real estate that belonged to religious denominations or national minorities' communities and which were taken over by the state or by other legal persons.
It is necessary to avoid any interference in the judiciary and provide for the real independence of the judges. Judges should be subject only to the law and base their judgement on Romania's Constitution, The European Human Rights Convention, the Civil Code considering also the case law of the European Court related to ownership and equitable trial. Similarly, the role of prosecutors in civil trials should be reduced considerably, just as the powers of the executive to change final and irrevocable rulings by means of extraordinary appeals.
The Association for the Defense of Human Rights in Romania - the Helsinki Committee considers that Law 10/2001 has not brought the necessary amendments required by the restitution of real estate. The law re-confirms the unjust solutions for owners given according to Law 112/1995 and in the rulings of the Supreme Court of Justice previous to 1998 and disregards the principles according to which restitution should be made in kind and only in case this is not possible, in principle because the assets no longer exist, by payment of adequate compensations. In the association's opinion, the current regulations are in disagreement with Romania's Constitution, with the First protocol additional to The European Convention and Resolutions 1123/1997, A4-0428/1998 and 562/1998 of the Parliamentary Assembly of the Council of Europe, the European Parliament and House of Representatives of the United States, respectively.
The Association for the Defense of Human Rights in Romania - the Helsinki Committee will continue to monitor the legislative and administrative developments related to the restitution of assets abusively expropriated by the Romanian state.
II. THE POLICE - GENERAL ASPECTS AND INDIVIDUAL CASES
1. The legislative framework
In 2001 Parliament managed to pass the law on the modification of the Police Law nr.26/1994 but as late as December; therefore it will only be applied in 2002. The Senate approved the status of the police officer that should have been in force since 1994 but the Chamber of Deputies not yet.
Unfortunately, both normative acts omitted to mention clearly that the police are demilitarized and there is no question about decentralization.
THE POLICE LAW AND THE STATUS OF THE POLICE OFFICER
1.1 Law nr.26/1994 on the organization and operation of the Romanian Police has some provisions that have to be amended. APADOR-CH constantly upheld this, insisting on the deprivation of freedom (in the form of “taking one” to the police station, as much as 24 hours), on the real and efficient performance of the right to defense, on the use of guns and carrying out of raids.
In 1999, the former Government submitted to Parliament a draft law on the modification of Law 26, that partially solved some problems that have consistently preoccupied the association regarding the relation between the police and individuals. After the elections of November 2000, the new government withdrew that legislative initiative and submitted its own variant for amending Law 26/1994. APADOR-CH conveyed its observations on the draft law to the members of the Committee on Defense of the Chamber of Deputies. Unfortunately, the parliamentary committee has considered very few ideas.
Under the circumstances, at the initiative of APADOR-CH several non-governmental organizations drafted and distributed to parliamentarians in the Chamber of Deputies the following remarks:
“a) the organizations mention that the police decentralization has not been taken into consideration, the General Police Inspectorate maintains total control over the County Inspectorates, even if the latter are given legal personality;
b) a National Body of Police Officers is set up, a sort of trade union, whose responsibilities are established in the Status of the Police Officer. The signatories consider that such an association/organization should not be imposed by law; it should represent only the will and right of police officers to associate themselves for defending their interests. The current drafting actually institutes an “official trade union”, controlled by the institution management;
c) the setting up of the Police Authority would have a meaning only if this body had power of decision on police activities (policy established jointly with the local communities; control over the budget and how it is used; appointment/dismissal of the general inspector, his/her deputies, of the chief inspectors of the County Police Inspectorate (CPI) and the deputies; monitoring of cases of abuse etc). A “Police Authority” with an advisory role - as the draft provides for - cannot have a substantial contribution to improving the police activity;
d) the problem of the time during which a person can be deprived of freedom in absence of a warrant remains unsolved. The signatory organizations have permanently upheld that Law 26/1994 art.16, letter (b) authorizes the police, in opposition to art.23, paragraph 3 of the Constitution (“retaining cannot exceed 24 hours”) to deprive a person of freedom for another 24 hours, different from retaining and called “taking a person” to the police station, with a view to establishing the identity of the suspected person. The Constitution says clearly that depriving a person of freedom, without a warrant (released by the prosecutor or judge) can only be made in the form of retaining a person for 24 hours;
e) the settlement of the major issue of use of force - including use of firearms - is far from the international standards in the field. The draft law includes the idea of proportionality of police actions but - in relation to the essential aspect, that is, the use of guns by the police - it sends to Law 17/1996 on the status of weapons and ammunition which at art.47 provides for ten situations in which weapons may be used. The organizations recall that international regulations on the use of guns by the police refer only to the cases when a person's life (including of the police officer) is in real danger.
