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should be mentioned that, just right after the elections, some draft laws initiated by the former administration were withdrawn from Parliament (The Criminal Code, the Criminal Procedure Code, the Law on carrying out terms in prison, the Status of the Penitentiary Staff, the Police Law,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 The law was stopped before being promulgated and subsequently withdrawn from Parliament.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.
b) The reprisals
Very many villagers complained about the brutality of the intervention in force of the 350 gendarmes and police.
Ion Drumasu did not know anything about the incident with the Faramita family. In the afternoon of October 24-th he lay down in bed together with his 4-year old son when he saw two masked persons in the room. Without any explanation they ordered him to get out of the house otherwise they will shoot him. One of them hit him with the butt in his head after which the two dragged him in the yard hitting him all the time with their feet and handcuffed him. Ioana Drumasu - his mother - threw herself over him to protect him from the blows and she was beaten too. The man was taken to the gendarmes van. Meanwhile, other “masked” persons devastated the house breaking windows and over-turning the furniture. A tape recorder was broken to pieces.
Taken together with about 20 men from the village to the police station of Buftea Ion Drumasu was further beaten. He said that the others were beaten too but that he had most to suffer because he was mistaken for the person pursued in the first incident. Nobody checked his identity until about 3:00 in the morning (October 25-th) when he was taken to another room and questioned. Ion Drumasu upholds that he was obliged to sign “a paper” but he does not know what he signed. He was released in the afternoon of October 25-th. The next day he went to the Emergency Hospital of Bucharest where his leg was put in a cast (10 days) and some tests have been made to him. With great difficulty a health certificate was released (nr. 24167/26.10.2001) which includes the following: ”serious concussion at the left ankle, bilateral haluce (big toe) external side right shank, excoriate wound dorsal side right big toe (haluce). Splinter cast for 10 days.” Ion Drumasu also has an ultra sound done showing that his liver was also affected.
Stefan Drumasu is 74 years old and the grandfather of Ion. He lives separately, across the house of the Faramita family. On the day of the incident he went to the gate and saw the scene of the fighting between Marian Zarafin (the suspect in the first incident) and a “masked” person. He was warned by a “masked” person to go in the yard and because he did not do that immediately he was sprayed a paralyzing spray in the face. He witnessed, together with another old man, the deployment of forces around 17:00 hours and heard the order given by an officer: “Take house by house, find all the men and take them”. They entered his yard where his youngest son was, Lucian (16 years old) whom they beat. Stefan Drumasu tried to defend him but in vain. Stefan and Lucian Drumasu, together with the other old man, were taken to the police station of Buftea where they stayed till the next day. The two old men were not hit but both saw how the other were beaten, including Lucian and another underage.
Silviu Fieraru is 14 years old. When the “masked” persons stepped in he was in the yard of a relative whose house was situated close to the way out of the village, on a side small street. The kid was beaten with the clubs and the feet in the yard, in the van and at the Buftea police station. He is extremely shocked and is afraid to talk. He signed a declaration written by the police but did not know what it included.
Most of the villagers are frightened by what happened. Many fear to talk and their fright was even bigger on the day of the visit there of the representatives of APADOR-CH because the police of Niculesti walked through the village with a list and took people of the commune for declarations before the military prosecutor, but only in connection with the first incident.
Absolutely all the villagers said that nothing would have happened if the masked persons involved in the first incident (pursuit of Marian Zarafin) had been police in uniforms.
In the opinion of APADOR-CH the intervention of the law enforcement forces in the afternoon of October 24-th was illegal at least due to absence of search warrants, the destruction of the goods in the houses searched and hitting of the villagers. Equally, the intervention was also disproportionate by the use of oversized troops (about 350 troops) and armed persons who used violence totally groundless. The intervention of the law enforcement forces clearly looked like reprisals against all the village inhabitants including women, elderly and children.
APADOR-CH asked the military Prosecutor's Office to immediately start an investigation into the way in which the police, the gendarmes and “masked” persons acted in Ciocanari on October 24-th 2001, and also about the absence of the search warrants. Likewise, the association asks for investigation to be made into the deprivation of freedom, brutality which people in the village were subject to, the torture suffered by the persons taken to the Buftea police station and the destruction of goods.
Until the end of 2001, APADOR-CH received an answer only from the General Police Inspectorate showing that the whole action was “legal”.
4. Older cases, yet unsolved
Unfortunately these cases are numerous. Some of them have been forwarded to the European Court for Human Rights (see the chapter “Cases on trial in the European Court”). Of the unsolved ones the most serious is that of Mugurel Soare, shot in the head by the police on May 18-th 2000. Mugurel Soare (19 years old at the date of the incident) remained with sequelae following the shot (the right part of his body was completely paralyzed but after two recovery treatments he made some progress; another consequence was incapacity to speak, unfortunately still unsolved).
After one and a half years when the complaint was filed to the military prosecutor's Office (with coming backs both by the family of the victim and APADOR-CH), the prosecutor in charge of the investigation decided not to start criminal investigation. The victim's family and the association contested the decision. Surprisingly fast, the military Prosecutor's Office invalidated the decision and ordered that the investigation be revised. Until the end of 2001 (so after more than one year and a half of the incident) the new decision was not communicated either to the family or the association.
III. ASPECTS FROM PENITENTIARIES
In point of the legislation on penitentiaries nothing new emerged in 2001 either. Thus, neither this year, a new Law on carrying out terms in prison was passed, which makes Law 23/1969 still in force. Similarly, nothing concrete was done in the direction of the demilitarization of the penitentiaries system (this year was another one when Parliament did not debate the draft law on the Status of the penitentiary staff). At the end of 2000 the legal regulations on the organization and operation of services for the social integration of offenders and supervision of the enforcement of sanctions not depriving of freedom (the probation services) were adopted. In 2001, the representatives of APADOR-CH visited the service that operates with the Court of Arad and found some notable results in its cooperation with the penitentiary in the locality (especially for training underage for life in freedom, development and maintaining ties with the families, occupational therapy etc).
The cooperation of APADOR-CH with officials of the General Directorate of Penitentiaries (GDP) was good. The current management of GDP has itself secured the unlimited access of the representatives of the association to penitentiaries and generally answered promptly the reports that APADOR-CH sent after every visit. During the visits, the representatives of the association were exclusively interested in the treatment of detainees and issues of a legal nature were addressed only to the extent to which they had any connection with the insurance of the trial guarantees provided for by the law. The management of GDP answered with solicitude the intimations and requests submitted by some detainees to the association and which belonged to the legal authority of the Directorate.
The representatives of APADOR-CH visited the following facilities: the penitentiaries of Ploiesti, Botosani, Codlea, Oradea, Barcea Mare, Arad (the “old” penitentiary and the new unit), Tulcea and Poarta Alba (including the units of Valu lui Traian and Mosneni) and the hospital penitentiaries of Dej and Poarta Alba.
The main aspects resulting from the visit to penitentiaries
1. The detention conditions
Overcrowding
In 2001 too the most acute problem in the penitentiary system was overcrowding. APADOR-CH considers as still very topical the conclusions of the European Committee for Prevention of Torture (CPT) according to which “for the Romanian authorities, the priority of priorities should be reducing one way or another the overcrowding in penitentiaries”. The representatives of APADOR-CH found very special situations in the penitentiaries of Botosani (where 1,337 detainees were accommodated in 970 beds, at a normal capacity of 710 seats of the penitentiary), Ploiesti (864 detainees, 625 beds and 500 seats normal capacity), Oradea (802 detainees at a normal capacity of 574 seats) and Iasi (according to the estimation of the penitentiary management, the number of detainees who slept two in a bed was about 500). There are cases where in the big rooms there are twice as big a number of detainees than the number of beds. Four such examples are in four rooms of the penitentiaries of Ploiesti (40 youngsters in 24 beds), Botosani (49 youngsters in 27 beds, 54 underage in 30 beds, respectively) and Iasi (45 detainees in 30 beds). In some cases, overcrowding, although very real and serious is apparently relative. An example is that of the Tulcea penitentiary and of its unit of Chilia, where, at the date of the visit of the representatives of APADOR-CH, there were 2250 detainees in 2242 beds. Compared only among them, the two figures do not say that in this penitentiary overcrowding is a problem. But if they are compared to the normal capacity of 1120 seats it becomes obvious immediately that this penitentiary has a serious problem with overcrowding.
APADOR-CH agrees that given the general economic situation solving the problem of overcrowding in prisons is not easy. In spite of this, having in view the very serious consequences of overcrowding in penitentiaries - including the deterioration of the health condition of the detainees - it is necessary that GDP and the Ministry of Justice should make more efforts for obtaining more funds - budgetary and off-budget - for new accommodation spaces. In addition, it is necessary that GDP and the Ministry of Justice should continue to take over from the Ministry of National Defense, as accommodation spaces, the decommissioned barracks following the reorganization of the Army (this year, the representatives of the association noted the successful experience of Valu lui Traian unit of the Poarta Alba penitentiary). Likewise, APADOR-CH considers that the officials of GDP and of very penitentiary should concentrate their renovation and modernization works mainly on the accommodation spaces. Likewise, it is necessary - not in the last resort - that the authorities should eventually attach due attention to amending the penal legislation, a legislation obviously too permissive in point of issuing pretrial arrest warrants, in the sense that this measure can be taken in a number of situations that exceeds much that in The European Human Rights Convention. Consequently, among others, in the Romanian criminal system the pretrial detention can be prolonged up to half of the maximum indictment for which the person is arrested or the repeated offence be able to count for the release on parole too, after having it in view for the customization of terms in prison. Some of the more significant cases met on the occasion of the visits this year are the ones from the Codlea penitentiaries (where there were 288 persons in pretrial detention out of the total 1103 detainees), Iasi (335 out of 1821) and Poarta Alba (422 out of 2929).
The big number of detainees and the insufficient staff in the penitentiaries makes this ratio be 6,8 or 10 detainees for a staff member, much beyond the one accepted by the European standards, of 2 inmates to 1 staff member.
Feeding of the detainees
Although the impression of APADOR-CH is that generally a certain improvement of the situation regarding this aspect took place, the quantity and quality of the food was in 2001 too, another problem of the penitentiaries system. It derives mostly from the legal norms, rather austere, directly linked to the general economic situation but also from the often mis-management of the food for detainees. The representatives of the association met in several cases obvious differences between the quantities of meat registered in the accounting and those existing in the detainees' food. A special case is that of the Botosani penitentiary where the meals prepared for the detainees on diet and in the cauldrons for the second course there were no more than 20 kg of meat, which means a difference of about 80 kg as compared to what was registered in the papers (an example of the opposite case is the relatively good situation found during the visit to the Ploiesti penitentiary). In the opinion of the association, an important explanation of the situations of this kind is the lack of effective control of detainees of the way in which the own food is managed. In many of the penitentiaries visited, the association noticed a regrettable renunciation of an activity that used to be done in the previous years namely the detainees assisted, by rotation, to taking the food from the warehouse, putting it in the cauldrons and distributing it afterwards. APADOR-CH recommends the management of GDP to resume this activity whose effectiveness was proved in the past years and which could eliminate any suspicion of the detainees regarding the management of the food they are entitled to.
APADOR-CH reiterates its opinion that as long as in the penitentiary system feeding the detainees is still problematic, all the current restrictions about the detainees receiving parcels from the family should be given up. Thus, on the one hand, it is necessary to give up the disciplinary measure of suspending the right to the parcel and, on the other hand, restricting this right to once a month or every two months, with a maximum weight of 5 kg. In the opinion of the association the only acceptable restrictions in this domain would be those meant to avoid food poisoning. APADOR-CH recalls that in this sense are also the conclusions of the latest report on Romania, of 1999, of the Special UN Rapporteur on torture.
Similarly, it is necessary for GDP to examine the possibility of generalizing the practice in some penitentiaries - Codlea, for instance - where the detainees are served hot meals every day of the week, unlike other penitentiaries where at the end of the week they do not serve hot meals.
