The year 2004 was marked by a
deterioration of human rights and civil liberties in
For instance, in what concerns the freedom of expression, direct political control was replaced by more subtle forms of pressure, of economic nature. Suspicions about the use of such forms of pressure became certainty after a national newspaper published a document issued by the Government General Secretariat, requesting all ministries and public institutions to submit the 2004 publicity budgets to the Prime Minister, for approval. Thus, public money was divided among the various media institutions according to political preferences, turning into a tool of control against critical voices.
Under such circumstances, with the PSD controlling the most important media channels, including public radio and television – the main sources of information for rural areas – in the spring of 2004 a group of NGOs, APADOR-CH among them, created the Coalition for a Clean Parliament. It was meant to give people accurate information on candidates for the Parliament.
Besides the economic constraints imposed to media institutions, journalists continued to be subject to criminal trials, which are considered by the European Court of Human Rights as a violation of freedom of expression. In 2004, ECHR issued two more rulings against Romania by virtue of Article 10 of the European Convention of Human Rights – the cases Sabou and Pârcălab, as well as Cumpănă and Mazăre, both cases of criminal sentences against journalists for calumny. The former was supported by APADOR-CH and is also an instance of violation of private life, since one of the victims was automatically deprived of certain rights. From this point of view, the ECHR decision should lead to changes into the domestic criminal law.
The tendency of courts to sentence journalists and media institutions to pay ever higher amounts of money as penalties in both civil and criminal cases was also worrying, since the fines are in themselves a form of pressure, resulting into self-censorship.
There have been other attempts to limit the freedom of the press in 2004, such as a Bill on the protection of individual privacy, name, image, residence and correspondence, proposed by members of the ruling party. The proposal generated serious protests from non-governmental organizations, including APADOR-CH, and was rejected by the special parliament committees. Also in terms of legislation, the new Criminal Code, approved in June 2004 and coming into effect in June 2005, represents a step forward in what concerns the freedom of expression, but still preserves certain provisions which are incompatible international standards. Calumny is still a criminal offence, although it is no longer punished by prison. Communication of false information also remains a criminal offence, despite constant criticism from APADOR-CH. State and professional secrets, as well as certain foreign officials, are protected by the criminal law to an unjustified extent.
In 2004, APADOR-CH continued to monitor the implementation of the Law on free access to public information. The efforts of non-governmental organizations have started to bear fruit: most public authorities and institutions now have officers in charge with information requests, and requests which do not pose special problems are usually granted. It is not the case, however, of complex requests, or requests on “delicate” matters, which are often ignored. Moreover, some public authorities or institutions create administrative/financial obstacles for those who try to obtain information, such as, for example, huge fees for document photocopying (30 cents, 60 cents or even 3 USD for one page). APADOR-CH managed to solve a few such individual cases (the Şelimbăr local council, the General Prosecutor’s Office), but a unitary norm is needed for all public authorities and institutions to public to regulate the photocopying fee and prevent further abuse.
The reform of the judicial system and the independence of justice remained a problem during 2004. Although some steps were made towards these objectives both in 2003 and in 2004 (such as the elimination of appeals in cancellation and in criminal matter, the time limit for preventive arrest, introduction of court control over preventive arrest, searches and surveillance), some problems remained unsolved: the jurisdiction of military prosecutors and courts over civilians, the restricted access of lawyers to their clients during preventive arrest, etc. Nor have the three justice laws adopted in June 2004 have managed to solve of the problems of justice reform: courts are still financially dependent from the executive (excepting the High Court of Cassation and Justice); prosecutors are still on equal footing with judges, etc.
The demilitarization of police in 2002 has not brought about the expected changes. The problems repeatedly underlined by APADOR-CH remained largely the same in 2004: “leading” people to the police station, an administrative measure involving deprivation of freedom, is not accompanied by the same guarantees as detention and arrest (since, the high number of abuses), the disproportionate use of firearms, aggression cases, impunity of those accused of applying treatments in breach of Articles 2 and 3 of the European convention of Human Rights. In this respect, 2004 brought about the first two ECHR decisions against the Romanian state for infringements of article 3 of the European Convention, for both police abuse and lack of effective investigations into alleged abuse, as well as the first admissibility decision on a cause which has the Romanian state accused of infringement of the right to life. Moreover, another ECHR decision, in the Notar case, triggered a change in the stamp duty legislation, eliminating the respective tax in the case of victims of abuse provided by Articles 2 and 3 of the European Convention.
The year 2004 also brought about the long awaited demilitarization of prison staff, as well as new legislation on custodial sentences (the latest expected to become effective in June 2005, alongside the new Criminal Code). Both laws are a big step towards a reform of the prison system, but to what extent their provisions will be implemented remains to be seen. Aside from the legal framework, the material conditions of detention are still precarious. Overcrowding, lack of adequate medical treatment, lack of activity and of efficient social reinsertion programs are still serious drawbacks of the prison system. Moreover, the activity of social reinsertion and observation services (Probation Services), which should double the activity prison educational departments is almost inexistent in this field. Services concentrate their human and material resources (rather limited, as it is) in preparing pre-sentence reports and monitoring persons on probation.
In what concerns the protection of privacy, 2004 failed to bring any remarkable progress. The 1991 Law on National Security is still effective, and has not been ammended. At least five bills on national security have been submitted to the Parliament, some of which containing the so much needed changes. None of them has even been debated.
The harassment of certain religious groups labeled by the authorities as “sectarian” continued during 2004: Ananda Marga, Family International and especially MISA. In what concerns the latter organization, APADOR-CH protested against the display of crude force during searches at MISA members’ residences, when goods were destroyed, people under investigation were publicly humiliated, possessions were confiscated, etc.
2004 was an election year, when all the three categories of elections took place: local, parliamentary and presidential elections. In terms of volume of work, the activity was at the same level as in previous years: the Parliament passed 602 laws and the Government issued 142 emergency ordinances and 94 ordinances. That means a total of 838 acts of primary legislation.
In 2004, too, there were tendencies to regulate through secondary legislation (acts subordinated to parliamentary laws: government decisions, ministerial orders, regulations, etc). Thus, 2373 government decisions and 1002 ministerial orders were issued during 2004. Both figures are substantially higher than in 2001, for instance (819 government decisions and 556 ministerial orders).
The great number of acts adopted each year and the tendency to regulate chiefly through secondary legislation lead to legislative instability and create an objective barrier for citizens (the beneficiaries of these acts), who are faced, year after year, with a huge „wave” of regulations they are supposed to know and observe. In 2004, for instance, a citizen who wanted to be fully informed needed to read 4213 such acts (laws, ordinances, government decisions and ministerial orders) – an impossible task, of course. Moreover, some of the regulations amend the very laws they are based on. As a consequence, the legislation lacks predictability (any person should be able to know precisely what are the legal provisions and the consequences for infringing each law).
Among the laws passed in 2004, a few are worth mentioning as relevant for APADOR-CH in terms of its constant preoccupation for civil rights:
-Law No. 27/2004 approving Government Ordinance No. 77/2003 regarding the amendment and completion of Government Ordinance No. 137/2000 on the prevention and sanctioning of all forms of discrimination. Unfortunately, even after several upgrades, the law still had the same widely/vaguely defined terms, that reduced the predictability of the act.
-Law No. 28/2004 Government Ordinance No. 108/2003 on the abolition of contraventional prison. This is a logical step, since art. 23 of the Constitution sanctions only crimes, not contraventions, by deprivation of freedom.
-Law No. 294/2004 on the execution of sentences and measures taken by the judiciary during criminal trials. The law, to become effective on June 29, 2005, will replace the existing law, No. 23/1969, after 36 years.
-Law No. 301/2004 – the Criminal Code. It is a complex law, bringing conceptual and structural changes in the matter of criminal law. When it becomes effective, on June 29, 2005, it will abrogate the current criminal code (Law. No.15/1968), after 37 years. Parliamentary debates around the criminal code bill started as early as 2003. The 2003 Report included the comments made by APADOR-CH about the bill.
-Law No. 303/2004 on the status of magistrates.
-Law No. 304/2004 on judicial organization.
-Law No. 317/2004 on the Superior Council of Magistracy.
APADOR-CH made several observations and proposals regarding the latter three laws (No. 303, 304 and 317 of 2004) also known as the justice reform laws. These observations and proposals are detailed below. As a general comment, the laws do not solve the matter of efficiency and responsibility in the act of justice. They unfortunately create the framework to support the existing staff structure, which has generated the widespread negative perception of justice.
-Law No. 550/2004 on the organization and functioning of the Romanian Gendarmerie. The law still includes provisions that violate human rights, as pointed out by APADOR-CH in its comments regarding the draft bill, which are widely presented in the report below.
-Law No. 576/2004 for the modification and completion of the Criminal Procedure Code. This law eliminated the appeal in cancellation in criminal matter, as a logical step after eliminating the appeal in cancellation in civil matter.
Besides its observations regarding laws passed during 2004, APADOR-CH also examined other bills – which were not adopted – but which posed certain problems in terms of human rights. APADOR-CH asked for some of the bills to be rejected; others were still under debate by the end of 2004.
For example, in September 2004, APADOR-CH asked for the rejection of a bill regarding the protection of individual privacy, name, image, residence and correspondence. In a nutshell, the bill aimed at “shutting down” the media. The arguments advanced by APADOR-CH are presented in the report below. The bill has not come under debate in the chambers.
In October 2004, APADOR-CH issued some observations and comments regarding the bill on the establishment, organization and functioning of the National Control Authority for Personal Data Management. The bill was still debated in Parliament at the end of 2004.
1. The Bills on judicial organization and the status of magistrates
During 2003, two bills (one on judicial organization and the other on the status of magistrates), designed to become a first step in the Romanian justice reform, were submitted to the Parliament. At the time, APADOR-CH issued some comments on the two draft bills (see the 2003 Report). After being voted, the bills were referred back to the Parliament by the President of Romania. APADOR-CH formulated new comments on the two bills, considering they were far from satisfying their objectives, and sent these observations to the MPs for documentation and analysis.
COMMENTS BY APADOR-CH REGARDING THE LAW ON JUDICIAL ORGANIZATION
The Romanian Government has informed the European Commission that the draft Law on judicial organization was going to be on public debate until the end of April, 2004. In order to launch the promised public debate, the draft bill was returned to the Judicial, Discipline and Immunity Committee of the Deputy Chamber, upon its request. The main objection of the European Parliament regarding the Romanian judicial system was the lack of judicial independence caused, among others, by the excessive powers of the Minister of Justice (member of the Government) and the lack of budgetary autonomy of the courts.
APADOR-CH suggested the following changes, which it considered as minimal conditions for the reform of the judicial system.
1. In its current form, the draft bill does not ensure judicial independence. In order to legally ensure judicial independence, the following amendments must be made:
1.1. Abolishing the positions of general judicial inspector and of inspecting judge. According to Art. 124 of the draft bill, these magistrates inform the Minister of Justice about “the functioning of the courts, the celerity of trials and the conduct of judges”. Obviously, as already demonstrated by the practice, such “inspectors” are an instrument of political pressure and of intimidation against judges, originating before 1989 and having no place in a democratically reformed judicial system. Court presidents and the Superior Council of Magistracy (CSM) must be the only ones in charge of the celerity and good functioning of courts, while the responsibility to discipline the judges must also fall in charge of the CSM.
1.2 Eliminating the financial power exercised by the Ministry and Minister of Justice over the courts. Article 116 of the draft bill provides that the Ministry of Justice administers the budgets for the courts of appeal, tribunals and district courts, while the Minister of Justice is the main credit manager, which means that he is „ruling the roast”. It is crucial that courts of all ranks, starting from local courts, are given the status of credit manager. Without financial independence, the objective of real judicial independence cannot be reached.
1.5. Removing the authority of the Minister of Justice to approve by ministerial order the Court Judicial Organization Regulations (art. 126). The Regulations must be approved solely by the CNM. A similar solution should also be found in the case of the Administrative Regulations for Prosecutor’s Offices (art. 127).
1.9. The court panel must only be changed in exceptional cases, clearly described by the law and explained by a motivated court decision.
1.10. Abolishing military courts (art. 121). The existence of military courts (and of military prosecutors) can only be justified in case of war. Besides the anachronism of such an institution, it should also be added that military judges will never be truly independent, even if the judiciary as a whole becomes independent, since they will be subordinated to the Ministry of Defense (Government). The draft bill does not only keep military courts into place, but also stipulates a separate law to govern their organization and functioning.
2. Revisiting the position of the Public Ministry, Prosecutor’s Offices and prosecutors.
Unfortunately, the draft bill deliberately maintains a false equality between judges and prosecutors. The whole draft bill needs to be revisited in that respect. We shall therefore point out only a few of the anomalies of the proposed system. First of all, the law on judicial organization should not include provisions on the Prosecutor’s Office and prosecutors’ attributions. The draft deliberately maintains – due to influences from prosecutors inherited from the dictatorial regime – a mixed judicial-prosecutorial system, creating an intended confusion in favor of the prosecutors, who want to preserve their status and much of the powers they enjoyed during dictatorship. The authors of the draft bill made a serious conceptual error: prosecutors, who are subordinated to their superiors and the Government (articles 60, 61), are only entitled to press charges in the name of the state (representing, in its turn, the victims) in criminal trials. It is illogical (and demagogical) to believe that, while representing the People, prosecutors may also act on behalf of the defendants or in finding the truth, when this is not in favor of the accusation. The truth, as established in courts, is the judiciary truth, decided by judges based on evidence brought by prosecutors and defense lawyers.
On the other hand, in exercising their function as public prosecutors, in the name of the People, prosecutors must be able to be independent from political pressures and intimidation by the defendants. The draft bill does not give them, however, the needed independence, maintaining prosecution as an obedient instrument of the government, as facts have often demonstrated.
3. Beside the modifications suggested under chapters 1 and 2, other changes – also minimal – are needed to provide, besides judicial independence, the equitable character of trials.
3.1. The right to defense must be guaranteed explicitly during the phase of preliminary investigations. In practice, the police run the same activities then as after the investigations are officially beginning. Article 12 of the draft bill should be rephrased as follows: “Over the length of the trial as well as during the preliminary investigations, the parties, or according to the case, the perpetrator or the victim, have the right to be assisted or represented by legal counsel…”
3.2. The prosecutor who prepared the indictment must not be allowed to appear in court (art. 63, par. 3). The draft bill legalizes the participation of the prosecutor who made the indictment. Obviously, the prosecutor who decided to send a person to court (or perhaps even ordered or asked for the preventive arrest) can not be objective.
3.3. The draft bill must include the explicit right of the judge to request and receive all the information, documents and papers he/she deems necessary in trying a cause, irrespective of who detains them or what the nature of the case is. No authority/institution may refuse, under any circumstance, the request of the judge. Only this kind of provision might reduce the exaggerated powers detained by certain public authorities/institutions, and in the first place the intelligence services and structures. Surprisingly, the draft bill only stipulates the right of the prosecutors to ask for and be given access to secret service information, ignoring the need that judges, too, or chiefly judges, benefit from this right.
3.4. The obligation to publish in the Official Gazette all orders issued by the General Prosecutor (art. 72 and 80) must be stipulated in the draft. The Prosecutor’s Office is a public authority and must ensure the transparency of its activities, all the more so when its orders include procedures that people need to know.
COMMENTS BY APADOR-CH REGARDING THE DRAFT LAW ON THE STATUS OF MAGISTRATES
In its current form, the draft bill does not ensure judicial independence and does not eliminate the powers through which the Minister of Justice and the whole executive may put pressure on judges and thus influence the act of justice. In order to ensure judicial independence by law, the following minimal amendments must be made:
1. Putting an end to the status of equality between judges and prosecutors, which is maintained throughout the draft bill, with the exception of stability, which is a mere matter of wording without any effect, since the whole career of judges and prosecutors – naming, promotion, disciplinary sanctions, removal from office – are regulated in very similar ways. The main argument in favor of the elimination of the equality status is that, according to the draft Law on judicial organization, prosecutors work in a hierarchical system under the control of the Minister of Justice, who is a member of the Government. In many of its rulings against Romania, the European Court for Human Rights noted the lack of independence of prosecutors (among others, cases Vasilescu, Brumărescu, Pantea), precisely for the above reason.
Of course, the independence of prosecutors must be ensured, but not by making them equal to judges, the only ones who have the power and responsibility of delivering justice.
A disastrous effect of such equality over the justice act comes from the possibility that, at any moment during their careers, prosecutors be appointed as judges, as if they had a judge’s years of work and experience. It is at least necessary that prosecutors who want to become judges should at least undergo professional and psychological testing in order to assess their capacity to fill the balanced and impartial role of a judge.
It is absolutely necessary to modify art.50, par.1 of the draft bill, allowing prosecutors with at least 15 years of experience – as prosecutors – to become judges of the High Court of Cassation and Justice. It is unacceptable that prosecutors who have worked for 15 years or more in a hierarchically subordinated position, both inside the system (to the head prosecutor) and outside (to the executive) and have only worked to put people under accusation, should become judges of the supreme court of law, which is supposed to be the essence and symbol of justice.