f) the law authorizes the police “to use informers and undercover police officers” as well as fictitious legal entities. The signatory organizations consider that making the use of informers legal would re-kindle suspicions that poisoned the Romanian society during the communist regime. The police all over the world use informers only for solving certain cases. This is not and neither should it be a legal and systemic method. Similarly, the idea of setting up fictitious legal entities is extremely harmful as it may have serious effects on the non-governmental sector, mainly on the business environment, by instituting general mistrust.
The organizations ask the Chamber of Deputies to take into consideration their objections and suggestions and to modify the draft law on the modification of Law 26/1994 on the organization and operation of the police.”
This reaction of the representatives of the civil society was also practically ignored, the Chamber of Deputies approving in the plenum the variant wanted by the Interior Ministry.
Due to the already signaled lack of transparency of the Senate, APADOR-CH and the non-governmental organizations interested in the Police Law found out in the last moment that the draft law was approved also by the Senate committees and was to be submitted to the plenum for approval. More than that, the confusion was maintained also by the permanent reference to the impact of the events of September 2001 in the USA on national security and law enforcement. Anyway, APADOR-CH has sent another package of remarks on the Police Law to the Senate, in the version passed by the Chamber of Deputies. The annual report presents only the issues of principle that concern the association:
“The draft law, passed by the Chamber of Deputies, is debated now by the Senate committees. In spite of the fact that the draft law brings some improvements to the law in force, in the association’s opinion a series of aspects regarding the organization and operation of the police remained unsolved or were solved in an unacceptable manner.
d) the problem of the time during which a person can be deprived of freedom in absence of a warrant remains unsolved. APADOR-CH has permanently upheld that Law 26/1994, art.16, letter (b) authorizes the police, in opposition to art.23, paragraph 3 of the Constitution (“Retaining of a person cannot exceed 24 hours” - mentioned as such at art.16, letter (d) of the Police Law), to deprive a person of freedom for another period of 24 hours, different from retaining and called “taking” the person to the police station, with a view to establishing the identity of the suspected person. The Constitution clearly mentions that depriving a person of freedom without a warrant (released by the prosecutor or judge) can be made only in the form of retaining the person for 24 hours. “Taking” the person to the police for another 24 hours of art.16, letter (b) of Law 26/1994 is a non-constitutional provision that violates the penal law in force too. The criminal procedure code mentions clearly at art.136, letter (a) “retaining”, followed by letter (b) “the obligation not to leave the locality” and letter (c) “custody” as single possibilities of depriving one of one's freedom. By maintaining the measure of “taking the person to the police” the Police gives itself the right to dispose of the life and freedom of a person for 24 hours above the legal provisions.
The draft law maintains “taking” (art.31, letter b) to the police station for a maximum of 24 hours but “with the observance of the right to defense”, which means, in the opinion of APADOR-CH that the legislative initiator accepts -eventually - that it is about depriving a person of freedom and not an administrative measure, as upheld by the Police in the past 7 years. On the other hand, retaining “disappeared” from art.26 of the draft (“The Responsibilities of the Romanian Police”), that is, exactly the measure on depriving a person of one's freedom -without a warrant - stipulated by the Constitution and the penal law.
