INTRODUCTION
The year 2002 brought about the consolidation of the Government installed after the 2000 elections. The tendency for control and centralization in all domains was strengthened, the most recent examples being the placing of the National Health Insurance Agency under direct control of the Ministry of Health, and of the Trade Registry under the authority of the Ministry of Justice, as well as the ongoing fight to keep the national news agency ROMPRES subordinated to the Ministry for Public Information (a sort of Ministry for Propaganda, whose existence in a democratic state is unjustified). The clearest signal in that respect was given by the overwhelming presence on television, on all channels, including – or mostly – on the private ones, of the Prime Minister, of members of the cabinet, but also of leading figures of the Social Democratic Party (PSD), while the programmes which dared criticize the government party were pressed into disappearance.
The PSD led government (constantly supported by the Democratic Alliance of Hungarians in Romania - UDMR) continued to issue a huge number of ordinances and emergency ordinances, some of them even aiming at modifying organic laws (such as the Criminal Code). It must be said that none of the emergency ordinances can be explained by any exceptional situation to justify the issuance of such a normative act. It is true that all ordinances issued by the government are to be debated by the Parliament, but:
1) there is no deadline (for instance, until the end of 2002, Ordinance 26/2000 on associations and foundations had not been examined by any of the two Chambers of the Parliament) and
2) until they are passed by the Parliament, ordinances produce legal effects.
The parliament continued - and intensified – its informational blockade. If an information centre still functions at the Chamber of Deputies (although, in order to ask for and receive the needed information, any person must learn in advance about the existence of certain draft bills and know the agenda of specialized committees), the Senate does not offer even such a minimal openness. Both Chambers hold the majority of working sessions - the ones which decide, after all, the final version of a bill – behind closed doors, the only persons accepted to take part being the representatives of the initiators, most of the time Ministries (as is the case for the Police Law and the Status of the Police Forces. APADOR-CH had numerous comments and suggestions during all phases of the debate. However, no representative of the association was invited to take part in the sessions of the specialized committees – the Committee on Defence, National Security and Public Order, respectively the Juridical Committee - of both Chambers). The lack of transparency in the legislative procedures, combined with the practice of the Government – the executive body – to issue ordinances as it pleases make it impossible for the civil society (associations, foundations or physical persons with interests in a certain field) to participate in the process of democratic regulation on matters of public interest.
The lack of transparency at the decision level is also visible at the level of central and local public administration. Government Decision no. 555/2001 prevents entitled authorities to make public any information regarding legislative initiatives or draft decisions at the local level before conclusion. APADOR-CH stands firmly against secrecy when it comes to decisions regarding the life of communities and especially the way public funds are being used.
2002 was also the year when threats against the freedom of expression intensified. Besides visible – and measurable – pressures on public and private TV stations, which went as far as the closure of a private television station, the Government even chose to misinform certain international bodies authorized to monitor Romania (for instance in March 2002, the Postmonitoring Committee for Romania of the Parliamentary Assembly of the Council of Europe was incorrectly informed that Romanian has already modified the articles on “defamation” in the Criminal Code). Moreover, it is obvious that there is no political will to de-criminalize insult and libel and accept the standards required by the European Court for Human Rights regarding the higher degree of exposure to media and public criticism for officials. The attempts to maintain or pretend to modify the articles on insult, libel, the proof of truth, offence against authority and “verbal outrage” (offence against civil servants) speak for themselves. Besides that, there is a major reluctance among authorities to recognize notions which are unanimously accepted in other democratic states, such as good (or bad) faith of the journalist and public interest.
The association considers that the passing and putting into effect Law no. 544/2001 on access to public information, have established a very powerful instrument in its fight against corruption, a phenomenon which has become generalized Romania, and is signalled as such by all the reports of international, governmental or non-governmental institutions and organisations. Unfortunately, the authorities/public institutions are not ready, not interested to observe this law. On the other hand, physical and legal persons in Romanian do not have, yet, the experience and “courage” needed to confront authorities, and even bring them to justice. The idea of the taxpayer’s right to hold authorities responsible for the way the tax money are used is not, for the moment, unanimously accepted and used. Moreover, Law 182/2002 on classified information (state and professional secrets), subsequent to law 544/2001, imposes numerous restrictions upon the free access to public information. APADOR-CH monitors with huge interest the way in which Justice keeps the balance between the public interest in finding out information detained by the authorities and the latter’s refusal to provide the information, based on the law on classified information.
2002 was the year when the police was finally demilitarised, a goal that APADOR-CH has supported over the last eight years. The association has, however, some doubts about the new laws regulating the domain, especially regarding 1) lack of decentralisation; 2) keeping in force the measure of “taking a person to the police station for 24 hours”, distinct from retaining someone for 24 hours; 3) the conditions for the use of firearms by the police and 4) raids. The association also has other objections to the new Law on police and the Status of the Police Officer (see chapter „Police” in this report), but believes it is too early to assess the impact of the new laws on the relation between the police and the citizens. The association mentions that, although it made repeated comments on both draft bills, it was never invited to present its point of view before the Parliament committees of both Chambers, the only party consulted being the Interior Ministry, the initiator of the bills.
The co-operation between APADOR-CH and the General Directorate of Penitentiaries (DGP) was, as in previous years, satisfactory. The DGP proved once again that, although it functions according to completely obsolete laws, it had a remarkable degree of transparency, even if it is a correction institution. Representatives of APADOR-CH were given free access permits to penitentiaries, with no prior announcement required. Of course, this does not mean there were no attempts from members of the staff to cover the realities in the penitentiaries. The association marks that, as opposed to previous years, the DGP did not answer the suggestions/objections/comments made by APADOR-CH representatives, but merely confirmed the reception of reports for each penitentiary the association visited. The association believes that any comment from the DGP, be it positive or negative, regarding the findings of its representatives, would be welcome. It is the only way towards a real co-operation between the penitentiary system an Romanian and non-governmental organisations with constant preoccupation in the field.
The Ordinance on combating all forms of discrimination (no. 137/2000) did not become effective until the end of 2002, although in August 2002 the National Council was finally established as the body authorized to put the law into effect. Unfortunately, at the end of December 2002, a Government Decision transformed the National Council from an relatively autonomous into a completely subordinated institution. By such a measure, the Government obstructed the law and ignored the explicit requirement of the European Union regarding the combating of discrimination.
APADOR-CH considers that 2002 brought no substantial progress in its main field of activity: civil rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and Additional Protocols and interpreted by the European Court of Human Rights in Strasbourg.
I. THE LEGISLATIVE FRAME ON HUMAN RIGHTS
1. Emergency Ordinance no. 58/2002
The year 2002 was marked by a very high number of ordinances and emergency ordinances issued by the Government, even referring to aspects from the domain of the organic laws (the Criminal Code, for example). The texts on which the normative acts are based are not accessible to the public and they are adopted by the Government during closed-doors sessions. Ordinances become effective as soon as they are published in the Official Gazette, or, in the case of emergency ordinances, immediately after being brought before the Parliament and approved – with or without modification – or rejected. There are no deadlines for the debate of ordinances. Ordinance no. 26/2000 on associations and foundations, for instance, has not been yet debated by none of the Chambers, although it had been issued almost three years ago.
Emergency Ordinance no. 58 of May 23, 2002 on the modification of provisions in the Criminal Code and Criminal Procedure Code brought back to attention the problems raised by articles 205 (insult), 206 (libel), 238 (offence against authority) and 239, par. 1 (“verbal outrage”). It must be said that the Parliamentary Assembly of the Council of Europe expressly asked Romania, under its Resolution 1123/1997, to modify the above mentioned articles (plus art. 200 on same sex relations, repealed in 2001). Romania subsequently went through a period of post-monitoring, which ended in April 2002, when it was noted, based on a erroneous report offered by the Romanian side on March 12th, 2002, that all the required modifications had been made. APADOR-CH publicly complained about the misinformation. On May 23rd, 2002, the government issued an emergency ordinance which tried to compensate for the negative effects of the abovementioned mislead. The modifications included in the G.O. no. 58 were considered insufficient by 17 NGOs which initiated the following protest:
“1. In May 2002, the official ceasing of Romania’s monitoring by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) was based, among others, on the erroneous information that certain articles in the Criminal Code had been modified. The information referred to art. 205 (insult), art. 206 (libel), art. 238 (offence against authority) and art. 239, par. 1 (“verbal outrage”) which had been expressly mentioned by Resolution 1123/1997 of the PACE, implying that they had already been modified and approved. Trying to make repairs for its error, the Government used an Emergency Ordinance to modify the Criminal Code. The result, however, is a mere cosmetic change of articles 205, 206 and 239, par. 1, the only one repealed being art. 238 (offence against authority). According to the Introductory note, the ordinance had in view “sanctions in accordance with the gravity of the offences, which do not pose serious threats… at the same time taking into consideration the realities of the judicial practice”.
The texts modified by G.E.O. no. 58 of May 23rd, 2002
A. Insult and libel
Of art. 205 - on insult - only the term in prison was eliminated, but criminal fines were maintained, meaning the offence still brought about criminal indictment, and a mention in the criminal record. Art. 206 – on libel – maintains the alternative punishments of term in prison or criminal fines, reducing the terms in prison (from 3 months - 3 years to 2 months – 2 years).
The G.E.O has no provision regarding art. 207 – the proof of truth. In all democratic states, the main defence for those accused of insult or libel are good faith, public interest and, less often, the proof of truth, but only as an alternative to the first two methods, and only if the defendant chooses so.
Maintaining the proof of truth as sole defence is a characteristic of the obsolete system of Romanian criminal law, which demands the defendant to prove its innocence. In a democratic legal system, the prosecution has to prove the guilt of the defendant. Moreover, the European standard of reasonable checking by journalists, who cannot be expected to lead complete investigation in order to establish if a statement is true or false beyond all doubts. In Dalban v. Romania, the European Court decided that the proof of truth may not be applied to statements of opinion, and that a presentation of facts is acceptable as long as it is not “completely untrue”, the burden of proof lying with the plaintiff.
In the opinion of undersigned associations, articles 205 and 206 should be eliminated from the Criminal Code. The responsibility for insult and libel should be of an exclusively civil nature. Also, penalties must be carefully balanced, so that pecuniary damages are not the main compensation for moral prejudice.
In case the offence of libel is not repealed, the undersigned organisations demand the elimination of the term in prison. Maintaining such a serious sanction for expressing an opinion is a form of censorship which discourages journalists and hinders the freedom of expression.
B. Insult, libel, threat against civil servants
Art. 238 (offence against authority) has been repealed. The G.E.O. retains however, in a slightly modified form, art. 239, par. 1, providing tougher sentences for insult and libel against a wide category of civil servants: all those in high positions implying the exercise of state authority. Therefore, the respective category of “civil servants” still benefits from additional protection as compared to ordinary citizens. While insult or label against the average person are punished by fine (in the case of insult), or fine and 2 months-2 years in prison (for libel), the same offences committed against a civil servant get 3 months to 3 years in prison, fines being excluded. The principle of equality before the law is thus infringed upon. The provisions of art. 239, par. 1 have been – and probably will be – used by some civil servants to fabricate criminal records against inconvenient persons.
The undersigned organisations consider that by this G.E.O., the Romanian Government has failed to fulfil its obligations set by the Parliamentary Assembly of the Council of Europe under Resolution 1123/1997. In the opinion of these organisations, the freedom of expression continues to be hindered even after the alterations made by the G.E.O. on the articles specified in the Resolution.
The undersigned organisations demand the Romanian Parliament that, during the debates over GEO no. 58 of May 23rd, 2002 (published in the Official Gazette on May 27th, 2002), to operate the following modifications:
- eliminate art. 205 (insult)
- eliminate art. 206 (libel) or, at least, eliminate the term in prison. If the offence is still incriminated, then art. 207 should be modified, by the introduction of proofs of good faith and public interest, alongside or alternately with the proof of truth.
- eliminate art. 239, par.1, so that civil servants use the common law provisions, as any other persona who feels insulted or libelled”.
The Chamber of Deputies adopted the G.E.O. as submitted by the Government. In September 2002, the Senate passed the same version, with only two minor amendments (limiting the maximum prison term for libel to six months and introducing fines for art. 239, par. 1). APADOR-CH and the signatories of the first complaint explained once again all the reasons why legislation on “defamation” should be brought to European standards, trying to persuade the joint mediation committee of the two Chambers to operate the necessary changes or even return the bill to the specialized committees. Unfortunately, the joint committee adopted the version as passed by the Senate. In October 2002, the Romanian President refused to promulgate the law and returned it to the Parliament, with the mention that he disapproves of prison terms for journalists. Until the end of year 2002, the Parliament did not reopen the debate on the draft bill.
2. The Law on classified information no. 182/2002
The law on classified information was initially adopted in 2001. The Constitutional Court decided that the law was unconstitutional, but only as concerns the passing procedure, with no reference to its content.
In February 2002, after a meeting with several MPs involved in rewriting the draft bill, a group of seven non-governmental organisations, including APADOR-CH, drew up and published a set of principles and concrete amendments to the draft bill. The matters of principles were the following:
Not all information regarding the national security and defence should be classified. The draft bill erroneously classifies, automatically and integrally, all information belonging to the respective fields.
The lists of categories of secrets (not the information as such) should be made public, in order to obey the rule of predictability of the law and allow citizens to adapt their behaviour to legal requirements.
The levels of secrecy should be re-examined on a regular basis (every two years, for example). The draft bill includes no such provision.
De-classified information should be made public. The draft bill fails to specify this obligation of the issuer or detainer.
The notion of public interest is absent from the text of the draft bill. Public interest in finding out certain information may prevail over the authorities' wish to render secret as much information as possible.
Secret professional information should not be regulated by law. In any case, secret professional information is at most linked to commercial strategies. Therefore the current text, which demands authorities and public administration to list their professional secrets is unacceptable. There can be no secret professional information in public institutions which are not connected to national security, and where the use of public funds and any other activity should be completely transparent.
Responsibility, including criminal responsibility, for protecting classified information should rest exclusively with the detaining authorities.
Citizens of NATO and the European Union countries or Romanian citizens who hold a second citizenship from one of the abovementioned countries should not be limited in their access to information, taking into account Romania’s expected adhesion to these structures.
The draft bill does not obey the rule of predictability, by maintaining the ambiguous phrase “of such nature as to…” – as was used in Law no. 23/1971 on state secrets – to describe possible threats to national security or to other values the state wishes to protect.
Neither the Chamber of Deputies nor the Senate took any of these observations into account. With a few slight improvements (art. 20 - the right of citizens to contest the classification of certain information, but only before an administrative court, a practically inefficient procedure in the case of this particular law; art. 24, par. 5 – it is forbidden to classify information “in order to conceal infringements upon the law, administration errors, hindering of access to public information…”), the law was passed and promulgated on April 12th, 2002. [1]
In June 2002, the Government adopted the application norms for Law no. 182. Extremely numerous and lengthy, the norms are applied to both state and professional secrets. APADOR-CH considers that Law no. 182, which contains provisions contravening to the Constitution and the European standards, constitutes a real threat against free access to public information.
3. The Criminal Procedure Code
Due to the great number of ordinances and emergency ordinances, of draft bills submitted by the Government or the MPs to either the Chamber of Deputies or the Senate, in an unpredictable way, it is almost impossible for the civil society to react in due time to certain draft bill which may represent a threat to human rights. The practice also allows for a draft bill to be submitted, withdrawn (in case it was not included on the agenda of the Parliament) and then submitted again in a modified form. That is exactly what happened to the Criminal Procedure Code. Moreover, the general rule (with very few exceptions) is that committee sessions – where final versions of draft bills are actually decided - are held behind closed doors.
In its desire to contribute to the harmonisation of the Criminal Procedure Code with the standards set by the jurisprudence of the European Court of Human Rights through the interpretation of rights guaranteed by the European Convention and Additional Protocols, APADOR-CH drew - based on the latest draft bill on the modification of the Code, in the form submitted to the Senate - a set of proposals and comments. The text regards articles which are already marked for amendment as well articles which have not been included in the draft.
The matters of principle raised by APADOR-CH are the following:
1. The draft bill includes several useful and necessary amendments. Unfortunately, the double role of the prosecution - respectively of the criminal action bodies - has been maintained. Therefore, the aforementioned bodies are under obligation to “gather evidence to reveal the truth and enlighten the matter under all aspects”, for which they “gather evidence both in favour and against the defendant” (art. 209 of the Criminal Procedure Code). It is obvious that the same person can not fulfil, at the same time, properly and effectively, the two opposite roles. Once they have started the criminal action, possibly even decided deprivation of freedom, the prosecution has subjectively expressed an opinion about guilt.
In law systems where the principles of cross-examination are carried out, the prosecution (police, public prosecutor) gather the evidence for indictment, while de defence (the counsellor, the defendant) gather the defending evidence, with the obligation of the prosecution to inform the defence on any evidence of innocence encountered during investigations. The system is fine-tuned so as to ensure real balance.
Equally unrealistic is the provision according to which “the criminal trial must lead to the disclosure of the truth” (article 3 of the Criminal Procedure Code). In reality, the criminal trial brings forth evidence against and in favour of the defendant, and the judges have to analyse the two categories of evidence and decide which ones are predominant and more convincing. The result is a “judicial truth” based on evidence, which may not correspond to the “truth”. There should be a legal way to admit the scarcity or lack of evidence against de defendant, when no “truth” is established, but only the insufficient evidence, which makes the defendant not guilty in a judicial, rather than real way. The same principle applies for the opposite situation.
The discussed draft bill never suggested such essential modifications, which would have brought about a real reform of the criminal judicial system.