2. In the same context, art. 107, par. 1, stipulating that all provisions in the draft bill be applied to military judges and prosecutors, should be removed. First of all, justice must be demilitarized by removing the two abovementioned functions. Secondly, military judges and prosecutors must not be allowed to become civilian judges, especially not with the supreme court of law. Their subordination to the executive, as members of the military – impairs their capacity to act independently and impartially.
3. The decision of taking disciplinary action and of conducting preliminary inquiries should only belong to the Superior Council of Magistracy (CSM), and the investigation can be only conducted by inspecting judges appointed to that purpose by the CSM. It would be desirable that CSM inspecting judges be part of an independent or at least autonomous structure attached to the CSM. The inspecting judges could be elected during elections for the CSM.
The Minister and Ministry of Justice – the political players – must have no power whatsoever over the career of judges.
The decision of exerting disciplinary action and conducting preliminary inquiries must be taken by the CSM in the case of prosecutors, as well.
4. Dismissing the “commission” made of the Chairman of the Constitutional Court, the Chairman of the High Court of Cassation and Justice and the Minister of Justice, charged with analyzing nominees for the position of judge at the High Court of Cassation and Justice and handing proposals to the CSM (art 50, par. 4). This provision in the draft bill shows once again that the executive wants to have a word in appointing Supreme Court judges. Article 50, par. 4 must be completely removed, allowing the CSM to examine all nominations Supreme Court judges directly and unscreened.
5. The modification of transitory regulations allowing that, until the Law on the organization of the CSM becomes effective (at an unspecified date, but not before 01.01.2005), persons loyal to the current government be appointed as judges and prosecutors, although they lack the independence and impartiality required by the judicial position (art. 106, par. 2). The risk of such politically motivated appointments is demonstrated and increased by the possibility to appoint as judges and prosecutors persons of legal background working for “the public administration, the Parliament, the Presidency, the Constitutional Court, the Court of Accounts, the People’s Advocate or the Legislative Council”. People hired by these institutionswere generally selected for reasons of political loyalty to the current government. Besides, the accusations of corruption and lack of efficiency made by European institutions against, for example, today’s public administration, should determine one to avoid appointing members of the aforesaid administration for life, as judges or prosecutors.
6. Eliminating the “recommendation” made by the Minister of Justice for the appointment of the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, his first deputy and deputy (art. 52, par. 1). It is totally sufficient that the CSM make one nomination for each of these positions after analyzing all the candidates. In what concerns such decisions, the Minister of Justice, who is a member of the Government, must play no role whatsoever.
12. Modifying the provision according to which judges and prosecutors may be “searched, retained or arrested” with the approval of the CSM “president” (art. 102, par.2). The President of the CSM, that is one person, may be vulnerable to pressures of political or any other nature, while the risk is considerably reduced if the decision is taken by the judiciary section (in the case of judges) and the prosecutors section (in the case of prosecutors) of the CSM, while maintaining, of course, the confidentiality of the decision, in order not to interfere with the investigation. Such a modification is all the more logic since in the case of flagrant crimes approval is not required (art. 102, par. 3).
Modifying the provision according to which, when caught in the act, judges and prosecutors may be searched or arrested without approval from the CSM, but with the obligation to inform the CSM “without delay” (art. 102, par. 3). The wording “without delay” is much too vague and must be accompanied by the mention “in at most 6 hours”.
18. Finally, art. 92 of the draft must be modified, in order not to limit the access to justice for victims of judicial errors and to observe the decision of the European Court of Human Rights in the case of Dalban vs. Romania. First of all par. 4, art. 92 stipulates an unjustified limitation of the right to compensation for damage caused by judicial errors in cases of civil, administrative, etc, trials – other than criminal. The current draft stipulates that this right can only be enjoyed after “a definitive ruling by another court regarding the criminal or disciplinary responsibility of the magistrate in committing the judicial error”. Or, the state is liable for all judicial errors, irrespective of the criminal or disciplinary responsibility of judges. The article of the draft bill also contravenes to art. 998 of the Civil Code, which provides for liability even in case of involuntary miscarriage of justice.
Another problem regards par. 5 of art. 92, stipulating that “A person is not entitled to compensation if, during the trial, he/she has contributed in any way to the committing of the judicial error by the magistrate”. APADOR-CH asks for this paragraph to be removed, since it arbitrarily limits the right of the victim to seek redress. At worst, the wording “contributed in any way” could be replaced by “determined”.
Also, the right to a compensation trial is lost by negative prescription after one year (art. 92, par.8), an excessively short term that indicates the tendency of the state to reduce at maximum the conditions in which citizens are able to make the state answerable. At the same time, the term in which a citizen may be made answerable for tax liabilities to the state is of five years. Citizens and state must be placed under equal terms in this respect. The state is no less answerable to citizens than the citizens are to the state. As a consequence, APADOR-CH asks that the negative prescription is increased to five years, in order to treat the citizens and the state equally.
2. The Draft Bill regarding the Superior Council of Magistracy
To complete the justice reform legislative package, the Ministry of justice has prepared a Draft Bill on the organization and functioning of the Superior Council of Magistracy, which was published on the Ministry of Justice web site, for public debate. APADOR-CH prepared its comments within the legal term, hoping they would be taken into account before the Government voted and draft and handed it in for debate to the Parliament.
Comments by APADOR-CHRegarding the Draft Bill on the Superior Council of Magistracy
(As published on the site of the Ministry of Justice, for public debate)
APADOR-CH considers that the draft bill still contains provisions that fail to secure the main role of this law, the real independence of the judicial power. The Association’s objections point out to the following aspects:
1. According to the current version of the draft bill, the “authority” in charge to decide the career of judges is made up of 10 judges (who, unfortunately, may also be military judges, subordinated to the executive) 9 prosecutors and other persons, the 9 not being selected by the judiciary. This is exactly the reason why APADOR-CH asks, in the following paragraphs, the transfer of certain essential competences regarding the career of judges from the CSM assembly to the Judicial Section.
2. The transfer of attributions regarding the appointment, promotion, transfer, suspension and removal of judges and prosecutors from the assembly of the CSM to that of specialized Sections (articles 37, 39 and 40 of section 2 – the attributions of the CSM assembly - should be moved to section 3 – the attributions of Sections). The careers of judges must not depend on the will and votes of prosecutors, who are part of a hierarchy controlled by the executive. Without the above mentioned modification, the creation of separate sections for judges and prosecutors remains a mere artifice meant to deceive the European institutions. There is also the possibility that the assembly voted exclusively proposals submitted by the sections, under strict and limitative regulations that made it impossible to shun those proposals. Likewise, being part of the executive, prosecutors must not have any saying on the annual budget of courts and of the National Institute of Magistrates (art. 39) or on the organization and functioning of courts (art. 40). Such decisions must be transferred to the two sections of the CSM.
3. The elimination of military courts and prosecutor’s offices. APADOR-CH takes a firm stand on this point. The first step has already been made by closing the military section of the High Court of Cassation and Justice, which, unfortunately, has not been followed by any other changes. Military judges and prosecutors cannot possibly be independent since they are subordinated to their hierarchical superiors. Their presence in the CSM places a doubt on the real independence of the institution. As a consequence, APADOR-CH asks that article 15 be removed from the draft bill.
4. The power to approve the search, detention or preventive arrest of judges, prosecutors or assistant magistrates must be transferred from the competence of the CSM president to that of the Sections, according to the position of the person under investigation (for judges and assistant magistrates, the Judicial Section; for prosecutors, the Prosecutor’s Section) (art. 26, par. 2, letter e; to be moved to section 2, art 43 on the attributions of Sections). APADOR-CH believes that such decisions are not supposed to be taken by a single individual, the head of the CSM, who is exposed to pressures and may be influenced by the government. If decisions in this respect are taken by the Sections, the risk and the chance to give discretionary powers to a single individual are substantially reduced.
3. The bill on the protection of individual privacy, name, image, residence and correspondence
The draft bill was brought before the Parliament by a member of the government party. As 2004, an election year, was from the beginning characterized by strong clashes among political parties, the purpose of the proposed law was clear from the very start: curbing or even suppressing the critical comments of the media about political players involved in the elections. The bill was not only uncalled for, it was also contravening to European principles and documents on the matter. APADOR-CH firmly expressed its position and asked for the bill to be rejected.
THE POSITION OF APADOR-CH REGARDING THE BILL ON THE PROTECTION OF INDIVIDUAL PRIVACY, NAME IMAGE, RESIDENCE AND CORRESPONDENCE
APADOR-CH signed a protest alongside several NGOs, as a first reaction of the civil society against a bill aimed at „shutting down the press”. Fully sharing the indignation of the other signatories, APADOR-CH made the following comments:
2. The content of the bill violates the European principles designed for cases when the exercise of the two rights under debate – the freedom of expression (mainly the freedom of the press) and the right to privacy – are conflicting with each other.
3. One of the European principles which is severely infringed upon is the total lack of protection for the freedom of expression and for one of its most important components – the freedom of the press. The bill suggests an illegal and prohibited hierarchy between the two rights under debate.
Under such circumstances, art. 1, par. 2 of the bill stating that the two rights „have equal value” remains purely declarative, as the announced „equality” is annulled by the other provisions of the bill. Articles 3 and 8, providing for exceptions, that is situations and circumstances when „the exercise of rights making the object of the present law” (the right to privacy, name, image, residence and correspondence) may be restricted, show clearly that the right of the public to be informed and the correlated right of the media to inform are not among the possible exceptions. In fact, the bill limits the freedom of the press and the right of the public to information to an unacceptable extent, hiding under the appearance of a bill that protects the right to privacy.
4. Another principle that was seriously infringed by the bill was the lack of any distinction between ordinary people and public persons (including politicians), respectively between the different levels of protection of privacy for the two categories. The bill proposes a large protection of privacy (image, name, etc.) for any person. Moreover, since the press is notoriously not interested in ordinary persons, it is obvious that the illegal and illegitimate purpose of the bill is to protect public persons, and mainly politicians, from media attention and public control.
The decisions taken by those elected or appointed in a public office, who occupy positions of essential importance for citizens, can be – and, indeed, are – influenced by a series of personal elements which, according to the bill, should remain hidden from the public opinion, under the pretext of privacy. But „ordinary people” have the right to information regarding those who exercise direct influence over their lives, including more private aspects, if these are connected to the way they fulfill or fail to fulfill their official duties.
5. The bill under debate is obviously designed in order to leave the freedom of expression – and mainly the freedom of the press – void of content, with the clear intent of suppressing investigative journalism and obstruct the right of the public to receive information.
7. The prohibition imposed to media institutions and left to the competence of courts, to publish „documents, information, images and recordings”, as provided by art. 25, par. 3 of the bill, represents a very dangerous form of prior censorship, contravening European principles.
8. The bill also represents an obstacle in the long boasted fight against corruption. The fight cannot possibly succeed without the essential contribution of the media, especially of investigative press. Corruption act do not take place in public places, but far from sight. Preventing the media to investigate suspicious persons under the pretext of protecting privacy means to encourage corruption. On the contrary, journalists must be encouraged to run their own investigations and publish the results, thus supporting the authorities. Or the bill prohibits photographing, taping, observing – even private objects or properties, publishing private information, images and documents „in a way that misrepresents reality” – limitations which render such investigations impossible.
11. Also, the definition of „public interest”, risky and most of the times incomplete, is here extremely limited and summary, therefore very dangerous (article 4 letter q). For instance, the definition retained by the bill does not include the discovery or unmasking of a crime or any other violation for the law, which must be considered part of public interest. Moreover, limiting the notion of „public interest” by the determinants „legitimate and pertinent” in art. 8, letter b is completely wrong. „Public interest is always legitimate and „pertinence” is always subjective.
12. Also wrong is the requirement of consent for retransmitting information, images, recordings, etc., when the person in cause divulged the information of agreed to the transmission in the first place (article 8, par. 2). There is no condition required for the dissemination, publishing or transmission of information, once it entered the public space.
For all these reasons, as well as for other which have not been mentioned here, APADOR-CH asked for the bill on protecting individual privacy, name, image, residence and correspondence to be REJECTED.
4. The Draft Bill for the modification of the Romanian Gendarmerie Law
In 2003, the General Inspectorate of Gendarmerie (IGJ) made an attempt at modifying the legislation governing the organization and functioning of the institution. APADOR-CH made some critical comments (See the 2003 Report) regarding the proposal that never materialized into a draft bill. In 2004, the Government brought before the Parliament a draft bill aimed at modifying the Gendarmerie Law, maintaining those provisions which could lead to infringements of human rights.
Observations by APADOR-CH to The Draft Bill for the Modification Of the Romanian Gendarmerie Law (Nr.116/1998)
1. By the nature of the institution and its attributions, the Romanian Gendarmerie takes direct part in concrete, immediate action. Therefore, the gendarmes are confronted with flagrant contraventions or criminal offences. Art. 19, letter q, gives them the right to ascertain contraventions and apply sanctions, while letter r allows them to fill in „the necessary documents to start criminal investigations for offences ascertained during specific missions in accordance with art. 214 of the Criminal Procedure Code” (our highlight). Art. 214, par. 4 of the CPC stipulates that „in the case of flagrant offences”, the same bodies (ascertaining bodies) are under obligation to immediately hand the perpetrator over to the prosecutor, along with the paperwork and the material evidence” (our highlight).
But art. 35 of the bill allows gendarmes to lead perpetrators „to the nearest police or gendarmerie station” instead of handing them over to a prosecutor. Thus, art. 35 comes in contradiction with the Criminal Procedure Code and encourages human rights violations (the right to personal freedom, the right to defense, etc.). Already used by the Romanian Police, the practice of „leading” a person to the station has been constantly criticized by APADOR-CH. „Leading” someone to a place that one is unable to leave freely means deprivation of freedom. The optional Protocol of the UN Convention against torture includes a similar definition for deprivation of freedom.
To conclude, the Law on the organization and functioning of Police infringes the international human rights documents and practices by authorizing an unacceptable form of deprivation of freedom, and it is hard to admit that another public authority – the Romanian Gendarmerie – should assume the same „right”.
APADOR-CH asks that art. 35 of the draft bill should be eliminated.
2. The Association also considers that art.20, par. 1 of the bill includes an inappropriate provision stipulating that physical or legal entities should be under obligation, when requested by gendarmes, to provide „the information, data and documents they need to fulfill their duties…”. The Gendarmerie is not – and should not be – a criminal investigation body or an information body. As a consequence, gathering information, data and documents is unjustified. Moreover, physical and legal entities cannot be placed under obligation to contribute to the activity of a public authority.
APADOR-CH asks that the provision should be eliminated.
3. APADOR-CH asks that, during the exercise of their duties, gendarmes should wear, at all times and visibly, badges with their name and rank, or at least their number. Art. 27, par. 5 of the bill must be modified in this respect. On the one hand, it would help gendarmes be aware that they are individually responsible for their actions, and on the other hand, persons who consider themselves victims of abuse by gendarmes would be able to identify the alleged perpetrators, facilitating an investigation by the authorities in charge.
4. The wording used in art. 49 of the bill implies that the gendarmerie is free to rent out disposable goods, including - according to art. 46, par. 1 - firearms, ammunition as well as technical and other specific equipment.APADOR-CH asks for the provision to be eliminated, considering it unacceptable that a key public order institution, supposed to discourage and sanction violence, should provide arms and ammunition to outsiders, physical or legal entities. Besides, the Gendarmerie must remain an exclusively state financed institution, not allowed to obtain other types of income, which are hard – or impossible – to control.
APADOR-CH asks that art. 49 of the draft bill should be eliminated.
5. The bill on the creation, organization and functioning of the National Control Authority for Personal Data Processing
In October 2004, the Government brought before the parliament a bill aimed at creating a national agency for the supervision of personal data processing. The bill was meant to take data processing from the control of the Ombudsman and create and independent authority to administrate it. European Commission documents were also used in support of the bill. APADOR-CH made some comments and criticized certain provisions of the draft bill.
COMMENTS BY APADOR-CH REGARDING THE BILL ON THE CREATION, ORGANIZATION AND FUNCTIONING OF THE NATIONAL SUPERVISORY AUTHORITY ON PERSONAL DATA PROCESSING
Article 3 par. 5 and 6
APADOR-CH asks for modification of art. 3, par. 5, so that the decisions and instructions given by the Authority’s chairman should be mandatory only for that institution, not for other „institutions and bodies”, as the text stipulates.
The Authority about to be created is a control body. Therefore, it is supposed to make sure that laws are observed, not to create new general regulations. The authority may suggest modifications of the law, following its activity experience, but must not replace the legislator by issuing decisions and instructions „with normative character”.
Article 4, par. 2
APADOR-CH asks for art. 4, par. 2 to be eliminated because the text is too general and leaves the decision regarding the public/confidential character of the activity at the discretion of the Authority’s chairman.