APADOR-CH considers that the “disappearance” from the draft law of the legal measure of 24 hour custody (which presupposes releasing a warrant, physical examination, a councilor, whereas “taking” does not involve anything, it is not regulated in any way, because it would be “an administrative measure” and not one of depriving somebody of his/her freedom) is either an error of wording or an attempt to justify the 48 hours of depriving a person of one's freedom which the police have at their disposal. APADOR-CH believes that the second variant is more plausible because art.26, paragraph 29 of the draft law mentions that the police “carries out any other responsibilities given to it by the law…” therefore, including “retaining”, regulated by the Criminal Procedure Code. In other words, the draft law maintains the non-constitutional measure of depriving a person of freedom, without a warrant, for a period of up to 48 hours (24 hours “taking” plus 24 hours “retaining”).
e) solving of the major problem of the use of force - including firearms - is far from the international standards in the field. The draft law includes the idea of proportionality in stepping-in actions of the police but - in relation to the essential aspect, that is, the use of weapons by the police - it sends to law 17/1996 on the status of weapons and ammunition whose art.47 provides for ten situations in which firearms may be used. They include “immobilization of offenders who, after committing offences, are trying to escape” - letter d) - (a frequent case, in which persons suspect to have done petty offences such as “attempt at stealing objects from cars” or “breaking in a kiosk” or “stealing from pockets” etc. are shot at) or “putting in danger the guarded target” (letter a) or “illegal breaking into/out of ….guarded zones - visibly delimited - established by signs” (letter c) etc. APADOR-CH recalls that the international regulations regarding the use of firearms by the police refer only to the situations when a person's life (including that of the police officer) is in real danger. Nobody and nowhere in the democratic societies allow for the use of firearms against a person suspected to have committed a petty offence (theft, for instance), nor the possible threat of a target. If the principle of proportionality is taken seriously, the use of weapons by the police on persons suspected of having committed petty offences is totally unjustified.”
1.2. The status of the police officer
The status of the police officer is a normative act that should have been passed ever since 1994, according to art.54 of Law 26/1994 on the organization and operation of the police. After repeated delays and revisions the draft was eventually submitted to Parliament in 2001 together with the draft law on the modification of Law 26/1994 of the Police. At the end of 2001, the Status of the police officer was approved by the Senate and is on the agenda of the Chamber of Deputies.
In the opinion of the association the main problems raised by the draft law refer to:
The association does not see the need of a “law school in the Police Academy “Alexandru Ioan Cuza” of the Interior Ministry” (art.22, paragraph 3 of the Status).
The police officers should know only those regulations in various laws - mainly the Criminal Code and the petty offence laws - that have relevance for their work. In most of the democratic countries the training period of police officers is measured in months not in years;
The draft provides for the drawing up of a “Guide of the police officer, approved by order of the interior minister”. In other words, there will be a Law of the police, a Status of the police officer, a Guide of the police officer (an internal regulation, not subject to parliamentary control) and naturally, The internal rules and regulations and many other minister orders, also not subject to legislature control. With the exception of the first two, all the other will be inaccessible to the public. If a modern police is wanted, in accordance with the European standards, it is absolutely necessary that all the regulations, regardless of the initiator, be made public;
Section IV - The National Body of Police Officers - is totally useless, in the association's opinion. First of all, the police officers' right of association, regardless of form - with some generally accepted restrictions - cannot and should not be regulated by law. The police can enlist - or not - in associations of a trade union type to defend their interests. The idea to legislate “an official union” (The National Body of Police Officers) should be given up at once;
2. Concrete aspects of the Police activity
1. In the spring of 2001, the Bucharest Municipality Police Directorate announced the beginning of a wide scope action in which the beggars, “the paint sniffers”, the prostitutes, the persons not residing in Bucharest (the first considered being the Roma people) etc. were to be gathered and sent “home”. Almost simultaneously, the mayor of Targu Mures had a similar initiative, using the public guards for the raids. APADOR-CH and the Pro Europe League (Targu Mures) drew up a protest against the illegal actions in the two towns:
“APADOR-CH and the PRO EUROPE LEAGUE (Targu Mures) protest against the measures taken by the Bucharest Municipality General Police Directorate and by the City Hall of Targu Mures on the expel from the two municipalities of some groups of persons.