Health care and hygiene-sanitary conditions
In 2001 as well, the main problem of health care in penitentiaries has been the insufficient medical staff, especially doctors. The existing medical staff generally makes efforts for securing quality health care. In spite of all this, there are frequent cases when a doctor has to do about 60-70 and even more examinations and treatments a day (for 7 hours). This situation is explained on the one hand as the number of doctors is too small as compared to the number of detainees and, on the other hand, as in most penitentiaries the doctors also take care of the officers. Although normally this should happen only in case of emergency and for the annual check ups there are frequent cases when doctors give 2 or 3 hours of their daily schedule (7 hours a day) for consultations and treatments of the officers. APADOR-CH reiterates the arguments it put forth in the past few years: the detainees depend entirely on the doctors in the penitentiaries whereas the officers can go, after the work hours, to several other doctors, like the family doctor and to the whole range of specialist doctors or to emergency rooms; it is obvious for everybody that in the 4-5 hours left by the doctors for the detainees there is no question about comprehensive and professional examinations, during 4 or 5 minutes as such a consultation takes.
In many of the penitentiaries, the presence of 30 up to 50 patients with psychical diseases raises very serious problems, especially in the cases when among them there are some who should not be kept in the penitentiary but in a special health unit. The difficulties in this domain are the more so big as in the penitentiaries the absence of specialty doctors is an almost generalized phenomenon and sometimes even the own specialty hospitals do not do everything they can to improve this situation. On the occasion of the visit to Barcea Mare penitentiary, the representatives of the association noted the case of detainee Marius Vid. Following a blow he received from another detainee in the Oradea penitentiary, Marius Vid was left with serious psychic disturbances. He was in a permanent state of cvasi-consciousness, not knowing practically what his name was and not being able to control his body's movements (Vid's chart read “organic personality disturbance, skull- brain post trauma disturbances with absence of left temple bone mass”). Under these circumstances it was difficult to understand - including for the medical staff - the observation which the doctors of the Bucharest-Jilava penitentiary hospital made in the medical chart of the detainee: “able to work from a psychic point of view.”
In many cases there are special problems with dentistry, especially because of the lack of dentists (either not specialists or gone for training courses). Two examples are in the Ploiesti penitentiary (where there is no medical ward, therefore no dentist) and of the Iasi penitentiary (here there were more detainees with very serious tooth infections that lasted for quite long, from 3 months to 1 year, in absence of a dentist they were only given pain relief medicines).
The almost generalized practice of hand cuffing of the detainees who are in civilian hospitals still goes on (one of the few notable examples is that of the Dej penitentiary). APADOR-CH reiterates its opinion that this measure is excessive as long as two officers permanently escort these patients. In addition, this practice makes the detainees subject of public contempt, which can be avoided. The point of view of the association is in agreement with the recommendations of the European Committee for Prevention of Torture (CPT) and of the UN special rapporteur against torture. APADOR-CH continues to recommend that understandings be reached with the civilian hospitals with which the penitentiary work together, in the sense of putting bars at the windows of some rooms where the sick detainees are staying. For the cases when the patients might become nervous elastic bandages could be used for immobilization.
As regards the hygiene-sanitary conditions, although in general it can be said that there is adequate concern for this from officials, there are situations that should be improved without delay. There are still penitentiaries where, in the detainees' rooms, there are cockroaches and louses (Botosani, Oradea, and Barcea Mare). Likewise, it is necessary to review the legal provisions regarding the hygiene-sanitary and maintenance materials. In very few penitentiaries the detainees get soap, razor blades, toilette paper, shaving foam and detergents. The most unacceptable situation is when most of the detainees have to shave themselves with only one razor, which poses a serious threat to transmitting diseases from each other (an example is that of the Oradea penitentiary where every month just one razor blade was given for four detainees).
On the occasion of the visits paid this year, the representatives of APADOR-CH found that GDP intends to draft new regulations for the organization and operation of own hospitals. It is a salutary intention because it is normal that the sick detainees benefit from a more relaxed regime than the healthy ones. APADOR-CH suggests that in these hospitals the only applicable punishment for problems of discipline should be reprimand (and to give up completely suspension of the right to parcel). Similarly, the association considers that it is neither logical nor human that the sick detainees be obliged to wake up at 5:00 a.m. only because this is what the penitentiary rules say. APADOR-CH suggests to GDP that the future hospital regulations be applicable also to the medical wards and sick rooms in penitentiaries.
2. Connection with the outside
The visits
Generally speaking, the detainees have a right to visits. Following the visits this year the representatives of APADOR-CH believe that in all penitentiaries the detainees should have the discretion to establish - within the limits of the visits they have a right to - by whom they want or not to be visited. Secondly, any restrictions regarding the language in which the detainees want to talk with the persons visiting them as well as the issues they can discuss with the visitors should be given up. The representatives of the association found that the practice in the Tulcea penitentiary where the detainees and visitors were forced to speak only Romanian is unacceptable. In the penitentiary there were detainees who were Russian Lippovan, of Turkish origin and foreigners and if these and the visitors did not speak Romanian then the officers who spoke the respective languages were used for translation. Such a practice is illogical as long as mail is unlimited and not censored so that anything the detainees might want to convey to the persons outside -and the other way round - could be made without any problem whatsoever by mail. APADOR-CH recommends GDP to give up the provisions, unconstitutional and obsolete, included in the Penitentiary Regulations according to which “During the visits the discussion is carried out in the Romanian language. If this is not possible, the penitentiary management takes measures for the discussion to be understood by the staff that supervises the visit”. There was another practice in Tulcea too to oblige the detainees “to discuss only personal and family issues”. In the opinion of the association this rule too cannot be accepted both because of the reasons mentioned above and because, for instance, issues related to the legal situation of the detainee (obtaining papers from authorities, hiring a lawyer etc) which seem not to be among those that can be the subject of discussions during the visits are essential for the detainees' interests and for the assistance that their families and other visitors can give them. It is also necessary that all penitentiaries give up listening by the supervisors of the talks which the detainees have with the visitors, the more so as in the case of discussions with the lawyers. APADOR-CH consistently recommended in the past year - and does it now - that detainees who have clothes from home be allowed to wear them during the visits. The association insists on this especially in the case of underage, women and adults that are visited by their underage kids. In this respect, mentioned should be made of letter nr.2585/14.08.2001 sent by GDP to the association saying that as regards the persons in pretrial detention “their use of their own civilian clothes is going to be extended to all the units.”
The detainees can receive and send an unlimited number of letters, without the letters being read by the penitentiary staff. APADOR-CH recommends GDP to take all the necessary measures to give up altogether the provisions of Law 23/1969 and of the Order of Justice Minister nr.2036/C/1997 running counter to the constitutional norms on the secrecy of mail. According to Law 23/1969, “Mail, books, newspapers and magazines whose content is appreciated by the penitentiary commander as inadequate to the process of education of the detainee are retained by the management of the respective place and given back to the detainee when he/she is released (if the case may be, this mail is given to the responsible bodies)”. The provisions of Order of Justice Ministry nr.2036/C/1997 are unacceptable and run counter to the constitutional norms and international standards in the sense of putting restrictions to the right to mail and possibility of the penitentiary management to read the detainees' mail.
As regards the telephone talks that the detainees may have, the association reiterates its appreciation for the concern of the GDP and penitentiaries management to provide for all the necessary technical equipment. The observations of the representatives of APADOR-CH consistently referred to the restriction of the detainees' right to give phone calls and to the fact that the phone calls are more often than not listened to by the penitentiary staff. Because mail is unlimited and the telephone calls are assimilated, including in the Constitution, with the mail, APADOR-CH considers that the only restriction of the number of calls that the detainees may make should have in view the technical situation in every penitentiary. In most of the penitentiaries visited, the detainees could make only one phone call a month. Two of the notable exceptions, where the detainees can call 2 or 3 times a month are those of the Oradea penitentiary and Dej hospital penitentiary (unfortunately, here the phone call is maximum 5 minutes). An issue that the association should reiterate is that in many of the penitentiaries the surveillance staff hear what the detainees talk over the phone (some examples are the penitentiaries of Botosani, Arad, Oradea and the hospital penitentiary of Dej). At the Oradea penitentiary, there was a note close to the telephone saying “Telephone calls are surveilled”. The association has consistently asked and is doing it now that the detainees are secured a real confidentiality of telephone calls. Romania's Constitution assimilates these calls with the mail and consequently imposes, in this case, too, security of confidentiality. Naturally, it is possible to have cases when surveillance of a detainee's mail is required, but this can be done in conditions of strict legality, on the basis of a warrant, of precise legal procedures etc.
3. Discipline and disciplinary punishments
Just like in the previous year, disciplinary procedures for the detainees followed the rules of “the incident report”. The representatives of APADOR-CH found that, generally speaking, the sanctions applied to detainees observe the regulations in force. The penitentiary management gives due attention to avoiding abuses and subjective attitudes from the staff. In some penitentiaries (Arad, for instance) there is the salutary practice, which is worth being expanded, that the officials of the socio-cultural sector be consulted in connection with the issues that belong to the disciplinary situation in the unit but also with the disciplinary procedures in case of deviations from the Internal Rules of the Penitentiary and inclusion or non-inclusion of some detainees in the category of dangerous detainees etc.
Some problems however are still insufficiently solved. Thus, there are still penitentiaries where not all the detainees for whom the disciplinary procedures have started are heard by the discipline committee. Sometimes in the case of lighter punishments the hearing of those who are to be sanctioned is considered as not being compulsory. The representatives of the association insisted that the hearing was necessary in all the situations, regardless of the gravity of the envisaged punishment, on the one hand because the detainee's hearing is the one that can clarify to the greatest extent the circumstances in which the facts investigated by the committee took place, and, on the other hand, because the decision to sanction a detainee is one with very significant consequences for his/her situation, counting even for discussing the detainee's request for parole. The detainees' hearing is the more so necessary in the case of punishments of a bigger gravity. Unfortunately, the representatives of the association met cases when the detainees were sentenced for solitary confinement or severe confinement without being heard by the disciplinary committee (penitentiaries of Codlea, Poarta Alba, Barcea Mare; two penitentiaries with opposed practice, relatively good, are Iasi and Oradea). A special case found by the association representatives at the Ploiesti penitentiary was that of detainee Adrian Badea. Adrian Badea, transferred from the Mandresti penitentiary because of a trial at the Ploiesti court received a notification from GDP that he had to enforce a sentence with a restrictive term of 8 month for misconduct that he would have done in Mandresti. The detainee said he had not been heard by anybody and not been presented to any committee. The association representatives did not have the possibility to check those statements, being faced with another problem, a general one in the penitentiary system, namely that documents about discipline and the punishments of detainees are kept in a separate file than the penitentiary file. Therefor, because of this practice which the association representatives have criticized consistently in the penitentiary file of Adrian Badea there were no statements of that kind -if they were indeed made - because they remained at Mandresti.
In relation to the personal files, there were cases (at the Iasi penitentiary, for instance) when the detainees were not allowed “to see anything they want and whenever they want” in their own files. In the opinion of APADOR-CH all the documents on the legal situation and term in prison should be included in the personal file of the detainees and be accessible to them entirely and any time they ask for it. Similarly, access to one's file should be allowed also to the persons the detainee empowers to this effect.
Two categories of detainees that frequently have serious problems are: the detainees considered as dangerous and those punished with confinement. In the first case, the most significant thing is the way the detainees are included in this category (the APADOR-CH representatives considered this issue having in view especially the consequences which including them in the category of dangerous have on their situation, including regarding the term in prison and judgement of the requests for parole). Generally, dangerous are considered the detainees about whom there is “information” of having the intention to escape, to assault the officers or who sometimes have been put a tail on by the police. The APADOR-CH representatives constantly insisted that inclusion in this category should be made only after strict documentation on the facts for which a detainee or other are to be included in this category. A mere note on the cover of the file made by an officer or unlisted police officer - or by somebody else, usually not dated and with an illegible signature - is totally insufficient for the detainees to be automatically put in the category of “dangerous”, with all the consequences deriving from this. In addition, GDP officials and officials of penitentiaries should be exempt from the threat that if it happens that a detainee with such a note on his/her file produce “a special event”, the repercussions would be drastic from the supervising unlisted officer and up to the director and even higher. On the basis of own findings about the behaviour of detainees, the penitentiary officials should decide freely if it is required or not that a detainee be described as “dangerous”. APADOR-CH also considers that placing the detainees in the category of “dangerous” should be done exclusively in accordance with their behaviour in the penitentiary and not having in view the criminal offences and sentences applied to them. Among the penitentiaries with a good practice regarding the issue of the “dangerous” detainees there are the ones of Iasi and Oradea, where there is solid motivation in this classification and the situation of these detainees is periodically analyzed and reviewed.