2. Another matter of principle is the division of prerogatives between the prosecutor and the independent magistrate (the judge) during criminal action.
According to the draft bill, the prosecutor is the person to conduct, supervise and control the criminal investigation. APADOR-CH considers that the prosecutor should only have the competence to decide whether to send a person before a court, while the independent magistrate (the judge) should supervise and control the indictment activity, being entitled to dispose of any action he/she deems necessary.
It is the only way to guarantee the lawfulness and soundness of actions and measures comprised by indictment.
Among the concrete suggestions[2] made by APADOR-CH, the most important concern:
· eliminating the subordination of the civil action to the course and result of the criminal trial. The current system is based on the rule “the criminal trial suspends the civil action” (art. 19, par. 2 and 3, 20 and 22, inexistent in the draft bill);
· reducing and finally eliminating the competence of military courts;
· calling the agents on the field (police officers or other categories) for court hearings, in order to respect the rules of cross-examination and the principle of equality of arms between prosecution and defence;
· registration under serial numbers, on special form papers, of all statements made by a person during investigations, for the record (in addition to art. 88);
· the authorization for surveillance should be given only by the court (not by the president of the competent court), and only after indictment in the respective case (and not also during the preparatory phase) (in addition to art. 91, par. 1);
· a person’s arrest should be decided only by the court, not by the prosecutor (the draft bill provides that the prosecutor issues a warrant for 3 days – a notable improvement compared with the 30 days in the current law, yet insufficient in order to comply to European standards);
· the court should also decide (within 48 hours) whether to indict or not (currently, the prosecutor is the one to press charges, without any control from the judge);
· eliminating some of the situations when the accused may be arrested (art. 148 in the current form, art. 89-94 in the draft bill) such as: if there is no information about the suspect’s identity or residence; if the suspect is a repeated offender; if there is any danger the suspect may alter evidence or influence witnesses; if the alleged crime is sanctioned with over two years in prison and presents public threat.
Other suggestions regard raids, temporary release, etc.
4. The Law on political parties
On June 27th, 2002, the Chamber of Deputies passed a modified version of draft bill no. 54/2002 on the modification of Law on political parties. After the Senate passed the same text, the Romanian Parliament submitted for promulgation a series of regulations meant to enforce severe restrictions on the freedom of association. Under the adopted law, a party could be created only on condition that it had 50 000 founding members living in at least 21 counties, with at least 1000 person in each county. The already established parties which did not have the respective number of members were to be dissolved.
The new provisions infringe upon one of the basic principles of a democratic society, guaranteed by the Romanian Constitution itself. They come in sharp contrast with the way advanced democracies regulate the freedom of association, many of them making it possible for just one, two or three persons to establish a political party.
Taking into account the excessive and unjustified character of the adopted provisions, on October 24th, 2002, four organisations (Liga Pro Europa, the Open Society Foundation, APADOR-CH and Pro Democratia Association) published a “Protest against the violation of political freedoms”, widely publicized by the media. The four organisations accused the parliamentary parties of working together in order to block the political process in Romania, failing to make distinctions specific to a democratic society and infringing on fundamental rights and freedoms. The protesters asked the Romanian President not to promulgate the law, and the Parliament to debate it again and harmonize it with the Constitution and with international norms.
In November 2002, the Romanian President refused to promulgate the Law on political parties and remanded it to the Parliament. Taking into account the situation, the Government operated a few minor changes in the text, reducing the required number of party members to 25 000, from at least 18 counties.
5. Access to public information (the application of Law no. 544/2001)
Law no. 544 on free access to public information became effective at the end of December 2001, and its application norms on March 8th, 2002. APADOR-CH considers the law to be an important instrument in the fight against corruption and to ensure the transparency of activities performed by public institutions and authorities. As a consequence, the association was preoccupied during the year 2002 by both theoretical aspects (identifying deficiencies in Law 544 and its application norms, but also obstacles raised by other laws in force - Law on classified information no. 182/2002, Law on national archives no. 16/1996, Law on national security no. 51/1991, Law on The Romanian Intelligence Service no. 14/1992. Law on Foreign Intelligence Service no.7/1997 etc., including the Parliament’s Status – to block free access to public information)[3] as well as practical aspects.
It must be mentioned that under Law 544, authorities, public institutions and autonomous administration companies who use public funds are under obligation to offer, ex officio, a series of information (Status, funding sources, budget, balance sheets, structure, etc.). Besides, the respective authorities and institutions must answer questions regarding other aspects of their activity.
Members of the association have sent, in their own name, information requests to several authorities/institutions/administration companies (the National Health Insurance Agency, CEC, the Presidency, TAROM Air Company, the Interior Ministry, the Romanian Intelligence Service, RADET, etc.). Five of the applications were either rejected or ignored. As a consequence, the petitioners filed suit at the Bucureşti Administrative Tribunal. Until the end of 2002, only one suit had been finalised (M.S. v. CNAS), with the plaintiff winning in first instance but losing before the Court of Appeal.
Also in their own name, member of the association visited several ministry headquarters, to check whether and how the office/department of public information is functioning. Until September 2002, only a few ministries had appointed a person to handle the matter, but none of them had prepared the set of information to be offered ex officio, as provided by Law 544.
At the same time, APADOR-CH –as a legal person – submitted 4 petitions to the Romanian Intelligence Service (SRI), the General Prosecutor’s Office General by the Supreme Court of Justice, the Finance Ministry and the Interior Ministry. The first three received negative answers, for both the initial request and the subsequent administrative complaint. As a consequence, the association filed suits at the Bucureşti Administrative Tribunal. Until the end of 2002, the Court had settled the cases against the Ministry of Finance and the Prosecutor General in favour of the plaintiff. Most probably, appeals will follow at the Bucureşti Court of Appeal. APADOR-CH lost, in first instance, the case against the SRI.
The experiments made by the members of the association and by the association as legal person were used to draw a Practical Guide for the application of Law 544.[4] The Guide clarifies the procedures that one has to follow in order to obtain public information, lists the main obstacles and suggests possible solutions.
On November 6th, the association organized a seminar during which members of the press and of non-governmental organisations debated the topic of free access to public information. APADOR-CH also took part in meetings and round tables – two of which brought together civil servants of the local public administration – aimed at explaining the concrete modalities of application for Law no. 544.
II. POLICE – GENERAL ASPECTS AND INDIVIDUAL CASES
The year 2002 brought about the radical change so much awaited for by non-governmental organisations at home and abroad, and repeatedly demanded by the Council of Europe and the European Union – the demilitarisation of the police. Law no. 218/ April 19th, 2002 on the organisation and functioning of Romanian Police and Law no. 360/June 4th, 2002 on the Status of the Police Officer include clear provisions in this respect: police is a “specialized public service” and “the police officer is a civil servant with special status”.
Unfortunately, the debates of the Parliament Committees of the two Chambers (the Defence and Juridical Committees) took place, as usually, behind closed doors, the only accepted presence being that of the initiator of the bill, the Interior Ministry. APADOR-CH, who had constantly criticized the previous Police Law (no. 26/1994) and had made written comments on the drafts ever since 2001, was never invited to present its point of view, while its suggestion on some key aspects (“taking a person to the police station”, the use of firearms, etc.) were completely ignored.
The main worries of the association regarding the two laws are the following:
1. Law no. 218/2002
a. Police is demilitarised, but not decentralized. Even if County Police Inspectorates became legal persons, the General Police Inspectorate (IGP) still detains overall control;
b. The National Body of Police Officers - a newly created institution – is a sort of mandatory union controlled by the IGP administration, contradicting the idea of union as a form of voluntary association meant to defend the rights of policemen;
c. The Territorial Authority for Law Enforcement, also newly created, is supposed to exercise civilian control over the police, but is inefficient because it only has an advisory role;
d. The problem of “taking a person to the police station” for up to 24 hours, separate from, and in addition to the measure of “retaining for 24 hours” (explicitly regulated by the Constitution and the criminal law) remained unchanged, except for the mention that that is an administrative measure, and therefore does not imply deprivation of freedom. It must be said that, after a group of MPs took this aspect to the attention of the Constitutional Court, the latter decided that art. 31, letter b is constitutional. [5] APADOR-CH still maintains that the measure of “taking a person to the police station” is a form of deprivation of freedom. Even more serious is the lack of clear regulation regarding the procedures, so that, in the end, the person “taken” to the police is deprived of every right;
e. The crucial problem of the use of firearms was “solved” by a reference to Law no. 17/1996 on the status of weapons and ammunition, which provides ten situations (against only five in the old Police Law) when police officers may use this extreme measure. If art. 34, par. 4 (use of means of restraint, other than firearms) brings forth the notion of proportionality during police action, art. 34 on the use of weapons and firearms does not make any such mention. It may easily be deduced that the “proportionality” principle does not apply to the use of firearms. Moreover, par. 3 stipulated that “the use of the firearms supply in order to fulfil police duties, under the conditions and obligations provided by the law, is exempt from criminal responsibility”. As a consequence, police officers will keep opening fire on suspects of petty thefts without any fear of ever being made responsible;
f. The problem of controls and raids retained the same definition: the respective police actions involving a big number of police officers and/or gendarmes and, often, the use of force, including firearms, may take place “whenever there is solid evidence of a criminal offence or of concealing a perpetrator…” (art. 31, letter g). APADOR-CH constantly reminded that the law should include reference to the procedures (raids should be supervised by representatives of the Prosecutor’s office, warrants should be issued, locations to be raided should be clearly identified and raids should be limited to the respective locations), in the absence of which persons who fall victims to police action are not able to contest their legality.
2. Law no. 360/2002
a. Details support the idea that the National Body of Police Officers is nothing more than a “mandatory union”, contravening to the right to freedom of association.
b. Art. 46 mentions the situations when a police officer may be transferred “outside his/her area of residence” and includes under letter e) when his/her image has been affected among the local community. But par. 2 stipulates that even for this situation, “the officer has to agree to the transfer”, which is hard to imagine, because it would mean the police officer confesses to his/her mistake in the relation with the local community. APADOR-CH encountered many cases (especially in the rural area) of local communities who were highly displeased with the actions and behaviour of certain local police, yet their repeated complaints had received no answers. This had led to a state of permanent tension or even conflict between the villagers and the police. The most serious situation occurs when one or several persons complain about abuse (threats, beating, torture, etc.) by the police and the Prosecutor’s Office (Military Prosecutor, until August 24th, 2002) orders an investigation on the matter. It is easy to imagine what sort of pressure can police under investigation put on the plaintiff or his/her witnesses. The association considers that, in order to prevent police officers from obstructing investigations, they should be removed from the area, whether they agree or not, or should at least be placed in a position that prevents them from intimidating persons by legal means, such as “taking them to the station” or drawing up penalty reports.
c. Art. 56 (“the police officer who, by exercising his duties within the limits of the law, has inflicted pain or injuries upon a person, or has caused damage to that person’s property, is exempt of any responsibility”) practically stipulates the impunity of police officers. In the vast majority of police abuse cases investigated by APADOR-CH over the last 9 years, military prosecutors decided non-indictment under the pretext that officers were in legal exercise of their duties, even in cases when death or serious injuries resulted from unjustified use of firearms.
d. Art. 64 establishes the bodies having the competence to indict police officers after demilitarization. It is not clear yet what will come of the complaints against officers who were placed under investigation by military prosecutors before August 24th, 2002, especially when in December, in a surprising decision, the Supreme Court of Justice remitted a case of abuse by the police, which had reached the appeal phase, … back to the civil criminal investigation bodies, by virtue of the demilitarisation of the police forces!
Until the end of 2002, the only concrete changes resulting from the demilitarization of the police were:
a) military ranks were turned into professional titles (for example: sergeant major – agent of police, captain – chief inspector, colonel – chief commissioner; general – chief constable, etc.)
b) investigations in cases of abuse by the police were taken over by civil prosecutors.
Aside from these matters, it must be mentioned that in June 2002, for the first time in almost 10 years since APADOR-CH has launched its programme for monitoring police legislation and individual cases of police abuse, representatives of the association were invited to a hearing of the Senate’s Human Rights Committee. The topic consisted of the presentation of abuse cases investigated by the association, the reports of which are accessible on its internet site.
A week later, the same Committee heard the representatives of the Interior Ministry on the same cases.
Unfortunately, after the two hearings, all the Committee ever did was to give a short press statement suggesting that some of the cases indicated by APADOR-CH were true, some were not. Whether the Committee has drawn any report of the hearings or not, nothing of the kind has been published.
3. Concrete cases investigated by APADOR-CH
1. The case of Mugur Ciuvică and Ovidiu Iane
On January 18th 2002, around 18.30, Mugur Ciuvică, alleged author of a report published on the Internet under the name of Armageddon II was picked up from the street by three police officers (only one of them introduced himself) and taken, without a warrant, to the headquarters of the General Prosecutor. There, he was interrogated by prosecutors till after midnight. He was released and told not to leave town. During his deprivation of freedom, the investigation bodies searched the homes of Ciuvică’s girlfriend and mother.
Ovidiu Iane had been already retained under the accusation of placing the “Armageddon II” report on the internet, but also for some irregularities at his small computer business. A 5 day warrant was issued on his name (only partially enforced).
Mugur Ciuvică and Ovidiu Iane were accused under art. 168/1 of the Criminal Code (“…circulation… of false news, data or information …, if the action is of such nature as to endanger the state’s security or Romania’s international relations…”) providing terms in prison from one to 5 years. It must be added that the incriminated anonymous report was exclusively dedicated to the relation between the Prime Minister and certain dubious characters, and to his considerable wealth, all information having been already published by the media over the years.
On January 20th, non-governmental organisations, including APADOR-CH, sustained a press conference during which the Police and Prosecutor’s Office were harshly criticised.
Subsequently, APADOR-CH and the Centre for Independent Journalism issued the following statement:
“APADOR-CH and the Centre for Independent Journalism strongly protest against the measures taken by public authorities (Police, Prosecutor’s Office) in the case of the alleged author of the “Armageddon II” report and of the person who published the document in electronic format.
1. The report includes a series of information regarding the wealth of the Prime Minister and his connections to certain business circles in Romania. These are information of public interest because they refer to the chief of the executive and to other politicians. Politicians – as opposed to the average people – must learn to live with harsher criticism, even if it is upsetting, offensive or shocking. This was the judgement of the European Court for Human Rights in several cases, including Dalban vs. Romania.
2. It is irrelevant who wrote the report. Its communication or circulation are not criminal offences. Article 168/1 of the Criminal Code require that two conditions are fulfilled simultaneously: a) the news, data or information have to be false; b) their circulation has to be of a nature to endanger the national security or Romania’s international relations. The first condition has not been fulfilled because the information has not been proven to be false, and the mere statement of the Prosecution on this aspect is irrelevant. Neither has the second condition, because it is unacceptable that the person of the Prime Minister should be identified with the Romanian State, and criticism against the head of the Government should be interpreted as threats to national security or international relations. Identifying persons, no matter their position, with state institutions is a characteristic of dictatorships, as a means of protection against political criticism.
3. The “Armageddon II” report includes opinions as well as facts. Opinions, and especially political ones, must circulate freely and cannot be qualified as true or false. As for facts, their falseness has to be proved by the person they refer to, or by judicial authorities. Besides, the European Court has stated that freedom of expression implies a certain degree of provocation and exaggeration (see the jurisprudence of the European Court for Human Rights, especially the decision in the case of Dalban vs. Romania). If information is circulated only when proven to be true, and only after the authorities are directly notified on the matter, the freedom of expression becomes meaningless.
4. The undersigned organisations consider that the decision to open a criminal investigation and the way in which the Prosecution and Police acted both in the case of Mugur Ciuvică, the alleged author of the report (repeated house searches, illegal deprivation of freedom, pressures on the families, the order not to leave town, etc.) and of Ovidiu Iane (detention), represent serious abuse and gross violation of human rights.
APADOR-CH and the Centre for independent Journalism require the Police and prosecutor’s Office to cease all investigations regarding the author(s) of the Armageddon II report and to release Ovidiu Iane immediately. Also, the two associations ask that those responsible for this abuse to be severely sanctioned. Otherwise, an extremely dangerous precedent is set, threatening the very substance of the freedom of expression and proving the lack of political will to observe the rules of democracy.”
Ovidiu Iane was released before the end of the first five day warrant. Several months later, the criminal actions for “circulation of false information” against both Ciuvică and Iane were dropped.
Mugur Ciuvică, his girlfriend and mother submitted a complaint by the General Prosecutor’s Office against the prosecutors who led the investigation and against the police officers who took part in the actions of January 18th. Until the end of 2002, they received no answer about the results of the investigation, if any.
2. Deaths during arrest or following actions of the police
2.1. The case of Mihai Iorga
Mihai Iorga (32) had been fined in 2002 for 800 000 lei, for disturbing public order. As the quantum of the fine was exceedingly high for the modest income of the family, Mihai Iorga was unable to pay and the court decided that he should perform 62 hours of community service. According to his brother, Nicolae Iorga, and to a neighbour, Mihai had completed almost half of his service, but for unclear reasons, the Mayor's Office asked for the cessation of community service.
The Ploieşti Court of First Instance changed the community service into 40 days of prison.
On March 12th, 2002, police found Mihai at the house of a friend and took him into custody in Ploieşti, from where he should have been transferred, the following day, to a penitentiary. From that moment on, his family lost any contact with him. After several days of searches, the family learned – from villagers, not from representatives of the police – that Mihai had died on March 21st at the Floreasca Hospital in Bucureşti, where he had been taken to from custody.
