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