In many of the penitentiaries visited, the confinement rooms have stone beds, the toilets are not separated from the rest of the room and the detainees are taken away, throughout the whole day, from wake up till the evening call, the sheets and the mattress. At the Poarta Alba penitentiary, in one of the confinement rooms, very small, there were 2 beds and 5 detainees, who were thus forced to sleep in turns, during the night. In the opinion of APADOR-CH these conditions are equivalent with the inhuman and degrading treatments, some of them being liable to put in danger the detainees' health. There have been cases when the days spent by the detainees in confinement until the decision on solitary confinement is made are not deducted from the term.
In spite of the fact that the standards of UN and of the Council of Europe forbid the use of chains as a means of constraint, there are still penitentiaries where these norms are ignored. In 2001, the APADOR-CH representatives met such cases, totally unacceptable, in the penitentiaries of Poarta Alba, Ploiesti and Arad. Unfortunately, legal provisions support this practice. This is the case of the provisions included in the Penitentiary Regulation and in the Justice Minister Order nr.1257/C/2000. The regulation says that “the aggressive or dangerous detainees, while in solitary confinement, are to be put chains at their feet and hands or cuffs” and the Justice Minister Order says that “in well grounded cases”, the detainees “are put hand cuffs or chains at their feet”. APADOR-CH asks GDP to take all necessary measures to give up as soon as possible these regulations and practices that are contrary to the civilized world.
4. Leisure pursuits and cultural-educational activities
The lack of activities for the detainees is another serious problem in the penitentiary system. From this point of view, the most difficult situation is that of the detainees with long term and who are not taken out for labour. There are numerous cases when 10, 15 or even more years in the life of a detainee mean about 20 hours spent still in bed. Lack of activity and prolonged stress are overwhelming and brutalizing. The CPT representatives have constantly said that to keep the detainees almost all the time in overcrowded and sometimes insanitary places, without being proposed some real preoccupations, can only be a brutalizing experience for many of them and that the goal to be attained progressively is that all the detainees be able to spend a reasonable part of the day (that is 8 hours or more) outside the cell, busy with varied and motivating activities). APADOR-CH considers that the appreciation of CPT is fully justified and asks the GDP management to include the “occupational” issue among its priorities.
In many penitentiaries, the “daily” walk of the detainees is itself a problem. A first shortcoming is about the very legal provisions. Although the UN and European standards require providing for a daily program of “at least one hour” of walk or exercise in the open air, the Romanian Penitentiary Regulation (adopted in application of Law 23/1969) establishes that the duration of the daily walk is at “least 30 minutes”. APADOR-CH requires GDP to modify the current regulation and make more efforts for improving the situation in this field. In the association's opinion the emergencies are cases like at the Iasi penitentiary where there are detainees who go out for walk only 2 or 3 days a week, for half an hour. The association recalls that following the visits it made in penitentiaries CPT asked the Romanian authorities to take measures for all the detainees to benefit from an hour exercise in the yard a day, every day of the week.
Although APADOR-CH knows the difficulties that the penitentiaries have in finding work for detainees it asks the management of penitentiaries to make more efforts in this respect. In addition to the incomes, very necessary, which the penitentiaries and detainees make, work is one of the most recommended ways for detainees to spend their time in prison. In addition, the possibility given to the detainees to perform a proper work is an essential component of the process of social integration.
The cultural-educational departments can also attach more attention to the detainees' spending their leisure time in a useful and pleasant way. The APADOR-CH representatives noted a certain salutary tendency of eliminating formalism from the socio-educational activity of the staff. Special appreciation was given to the very attractive activities organized with the underage in the penitentiaries of Codlea, Barcea Mare and Poarta Alba. At Codlea a remarkable success has had the staging of a play in which the actors were the underage. It was not drama therapy but the staging of some classic texts, “the stage manager” being the penitentiary psychologist. The interest of the 20 underage involved in this program was great, proving that any action that gets out of the patterns of boring “conferences” has a beneficial impact. The Codlea penitentiary psychologist organized systematically meetings of the parents of the underage with the unit officers and the children in detention. At Barcea Mare the psychologist developed a “difficult” program destined for the connection of the underage with their families and the community. The duration of the program was 6 months and it developed by small groups of 12 persons, special attention being attached to underage without a family. There, too, the psychologist constantly organized meetings of individual and group therapy, especially with the underage and the detainees with problems, especially those with suicidal tendencies. In the association opinion the underage, those sentenced for life and those with long terms should be to a greater extent a priority of the socio-educational activity of the staff.
In spite of the fact that spending the leisure time for detainees is a serious problem in all penitentiaries, there are cases when the management of some penitentiaries put restrictions on the detainees watching TV programs. Thus, there are long periods of time during the day when, although they have absolutely no activity at all, the detainees cannot even watch the TV. APADOR-CH asks GDP management to allow the detainees to watch TV when they are not having any organized activity. In addition, the association considers that the interdiction or the conditioning regarding the possibility for the detainees to receive radio cassettes from home be given up in all the penitentiaries. APADOR-CH considers that the argument “of saving electricity” heard by its representatives in some penitentiaries is completely groundless.
In 2001 the connections of penitentiaries with the non-governmental organizations, among which the Humanitarian Service for Penitentiaries, Prison Fellowship, the Europe for Europe Foundation and the associations Stanca Veacurilor and Misiunea Crestina pentru Inchisori continued. APADOR-CH considers that these ties, more often than not useful both to detainees and penitentiaries, should be encouraged to a greater extent. On the occasion of the visits, the association representatives heard that, under a decision of GDP of December 2000, the organizations that had projects in penitentiaries were forced to “renew their contracts of cooperation”, which actually meant that they had to suspend their activities. The consequences of this type of decisions are negative both for detainees, most of whom remain in their rooms 23 hours of 24, and for the officers, whereas the socio-educational staff is completely insufficient as compared to the big number of detainees and the guard and treatment staff have to face all the tension that is mounting in the rooms because of this very lack of activities.
Religious assistance is provided in an adequate way, in general. During their visits the association representatives found that there are cases in which the Orthodox priest, employed by the penitentiary, is assisting, practically supervising, the services that the representatives of other religious denominations (Adventist, Evangelist etc.) perform with the detainees. This practice is based on an order of GDP (nr.1/10.01.2001). APADOR-CH has constantly demonstrated the fact that art.29 of the Constitution establishes very clearly that “Freedom of thinking and opinion, as well as freedom of religious belief cannot be restricted in any way”. Likewise, contrary to the constitutional provisions there is another order of the GDP, an older one, forbidding the detainees to pass from one religious denomination to another during detention, motivating this by the fact that the detainees would not be capable to make such a decision, fully discretionary and responsible, during the enforcement of a sentence depriving them of freedom. The association does not agree with such a measure because it represents a form of restriction of freedom of religious faith.
IV. FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION OF PUBLIC INTEREST
In addition to the general legal framework presented in Chapter I of the report there are two problems which concern the association:
1. The draft law on the status of journalists
A draft law on the status of journalists was submitted to Parliament ever since 2000. The draft was in so obvious disagreement with all the international standards regarding freedom of expression that it seemed doomed to failure from the very beginning. Surprisingly, the Chamber of Deputies updated the draft after the November 2000 elections. Consequently, APADOR-CH drafted the following comments:
“Given that, in the opinion of APADOR-CH, the draft law on journalists is fundamentally wrong the association confines only to the matters of principle considering it would be useless to discuss every chapter in turns.
APADOR-CH asks Parliament to reject the draft law on journalists. No amendment can save this text which is profoundly noxious to freedom of expression.
In no country with democratic traditions “the media card” is compulsory and in no way is it a condition for recognizing a person's capacity as journalist. Resolution nr.2 of 1997 of the 4-th European ministerial conference on mass media asks clearly for “unlimited access to the profession of a journalist”. Similarly, Recommendation R(2000)7 of the Committee of Ministers of the Council of Europe mentions that freedom of expression rules out any previous authorization from the state or administration bodies for performing the profession of a journalist.
In the opinion of APADOR-CH both aspects run counter to art.10 of the European Convention and the case law of the European Court of Human Rights in Strasbourg.
Eventually, the draft law admits as such a series of articles in the Criminal Code (168/1 - spread of false information; 205 - insult; 206 - libel; 207 – truth proof; 236 - offense to insignia; 236/1 - defamation of the country and nation; 238 - offense to authority; 239 paragraph 1 - verbal battery) which constitute serious threats to freedom of the press. Nothing of the draft law pleas for the protection of journalists when “arrested” or for the duration of criminal trials resulting exclusively from their professional activity.
d) The draft law includes aspects that belong to a code of practice (for instance, art.34). It is not necessary, neither is it recommendable, that a code of practice of journalists be adopted in the form of a law. The code of practice should be the result of a concerted action of journalists, applicable in conditions that they themselves establish and under no pressure from legal norms passed by Parliament.
In conclusion, APADOR-CH asks insistently for the rejection by the Parliament committees of the draft law on journalists.”
Until the end of 2001 the draft was debated only by the Committee on culture, arts and mass media. Although it was not rejected de plano the text suffered numerous modifications of substance, after which nothing about this draft law has been discussed.
2. The National News Agency ROMPRES
The problem that concerns the association is that of the political influence, more and more obvious, on mass media. Both the public television and radio stations and the private ones give disproportionately big air time to the prime minister, government members and other representatives of the Social Democratic Party (the ruling party). The opposition in Parliament is seldom present and the extra-parliamentary one practically never. The situation is the same in the case of non-governmental organizations that express critical points of view on the Government.
With some exceptions the press is also “in line” with these obvious trends of the audio-visual. The reasons are generally of an economic-financial nature. Many private television and radio stations or publications have huge debts to the state budget, which makes them very vulnerable. The public television and radio have been subject to clear political pressure as Parliament rejected their annual reports, which led to the replacement of the board of directors of the radio company. The same threat -not yet put into practice - hovers over the television.
The most eloquent example of political control is that of the national news agency, ROMPRES. Under a Government Decision (which is not submitted to Parliament) of January 2001, the Ministry of Public Information was established. One of its main attributions is to promote the government's image, to explain and popularize the government's policy, to supply to the embassies accredited to Romania information about the government's activity etc. The final part of the decision mentions that ROMPRES passes in the subordination of the Ministry of Public Information (MPI) and that in 60 days the minister was to issue the norms for the agency.
In May 2001, a liberal parliamentarian submitted to the Chamber of Deputies a draft law on the status of ROMPRES according to which the agency was to be under Parliament control and to become again - what it had been before January 2001- main credit director. On September 13-th 2001 the Government issued another decision (nr.886) under which it legislated the subordination of ROMPRES to the MPI from a financial, administrative and political point of view. Therefore, the national news agency has become an instrument of promotion of the government's policy and image, freedom of speech, freedom of the press and the public's right to get correct and complete information being affected.
In parallel, the Committee on culture, arts and mass media of the Chamber of Deputies - which had the opinion of substance on the liberal draft on ROMPRES - could not debate the draft law for over two months, for various reasons created artificially by the representatives of PSD (The Social Democratic Party) with the participation of representatives of UDMR (The Ethnic Hungarians' Democratic Union of Romania) mainly because of the lack of quorum (at least 11 deputies).
A group of non-governmental organizations with constant preoccupations for freedom of speech and access to information (APADOR-CH, The Center for Independent Journalism, the Media Monitoring Agency and others) rallied together for supporting the liberal draft law. The representatives of the civil society were present at all the meetings of the Committee on culture, arts and mass media (including those deferred for various reasons). Due to pressure from inside the country but also from outside it (see the letters of some European parliamentarians, the reactions of the press office of the Stability Pact and OSCE, as well as the comments of one of the strongest international non-governmental organization -Article 19), the deputies of PSD (The Social Democratic Party) and UDMR (The Ethnic Hungarians' Democratic Union of Romania) gave up the obstructions and the liberal legislative proposal was adopted by the Committee in a form that was acceptable to all parties. What follows now is the vote in the plenum of the Chamber of Deputies and reiteration of procedures in the Senate.
Unfortunately, until the finalization of the law, the national news agency ROMPRES operates as a politicized press instrument of the current government by means of -and under total control - of the Ministry of Public Information.
3. Cooperation with the organization ARTICLE 19
During 2001 APADOR-CH continued cooperation with the organization Article 19 of Great Britain as part of the regional project “The practice of democracy” set up by the European Union, a project that involves organizations of Albania, Bulgaria, Croatia, Montenegro and Romania. The purpose of the project is to try and align the legislation on freedom of expression and access to information of public interest to the international standards in the field.