On the morning of March 13th, Mihai Iorga was taken to the County Hospital Ploieşti and then remanded to custody. On March 16th, he was again taken to the County Hospital and then immediately transferred to the Emergency Hospital Floreasca in Bucureşti, where he arrived in a state of deep coma. He died four days later. The autopsy, performed on March 25th, established that he had a violent death. The forensic team found a “severe head trauma with excoriations” and several broken ribs. The Chief Doctor at the Forensic Institute declared that Mihai Iorga had been “beaten”.
The Iorga family and the neighbours who took part in the funerals declared that the deceased was unrecognizable because of the bruises on his face and his body.
Several days after Mihai Iorga’s death, brothers Viorel and Florin Davidoiu, both detainees at the police station in Ploieşti, were transferred, the former at the Mărgineni Penitentiary, the latter at the Ploieşti Penitentiary. According to what several inmates wrote to the Iorga family, Mihai Iorga was first taken to cell no. 3, where Viorel Davidoiu beat Mihai until he passed out. In the morning of March 13, Mihai was taken to the County Hospital in Ploieşti where, inmates say, he received no treatment and was brought back to his cell. This time he was put in cell 36, where Florin Davidoiu allegedly beat him again (some of the inmates say the victim was hit with a hammer) until Iorga slipped into coma. One of the three letters received says that, irritated by the second “commotion”, the police officers took Iorga out of his cell and beat him, too. The letters note the fact that the police officers were aware of what was happening to Iorga and did nothing to protect him, as provided by the law (art. 29 of Police Law 26/1994, still in force at the moment). Moreover, they are suspected of encouraging the attacks on Iorga, and even considered as co-perpetrators of the offence of homicide (art. 174 of the Criminal Code).
The military prosecutor in Ploieşti finalized – in only two weeks time – the investigation regarding the responsibility of the police officers and police doctor deciding for non-indictment.
APADOR-CH concludes:
- The decision not to indict the officers and doctor from the Ploieşti police station ignored the obligation provided by art. 29 of Law no. 26/1994. The violation of art. 29 (responsibility of police officers for the physical and mental integrity of persons in custody) is sanctioned by the Criminal Code by a term in prison from 2 to 10 years if the deed “had very serious consequences” (art. 249, “negligence of service duty”, par. 2);
- The decision of the Ploieşti Military Prosecutor’s Office is not well-grounded, since eye witnesses (inmates from cells 3 and 36, and of neighbouring cells at the police station) have not been heard, or if they have, it is obvious that their statements have not been taken in to account;
- Neither Mihai Iorga nor any member of his family had met the Davidoiu brothers previously or had had any conflict with them – directly or indirectly. It is therefore even harder to explain the violent reaction of the Davidoiu brothers towards Mihai Iorga, who was just a petty offender. The brother of the deceased, Nicolae Iorga, received information according to which the police officers had asked Mihai to admit responsability for a number of UPs (crimes by unknown perpetrators), and the Davidoiu brothers were trying to “bully” him into confessing to those crimes.
- The letters received by the Iorgas from inmates at the Ploieşti Penitentiary show that police officers at the station were aware of what was happening to Mihai Iorga, or even started and encouraged themselves the beating which resulted in his death.
- Even if the Davidoiu brothers are found guilty for Mihai Iorga’s death, it doesn’t absolve the police officers from the responsibility of non-intervening (or co-perpetrating the crime).
Until the closing of the annual report, the association received no answer from the Military Prosecutor’s Office regarding Iorga’s case. APADOR-CH considers that its own report on the death of Mihai Iorga is in itself sufficient reason to reopen investigations. The association knows that the family of the deceased has filed a complaint (and a second complaint) regarding the cause of death of Mihai Iorga.
2.2. The case of Andrei Sauciuc (63)
He died on April 22nd, 2002, in police custody at the County Inspectorate of Vaslui. Representatives of APADOR-CH went to the village of Zorleni (about 30 km from Vaslui) and talked to his wife and to a nephew. It turned out that Andrei Sauciuc had a old heart condition and he was on heavy daily medication. After his arrest, his wife made two visits (the third one never took place because Sauciuc had died two days before). On her first visit, she brought him his medication (aminophylline, glyceryl trinitrate). On the second visit, she was told to stop bringing the medicine, because the police was going to ensure medical care for the detainee. The wife and the nephew are convinced that the police did not provide the medication and that led to Sauciuc’s death.
APADOR-CH considers that the aspect of providing – or not providing – a heart patient his medication during his arrest at the County Inspectorate of Vaslui must be investigated. Police has this obligation by the law and is responsible for the physical and mental integrity of the persons in custody.
The association received a note from the Prosecutor’s Office in Vaslui, stating that Andrei Sauciuc died of natural causes; his death raised no suspicion and therefore required no investigation.
2.3. The case of Nelu Bălăşoiu
Investigations led by APADOR-CH in the case of Nelu Bălăşoiu comprised three stages: at the Jilava Penitentiary Hospital (June 14th, 2002), at Tg. Cărbuneşti (July 3rd, 2002) and at the Tg. Jiu Penitentiary (July 4th, 2002).
On April 5th, 2002, police officers in Tg. Cărbuneşti, a town about 17 km away from Tg. Jiu, found a stolen car wheel in the cart driven by Nelu Bălăşoiu (18) and two minors. The three were taken into custody.
On may 14th, Nelu Bălăşoiu was taken from custody to the Tg. Jiu Penitentiary and on June 4th he was taken to the Jilava Penitentiary hospital, with the diagnosis of “pleuresy”. He reached the hospital at 16.10. He died on June 5th, at 10.20.
Jilava Penitentiary Hospital
About 10 days after Nelu Bălăşoiu’s death, representatives of APADOR-CH went to the Jilava Hospital, where they found the medical documents of the detainee, with two exceptions: the autopsy report and the medical file which should have been drawn during custody in Cărbuneşti. The autopsy report by the forensic Institute was not finalized. The absence of the medical file from Cărbuneşti could only be explained by two suppositions. It either had not existed, which meant that no doctor ever saw Nelu Bălăşoiu during his custody in Cărbuneşti, or “had been lost” somewhere on the way from custody to Tg. Jiu Penitenciary and then to Jilava Penitentiary Hospital.
According to the documents found in Jilava, Nelu Bălăşoiu was taken, on June 3rd, to the Tg. Jiu County Hospital, where he was examined by both medics and surgeons (in both cases diagnosed “nothing clinical”) was given an X-ray, which showed a “left basal pleuresy – under observation”, and was recommended for transfer to the Jilava Penitentiary Hospital where he was admitted on the afternoon of June 4th. Doctors at Jilava noted that Nelu Bălăşoiu was in a “severely altered state due to renal failure”. The patient had legs oedema (and head oedema, too, as declared by cellmates from both the quarantine room and the dormitory, as well as by his family). Renal tests done straight away were actually shocking: creatinine – 11.9 (normal upper limit is 1.2) and urea – 146 (normal upper limit is 40) . Given the fact that Nelu Bălăşoiu was not subjected to any inhumane treatment after his arrival at the penitentiary, the representatives of APADOR-CH concludedthat both kidneys had been crushed by repeated beating while in custody at Cărbuneşti. The conclusion was confirmed by several witnesses who talked to APADOR-CH representatives, in both Cărbuneşti and Tg. Jiu.
From discussions with the director of the penitentiary, with the principal doctor and with cellmates from the quarantine room and then from room 12, it resulted that the young man came to the penitentiary in a deep state of physical and mental shock. His reluctance to speak about what had happened to him in custody and to ask to be seen by a doctor although he felt worse and worse (his abdomen was swollen, then the legs and the head, he vomited and urinated blood, he had pains in the chest and lower back) can be doubtlessly explained by the terror inflicted by police officers in Cărbuneşti and by their threats that he would be brought back into custody if he told anyone about the beatings.
At the insistence of cellmates from room 12, on May 28th Nelu Bălăşoiu was taken to the doctor. The diagnosis: biliary colic. On May 29th, he was taken again to the doctor who noted on examination that “there was sensitivity in the right hypocondrium and the epigastric region”. The excessive swelling of the abdomen, the oedema on the head and legs, the blood he vomited and urinated raised the doctor no suspicion as to the state of his kidneys. Neither did doctors at the County Hospital in Tg. Jiu, where Nelu Bălăşoiu was taken in the afternoon of June 3rd, consider an urologic examination. It was for a “pleuresy – under observation” that the medic at the County Hospital recommended the transfer to Jilava. The same evening, the penitentiary asked permission for the transfer, which was granted the following day, around 11.00. The ambulance took five hours to cover the distance, and Nelu Bălăşoiu arrived at Jilava in a severe state. He died 16 hours later.
Conclusions:
- In the opinion of the association, the treatment used against Nelu Bălăşoiu and the two minors (Daniel Dumintru and Bobi Căldăraru) was torture that resulted in the death of one of the victims. According to art. 267/1, par. 3 of the Criminal code, such a crime is punished by “life in prison or 15-25 years in prison” in the Bălăşoiu case, and “prison 2-7 years” in the case of the two children (par. 1). At the same time, the crimes represent a serious violation of Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- APADOR-CH considers that the lack of reaction of the chief of police in Cărbuneşti to such a brutal investigation which went on for six weeks inside his station (April 5th – May 14th) means complicity to torture and is sanctioned by the same punishment;
- The absence of medical documents from Nelu Bălăşoiu’s record indicates that the police totally ignored their obligation to protect the physical and mental integrity of persons in their custody.
APADOR-CH asked the Military prosecutor’s Office to investigate thoroughly and impartially the tortures inflicted in Nelu Bălăşoiu (deceased) and the two minors during custody in Cărbuneşti and to take the legal action required by this extremely serious case.
2.4. The case of Ion Baieră (32)
The village of Buda, in the Oşeşti commune, is situated at around 40 km from Vaslui. The house of the Ivanciu family, where Ion Baieră was shot, is placed at the end of the village. According to the declarations of Constantin Ivanciu (father) and Mihai Ivanciu (son) – and supported by relatives who took part in the discussion with representatives of APADOR-CH – in the morning of October 11th, 2002, around 8.30-9.00, Ion Baieră busted in the courtyard of the Ivancius, telling them he was followed by the police. Baieră hid in a very small room (about 6 sqm), a sort of annex to the house, where Mihai Ivanciu’s two young children - aged 13 months, respectively 3 years – were also staying. A few minutes later, police agents Mihai Hristea (Deleşti Commune) and Vasile Lica (Oşeşti Commune) entered the yard, went to the annex building, asked Baieră his name (he offered a false identity) and invited him to the police station. Ion Baieră refused to be handcuffed and the agents sprayed stun gas (or tear gas) over him, in the tiny room where the two children were. The children were immediately taken out by their parents, but the effects of the shock were visible even two weeks after the incident. Then, under the eyes of Constantin, Mihai, Mihai’s wife and the children, the following scene took place: the police agents came out of the tiny room and stood at about five meters from the door. Each time Ion Baieră tried to get out of the room which was full of gas, they would fire their guns at him (according to the prosecutor in Vaslui, there were 8 gunshots, six of which were “warning shots”. Witnesses say there was no “warning shot”). Finally the officers shot Baieră in the abdomen (in his stomach, Constantin Ivanciu said). Baieră fell down in the doorway, was carried by the two agents for about a hundred meters to the car (personal property of one of the agents) and was taken to the hospital. On their way, the agents met the ambulance and placed Baieră in the ambulance car. At the hospital, doctors could only note the death of Ion Baieră.
APADOR-CH asked the Prosecutor’s Office by the Vaslui Court of First Instance the following:
- To find out exactly whether Ion Baieră was shot both in the stomach and in the head. If so, to specify the moment when he was shot in the head;
- To establish if there is any justification for the use of tear gas in a confined space of 6sqm where two small children were staying;
- To analyse whether the confiscation by the police of several tools which are absolutely necessary for farm work (axe, rake, fork, etc.) is in anyway connected (and how) to Ion Baieră’s shooting.
The association considers that the eight gunshots (none of them a „warning shot”, shot vertically, in the air, as eyewitnesses declared) endangered the lives of the three adults (the grandfather, the father and the mother) and of the two small children, all of which had been standing in a 10 sqm area (the frontyard) during the shooting.
3. Other cases
3.1. The case of Ovidiu Gîngă (33)
He died on July 19th, 2002 following a traumatic head injury. A day or two before, he had been stopped by two public guards, beaten and taken by force to the police station, where he had been fined for causing public disorder. Apparently, the police sent Ovidiu Gîngă home instead of taking him to hospital. Shortly afterwards, he was taken to hospital, but his name cannot be found in the records of admissions, the only possible conclusion being that the man was already dead, and he was sent to the morgue. It is not known who took him to the hospital. At the headquarters of the Public Guards Corps in Vaslui, the representatives of APADOR-CH were informed that no action had been taken against the two guards involved in the incident, because it was considered they acted according to the law. On the other hand, the investigation has not been finalised, or at least that is what the prosecutor on duty at the Office by the Vaslui District Tribunal told APADOR-CH. The fact that the Prosecutor’s Office has not issued a decision yet may suggest there are some doubts about the cause of death.
Because neither the mother, nor the partner (unidentified) of the deceased have filed any complaint, APADOR-CH asked the Prosecutor to consider the report of the association as official notification in the case of Ovidiu Gîngă.
3.2. The case of Severius Tănase (municipality of Săcele, Braşov County)
Severius Tănase (34) had received several contravention sanctions from the police in Săcele, usually for “disturbing public order”. On October 9th, 1999, around 10.00-11.00, a group of officers from the Braşov Police Inspectorate (the FIR – Rapid intervention Brigade) faces covered and armed with anti-terrorist equipment, forced their way into Severius Tănase’s apartment while he was away. The police officers destroyed his doors – including the entrance to the apartment – broke windows, upset furniture and documents. It is unclear what was the purpose of the raid (it seems that the County inspectorate followed a tip from an anonymous letter, informing that a suspect wanted by the police was hiding at Severius Tănase’s place) or whether any object/document was confiscated. It is however clear that no criminal was found hiding in the apartment.
According to Severius Tănase, the Police County Inspectorate Braşov publicly expressed its regrets for the way the raid had been conducted and promised to pay for the damage, which it hadn’t until May 2002. On November 12th, 1999, Severius Tănase filed a complaint at the Prosecutor’s Office by the Braşov Court of Appeal, which answered him in address no. 831/VIII/1999 of November 15th, 1999 that “the house search was authorized by a prosecutor according to art. 101 of the Criminal Procedure Code…” (art. 101, par. 1: The criminal investigation body may perform domiciliary searches with the prosecutor’s warrant”)
Severius Tănase also filed a complaint at the Military Prosecutor’s Office in Braşov against officers at the Police County Inspectorate Braşov, “for the offence of destruction of property and abuse during service duty against a person’s interests”. On July 31st, 2000, the Prosecutor’s Office decided non-indictment, “because the investigation of the case showed that it was a “situation of emergency” (our highlight).
Severius Tănase contested the decision of the Prosecutor’s Office, lodging a complaint with the Military Section by the General Prosecutor’s Office, and filed a second contestation in March 2002, but had received no answer by the time of his discussion with APADOR-CH representatives.
The second serious incident in which Severius Tănase was victim of police officers – from Săcele, this time – took place on March 12th 2002 and was highly publicized by the local and national media. That day, around noon, Tănase was in the centre of the town (an area called “Cernatu”), very close to the police station. When he crossed the main street, two police officers in a car heading for the station insulted him, Tănase said. The police officers claim that, on the contrary, they were insulted by Tănase. Even so, there is no excuse for the reaction of the police officers who started to beat him, dragged him to the police station and punched and kicked the upper part of his body and his head. In between two rounds of beating, Severius Tănase managed to reach the commander of the police station, but the latter encouraged his staff to take him to “the basement” and fine him. After being beaten again, (not in a “ basement”, but in an office), Severius Tănase, in a state of shock, was made to sign a contravention report (report no. 463388/12.03.2002 for a 800 000 lei fine). Petre Sandu, who was at the police station with other business, signed as a witness. Besides him, there are other witnesses who may testify on how Severius Tănase was treated. Moreover, photos published in the press show a huge hematoma on the left eye, which was almost closed.
After making him wash the blood from his face, the police officers released Severius Tănase, with the “advice” not to mention anything about what had happened.
Severius Tănase was hospitalized in the surgery department from March 12th 2002 . The release form, dated March 14th, 2002 (observation file no. 4599) includes the diagnosis: “thoracoabdominal contusion by physical abuse. Left periorbital haematoma”. On March 20th, Severius Tănase underwent an ophtalmology exam which concluded: “first to second degree ocular contusion, posttraumatic macular oedema... subconjunctival haemorrhage”. Based on these findings, and after having performed a retinoscopy, the County Forensic Department increased the number of days requiring medical care to 30-35 in total (extension no. 805/E of March 22nd, 2002).
Of course, the commander of the Săcele Police denied that his inferiors had beaten Tănase.
Severius Tănase lodged a complaint against the two non-commissioned officers with the Military Prosecutor’s Office in Braşov (postal confirmation date is April 19th, 2002).
Conclusions:
- APADOR-CH considers that the officers in Săcele are guilty of injuries against the health or physical integrity (art. 181 of the Criminal Code) illegal deprivation of freedom and abuse during investigation (art. 266 of the Criminal code) and ill treatment (art. 267 of the Criminal Code), while the commander is guilty of instigation and complicity;
- All the actions of the police in the first incident (the domiciliary search in the year 1999) as well as the second (the deprivation of freedom, injuries, ill treatment, suffered in the year 2002) are infringements of the European Convention of Human Rights;
- The association expects the Military Prosecutors Section to invalidate the decision of non-indictment in the case of the 1999 incident, given the fact that there was no “emergency situation” to justify the decision.