Exceptions for free access to public information have been provided by Law No. 544/2001 and no further exceptions are necessary.
Article 11, letter b
APADOR-CH asks for letter b of article 11 to be modified or to be completed by a new entry, b/1, providing, as part of the attributions of the chairman:
“b/1) ensures that each person on whom personal data processing operations have been conducted, is informed in writing, ex officio, at least once in a calendar year, about the identity of the operators and the number of times data were processed by each of the operators”
It is only natural that a person should address the supervisory authority when one needs to find out whether one’s personal data have been processed, and by whom. The practice established by the bill – that a person should ask all the possible operators (of whose existence the person is unaware) whether they have processed his/her personal data – is only a way to prevent people from finding out information which they are fully entitled to.
Article 19, par. 3
The entry modifies art. 21 of Law No. 677/2001.
APADOR-CH asks for the modifications to art. 21 of Law No. 677/2001 to include an express attribution for the authority chairman, besides the two attributions mentioned in the above comments to art. 11, letter b, of the bill.
Thus, art. 21 of Law No. 677/2001 must expressly provide, among the attributions of the supervisory authority: Informing the persons in cause, in writing, ex officio, at least once a year, about the identity of the operators and the number of times data were processed by each of the operators.
Receiving, solving and communicating the solution of requests for information on data processing, the operators who conducted it, the number of times data were processed and the interval of time when each of them operated.
APADOR-CH continued in 2004 to monitor the implementation of Law No. 544/2001 on free access to public information, by officially requesting information and taking the case to justice if the request was denied without justification by the respective authorities and public institutions. At the same time, the Association took part in the international law implementation monitoring program launched and coordinated by Open Society Justice Initiative. Besides monitoring the implementation of the law, APADOR-CH was also involved in promoting this instrument among the general public, by editing, publishing and distributing information kits and offering legal assistance to people who wanted to request information or use the legal channels to petition against a refusal.
Monitoring through information requests and court actions
In 2004, APADOR-CH filed requests for information with the Public Ministry - the Prosecutor’s Office attached to the Supreme Court of Justice (statistics about surveillance authorizations, requested in accordance with the Law on National Security and the 2003 Criminal Procedure Code), the Foreign Ministry (the stage of adoption by Romania of international treaties and information on the way voting stations were organized abroad during the Romanian parliamentary and presidential elections in November 2004), the Ministry of Administration and Interior (information on procedures used by authorities in returning Romanian citizens from foreign states and the nominal list of 71 journalists who complained of abuse to the police from 1999 to 2004, their employer, the nature of abuse, the solutions and duration of investigations), the General Direction of Penitentiaries (information on persons serving custodial sentences for libel and calumny). Most of the public institutions/authorities answered the request for information within the legal term.
At the same time, APADOR-CH carried on court actions launched in previous years by virtue of Law No. 544/2001, as well as enforcement procedures against public authorities/institutions that were sentenced by the courts, through irrevocable decisions, to communicate the requested public information but failed to do so.
In 2003, APADOR-CH obtained definitive and irrevocable decisions against the Public Ministry – the Prosecutor’s Office attached to the High Court of Cassation and Justice – which was obliged to provide statistic information on surveillance authorizations issued by virtue of the Law on national security and the Criminal Procedure Code between 1991-2002, respectively 1996 and 2002, as well as against the Ministry of Public Finance, obliged to communicate statistic data regarding stamp duty exemptions.
Enforcement procedures opened in 2003 continued during 2004, with no definitive rulings issued until the end of the year. In the case of the Ministry of Public finance and the finance minister, the Bucureşti Court of Appeal ruled in March 2004 that the Ministry and the finance minister were sentenced to joint payment of compensatory damages of 3.000.000 lei to the Association, and fined the minister with 500 lei/day of delay - the civil penalty provided by the Administrative Justice Law – for the period when he failed to comply with the court decision. Both the Ministry and the minister appealed the decision, which shall be judged in 2005 by the High Court of Cassation and Justice.
In what concerns the enforcement procedures against the Public Ministry and the Prosecutor General Tănase Joiţa, the Bucureşti Court of Appeal on October 28, 2004, ruled in first instance that the defendants should pay joint damages of 300.000 lei/ day of delay for the period between May 20, 2003 and August 29, 2003 (when Tănase Joiţa resigned as prosecutor general). For the same period, Prosecutor General Tănase Joiţa was fined with 500 lei/day of delay. Moreover, the Public Ministry was sentenced to pay damages of 300.000 lei/ day of delay for the period between August 30, 2003 and December 10, 2003 (when the ministry partially communicated the information requested by the Association)
As APADOR-CH considers that by the information communicated on December 10, the Public Ministry failed to fulfill its obligation, not providing complete information on the surveillance authorizations issued by virtue of the National Security Law, the Association asked the Bucureşti Court of Appeal to sentence the Public Ministry to pay damages until it fully complies with its obligation to communicate public information. The Court of Appeal only enforced the payment of damages until December 10, 2004, considering that the Ministry had complied with its obligation, so APADOR-CH appealed the decision. The procedures are pending.
In what concerns the enforcement procedures against the Public Ministry and Prosecutor General Ilie Botoş, launched in December 2003, the Bucureşti Tribunal, through its administrative section, sentenced the Prosecutor General to pay a civil fine of 500 lei/day of delay in enforcing the court ruling, but denied the Association’s request for damages for delay. APADOR-CH appealed the ruling and the cause will be retried by the Bucureşti Court of Appeal, at Bucureşti Tribunal. Procedures are pending.
In 2003, APADOR-CH got involved, alongside other four NGOs, in the unacceptable situation in Şelimbăr, where the local council imposed a 100 000 lei/page fee (over 3 USD) for photocopies requested by virtue of Law 544/2001. The five organizations filed a criminal complaint with the Prosecutor’s Office attached to the Sibiu Court, accusing the mayor and the local council of abuse of authority. The prosecution decided non-indictment, and the claimants filed a contestation with the chief prosecutor. Following the contestation, the prosecution decided an administrative sanction (a 10.000.000 lei fine) against all the members of the local council involved in the decision to increase the copying price. Subsequently, the Şelimbăr local council reviewed its decision to increase the photocopying price, which was finally set at 1.500 lei/page.
Also regarding the exaggerated fees for photocopying documents requested by virtue of Law No. 544/2001, this time at the Public Ministry (8.000 lei/page), APADOR-CH filed a petition with the institution, asking to reduce the fee to the market value. The Public Ministry denied the request and APADOR-CH filed and administrative complaint against the refusal to reduce the photocopying fee. The administrative complaint was solved and the Public Ministry informed the Association that the fee for photocopying documents requested by virtue of Law No. 544/2001 was thereon set at 2.000 lei/page.
Another court action by virtue of Law 544/2001, launched by APADOR-CH in 2003 and carried on, followed a request for information filed with the Romanian Government. The Association has requested the documents regarding the appointment of former Prosecutor General Tănase Joiţa as general consul in Strasbourg, including medical documents. The complaint was not admitted by the court of first instance - The Bucureşti Tribunal – which considered that the Romanian Government had communicated all the existing documents (the Association had received a single document: a note of the Foreign Ministry advancing Joiţa’s name as consul general). APADOR-CH appealed the decision at the Bucureşti Court of Appeal, which decided that the Tribunal should re-judge the case. The case was dismissed again after being retried, on the merits. The Association will appeal again when the motives are issued by the court.
During both 2003 and 2004, APADOR-CH supported the requests for public information filed by some of the lawyers who participated in the workshops on Law No.544/2001 organized by the Association (requests filed formulate in the name of clients or in its own name) and court actions against public authorities/institutions which failed to communicate the requested information. The Association offered assistance and documentation, or even financial support for five court actions: newspaper Ziua de Vest vs. the Prosecutor’s Office attached to the Timişoara Tribunal (the requested information concerned the dossier of a legal enforcement officer in Timişoara; the Timişoara Tribunal ruled against the defendant, who was obliged to communicate the number of files concerning the aforementioned officer in which the investigation was closed and the legal solutions enforced); the Timişoara Society vs. the National Health insurance Agency - Timiş (the requested information concerned statistical data on the institution budget, the expenditure, the main debtors to the health insurance funds; as a result of the court action, the institution provided all information); the Vrancea branch of the National Liberal Party (PNL) vs. the Court of Accounts - Vrancea (information concerning controls activities by the institution; the court action against the denial of information was declared admissible in first instance, and the institution was summoned to communicate the requested information; the court of appeal denied the request); Bogdan Aanei vs. the Competition Council (information concerned statistical data on state subsidies; the court action against the denial of information was irrevocably denied by the courts); Dragoş Ivanovici vs. the Ministry of Education, Research and Youth (the requested information concerned various data on teacher titularity and high-school graduation exams; following the court action, the ministry partially answered the questions and the court rejected the case as groundless).
Open Society Justice Initiative Monitoring
In 2003 Open Society Justice Initiative ran a pilot program monitoring the implementation of access to information laws in four European countries. The program had two main objectives: to prepare a comparative study at international level and to develop methodologies and software for those interested to monitor the way related legislation is implemented. In 2004, OSJI decided to extend the program to 15 countries in Europe, South America and Africa, with Romania included for the first time in such a large scale monitoring of access to information. APADOR-CH was in charge of the monitoring at national level, and for that purpose the Association filed 140 requests for public information with the Defense Ministry, the Ministry of Labor and Social Solidarity, the Ministry of Environment and Water Management, the Ministry of Justice, the Ministry of Public Finance, the Romanian Government, the High Court of cassation and justice, the Bucureşti Tribunal, the Mayor’s Offices in Sector 1 and Sector 4, the Târgovişte City Hall, the Buftea City Hall, the Bucureşti Prefect’s Office, the Giurgiu Prefect’s Office, the Department for Agriculture and Rural Development in Călăraşi, the Forest Department in Ialomiţa, the Romanian Television (TVR) and RADET. Besides requests for information, APADOR-CH also sent the abovementioned institutions questionnaires on the concrete steps and organizational measures taken for the implementation of Law 544, and conducted interviews with official representatives about the flaws discovered during the monitoring. The final results of the monitoring in the 15 countries will be released by OSJI in 2005.
Promoting the Law on access to public information
In 2003, APADOR-CH prepared a Practical Guidebook for the implementation of Law No. 544/2001, addressing the general public. In 2004, the Guidebook was printed and distributed by Ziua newspaper and several NGOs. It was also made available on the Association’s web site.
APADOR-CH also published a selection of cases entitled “Access to Public Information in Romania”. It includes the correspondence with public institutions/authorities, as well as documents from court files which resulted from the refusal to communicate public information (legal proceedings, statements of rebuttal, grounds for second appeal, court rulings, etc.) in seven cases based on Law No. 544/2001. The selection also includes relevant documents of the declassification court action taken by APADOR-CH in 2004 against the Ministry of Justice and the Ministry of Health, of the enforcement procedures against the Public Ministry and Prosecutor General Ilie Botoş and of the court action against the Romanian Government for withdrawing/annulling G.D No. 952/2003 on the Integrated Computer System. The compendium will be distributed to courts, bar associations and law schools during 2005.
III. DETENTION, REEDUCATION AND SOCIAL REINSERTION OF PERSONS SERVING CUSTODIAL SENTENCES
In 2004, APADOR-CH continued to monitor detention conditions in prisons under the General Direction of Penitentiaries, paying special attention to juveniles serving custodial sentences. Besides penitentiaries, the Association also visited the corresponding Social Reinsertion and Observation Services, in an attempt to assess the efficiency of the current system. At the same time, APADOR-CH monitored the law proposals aimed at modernizing the penitentiary system, as it was the case of the Bill on execution of sentences and the Bill on the status of public workers in the system of prison administration
Regulations regarding the execution of custodial sentences
In 2004, a first attempt to modernize the penitentiary system was a bill concerning the status of its workers, which proposed a most welcome change: the demilitarization of penitentiary staff. APADOR-CH saluted this initiative of the Ministry of Justice, while adding the observations of the Association regarding the bill, which were communicated to the Ministry on February 27, 2004 and presented, in short, in the following:
Observations Regarding the Bill on the Status of Public Workers
In the System of Prison Administration
“1. Art 2 (1) – including the National Prison Administration (ANP) and subordinated units into the “state defense, public order and national security structures” is against the very nature and role of this institution. This all the more obvious since the proposed bill aims at the demilitarization of penitentiary staff, a long delayed process of adjusting to European standards. The specific role of the ANP and the new status of the staff (“civil public workers”, rather than “military staff”) the ANP cannot be included into the “state defense, public order and national security structures” (the national defense system”, as defined by constitutional provisions and by Law No. 39/1990 on the organization and functioning of the Supreme Council of National Defense);
3. Given certain mentalities and practices, still persisting in the penitentiary system, art. 49, par. (1), letter c) should explicitly prohibit ethnical, national and sexual discrimination.
4. The wording used in art. 49, par. (1), letter h) regarding the state and professional secret - „as well as confidentiality with respect to fact, information or documents to which one had access in the exercise of professional duties” – suggests that the notion of confidentiality, already included in the extremely restrictive Law on classified information (Law No. 182/2002) is now extended to all the aforesaid facts, information and documents (see also art. 63, letter h, regarding the „confidentiality about the activity exercised” – our highlight). Thus, any request of information about the penitentiary system, even is not sanctioned by Law 182, may be denied under the pretext of confidentiality, which is in contradiction with Law No. 544/2001 on free access to public information. As a consequence, instead of greater transparency, the penitentiary system manages to achieve total secrecy.
APADOR-CH asks that the obligation under letter h) should only refer to the preservation of state and professional secrecy, as provided by the law. Letter h) of art. 63, on „the breach of confidentiality norms with regard to the activity exercised”, should also be eliminated.
7. Art.76 refers to other military staff that is part of the Ministry of Justice, with responsibilities in coordinating and controlling the penitentiary system activities. As APADOR-CH knows, only SIPA includes „other military staff”.
APADOR-CH asks for the abolition of this anachronistic and dangerous institution, with no equivalent in countries with strong democracies.
The bill was voted as Law No. 293/2004 on the Status of Public Workers in the System of National Prison Administration, in effect since September 2004. The critical observations made by APADOR-CH were included to a very little extent in the final version of the law.
At the beginning of May 2004, the Ministry of Justice submitted the Bill on the execution of sentences to public debate, as required by Law No. 52/2003 on decision transparency. The Bill was coming after 15 years during which domestic and foreign, governmental and non-governmental organizations constantly requested the replacement of the obsolete Law No. 23/1969 with a modern legal norm, based on international – and primarily European standards. Moreover, a new law on the execution of sentences was also necessary following the adoption in 2004 of a new Criminal Code, containing many provisions regarding the execution of sentences that were inapplicable in the absence of framework regulations.
APADOR-CH appreciated that the bill proposed by the Ministry of Justice solved many of the inconsistencies between Law No. 23/1969 and the Romanian Constitution, and also between the same law and international regulations on the matter (primarily the Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, approved by ECOSOC by resolutions 663 C (XXIV)/1957 and 2076 (LXII)/1977, the European Prison Rules, as provided by R (87) 3 of the Committee of Ministers, as well as report of the European Committee for the Prevention of Torture and the rulings of the European Court of Human Rights in the matter.
APADOR-CH however considered that the bill on the execution of sentences has some flaws of principle, in the way it solves certain provisions and in the wording of certain articles. Excerpts from the comments made by APADOR-CH on these aspects are presented below:
Comments by APADOR-CH Regarding the Bill on the execution of sentences
“1. Matters of principle
1.1. Maintaining the centers for preventive arrest (during investigation) under the control of the Ministry of Administration and Interior, respectively of the police.
APADOR-CH has repeatedly asked that persons should be kept in police custody only during the 24 hour retention. In European democracies, but also in Canada and the United States, it is against the policy to keep a retained/arrested suspect in custody after the court has issued an arrest warrant against the respective person. Undoubtedly, the Romanian system leaves a retained suspect, arrested as the result of a warrant issued by a judge, becomes vulnerable if left at the discretion of policemen who suspect him/her of crime. There is a risk - as shown by the investigations conducted by APADOR-CH, but also by the statements of 50% of the detainees who stayed in police custody – that persons in custody should be victims of physical/psychological pressure in order to admit their guilt. Moreover, the data gathered by APADOR-CH show that suspects are pressured to admit other offences, as well, more exactly the ones classified as „UA”s (unknown/unidentified author). Besides, the Romanian Police is among the most conservative repressive state institutions. As a consequence, APADOR-CH is unimpressed by the pledges of the MAI to „observe” human rights when it comes to people suspected by policemen of having committed a crime.
APADOR-CH asks that Title V (the execution of custodial sentences) should be completely modified, so that all persons retained by the police should be transferred to the penitentiary system as soon as the judge has issued an arrest warrant.
The MAI would only take care of retained persons. Those against whom the judge has issued an arrest warrant would be immediately placed under the custody of the National Prison Administration, subordinated to the Ministry of Justice. As a consequence, Title V (art. 93-96) would make a clear distinction between custody centers (under MAI custody) from preventive arrest centers (under ANP custody).