Regarding the persons' access to information of public interest similar legislation in other countries have been analyzed stress being laid on the need for such a law in Romania and its importance in the process of democratization by creating the best framework for dissemination of official information to the citizens.
Following an intense campaign organized by APADOR-CH together with the NGO-s in the country Parliament managed to draw up and pass a law on this issue.
Early in October 2001, APADOR-CH, the Center for Independent Journalism and Article 19 organized an international conference in Bucharest on the topic of access to information a conference that was attended by representatives of the civil society, of the authorities and experts in the field from Albania, Austria, Bosnia-Herzegovina, Bulgaria, India, Great Britain, Macedonia, Moldova, Montenegro, Norway, Romania and Hungary.
The purpose of the Conference was to make an exchange of ideas and experience among the participants on measures to be taken for the adoption of a law on this matter (the situation of the countries where there is not a law on access to information) and regulations of implementation (the situation of countries which only recently have a law on access to information).
The project carried out together with Article 19 included the translation, editing, printing and distribution on a wide scale of some documentary materials: The Johannesburg Principles (National Security, freedom of expression and access to information), The Public’s Right to Know (Principles on freedom of information legislation) and Defining defamation (principles on freedom of expression and protection of reputation). The purpose of the distribution of these materials was to make known in this country the generally valid principles accepted in the democratic societies.
V. NATIONAL MINORITIES IN ROMANIA
In 2001 there were some significant developments about the situation of national minorities in Romania from the prospect of the evolution of the legislative framework, from the perspective of the institutional framework and public policy. Added to these are the events relevant for the atmosphere in which national minorities live in Romania.
1. Developments in the legislative framework
The most important achievement in the legislative field is the adoption on April 15-th 2001 of the Law on local public administration. According to the provisions of the new law, in the administrative-territorial units where the minorities exceed 20% of the number of inhabitants, the decisions of the Local Council with a normative character are brought to public knowledge also in the mother tongue of the minorities. The individual requests are communicated, upon request, in the mother tongue. In the Local Councils where the councilors belonging to a national minority account for at least one third of the total number, the meetings can be held also in the mother tongue. The inhabitants can address the local public administration authorities, orally or in writing, in the mother tongue and the answer will be in the same language. The local public authorities shall secure inscriptions with the name of localities and public institutions under their authority and announcements of public interest also in the mother tongue of the minorities that exceed in number 20%.
APADOR-CH contests however the fact that the law is not applied all over the country. The most flagrant example is that of the Cluj-Napoca municipality, where the mayor announced publicly his refusal to apply the law. And it has not been applied, in spite of the fact that the Hungarian population accounts for 23% - according to the 1992 census.
The setting up of the National Council for Combating Discrimination
On 12.12.2001, Romania's Government published in the Official Gazette Decision nr.1194/27.11.2001 on the organization and operation of the National Council for Combating Discrimination.
APADOR-CH considers that the establishment of the National Council for Combating Discrimination - at about 1 year after the deadline indicated in the law - is an important step in the development of a system of prevention and combating of discrimination in Romania - a field where in the whole period 1990-2000 there were serious legislative and institutional shortcomings. The association representatives took part in the drafting and promotion of a Government Decision.
The restitution of some real estate that belonged to ethnic minorities
On May 8-th 2001, the Chamber of Deputies passed two ordinances that regulate the restitution of real estate that belonged to ethnic minorities in Romania. In conformity with them: (1) the representatives of the World Organization of Restitution of Jewish Assets can join the special committees that will deal with the restitution of the properties of the Jewish community which were confiscated by the Romanian state; (2) restituted to the Jewish community are three real estate in Bacau, Cluj-Napoca and Brasov and to the Reformed Church of Ardeal a building in Cluj-Napoca.
The norms regarding the hoisting of Romania's flag, intonation of the national anthem and use of insignia with Romania's stamp
On November 27-th 2001, Romania's Government passed the Norms on the hoisting of Romania's flag, intonation of the national anthem and use of insignia with Romania's stamp. Thus, Law 75 of 1994 which seemed to have become obsolete was updated.
The norms rule out the hoisting of foreign flags and intonation of the national anthem of other states, with the exception provided for in the law. Law 75/1994 and its regulations of implementation are measures of a xenophobic and also chauvinistic character, to the extent to which the state flag and anthem can represent cultural signs of a national community. Obviously, Law 75/1994 and its regulations infringe freedom of expression.
2. Developments in matters of public policy
Adoption of the National Strategy for the Roma population
On April 23rd 2001, Romania's Government published “The National Strategy for the Improvement of the Situation of Roma”. The ten main directions of action are: administration and economic development; housing; social security; health; economy; justice and law enforcement; child protection; education; culture and religious denominations; communication and civic participation.
On June 12-th, the Ministry of Health and Family approved the Regulation on the organization and operation of the Ministerial Commission for Roma. A representative of the Roma will take part in the meetings and will have a voting right. CMRMSF attributions among others are to draw up the strategy of the Ministry of Health and Family for the improvement of the situation of the Roma, coordination, analysis and evaluation of putting it into practice.
Initiatives and ghettoizing of the Roma
President Ion Iliescu and Prime Minister Adrian Nastase have criticized, but in insufficient terms, only after the reaction of the Roma organizations (in the period October 7-th to 11-th) the decision of the Mayor and Local Council of the Piatra Neamt Municipality to build a special district for the Roma in that locality, surrounded by a bug fence and guarded by gendarmes. Subsequently, similar initiatives have been announced in Baia Mare and Deva.
At the end of 2001, a joint commission was set up meant to monitor the situation in Piatra Neamt. The mobilization of the civil society in this case showed that there is already capacity for cooperation among several organizations in the field able to prevent such initiatives of turning these places into ghettoes.
3. New elements that require a law on national ethnic minorities and ethnic-cultural groups
Following the elections of 2000, representatives of two new minorities were on the list of candidates to Parliament: of the Union of Slav Mecedonians (Vasile Ioan Sava) and of the Cultural Union of Ruthenians (Gheorghe Firczak). Initially, the Parliamentary Group of national minorities did not recognize these representatives. The deputies however validated the respective deputies' mandates eventually with 196 votes “for”, 60 “against” and 11 abstentions.
The situation led to discussions on the limit up to which one can go with the recognition of new minorities. The developments and debates in 2001, on this matter, reflected the fact that there is no clear normative system regarding the recognition of new minorities. APADOR-CH underlines the need for a law on national minorities and ethnic-cultural groups to be passed in order to solve the problems of substance, like: (a) define the rules and mechanisms of recognition of national minorities; (b) define the rights of ethnic-cultural groups (that are not qualified for the status of national minorities); (c) adapt the election rights to the rights previously gained in this matter; (d) integrate the overall rights of national minorities, spread in the sectoral legislation, in an articulated and harmonious system.
4. Observations on the situation of Csangoes in Moldavia
Investigation motivation
Between December 20-th and 22nd 2001, a team of APADOR-CH and of the Pro Europe League made an investigation into the region of Bacau, where it contacted the Association of Csango Hungarians of Romania, with more Hungarian Csangos of Cleja and Pustiana, the Prefect of Bacau, other observers of the situation in the area. Prior to this, in 1997, APADOR-CH had made a first investigation in the villages of Cleja, Pustiana and Lespezi.
The new investigation was motivated by the complaints that reached APADOR-CH and the Pro Europe League (i) from the Association of Csango Hungarians of Moldavia, branch Pustiana, in connection with the request of over 200 citizens who asked the Roman-Catholic Bishopric of Iasi, on April 5-th 2001, “to perform the service also in the Hungarian language in the Pustiana church” and (ii) from the Association of Csango Hungarians of Moldavia. The latter complained about actions of intimidation against the members and violations of individual rights and rights of national minorities in the case of Csangos.
The discussions with the representatives of the leadership of the Association of Csango Hungarians of Moldavia (ACHM) and persons belonging to this community have shown increased pressure on the Csangos that assume an identity different than the Romanian one, that is, the Hungarian identity. As of 1996 more parents from Cleja and other villages in county Bacau have submitted various applications for the introduction of the optional study of the Hungarian language in the public local schools.
In spite of the Report of the Interministerial Commission which established on the occasion of the visit on September 14-th and 15-th 2000 to county Bacau that in communes Pustiana and Cleja a group should be formed for the study of the mother tongue, this measure continued to be delayed by the Bacau County School Inspectorate. In parallel, pressure was put on the signatory parents, doubled by a campaign of intimidation masterminded through the local authorities, by representatives of the Interior Ministry and the press, determined part of the parents to withdraw their applications regarding the organization of optional tuition in the Hungarian language.
Thus, the parents' requests did not yield any results, just like the memos or the reports submitted along the years to the Ministry of National Education or the Department for the Protection of National Minorities or the evaluations of various organizations of the civil society. In a last attempt of partnership with the Bacau School Inspectorate, on 09.02.2001 ACHM filed to Bacau County School Inspectorate, on behalf of 77 parents of Pustiana village, an application for using, during the afternoon, when the classrooms are free, a classroom in Pustiana Secondary School for their children to learn the Hungarian language.
On 05.03.2001, the mayor of Pirjol commune (to which Pustiana village belongs) responded to the applicants by refusing them their optional study of the Hungarian language in the Pustiana school promising to discuss about the possibility of giving them a space in the Pustiana House of Culture, which did not happen.
Following this refusal, starting September 2001, ACHM launched a program-course of initiation and studying of the Hungarian language in private. In Cleja commune, for instance, these courses are held after the school schedule is over, in three private spaces adequately equipped and are attended by about one hundred children, which proves the community's interest and the parents' confidence in the activities developed by ACHM.
In the new circumstances, the authorities launched a wide scope operation of harassment, intimidation and reprisals on ACHM, the parents and children and on owners of the respective spaces where the courses of Hungarian language were held. Thus, on 09.11.2001 a notification was received at the Bacau County School Inspectorate signed by three school principals in the commune and by the chairman of the council of parents in Cleja saying that ACHM set up a parallel system of tuition in the Hungarian language in the commune.
In response, on 14.11.2001 a commission including the general deputy inspector, two special inspectors and the mayor and deputy mayor, directors of three schools in the commune, a teacher and member of PRM (The Greater Romania Party), as well as the local representative of the Police went to Cleja. The commission, which included also representatives of the Bacau press who are known for their hostile attitude against the claims of the Csango Hungarians called to the city hall the owners of the houses where the courses of Hungarian language and for over two hours put them to a humiliating investigation during which the two women were accused of violation of the state laws, being threatened with search, fine and being warned several times that if they want to learn the Hungarian language they should emigrate to Hungary.
The Bacau Prefecture knew about the incident because on 16.11.2001 the Prefect's head of office went to Cleja commune, called to the city hall the coordinator of the Hungarian language program of ACHM then inspected the private spaces where the courses were held. As a matter of fact, on the basis of an order of the Bacau Prefecture nr.7862/09.11.2001 a representative of the Public Sanitation Inspection (Sanepid) of Bacau went to Cleja and disposed on the spot, without any notification, according to minutes nr.3452, 3453, 3454 that activity going on in the respective spaces be suspended. It should be mentioned that the Health Ministry mentioned that there are 223 schools in Bacau county which do not have the approval of Sanepid.
A very serious issue is the psychological pressure and humiliation suffered by the children who dare to take part in the optional courses of Hungarian language organized by ACHM. Some teachers have the habit of scolding the children in front of the class, anathematizing the Hungarian language and threatening the children. In some cases they even gave lower grades for conduct to these pupils.
The authorities hostile to the activity of ACHM do not hesitate, as it was seen, to also involve the press in this strategy of harassment of the parents that require optional tuition in the Hungarian language. A real press campaign accompanies systematically the measures undertaken by the Prefecture or the County School Inspectorate. The dailies “Monitorul” and “Desteptarea” inoculate suspicion to the readers about the right to education in the Hungarian language by apocalyptic titles (“Irredentist attacks under the school umbrella”, “The Hungarian language is taught with beating”, “The Hungarian phantom haunts Pustiana, too”). These newspapers do not give any space to the persons or associations incriminated or to the presentation of their opinions.