APADOR-CH asked the Military Prosecutor’s Office to conduct thorough and impartial investigations regarding the abuse committed by the police officers in Săcele against Severius Tănase. The association required that the investigation was conducted directly by the prosecutor, without the involvement of the Police County Inspectorate in Braşov or, so much the less, of police in Săcele.
According to the statement of the press officer at the Police County Inspectorate in Braşov (as quoted by newspapers like “Nationalul” in its March 14th, 2002 edition), the Inspectorate was planning to start an investigation in order to establish the truth. APADOR-CH asked the General Police Inspectorate to inform it on the results of the investigation.
III. ASPECTS OF THE TREATMENT OF DETAINEES FROM PENITENTIARIES
The association’s program for monitoring the treatment of detainees in penitentiaries went on in normal conditions, due among others, as in previous years, to the good co-operation with the General Directorate of Penitentiaries (DGP). The DGP and the governors of the monitored penitentiaries have granted the representatives of APADOR-CH access to information and places of interest. Unlike in previous years, however, the DGP has practically ceased to answer the reports that the association handed out after each visit. Without being, of course, an obligation from the part of the DGP, the respective answers provided very useful feedback over the years, helping APADOR-CH and DGP to work out solutions for some of the noted deficiencies.
The Parliament has not passed, this year either, the new law on the enforcement of punishments by deprivation of freedom, or a new Status of the penitentiary staff, who are still militarized.
In July 2002, three orders of the ministry of Justice set new regulations regarding the right to visits, parcels, cigarettes and shopping, the reduction of the sentence based on the number of days worked and the semi-open detention regime.
During 2002, representatives of APADOR-CH visited 12 penitentiaries: Galaţi (February 19th), Tulcea (February 21st), Giurgiu (March 14th), Mărgineni (March 25th), Bistriţa (May 23rd), Dej (penitentiary hospital, May 24th), Ploieşti (June 19th), Târgu Jiu (July 4th), Codlea (October 1st), Vaslui (October 29th), Bacău (October 31st) şi Bucureşti - Rahova (November 12th).
The main aspects resulted from the visits to penitentiaries
1. Overcrowding
The most serious problem in penitentiaries remained the same as in previous years: overcrowding.
Some of the penitentiaries are confronted with very special situations, such as the one in Bacău. Here, on the day of the visit, the “occupation ratio” exceeded 330% (the complex housed 1541 detainees in 1117 beds, while the normal capacity was of 468 places). Even if they do not match this record, most of the other penitentiaries are also unacceptably overcrowded, with a 200% “occupation ratio”. Under this category may be mentioned penitentiaries like Tg. Jiu (normal capacity of 500 places, 892 beds, 1251 detainees), Ploieşti (574 / 760 / 1136), Codlea (640 / 960 / 1291), Vaslui (538 / 849 / 1005) etc. A few concrete examples of overcrowded rooms were the ones for underage and young detainees and for repeated offenders in Ploieşti, with an average of 2-3 persons in a bed. In Bacău, room 13 for repeated offenders had 30 beds and 53 persons, room 20 for pretrial detention had 15 beds and 30 people, while room 36 had 20 beds and 37 minors. In summertime, especially, the air is unbreathable, which, in the opinion of the association may be considered as inhumane treatment. The few examples of places where overcrowding is not a problem (or at least not such a critical problem) are penitentiaries in Giurgiu (1000 / 1000 / 1105), Botoşani (837 / 948 / 1033), Tulcea (for several months in a row there were only exceptional cases when detainees had to sleep two in a bed) and Bucureşti - Rahova, occupied under 100%.
Within the existing funding, the DGP generally did everything possible to ameliorate the situation. In Galaţi, a new barracks was finished (which alleviated but did not solve the problem of overcrowding), at Mărgineni – as well as in other penitentiaries – the housing blocks underwent repairs and modernisation works, etc. In Bistriţa, however, the penitentiary was forced to stop the construction of three new barracks (only part of the first was built). At the Tulcea Penitentiary, a new block was under construction for the hospital ward and doctor’s office, the visit section, the chapel and the housing area for women and minors; only 6 billion lei could be allocated in 2002 for the construction, that is one fifth of the needed funds. A good thing, however, is that the penitentiary managed to make a very useful investment - an installation of drinking water at the section in Chilia Veche.
APADOR-CH still believes that overcrowding is a consequence of the current criminal policy and of the high number of sanctions by deprivation of freedom. The Committee for the Prevention of Torture (CPT) shares the same view, repeatedly pointing out, in its reports on Romania, to the need for “a reform of the criminal Code and Criminal Procedure Code, in order to reduce the duration of pretrial detention and of the judicial investigation, to create alternatives for the deprivation of freedom and to revisit legislation on the enforcement of punishments”. APADOR-CH reminds that the Romanian criminal law provides a higher number of situations allowing for pretrial detention than does the European Convention for Human Rights, and that the measure may be applied for as much as half the maximum penalty for the respective offence.
Among the many consequences of overcrowding, there is also the impossibility to separate detainees according to the criteria provided by both domestic legislation and international treaties ratified by Romania (at Ploieşti, for instance, people in pretrial detention were placed in the same cells with convicted criminals). It must also be stressed that overcrowding upsets the balance between the number of detainees and that of the staff. While the European standards have set the acceptable ratio at 1 staff member per 2 detainees, the average ratio in Romanian penitentiaries is of 1 staff member per 8 or 10 detainees, reaching, in the case of the Ploieşti Penitentiary, 1/15 or even more.
Insufficient medical staff is, like overcrowding, a very serious problem, becoming more like a chronic condition of the whole penitentiary system. However, the existing staff is generally preoccupied to offer, under the given conditions, acceptable care to the detainees. During the year 2002, doctors in all the penitentiaries continued to see staff members as well. In Tg. Jiu, for example, it has been noted that the two doctors (who should devote their entire time to the 1300 detainees) spent one, three or even five hours per day with prison staff (around 240 people, plus their families) and staff of the local Court and Prosecutor’s Office (around 250 people). In Vaslui, the doctors attend to the staff daily between 7.00-9.00 and 14.00-15.00. At the Bacău penitentiary, the only general practitioner sees exclusively staff members and in Ploieşti the doctors give two hours per day to the staff. APADOR-CH stresses again that such a practice is bound to alter the quality of the medical care for detainees. Representatives of the association noted this year, too, that there are frequent cases when a doctor has to give 70-80 or even more consultations and treatments per day, during his/her seven hour program.
The most severe problems due to the lack of medical staff were noted at the penitentiaries in Tulcea (only one of the 3 positions of doctor had been filled) and Giurgiu, where out of the 7 positions (6 general practitioners and one dentist) only 2 were filled.
There are still penitentiaries where dentistry should be given greater attention. In Ploieşti, for example, although the management of the penitentiary fully equipped a dentist cabinet and hired a dentist, the detainees could not be treated because of the lack of the materials which would cost around 100 million lei. The penitentiaries in Giurgiu and Galaţi had no dentist. In Giurgiu, the position had been blocked since the autumn of 2001, and no hiring possible, although there were three candidates, while in Galaţi a dentist worked voluntarily and expected to be hired “in principle”. In Bacău, a dental technique lab had to be put in function (the space existed, but the position – although mentioned in the organisational statute - was blocked), while in Vaslui a second dental chair was needed.
All the penitentiaries that APADOR-CH visited during 2002 maintained the habit of handcuffing detainees during hospitalization in civil clinics. The representatives of the association have repeatedly pointed out that both the European Committee for the Prevention of Torture and the UN special rapporteur against torture criticized the practice. In the Romanian penitentiary system, such a habit is even more senseless, since any detainee admitted into a civil hospital is permanently guarded by two prison staff . The association asks the DGP to give up this rule, which has lately been met with reserves even by medical staff and guards in penitentiaries.
The free distribution of condoms in penitentiaries remains a desirable measure, but also one with unclear perspectives. Although reticence among the staff and the management has persisted only to a very small degree, the measure is not applied for lack of money. The representatives of the association have argued in favour of such a measure, explaining that, when it comes to costs, the transmission of serious and even untreatable disease among the detainees would surely be more expensive – from a humane, material, financial point of view – than the acquisition of this elementary means of protection.
The association retained the idea of doctors in Bacău – and brought it to the attention of the DGP management – that lues diagnosis tests should be made during police custody. Such a rule would be useful because, the sooner the disease is discovered, the speedier the cure, the lower the cost and the more bearable the suffering.
In what concerns penitentiary hospitals, APADOR-CH agrees with the observations of the doctors in Dej – also brought to the attention of the DGP management – that the “military” Health Insurance Agency covering the DGP should give up the “monthly release quota”. In the case of Dej, the mandatory quota was 200, that is the full capacity of the hospital. Unless they fulfil this obligation, the hospitals do not receive funding, which places very serious pressure on the quality of medical care, since doctors are compelled to release from hospital patients who are not fully recovered.
One of the medical care units which has been facing serious problems for years is the medical section in Tulcea, which still required, at the moment of the visit, a fast boat (mainly for the Chilia Veche section) , an electroencephalograph, a defibrillator, etc.
Although the hygiene and sanitary conditions in penitentiaries are generally acceptable, there are still units where the cells are infested with roaches, mice or lice. Such is the case of penitentiaries in Vaslui, Codlea, Târgu Jiu and Bacău. In Bacău, representatives of the association found one of the hospital wards in an unacceptable state: the floor was filthy, the bed cloth was very dirty, because of the overcrowding a detainee with an amputated leg slept on the floor, on a so-called mattress which had turned into a piece of rag, while his bed sheet and pillow were simply black.
Compared to the previous years, the situation of supplies for hygiene purposes improved: detergent, soap, toilet paper, toothpaste and razorblades. The cases when detainees did not receive razors, for instance, were extremely rare (the penitentiary in Giurgiu), but no less serious, given the risks implied by several persons sharing the same razor.
Regarding the activity of medical units, APADOR-CH noted two special situations which occurred at the penitentiaries in Tg. Jiu and Codlea.
The first case was the death, on June 5th, 2002, at the Jilava penitentiary hospital in Bucureşti, of detainee Nelu Bălăşoiu (18) – for details see the section on POLICE – GENERAL ASPECTS AND INDIVIDUAL CASES. Investigating this case, the representatives of the association noted that, on May 14th, 2002, the doctors of the penitentiary admitted Nelu Bălăşoiu into the prison without the necessary medical papers from the police in Tg. Cărbuneşti (APADOR-CH had serious reasons to believe that the detainee had been severely beaten while in police custody). Secondly, it was obvious that the medical staff had treated Nelu Bălăşoiu with superficiality after he was brought to hospital in a severe state of phisical and mental trauma, which would result in his death three weeks later. The urological tests done at the Jilava Penitentiary Hospital in Bucureşti had shocking results – creatinine: 11.9 (normal upper limit is 1.2) and urea: 146 (normal upper limit is 40) – indicating that Nelu Bălăşoiu had his kidneys practically crushed. Although the detainee had very visible oedema on the legs and head, he was vomiting blood and his abdomen was excessively swollen, the doctors first diagnosed him for “biliary colic” and later for “sensitivity in the right hypocondrium and the epigastric region”. Nelu Bălăşoiu was sent to see a specialist doctor only two days before he died. APADOR-CH asked the DGP to establish the responsibilities of the medical staff at the penitentiary in the case of Nelu Bălăşoiu.
In the case of the Codlea Penitentiary, a scabies epidemics was on during August and September 2002. At the beginning of August, there were seven cases of scabies among the detainees, in an aggravated form, with superimposed infection (two of the cases required treatment at the Jilava Penitentiary Hospital in Bucureşti). Initially, the treatment was based on sulphur, then “Scabex” cream was necessary. However, the disease continued to spread and before the end of September there had been another 25 cases. APADOR-CH believes that the epidemics may be explained mainly by the poor conditions of hygiene and sanitation, for which responsibility lies with the medical staff.
3. Food
Following visits to the 12 penitentiaries, representatives of APADOR-CH were under the impression that the situation improved slightly, as compared to previous years. The management and logistic units of the penitentiaries seemed to have given more thought to the quality of food and the conditions of preparation.
The absence of meat in the food or the still significant discrepancies between the quantity of meat in the papers and that in the plates remains the main problem. In most of the cases 'meat" means by-products – mainly lard. This year, positive examples (or, at least, cases of an improved situation) were the penitentiaries at Giurgiu, Mărgineni, Botoşani, and especially the penitentiary hospital in Dej (representatives of the association mentioned in their report that “it was one of the few times they ever saw enough meat in the detainees’ food”). On the contrary, in Galaţi, the situation was rather unsatisfactory. On the day APADOR-Ch visited the unit, the documents showed that 88 kg of meat and 73 kg of by-products had been taken from the storehouse, while in the boilers there were at most 25-30 kg of meat. The case is aggravated by the fact that, at the same penitentiary, representatives of the association discovered in the year 2000 a big quantity of meat hidden in the cold storage room (the non-commissioned officer on duty had been “fired”, said the commander of the penitentiary during this year’s visit). Unsatisfactory situations were also noted at the penitentiaries in Tg. Jiu, Bacău, Bucureşti-Rahova, Ploieşti, etc.
At Dej Penitentiary Hospital, the basement stored huge quantities of onions and potatoes in an advanced state of decay (the onions were sprouting, and so were the potatoes, which had been sprinkled with limestone). In the same basement were also found 20 kilos of corn flour, 3 months past the expiry date.
4. Connection with the world
The written correspondence of the detainees is uncensored , unrestricted, and its confidentiality is guaranteed.
Although phone calls are, according to the Romanian Constitution, similar to written correspondence – and therefore should be subjected to the same regime – this was not the case for the great majority of penitentiaries, in 2002 either. As in previous years, the very position of payphones allows the guards to hear what the detainees talk. Also, the procedure to be followed by detainees and staff for each phone call is long and elaborate. Detainees have to provide information on the number they want to call, the person they want to talk to and even what they want to talk about. In case a detainee’s mail has to be surveilled, it should be done under strict conditions of legality, after a warrant has been issued and according to specific procedures, as provided by the law. Penitentiary managers should look for a way to increase the number of monthly phone calls for detainees. This could be solved by installing new phone lines, but also by improving the overall activity and showing more concern for the needs of the detainees. The latter aspect proved to be essential, since there are penitentiaries where detainees are allowed to make a phone call every week (as in Tg. Jiu, for instance), while in other they can only use the phone twice or even once a month. The number of detainees per phone line is not so different from one penitentiary to another to explain the discrepancy. It is also important that the staff does not regard the use of the phone as a reward (or a “facility”), but as a right of the detainee. If phone calls are similar to written correspondence and detainees are free to send as much mail as they want, then they should be able to make as many phone calls as they like (of course, taking into account the technical limitations). That is why, in order to eliminate restrictive and unjustified bureaucracy, the association believes the order of general director of the DGP no. 820/1998 should be modified or repealed. A special situation was encountered in Bacău, where detainees were allowed to make phone calls only from the 28th to the 31st day of each month, and only from 9 to 13 and from 15 to 18 hours, the management of the penitentiary arguing that the other days were visitation days. The representatives of the associations considered the schedule totally restrictive and unjustified, and asked the management of the penitentiary to give up the regulation, especially as it was one of the main sources of discontent among detainees.
APADOR-CH welcomes the decision of the Ministry and Justice and the DGP to increase the rights of the detainees to visitation, parcels, cigarettes and shopping. According to the new rules, persons in pretrial detention and first-time offenders are allowed 3 visits and 15 kilograms of food per month, repeated offenders – 2 visits and 10 kilograms of food, and underage detainees, those who help guarding other detainees, those selected for semi-open regime and those arrested for petty offences – 4 visits and 20 kilograms of food. Detainees are allowed to receive 1200 cigarettes per month and to spend Ľ of the national minimal wage before taxes on shopping if they receive parcels, or ˝ of the same amount if they do not. During the visits they made after the new norms were adopted, the representatives of the association noted that the regulations were known by detainees and observed by the staff.
Detainees receive visits without problems, in general. Some deficiencies still occurring in this domain are due to inappropriate physical conditions. An example in that respect is the penitentiary in Galaţi, where visitors reach the visitation area through an open-air corridor, one meter wide. Here, representatives of APADOR-CH met people who had been waiting in the enclosed space, all jammed together, for a long time. The visitation area had a room for meetings “around the table” (empty at the time) and a second room for “normal” meetings, “behind the desk”. In the latter, a space of around 16 sqm, 6 detainees and at least 12 visitors (including small children) talked at the same time, in an awful noise. All detainees and visitors were standing. On a wall, an inscription announced that “during the visits, discussions shall take place only in Romanian”, and on another wall, a second inscription made it clear that “only matters of family shall be discussed, or else the visit is terminated”. Representatives of APADOR-CH considered both restrictions completely unjustified and asked the management of the penitentiary to cancel them. A second problem was raised by cases (such as in Bacău) when the director is entitled to deny visitations by other persons than those the detainees themselves have written down in their personal file upon arrival or (as in Giurgiu) when detainees can only be visited by persons bearing the same family name as themselves (parents, spouses, children). APADOR-CH insists that detainees are to decide for themselves who should or should not visit them, much as they decide whom they write to, call, or receive parcels from. Another unsolved matter is that of clothes – uniforms – in which detainees are obliged to receive their visitors. The association has ceaselessly pleaded that inmates who have personal clothes should be allowed to wear them during visits. Meeting one’s children (often minors), parents, spouses in prison uniform is traumatising for both detainees and visitors. The fear that, if wearing civilian clothes, detainees might easily escape is contradicted by the routine at Tulcea penitentiary, where all inmates who have personal clothes are allowed to wear them both inside the unit, at work or during visits, and outside. In any case, until such a practice – which deserves all praise – is generalized throughout the whole penitentiary system, APADOR-CH insists that al least persons in pretrial detention, women and minors are allowed to wear their own clothes during visitation.