2. The way of solving certain provisions
2.1. The role and attributions of the delegate judge for the execution of sentences
a) APADOR-CH points out to art.6, par. 1, according to which “one or several judges of each first instance court are assigned every year as delegate judge for the execution of sentences”. The wording implies that (a1) any judge, irrespective of specialization, may be assigned as delegate judge. In the opinion of APADOR-CH, the delegate judge should be selected from those competent in criminal law. A judge competent in other type of causes, civil, for instance, might need a period of time to review criminal law and become familiar with the penitentiary system regulations and custom. (a2) The delegate judge is appointed for only one year, too little time to effectively control the way custodial sentences are executed. In the opinion of the Association, the appointment should last for at least two years.
Also, APADOR-CH considers it necessary to underline the idea that, during the entire appointment, the delegated judge would cover exclusively the problems of custody and preventive arrest centers and penitentiaries.
b) In what concerns art.56 of the bill (the right to correspondence), APADOR-CH noted that, although paragraph 3 provides that correspondence “may only be opened or retained under the limits of the law” (by virtue of an surveillance authorization issued by a judge), paragraphs 5 and 6 give the prison governor the power to put the detainee’s mail under surveillance – in breach of the criminal law.
APADOR-CH asks that the prisoner’s mail should not be opened or retained unless there is a surveillance authorization in that respect, issued by the delegate or another judge. The prison governor may make a proposal in that respect and provide the judge with all the justifying documents and information. But the decision lies exclusively with the latter. If the judge decides to place a detainee’s mail under surveillance, the detainee shall be immediately informed, in writing. Copies of the authorization and the notification shall be annexed to his penitentiary file.
2.2. The regimes for the execution of custodial sentences (Title IV, chapter II)
a) The problem of prison uniforms.
APADOR-CH considers that no detainee, under no category, should be obliged to wear a prison uniform. (At the moment, excepting court uniforms, detainees wear former military uniforms, more or less reconditioned, which are highly inappropriate for personal hygiene). Or the bill provides the mandatory use of “distinctive” uniforms for each category of detainees (art.34 – maximum security, art.35 – closed regime, art.36 – semi open regime), excepting those on open regime. This is against the UN and European Prison Rules, according to which detention conditions must be as close as possible to the lifestyle of free people…
APADOR-CH asks for the obligation to wear prison uniforms to be abolished. Uniforms may be only given to detainees who do not own decent clothing or who expressly ask for it. Anyway, even they will be provided with plain clothes whenever they are taken out of the detention place, and when they receive visitors.
b) With respect to the open detention regime (art.37), the Association asks for the detainee’s rights to be extended.
In Netherlands, for instance, detainees may go home on weekends or go, unescorted, to their workplace. Of course, any breach of regulation or hours is sanctioned by a limitation of these rights. APADOR-CH makes the following suggestions:
- Detainees under this category who go out to work for farms, factories or workshops should not be escorted. Of course, a very strict evidence of departure and arrival hours should be kept. Periodically, detainees should be checked on at the workplace by a prison representative;
- Detainees working for private farms or households shall be escorted to their workplaces and placed under the care of their employers. At the end of the working hours, they should be escorted back by a supervisor;
- Detainees under this category, whether they work or not, may be allowed to leave the penitentiary, without escort, once a week, including the visiting day. The duration of the leave, as well as departure and arrival hours, shall be strictly monitored. Excepting unforeseen situations, the detainee shall file an application with the prison management 24 hours in advance, mentioning the purpose of the leave of absence (staying with the family, with other close persons, visiting a doctor’s private practice, etc);
- Detainees who go to work or go on a leave of absence shall be allowed to take money out of their personal accounts to pay for transportation and other expenses necessary to their declared purpose. Upon return to the prison, all expenses shall be accounted for.
- Detainees under this category are prohibited from making errands or shopping for detainees from other categories, or risk to be sanction by a change of regime.
APADOR-CH considers that in the absence of such facilities, the open regime does not differ substantially from the others and does not help detainees serving light sentences or close to release to effectively prepare for reinsertion.
2.3. Conditions of detention (Title IV chapter III)
a) Accommodation of convicted persons
The bill makes no mention of any obligation of detention institutions to ensure reasonable space for every detainee. The UN and European Minimum Rules refer to “cubic meters of air” (more precisely, 6 cubic meters). The European committee for the Prevention of Torture (CPT) recommends the use of square meters (4.5 sq m per detainee). APADOR-CH asks that the law should mention (art.45, par. 2) the obligation of the administration to ensure an acceptable amount of vital space for each detainee, preferably in conformity with CPT standards.
c) The food of detainees
Art. 47, par. 2 stipulates that “the mandatory minimum food norms shall be established by order of the minister of justice” (our highlight). APADOR-CH considers that these norms should be decided by prison and police custody doctors, after consulting and obtaining the mandatory endorsement of nutrition experts and accredited institutions. The “order of the minister of justice” is a purely bureaucratic method that fails to answer the real needs of detained persons. The Association insists that the doctors are given as much freedom as possible in deciding the food norms.
e) Restraint of convicts (art. 49)
APADOR-CH asks that the following phrase be added at the end of the article: “The means of restraint shall only be used when absolutely necessary and shall be removed as soon as the aggressive behavior had ceased”. The UN Minimum Rules and the European Prison Rules include similar provisions.
2.4. Rewards and disciplinary sanctions (Title IV chapter VII)
b) Disciplinary procedure (art.84)
APADOR-CH asks for paragraph 6 (“Enforced disciplinary sanctions shall be noted in a special registry and decisions of the disciplinary board shall be included in the individual file of the convicted person”) to be complemented as follows: “All statements and documents used by the discipline board in deciding a disciplinary sanction shall be included in the individual file, which shall be transferred alongside the convict to all detention places. The procedure shall be followed irrespective of court decisions regarding a possible contestation of the sanction. The convicted person shall have access to the individual file at all times and is entitled to photocopy the contents of the file”. This modification should also be included under art. 90 (the individual file of the convict), letter L, and art. 95 (the individual file of persons under preventive arrest), letter k. In art. 95, letter k, the last sentence of the suggested text becomes: “The person under preventive arrest shall have access….”
3. Wordings used in certain articles
- art.62 (medical examination), par. 3. The Association suggests the modified text: “the doctor who conducts the examination has… the obligation to write down in the medical file all his/her observations, as well as all the declarations made by the convicted person regarding the state of health and any other circumstances that could have deteriorated it. The convicts make declarations of responsibility”.
- art.81 (disciplinary offences), letter b. The Association asks for the article to be eliminated. “Disturbing social and educational programs in any way” is too vague and general a wording. Any gesture or sound might “disturb” the activity. Moreover, social and educational programs involve an active participation of detainees. In the current form, letter b is bound to inhibit detainees and thus reduce to nothing the expected positive effects of such programs on persons deprived of freedom.
Also, letter g of the same article is phrased in unacceptable terms: “failing to observe any obligation of the detainee, if this is of such nature as to bring damage to the order and security of the prison”. The final part is extremely vague and may be easily interpreted by the prison management according to their wish. The Association asks for the last part of letter g to be modified as follows: “… if it creates a real and demonstrable danger for the order and security of the prison”. The burden of proving the materiality of the danger for the order and security of the prison rests, of course, with the management.
The comments prepared by APADOR-CH were to the Ministry of Justice on May 17, 2004, within the legal term established by Law No. 52/2003 on decisional transparency and announced on the ministerial web site. However, APADOR-CH was surprised to find out that the bill had been presented to the Government for approval well ahead of the official deadline for the public debate, in breach of Law No. 52/2003. As a consequence, the Association filed administrative petitions with both the Ministry of Justice and the Government, asking for the annulment of acts produced in breach of the law on decisional transparency and for the recommencement of the procedure, as provided by Law No. 52/2003. Both petitions were unsuccessful and APADOR-CH sued the Ministry of Justice and the Romanian Government, seeking, besides the requirements in the petition, moral and physical damages. The Bucureşti Court of Appeal rejected the motion of the Association after having exonerated the Romanian Government, on grounds that the Government is not subject to Law No. 52/2003. APADOR-CH appealed against the verdict of the Bucureşti Court of Appeal, and the appeal will be judged by the High Court of Cassation and Justice.
In the meanwhile, the bill was approved and adopted, becoming Law No. 294/28.06.2004 on the execution of sentences and other measures decided by judicial bodies during the criminal trial. The law comes into effect alongside the new Criminal Code, on June 29, 2005.
In the 2003 Report, APADOR-CH pointed out to the uninspired initiative of the Ministry of Justice and Ministry of Health to create, by joint order, a joint committee for analyzing the deaths in the prison system. The committee was supposed to publish only the causes of death, while the information regarding medical care prior to the death was classified as “professional secret”. As a consequence, no one, not even the families of deceased detainees, would have been able to access this kind of information. The obvious purpose was to eliminate any possibility of contesting the quality of the medical act prior to the death. Considering such a provision unacceptable, APADOR-CH launched the procedure of “declassification”, as stipulated by Law No. 182/2002 on classified information. As the administrative contestation had no results, APADOR-CH appealed against the provision at Bucureşti Tribunal – the administrative section. As a result, in January 2004, the Ministry of Justice and the Ministry of Health issued another joint order which abrogated the provision.
Visits to institutions subordinated to the General Direction of Penitentiaries and to social reinsertion and observation services
In 2004, the representatives of APADOR-CH visited the Botoşani Penitentiary, the Juvenile Re-education Centre in Tg. Ocna, the Giurgiu Penitentiary, the Juvenile and Youth Penitentiary in Craiova, the Maximum Security Penitentiary in Craiova, the Târgşor Penitentiary, as well as the social reinsertion and observation services attached to the Bacău, Dolj and Timiş Tribunals. Detailed reports of each visit were sent to the General Direction of Penitentiaries, respectively to the Direction for Social Reinsertion and Observation of the Ministry of Justice and were posted on the Association’s web site (www.apador.org). The representatives of the Association also visited the new reeducation centre in Buziaş, inaugurated at the beginning of June 2004, but were unable to get a realistic impression because, at the time, there were no juveniles in the centre.
The general situation in Romanian prisons has not known any significant improvement during 2004, as compared to the previous year. The problems remain very much the same: overcrowding, lack of adequate health care for some of the ailing detainees, lack of daily activities for many of the adult detainees, lack of confidentiality during phone-calls, excessive use of force by intervention forces in penitentiaries.
A particularly disturbing problem identified by the representatives of APADOR-CH during their visit to the Giurgiu Penitentiary, in February 2004, was the reintroduction of chains as means of restraint for detainees. During the visit, the representatives of APADOR-CH found out that in October 2003, the General Director of the DGP issued Order No. 383/10.10.2003 on approving “The Methodology regarding high risk detainees”. According to the aforementioned Order, “detainees in that category shall be restrained by safe means during transportation to courts, hospitals, clinics or other places outside the detention unit. In courts, chains shall also be used when taking the detainee from the arrest chamber to the secured space in the court room, as well as during the trial itself, after informing the judge. If the judge decides to unchain the detainee, it shall be done so. The same procedure shall be used when taking detainees to other institutions or bodies”. After issuing the Order, the DGP bought and distributed to penitentiaries – including the one in Giurgiu – chains for restraining detainees. They are made of metal and sensibly thinner than the “classic” ones. There are two types of chains: one is used to tie the detainee by the waist to the vehicle and the other one is used to tie the legs together and then to the handcuffs.
APADOR-CH expressed its total disapproval with the use of chains to restrain detainees, asking the Ministry of Justice and the General Direction of Penitentiaries to eliminate the criticized provisions from the order. The Association’s point of view is reproduces in the following excerpts:
"1. The Order allows again the use of chains for the restraint of high-risk detainees, a measure in contradiction with theUN Standard Minimum Rules for the Treatment of Detainees (adopted in 1955 and approved by ECOSOC in two resolutions: No. 663 C (XXIV)/1957 and No. 2076 (LXII)/1977). Firstly, Rule 57 of the UN document, cited in the Methodology regarding high-risk detainees does not stipulate that “one of the major objectives of penitentiary activity is to maintain the order and discipline, so as the make the prison a safe place for both staff and detainees”, as mentioned in the introduction to the Order. Rule 57 stipulates in the first place that the main punishment of a convict is deprivation of freedom in itself, and then concludes: “Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation”. The introduction to the Methodology interprets Rule 57 by turning the exception into a main objective.
Secondly, the UN document expressly prohibits, in Rule 33, the use of chains as means of restraint. At the same time, the DGP Order No. 383 also violates Rule No. 33 of the European Minimum Standard Rules for Prisons (adopted by resolution (73)5 of the Committee of Ministers of the Council of Europe), which includes the same prohibition, reiterated by Rule 39 of Recommendation R (87) 3 issued by the same body.
2. The Order encourages arbitrary decision in establishing the degree of risk posed by detainees. In the opinion of APADOR-CH, art. 1, letter a), b) and c) refers to highly disputable principles. “The nature of the crime” (letter a), “the behavior of detainees before arrest and during the investigation” (letter b)and “the available data about previous detention” should have no impact on whether a detainee is categorized as dangerous or not, unless they are corroborated with the criterion of behavior of detainees during the execution of their last custodial sentence. The obligation to corroborate the facts must be expressly mentioned by the Order (see, for this, art.15, letter b of Recommendation (2003) 23 of the Committee of Ministers of the Council of Europe regarding life sentence and other long term prisoners: “Since risk and needs assessment instruments always contain a margin of error, they should never be the sole method used to inform decision-making but should be supplemented by other forms of assessment.”).
3. Art. 3, chapter VII of the DGP Order violates Rule 33 (letter a) of the UN document quoted in the first paragraph, stipulating that the accepted instruments of restraint (handcuffs, straightjacket) must be removed when detainees are brought before the judge. However, art. 3 of the Order stipulates that the means of restraint should be maintained for dangerous detainees even when they are brought before the court and on the whole duration of the trial, unless the court decides to remove the respective means of restraint (including the chains).
For all these reasons APADOR-CH considers that the cited provisions of the DGP Order No. 383/10.10.2003 represent a real danger for the fundamental human right of not being tortured or subjected to inhuman or degrading treatment. The danger is real because the DGP has already purchased and distributed chains, which are currently used in all penitentiaries that have sections for high-risk detainees. The Association asks for the provisions to be eliminated.
In what concerns the activity of social reinsertion and observation services, APADOR-CH notes that their activity concentrates on preparing pre-sentence reports (at the request of courts and prosecutor’s offices) and on monitoring convicted persons for whom the court has requested the suspension of the sentence under probation. Activities with detainees in penitentiaries are minimal, and post-custodial assistance for released detainees does not cover the needs.
The situation of juveniles serving custodial sentences
APADOR-CH began to monitor the situation of detained juveniles at the end of 2003 and ended it by mid-2004. Here are the main aspects noted during the monitoring process.
Firstly, APADOR-CH salutes the re-opening of the Re-education Centre in Tg. Ocna (2001) and the inauguration of the new centre in Buziaş (2004). These are the first steps of a modern approach in the treatment of juveniles convicted under the criminal law: small capacity re-education centers placed in the various regions of the country, to ensure a close connection between the juveniles and their families. In 2000, there were only two re-education centers, in Găeşti and Tichileşti, both very large and both placed in South-eastern Romania. Now, there are three functional centers while the fourth (Tichileşti) has been turned into a Prison for Juveniles and Youth. However, APADOR-CH considers that the number of re-education centers is still too small, since whole regions are at hundreds of kilometers away from any of them (Transylvania, for instance).
APADOR-CH notes the fact that the number of juveniles in re-education centers decreased. In 2000, for instance, there were 373 juveniles confined to the Găeşti centre, as compared with only 117 in October 2003. The obvious reason of this decline is the lower number of juveniles who have criminal responsibility, as a ratio of the total population, compared to previous years.
In terms of education and professional training for detained juveniles, APADOR-CH points out to the major differences between re-education centers/special prisons for juveniles and youth and regular penitentiaries. The former provide primary and secondary education as well as professional training, with the in-house teaching staff. Juveniles attend courses and receive graduation certificates. Moreover, they are allowed to participate in activities organized by local children clubs. Juveniles from special prisons have limited access to such community resources, and those in regular penitentiaries don’t have any such opportunities. In regular prisons, the educational system is left at the appreciation of the management. Usually, literacy courses are offered, but there are no articulate programs that allow juveniles to attend more complex courses and get graduation certificates, or to get any kind of professional training.
Even though this difference may find an explanation in the two different types of sanction (prison vs. the educative measure of confinement in a re-education centre) and by the limitations of regular prisons in providing adequate education, it is obvious that the interest of the child should be taken into account, irrespective of sanction and the place of confinement. Under such circumstances, efforts should be made to provide similar, if not equal, education and training opportunities for both juveniles sentenced to prison and juveniles from re-education centers.