The discussion with the Bacau County Prefect showed that although he was knowledgeable of the situation he believes the conduct of the local authorities, of the County School Inspectorate or the Police was legitimate. When analyzing the whole situation the Prefect sets out from the theory of the Romanian origin of the Csangos and draws the conclusion, in complete disagreement with the law, that the Csangos' requests for learning the Hungarian language are not legitimate. The prefect rejected the idea that ACHM or its members had been harassed and showed his readiness to listen to their discontentment, if they are to require a hearing.
The language/Csango dialects as a regional language (minority)
The relevant philosophy for approaching the issue of the Csango language/dialects is the one coming out of the European Charter of Regional or Minority Languages. Romania has not yet ratified this document. But it signed it and this means that the Romanian state is still drafting its strategy on Part III of the Charter, this complex instrument allowing for an option from among various measures for using regional or minority languages. But Romania cannot contest the basic principles of the European Charter without by doing this to place itself outside of the values promoted by the Council of Europe.
According to the European Charter, the phrase “regional or minority languages” means the languages:
“(i) Used in a traditional way in a certain zone of a state by the citizens of that state who constitute a group that is numerically smaller than the rest of that state's population and (ii) Different from the official language (languages) of that state; it does not include either the dialects of the official language (languages) of that state or the languages of the migrants”.
“A zone in which a regional or minority language is used” means the geographical area where this language represents the way of expression of a number of persons justifying taking protection and promotion measures provided for in the current Charter.
Considering the number of persons that speak the Csango dialects and the traditional character of the communities in the regions of Bacau and Roman towns the dialects spoken by Csango correspond exactly to the subject of the European Charter. On this basis, they enjoy the protection of the principles that underlie the treatment of linguistic problems in the zone of the Csangos settled in Moldavia.
The European Charter of Regional or Minority Languages stipulates that “protection of regional or minority historic languages in Europe, out of which some risk, in time, to disappear, contribute to the development of traditions and cultural wealth of Europe”. Likewise, it underlined that “the right to practice a regional or minority language in private and public life represents a inalienable right”.
The Parties have made a commitment to base their policy, legislation and practice on the following objectives and principles:
“a. recognizing regional or minority languages as an expression of cultural richness;
b. observance of the geographical area of every regional or minority language so that the current or new administrative partitions should not be an obstacle for promoting the respective regional or minority language;
c. the need for determined action for promoting regional or minority languages for safeguarding them;
d. facilitating and/ or encouraging the using orally or in writing of the regional or minority languages, in the public or private life;
e. maintaining and developing relations, in the domains provided for by the Charter between the groups using a regional or minority language and other groups of the same state that speak a language that is practised in an identical or close form…...”;
f. establishing of forms or adequate means of tuition and study of regional or minority language, at all the adequate levels “ a.s.o. (Art. 7, 1).
According to these principles not only the Romanian state should have a policy of recognition of the Csango dialects but also one of encouragement, of promotion of using this language. The investigations made so far show that there are two distinct themes:
-The use of the Csango dialects in the religious services;
-The study of the Csango dialects in school.
There is permanent request from some Csangos for religious services in the mother tongue. There is a net policy of rejection, by the Roman-Catholic Bishopric, of the requests, although there are many priests who come from the very Csango community so there is the possibility to meet these requirements.
APADOR-CH draws attention on the fact that although the Roman-Catholic Church is an autonomous entity, it remains obliged, just like any other private or public entity, to observe the basic principles of human rights, that include also the protection of national minorities. On the basis of its obligations to the citizens of Romania, in particular, on the basis of art. 1 (3) of the Constitution, the Romanian state has a right to ask the Roman-Catholic Church to meet the requirements related to protection of the rights of the Csango population.The continued involvement even today of the Roman-Catholic Church in the policy of assimilation of the Csangos in Moldavia - after having systematically exercised this policy before 1989 - is incompatible with the domestic laws and with the values today accepted in the Council of Europe
As far as the study of the Csango dialects in the educational system is concerned, there is no requirement to this effect. Some Csangos asked for the study of the Hungarian literary language.
Item 2 al Art. 7 says the following:
“The parties commit themselves to eliminating, if they have not done this already, any distinction, exclusion, restriction or unjustified preference related to the use of a regional or minority language and whose purpose is discouraging or putting in danger maintaining or developing it.”
There are numerous complaints of the Csangos in Moldavia - verified during the investigation made by APADOR-CH in 1997 and in december 2001 - on the pressure that is put on them -primarily by the authorities - to give up the Hungarian dimension in their own identity, this being closely connected to the use of Csango dialects.
The group of Hungarian Csangos as a national minority that must be recognized as such and protected
It should be mentioned that in Romania's Constitution there is no difference between “national minorities” and “ethnic groups”. The Constitution guarantees the “right to preservation, development and expression of identity”….of the members of the national minorities (art. 6 (1)).There is no law recognizing a community as representing a national minority entitled to the subsequent rights or as an ethnic group (ethno-cultural) whose members be subject to anti-discriminatory legislation. Consequently, the recognition de facto of national minorities came after some administrative acts such as the census and registration on the election lists. It can be said that the “last” recognition of community as a national minority results from its representation in Parliament and in the Council of National Minorities - that distributes the state funds necessary for “preserving, developing and expressing identity” of the persons belonging to national minorities.
Although in the census sheet the “Csangos” appear as one of the “nationalities” it is not clear whether they are considered or not a national minority.
In this respect, APADOR-CH upholds the following:
As there is no special legislation on recognition of national minorities, the Romanian state is kept from the application of those internal norms relevant for national minorities. From among them, Recommendation 1201 -that has become part of the internal law by including it in Romania's treaties with Hungary and Ukraine - has the capacity to include a definition of “national minorities” considered: “a group of people in a state who: a. live on the territory of that state and are its citizens; b. maintain long term, solid and permanent connections with that state; c. manifest distinct ethnic, cultural, religious or linguistic characteristics; d. are sufficiently representative, even if in smaller numbers than the rest of the population of a state or a region of that state; e. are motivated by the concern to keep together what constitutes their common identity including their culture, traditions, religion or language.” (art. 1).
The definition refers to what traditionally “historical minorites” are considered to be. Having in view the status of an internal law of Recommendation 1201, it can be said that the Romanian state has the obligation to recognize at least the historical minorities.
Two issues are raised in the case of Csangos. One is that of representativity. Having in view the long existence of this minority on the territory of Romania, the only restriction could be a numerical one. Invoking numerical limits -rational - can only be reasoned if the Csangos were less in number than the less numerous groups accepted today as national minorities: Armenians (2.023), Slav Macedonians and Ruthenians - below 2000. But the figures show that the above limits are exceeded.
In the association opinion, the problem of the recognition of the Csangos as a national minority is acutely posed in the case of the Hungarian Csangos. Consideration should be made in parallel of the assimilation pressure from the central and local authorities and the manipulation of some of the Csangos against the will of the Hungarian Csangos to be recognized an identity linked to Csango language (Hungarian language). This could lead to a strategy of assuming the representation of Csangos against those who want to defend their language and traditional folklore. In addition, the Csangos that feel and declare themselves Romanians - the biggest part of the 240,000 Catholics in Moldavia - do not have a problem of identification as national minority, as long as they belong to the majority.
In this context, APADOR-CH considers that the recognition of “Csango Hungarians” as a distinct national minority represents a necessity for the protection of this community. It belongs however to the will of the Csango Hungarians and of the leaders who uphold the symbolical values of the community to demonstrate the preoccupation “to keep together what constitutes their common identity, including culture.”
5. Observations on the Harghita-Covasna Report of the Control Commission of SRI (The Romanian Intelligence Service)
I. The purposes of the investigation
In December 2001, APADOR-CH and the Pro Europe League started an investigation into the Report of the Control Commission of SRI (The Romanian Intelligence Service) brought to the public opinion knowledge in November 2001. Basically, the Report considered that counties Harghita and Covasna “got out of the state authority.” The signal given to the Romanian society and institutions meant to protect its sovereignty - signal of some authorities with responsibility in the field of national security - was that the Hungarian minority and its organizations represent a threat to the Romanian state.
The aim of APADOR-CH, as an organization devoted to defense of human rights, is not to investigate cases of infringement of the law, in general lines. The verification of allegations on law infringement in Harghita-Covasna is necessary to the extent to which the public scandal generated by the Report of the Control Commission of SRI indicates breaches or threats of the right of people and minorities.
The Report of the SRI Commission
The Report of the Control Commission of SRI can be divided into three sections:
The evaluation of the Report of the SRI Control Commission
In the period of investigations in Harghita and Covasna no manifestations of protest or urges to civic insubordination or any reference to them were mentioned. It should be underlined that incrimination of such acts by SRI violate art.4, paragraph 1 of the Law on the national security of Romania: “The provisions of art.3 on defense of national security cannot be interpreted or used for the purpose of restricting or forbidding the right to defense of a legitimate cause, of manifestation of a protest of ideological, political, religious or of another nature disagreement…”
In conclusion, the fact that SRI and the SRI Control Commission condemn the manifestations of the Hungarian population resulting directly from the rights - and at an institutional level, the obligations - sanctioned in the law: the Constitution, the Education Law, the Law on local public administration means a violation of the constitutional guarantees that the citizens of Romania enjoy.
The idea that the Hungarians in Romania consider themselves part of the Hungarian nation, the option for autonomy (personal, community, administrative), consideration of the ethnic Hungarians as “a state constitutive nation “, the proposal to change art.1 of Romania's Constitution on the “national unitary Romanian state” can be found in the documents of UDMR (The Ethnic Hungarians' Democratic Union of Romania) and in the declarations of the Hungarian leaders ever since early 1990. The idea of Romania's federalization does not appear in the UDMR programs but was launched by some Romanians and Hungarians being, as a matter of fact, the subject of public polemic.
The Report of the SRI Control Commission does not make a difference between the obligation to observe the Constitution - rule of law - and the option for changing the existing order and expressing this option. Any democratic Constitution permits revision. Romania's Constitution in art.146-148 provides for this. It is true that art.148 upholds “The provisions of this Constitution on the ….unitary and indivisible character of the Romanian state ….territorial integrity…shall not be subject to revision.” But art.148 as well can be reviewed according to constitutional provisions and therefore the mentioned restrictions fall. The citizens of Romania and the groups of citizens have a right to express their opinion on these matters and to turn them into an aim of their actions.
A separate analysis is required by the accusation “instigation to territorial separatism” . The SRI Control Commission could interpret the options to autonomy in this sense and invoke art.30, paragraph 7 of the Constitution that enumerates, among the restrictions to freedom of speech, “instigation to territorial separatism”. Reference to territorial separatism -as well as defamation of the country and nation - does not appear among the restrictions to freedom of expression in international treaties on human rights and liberties which Romania ratified, like the International Covenant on civic and political rights and The European Human Rights Convention. According to art.20 of the Constitution, international pacts and treaties on human rights have priority over domestic laws. Even if here it is not about a certain legislative provision but a constitutional one, the same art.20, paragraph 1 says “The constitutional provisions on the citizens' rights and freedoms will be interpreted in agreement with the Human Rights Universal Declaration, with the pacts and treaties Romania is a party to.” That is why putting limits to expression of points of view on the structural form of the state is incompatible with the spirit of the democratic societies but also with the Romanian constitutional safeguards.
In this respect, APADOR-CH considers the accusations to the Hungarians and Romanians with different opinions on the most advantageous constitutional order, accusation included in the Report of the SRI Control Commission, as an obvious violation of individual rights and rights of the national minorities.
In all the discussions with the local authorities and the Prefecture of the two counties the association representatives have asked for examples of refusals of enforcement of the court ruling. All denied the existence of such cases.
As far as the allegations on the process of “de-Romanianization” of the area by exclusion of the Romanian elements from the local decision processes and thus determining them to leave the counties where they live, imposing the knowledge of the Hungarian language as a selection criteria for the members of the respective structures, restriction of the possibilities of manifestation of the Romanian Orthodox Church in the area, the investigation of APADOR-CH and the Pro Europe League showed the following:
The reference in the Report on “the speculative exploitation of the process of administrative decentralization with a view to obtaining control over some priority domains of social life in this area”, this is ambiguous and impossible to be proved. In this context it should be said that local authorities have to deal with the principal domains of social life in the area and the success of such a process is real.
As far as the assertion regarding the loss of state control over an important zone of the national territory by the setting up of “a Hungarian border” inside the country, the representatives of APADOR-CH and the Pro Europe League had the occasion to see, during the investigation, how offending this was perceived by the civil servants in the area. The Directorate for culture, religious denominations and properties of Covasna received in 2001 about 850 million lei out of which about 450 million lei were spent on cultural activities.