Detainees generally have the means to keep informed on the realities of the outside world. Penitentiaries have subscriptions to central and local newspaper, which as a rule are distributed in time (although the too small number of newspapers compared to the number of detainees still consists a problem). Due to insufficient funding, penitentiaries are able to provide only a small number of TV sets, so that in most of the cases, TV sets in cell rooms are provided by detainees' families.
5. Discipline and disciplinary punishments
The rules for investigating and sanctioning detainees are generally observed. The only problem still arising is that some penitentiaries (Bacău, Rahova and Codlea, for instance), discipline committees fail to hear all the detainees upon which disciplinary procedures have been launched, especially when they expect to get lighter punishments. Taking into account that disciplinary punishments, even lighter ones, have consequences upon the situation of detainees, especially when their parole is in question, APADOR-CH always maintained that all cases should be heard by the discipline committees – and inmates should be given a chance to defend themselves from whatever charges are brought by the “incident reports”. The association considers that the DGP should give more precise orders in this respect.
The questionable interpretation of the notion of “separation from the group” was still in use during 2002 (at the Ploieşti Penitentiary, for example). The notion is mentioned without any further explanation in the DGP ordinance on disciplinary procedures in case of infringement of the Internal Rule Order (ROI). The association considers – as does the management of penitentiaries such as Tg. Jiu, for example – that the natural interpretation of the notion is to separate the detainee only from the group (the cell room) where he/she has created problem, not from the whole body of detainees, by sending the person to an isolation room (“solitary confinement”). Given the fact that discipline committees meet only once a week, inmates which are “separated from the group” end by spending even 6 days in confinement before their sanction is decided. The situation is the more unacceptable as the time spent in confinement is not even deducted from the punishment set by the discipline committee. The association has asked the DGP to clarify the question of “separation from the group”, and suggested the following solutions: the detainee who is accused of infringing the ROI should be moved to another room until the discipline committee hearing in case the infringement is related to the relation with the room mates; the detainee should be sent to confinement, but the time spent inside should be deducted from the total time of punishment.
As concerns the time spent in confinement, the association agrees that this type of punishment should involve harsher detention conditions. At the same time, it considers that some of the rules regarding confinement are unnecessary and even involve health risks (physical and mental) for the detainees: mattresses and sheets are taken away from wake up till the evening call, detainees being thus forced to either stand up for 16 hours or to sit or lie down on the concrete beds, which are typical of these rooms, with a serious risk to get ill; the toilet seat is not separated from the room; detainees do not receive newspapers or books and are handcuffed during the daily walk. The association asks the DGP to take the necessary steps to amend the Order of the Ministry of Justice no. 778/2000, in order to eliminate these excessive restrictions.
Most penitentiaries visited by APADOR-CH did not use chains on detainees. Starting March 2002, when the new director was appointed, the use of chains was banished from Bucureşti-Rahova penitentiary, as well. The only two penitentiaries which have not given up this practice are the ones in Mărgineni and Giurgiu (from the discussions with detainees transferred from Bucureşti –Jilava, it came out that chains were used there, too). APADOR-CH has constantly condemned the use of chains on detainees. The measure goes against international norms ratified by the Romanian state: UN Standard Minimum Rules for the Treatment of Prisoners (Rule 33) and the European Prison Rules (Rule 39). Contrary to these norms, the Ministry of Justice issued in 2000 its Order no. 1257/C, authorising the use of chains. The association has repeatedly asked that the order should be urgently repealed.
There is a general rule, instituted by the DGP, according to which documents regarding disciplinary procedures are held separately from personal files and are not transferred along with the detainees to other penitentiaries. APADOR-CH believes this is an unusual practice. The circumstances of an infraction of discipline, whether the case was heard or not by the discipline committee, whether the detainee was given the opportunity to defend himself/herself, or to contest the sanction, are relevant matters in case when penitentiary or judicial authorities, counsellors of detainees or non-governmental organisations are interested to find out the disciplinary/judicial situation of a certain detainee. The association asks the DGP to modify Order no. 2963/1999, by requiring that all documents regarding ROI infringement sanctions are annexed to the penitentiary file of each detainee.
In general, detainees have access to their personal penitentiary file. There are still situation, however, when prison managers are reluctant to permit free access to personal files. APADOR-CH considers there are no reasons to prevent the detainees from accessing, whenever they want, their personal files. They should also have the possibility to make photocopies of any of the papers in the file (including documents issued by the judicial bodies, without having the staff worry, as was the case at the Bacău penitentiary, that the respective bodies “may not agree to such a thing”).
Although the number of inmates who have complained about the behaviour of the staff is relatively small, there are still situations suggesting that prison staff are abusive towards detainees. The representatives of the association have signalled in their reports a number of such cases, such as: violence against detainees from the intervention group of Gherla Penitentiary, who were “on a visit” at the Bistriţa penitentiary; an underage detainee hit with the club by an officer at Ploieşti Penitentiary; the case of non-commissioned officer Stoica from the Codlea Penitentiary, who was accused of abuse by several detainees; the case of detainee Florea Drăgan, abused by non-commissioned officer Paul at Bucureşti-Rahova Penitentiary. There are also indications that sometimes the staff are finding fault with troublesome inmates, especially those who expect to be treated according to the rules, and claim respect of their rights, personality and dignity. The association asked the DGP management to take the appropriate measure to discourage, and eventually eliminate any abusive behaviour.
In the matter of detainees considered to be dangerous, the association has lately encountered the salutary practice of putting them in the same rooms with inmates who do not belong to that category (such as in Galaţi, Tulcea, Bistriţa, Giurgiu, Bacău). The cited penitentiaries make no difference of treatment between the two categories, except for the fact that “dangerous” detainees are more closely watched by the staff. At Mărgineni and Tg. Jiu, the only “dangerous” detainees who are put in separate cells are those who tried to escape, are violent or instigate their mates to disobedience and revolt. In most penitentiary, the managers declared that the situation of “dangerous” detainees is analysed every month and whenever a detainee is noted to behave well, he/she is no longer considered as “dangerous”. The representatives of the association, however, met with cases when detainees are placed under the category “high degree of risk” according to very questionable criteria (for example, the note “intention to escape” placed on the file by the police, without a stamp or signature, and without any evidence for such a serious accusation, bearing such serious consequences). Moreover, there are still instances of inmates placed under the category of “dangerous” without any explanation whatsoever. The representatives of APADOR-CH have met such a case: detainee Nicolae Popescu, at the Mărgineni Penitentiary. He had been transferred, along with other 11 mates, from the Bucureşti-Rahova Penitentiary, shortly after the “Truţulescu scandal” (journalists revealed that colonel Truţulescu, detained at Rahova after the well-known case of “Affair Cigarette II”, had been allowed by members of the staff to repeatedly leave the prison and go to Bucureşti “on business”). Officers from Mărgineni are said to have told Nicolae Popescu and his mates, off the record, that they had been transferred because “they were troublesome and knew too much about the corrupt staff”, and that they are thought to be “Miron Cozma’s men”. Popescu had been transferred from Bucureşti although he had a pending trial at the Supreme Court of Justice and his family lived in the capital. He was very upset for being transferred from Bucureşti and being described as “dangerous” without ever having had an “incident report” or a complaint against his behaviour or activity from any member of the staff. As for the characterizations made by the police, the penitentiaries in Bistriţa and Tulcea have the commendable rule of not taking such characterisations into account unless they are “documented and credible”. At the Bistriţa penitentiary, however, detainees who commit self-abuse are considered as “dangerous”. Representatives of APADOR-CH insisted that such a practice is completely unjustified, especially since inmates who are able to inflict serious wounds upon themselves will not be deterred by disciplinary punishment, let alone be persuaded that they are wrong. To conclude, the association believes that a detainee should be described as “dangerous”, mainly based on his/her behaviour in the penitentiary and the sound and objective assessment of that behaviour by the penitentiary staff.
During their visit at the Vaslui Penitentiary, the representatives of the association noted the case of detainee Marius Maricel Năstase (27), killed by one of his mates, detainee Mihai Călin. Năstase was on pretrial detention, for the rape of a child. Due to the “wireless” communication among detainees, the rumour spread that Năstase was a “pedophile”. After 21 days of quarantine, on February he was placed in a “quiet” room – as staff members said – where, a few minutes later, he was hit by detainee Călin and died (“meningeal haemorrhage with ventricular flooding”). The staff who talked to representatives of APADOR-CH explained that inmates had their own code of “moral values”, according to which homicide, for instance, is acceptable, but not pedophilia. Under no circumstances can such explanations justify the incident; the staff were under obligation to foresee and prevent the violent reaction against Năstase, especially as they were aware of the rumours and of the prison psychology regarding that type of crime. A similar situation, but with less serious consequences, occurred in November 2002 at the Iaşi Penitentiary. Detainees Kurt William Treptow and Tatiana Popovici, both indicted in a widely publicized pedophilia case, were brutalized by room mates. In this case, there was no tragic ending because, among other things, the staff and the DGP management intervened promptly and discouraged any action from inmates with “righteous”, but totally illegitimate impulses. The association stresses once again that the staff of the penitentiary bears the responsibility – even under criminal laws – deriving from their legal obligation to preserve the life, health and physical and mental integrity of detainees.
6. Spare time, cultural and educative activities
APADOR-CH deems that there is a lot still to be done – especially to promote spare time activities among detainees – even if overcrowding and the insufficient ratio of staff members per detainees remain the two big problems of the penitentiary system. The importance of this aspect arises from the fact that in practically all Romanian prisons inmates stay in their cells for years in a row, 24 hours a day, without any occupation or activity. Such a situation cannot but damage the health of detainees and depreciate their physical, intellectual and mental condition.
Since overcrowding and understaffing do not appear solvable in a short time perspective, APADOR-CH have constantly insisted that prison managers should be open to any idea or concrete measure which might make the lack of activity more bearable for detainees. Representatives of the association have pleaded, for example, that detainees are allowed to watch TV programs when no other activities are scheduled. In many penitentiaries, there is a direct relation between TV restrictions and the state of discontentment. At the Codlea Penitentiary, detainees who were allowed to watch TV only after 17.00 asked in their majority a extension of the programme. Similar requirements were made at the Mărgineni Penitentiary. The penitentiary managers deny such requests arguing that electricity bills will go up if TV sets are on for longer. Such an explanation is contradicted by the obvious fact that TV sets are small consumers, infinitely smaller than other electric consumers existing in a penitentiary – machines and tools in workshops, kitchen installations, lighting, etc. The experience of penitentiaries where TV sets are on whenever there is no other scheduled activity is relevant. In none of these cases have the representatives of the association learned that the electricity bill had gone up in any significant way. But it is easy to notice in these places (such as Tg. Jiu, Bacău, Giurgiu) how the discontentment of detainees is significantly diminished.
At the Bistriţa Penitentiary, representatives of APADOR-CH have noted a certain tendency to organize the detainees’ schedules as rigidly as in military units. The association does not plead for lack of organisation, or for a leisurely lifestyle in penitentiaries, but believes it is unusual to ask detainees – people who sit in their rooms doing nothing for 5, 10 or 20 years – to jump out of bed at 6.00, brush their teeth between 6.10 and 6.15, prepare for lunch from 12.00 to 12.05, etc. Certain fixed hours in a day’s schedule are, of course, necessary (the time for medical examination, for the daily walk, for meals, hearings by authorities, work, etc.). But besides the fixed timetable, the programme should be as relaxed as possible.
It is also important that, when inmates are kept in their cell rooms, they should have various preoccupations: to work, for instance, on handicraft articles, to paint, carve, play chess, rummy, backgammon, card games. During the last years, it seemed to the representatives of the association that the staff is less and less preoccupied to provide the detainees with games and materials for such activities. Even worse, there are places (like the Vaslui Penitentiary, but not only) where women are not allowed to keep in their rooms needles and other knitting instruments, so necessary to alleviate the discomfort caused by lack of activity.
The duration of the open air walk is in general shorter than recommended by the international norms ratified by the Romanian state (both UN and European rules provide for “at least one hour per day”). The situation is mainly due to overcrowding, but could also benefit from a better planning of activities. At the Galaţi Penitentiary, although visible progress has been made over the last two years (there are three open air yards and a football field, albeit improvised), the latest open air “daily” walk timetable included half an hour to one hour, twice a week, plus once every two Fridays. The staff explained that their number is not sufficient to provide more. The association considered however that the situation is peculiar and unacceptable, putting at risk the very health of detainees. A rather similar situation was encountered at the Bistriţa Penitentiary, where the “daily” walk was half an hour, four days a week. During their visit in Bistriţa, the representatives of APADOR-Ch learned of an DGP Order of April 2002 which described the refusal to go out for the walk as a infraction of discipline. In order to justify, probably, such a regulation, the Order selectively cites UN Standard Minimum Rules (which do not see the daily walk as an obligation of detainees), but fail to remember the principle according to which detainees should be granted one hour per day in the open air; against this principle, the DGP order provides for only 30 minutes of daily walk. Because there is such a large number of detainees, and only one yard for open air activities, but also because of the DGP order, the time allocated to the daily walk was unacceptably short in Tg. Jiu, too – half an hour to one hour, from Monday to Thursday, while Fridays, Saturdays and Sundays were allocated for “administrative tasks”. The association has asked the DGP to repeal the abovementioned order, so clearly in disagreement with international norms. Although prison conditions are similar everywhere, there are places providing outdoor time according to requirements in the domain (and the first to be mentioned is the penitentiary in Mărgineni, where the walk takes place daily, including weekends, for one to one hour and a half ). This, as well as the general preoccupation of the management for solving the detainees’ problems, to ensure good medical care and good food, explain why at Mărgineni there is remarkably little tension between detainees and staff.
The cultural and educative departments are generally preoccupied to fulfil their role. The insufficient staff and an inclination for theory and formalism are factors that social activity and education could do better without. There are penitentiaries where the departments are constantly preoccupied to help inmates fill their spare hours. The representatives of APADOR-CH noted such a preoccupation at the Tulcea Penitentiary, including co-operation with local cultural institutions. Inmates (in groups of 200- 250 at a time) were taken to performances (theatre, folk and pop music, dance) at the local Youth House; it is important to point out that detainees never posed any problem, and that the managers of the cultural centres and the city dwellers had no complaints about their behaviour). Still in Tulcea, local artistic groups gave music and dance performances in the prison yard, where, on another occasion, a large screen was installed and movies were shown. Detainees from Mărgineni and Tg. Jiu took part in exhibitions of icons, decorative art and painting, or books, the events being organised in Târgovişte and Tg. Jiu. The representatives of the association have permanently pleaded for that sort of activities – unfortunately still isolated events – which not only fill the inmates’ spare time, but also entertain, educate and, last but not least, help them “re-socialize” to a degree, and prepare them for freedom.
The association praises the real attention, with positive effects, that managements and departments for culture and education in certain penitentiaries give to special categories of detainees, especially minors and lifers. As concerns the minors, three of the still few exemplary penitentiaries are those in Vaslui, Tg. Jiu and Codlea. In Vaslui, due to the remarkable effort of the psychologist, minors are involved in life education activities, attractive sports events, individual and group counselling, etc. At the moment of the visit, the underage group prepared a performance of Caragiale’s “Sketches” and of the play “The Three Little Pigs”, centred on the theme of conflict mediation. In Tg. Jiu, too, the psychologist has a notable contribution. On St. Peter and Paul’s Day (Penitentiaries’ Day), on Women’s Day and on Mihai Eminescu’s anniversary minors staged performances, including theatre therapy. Tests for assessing and stimulating the originality and creativity of the children were specially devised. At Codlea, besides similar activities, the penitentiary organised on a regular basis meetings with the detainees’ parents. During their visit to the Bucureşti-Rahova Penitentiary, representatives of the association noted that since the appointment of the new director, in March 2002, lifetime detainees have received special attention. The department for culture and education runs special programs for them, aiming to learn more about their problems and needs. In the months prior to the visit, lifers had taken part in activities which involved good trust among themselves and the staff. The management had organised a meeting with all lifers at the club and, on another occasion, they had attended, alongside the other detainees, a theatre performance staged at the penitentiary. They had been allowed to take their daily walk, without handcuffs, and to play football on Saturdays and Sundays (the management planned to build a special football field to allow them to play daily).
During their visits, representatives of the association noted that the social integration and supervision services functioning by the District Tribunals had not yet been organised, as they should have been ever since November 2000, according to a Government Ordinance. On the contrary, the District Tribunals in Dâmboviţa (Mărgineni Penitentiary), Gorj, Braşov and Vaslui have fulfilled the task in due time. The two counsellors from the service in Gorj made frequent visits to the Tg. Jiu Penitentiary and tried to find out which detainees had lesser chances of social reinsertion after release. It is remarkable that during the last year the probation service has managed to find jobs for 8 former inmates who apparently had no perspectives after release. In Braşov County (Codlea), the probation service worked mainly on identifying cases in which a Court could change detention into an alternative sanction (the counsellor analysed the situation of such detainees and handed their findings to the Court). The workers in Vaslui had similar concerns, but with regard to minors. In Bistriţa, although the probation service had not been created, the penitentiary was working on a protocol with representatives of the local Pentecostal cult, for the creation of a social reinsertion centre for inmates who have little chance of reintegration after release. The project included the construction of a “home” for 60-70 former detainees, offering them shelter and food (the centre was also supposed to help them find jobs). Two former inmates, released shortly before the APADOR-CH visit, lived in an apartment offered by the Pentecostal community in Bistriţa, while a third was offered work on a family farm.