The protest of the two organizations is based on the following reasons:
a) The actions undertaken or planned by the two institutions violate the right to free movement guaranteed in Romania's Constitution (art.25) as well as in international documents on human rights ratified by Romania (The Universal Declaration - art.13; the International Covenant on Civil and Political Rights -art.12; the European Convention for Defense of Human Rights and Fundamental Freedoms - the additional Protocol nr.4 - art.2);
b) Only law can restrict the performance of a right - including the right to free movement. None of the laws in force in Romania authorizes the police or the city halls to expel persons or groups of persons from localities. The right to free movement can be restricted only at an individual level and by a final court ruling or as a preventive measure in the case of a criminal trial. Begging and vagrancy are indeed offences sanctioned in the Criminal Code. But this implies individual responsibility by observing the person's right to an equitable trial and in no way expelling groups of persons without any judicial procedure.
APADOR-CH and the PRO EUROPE LEAGUE (Targu Mures) ask the Bucharest Municipality General Police Directorate and the City Hall of Targu Mures to give up these actions immediately.”
2. In February 2001 the Government issued an emergency ordinance pursuing to grant more powers, disproportionately big, to the Police and compelling all persons to cooperate with this institution. At the initiative of APADOR-CH a group of NGO-s drew up the following protest:
“The signatory associations ask Romania's Government to withdraw immediately Emergency Ordinance nr.29 of February 26-th 2001 on completion of Law nr.40/1990 on the organization and operation of the Interior Ministry for the following reasons:
The signatory organizations draw the attention of Government on the fact that the Ordinance is already being applied and therefore should be withdrawn immediately.
If the Ordinance is not withdrawn, the signatory organizations ask Parliament to reject it in the shortest time possible.”
The ordinance was withdrawn. Unfortunately, the idea of setting up legal persons under cover came back at the end of 2001, and it was debated by Parliament.
3. The problems that have constantly been in the attention of APADOR-CH (use of guns by the police, the right to counseling of persons deprived of freedom, the conditions of police custody, the raids, the use of brutal methods to determine the suspects to admit the facts they are attributed etc. - see the annual reports of the association in the previous years) were not been solved in 2001, either.
More than that, on October 26, 2001, after the incidents in the village of Ciocanari, county Dambovita, in a video conference with the prefects, Prime Minister Adrian Nastase urged the police to use their guns in the future in order to avoid aggressions on police officers. This declaration was also criticized in the protest of several non-governmental organizations regarding three ordinances released by the Government (see chapter I). The signatory organizations consistently upheld that the only situation when the use of the gun is justified is the existence of an imminent and concrete threat to a person's life. But in the incidents at Ciocanari the police did not use the guns. Therefore, they considered that there was no real threat to their lives. In exchange, in the second phase of the incidents they organized real reprisals - with the help of the gendarmes - against a whole village. (See below the report of APADOR-CH on the events at Ciocanari).
The signatory organizations consider that, instead of encouraging the police to use their guns, the Government should immediately amend the legislation on the use of weapons (Law 26/1994 on the organization and operation of the Police and Law 17/1996 on the use of weapons and ammunition) in the sense of restricting drastically the situations in which the police and the gendarmes can use the firearms.
According to the information in the press, after the “urge” made to the police by Prime Minister Adrian Nastase, there have been at least five incidents (three in Galati, in December 2001) in which the police opened fire on persons suspected of having stolen ….hubcaps, gasoline from cars or a cow! Disproportion between the gravity of the alleged offense and the use of guns by the police is obvious.
3. Individual cases investigated by APADOR-CH in 2001
In the 8 cases investigated in 2001 five involve serious abuses committed by the police.
1. Mircea Chifan, died in police custody of County Police Inspectorate of Suceava on December 26-th, 2000
Mircea Chifan, 47 years old, three children, lived in Vicovul de Jos, county Suceava. On the evening of December 12-th 2000, Mircea Chifan drank and beat his wife. The next day Chifan was taken by the local police to police custody in Radauti. He appeared in court, which convicted him for petty offences to 30 days in prison on the basis of Law 61/91. Mircea Chifan tried to escape - it is not clear whether before or after his conviction - which caused an extremely brutal reaction by the police. Transferred in police custody at the Suceava County Police Inspectorate, Mircea Chifan was found dead in the morning of December 26-th 2000.