In 2000 the Directorate was earmarked 313,289,395 lei, out of which 40-60% were spent for specific Romanian cultural activities.
Having in view that the Directorate is dealing with problems of culture, religious denominations and properties of the whole county and that the percentage of Romanians (36%), spending over 50% of the budget for specific Romanian manifestations is sharply in contradiction with the accusations in the Report of the SRI Control Commission.
VI. CASES ON TRIAL IN THE EUROPEAN COURT OF HUMAN RIGHTS (STRASBOURG)
In this chapter there is a presentation of the cases in which APADOR-CH involved in the start and support of procedures before the Commission/European Court of Human Rights considering that the claimants had been victims to violation of the rights provided for in the European Human Rights Convention (EHRC).
1. Ieremeiov versus Romania (1)
The situation de facto and the internal procedures
The claimant is a journalist at daily “ZIUA DE VEST” of Timisoara. In June 2000, right after the local elections, the claimant published an article headed “Mayor with file”. Referring to the newly elected mayor of the town of Buzias, the journalist said that the inhabitants of Buzias suspect him of collaboration with the former Securitate (Secret Police). The journalist also referred to the small difference of votes between the elected mayor and the other candidate. At the end of the article, the claimant offered information on the possibility of contesting the results of the elections and about the verifications made by CNSAS (The National Council for the Study of the Securitate Archives).
The journalist was sued for insult and libel. During the criminal trial, for defending himself against the accusations brought against him, the journalist identified the sources wherefrom he received the information he published. The court heard the respective persons. In February 2001 the Timisoara Court acquitted the claimant for both offences but gave him an administrative fine for insult and made him pay moral damages to the mayor of Buzias. The Timis Court, in its ruling of April 2001, in the appeal, considered the journalist guilty of libel and gave him an administrative fine; in addition, the court of appeal increased the moral damages from 3 million to 20 million lei. The court ruling is final and enforceable.
The procedure before the European Human Rights Court
In October 2001 the journalist addressed the European Court invoking infringement of the rights guaranteed by articles 10,6 and 13 of the Convention. The claimant upheld that the Timis Court ruling sanctioning him administratively and compelling him to pay moral damages for libel as well as the fact that he was forced to disclose his sources in order to defend himself violated his right to freedom of speech. Infringement of Article 6 was caused by the fact that the Timis Court held the claimant guilty of libel without hearing him. As to the right to effective remedies guaranteed in Article 13, the claimant sustained the lack of such remedies in the domestic law.
The complaint is registered under number PP 30195/2001 at the European Court where it is judged.
2. Ieremeiov versus Romania (2)
The situation de facto and the internal procedures
The claimant is a journalist at daily “ZIUA DE VEST” of Timisoara. In June 2000 he published an article about the allegation of sexual harassment of the director of the Timis Public Health Directorate by a resident doctor. The allegation had been made at a meeting between the resident doctors and the prefect that was also attended by the claimant. Besides reporting on this allegation, the journalist also referred to the discontentment of resident doctors who had not received their salaries since May.
The Director of the Timis Public Health Directorate brought a penal action against the journalist for the offense of libel and required moral damages. In March 2001 the Timisoara Court acquitted the claimant for libel and rejected the moral compensation claim. In appeal, the Timis Court found the journalist guilty of libel and gave him administrative fine compelling him to pay 5 million lei as moral damages. The court ruling is final and enforceable.
The procedure in front of the European Human Rights Court
In October 2001 the journalist addressed the European Court invoking infringement of the rights guaranteed by articles 10,6 and 13 of the Convention. The claimant upheld that the ruling of the Timis Court ruling which found him guilty of libel and according to which he was fined and compelled to pay moral damages was an unjustified restriction of his right to freedom of speech, guaranteed by article 10 of the Convention. As regards the right to an equitable trial, the claimant upheld that being sanctioned by the court of appeal without being heard was contrary to article 6 of the Convention. The journalist further upheld that there is no remedy in domestic law in the sense of recognition and remedying the breach of freedom of speech and the right to an equitable trial, contrary to Article 13 of the Convention.
The complaint is registered at the European Court with number 75300/2001 where the trial is also on.
3. Olteanu versus Romania
The situation de facto and the internal procedures
On May 16-th 1997, Nicu Olteanu, suspected of having committed a criminal offense (stealing six bottles of mineral water) was beaten and shot in the sole of his left foot by two officers of Police station 9 of Bucharest. The assault took place inside and in front of the Post Office nr.49, in the presence of a relatively big number of people, among whom the 8-year old son of the victim. Although he had open, bleeding wound from the shooting, the victim was not taken to hospital for assistance but was immobilized with the handcuffs and brought to the police station. After a while, the victim was taken by a police car to the Saint Pantelimon Hospital where he was performed surgery that lasted for about 5 hours. The diagnosis was malleolus tibial and right forearm cut wound and left plantar shot wound, with metal residual foreign bodies. After the surgery, the victim was taken to the police station. After being kept on a chair in the yard of the police station for an hour, Mr. Olteanu was asked to write a declaration about what happened. The police ignored what the victim said, in the sense that he did not feel well and wanted to get some rest after the surgery. The victim wrote the declaration and was then taken to police custody, without any medical investigation being made and a chart being filled in. During the custody the victim did not benefit from the prescription or from the conditions adequate to his health condition being taken to the hospital only from time to time for treatment of the wound.
As of May 17-th 1997, Nicu Olteanu was retained by the police for 24 hours, after which two warrants for pretrial detention were issued against him, of 5 and 25 days. The victim upholds that between the expiry of his second warrant and his release, on June 5-th 1998, he was never brought to court for extension of the arrest warrant.
On June 5-th 1998, Nicu Olteanu was sent to court for several offenses, being partially acquitted (for battery and robbery) and convicted to 1 year and 18 days (for the offenses of disturbance of public order and destruction in a ruling of the Bucharest court on September 3rd 1998. The appeal of the prosecutor's office was rejected by the Bucharest Court of Appeal on June 11-th 1999 but the Supreme Court of Justice admitted the appeal brought by the prosecutor's office and, in the ruling of February 1-st 2000 Mr. Olteanu was convicted for sentences of 5 and 3 years in prison, respectively, for robbery and battery. For the enforcement of the sentence Nicu Olteanu was again put to prison on March 23-rd 2000 and released by presidential pardon decree on April 27-th 2000.
In August 1997, from the Jilava penitentiary where he was serving his term Nicu Olteanu sent a complaint to the Bucharest Military Prosecutor's Office asking for the investigation and brought to court of the police officers who assaulted and shot him. In the coming period, the claimant sent complaints to the Prosecutor General, the President of the Bucharest Court and the Justice Ministry wherefrom he received no answers. In support of the victim's complaints, in March 1999, APADOR-CH addressed the Military Prosecutor's Office asking for information on the research made and the solution adopted. In November 1999, the Bucharest Military Prosecutor's Office told Mr. Olteanu that the complaint was solved by a resolution of non-indictment with the motivation that “the facts committed are not provided for in the criminal law”. The complaint against this solution -addressed to the Military Prosecutor's Offices Section with the Supreme Court of Justice - received no answer. The subsequent requests, including the one to be sent copies of the papers in the file received no answer, as well.
The procedure before the European Court of Human Rights
On February 9-th 2001 the victim filed a complaint to the European Court of Human Rights invoking infringement of the rights guaranteed in articles 3,5 and 13 of the European Human Rights Convention.
The claimant upheld the violation of the right of not being tortured or subject to inhuman or degrading treatment in the two distinct situations. The first was physical assault and shooting, on May 16-th 1997, by police officers in conditions that put in danger the life of his son, too. The claimant invoked also the fact that the police officers did not secure immediate and adequate medical treatment. The second infringement of article 3 was the lack of an efficient, rapid and impartial investigation by the national authorities (military prosecutor's office) meant to lead to the establishment of the circumstances in which the claimant was shot and wounded and identification and sanctioning of those guilty.
Further the claimant upheld the infringement of the right to freedom guaranteed by article 5 of the Convention, in two distinct situations. The first was the absence of a judicial control on the extension of the arrest warrant. The second was the fact that the claimant was not judged in a reasonable time or released during the trial.
As to the right to effective remedies, guaranteed by article 13, it was upheld that the omission of the national authorities to carry out an efficient and impartial inquiry deprived the claimant of any possibility of remedying the infringements suffered. In conformity with the internal law, the only bodies entitled to investigate the complaints against police workers are the military prosecutor's offices whose lack of independence and impartiality have been motivated both on the basis of some facts and of the legal framework where they operate.
The complaint is registered at the European Court nr.71090/2001 where it is judged.
4. Vili Rupa versus Romania
The de facto situation and the internal procedures
On January 28-th 1998 Vili Rupa was beaten by about 12 police officers in the downtown of Hunedoara town being then taken to the police station where he was further assaulted. Mr. Rupa was heard and was asked to admit some criminal offenses. Refusing to sign some declarations to this effect, the victim was isolated in a room at the police station during the night, without food and water and without access to toilet or telephone. The next day, Mr. Rupa was taken to the Police Inspectorate of County Hunedoara, in Deva, where he was heard again and put to sign a declaration written by a police officer, without being left to read it and without any councilor. During this time, Mr. Rupa was not told that he was arrested and was not presented any warrant in this respect. Vili Rupa was released after signing the declaration.
Mr. Rupa addressed the military prosecutor's office asking for an investigation of the police officers who assaulted him.
Another conflict took place on March 11-th 1998 when four police officers broke into Mr. Rupa's house withought any search warrant. Mr. Rupa refused, as required by the police officers, to go to the police, asking them, in an aggressive way, to get out of his house. Eventually, after another 50 police officers and a counselor ex officio arrived, Vili Rupa would have hit a police officer with an axe in the stomach but the latter was not hurt because the axe would have hit an agenda that he was wearing under the belt. Mr. Rupa was taken to the police station in Deva where he wrote a declaration both about the events of January 28-th and of those of March 11-th 1998.
The claimant was then presented a warrant for pretrial detention for 30 days that he refused to sign. After being put in the custody, a medical chart was filled in for Mr. Rupa, without any prescription. At the time Mr. Rupa was injured after the police officers' assault on him. In addition, Mr. Rupa suffered from “irritable-impulsive psychopathy” being psychically handicapped level II of disability, a situation known by the police.
The appellant's mother was not announced about the arrest and retaining of her son in the Deva Police custody.
In the period March 11-th to June 4-th 1998 Rupa was put chains at his feet and for 16 days he was in a T system - chains at the hands and feet tied by an iron bar. The victim was not allowed any contact with the family or a doctor during this period of time. Vili Rupa was subject to a medical forensic examination, the conclusion being that his judgement was impaired. In this period of time, following the complaint against the police officers who beat him on January 28-th 1998, Mr. Rupa was visited by a military prosecutor from the Craiova Military Prosecutor's Office. The police officers put pressure on Mr. Rupa to withdraw his complaint.
In June 1998, Vili Rupa was sent to court for the offense of drug trafficking and two offenses of battery. During the trial in the Hunedoara Court Vili Rupa was brought in court with chains at his feet and handcuffs. The Hunedoara Court convicted him to 1 year and 2 months in prison, exactly the time he spent in police custody. He was released on May 10-th 1999. The appeal made by Mr. Rupa was rejected.
The complaint filed against the police officers was solved by the Military Prosecutor's Office with the Territorial Military Court in a ruling of non-indictment for grounds that the fact claimed were not confirmed. After his release, Mr. Rupa filed another complaint to the military prosecutor's office in connection with the inhuman and degrading treatment he was subject to in the Deva police custody and the Deva Penitentiary. The military prosecutor's office rejected the complaints against these solutions. Mr. Rupa sent numerous memos to the state authorities but received no answer. In parallel with Mr. Rupa's actions, APADOR-CH asked the Prosecutor General's Office - the Military Prosecutor's Office - to start an investigation into the facts the victim complained about. The final solution was non-indictment.
The procedure in front of the Commission/European Court of Human Rights
In February 1998, Vili Rupa addressed the European Commission of Human Rights invoking infringement of the rights guaranteed in articles 3,5,6,8 and 13 of the European Convention.