Since the social reinsertion of detainees has constantly raised very serious problems, the association asked the DGP to intervene by the entitled authorities, so that the “probation” services are organised as soon as possible and that every detainee who, upon release, has no means of subsistence, is paid a social aid amounting to the minimum wage per economy, after taxes.
Co-operation with non-governmental organisation has unfortunately become increasingly sporadic and is reduced almost exclusively to religious education, provided by organisations like the Humanitary Service for Penitentiaries, “Stânca Veacurilor” Mission, the Christian Mission for Penitentiaries. In Vaslui, a very active organisation is “City of Hope”, dealing exclusively with young people (18-21) about to be released, while Prison Fellowship runs programs for women detainees in several penitentiaries (among which, again, Vaslui). The Târgu Jiu Penitentiary has worked with the Regional centre for the education of adults (a territorial institution of the Ministry of Culture and Cults), which organizes once a month debates and counselling sessions for women. There was also a partnership with the Constantin Brâncuşi University and the Lower Jiu University, consisting mainly of legal education programs and practical work in the penitentiary, involving around 120 students. Similarly, the penitentiary in Bistriţa collaborates with the “Carol Davilla” Undergraduate School for Social Workers, the Association of Social Workers in Transylvania, the “Louis Pasteur” Undergraduate School and the League of Orthodox Youth.
In 2002, the average percentage of detainees hired for work remained around 30-40% during the agricultural season and of 7% in the rest of the year. It is a positive fact that the DGP has lately given more freedom to prison managers to find work contracts, allowing beneficiaries to pay less than the national minimum wage. The association considers that, given the high unemployment rate in Romania, the high taxes that beneficiaries have to pay for using prison workforce (35%) and the overcrowding in penitentiaries where it is impossible to find activities to fill the spare time of detainees, it is good for them to go to work (to get out of those suffocating rooms), even for a smaller salary. By order of the Ministry of Justice no. 1704/C/2002, on the methodology for calculating sentence reduction based on the amount of work, it was also decided that detainees may also reduce their prison term if “the information they offer to the authorized bodies” helps to find out the truth about certain offences, or to prevent offences or negative events at the detention place. Since such a regulation is meant to encourage denouncement, generate suspicion and conflicts with severe consequences among detainees, APADOR-CH asked the DGP and he Ministry of Justice to eliminate the provision from the above mentioned order.
IV. NATIONAL MINORITIES IN ROMANIA
1. Drafting a law on national minorities
During 2002, the debate regarding the necessity for a law on national minorities was reopened. Besides the existing motivations such as the coherent and unitary regulation of the domain, new reasons have arisen. Among the most important were the apparition of the “new minorities” – considered by certain organizations to be “artificial” – who in 2002 sent their representatives to the Parliament (as was the case of Ruthenians and Slav Macedonians), as well as the increasing number of emigrants residing in Romania. The topic interested the Council of Europe and took the form of a research involving a number of experts, sponsored by the Centre for Legal Resources, with the participation of APADOR-CH. The following conclusions were offered for debate to representatives from the national minorities, public institutions, the Council of Europe and the civil society:
a) A law on national minorities could take the form of a frame-law. Even this way, the law will be able to explicitly underline the contradicting provisions of the current legal framework and to establish the applicable norm. Postponing decisions on the matter until the subsequent modification of the current legal framework will not lead to an efficient solution for the protection of minorities, even if a frame-law is passed. The law will explicitly stipulate that all international provisions must be observed as one body (to ensure the protection of the rights thereby secured).
b) Another opinion is that there is no need for a general law to include all provisions regarding the protection of national minorities, since such provisions are already included by the various special laws in force. A frame-law, containing only directing principles and references to the specific norms included in the special laws (such as the law on political parties, the laws on elections, the law on local public administration, the law on education, a.s.o.) would be more appropriate. The first option (adopting a general law to include all regulations regarding the protection of national minorities) implies a number of risks: it may become a much too wide-scoped piece of legislation; for each area which is regulated separately, there is a risk of conflicting with general regulations; omissions may appear, creating “blank spaces” which would be detrimental for the protection of national minorities. However, even if a frame-law on national minorities is passed, it should be accompanied by the appropriate modification of the special laws in the field.
c) It is necessary to adopt a definition for the notion of „national minority”. Taking into account the mandatory character of Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe for the Romanian legal context, the definition to be included in the future law can not be inferior to the standard imposed by the recommendation. One of the options would be to enumerate ab initio all minorities which are entitled to protection (by special measures) under its provisions, thus acknowledging them as national minorities. Also, the law may offer an open procedure for the recognition (by the Parliament) of new minorities, in case such a request is submitted by a minimal number of people who claim to belong to a minority (the minimal number will be established by the law), in accordance with the legal definition of the concept.
d) The law could establish the distinction between national minorities and ethnic groups, the latter being mainly residents belonging to a certain ethnic group, but entitled to protection as refugees, asylum seekers, a.s.o.
e) The relevant institutional framework could be conceived as a double network: an executive structure (assigned to implement the law on the protection of national minorities and other provisions on active protection/special measures) and a supervising structure. The current institutions (the National Council for Combating Discrimination, the Department for Inter-Ethnic Relations, the National Minority Council, the Romanian Ombudsman) hold overlapping or conflicting attributions which should be revoked. It is very important that the law on national minorities should offer a clear institutional framework, on two levels, ensuring that any decision of the executive structures can be contested before independent supervising institutions.
2. The establishment of the National Council for Combating Discrimination
According to Government Ordinance no.137/2000 on non-discrimination, the National Council for Combating Discrimination should have been set up within 60 days of the publishing of the ordinance, that is before the end of October 2000. However, Government Decision no. 1194/2001 regarding the creation, organization and functioning of the National Council for Combating Discrimination (CNCD) was only passed in December 2001, and became effective by mid-2002. Without this institutional structure, an important part of the special provisions included by the Ordinance on non-discrimination could not be implemented.
The National Council for Combating Discrimination is part of the larger institutional system for the protection of national minorities, which also includes the Department for Inter-Ethnic Relations, the National Minority Council and the Romanian Ombudsman. Excepting the latter, all the other abovementioned institutions are under direct control of the Executive.
The National Council for Combating Discrimination is an executive structure of the central administration, under direct control of the Government. However, the Government Decision stipulates that the CNCD will work independently, without interference from other institutions or state authorities. The CNCD is headed by a Steering Board made up of one president and six members, appointed and revoked by decision of the Prime-minister.
There is no provision granting a minimal representation of disfavoured groups in the Steering Board of the CNCD, although the Ordinance includes a recommendation to that purpose. Prior to the appointment of the members of the CNCD Board, several non-governmental organizations, among which APADOR-CH, insisted that the Board should include people with experience, belonging to the protected categories. Of the seven members appointed by the Prime-minister, only one fulfils this condition, being member of the Hungarian minority.
Among its attributions according to the law,
the CNCD (1) proposes the introduction, under the provisions of the law, of
special actions or measures to protect persons or categories; (2) submits
draft bills in its field of activity to the Government; (3) works with the
entitled public authorities to harmonize the domestic legislation with the
international norms regarding non-discrimination; (4) works with other public
authorities to ensure the elimination of all forms of discrimination; (5)
monitors the implementation of normative decisions regarding non-discrimination;
(6) receives petitions and complaints about infringements of the provisions
regarding the principle of equality and non-discrimination, analyses them,
takes the appropriate measures and answers the applicants; (7) conducts studies
regarding the observance of the principles of equality and non-discrimination
and publishes related materials; (8) works with non-governmental organizations
for the protection of human rights; (9) takes note of and sanctions the infringements
provided by the Government Ordinance no. 137/2000.
Ever since its creation, the Steering Board of the CNCD has discussed on several occasions with non-governmental organizations, among which APADOR-CH, either in direct meetings or as part of seminars. Besides such displays of interest for contacts with the civil society, the activity of the CNCD has been practically undetectable until December 2002. The only notorious public intervention was the support given to the National Audiovisual Council (CNA), when the latter decided to withdraw the licence of OTV television station under the pressure of the Romanian President, a decision APADOR-CH has criticised. The incident showed how important it is that the CNCD should establish a precise and transparent methodology for assessing discrimination.
On December 18, 2002, the Romanian Government passed the Decision on the modification and completion of Government Decision no. 1194/2001, on the organization and functioning of the National Council for Combating Discrimination. Article 1 of the Decision includes a significant provision, extending the field of action of the CNCD to persons in general: “…the Council oversees the use of non-discriminatory treatment to categories of persons who are not Romanian citizens”.
Article 3 of Government Decision no. 1503 modifies the existing provision regarding the Steering Board of the CNCD, stipulating: „The Council is headed by a president” (Art. 3 (1)). The Steering Board, now named “Steering Council”, becomes a mere consultative body, with the function to aid the president of the CNCD by analysing petitions and complaints sent to the Council and applying penalties.
The modification completely eliminates any idea of independence for the CNCD. Indeed, the President of the CNCD is „appointed and revoked by decision of the Prime-minister” (Art. 4 of the G.D. no. 1194/2001). In this respect, the CNCD becomes a direct instrument of the PM, with no power whatsoever to oppose, if need be, abusive actions by the Government.
But independence represents one of the most important premises for the activity of the National Council for Combating Discrimination, as shown by the Anti-Racism Directive adopted by the European Union in 2000, which offers a framework for the domestic legislation of member states and, therefore, for the states applying for EU membership. According to Article 13 of the Directive: “Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights”
Ordinance no. 137/2000 established the CNCD as a “specialized body of the central public administration, subordinated to the Government”. However, Decision 1194/2001 ensured that the CNCD enjoyed a certain amount of independence, by providing that “in exercising its functions, the Council acts independently, without obstruction or pressure from other institutions or authorities” (G.D. no. 1194/2001). Moreover, the fact that “In appointing the members of the Steering Board, the presence of persons belonging to national minorities or disfavoured categories shall be taken into account” (Art. 5, (6), G.D. no. 1194/2001) and that “After being appointed, the members of the Steering Board shall cease to represent the public authorities who put up their names for appointment” (Art. 5, (6), G.D. no. 1194/2001) indicates there were reasons, within the general context of the Board’s prerogatives, to expect an attitude of independence from members of the Steering Board.
The character of the changes operated by force of G.D. no. 1503/2002 demonstrates the obvious intention of the Government to eliminate any trace of independence of the CNCD. Such a measure will not contribute to combating discrimination, but will only fight against the goals of the CNCD. The Government thus undermines the credibility of the institution it has created and, at the same time, questions its own declared will to adopt the norms of the European Union.
3. Critical remarks regarding the “Amendments Bill to Government Ordinance no. 26/2000 on associations and foundations” drafted by the Parliamentary Group of National Minorities.
During November 2002, the Parliamentary Group of National Minorities drafted a bill regarding the organizations set up by members of the national minorities. The Bill was preceded by an “Introductory note” which offered the following argument:
(1) The legislative void in the matter of the recognition of a national minority by the Romanian state requires limiting regulations, which should take into account the fact that the law grants national minorities rights such as Parliamentary representation;
(2) The conditions for the establishment of an organisation set by Government Ordinance 26/2000 prove to be inappropriate for organisations of national minorities, which have country-wide representation and are legitimized by the important number of members;
(3) In such conditions, a new legislative chapter should be adopted on the establishment and functioning of organisations of national minorities.
Thus, the Amendments Bill to Government Ordinance 26/2000 introduces a number of new requirements, applicable only to national minorities and their organisations:
- National minorities should be „attested to be present on Romanian territory for at least a century” (Art. 37.1). Art. 37.2 of the same document acknowledges, on the basis of their representation in the National Minority Council (CMN) or/and the Parliament, the following national minorities: Albanians, Armenians, Bulgarians, Croats, Czechs, Germans, Greeks, Hungarians, Italians, Jews, Lipova Russians, Polish, Roma, Ruthenians, Serbians, Slav Macedonians, Slovakians, Tartars, Turks, Ukrainians.
- The organizations of citizens belonging to national minorities become „subject to the enforceable laws” only if they represent at least „30% of the total number of citizens registered as members of the minority during the latest general census, but no more than 30 000 people” (Art. 37.4). The application for the registration of an organization of citizens belonging to a national minority is to be submitted to the Bucharest District Tribunal and to be registered into a Record book of the organizations of citizens belonging to national minorities.
- The Bill subsequently defines the documents needed for registration and certain elements regarding the organization and functioning of the organizations. The Bill stipulates that „The organizations of national minorities which, before the coming into force of the present Ordinance, were part of the National Minority Council (CMN) or were represented in the Parliament shall maintain their juridical personality” (Art. 37.10), while all the others „shall lose their juridical personality and shall be under obligation to set up again”, according to the abovementioned provisions.
Regarding the „Amendments Bill to Government Ordinance no. 26/2000 on associations and foundations” drafted by the Parliamentary Group of National Minorities, APADOR-CH, the Open Society Foundation and Liga Pro Europa have the following comments:
A legitimate preoccupation
a) The preoccupation expressed in the “Exposition” of the Parliamentary Group of National Minorities is well grounded. The Romanian Constitution and the domestic legislation ensure that national minorities are represented in the Parliament as well as have access to budget resources - distributed mainly by the CMN. Such special rights may become instruments in the hands of persons and groups interested in promoting their own agenda. Therefore, rights of such importance for the political system as is representation must be protected from abuse. And there have been pressures to do so in every legislature since 1992. During the 2000 elections, The Parliamentary Group of National Minorities opposed the accession to the Parliament of representatives of the Ruthenians and Slav Macedonians, considering they were speaking in the name of artificial minorities. On March 1st 2001 however, the Chamber of Deputies validated the mandates of the two representatives with 196 votes “for”, 60 “against” and 11 abstentions. Also, during the latest elections, some minority representatives complained about the fact that organisations of certain minorities, which had been established more or less ad-hoc, managed to be represented in the Parliament.
b) The solution suggested by the Parliamentary Group of National Minorities, consisting in an acknowledgement of national minorities by explicit enumeration, is a legitimate one and may be also found in other countries’ legislation. But the implications of such regulations go beyond the scope of an „Amendments Bill to Government Ordinance no. 26/2000”. Thus, a definition for national minorities should be sought only in connection with other ethno-cultural groups which are entitled to protection by the Romanian state, such as refugees, asylum seekers, migrant workers, but not to affirmative action, as enjoyed by the national minorities. It must be added that so far, Romania has not agreed to the idea of acknowledging national minorities through enumeration, and therefore it did not sign any such declaration on the occasion of the signing and ratification of the Framework Convention for the Protection of National Minorities, as other member countries did.
The place for the regulation
The natural framework for solving the questions raised by the Parliamentary Group of National Minorities is a law for the protection of national minorities and ethno-cultural communities. The initiators might also include an open procedure for the recognition of new minorities, in case such a request is filed by a minimal number of people who maintain they belong to a minority. In any case, defining national minorities does not belong in a draft bill of the type promoted by the Parliamentary Group of National Minorities.
Unacceptable amendments
a) The obvious reason for the Amendments Bill to Government Ordinance no. 26/2000 is to limit the access to the Parliament and to the Council of National Minorities of other organisations of the national minorities than the ones already represented. The solution offered by the Parliamentary Group of National Minorities was to restrict the creation of organizations by citizens belonging to national minorities. Such an initiative, however, is due to create confusion and may easily become the source for the infringement of rights and freedoms.
b) The first confusion results from the overlapping of the notions of “organization” and “association”. The Romanian Constitution, under art. 59, par. (2), Law no. 70/1991 on local elections, Law no. 68/1992 on the election of the Chamber of Deputies and the Senate, Law no. 27/1996 on political parties, all regulate the right of minority members to create structures assimilated to political parties by referring to “organizations of the citizens belonging to a national minority”. The Romanian Constitution mentions, under art. 37 on the right to freedom of association, political parties, unions, associations and “other forms of association”. The old Law no. 21/1924 and Government Ordinance no. 26/2000 regulate two associative types: associations and foundations. It is clear that in referring to “organizations of citizens belonging to a national minority”, the legislative body has identified the “associations” created by the respective citizens, in accordance with the two abovementioned legal norms. This is the case of all minority organizations represented today in the Parliament or the CMN.
c) But if, as required by the Bill of the Parliamentary Group of National Minorities, a distinct associative form is created under the name of “organizations of citizens belonging to a national minority”, confusion may easily arise. But besides that aspect, the Bill sets conditions for the establishment of organisations (of citizens belonging to national minorities), that is for the exercise of a fundamental human right – the right to freedom of association, contradicting thus the very principle of regulations on the matter.The legislative body is not allowed to place restrictions other than necessary “in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” (Art. 11, European Convention of Human Rights). From that point of view, the restrictions to association based on a minimum level of representation (30%) and on a maximum number of members (30.000) are both unacceptable and contradictory.
d) A second confusion may arise between the right to freedom of association and the democratic rights. The initiative of the Parliamentary Group of National Minorities finds legitimacy by ensuring the optimal voting conditions and by responsible management of the public funds, or, as it is the case, by preventing persons or groups to take advantage of certain provisions of domestic legislation. In this context, certain conditions may be placed on the participation to the election process, but not in a bill which grants the freedom of association and regulates the exercise of this right.
e) Even if the provisions of the Amendments Bill to Government Ordinance no. 26/2000 on associations and foundations were limited to restricting the participation to the elections process of the organizations of citizens belonging to a national minority, they would still infringe upon fundamental rights and freedoms. Thus, they discriminate between the citizens who have founded the existing cultural unions, as associations, and those who, in the future, will want to create similar associations. The former would exercise their right to freedom of association and democratic rights in much more appropriate conditions than the latter. Moreover, the regulations imposed to these new association forms dubbed “organizations of citizens belonging to a national minority” are unjustified, in many cases prohibitive and in two of them even impossible.