The autopsy was done at the Suceava forensic laboratory on December 27-th. No representative of the prosecutor's office was there although Chifan's death emerged in at least suspect conditions.
The forensic doctor found that the deceased had three broken ribs, blows at the head - all could have been caused maximum one week ago, therefore at the time when Chifan was in police custody - liquid with pus in his chest and clots in his heart. The doctor decided that Chifan's death was due to cirrhosis discovered at the necropsy, the blows while in police custody having not affected his internal organs. The doctor said that the result of the autopsy would be sent only to the military prosecutor's Office (that took over the investigation) the deceased's relatives having no access to this document.
APADOR-CH considers that the relatives must receive a copy of the final report. It is their right to know why Mircea Chifan died.
The brothers and children of Mircea Chifan tried at least four-five times to see him while he was in police custody in Radauti and Suceava. They have been refused every time claiming that the detainee was “violent and should be left to calm down”. The family was convinced that they were not allowed to see him because of visible traces of beating and because of Mircea Chifan's health condition.
One of Chifan's brothers filed a complaint with Suceava County Police Inspectorate at the end of December 2000. The investigation was taken over by the military Prosecutor's Office of Bacau.
APADOR-CH believes that Mircea Chifan's death was due to the inhuman treatment - even torture - to which the detainee was subject while in police custody. Regardless of whether he died of blows or cirrhosis - or both - the death came when the detainee was in police custody. Therefore criminal and civil responsibility rests with this institution.
By the end of 2001, APADOR-CH received no answer from the military Prosecutor's Office regarding the results of the inquiry.
2. Vasile Danut Moise, underage from the village of Vladesti, commune Aninoasa, county Arges
On March 14-th 2001, the underage and his mother went to the fields. Around 10:00 in the morning a car came there with two police officers and a villager who claimed his cow had been stolen. The police officers took the underage to the car telling him he should only go to the police station to give some explanations. Seeing that Danut did not come back his mother, together with Nicoleta Capraru, went to the police station. There was nobody there. After about half an hour of waiting a car came from which the police officers, the claimant and the underage who was crying got off. The kid's mother tried to go in with them but was not allowed. After some time of waiting she was called inside to sign her son's declaration. Because of emotions and of assurances from the police that “everything would be alright for the boy” she signed the declaration without reading it.
After having been released the kid ran away and got hidden in the back of the yard of his parents' house. He was found out late in the evening in a state of shock: shivering and his palms swollen and red.
First the kid was taken to the Campulung hospital and then transferred to the Pediatrics Hospital of Pitesti, the surgery ward, where he stayed until March 23rd, when he was released. According to the hospital chart the diagnosis was “acute minor closed skull-cerebral trauma” and “Silverman's syndrome” (which means the syndrome of a beaten child).
The representatives of the association talked to the doctor who took care of the kid and who added that the kid was brought “in a state of shock” and that “he had signs of blows which seemed longitudinal” (therefore with a club). In addition, a papillary edema was also found at the ophtalmological examination, probably after the blows. The underage, a VII-grade pupil said he had been beaten in his palms and on his back by two of the police officers, one of whom had “a bat for sheep” (a long club of about one meter) and the other with the “club”. The third police officer hit him with the folder in the head and when falling down the kid hit himself on the stove. The purpose of all this treatment was to determine Vasile Danut Moise to admit he had stolen the cow, in complicity with two adults. The underage wrote the declaration under pressure, according to what the police dictated him. While in hospital in Pitesti Danut was visited by a civilian who introduced himself as officer at Arges County Police Inspectorate who questioned him about the incident. Mention should be made that neither at the police station nor in the hospital ward was the underage assisted by his parents as required by the law.