The right of not being tortured or subject to inhuman or degrading treatments, guaranteed in article 3 of the Convention was breached, in the appellant's opinion, in two distinct situations. The first refers to the fact that the victim was subject to inhuman and degrading treatment and, at some time, even to a regime of torture, as he was enchained. The second situation is the lack of a rapid, impartial and efficient investigation by the national authorities (military prosecutor's offices).
As to the right to freedom, provided for in article 5, paragraph 1 of the Convention, the claimant invokes the existence of several periods of time when he was deprived of freedom without any legal ground or, when such a formal ground existed, in absence of the evidence of his guilt and without taking into consideration his health condition. Paragraph 2 of article 5 was invoked following the authorities' omission to inform the claimant about the indictment and the reasons for his arrest. In the appellant's opinion paragraph 3 of article 5 was also breached as he was not immediately brought to court and the judicial procedures in the first instance took about one year, time during which the claimant was still in custody. It was further supported that the claimant was not able to contest the legality of his police custody, contrary to paragraph 4 of article 5 and similarly that the solutions of the military prosecutor's office actually denied him the possibility of obtaining a righteous reparation at an internal level for the detention contrary to the Convention.
The right to an equitable trial, guaranteed in article 6 paragraph 1 of the Convention was violated by the inequitable character of the procedures and the right of having access to justice in order to obtain civil compensations was actually cancelled by the decision of the military prosecutor's offices to finish the investigations without bringing to court those guilty. Contrary to paragraph 2 of article 6, the claimant did not enjoy the benefit of doubt. Thus, on March 11-th 1998, the police gave a cassette to the local PROTV television station, which was broadcast, presenting Vili Rupa as a criminal, in chains and led to the police car. The rights of the accused person to be told about the nature and cause of the accusations brought against him, to have the time and facilities necessary for preparing the defense and to defend himself in a real and efficient way, guaranteed in paragraph 3 of article 6 were also breached during the judicial procedures.
In relation to article 8, which guarantees the right to a private life, the claimant invoked the police breaking in his apartment without any search warrant and the claimant's consent.
Eventually, Mr. Rupa invoked the violation of the right to effective remedies, provided for in article 13, motivating that the internal legislation and practice do not offer effective remedies to victims of the police abuses.
The complaint was registered at the European Commission under nr 58478/98 being then transferred to the European Court. In the coming years, including in 2001, the claimant's counselor continued the correspondence with the Court clerk, supporting the initial assertions with the new communications of the military prosecutor's office.
5. Achim versus Romania
The de facto situation and the internal procedures
The victim, Radu Daniel Achim, aged 18, died in January 1994 of tuberculosis made while in detention and not treated by the penitentiary authorities. At the moment of death the victim did not have any muscular mass.
Radu Daniel Achim had been convicted in 1993 for a term in prison of 2 years and 6 months which he enforced, to a great extent, at the Gaiesti Re-education Center for Underage. At the date of taking to police custody the underage was healthy, as it comes out of the medical chart drawn up by the police. In January 1993 the underage was taken to the Reeducation Center where his medical chart was not filled in and no necessary vaccines were made to him. The victim stayed in the Reeducation Center over 7 months, a period during which he got TB. The disease was identified rather late and the underage was taken to the Bucharest Penitentiary Hospital in August 1993. After being hospitalized, the underage was not given the adequate treatment. For instance, the medical chart shows that in a period of 4 months - while he was in the Bucharest Penitentiary Hospital - part of the prescribed medication was not given to him, with the observation “the medicine is not in the drug store”, some tests were not made, mention being made that the substances are absent and the patient was repeatedly and frequently given Diazepam, a medicine not specific for the treatment of TB.
On January 14-th 1994, Radu Daniel Achim was hospitalized at the “Marius Nasta” Institute where he died several days later, on January 21-st 1994. The medical chart mentioned that the underage could not be made intramuscular shots because he had no muscular mass and that the disease started 4 months prior to the date of his hospitalization at the Bucharest Penitentiary Hospital, which means April 1993, during which the underage was in the Gaiesti Reeducation Center.
In February 1994, the minor's mother -Mrs. Floarea Pop - filed a complaint at the Justice Ministry asking for the persons guilty for Radu Daniel Achim's death to be identified and investigated. Also in February 1994 APADOR-CH addressed the Justice Ministry asking for an inquiry to be made both of the Gaiesti Reeducation Center and the Bucharest Penitentiary Hospital to establish the causes of contracting the disease, of aggravation of the diseases and of the underage's death.
Initially, the investigation was made in parallel by the Prosecutor's Office with the Bucharest Court and the Prosecutor's Office with the Supreme Court of Justice - the Section of criminal investigation. In March 1994, the complaint of Floarea Pop was sent also to the Ploiesti Military Prosecutor's Office to check the aspects related to the period of time when the underage was detained at the Gaiesti Reeducation Center. In April 1994, APADOR-CH addressed the Justice Ministry asking for permission to see the medical charts made during the hospitalization in the Bucharest Penitentiary Hospital and to discuss with the doctor that took care of him. The visit took place on April 28-th 1994, after on April 19-th 1994 the APADOR-CH representatives were denied access to hospital and following this a report was made, whose negative conclusions (overcrowded, insufficient and bad food, absence of the daily exercise program, dirt, heavy air) were presented to the Justice Ministry on May 19-th 1994. In May 1994, the Prosecutor's Office with the Bucharest Court decided on declining competence for solving the case and sent it to the Bucharest Military Prosecutor's Office, which, in October 1994 issued a non-indictment decision. In February 1995, the Military Prosecutor's Office with the General Prosecutor's Office contested the decision of non-indictment, disposed the start of criminal investigation in the case and sent the file to the Ploiesti Military Prosecutor's Office. Without any investigation, in April 1996 it was decided that the investigation be made by the Bucharest Military Prosecutor's Office. In July 1996 the latter declined its competence to solve the case and sent it to the Prosecutor's Office with the Bucharest Territorial Military Prosecution. During the time that followed no investigation was made into the case and in March 2000 another non-indictment decision was adopted which mentioned that facts claimed and investigated did not take place or, if the case may be, are not included in the criminal law. In May 2000, the minor's mother addressed the Military Prosecutor's Office - the General Prosecutor's Office - asking for the invalidation of this decision. A similar application was filed to APADOR-CH in June 2000. The Military Prosecutor's Office however retained the decision saying it was solid and legal.
In 1998, the minor's mother addressed the court asking for compensations for her son's death. The case is still on trial of the courts in Bucharest, with the problem of the stamp tax for which the Finance Ministry approved successive delays.
The procedure before the Commission/European Court of Human Rights
In August 2000, the victim's mother addressed the European Court of Human Rights invoking infringement of the rights guaranteed in articles 2,3, 6 and 13 of the European Human Rights Convention.
The violation of the right to life was also claimed, a right guaranteed in article 2, in two distinct situations: the first is the situation when the underage died following absence of treatment of the disease contracted during the detention and the second that the national authorities did not carry out any prompt, efficient and impartial investigation to lead to the identification of the guilty persons and bringing them to court.
The right of not being tortured or subject to inhuman or degrading treatment, guaranteed in article 3, was also invoked distinctly in two situations. Thus, the underage was tortured and subject to inhuman and degrading treatment during his detention in the Reeducation Center where he caught the disease, known being the fact that TB comes in inadequate conditions of hygiene and food; further on, the underage suffered physically and psychically in the penitentiary hospital. The second situation refers to the fact that the national authorities did not carry out a prompt, efficient and impartial investigation into the circumstances of the death and of the guilty persons.
The claimant also invoked the violation of the right to an equitable trial, guaranteed by article 6 of the Convention, upholding that the decision of the military prosecutor's office of ending the investigation with a decision of classification, without establishing the persons guilty of Radu Daniel Achim's death hindered her from performing her right to civil damages before an independent and impartial court. The claimant invoked also hindrance of access to justice following the obligation of paying the stamp tax and the fact that the tax bodies approved - temporarily - only the deferral of tax payment and not exemption from the tax.
Eventually, the claimant invoked infringement of the right to effective remedies, provided for by article 13 motivating that internal judicial legislation and practice do not provide for the right to remedy - not in the least effectively - in the situation in which the military prosecutors did not conduct a complete and efficient inquiry.
The complaint was registered at the European Commission for Human Rights number 63101/2000 and was transferred for trial to the European Court. In 2001 the claimant's representative informed the Court on the development of the applications for the stamp tax exemption and the civil damages trial.
6. Cotlet versus Romania
The de facto situation and the internal procedures
Silvestru Cotlet is serving a term in prison of 17 years, the conviction being final in January 1993. During the detention, that is, in November 1995, Mr. Cotlet filed a complaint to the European Commission for Human Rights, claiming infringement of the right to individual freedom and of the right of not being subject to degrading and inhuman treatment. The mail between the claimant and the institutions in Strasbourg was censored by the Romanian authorities. Thus, some letters of Mr Cotlet were read by the penitentiary authorities and registered at the Justice Ministry - the General Directorate of Penitentiaries. Part of the letters of the European Commission were opened and reached the claimant with much delay and other did not reach him at all. In this way the domestic authorities violated the right to mail, guaranteed by article 8 of the European Convention. There are no internal remedies for such a situation.
The procedure before the Commission/European Court of Human Rights
The initial complaint of the claimant was registered at the European Commission of Human Rights number 38565/1997 and afterwards completed with the assertion of infringement of article 8 of the European Convention. The admissibility of the complaint was analyzed by the European Court on October 10-th 2000, the Court mentioning that it has no competence to pronounce itself on the infringement of the rights provided for at articles 3 and 5 of the European Convention because Romania was not signatory to the Convention at the date when these two claimed infringements took place. Consequently, the complaint was communicated to Government only regarding the violation of article 8 of the Convention, that is, the right to confidentiality of the mail. In February 2001 the Government sent observations in writing to the Court and in May 2001, the claimant's representative sent to the European Court his observations on the admissibility and substance of the case regarding violation of article 8 of the Convention. What follows is the European Court's ruling on admissibility.
7. The Greek-Catholic church of Saint Vasile Polona versus Romania
The de facto situation and the internal procedures
The applicant is a Greek-Catholic Church -Saint Vasile Polona - which was established on August 15-th 1990 by the Greek-Catholic believers of Bucharest. The Greek-Catholic denomination was outlawed in Decree nr.358/1948 that was abrogated by Decree-Law nr.9/1989 lifting thus the interdiction of this denomination. After this date several Greek-Catholic parishes were established, including the one in Bucharest (the claimant).
In February 1992, the claimant started legal action for obtaining the church, the parish's house and the related land on Polona Street nr.50, for which it has all title deeds ever since 1892. As Decree nr. 358/1948 ruled out from nationalization the assets of the Greek-Catholic parishes, the claimant considered that it never lost the title deed and asked the court for evacuation of the current occupant, an Orthodox church.
The trial started in February 1992 at the Court of sector 1 of Bucharest and has not ended so far (after 9 years) having covered several times the trial levels first instance - appeal - appeal. All the instances that pronounced themselves so far in this case avoided to judge the substance of the case and gave solutions as exception which denied the appellant access to justice. For instance, it was said that the appellant does not have the right to come to court because the believers of Saint Vasile Polona parish belong mostly to the Orthodox denomination (in the sense that more Orthodox believers live in the houses round the church than Greek-Catholic). The courts also said that this case exceeds the attributes of the judiciary, the only authority to decide on this being a joint commission consisting of the two sides in litigation. The judicial procedures continue with the Bucharest Court, after the Court of Appeal rejected an appeal in this last exception, asserting the competence of the courts.
While the eviction trial was on, the appellant started another trial in July 2000. In this trial the courts also decided that they were not competent to judge the case, invoking the competence of the joint Orthodox-Greek-Catholic dialogue commission. At present this file is in appeal at the Supreme Court of Justice.
The Greek-Catholic believers of Bucharest cannot have religious services in their own church being deprived of using this parish ever since it was re-established, 9 years ago. The religious service is performed in a rented space between certain hours and on certain days of the week for which the Greek-Catholic believers pay a contribution in money.
The procedure before the European Court of Human Rights
In January 2001 the appellant addressed the European Court invoking infringement of the rights guaranteed in articles 6,9, 13, 14 of the European Human Rights Convention and Article 1 of Protocol 1 additional to the Convention.
The claimant upheld the violation of article 6 which guarantees the right to an equitable trial in four distinct situations: the length of judicial procedures (9 years out of which 7 since the ratification of the Convention by Romania); denial of the applicant's right to have access to justice; the lack of impartiality of the national courts as well as the superficiality and negligence of the courts in transcripting the oral debates.