Thus, there is no way in which a new Roma or Hungarian organization could observe all the criteria of the Bill simultaneously. For the approximately 600 000 Roma identified during the latest census, the required percentage – 30% - means 200 000 people, a number going beyond the 30 000 limit imposed by the Bill. In the case of the Hungarian minority, 30% means about 330 000 people. In conclusion, only the Democratic Alliance of Hungarians in Romania (UDMR) and the Roma Party (Partida Romilor) would be allowed to represent the respective national minorities, and that because they are already represented in the Parliament and the CMN.
According to the 1992 census, several national minorities had just tens of thousands of members: Germans -119.436 (today, their number is sensibly lower); Ukrainians - 67.833, Lipova Russians - 38,688; Turks - 29.533, Serbs - 29,080. But to establish a new organization for any of these minorities, a minimal number of 10 000 members would be required. It is a figure meant to discourage any initiative of association, not to mention that the bill refers to 30% of the entire community, ignoring the fact that the census also includes underage children.
Conclusions
The solution proposed by the Parliamentary Group of National Minorities creates confusions and infringes upon fundamental rights and freedoms of human beings and of members of national minorities. By its implementation de facto, the Bill would create a monopoly situation in favour of the existing cultural organizations in the life of the national minorities, mainly with regard to the political activity and the access to public funding. The adoption of such a solution would seriously perturb the internal life of national minorities and would undermine the solidarity needed to assert national identity, thus endangering the system thereto created.
APADOR-CH, the open Society Foundation and Liga Pro Europa require the Bill to be withdrawn and an appropriate framework to be prepared for the recognition of national minorities – as a stage towards their representation in Parliament – by drafting a bill on national minorities and ethno-cultural groups, with the participation not only of organisations represented in the Parliament and the CMN, but also of other groups involved in human and national minority rights issues, and which have been active in promoting and protecting these rights in Romania over the last 12 years.
V. CASES ON TRIAL IN THE EUROPEAN COURT FOR HUMAN RIGHTS (STRASBOURG)
This chapter presents some of the cases supported by APADOR-CH in 2002, by starting procedures and bringing them to the European Court for Human Rights, considering that the applicants were victims to violation of rights provided by the European Convention for Human Rights (ECHR). Also, the chapter describes the evolution of some of the cases which had been brought to the European Court before 2002, and which had been presented in detail in previous reports.
1. The evolution of cases initiated by APADOR-CH prior to 2002
All the cases in which the association got involved and for which procedures by the European Commisson/Court for Human Rights have started prior to 2002 (see the Report of APADOR-CH for 2001) are still pointing on.
1. In the case Cotleţ v. Romania (application no. 38565/1997), on April 16th, 2002, the Court decided on the admissibility of the application, alleging the violation of Article 8 of the Convention. The applicant alleged that having his mail opened and delayed by prison authorities represented violation of his right to respect for private life under Article 8 of the Convention. In the decision of admissibility, the Court acknowledged that the application raises serious problems de facto and de jure andrequires an examination of the meritsand, as a consequence, held it admissible. Upon request of the Court, the applicant’s lawyer provided supplementary observations on the merits, alleging that after October 17th, 1997, when the Ministry of Justice adopted Order no. 1792 – prohibiting mail privacy violation – the infringement of the right to correspondence continued under different forms; for instance, penitentiary managers would not provide paper, envelopes or stamps. The applicant further claimed that not having access to the needed material for correspondence, the delay of his letters and the pressure placed on him to give up his application to the Court are in violation of Article 34 of the Convention, prohibiting authorities to hinder the effective exercise of the right to apply to the Court, claiming to be the victim of a violation. The applicant’s supplementary observations also supported the request to be afforded just satisfaction, according to Article 41 of the Convention. Following the response of the Government to the supplementary observations, the applicant’s counsellor lodged the objections with the Court on June 14th, 2002. The Court will decide on the violation of article 8.
2. In the case of Greek-Catholic Parish of Sâmbăta, Bihor v. Romania (application no. 48107/1999), the applicant complained that the rejection by national courts of its action for the restitution of the church in Sâmbata commune violated the right to fair trial (Article 6 of the Convention), and the rejection of its action regarding the right to an alternative religious service violated the right to freedom of religion (Article 9 of the Convention). Following the observations of the Government submitted on December 18th, 2001, the applicant’s counsellor handed the Court her observation on the admissibility and merits of the cause on February 3rd, 2002. Besides the violation of articles 6 and 9 of the Conventions, expressly mentioned by the applicant in its complaint, the counsellor also pointed out that national authorities also violated the applicant’s rights under Article 1 of Protocol no. 1 to the Convention and Article 13 of the Convention. The violations were mentioned in the de facto situation and in the exposition of infringements of the Convention, although they had not been stated in terminis. The Court will decide on the admissibility of the application.
3. In the case of Vili Rupa v. Romania (application 58478/98), the applicant’s complaint regarding the violation by national authorities of rights provided by the Convention (the right not to be tortured or subjected to inhuman treatments, under Article 3; the right to freedom, the right to be immediately taken before a Court and the right to contest the lawfulness of police custody, under Article 5, the right to a fair trial under Article 6, par. 1; the right to be presumed innocent, under Article 6, paragraph 2; the right of the defendant to be informed of the nature and cause of the accusations brought against him, to be granted the time and means to prepare a real and effective defence, under Article 6, par. 3, the right to respect of private life under Article 8; the right to effective remedies, under Article 13) was submitted to the Government, who informed the Court of its objections on the admissibility and merits of the cause. The Court will decide on the admissibility of the application.
4. In cases Achim v. Romania (application no. 63101/2000) and Greek-Catholic parish St. Vasile Polona v. Romania (application no. 65965/2001), internal proceedings to seek effective remedies for the violation of rights under the Convention have not been finalized to this day. The applicants’ counsellors continued the correspondence with the Court Registry and informed the latter on the development of internal proceedings.
The other cases presented by APADOR-CH in its Annual Report for 2001 did not mark any significant evolution during 2002, and are still pending.
2. Cases which involved APADOR-CH during 2002
1. Damian v. Romania
The de facto situation and internal proceedings
Marius Damian-Burueană and Viorel Damian are brothers. Marius Damian is a lawyer living in Bucharest, and Viorel Damian is an engineer and lives in Turceni, Gorj County. In the evening of January 29th, 1995, the two brothers were in front of Viorel’s block of flats. Several police officers asked Viorel Damian to follow them to the police station, without giving him any reason. When Viorel refused to go and his brother, Marius, also protested against the request, the two brothers were hit, put by force in a car and taken to the police station. Witnesses said that the brutality of the police were unjustified. The violence against the victims continued during the ride, and once at the police, they were searched without any warrant issued by a magistrate. Moreover, also on January 29th, 1995, the police performed a house search at Viorel Damian’s place without a search warrant and during the night. The victims were arrested and held without authorisation, without being informed of any accusation and without being granted the right to defend themselves. It was only on January 30th when the police authorities decided to accuse the two for “offence against civil servants” and to retain them for 24 hours.
The Prosecutor’s Office by the Tg. Jiu Court of First Instance issued on January 31st orders to arrest the two brothers for 5 days, alleging they had committed the offences of “violent outrage” and “indecent behaviour, disturbing public order”.
The two brothers went on hunger strike in order to be seen by a forensic doctor, who could notify the injuries they had suffered. Finally, Marius Damian-Burueană was taken to a forensic doctor on February 2nd, 1995, while Viorel Damian had to wait until February 6th. The forensic reports include the diagnosis and the recommendation for 12-14 days of medical care in the first case, and 4-5 days in the second.
On February 3rd, 1995, an order was issued to keep them in custody for 25 days. The victims asked the prosecutor to release them on bail, but their motions were denied. On February 17th, 1995, the Prosecutor’s Office by the Tg. Jiu Court of First Instance decided to send the two brothers to court, in detention, for the offences of “violent outrage” and “indecent behaviour, disturbing public order”, plus the offence of “driving with a suspended licence” in the case of Viorel Damian. During the court action, both police and prosecutors examined the witnesses without informing defence counsellor, who therefore could not attend the hearings. The file was lodged with the Tg. Jiu Court of First Instance, and on February 23rd, 1995, the two were conditionally released.
Upon request from the victims, the trial was transferred to the Sector 3 Court of First Instance in Bucureşti, who acquitted the brothers, since there were no facts proving the “outrage”, and since, on the date of the arrest, Viorel Damian’s driving licence was not suspended. During the appeal, the Bucureşti District Tribunal decided to fine each defendant by 25.000 lei for the offences they had been accused. At the second appeal, on June 10th, 1998, the Court of Appeal in Bucureşti totally reversed the decision of the Bucureşti District Tribunal, maintaining the decision of the Sector 3 Court of First Instance (acquittal, for ungrounded accusations).
The mother of the Damian brothers complained about the brutality and abuse committed by the police in an application lodged with the Military Prosecutor’s Office in Craiova on February 3rd, 1995. At the same time, the two filed a complaint with the Interior Ministry. On November 29th, 1996, the Military Prosecutor’s Office in Craiova decided non-indictment of the officers, showing that the criminal offences were not confirmed. A contestation of this resolution was rejected by the Military Prosecution Department of the Prosecutor’s Office by the Supreme Court of Justice on July 20th, 1999. A further complaint lodged with the same institution was partially admitted on June 25th, 2002, by deciding that the police officers were indeed guilty of “beating and other violence” and “abusive behaviour”, but that criminal responsibility for the offences had been lost by statute of limitations. The two contested this decision as well, submitting that the officers had committed other offences, too (torture, illegal arrest, abusive investigation – for which criminal responsibility had not been lost by statute of limitations). On August 24th, 2001, the Military Prosecution Department of the Prosecutor’s Office by the Supreme Court of Justice rejected the contestation and decided to maintain its conclusions from June 25th, 2001.
The two brothers started internal proceedings to seek damage for “unlawful” detention. Until the date when the application was lodged with the European Court of Human Rights, the cases had not been finalized, being in the phase of appeal.
Procedures before the European Court of Human Rights
At the end of December 2001, the victims lodged an application with the European Court of Human Rights, claiming violation, for each of them, of the rights provided by Articles 3, 5, 6, 8, 13 and 34 of the European Convention for the Protection of Human Rights.
The applicants claimed that their right not to be tortured or subject to inhumane or degrading treatment was infringed in two distinct situations. The first was their being tortured by police, both by the beatings on January 29th, 1995, and by the mental trauma of being unlawfully arrested, given no water or food, and told nothing about the accusations brought against them. The second violation of Article 3 was the lack of an efficient, speedy and impartial investigation led by national authorities (Military Prosecutor’s Office) in order to sanction the persons who tortured them.
The applicants further submitted the infringement of their right to freedom, under Article 5 of the Convention, on several separate occasions: their arrest was not done according to legal proceedings, they were not “promptly” informed of the reasons for their arrest and of the charges brought against them, they were not immediately taken before a judge or other officer authorized by law to exercise judicial power and no such authority was called to decide on their motion for bail (the prosecutor did not fulfil requirements under Article 5).
The applicants also complained of the violation of rights under Article 6 of the Convention in several separate situations: they were not informed promptly and in detail of the nature and cause of the accusation against them, they did not have the adequate facilities to prepare their defence during the whole duration of their arrest and they were not handed copies of the investigation documents issued during criminal action; they were deprived of legal assistance, being unable to contact the counsellor hired by their mother; the counsellor did not receive the needed information about the evidence; neither the applicants nor their legal assistant were allowed to be present at the hearing of witnesses during the investigation.
The applicants claim that their rights under Article 8 of the Convention were violated by their being subjected to bodily search and house search without legal authorization.
In what concerns the right to effective remedies, guaranteed by Article 13, the applicants submitted that the failure of national authorities to run an efficient and impartial investigation deprived them of any chance to seek effective remedy for the violations. According to domestic laws, the only bodies entitled to investigate complaints against police officers were Military Prosecutor’s Offices, whose lack of independence and impartiality has been proved both by facts and by the legal framework regulating their activity.
Finally, the applicants claimed that the Military Prosecutor refused to hand them copies of the documents in the prosecution file, although they have expressly stated that documents were necessary to support their application with the European Court, which is an infringement of Article 34 (last sentence) of the Convention.
The application is pending at the European Court, where it has been lodged with no. 6773/2002
2. Soare and others v. Romania
The de facto situation and internal proceedings
Mugurel Soare and Vipan Soare are brothers. On May 19th, 2000, they were beaten in the middle of the street by three police officers in plain clothes, and Mugurel Soare was shot in the head at point-blank range, slipping into a coma (the case was presented in APADOR-CH reports for the years 2000 and 2001).
Due to his wounds Mugurel Soare (who was 18 at the moment of the incident) stayed in hospital and underwent several brain surgeries. The subsequent major dysfunctions resulted in early retirement on medical grounds.
Two of the eye witnesses of the incident, Angela Vlăsceanu and Dorel Baicu, were taken to the police station (10th Precint) around 19.30. Vipan Soare was also brought there, and the uncle of the victim, Alexandru Soare, came of his own accord.
The hearing of the four persons started around 21.00. After writing their statements before a police officers, the witnesses and relatives wanted to go home, but they were prevented, although they were offered no reasons for that. The four of them were kept in the same office, without food or water. Around midnight, a new hearing began, led by a military prosecutor, accompanied by a man in plain clothes. The hearing lasted until 5.00 in the morning, and none of the witnesses were allowed to leave the station, although around 20.00 Angela Vlăsceanu complained, asking the police to let them go since they had no legal basis to retain them against their will. During the hearings, Dorel Baicu, Vipan Soare and Angela Vlăsceanu were submitted to pressures and threats in order to declare that Mugurel Soare had a knife, which they refused to do. Each time they reached the statement that Mugurel Soare had no knife, the investigators tried to intimidate them, by asking them to start the declaration all over again. All of them were asked to sign written statements which, from various reasons (bad handwriting, exhaustion, not being informed by the prosecutor that they had to read the statement), they all failed to read prior to signing. Nothing of what the uncle of the victim, Alexandru Soare, had declared was included in the statement. The man was told that the military prosecutor on the case will hear again. That was not the case, although Alexandru Soare went to the Military Prosecutor’s Office several times, of his own accord. For 19 months, none of the four was never asked by any authority to give testimony of information on the incident.
Angela Vlăsceanu and Dorel Baicu were afraid to file a criminal complaint against their unlawful retention for 10 hours at the police station. They have, however, taken action through APADOR-CH, who on July 4th, 2000 notified the Military Prosecution Department of the Prosecutor’s Office by the Supreme Court of Justice, asking for investigations regarding “the inhuman and degrading treatment” and “deprivation of freedom” to which the two were subjected. The notification received no answer.
The association ran its own, extra-judiciary investigation, heard the witnesses and drew a report which was submitted to the competent state authorities, with the request for a prompt and fair solution. The association’s initiative received no answer.
On July 24th, 2001, the Territorial Military Prosecutor’s Office decided non-indictment in the case of the police officer who had shot Mugurel Soare, stating it was a case of self defence. The solution was examined by the Prosecutor’s Office by the Supreme Court of Justice who, in an address dated September 14th, 2001, noted major shortcomings in running the investigation, which had failed to examine the merits of the case. However, the non-indictment decision was not annulled.
The resolution of July 24th, 2001 was contested by both the victim and APADOR-CH (on October 10th, respectively 12th, 2001), who required a copy of the non-indictment decision; the copy has not been provided to this day. Moreover, on March 7th, 2002, the victim’s legal assistants went in person to the Territorial Prosecutor’s Office and tried to obtain a copy of the aforementioned document, but were refused. They further required, in writing, copies of the case file, necessary for the application to the European Court of Human Rights. They were, again, turned down.
On December 10th, 2001, the Territorial Prosecutor’s Office decided to annul the decision of non-indictment and to complete the investigation. The cause has not been solved to the present day.
Procedures before the European Court of Human Rights
On June 21st, 2002, Mugurel Soare, Angela Vlăsceanu and Dorel Baicu lodged an application with the European Court of Human Rights. Mugurel Soare complained that the national authorities violated his rights under the Convention, Articles 2, 3, 6, par. 1, 13, 2 and 3 combined with 14 and 34. The applicants Angela Vlăsceanu and Dorel Baicu claimed that national authorities have infringed, for each of them, the rights under Articles 3, 5 and 13 of the Convention.
The applicant Mugurel Soare further submitted that his right to life, guaranteed by Article 2 of the Convention, was infringed by Romanian authorities in two separate situations: he was shot in the head, which could have resulted in his death, and there was no speedy and impartial investigation in order to sanction the person guilty of shooting him in the head.
As concerns his right not to be subjected to torture or to inhuman or degrading treatments, Mugurel Soare complained this was violated in two separate situations. The first included the torture applied to himself and his brother by a police officer, who hit him brutally and repeatedly and ended by shooting him in the head. The second instance when rights under Article 3 were infringed was the lack of a efficient, speedy and impartial investigation led by national authorities (Military Prosecutor’s Office), in order to sanction the persons guilty of torture.
The applicant Mugurel Soare further complained of the violation of his right to justice provided by Article 6, par. 1 of the Convention, because the criminal action he filed, asking for moral and pecuniary damage was never finalized, preventing him from obtaining damage as civil party in the criminal case.