APADOR-CH sent the report on this case to the military Prosecutor's Office but until the end of 2001 the association received no answer.
3. Alexandru Mihail Dombi, shot in the head by the road police of Oradea
Alexandru Mihail Dombi, born on July 12-th 1965, was convicted for 3 years in prison for instigation to fraud, falsification of documents and use of fake documents.
The legal situation of Alexandru Dombi is somehow unclear. He was in police custody between June 12-th 1997 to November 27-th 1998 (a period that was deducted from his 3-year prison sentence). What followed was the enforcement of the term in prison nr.308/97 of May 25-th 1999 (3 years). Subsequently, Alexandru Mihail Dombi was released on parole. Surprisingly, after his release, according to ruling 68 of April 26-th 2000 of the Timisoara Military Court Alexandru Dombi received one more year to the initial conviction. The ruling gives no explanation about this one more year. The ruling mentions that, for Dombi, the conviction for the term in prison nr.308/97 of May 25-th 1999 is cancelled and a new one is going to be enforced.
From the information obtained, the association representatives understood the following: a new conviction for a term in prison of four years was enforced for Dombi, instead of the initial three years. It is not quite understood how but this new one -if it exists - would have come into effect as of January 2001. Although Alexandru Mihail Dombi did not leave Oradea for a minute and although many police officers (including lieutenant Sava who shot him) saw Dombi almost every day on the streets or restaurants of the town, nobody seemed to know - neither the police nor Dombi - that the latter was put a tail on by the police.
On April 26-th, 19:00 hours, Alexandru Mihail Dombi was shot dead by lieutenant Sava.
The circumstances of Dombi's shooting are presented differently by the police and by a witness who accompanied Dombi. The police upheld that, after stopping Dombi for a routine check and finding out the latter did not have his driving license with him they started immediately to follow the Dacia car, the car got stuck and the three passengers took to the fields, they were caught in the railway station area, warning shots were fired following which the two persons accompanying Dombi surrendered, and Dombi crossed the railway line and eventually was shot in the head “while falling” but that the intention had been to shoot him in his “leg”.
The eye witness declared that, after the routine check they left with the Dacia, that nobody followed them and that the car broke down because, avoiding a car accident, they took to a rough country road. They could not start the engine so the three of them walked to the most circulated area - the railway station. They walked for about half an hour, during which they were not followed or warned and nobody shot at them. The three reached the station, which was full of travelers but also of police and troops of intervention with cagoules. Dombi ran away across the railway lines. The witness says that lieutenant Sava and a warrant officer fired no warning shot in the air. Both police officers shot directly at Dombi who died instantly of the shot in the head. More than that, the shots (apparently eight) were fired from the platform where there was the police but also other persons completely uninvolved, who could have been injured - or even shot dead - in that totally disproportionate stepping in action of the Oradea police. The eyewitness also said that Alexandru Dombi had no place to run to because the railway station was surrounded by intervention troops, and in the direction where he ran there was only a 5-6 meter high wall, beyond which there were other special troops.
APADOR-CH believes that use of guns in the case of Alexandru Mihail Dombi was completely unjustified. Dombi posed no danger to the community or for the life and/or physical integrity of a person, including either of the police officers.
The report of the association was sent to the military Prosecutor's Office but until the end of 2001 the association received no information on the solution to this case.
4. Dumitru Grigoras, died in the police station of commune Rachitoasa, county Bacau.
In the evening of July 6-th 2001, following a conflict with his wife, Dumitru Grigoras was taken from his home to the police station.
Saturday, July 7-th, the wife was told from the police station that her husband “was at the morgue in Bacau” and “to go and take him from there on Monday and bury him on Tuesday.” Felicia Grigoras and the father of the deceased -Marin Grigoras - went to the Bacau morgue on Monday. When they saw how the dead body looked like (with bruises and wounds all over his body, including at the wrists, from the hand cuffs and at the head) they refused to take him and asked for a new autopsy (the first had already been done on Saturday, July 7-th, “in an emergency regime” by the Bacau forensic institute, which established the cause of death “multiple organic failure” and as morbid state “ acute hemorragic pancreas disease”). The second autopsy did not change fundamentally the first one. Again the relatives refused to take the body and asked for a third autopsy. The relatives of the deceased upheld that Dumitru Grigoras, 35 years old, suffered from no disease, a thing that could have been confirmed by the doctor of the Rachitoasa clinic.