In what concerns the re-education and social reinsertion programs for juveniles, problems are similar throughout the whole system. One of them is how juveniles are prepared for release. Although such programs should be conducted by social reinsertion counselors, they are in fact organized by the prison/centre staff. The visits made by APADOR-CH showed that the involvement of social reinsertion counselor in prison internal activities is minimal. One of the reasons is the insufficient number of counselors. There are services with just two counselors, a totally insufficient number to cover all the activities in their competence. That is why counselors need to set their priorities, and APADOR-CH reached the conclusion that activities inside prisons/re-education centers are the last one to be taken into account.
With regard to detention conditions for juveniles, APADOR-CH noticed certain improvements. New spaces have been built (the women’s section in Găeşti, the Buziaş centre, etc.) and overcrowding is no longer a problem. In other respects, the situation differs from one place to another. In Tg. Ocna, conditions are good, staff members communicate with the juveniles who are free to circulate throughout the detention unit. These aspects mirror the relaxed atmosphere in the centre. The improvement of detention conditions is also noticeable in Găeşti. In Tichileşti and Craiova, conditions are not as good, and there are tensions between the juveniles and the staff.
During the visits made by APADOR-CH, juveniles seldom complained of being badly treated. Usually, those who had such accusations talked about “slaps” from their teachers or educators. On the other hand, sanctions applied for breaches of regulations have diminished in numbers. It seems that the staff of juvenile prisons/centers has started to use a system that rewards good behavior instead of sanctioning misconduct. APADOR-CH considers this system much more appropriate for juveniles. However, there are still drawbacks in offering juveniles correct information about their rights, especially with regard to the possibilities to appeal disciplinary sanctions and to complain when they are subjected to bad treatment.
Healthcare in the case of juveniles is almost satisfactory, although this is more because they do not generally have serious health problems. Psychiatric conditions/deviant behavior problems are not given the appropriate attention, although an important number of juveniles are in an altered psychic state. In most cases, excepting the Tichileşti Penitentiary, juveniles admitted in civil hospitals are handcuffed during their stay, a practice which violates international standards and has been criticized by APADOR-CH on countless occasions.
- The first steps have been taken for the improvement of conditions in re-education centers, but constant efforts are necessary in order to obtain satisfactory conditions;
- The education of juveniles in detention is satisfactory, excepting the juvenile sections in regular prisons; professional training is not market-oriented, and the equipment used in workshops is obsolete;
- Steps were made to promote the involvement of juveniles from re-education centers in activities alongside local children, but the practice should be extended to all juveniles deprived of freedom.
- There are still cases of bad treatments against juveniles; slapping is considered a normal and acceptable practice;
- Psychiatric treatment is unsatisfactory, although it is a key element for the future social reinsertion of the juveniles who suffer from such conditions;
- The involvement of social reinsertion and observation services in the activities of juveniles deprived of freedom is minimal.
Cases investigated by APADOR-CH
The Maftei case
Ionuţ-Cristian Maftei, detained at the Maximum Security Penitentiary in Iaşi, died on June 24, 2004, during detention. The representatives of APADOR-CH visited the penitentiary on July 20, 2004, to find out direct information on his death. The detailed report of their visit is posted on the web site of the Association (www.apador.org). Their main findings regarding the circumstances of his death included the following aspects:
On Sunday, June 20th, 2004, Ionuţ-Cristinel offered – according to his room mates – to exchange his cap for a few cigarettes, because he knew a man in the neighboring room (115). Detention rooms in Iaşi Penitentiary were built in symmetric pairs. Between every two neighboring rooms there was a small closet of about one square meter, provided with spy holes, from where the guards were able to watch the rooms. A man’s arm could be easily slipped through the spy hole and detainees used the space to exchange objects (usually cigarettes) with the neighboring room.
To make the exchange, Maftei lay down on the upper bunk by the door and slid his arm through the spy hole. The detainee in room 115 did the same. At a certain point, a room mate heard a moan. As the “negotiations” seemed to last a bit too long, the inmates took a better look at the young man who continued to lay down (his arm through the spy hole) and saw that his eyes had turned purple and his mouth drooled. Frightened, the inmates called the guard, Gabriel Geger, the only one on duty that afternoon.
The non-commissioned officer came right away, he noted that Maftei was comatose, put him in a blanket and, helped by the other inmates, carried him over to the prison gate, where an ambulance came. It was not clear how soon the ambulance arrived. Ionuţ’s parents said that the penitentiary doctors (Doctor Oatu’s name was mentioned) delayed the transfer to the hospital by two hours. They maintained that their son would have had better chances of survival if he had been taken to hospital immediately. After being transferred from the emergency room to the neuro-surgery section, he was finally admitted to the Emergency Hospital in Iaşi, but his life could not be saved. He died on June 24th. According to the medical death certificate No. 240/25.06, his death was caused by “cerebral coma”, while the “intermediary morbid state” was “cerebral edema; cerebral contusion” caused in their turn by “open acute skull trauma”. More plainly put, Ionuţ-Cristinel Maftei died because the right side of his head was violently hit against the metallic frame of the bunk bed (the skull was broken and displayed a 2-3 cm diameter depression). How could this have happened? Most probably, somebody pulled wildly at his arm which hung in the closet between the Rooms 113 and 115 (the marks on the arm seem to confirm this supposition). And who could that somebody be? The discussions with Maftei’s former room mates and the letters received by his parents from detainees suggest that the person might have been the guard on duty.
The civilian Prosecutor’s Office launched its investigation as late as Tuesday, June 22nd, and, of course, concentrated exclusively on the assumption that one or more detainees were guilty of the crime. The fact the Military Prosecutor did not get involved at that stage indicated that there was no intention whatsoever to investigate the guard as well (until September 2004, when the new Status of penitentiary staff came into force, guards were still part of the military and were investigated by military prosecutors).
In their report, the representatives of APADOR-CH expressed their fear that the prosecutors were trying to use one of the detainees as a scapegoat. Another suggested scenario, though highly improbable, was that Ionuţ was beaten by room mates who, when they saw him comatose, staged the story of the arm pulled through the spy hole. The room representative, Ionaşcu, was the alleged author of the beating and the subsequent scheming.
The representatives of APADOR-CH also talked to the Maftei family (in the village of Curături, Ciurea Commune, 30 km from Iaşi). The parents were informed of the incident on Monday, June 21st, and went to the Emergency Hospital in Iaşi only to find Ionuţ in a coma. They went back on Tuesday and Wednesday as well, but the young man died on the following night (Wednesday to Thursday). It must be said that, according to his parents, although comatose, Maftei was handcuffed during the night. APADOR-CH asks the DGP to abandon the use of handcuffs on detainees admitted into civilian hospitals. If it is absolutely necessary, they could be tied up with elastic bandages.
Later, the Military Prosecutor’s Office in Iaşi informed the Association that the file on Maftei Ionuţ’s death was transferred to the Military prosecutor’s Office attached to the Territorial Military Tribunal. Until the end of 2004, the cause had not been solved.
The case of juveniles deceased during the fire at the juvenile and Youth Penitentiary in Craiova
On September 24, 2004, six juveniles at the Juvenile and Youth Penitentiary (PMT) in Craiova set their room on fire as a protest. The fire raged out of control and five of the juveniles suffered severe burns – fatal for three of them. On October 1st, 2004, two representatives of APADOR-CH went to the penitentiary to conduct independent investigations on the case. Their extensive observations were included in the report sent to the DGP and may be found on the Association’s web site.
The six minors in room 36, where the fire took place, were: Ionuţ Dumitru Pleşa (born on January 8, 1987, dead at the County Hospital from is burns, the room representative); Constantin Viorel Stamatie (born on September 1st, 1987, died in hospital from his burns); Szasz Nika Attila (born on December 1st, 1986, severely injured in the fire); Marius Poienar (born on March 23rd, 1987, died in hospital from his burns); Florin Marin Gălan (born on July 25th, 1988, severely injured); Constantin Lucian Mititelu (born on April 18th, 1987, escaped with minor injuries).
By corroborating the stories told by the various participants, it resulted that the protest was sparked by deficiencies in the administration of the warehouse (an error in registering the name of detainee Pleşa on a parcel containing clothes). Convinced that his garments had been stolen– such complaints had been heard of in many penitentiaries – the boy complained to a supervisor, who assured him the problem would be “fixed” by 15.00-15.30, according to some witnesses, or by 19.00 hours according to others. From unknown reasons, Ionuţ Dumitru Pleşa lost his patience and decided to stage a protest.
Pleşa staged his protest, with the help of room mates, after lunch. They barricaded the door, piled the mattresses in front off the windows and broke all the window panes. A supervisor came right away, saw that the door was blocked, asked the juveniles what where their demands and they answered that they would only talk to the commander (in fact, the governor). According to procedures, in such cases the management must be informed, “negotiations” must take place and, if no deal is reached, the guards may break in. The supervisor informed his colleagues and superiors (the governor was not at the penitentiary and only got there around 15.00, after the incident), which took, he maintained, “about one minute”. When he came back to room 36, he heard screams, because the juveniles had set fire to the mattresses - the re-enactment of the fire showed that a synthetic foam mattress burns in 1 minute and 50 seconds, producing unbearable heat and smoke - which determined him to take immediate action.
Because the door was blocked, the guards were only able to push it partially open, allowing all six juveniles to get out of the room through a narrow, v-shaped gap. At the same time, a draught of air was formed between door and window, feeding the flames and changing the direction of the fire towards the centre of the room. The thick smoke entered the neighboring cells creating panic among detainees. All juveniles in Room 36 had come out on their own feet. According to statements made by the current management of the penitentiary, the juveniles were immediately taken to the infirmary ward and the SMURD ambulance service was called. The whole operation, from the first attempt to open the door to the moment when five of the juveniles - Constantin Lucian Mititelu escaped with only slight injuries because he laid on the floor, under a bed - were sent to the County Emergency Hospital, was said to have lasted for 15-20 minutes.
The governor of the PMT, who arrived at around 15.00, ordered the room to be cleaned immediately, the electric installation to be fixed and the detainees – who had been evacuated because of the thick smoke filling the section - to be taken back to their cells. A fire extinguisher and a hose connected to … the sink (the representatives of APADOR-CH noted that there was no hydrant on the floor where the fire took place) and water buckets were used to put off the fire, then electricity was reestablished.
Following the incident, Governor Marinel Candidatu was placed at the disposal of the DGP. Major Fulga, chief of Security, was also placed at the disposal of the DGP, but also transferred to the Pelendava Penitentiary. Five members of the penitentiary staff were supposed to be heard by the Honor or the Discipline Board (not even the penitentiary knew exactly which one). The former Lieutenant Colonel Najap (before demilitarization), currently interim manager, received an administrative sanction.
APADOR-CH identified or pointed out to some general problems and some issued that had a direct impact on the Craiova incident:
- The atmosphere at PMT Craiova. On the day of the visit by APADOR-CH, tensions within the penitentiary were almost “material”, both among detainees and between them and the staff. One of the causes, apparently unimportant but actually crucial for detainees, was the fear that “in house barter” was going to be banned. The barter system is widespread in Romanian penitentiaries, but also in prisons from democratic countries. Inmates buy and sell anything when they are allowed money, or barter anything when cash is not allowed. The only condition is that such exchanges should be closely observed and kept under control. Otherwise, crises (beatings and violence among detainees) or even tragedies may occur (like at PMT Craiova or at the Iaşi penitentiary, where a 23 year old detainee was killed last summer). In-house trade cannot and must not be prohibited, at least not as long as the prison management is unable to provide detainees with decent food and clothing, radio and TV sets, bed linen and personal effects, etc.
- Also in connection with barter practices, the inefficiency of security staff, but also of SIPA (recently renamed DGPA), must be mentioned. It is a matter of notoriety that all prisons (and most probably re-education centers as well) use “stool pigeons” (informers among detainees). If in-house trade gets out of control, ending in violence, it is only the fault of penitentiary staff and of the DGPA.
- The lack of interest for re-education. “Bad” detainees (problem youths such as Pleşa) are generally excluded from educational programs/projects. Moreover, these activities are often uninspiring and boring, especially for juveniles. NGOs which run projects in penitentiaries are unable to fill the gap left by the absence of permanent educational programs for all detainees.
- Temporary transfer of juveniles to prisons. Most minors in room 36 had not been sentenced to prison; rather, the court had taken an educative measure of confining them to a re-education centre. However, they had been transferred to the penitentiary because they had pending trials for other offences. APADOR-CH points out that juveniles are transferred within the constituency of the court of justice – to either a juvenile or adult prison - and their stay may last for months. Thus, the re-education activities are interrupted (the re-education centre offers a different regime) and any progress is lost. As an alternative solution, juveniles from re-education centers could be brought directly before the court on the day of the hearing (at present, they have to spend the whole duration of the trial in prison).
- The inefficiency of Probation Services (SRSS). The development of Social Reinsertion and Observation (Probation) Services (SRSS) is especially important for detained juveniles. For the moment, such services only function in county capitals and employ two or three counselors who, of course, are unable to cover the existing attributions. In fact, their whole activity now consists of drawing assessment reports at the request of courts and of monitoring detainees for whom the court decided the suspension of the penalty’s execution under observation, being hardly at all involved in re-education activities in prisons and juvenile centers.
From the Association’s standpoint, the main problems in the relation between police and people have remained very much the same, as underlined in its reports ever since 1993:
- “Leading” somebody to the police station, prior to the legal 24 hours detention, is a measure not yet regulated by law, during which a person deprived of freedom does not enjoy any legal right;
- The use of firearms by police complies to much too lenient regulations, unlike rules in democratic European countries which stipulate the use of such extreme measures only if the suspects are posing a real and palpable threat on somebody’s life;
- Raids are stipulated by the Police Law but are only regulated by internal rules, which are not accessible to the public.
To these, one must add the problem of unjustified used of special DPIR/SPIR/DIAS forces – “the masks” as they are known – in minor cases, which do not require identity protection for the police. Special troops are assigned to intervene in complex cases of organized crime, when policemen have to hide their real identity in order to protect their own and their families’ life and physical integrity. Excessive use of special troops leads to the impossibility to identify policemen who commit abuses during the raids, as was the case of minor C.B. investigated by the representatives of APADOR-CH in 2004. APADOR-CH has constantly pleaded that policemen should wear a name badge, so that victims may identify them in case of abuse. For special troops, the badge might be replaced with another sign that may allow prosecutors to identify them when they investigate abuse complaints.
The demilitarization of police in 2002 does not seem to have produced the expected positive impact on the relation with citizens. Like before, some policemen used brutality towards persons which were - at most suspected - of committing petty offences or even used the gun in completely unjustified circumstances. Also like before, prosecutors decide not to indict policemen accused of abuse. Certain administrative or disciplinary sanctions at the Interior Ministry level become known to the public only through statistics or laconic press releases about “management faults”. The protective attitude of prosecutors and the Ministry’s lack of transparency in what concerns sanctions against police fuel the idea of impunity of police forces.
In 2004, the European Court of Human Rights passed two rulings against the Romanian state, for infringement of Article 3 of the European Convention of Human Rights in two cases of police abuse (Barbu Anghelescu and Bursuc). Also, the European Court decided the admissibility of other two cases in which plaintiffs complained of abuse amounting to torture by police (Rupa v. Romania), respectively of the death of the victim following bad treatment during police custody (Carabulea v. Romania). Both complaints, found admissible by the Court, had been investigated at the time of the incident by APADOR-CH, who got involved in bringing the cases before the ECHR. The cases are presented in detail in this report, in the chapter dedicated to cases brought by APADOR-CH before the European Court.
In three of the cases investigated by APADOR-CH during 2004, the victims were minors: I.G. (16) from Bacău, C.B. (15) from Bucureşti and M.T. (12) from Feteşti; other three cases concerned adults.