As concerns the right to effective remedy, provided by Article 13, Mugurel Soare claimed that the lack of an efficient, impartial and transparent investigation denied him any chance to seek remedy.
The applicant, a member of the Roma community, claimed that the Prosecutor’s Office refused to hand him photocopies of the documents in the investigation file regarding his shooting, although his legal assistants expressly stated the documents were necessary to support the application lodged with the European Court. This is a violation by national authorities of the obligation set forth by Article 34 of the Convention, not to hinder in any way the effective exercise of the right to petition the European Court.
The applicants Angela Vlăsceanu and Dorel Baicu submitted the violation of their right not to be subjected to degrading treatment, as provided by Article 3 of the Convention, in two separate situations. The first violation was the treatment they were subjected to during the 10 hours of hearings, when they were prevented to leave the police station, were not allowed to rest, and were not offered water or food and were pressured to give false statements, to which the fear of reprisals may be added. The second violation of rights under Article 3 was the absence of any investigation on the treatment they had been subjected to.
The applicants Angela Vlăsceanu and Dorel Baicu further complained of the violation of rights provided under Article 5 of the Convention, because: their deprivation of freedom was unlawful and did not follow any legal proceeding, they were not informed of the reasons for their unlawful detention and they were not able to claim their right to compensation.
Finally, the applicants Angela Vlăsceanu and Dorel Baicu submitted that their right to effective remedies, as provided by Article 13 of the Convention, was denied.
The application was lodged with the European Court of Human Rights under no. 24329/02
3. Tarău v. Romania
The de facto situation and internal proceedings
In the year 2000, following a newspaper ad, Daniela Tarău contacted a company that facilitated work contracts abroad and was looking for part-time help. In June 2000, Daniela Tarău went to the company’s office for about three weeks, in order to obtain the job.
Between July 3rd and August 1st, 2000, Daniela Tarău was in hospital for surgery, and was frequently visited by Veronica Gori, who needed help to obtain a Schengen visa. Daniela Tarău promised to help her and on July 2000 received 1000 USD from Veronica Gori, in order to remit them to her colleague at the company who was in charge with getting visas, Costel Gheorghe. Daniela Tarău wrote a hand receipt for the money, which did not include any deadline for payback. The money was remitted to Costel Gheorghe.
Later, Veronica Gori filed a complaint with the police, demanding the return of the 1000 USD. At the moment, the police was leading a criminal investigation on the company in cause. Daniela Tarău was not involved in the investigation.
On December 15th, 2000, the 3rd Police Precint summoned Daniela Tarău “urgently” at the station, as a “witness” and the applicant responded. On February 22nd, 2001, Daniela Tarău was detained under the accusation of fraud, although not repaying a sum of money is not a criminal offence, but a matter of civil law. Moreover, Daniela Tarău was in a bad state of health, was the only caretaker of a minor child and two old parents, had no criminal history and had co-operated with the police.
During the investigation, Daniela Tarău was denied important proofs for the defence, such as confrontation with Veronica Gori and Costel Gheorghe. On June 26th, 2001, when Daniela Tarău was still under arrest, based on a warrant issued four months before, the Sector 1 Court of First Instance in Bucureşti analysed a new demand from the Prosecutor’s Office by the Bucureşti District Tribunal, to extend the warrant for Daniela Tarău and other four people accused in the same cause. Daniela Tarău had no legal assistance, so it was decided that the counsellor of another defendant should assist her as well. The counsellor asked for a new term in order to be able to read the file, but the motion was denied on grounds that the arrest warrant ended that very day. In the end, the Sector 1 Court of First Instance in Bucureşti denied the renewal of the warrant for Daniela Tarău. However, she was not released.
A document dated June 26th, 2001, issued by the Sector 1 Court of First Instance in Bucureşti, showed that at 16.40, the prosecution introduced an appeal in public session against the decision not to renew the arrest warrant. Daniela Tarău claims that the court session that day ended by 14.00.
A statement by the court clerk shows that on June 26th, 2001, around 17.45, she called the Jilava Penitentiary Hospital where Daniela Tarău was detained, asking that she be brought to court for the appeal, but that the officer at the prison hospital informed her there was no one at the Registry Department to take the call and bring the defendant to court.
The appeal was judged by the Bucureşti Court of Appeal on June 26th, 2001 (on the same day as the first instance), around 18.00, in the absence of the defendant or her legal assistant. Legal assistance ex officio was not provided until the next day. The Court approved the prosecutor’s motion and decided the renewal of the warrant for Daniela Tarău for another 30 days, offering very succinct reasons. At the date when the application was brought to the European Court of Human Rights, Daniela Tarău had not been released yet. (She was released in December 2002).
The decision of the Court of Appeal was final and could not be contested by Daniela Tarău. She sent a memo to the general-prosecutor of the Prosecutor's Office by the Supreme Court of Justice demanding an extraordinary appeal, but her request was denied. A second similar memo received no answer.
The procedure before the European Court of Human Rights
Daniela Tarău sent the European Court of Human Rights a letter regarding the breach of her rights on December 24th, 2001. The complete application was lodged with the court on January 19th, 2002. The applicant claimed that state authorities violated her rights guaranteed by Articles 5, 6, 11, 13 of the Convention, and by Article 1 of Protocol 4 to the Convention.
The applicant submitted that her right to freedom and safety under Article 5 of the Convention was violated because: her arrest had no legal support in domestic legislation; she was erroneously and incompletely informed on the reasons for her arrest and on the accusations brought against her, which amounts to not being informed; for 32 days she was denied the right to be taken before a judge, the only instance exercising judicial power, and she was not released or brought to trial within a reasonable time; she was unable to take proceedings by which the lawfulness of her detention be decided speedily.
The applicant further submitted that her right to a fair trial under Article 6 of the Convention was violated in several respects: she was not informed completely and in detail on the nature and cause of the accusation brought against her; she did not have the adequate time and facilities to prepare her defence; she was not granted the right to have legal assistance of her own choosing and, during appeal, she was even denied legal assistance ex officio; she was unable to obtain the attendance and examination of witnesses on her behalf under the same condition as witnesses against her.
The applicant further claimed that national authorities violated her rights under Article 1 of Protocol 4 to the Convention, stating that no one is to be deprived of liberty for debts, since the only reason for her arrest was her inability to fulfil a contractual obligation.
The applicant also claimed that her right to freedom of assembly and association, as provided by Article 11 of the Convention, was violated, since the only reasonable explanation for the abuse she has been subjected to, was the fact that she had been part of the group who wrote the lyrics for the songs sang in 1990 by anti-government demonstrators in the University Square.
Finally, the applicant submitted that her right to effective remedy, as provided by Article 13 of the Convention, was violated.
The application was lodged with the European Court of Human Rights under no. 3584/02.
4. The Greek-Catholic parish Pruniş v. Romania
The de facto situation and internal proceedings
The applicant is the Greek-Catholic parish in Pruniş, who started internal judicial proceedings for the restitution of the Greek-Catholic church, cemetery and parish house in the commune of Pruniş, presently used by the local Orthodox parish.
In February 2001, the Turda Court of First Instance rejected the claim of the applicant as “ungrounded”, although the motivation of the court regarded more the lack of competence, under Decree no. 126/1990 which set the competence to solve such litigations with joint committees of the Orthodox and Greek-Catholic Church. During the appeal, on November 9th, 2001, the Cluj District Tribunal annulled the prior judgement and admitted the applicant’s claim, acknowledging that the Greek-Catholic parish has an uninterrupted right for use of property of the litigated goods. The decision of the Cluj District Tribunal was enforced on December 11th, 2001. On second appeal, the Cluj Court of Appeal supported the judgement of the Turda Court of First Instance by a final and irrevocable verdict passed on May 9th, 2002. As a consequence, the Orthodox parish came again in possession of the church, house and cemetery.
Before the second appeal, on February 12th, 2002, the Patriarch of the Romanian Church sent a letter to the Minister of Justice, denouncing the “impudence” of certain courts in Transylvania to judge applications by Greek-Catholic parishes regarding the legal status of their properties, and demanded that the Ministry “disciplined” its judges. The Cluj Court of Appeal was among the denounced instances. On February 28th, 2002, secretary of state by the Ministry of Justice Costache Ivanov remitted the Patriarch’s letter, together with a note, to the Cluj Court of Appeal.
The applicant contested the decision of the Cluj Court of Appeal, demanding an extraordinary appeal, but the contestation was rejected.
The proceedings before the European Court of Human Rights
The applicant lodged its application with the European Court on October 23rd, 2002, claiming that the decisions of national courts violated its rights under Articles 6, 9, 13 and 14 conjugated with 1, 2, 3 of the Convention, as well as Article 1 of Protocol 1 to the Convention.
Regarding Article 6, par. 1 of the Convention, which guarantees the right to a fair trial, the applicant claimed the right was violated in three separate situations: access to justice was denied by declining the competence of Courts in favour of joint committees consisting of the sides in litigation; the decisions of the first instance and appeal courts did not demonstrate the grounds for dismissal, because they cited the general lack of competence of the courts, yet dismissed the claim as “ungrounded”; the court of appeal proved not to be independent and impartial in relation with the intervention of the Ministry of Justice in favour of the Romanian Orthodox Church.
The applicant further argued that the irrevocable decision of the Cluj Court of Appeal deprived it of its possession, without this being in the public interest or fulfilling the principle of proportionality, which constitutes a violation of Article 1 of Protocol 1 to the Convention.
The applicant further submitted that the decision of the Court of Appeal resulted in the violation of its right to freedom of religion, guaranteed by Article 9 of the Convention, because she was deprived of its possessions which are essential to the exercise of this right. The applicant is a parish and depriving it of the church, cemetery and parish house makes it impossible for its believers to exercise freedom of religion.
The applicant stated that the abovementioned violations were connected, among other reasons, to religious discrimination, therefore infringing upon its rights under Article 14 of the Convention, securing the enjoyment of all rights without discrimination.
Finally, the applicant submitted that it has no effective remedy for any of the abovementioned violations, nor has it any legal means to obtain moral and pecuniary compensation for the prejudice.
The application was lodged with the European Court under no. 38134/02
VI. OTHER ACTIVITIES
1. The withdrawal of licence for the private television station OTV
The measure adopted by the National Audiovisual Council (CNA) produced satisfaction in the media, especially in the print press, but also among intellectual circles, irritated by the sometimes extremely aggressive tone of Dan Diaconescu’s show, and especially of some of his guests.
APADOR-CH and the Centre for independent Journalism (CJI) saw this measure as a threat against the freedom of expression. In their joint statement, the two organisations “consider that the decision of the CNA no. 94/12.09.2002 to withdraw the licence of the private television station OTV is unacceptable in a democratic society which guarantees the freedom of expression and information. The decision of the CNA never mentioned exactly which were the statements it considered “anti-Semitic, xenophobe, discriminatory, libellous”, nor which is the “serious prejudice to public interest”. The lack of clear and sound grounds in taking a decision leaves room for arbitrary behaviour in applying the law.
The decision of the CNA to withdraw the licence from a television station because some live declaration of guests in a show can lead to censorship or self-censorship, both dangerous for the freedom of expression and the right of the public to information. The audio-visual media organisations are not responsible for statements made in live transmissions by people invited in their studios, but the latter do bear responsibility for what they have said. Therefore, if the opinions of Senator Corneliu Vadim Tudor – the guest of the shows mentioned by the CNA – are considered “anti-Semitic, xenophobe and discriminatory”, they may be the object of investigations, under the Criminal Code, Ordinance no. 137/2000 (approved by Law 48/2002) on the prevention and sanctioning of all forms of discrimination and Emergency Ordinance no. 31/2002 on the banning of fascist, racist and xenophobe organisations and symbols, which makes such statements illegal. If any politician, including the President or Prime Minister, feels insulted by the statements of guests during live programmes, he or she is allowed to take the legal steps available to any person who feels insulted or libelled.
Under no circumstances should a television station be closed for merely being the channel through which the respective statements were circulated. Moreover, the CNA chose from the very beginning the most severe legal sanction and applied it immediately, ignoring the right of the OTV station to contest the decision within 15 days before an administrative tribunal, as provided by art. 95, par. 2 of the Audiovisual Law.
Aware of the racist and xenophobe danger, and being in no way supporters of the OTV policy, APADOR-CH and CJI believe that withdrawing the licence is not an answer against racism, but a mere infringement of the freedom of expression and information, and that it sets a dangerous precedent. The organisations ask the CNA to go back on their decision no. 94/2002 and on the recommendation remitted to cable operators, so that OTV may resume its activity, at least until a court passes a definitive judgement on the matter.
2. The project for the familiarization of journalists and counsellors with European standards regarding the freedom of expression (together with the Press Monitoring Agency)
The project included ten seminaries in ten different locations, with the participation of counsellors and journalists. Representatives of APADOR-CH described problems raised by the domestic legislation as well as the jurisprudence of the European Court in Strasbourg on the freedom of expression. The project was closed by the publication of a Legal Guide for Journalists.
3. The project for the assessment of compatibility between the Romanian penitentiary legislation and practice and the European and UN standards (together with the Legal Resources Centre)
The project required a compared analysis of the current penitentiary legislation in Romania and of the Standard Minimum Rules of the UN and of the Council of Europe. Also, visits were organised to six penitentiaries, in order to assess to what extent does the penitentiary practice in Romania match the international norms, but also the specific domestic legislation.
4. The free legal consultation program
Initiated in 1994, the program also continued during 2002. Once a week, a law firm offers free legal advice to anyone interested, regardless of the legal nature of their problems. The average number of persons benefiting from the counselling program is 12-14 per week. The large majority of cases were of civil nature.
CONCLUSIONS
1. Nothing was done to bring domestic legislation with direct impact on civil rights to the European standards. The ongoing dispute regarding “press crimes” (art. 205 on insult, art. 206 on libel, art. 207 on proof of truth, art. 238 on offence against authority and art. 239, par. 1 on “verbal outrage” – offence against civil servants – of the Criminal Code) clearly indicated the lack of political will to ensure the freedom of expression, by decriminalizing these so-called “offences”. Other important laws such as the Law on national security, the Criminal Code, the Criminal Procedure Code, the Law on the enforcement of penalties, should have been drastically amended or completely replaced, which did not happen until the end of 2002.
2. The few months which have passed since the new Law on Police and of the Status of the Police Officer were not enough to assess if these normative acts have a real and positive impact on the relation between police workers and communities or persons. APADOR-CH has noted however, not without distress, that the number of situations when the police used gunfire increased over 2002. The association has constantly reminded that the only situation justifying the use of firearms is the real and imminent threat against a person’s life. Unfortunately, the new Law on police has increased the number of situations allowing the use of firearms, by referring to Law 17/1996 on the regime of arms and ammunition.
3. The situation in the penitentiary system continued to improve, although the pace was too slow to make an impact on the life of detainees. APADOR-CH points out again to the need for a new law regarding the detention regime (the current law was passed in 1969 and is completely obsolete) and for a Status of the penitentiary staff, to provide for the demilitarisation of the system. Overcrowding remains one of the most serious problems in penitentiaries. It will not be solved unless the criminal legislation is modified and the budget of the General Directorate of Penitentiaries is substantially increased.
4. In what concerns the freedom of religion and faith, the obstacles are still raised by the Orthodox Church against the restitution of church buildings to the Greek-Catholic denomination. The administrative recognition of “Jehovah’s Witnesses Religious Organisation” as a cult has not been completed either, although the Supreme Court of Justice has passed a final verdict in that respect as early as 2001 (the Ministry of Culture and Cults had merely to enforce the court order by issuing a memorandum).
5. The pressures of power upon the freedom of expression in general, and upon the freedom of the press in particular have increased, most obviously in the audio-visual domain. The court cases against journalists accused of insult or libel are still an ongoing practice.
6. The application of the Law on access to public information is a positive aspect. In some situations, information could be obtained according to the procedure provided by Law 544/2001, while in others court action was necessary.
7. In what concerns national minorities, it must be noted that, after a long delay, the National Council for Combating Discrimination in all its forms has been finally established. Unfortunately, at the end of December 2002, a Government Decision practically deprived the council of its independence.
8. APADOR-CH considers that, during 2002, the Government and Parliament sent contradictory signals regarding the protection of civil rights, although the negative aspects prevailed.
The activities of APADOR-CH have been financially supported by:
OPEN SOCIETY INSTITUTE (USA)
NATIONAL ENDOWMENT FOR DEMOCRACY (USA)
GLOBAL MINISTRIES OF THE UNITING CHURCHES (NETHERLANDS)
AGIR ENSEMBLE POUR LES DROITS DE L‘HOMME (FRANCE)
ARTICLE 19 (UNITED KINGDOM)
THE EUROPEAN COMISSION DELEGATION IN BUCUREŞTI
[1]For details, see chapter 5 of “The Limitation of Access to Information in the Romanian Legislation”, a report published by APADOR-CH on its Internet site http://www.apador.org.
[2] Interested persons may obtain, upon request, the complete version of the association’s comments and suggestions, in Romanian. The full text is not included on the association’s internet site because it refers to a draft bill submitted to the Parliament, and which is, of course, prone to subsequent changes made by both the Senate and the Chamber of Deputies.
[3]See note no. 1.
[4] Its full version was published in “Adevarul” newspaper of October 30th, 2002, and may be also viewed at http://www.apador.org
[5] On December 18th, 2002, The UN General Assembly adopted the text of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments. Romania has already signed the document. Here is the definition offered by the document for “deprivation of freedom”:
Art. 4
1….
2… deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will by order of any judicial, administrative or other authority.”