From the reports of the villagers, who were angry about what happened, it came out that the brutality of the police officers of Rachitoasa, especially the police chief Dumitru David but also Vasile Betelie, is almost “a tradition”. Another type of complaints by villagers refers to the repeated fines given by the police for either petty or non-existent offences.
In the opinion of APADOR-CH, the death of Dumitru Grigoras is the result of the torture he was subject to in the police station.
According to the information received from the villagers of Rachitoasa, police officers Dumitru David, who shortly after the incident retired “for medical reasons” and Vasile Betelie were arrested and are to be sent to court.
5. The incidents of October 24-th 2001 in the village of Ciocanari, commune Niculesti, county Dambovita.
The Ciocanari village has about 1,300 inhabitants, most of them Roma craftsmen, and is located at about 3 km off the oil pipe Ploiesti - Constanta. Numerous cases of piercing of the pipe were reported and thefts of fuel along the pipe, including in the village area.
On October 24-th 2001, around 12:00 at noon, a Renault car did not stop at the sign of some masked persons who wore no signs that could have identified them as police or gendarmes. An ARO vehicle and a Dacia car started following the Renault up to the village of Ciocanari. Here, after a short fight, the car driver -Nicolae Marin (known in the village under the nickname of Marian Zarafin) - managed to jump over the fence of a house and disappeared. Two “masked” persons stepped in with brutality against the Faramita family who lived in that house, assaulting three women - one was eight-month pregnant - who were in the house.
A crowd of villagers gathered in front of the house. Some assaulted a “masked” person, others turned over the ARO vehicle and others threw stones. The “masked” persons stepped back.
About two hours after these incidents, troops of gendarmes, DIAS and SPIR (in total about 350 military out of whom one hundred were “masked”) stepped in the village, broke into almost all the houses, destroyed everything that could be destroyed (windows, tape recorders, TV sets etc) beat men and women, underage and adults and retained over 20 persons, out of whom at least two underage, all being taken to the police station of Buftea. Another 5-6 persons were caught on the field and brought to Buftea.
For the action to seem legal a prosecutor from Buftea was there, too. It is clear however that he could not have seen what the intervention troops did as they were scattered all over the village.
About 20 persons of those retained were released after 24 hours of being deprived of freedom. For another 4-5 a warrant for police custody was released.
a) The first incident
About noon, Valentina Faramita was in the house, together with her daughter Alina (18 years) and daughter-in-law Ileana Ruica (18 years old, 8-month pregnant). She heard noise in the yard, got out and saw a civilian full of blood fighting with a “masked” person. Scared she went back in the house, when the civilian forced his way through the door, passed by her in a hurry and jumped over the window. “The masked” person remained in the doorway and used a paralyzing spray after which he disappeared. Shortly after, two men with cagoules and a woman (with a cagoule, too) with a camera broke into the house. The woman took shots of the sitting room full of wooden objects and artificial flowers that were to be sold at the fair (the Faramita family has authorization). The men took Valentina Faramita by force out in the yard, dragged her to the gate, pushed her to the ground and hit her. Everything they said was “where is?” (the run-away) and “let's take her because she is his wife”. Meanwhile, a lot of villagers gathered on the street in front of the house of Faramita family. Angry at the brutality with which Valentina was treated they started to shout at them to leave the woman be and then threw stones at them.
Eventually, “the masked” persons stepped down. Valentina Faramita took refuge to the back of the yard and after than got hidden at a neighbour's where she stayed during the reprisals. After everything was over she came back to the house and found the broken windows, the glassware and the mirror in the bathroom broken, the furniture and refrigerator overturned, the tape recorder broken to pieces. A Dacia car, parked in the yard, had its headlights, wind screen and windows broken and the types cut.