According to his family, on November 29, 2003, I.G. was taken to Police Station No. 1 in Bacău, for allegedly stealing a box of candies from a stall. In front of Agent Spiridon, who was on duty, the minor gave an assumed name and address. The policeman put the child in a van to go and check the address. When, on the way, he admitted that he had told a lie, the agent started to hit him violently. During the whole trip, from the police station downtown and back, the minor was handcuffed and beaten by Spiridon, especially on his head and back. The beatings went on at the station, where he was hit with a rope and with „karate” moves. I.G.’s father was summoned to the station and found the juvenile with the face full of bruises. He asked the agent to allow his son to go home with him (after having paid a 400 000 lei fine), but Spiridon denied the request. He let the boy go only after 20.00, by himself. On December 2nd, I.G went to the Forensic Service in Bacău where the doctors noted an excoriation over a bruised area, a purple contusion of 7/4 cm in the right temporal/malar area, ecchymoses on both shoulders, on the back and shoulder blade and a contusion in the left parietal area. It was also noted that the lesions could have been made on December 29th, 2003, they could have been produced by a contusive object and that they required 7-9 days of medical care. As the minor’s state worsened after the aggression, on January 27th, 2004, the family had to put him into the Psychiatry Hospital in Iaşi, at the recommendation of the County Hospital (on the day of the visit, I.G. was still in hospital). It must be pointed out that on the same night (November 29, 2003), another youth, Marius Gelu Ionică (19), was submitted to similar abuse by the same agent Spiridon. Accused of having stolen a mobile phone, following a brawl, Marius was taken to Station No. 1 and interrogated by agent Spiridon. After having hit him with the stick on the head for about five minutes, in the presence of the officer on duty and of a gendarme, agent Spiridon took Marius into an office. There, he was handcuffed and beaten by Spiridon with a wet rope (about 20 strokes over the head and body). After being interrogated and beaten by Spiridon, Marius was taken to the Bacău County Police, where he was questioned again about the theft of the mobile phone. Around 1.00 or 2.00 AM, Marius was allowed to go home. As he felt very sick from the beating, Marius asked Spiridon to take him home, but the latter refused. When he was almost home, Marius fell down and blacked out. A friend found him and took him to the County Hospital. He was admitted in the Neurosurgery Section at about 2.30 AM, on November 30th, and diagnosed with „multiple trauma, cerebral commotion, thorax and abdominal contusion”. Marius was released the next morning, on December 1st, although he felt very ill. For that reason, that very same day he went to the Neurosurgery Hospital in Iaşi, where he was put under treatment until December 5th, and was given sick leave until December 20th.
The Bacău Police notified the Prosecutor’s Office attached to the Bacău Tribunal that agent Spiridon was under suspicion of abuse on duty. On January 28, 2004, the Prosecutor’s Office informed the I.G.’s family that there was s a decision of non-indictment of the aggressive policeman.
M.T. (12) from Feteşti was assaulted by policeman Sorin Marcu on June 18, 2004, because, alongside other children, he had broken one of the signal lamps on his car. The policeman punched M.T. in the face. The child fell down, blood rushing down his nose, but the policeman kept kicking him. Then he ran after another child whom he was unable to catch and finally stormed away in his car, leaving M.T. lying on the ground, full of blood.
The forensic certificate No. 309/28.06.04 issued by the Ialomiţa Forensic Service mentioned that M.T. required “1-2 days of medical care”. His parents say that following the incident, the boy, suffering of bronchial asthma, started to use his inhalator more frequently, which was unusual during summer, since his condition generally caused problems only in cold or foggy weather.
The incident was witnessed by one of M.T.’s playmates, who confirmed the details of the story, including the fact that Sorin Marcu kept kicking M.T. even when the boy was down to the ground. Six adults, who happened to be on the spot, also confirmed the statements of the victim and the witness.
Policeman Sorin Marcu, who categorically denied to have beaten M.T., was tried for battery (art.180 of the Criminal Code), and sentenced to pay a moderate fine. The policeman received no disciplinary sanction for his behavior, although it violated the Policeman’s Status.
C.B. (15) from Bucureşti was beaten by special SPIR troops on March 6, 2004. The boy told the representatives of APADOR-CH that around 20.30-21.00, while he was heading home from his tuition class, on he noticed a quarrel among several policemen and taxi drivers on Văcăreşti Road. Soon after C.B. got there, “about three cars with masked guys” (the SPIR unit) showed up. As soon as they got out of the vehicles, the SPIR fighters brutally attacked the taxi drivers, dragging them to the police vans. Frightened, Cristian wanted to get away when a Station 14 police agent cried at the SPIR fighters “Take him, too!” About five masked agents rushed to grab the boy, kicking and hitting him, mainly on the head and back, and shoving him in one of their cars. Several taxi drivers were put in the same car and after a while they were all taken to the police station. Because of the beating, C.B.’s nose and mouth were bleeding (the representatives of APADOR-CH saw the trousers and jacket he had been wearing that evening, full of blood). Although he was in a very bad state, C.B. was hit again, though less violently, inside the car. At the station, he was taken down, searched, forced to wash and sent home around 22.45. Although they noticed that he was in a serious condition, they let him go home on his own. Around midnight, C.B. was admitted at the neuro-surgery section of the “Marie Sklodowska Curie” Emergency Pediatric Hospital, and diagnosed with: acute closed head and cerebral trauma, nasal fracture, left eye hematoma and contusion, upper lip contusion, face ecchymoses, right shoulder contusion. The minor was released on March 8, at 11.00, after only one day and a half in hospital. When he met the representatives of APADOR-CH (MARCH 10, 2004), C.B. was still feeling very ill. The boy’s mother complained that he was released although the family insisted that he was given the needed medical test in order to avoid any further complication. Cristian and his mother categorically denied the statements made by the Hospital managers in front of the press, that the boy was released so soon “at the request of his family”. Both Cristian and his mother believed that the hurried release was due to pressures by the police (Cristian told the representatives of the association that, about five hours after being admitted into hospital, he was visited by a Section 14 police inspector, who inquired about the events and asked the medical staff for how long they were going to keep the boy. When he met the representatives of APADOR, the boy was still not feeling well, his left eye was very swollen and blood vessels were broken over a large part of the ocular globe. The Prosecutor’s Office closed the case on grounds that the perpetrators could not be identified (!).
d) Laurenţiu Capbun (Constanţa)
On the evening of September 1, 2004, Laurenţiu Capbun (37) from Constanţa, two friends of his and an underage boy were assaulted by masked DIAS policemen. Some 20-30 minutes before, they had a verbal exchange with a bar owner and his friend, Cornel Carapcea, a DIAS officer who had come to the bar after duty hours. Following the brawl, Carapcea came back with four masked policemen and found the four victims, and a fifth person (another young boy) outside the bar. The latter managed to run away, but the other four were beaten by the policemen. The boy was allowed to go when his sister intervened, but the three adults were handcuffed and taken to Police Station No. 4. There, Laurenţiu Capbun and one of his friends were beaten again. The fact that they were treated differently from the third friend may be explained by the fact that they were former convicts.
Laurenţiu Capbun suffered from diabetes mellitus and had to take insulin three times a day, for which he always carried an insulin dose about himself. L.C. had retired for medical reasons and was registered as a person with 2nd degree handicap. Given his health condition, both his friends asked the officers to stop hitting Laurenţiu. Around 2.00 in the night, Laurenţiu started to feel sick. It is not clear why he could not take his insulin (he either lost his dose during the first round of beating or he was unable to administer the medicine). The ambulance was called; the doctor gave him a pill and asked him to go to the hospital, which he allegedly refused.
The three were released one by one. Laurenţiu was the last to go, in a cab, after 2.30 in the night. There was no official document, minute or sanction to certify that any of the three had done something illegal. Moreover, none of the three adults involved in the minor brawl in the bar, nor the underage boys on the street were asked for ID before the completely unjustified intervention of the police force (when they were simply sitting on a bench). Their being “led” to the police station – which is, as it is, a non-constitutional measure – could have been justified in case the three had no ID papers and had committed, or were in the act of committing a crime. Obviously, the Constanţa policemen did not take any of these rules into account. As a consequence, APADOR-CH considers that the forceful intervention (against, among others, an underage boy) was unjustified and disproportionate, while “leading” the victims to the police station was tantamount to illegal deprivation of freedom.
On September 2, Laurenţiu Capbun felt very sick and called the ambulance. He was admitted at the medical & diabetes section of the Constanţa County Hospital. On September 4 he went into a coma and was moved to the IT section, where he was wrapped in wet sheets to reduce the fever. His relatives believe that the wet sheets were meant to make bruises – two large bruises on his sides and a contusion on the head, which they could see for themselves - disappear. Moreover, his family maintains that his admission record mentioned “thorax and abdominal contusions”.
Laurenţiu Capbun died on September 6. The death certificate released by the Constanţa Forensic Service mentions: direct cause of death – toxic or septic shock; b) antecedent causes – bronchopneumonia; c)-d) determinant causes – insulin dependent diabetes mellitus and ketoacidotic coma.
On September 7, the Forensic Lab performed the autopsy without allowing the family to be present. The press release issued by the Constanţa Police Inspectorate quotes the following results of the autopsy: “Laurenţiu Capbun’s death was not a violent one. It was triggered by septic (toxic) shock following bronchopneumonia, complication of an insulin-dependent diabetes, decompensated with ketoacidosis. No traces of violence were found on the head, body, limbs and internal organs”
APADOR-CH considered that the speedy deterioration of Laurenţiu Capbun’s health and his death are direct consequences of the violence and brutality of policemen who beat him both on the street and at the police station on the night of September 1-2.Although the Capbun’s family filed a criminal complaint right after his decease and APADOR-CHasked for a detailed investigation into the case, no solution was communicated until the end of 2004.
In other two cases investigated by APADOR-CH in 2004, policemen used their guns in unjustified circumstances, and one of the cases ended with the death of the victim.
e) Nicuşor Şerban – commune of Jegălia, Călăraşi County
Nicuşor Şerban (31) from Jegălia died on May 30, 2004, after being shot by a police agent. That morning, a minor girl (14) from the village went to the police station and declared that the night before Nicuşor Şerban had approached her and raped her. Based on this single statement (the forensic examination took place later), a two-member police squad went to find Nicuşor Şerban. Around 10.30, they found him on the street, they summoned him, but he ran away through the gardens. His sister explained that he had been afraid of being beaten by the police, as it often happened. One of the police agents fired a shot. They continued to chase him and when Nicuşor climbed a fence of an orchard at the end of the village, police agent Sârbu shot twice and hit him (two bullets in the upper part of his body). Nicuşor Şerban was carried in a blanket to the police car and driven to Călăraşi. On its way, the police car met the ambulance in the area of Roşeşti and moved Nicuşor Şerban into the ambulance, but he was already dead
Following the incident, the Prosecutor’s Office attached to the Călăraşi tribunal launched an investigation into the case, but until the end of 2004 it had not communicated any solution to the Association. Agent Sârbu was moved to the police station in Fundeni, but the Association is unaware whether he was sanctioned in any other way for the unjustified use of fire.
f) Marius Silviu Mitran - Bucureşti
Marius Silviu Mitran (22), from Bucureşti, was shot in the head on January 13th while he was being chased by police. According to the authorities, he had been caught in the act of stealing a car, which he also used as a run away vehicle. The police chased him and, after he failed to stop at the warning shot, fired several rounds towards the car, one of which hit Mitran in the head. According to Mitran, he had left a local bar in a friend’s car, with a girl. He didn’t realize he was being followed by the police and he failed to stop at the warning shot because he had no driving license. The Association was not informed whether there have been any sanctions against the policeman who used the gun in unjustified circumstances.
APADOR-CH considers that the use of firearms in both cases was in total contradiction with international standards in the matter. According to those standards, the use of fire power is only justified when a person’s life is in immediate danger. In none of the above cases was there any person in imminent danger. Even if the victims had committed the crimes they were suspected of (rape, respectively theft), there is no justification for firing a gun - a disproportionate measure for the purpose (preventing the suspects to escape the law). Moreover, the use of firearms in public places put at risk the life and integrity of other persons who happened to be in the area.
Detailed reports of all the cases investigated by APADOR-CH may be found on the Association’s web site at www.apador.org.
V. NATIONAL MINORITIES AND FREEDOM OF CONSCIOUSNESS
I. DISCRIMINATION BY ANNOUNCEMENS AND MEDIA COVERAGE
1. Discrimination as indicated by the National Council for Combating Discrimination (CNCD)
APADOR-CH has conducted a number of actions to promote the principle of equality and for that purpose has cooperated with the National Council for Combating Discrimination. Both institutions have joined forces to point out a number of discrimination cases or have prepared analysis reports on alleged discrimination, further to requests of CNCD.
The case of the Artistic Group for Children and Youth and of “Andantino” children’s musical theatre of the “National Military Club”.
The management of the Artistic Group had a plan to select a number of children to form a new mini-cheerleaders’ group. For that matter, the management posted an announcement that excluded “children from disorganised families”. APADOR-CH reported the situation on 30 September 2004 and commented that “beyond the cruelty of such a criterion [...] we are definitely here in front of an obvious case of discrimination. Ordinance No. 137/2000 defines discrimination inter alia as “exclusion and restriction for the reason of […] having a certain […] social background or […] for being a member of a disfavoured category of persons”. Law No. 48/2002 defines the disfavoured as “a category of persons who are in a position of inferiority in relation to the majority”, which obviously applies to children from disorganised families too. We do believe that a discussion of CNCD representatives with the authors of this announcement would also reveal other instances of discriminatory prejudice and would help this institution understand them and refrain from using them again.”
Following this intervention, CNCD sent out an investigation team to the Military Club on 26 October 2004, who discussed with Mr. Iordache Ştefan, the coordinator of this art group. The CNCD Steering Committee issued a decision on 25 November 2004 to confirm that the selection criterion mentioned above is an act of discrimination as per Article 2, paragraphs 1 and 3 of Government Ordinance No. 137/2000 and issued a warning against the Artistic Group and the “Andantino” Children’s musical theatre.
2. Cases under CNCD observation for which the opinion of APADOR-CH was sought
(a) Report over a column entitled “Political Fight Ends Up Before the CNCD”, published in daily Cotidianul (15 September 2004)
The observations made by APADOR-CH
According to the article, the report against the president of the National Liberal Party in Suceava, Mr. Orest Onofrei, relied on the following statement: “we know exactly that when children in Botoşani are asked what they want to be when they grow up, they answer that they want to become citizens of Suceava. After so many years, Mr. Cozmancă has seen his childhood dream come true”. President Gavril Marza of the Social Democratic Party was offended by this statement and said such statement was offensive for Suceava citizens who were born in Botoşani...”.
(i) Government Ordinance No. 137/2000 and the identity issue
Government Ordinance No. 137/2000 covers discrimination and offence against dignity for various categories of identity groups: ethnic groups, social groups, maybe regional groups, etc. The purpose of the anti-discrimination legislation is to protect categories that are “fragile”, harassed and prevented from enjoying a standard social statute.
It is equally obvious that the fight against discrimination should not be identified with some sort of a fight against the vocabulary. Yet still, forms of twisted and metaphorical expression usually say more than the dictionary meaning of the word. They cover functions that are distinct from common sense. In other words, police jokes do not necessarily mean an offence against police officers’ dignity; rather, they are the manifestation of an instinct against authoritarianism, which underlies liberal democracy.
(ii) Legislative abuse and abuse of anti-discrimination institutions
From the above, it comes in as obvious that the report about the dispute that Liberals and Social Democrats had in Suceava is actually a “training aid example” that illustrates the intention to use the anti-discrimination system in personal or political arguments. Such mutual “pestering” is a typical case of political polemics and amusement. That joke about regional characteristics is normal, culturally speaking.
The CNCD report on the “offence against the dignity of Botoşani natives” stands proof of how far the intent to use legal mechanisms can go in a society that is not experienced enough in matters of freedom and social justice. The next step – according to the logic of such a report – would be that any discourse that contains identity hints should either be commendable or completely unbiased, or else it would be considered an offence. The paradox of such a case is that a tool which is designed to protect identity would end up spoiling it completely. Because nothing erodes the identity of a person or community more than being deprived of the possibility of expression, under the burden of a collection of truisms and labels.
Lastly, in our opinion, the “training aid example” of how “the dignity of being a citizen of Botoşani was harmed” is illustrative of the need to use an “admissibility” mechanism or quick judgement that should not be confined to cases of procedural default. Because, while the Romanian society is stressed under deeply unfair discrimination – inter alia social/economic background - CNCD is actually assaulted by reports requesting it to become an arbiter of fair thinking.
(b) CNCD takes action on “The Privilege to Be a Gypsy” – a report published in daily Romania Liberă
Remarks of APADOR-CH
CNCD took action against a Romania Liberă column headlined “The Privilege to be A Gypsy”, written by Dan Stanca. CNCD should establish a fair relationship between pre-emptive policy and the punitive measures it should enforce.
(i) A summary of the column
Dan Stanca’s editorial conveys the following ideas/messages:
(a) There was a time when access to academic education was conditioned by social background;
(b) Apparently under EU pressure, Romanian universities commissioned special lists for Romany candidates, taking us back to where we used to be 50 years ago;
(c) Romany organisations take advantage – according to a credible TV story – to actually sell a certificate that another candidates can use to be accepted by an university on that special list;
(d) Valuable people were humiliated for a long time; and intended anti-discrimination actually turns into discrimination and the alleged humanitarian intent stems out from Bolshevik ideas.
The wording is decent; the “Romany” style is used just to describe the TV story and the tone is that of someone who is angered against these methods that he honestly considers unjust and damaging.
(ii) The column illustrates the need to have an information policy to deal with assertive measures
The writer of that column considers that the assertive measures of the Romany people (and not only) are an unfair discrimination against persons who are supposed to pass examinations to secure a place in a university. The columnist is just a voice among many others, including the Romany community, arguing over the “perverse effect” of the special places for Romany candidates. Debates over the legitimacy of assertive actions have been particularly wide in the United States, where decisions for and against this system alternated for a while.