As to the violation of article 1 of Protocol 1, the appellant invoked the courts refusal to restitute use of property. In this context, the claimant invoked the fact that the national authorities did not observe Resolution 1123 (1997) of the Parliamentary Assembly of the Council of Europe which asked Romania to solve the problem of the restitution of the confiscated assets, including and especially to the church.
Motivating violation of freedom of belief, guaranteed in article 9, the Greek-Catholic parish upheld that by depriving them of the use of their place of worship the right of the Greek-Catholic believers to free performance of religion was and still is not observed. The believers cannot perform their religious services in their own church being forced to attend religious services in a church that belongs to another religious denomination and for which they pay a contribution in money. The Greek-Catholic believers in Bucharest experience - obviously with sadness and frustration - the status of a religious minority which was used against them by the national courts and the majority church, causing a state of isolation from the majority population belonging to another religious denomination. Another consequence of these facts is the impossibility to organize and conduct religious education of the youth, for which it is necessary to have a flexible timeframe and space. In time these elements can lead to a decrease in the number of believers because the appellant parish cannot offer them the normal religious and education services.
The claimant further upheld that the rights to an equitable trial and to the free use of property were violated also for reasons that involve religious discrimination in relation to the majority religion in Romania, contrary to article 14 of the European Human Rights Convention.
The repeated invocation of the nature of a religious minority of the appellant, the explicit or implicit denial of access to justice, refusal of judging the merits of the case, the excessive duration of the judicial procedures and the attitude showing lack of impartiality of the national courts are elements which prove the religious discrimination to which the Greek-Catholic parish was and still is subject to. The very criterion of majority - opposed to the status of minority religion of the appellant - invoked by the courts is a proof of the religious discrimination of the Greek-Catholic church in performing its rights.
Invoking the right to effective remedies, guaranteed by article 13, the applicant upheld that it did not have at its disposal real and effective internal remedies for correcting the infringements of the rights guaranteed by The European Human Rights Convention invoked in its complaint. This infringement continues at present - just like all the infringements claimed. Even in the uncertain situation in which the appellant would obtain a favourable court ruling, the violations suffered cannot be remedied and compensated according to domestic law.
At present, the complaint of the Greek-Catholic parish of Saint Vasile Polona is on trial at the European Court where it was registered nr. 65965/2001. After the complaint was filed, the Court was informed by the claimant's representative, on the evolution of internal procedures, which continued the series of infringements claimed.
8. The Greek-Catholic parish Sambata-Bihor versus Romania
The claimant is the Greek-Catholic Parish of Sambata, county Bihor, which started legal action in the country for the restitution of the Greek-Catholic church in the Sambata commune, now occupied by the Orthodox Church in the locality. The claimant called the courts for a decision that should allow for an alternative performance, in the respective church, of the Greek Catholic and Orthodox services.
In October 1996, the Beius Court admitted the application regarding an alternative service, a solution maintained by the Bihor Court in May 1997. Judging the appeal made by the Orthodox parish - which permanently opposed an alternative service - in January 1998 the Oradea Court of Appeal dismissed the two rulings and rejected the action brought by the claimant as inadmissible. The Court of Appeal argued that the courts do not have the authority to judge such litigation that could only be solved by the joint commission consisting of the representatives of the two religious denominations, referring to the provisions of Decree-Law nr.126/1990. The decision of the Oradea Court of Appeal is final and irrevocable.
The procedures before the European Court of Human Rights
The appellant addressed the European Court upholding that through the ruling of the Oradea Court of Appeal the rights guaranteed in articles 6 and 9 of the European Human Rights Convention were violated.
Thus, the claimant motivated that the irrevocable decision that actually denied authority of the courts violated the right to justice. Obviously, a commission consisting of the very parties in litigation cannot be considered an independent and impartial court in the sense of article 6 of the Convention.
Further on, the claimant upheld that the refusal of the Oradea Court of Appeal to judge the application regarding the alternative religious service breached the freedom of faith of the Greek-Catholic believers in the parish, violating thus freedom of faith guaranteed in article 9.
The complaint of the appellant was registered at the European Court nr. 48107/1999 and on September 18-th 2001 was communicated to Romania's Government. The observation of the Government were sent to the claimant and its representative on December 18-th 2001, the answer of the parish to the Government's assertions is to be drafted.
VII. OTHER ACTIVITIES
1. The program of free of charge legal consultations
The program, started ever since 1994, continued in 2001, as well. Every Friday, a law firm offers free of charge legal advice to those interested, regardless of the legal nature of their problems. The average duration of the meetings is 4 hours and the average number of end users has risen to 14 per meeting.
The majority of the litigation is of a civil nature (actions for restitution of the real estate taken over abusively; work conflicts; common law litigation). There have been criminal cases as well, most of them on abuses of the law enforcement bodies especially deprivation of freedom and producing of evidence.
From among the individual cases two are significant for human rights violation:
This is a Romanian historian who, while working for CNSAS (National Council for the Study of the Securitate Archives) disclosed, in an article published in the daily “Libertatea”, information -obtained before being employed by that institution - which put in an unfavourable light the patriarch of the Romanian Orthodox Church.
Right after the publication of the article, the CNSAS leadership announced that Gabriel Catalan, who was a civil servant, was to be dismissed. This statement was made prior to starting the legal procedure of disciplinary investigation before dismissal from office and showed the abusive nature of the sanction subsequent to dismissal.
The instrumented disciplinary procedure against Gabriel Catalan violated the right to defense.
The Bucharest Court of Appeal - the Section of Administrative Disputes - which solved in a first instance the action brought by Gabriel Catalan against the dismissal order did not sanction the infringement of the law norms made by CNSAS during the disciplinary procedure and considered that the appealed order is legal and solid. The appeal is to be solved by the Supreme Court of Justice - the Section of Administrative Disputes.
In the civil ruling of March 15-th 1996, the Romanian state was obliged to pay to Ion Trifan the modest amount of 1,197,296 lei, representing moral and material damages suffered by the latter during the “miners' raids“ of June 1990 (illegal deprivation of freedom and mis-treatment).
The Romanian state, represented by the Finance Ministry, refused to pay the amount for various reasons and resorted to every means for not carrying out the forced garnishment asked by Ion Trifan. Likewise, the debtor constantly refused to update the amount to the inflation.
On January 30-th 2001, therefore, after almost 5 years of the court ruling which decided on the damages, the debtor paid the amount at the nominal value. The trial is not over yet because in the appeal on the application for garnishment, brought by Ion Trifan, the court ordered an accounting evaluation to be made, which has not happened till the end of 2001.
The entire procedure of garnishment, which began in 1998, is too long in comparison with its nature that required, according to the law, judgement with celerity.
2. The program for familiarizing judges and lawyers with the case-law of the European Court regarding freedom of speech
Initiated by the Media Monitoring Agency, the program, carried out in cooperation with APADOR-CH, took place in the period March-September 2001. Each of the 7 meetings organized in various localities consisted of separate meetings with judges and lawyers, with a joint presentation of 15 rulings of the European Court on Article 10 of the Convention (Freedom of speech). In addition, the lawyers were presented also the conditions of how complaints are drawn up in Strasbourg. The evaluation questionnaires showed the participants’ interest in how the problem should be tackled in the case of journalists sued for insult, libel or offense to authorities, as well as compared to the procedures of the European Court in such situations.
Similar guiding was received also by the members of the Helsinki Committee of the Republic of Moldova on the occasion of the visits that the representative of APADOR-CH made to Chisinau in 2001.
3. The project on national and religious minorities in the Balkans
APADOR-CH was the Romanian partner of the Helsinki International Federation that initiated this project. The association took part in a mission of monitoring of the situation of national and religious minorities in Kosovo, in the spring of 2001, finalized with a report on that issue.
4. The project developed by the association in cooperation with NEKI non-governmental organization of Hungary
The project consisted of the assessment of the legislative framework – at a regional level – that regulates the compensations granted by the states to persons who are illegally deprived of their freedom, with two concrete examples. APADOR-CH was the Romanian partner in this project.
CONCLUSIONS
1. In the field of legislation with direct impact on civil rights and rights of the minorities little has been made in the direction of harmonization of the internal law with the European standards. Practically, only two laws (of the local public administration and the access to public information) and an Ordinance (on abrogation of art.200 of the Criminal Code) can be considered progress. Nothing has however been made about some laws in force that should be drastically amended (The Criminal Code, the Criminal Procedure Code, the Law on national security, the Law on carrying out terms in prison etc.). In addition, an extremely dangerous law in the form approved by Parliament - the Law on classified information - was stopped right before promulgation. At the same time, the Government abused of the right to issue common or emergency ordinances, substituting practically the legislature.
2. The demilitarization and decentralization of the police was not done in 2001, either. The draft of modification of Law 26/1994 of the Police was approved by Parliament at the end of 2001, but the variant approved does not refer explicitly to the demilitarization of the police and does not have in view decentralization. The Status of the police officer, which is to bring clarifications at least at the chapter on demilitarization, was not voted yet.
APADOR-CH found a worrying increase in the interventions in force by the police (together with the gendarmes), completely disproportionate as compared to the purpose pursued. In addition, by modification of the police law, instead of a drastic restriction of the right of the police to use their fire arms (the only situation which could justify the use of a gun being only when a person's life is in real and imminent danger) increased the number of circumstances when they can use this means of immobilization, in relation to Law 17/1996 on the regime of weapons and ammunition.
3. As in the previous years, cooperation with the General Directorate of Penitentiaries went well. The fact that the association has free access to penitentiaries, without any prior formality, proves that GDP is an open institution, a thing proved also by the promptitude with which it responded to the reports drawn up by the association after every visit to a penitentiary, as well as to other demands of APADOR-CH.
4. Freedom of religion and faith continues to be restricted in the case of religious minorities. The Greek-Catholic church has major difficulties in getting back its places of worship now in the possession of the Orthodox Church. In some cases, the Greek-Catholic priests are forced to perform the service in rented spaces, totally improper to a religious service. Another special situation is that of Jehovah's Witnesses, a religious denomination recognized by the Supreme Court of Justice of Romania which does not benefit from the advantages deriving from this status because the competent authority (the current Ministry of Culture and Religious Denominations did not apply, by the end of 2001, an irrevocable court ruling).
5. Freedom of speech, in general and freedom of the press, in particular were again, asin the previous years, put under a question mark either by profoundly non-democratic initiatives or by economic-financial pressure or by numerous trials of insult and/or libel brought to journalists.
6. A positive aspect of the legislature was the passing of the Law on access to information of public interest. The law came into effect at the end of 2001 but can only be applied in 2002 because the norms of implementation were not completed by the Ministry of Public Information in the timeframe provided for by the law. In addition, according to the latest version of the regulations, another period of 60 days would follow (for organization of the spaces, preparation of the materials mentioned in the law as being mandatory for the public authorities, hiring/appointment of the staff etc) until the effective application of the law.
7. In the field of minorities (national, religious, sexual) a Government Decision was issued in December 2001 on the establishment of the National Council for prevention and combating of all forms of discrimination. Unfortunately, Ordinance 137/2000, which regulates this domain, was not voted in Parliament until the end of 2001. Practically, the establishment of the National Council - for the time being only “on paper” - does not mean that the guarantees offered by Ordinance 137/2000 (in force since November 2000) are functional.
8. APADOR-CH considers that in 2001 public authorities -mainly Government and Parliament - did not prove political will and real interest in alignment to the European standards in the field of civil rights.
The activities of APADOR-CH were supported financially by:
OPEN SOCIETY INSTITUTE (USA)
NATIONAL ENDOWMENT FOR DEMOCRACY (USA)
CHARLES STEWART MOTT FOUNDATION (USA)
GLOBAL MINISTRIES OF THE UNITING CHURCHES (HOLLAND)
AGIR ENSEMBLE POUR LES DROITS DE L'HOMME (FRANCE)
FREEDOM HOUSE (USA)
CENTRUL DE RESURSE PENTRU DIVERSITATE ETNOCULTURALA (CLUJ)
INTERNATIONAL HELSINKI FEDERATION (AUSTRIA)
ARTICLE 19 (GREAT BRITAIN)
LEGAL DEFENCE BUREAU FOR
NATIONAL AND ETHNIC
MINORITIES - NEKI (HUNGARY)