We consider that this kind of assertive action whereby Romany get their separate places in high schools or faculties makes one of the most important resources to improve their situation. The system has created and still slowly creates a Romany civic and political elite - essential for the changes that their traditional communities need. Whoever has witnessed the beginning of their problems in the early 90s and compares it with what is happening now, cannot be but enthused of how valuable Romany assertive actions can be in the line of education.
Dan Stanca is obviously unaware of the details and background of this issue. He does not even know how anti-discrimination legislation is associated to the European Union. The writer just saw a TV story that challenged his common sense and that contained a number of elements that fuelled his sense of anger and he voiced his opinion in the matter of separate access to academic education for Romany students.
It is equally clear that assertive actions remain controversial and one assessment will not do. Persons have the right to call the legitimacy of the system into question and to express themselves even when their information is scarce.
We believe Dan Stanca’s story is relevant to CNCD and NGO’s that want to combat discrimination, since it is indicative of how little the public opinion – intellectuals included – know about assertive actions and about the whole range of issues associated with the Romany community. There is a need of awareness policies and solidarity with disadvantaged categories. And CNCD must play a role in the preparation of these policies, as provided by the law.
(iii) The sanctions as a solution
The initiative to consider Dan Stanca’s column as discriminatory and an offence against human dignity, and to sanction him accordingly seem dangerous to us. The attempt to impose certain ideas, opinions and interpretations according to what an administrative structure desires would only find its correspondent in totalitarian doctrines.
III STRUCTURAL DISCRIMINATION
1. Discrimination against members of spiritual groups referred to as “sects”: activities of the Romanian Intelligence Service (SRI)
(a) Presentation of sects in SRI reports
The Romanian Intelligence Service approached the case of a number of minority religious groups that are referred to accusingly and unexceptionally as “sects”. The vision of the Intelligence Service on sect-related issues is also described on the website of the institution: www.sri.ro. To raise public awareness, SRI has published a list of risks, according to which sects are associated to terrorists, organised crime and Islamic fundamentalism. We will cite here two headlines: “Damage of sects that have insinuated themselves in Romania over the past years” and “Ananda Marga: a track record of extremism“.
It is true that some spiritual groups may pose real problems to the public order. SRI reports cite tragedies such as the one inflicted by the so-called “People’s Temple” whose followers (nearly 1,000 of them) committed mass suicide on 29 November 1978, the “Davidians” in the United States (1993) and the “Solar Temple” (1997). In 2000, “The Restoration of the Ten Commandments” of Uganda was at the source of a massacre that killed over 3,000 people. Suicides of “AUM” followers and California-based “Heaven's Gates” are also mentioned.
Not only in these extreme cases, but also when the followers of a group, spiritual or not, violate the rights and liberties of its members, the intervention of the authorities comes in as normal. In the case of groups where abuse is not in the public eye and which encourages compulsive secrecy, special services do need to intervene so as to find out exactly what is happening inside these groups. But only on condition that there are facts to support the presumption of crime. The method to identify the groups that pose a risk should be free of abusive misinterpretation.
The Romanian Intelligence Service makes such reflections so as to circumscribe the bounds of “normal faith” and to make the public opinion show disdain to religious groups that have, according to SRI “the character of sects”. Religious groups are considered sects if they comply with the following three criteria:
- The have a two-layered doctrine: one esoteric layer, which is put forth for recruitment purposes, and one or several secret levels, which are only accessible to the "initiated" or to a small number of leaders. It often happens that both layers work systematically against the law and against the state, and urge to religious hatred and conflict;
- the second characteristic of sectarian groups is that they have a doctrine that is more or less related to the Bible, which is more or less of a pretext to promote a number of values, hierarchies and behavioural patterns that – by virtue of their own origin, run counter the axiology of the European spiritual space, and affect the rights and liberties of the citizens and – in some cases – even the national security;
- the third criterion, a constant feature for many sectarian groups that work against the law or against the state is to circulate anti-social doctrines based on aberrant distortions of the Biblical doctrine (or the doctrine of other major cults) that support millenarianism aggressively, that are taken off the social cultural and value context.
As a conclusion, the Romanian Intelligence Service, which is a state institution, introduces a number of norms in this spiritual area and uses these norms to predicate the normality or abnormality, i.e. dangerous character, of religious communities, depending on how much they comply with the rules that SRI defined itself. SRI introduces a normative conception of spirituality, which actually violates religious freedom. In order to legitimise the institutional position that it predicates, SRI searches for outer sources of legitimacy: the resolutions of the Council of Europe. Yet still, these resolutions are either presented erroneously or are manipulated. The Romanian Intelligence Service maintains that a problem in enforcing the recommendations of the Council of Europe is “the accurate definition of the concept of “dangerous sects”, explained by Recommendation No. 8373/1999 of the Parliamentary Assembly of the Council of Europe” (PACE).
There is no such thing as a PACE Recommendation 8373/1999. There is, however, one document numbered 8373 that was issued by the Committee for Legislation and Human Rights, whose rapporteur was Mr. Adrian Năstase. This particular document includes one reference to “dangerous groups”, which was eliminated from Recommendation No. 1412/1999 on sects, once the members of the Parliamentary Assembly criticised the report of the Romanian MP.
In its Recommendation 1412 (1999) on sects, the Parliamentary Assembly dwells on how important religious pluralism is. The Assembly reaffirms its dedication to religious freedom and acknowledges that religious pluralism “as a natural consequence of freedom of religion. It regards state neutrality and equal protection before the law as fundamental safeguards against any form of discrimination and therefore calls upon state authorities to refrain from taking measures based on a value judgment concerning beliefs”. In other words, the Parliamentary Assembly, whose resolution was invoked by SRI, actually insisted – on the contrary – that the state should avoid norm-oriented approaches such as the ones that SRI used for its documentary.
(b) Defamation in documentaries of the Romanian Intelligence Service
The presentation of some clear cases makes the inadequacy and illegitimacy of SRI opinions in these matters look even worse. Here is a fragment of the documentary entitled “Noxiousness of sects that have insinuated themselves in Romania over the past years” that stayed posted on the website of this institution until the end of October 2004:
“Although illegal, anti-social and sometimes immoral, activities conducted by sects are not always relevant for how much danger they pose against the national security. In general, sectarian groups are classified into four large categories: Christian groups of Biblical inspiration; allegedly Christian sects, actually heterodox; non-Christian sects and anomic trends.
Sectarian groups of the second category stand out through their virulence; their practice combines a number of eclectic doctrines (they are a mixture of Christian, Buddhist, yoga, etc. elements) and have a religious “façade”; the efforts of some world coordination centres to impose a “new order”, not only cultic or social, but also political and economic are quite conspicuous. “Children of God” is noticeable in this sense for its preoccupations and actually it has been banned in most of the European countries. Californian authorities have affirmed that this groups defiles Christian moral norms”.
The cited text was grounded on false statements. It could be easily demonstrated that the group named “Children of God”/Family International was not banned “in most European countries”. The newsletter of “Human Rights Without Frontiers” documents the fact that this organisation was actually a winning litigant in the legal proceedings that group members have launched against a number of measures taken against them previously. When SRI specialists prepared their report, they could have used such information, and particularly two volumes that analysts had written about “the Family”.
There are about one hundred “Family” members in Romania. Their social activities have prioritised assistance to children in need. They have been working for about six years and have provided material and educational support to Pinocchio Placement Centre (Bucureşti , sector 2), St. Mary Placement Centre No. 6, (Bucureşti , Sector 5), Placement Sector No. 5 (Bucureşti , sector 6), Domneşti Placement Centre, Nursery School No. 44 in Sector 1, Bucureşti. It is hard to understand why public authorities would show hostility – through the voice of the Intelligence Service – to such activities.
The authors’ decision to eliminate – in the final version of the said documentary, updated on 29 October 2004 – any reference to the “Children of God” is noteworthy, but incomplete, since the general paradigm that surrounds the sects’ issue remains unchanged.
The site further presents an abstract about Ananda Marga: “Ananda Marga: a track record of extremism”. This outline resumes once again the allegations of terrorism and paedophilia that SRI had launched before. A few years back, Ananda Marga – that had been remarkably successful with its humanitarian assistance in Romania with the children’s centres it had opened – sued the Romanian Intelligence Service and won the case. A SRI representative declared during the proceedings that he had collected his information from “the media” (!). But the information that was incriminated in court continued to stay posted on that website.
The scandalous topics posted on SRI website arouse media interest. This is how SRI website promotes slandering against groups that stand out for their belief and credos. SRI violates “the principle of equality of all people and the exclusion of privilege and discrimination” (Article 1, par. (2) of Government Ordinance No. 137/2000), which underlie the exercise of fundamental rights and freedoms. SRI also violates international norms, such as the European Convention of Human Rights. The European Court has not published a list of religious denominations or beliefs that would be protected by Article 9, but has pointed out that the provisions of this article protect all religions, including controversial movements such the Church of Scientology or the Moon Sect.
The Court in Strasbourg established it very clearly that the state has no right to set norms over what a religious denomination is or is not, meaning that – so much the less – the state cannot introduce “quality certificates”: “The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate”.
Following these principles, that apply more widely to any case of restriction of a human right, the Romanian Intelligence Service should have had to prove that “sects” actually tried to undermine national security and that the restrictions it proposed were proportional to and consistent with the requirements of a democratic society.
APADOR-CH has requested from CNCD to look into sect-related materials that are posted on the SRI website, to declare them discriminatory and to take institutional measures so that the SRI’s discriminatory policy against certain religious, esoteric or spiritual groups should come to an end.
THE CAMPAIGN AGAINST THE MOVEMENT FOR SPIRITUAL INTEGRATION IN ABSOLUTE (MISA) AND THE VIOLATIONS OF ITS MEMBERS’ AND SYMPATHIZERS’ RIGHTS
I. MISA AND THE CAMPAIGNS DIRECTED AGAINST IT
1. What is MISA?
The Movement for Spiritual Integration in the Absolute was created as a non-profit association, by decision of the District 1 First Instance Court in Bucuresti, on January 23rd, 1990. The association has a socio-professional, philosophic, experimental, educational character, aiming to raise the spiritual level of people by promoting yoga theory and practice.
The man considered to be the spiritual leader of the movement, Gregorian Bivolaru, was permanently controlled by the Security for similar activities before 1989. He was imprisoned twice and put into a mental hospital where opponents of the communist regime were “treated” for having practiced the same beliefs as today.
MISA runs yoga classes, as well as courses about certain naturist cures. The leaders of the organization estimate that 45 000 people have taken yoga classes with MISA. The yoga trainers are either MISA members or have understandings with MISA to run their courses under the umbrella of the association.
MISA has also published books and issues a monthly bulletin.
2. Previous campaigns against MISA and its members or sympathizers and our investigation on the accusations
APADOR-CH conducted two investigations on previous campaigns against MISA and its members/sympathizers. The conclusions have been published in the Association’s annual reports in 1996 and 1997. After 1997, the representatives of APADOR-CH were informed of other infringements upon the rights of MISA members or sympathizers. But since, over the time, the situations that had triggered complaints were considered solved by MISA leaders, APADOR-CH ceased to investigate without a formal demand from the movement.
II. THE RABID CAMPAIGN OF 2004
3. A Precedent: the Tg. Mureş Campaign, September-October 2003
In September 2003, the Tg. Mureş press, the local studio of Antena 1 TV, the local edition of Jurnalul Naţional and other media launched a campaign against yoga trainers and trainees in the city, and against MISA, the organization running the yoga courses. They were accused of drug abuse, sexual orgies and tax evasion, without any evidence. Two of the trainers were summoned at the Regional Centre against Organized Crime and Drugs. Here, they were offended and compelled to sign incriminating statements against MISA and the movement’s spiritual leader, Gregorian Bivolaru. According to the two trainers, investigating inspector Beldeanu declared that he was going to kill both them and Bivolaru “when out of duty”.
The TV programs Actualitatea mureşană of October 2nd, 2003, and Observator of October 3rd, 2003, presented a list of persons who attended yoga sessions – name and workplace included. By dubbing them guilty of “illegal acts”, “brainwashing”, “substance abuse”, the media campaign represented an instigation of the public opinion against those who practiced yoga. The effects were immediate. People on the list were summoned by their bosses and threatened with termination, if they insisted to attend yoga courses. Others had problems with their families.
Given the methods used in the Tg. Mureş campaign and the attitude of investigators towards people summoned to the Regional Centre, the events in 2003 seem to have prepared the massive action against MISA members and sympathizers launched in March 2004, in Bucuresti.
4. The Gendarmerie Raid on March 18th, 2004
On March 18th, 2004, over 300 Gendarmes, prosecutors, police and secret service agents wearing masks raided simultaneously 16 buildings where MISA members held their activities. Doors and windows were smashed to pieces, although the buildings could have been entered peacefully. The people inside were brutalized, pushed to the ground, threatened with guns, some of them handcuffed. There were cases when they were held at gunpoint for hours. In some of the raided buildings, warning gun shots were fired.
People were coerced to sign statements worded by the prosecutor. Personal belongings were confiscated without being mentioned in the search warrant minute. The detainees were prevented to contact their lawyers.
The raids were videotaped and showed on TV. Later, further pictures were shown on TV, aiming to discredit the detainees and suggest that they were guilty. But no one was put on preventive arrest or detained following these raids.
Over 20 searches took place over the following days. Truckloads of materials were confiscated abusively from the searched buildings and the 15 MISA storage houses.
5. The media campaign
Instigating and libelous presentations
The following excerpts from newspapers (the TV materials sounded very much the same) published right after the gendarmes’ raids, prove, in themselves, the instigating and libelous character of the presentations: “During the raids, various substances have been found, of which we cannot tell for sure if they are drugs or not” (Cotidianul, March 22nd); “the raids were triggered by complaints made by several citizens regarding prostitution and drug dealing activities in several slums of Bucuresti”; “the state authorities raided buildings where pornographic and erotic video-chat activities were going on” (Ziua, March 20th); “Porno materials in the home of a university teacher” (Evenimentul zilei, March 22nd); “In this truck, various compromising materials have been found, among which pornographic magazines, and books of the MISA cult” (Adevarul, March 22nd), and so on. The term “sect” was deliberately used to describe MISA.
The media, therefore, supported the authorities during the first days after the raids, when the actions in force tried to persuade the public opinion that those raided and searched on March 18th were guilty of crimes. It is highly improbable that journalists didn’t know that police is not allowed to break into somebody’s home only because “there have been crimes in the neighborhood”. It is not illegal to detain pornographic materials, and no approval is needed to participate in erotic chat-rooms on the Internet. The accusations based on elements considered to be outrageous for the public – sex, urinotherapy – were all the more absurd when promoted by publications which currently use themselves erotic images and a type of language which could be qualified - considering the prudish attitude in this case – as outrageous.
Basically, most media tried to turn the population against MISA members and trigger a “witch-hunt”. Significant, in this respect, was the information, proved to be untrue, that Gregorian Bivolaru was taken to the police station by a group of people. The way the information was announced represented an invitation for the people to hunt down MISA members.
Intoxication of the media by the authorities
The information received by journalists from the authorities contained a series of accusations, which were thus promoted by the media: drug use, human traffic, etc. The accusations proved to be ungrounded. The video footage was meant to induce the idea of guilt into the public opinion. The police video was released to the media, and shown on TV, in a total breach of the right to reputation. For example, a syringe, filmed in the home of a doctor woman, was presented as having been used for drugs. The situation determined several members of MISA to ask the Forensic Institute for tests to show they had no drugs in their blood.
The image of Petrachei Natalia Elena, taken from the toilet with her panties down and threatened at gunpoint to stand, in that posture, next to the doorman of the building, was shown as evidence of the promiscuity in which MISA members allegedly indulged. Several pictures of MISA members in bathing suits, found during the searches, were also shown on TV. Sometimes, their actual photos were edited alongside other images, for a more convincing effect.
The culmination of these unacceptable violations of privacy was the release of a personal diary to the media – that of Mădălina Dumitru, a minor – and its publication. The author declared that the diary contained her erotic fantasies. However, the diary was the ground on which Gregorian Bivolaru was later arrested.
The media took distance
At a certain point, the media began to distance themselves from the actions of the authorities, proving that state institutions involved in hunting down MISA were the main source of intoxication. The press started to notice that there was no support for the information released by the authorities: “The importance given to the Bivolaru case … is hardly sustainable by the evidence shown yesterday by representatives of the institutions involved: the Prosecutor’s Office, the Police, the prosecutors” (Cotidianul, March 25th, 2004).
Other newspapers, too, later accused the authorities to have attempted a political manipulation. One of the widest accepted explanations was that the whole campaign against MISA and its spiritual leader Gregorian Bivolaru was aimed to cover the escape of Gabriel Bivolaru, a man close to the ruling PSD party, who was imprisoned for fraud, and whose name could be easily mistaken with that of Gregorian’s.
The sobering of the media was partly due to a press release issued by APADOR-CH on April 15th, 2004. In its analysis, APADOR-CH pointed out that if certain members of MISA have committed crimes, they were to be tried in court, as individuals, according to equitable procedures and judgments.
6. Violation of fundamental rights and freedoms
The measures taken by the authorities against members or sympathizers of MISA and against the Movement itself were illegal, disproportionate, combining intimidation, instigation and harassment with abusive accusation and detention. During the events, personal freedom, the right to be presumed innocent until proven guilty, the right to legal representation, the right to privacy, the right to peaceful demonstration, etc:
During the days of searches – starting on March 18th, 2004 – prosecutors, gendarmes, police and SRI agents (secret service), most of them wearing masks, led a brutal action, using force unnecessarily or excessively and in breach of procedures:
- they broke doors and windows to enter buildings although nothing hampered their access;
- the residents were hit, pushed to the ground and threatened with the gun. Over 80 people were taken to the Prosecutor’s Office, where they were asked to sign statements under threat;
- they confiscated a large amount of objects and documents without any reason: the search minutes had errors of procedure and content;
- search warrants were not always produced when entering a building;
- in many of the raids, the prosecutors left no copy of the search minutes;
- MISA members or sympathizers were videotaped while scarcely dressed or in humiliating postures;
- MISA members or sympathizers were prevented to contact their lawyers.
The infringement of rights and freedoms during the actions of the “forces of public order” on April 18th, 2004, was continued by the violation of privacy and of the right to reputation. The pictures and videotapes made during the raids were used to discredit the victims. The authorities sent TV stations images accompanied by mystifying comments. Thus, a syringe, videotaped in the home of a … doctor, suggested an alleged drug abuse. The doctor was videotaped while subjected to a degrading treatment during the whole search and threatened that she would be indicted, in the absence of any trace of evidence, for drug use. As a result of this manipulation, MISA members had to ask the Forensic Institute to test their blood for traces of drugs, in order to prove that they were not drug users.
The forceful actions of the prosecutors, gendarmes, police and SRI agents violated the constitutional norms, domestic legislation (mainly, the Criminal Procedure Code) and international agreements ratified by Romania.
The victims filed numerous complaints against the infringement of their rights and liberties. The flagrant violations should determine the Public Ministry to take notice, while the top ranking officials from ministries and other institutions involved are under obligation to take administrative steps in order to punish those responsible. Investigating and punishing the SRI agents, police, gendarmes and prosecutors who infringed upon human rights and fundamental freedoms before, during and after the MISA searches is essential to safeguard the principles of a democratic state.
7. The violation of the freedom of association
The freedom of association includes the bestowal of legal personality, a right granted to MISA in 1990 and still in place. However, the freedom of association also means that no one will suffer from taking part in the activities of the respective organization. No one who wants to become a member of, to collaborate with, to support the organization or to take part in its activities will be intimidated. Otherwise, the formal or subjective association of the individual is not free.
For years, MISA members have been subjected to public defamation and harassment, instigated and supported by Romanian institutions - the Prosecutor’s Office, the gendarmerie, the Romanian Information Service (SRI), the Ministry of Justice, the Ministry of Interior and Administration, etc. Especially worrying are the following situations:
- the unjustified search and detention of certain MISA members or sympathizers;
- libelous statements against them;
- threats that they would lose their jobs due to their affiliation;
- placement of MISA and its sympathizers under secret service investigation.
Several persons were forced to drop out of yoga courses organized by MISA because of such harassment and defamation and certain members of sympathizers had problems in their relations at work or at home.
8. The participation of the SRI in the harassment of MISA
The Romanian Information Service was involved in the surveillance and harassment of MISA under the pretext that MISA was a paramilitary organization and a danger for the national security. The MISA legal person was targeted, although the current accusations - infringement of the copyright law and spreading pornographic materials – have nothing to do with national security. As for other, more serious accusations, - supporting paramilitary groups, drug traffic and human traffic – they proved to be completely groundless.
The SRI actions have infringed upon the fundamental right to privacy and freedom of association. The decision to put MISA under the surveillance of an institution meant to protect national security was totally out of proportion.9. The treatment of Mădălina Dumitru
Among the abuse committed by authorities in the MISA case, one was especially serious: the inhuman and degrading treatment to which Mădălina Dumitru, a 17 years old minor, was subjected to. Although she was nothing more than a witness in the trial against Gregorian Bivolaru, the minor - detained on 18.03.2004, during the raid at her home - was treated like a criminal. She was deprived of freedom, subjected to pressure and violence because she wanted to change a previous statement, which had been obtained under coercion in order to incriminate Gregorian Bivolaru, mentor of MISA. On April 1st, Mădălina Dumitru was taken by force to the Forensic Institute, where she was supposed to undergo a gynecological examination, although she had categorically refused it. The minor was surrounded by policemen and gendarmes all the time, and separated by her lawyer, whom she has been unable to contact from that moment on. She has been isolated from her colleagues and fiancée. The inhuman treatment she underwent made her go through serious moments of crisis.
The Child Protection Commission decided on April 7, 2004, to place Mădălina Dumitru under the care of her mother’s sister. The measure was taken against the girl’s will. The minor is forced to stay with her aunt’s family, unable to go anywhere by herself or to meet anyone. The underage girl has been prevented to:
- go to school;
- contact her legal counsel;
- file complaints against those who infringe upon her rights and freedoms;
- marry her fiancée, as the two publicly announced their intention.
It is not the humanitarian and educational concern that has determined the authorities to submit Mădălina Dumitru to such a regime; the proof lies in the scandalous decision to release her personal diary to the media. Newspapers lavishly published excerpts from the minor’s erotic fantasies. The public defamation, to which both the media and the authorities contributed, is in flagrant contradiction with the claim of responsibility towards the girls’ best interest.
(a) The brutal, unjustified raids organized on March 18th, 2004, in Bucuresti, which mobilized over 300 gendarmes, prosecutors, policemen and SRI agents, were just one event in a long series of actions against MISA and the yoga movement in Romania. Repressive actions and defamation campaigns against the organization had taken place before, elsewhere in the country. But interventions by the Prosecutor’s Office, gendarmes and secret services never reached such proportions. It is the worst violation of democracy since the miner’s descent on the capital.
(b) The media were involved in defamation campaigns against MISA by using without discernment “information” offered by public authorities. The professional code of journalism was seriously infringed upon: the obligation to inform the public correctly, the right to be presumed innocent, verifying information from two independent sources, respect for human dignity. Especially serious was the publishing of Mădălina Dumitru’s personal diary containing the girl’s erotic fantasies. From a point on, the media took distance from the abuse committed by the authorities. Many of them accused the authorities of having used the MISA case for political purposes.
(c) During raids and following investigations, the state authorities were in serious violation of fundamental rights and freedoms by intimidation, instigation, harassment, illegal detention, infringing upon personal freedom, the right to be presumed innocent, the right to privacy, the right to demonstrate peacefully, the right to reputation, etc.
VI. CASES REFERRED TO THE EUROPEAN COURT OF HUMAN RIGHTS
For a number of years now, APADOR-CH has been involved in launching and supporting legal proceedings in front of the European Court of Human Rights, considering that plaintiffs were victims of the violations of human rights that are protected under the European Convention of Human Rights and Fundamental Freedoms. In the cases described below, the Court has already ruled or the cases are pending, at various procedural stages: cases that were declared admissible under a decision (Subsection I); cases that were brought to the attention of the defendant state or about which the Court requested information from the plaintiff (Subsection II). The last part (III) covers new cases, recently filed with the European Court of Human Rights (ECHR).
1. Sabou and Pîrcălab vs. Romania (No. 46572/99), the sentence passed on 28 September 2004
On 28 September 2004, the Court passed a judgement to formalise the finding that the Romanian state had violated Article 10 (freedom of expression) of the Convention in the case of plaintiffs Dan Corneliu Sabou and Călin Dan Pîrcălab, and Articles 8 (Right to respect for private and family life) and Article 13 (Right to an effective remedy) of the Convention, but only against Mr. Sabou.
Both plaintiffs were convicted under final decisions to criminal punishments and civil damages for having slandered a judge, who actually chaired the trial court in Baia Mare. At that time, the plaintiffs were working as journalists for “Ziua de Nord Vest”, a newspaper in Baia Mare.
ECHR also found that the Romanian court had violated the right to respect for private and family life (Article 8 of the Convention) by automatically enforcing the incidental sanction of denial of parental rights while Mr. Sabou was serving his jail sentence. According to the Romanian law, the interdiction to exercise parental rights is an incidental punishment that applies automatically to any jailed convict, and the court does not actually control how this sentence is enforced and never takes into account the nature of the crime or the best interest of the child. This ban acts as a moral warning with the aim of punishing, not as a child-protection measure, as it should actually be.
In enforcing Article 41 of the Convention, the Court decided that Mr. Pîrcălab will have 1,582.42 Euro for his material damage and 1,000 euro for his moral damage, whereas Mr. Sabou got 5,000 Euros for the moral damage he had suffered. The Court also awarded 4,000 Euros to the two plaintiffs as court expenses.
2. Notar versus Romania (No. 42860/98), decision of 20 April 2004
The Court in Strasbourg pronounced a decision on 20 April 2004 to remove the complaint from the docket, since the case was found to have been settled amiably.
In 1996, the plaintiff – who was a minor at the time, was approached by a policeman – while being on the stairs of an apartment building – who kicked and battered the minor with the baton and then took him to the police station where he was questioned, together with other minors, about an act of robbery that had taken place on that same day. The plaintiff was again battered while being interrogated and, because he refused to write what police officers were telling him to, they slammed his head against the table several times. The interrogation that took place on the premises of the police station lasted for about 5 hours and the plaintiff was denied contact with an attorney at law or his parents. Police officers took the minor to a Juvenile Centre without having an arrest warrant or an order to keep the minor in custody, but just an unregistered and undated letter that was signed by another police officer. People from the Centre for Minors shaved the plaintiff’s head, washed him up with cold water and kerosene and forced to wear the uniform of that facility. The minor was kept there for five days and had no access to medical assistance, to a lawyer or his parents, although they requested to see him on several occasions; in the meanwhile, he was also beaten by guards at the Juvenile Centre. The plaintiff was never indicted for any offence.
European Court proceedings: the complaint was filed in 1998 and the Court declared it just partially admissible on 13 November 2003, but it maintained the counts of the complaint against violation of Articles 3, 5 pars. 1-5, Article 6, pars. 1 and 2, 13 and 34 of the European Convention on Human Rights.
The Court decided on 20 April 2004 to un-docket the case since it found litigants to have had an amiable transaction. Additionally, the Romanian Government declared in front of the Court “its commitment to start reforming the existing legislation that governs judicial duties so that civil proceedings that are filed to solicit indemnification for ill treatment should be exempted from this duty”. The Romanian Government also undertook to “take the necessary steps so as to inform police officers of how they should proceed to respect the presumption of innocence, as per Article 6 of the Convention”.
Decision of admissibility in cases supported by APADOR-CH
1. Greek-Catholic parish in Sâmbăta–Bihor versus Romania (No.48107/99), a May 25th, 2004 decision
The Court in Strasbourg admitted the case on all counts of complaint on May 25th, 2004: Article 6 (right to fair trial), Article 9 (Freedom of thought, conscience and religion), Article 13 (the right to effective remedy), Article 14 (Prohibition of discrimination), as well as Article 1 of Protocol No. 1 to the Convention (Protection of property).
De facto situation and internal proceedings: the Greek-Catholic parish in Sâmbăta–Bihor filed a complaint and started proceedings in a domestic court to recover the building of the Greek-Catholic church in Sâmbăta, a commune in county Bihor, which is now occupied by the local Orthodox parish. The second request that was filed in court was to have a court decision that should allow for the religious Greek-Catholic service alternated with the Orthodox service in the same church.
Beiuş trial court accepted the request about the alternated religious service, which was maintained by Bihor Tribunal in May 1997 too. The Orthodox parish filed the second appeal with the Court of Appeal in Oradea against the alternated service. The Court of Appeal quashed the two previous judgements and dismissed the motion of the complaint as inadmissible; the Court said trial courts were not competent to handle this kind of disputes that could only be resolved by joint commissions of the two religious cults and invoked provisions of Law-Decree No.126/1990. The decision of the Court of Appeal in Oradea remained final and binding.
Once the admissibility judgement was issued, the plaintiff added a number of remarks about the content and filed a request of just satisfaction, invoking provisions of Article 41 of the Convention.
2. Carabulea versus Romania (No. 45661/99), decision issued on 21 September 2004.
On 21 September 2004, the Court in Strasbourg declared the request as admissible under all counts of the complaint that the plaintiff raised.
De facto: Gabriel Carabulea, 27, was pursued by the police for robbery. Police officers of the 14th Police Station in Bucureşti took him in custody for a petty traffic offence on 13 April 1996. He was transferred to the 9th Police Station on the dame day and three days later (April 16th), he was transferred in a very serious condition to Bucureşti–Jilava Penitentiary Hospital and then to Fundeni hospital. He died on May 3rd, 1996. His wife, brother and a few friends who visited him in hospital said Gabriel Carabulea gave them an account of how he had been rolled in a rug and battered brutally by police officers of the 9th Police Station. The investigation of military prosecutors was terminated with a decision not to start prosecution proceedings against police office of the 9th Station. The death of Gabriel Carabulea was considered to be caused directly by the traffic accident that took place on 13 April 1996.
The plaintiff, Gabriel Carabulea’s brother, approached the European Court and said rights under Article 2 (the right to life), Article 3 (right not to be tortured or treated inhumanly or degradingly), Article 6 (right to fair trial), Article 13 (right to effective remedy) and Article 14 (non-discrimination) of the European Convention of the Human rights had all been violated.
Once the Court decided that the complaint was admissible, the plaintiff added a number of remarks and request just satisfaction, invoking Article 41 of the Convention.
3. Stangu and Scutelnicu versus Romania (No. 53899/00), decision of 12 October 2004
The Court declared the request filed by Lucian Dragoş Stangu and Ovidiu Scutelnicu whereby they denounced the violation of Article 10 of the Convention (freedom of expression) as partially admissible on 12 October 2004. The Court dismissed the count of complaint regarding the violation of Article 6, par. 3, letter d) of the Convention as inadmissible and manifestly unsubstantiated, because there was no witness to call on that matter.
Plaintiffs were journalists for Iaşi-based newspaper Monitorul and in 1999 the Bucureşti Tribunal issued a suspended sentence against them to one year of detention and the payment of a civil damage of 50,000,000 ROL to the injured party, on one count of slander. Proceedings were triggered off by a newspaper report that focused on a high official of the local police (the newly-resigned chief of the judicial police) and his wife, who was a judge. A second appeal was filed to have the judgement set aside and the Supreme Court of Justice actually quashed the criminal sentence pronounced against the journalists, considering that they never meant to slander, but to inform the public about a matter of public interest; the Supreme Court of Justice also considered that such criminal repression may deter the media from being critical on business of the public persons. Yet still, the Supreme Court kept the civil sentence in place on grounds that the incriminated newspaper reports caused real suffering to the police officer and especially to his wife who – in her capacity as judge – was extremely vulnerable.
Once the admissibility decision was issued, plaintiffs added more remarks to the substance of their case and filed a request of just satisfaction, invoking Article 41 of the Convention.
4. Rupa versus Romania (No. 58478/00), decision of 14 December 2004
On 14 December 2004, the Court in Strasbourg – on grounds of Article 3 (Prohibition of torture), Article 5 (Right to liberty and security), Article 6 (right to a fair trial), Article 8 (Right to respect for private and family life), Article 13 (right to an effective remedy) and Article 34 (individual applications) – declared the request as admissible, in terms of the rights granted by the said articles of the European Convention. The Court declared as inadmissible the count of complaint involving Article 5, par. 2 of the Convention, as it was considered that the plaintiff was notified of the reasons of the custody according to the requirements of the Convention and that the count of complaint about the excessive duration of the proceedings (Article 6 of the Convention), that the Court considered to have been reasonable.
Approximately 12 police officers battered Mr. Vili Rupa on 28 January 1998 in downtown Hunedoara and then they took him to the police station, where the aggression continued. Mr. Rupa was heard and he was requested to admit having committed a number of crimes. He refused to sign those statements and so he was confined to a room on the premises of the police station for one whole night, without food and water and without access to toilet or telephone. Mr. Rupa approached the Military Prosecutor’s Office and requested an investigation on the police officers that had abused him.
A new conflict took place on 11 March 1998, when four police officers rushed into Mr. Rupa’s home without a search warrant or a custody warrant. Mr. Rupa refused the request of the police officers to go to the police station and told them to get out of his home. He finally accepted to leave his home as soon as some other 50 police officers and a legal aid attorney came in; Vili Rupa left his home and was immobilised and battered by the police officers.
Over 11 March - 04 June 1998, Vili Rupa had his legs cuffed, and he was also T-chained for 16 days (meaning his leg cuffs and handcuffs were connected by an iron bar). The victim was never allowed to get in touch with his family and was never visited by an attorney at law or a doctor over this whole amount of time.
The Military Prosecutor’s Office of the Territorial Military Court resolved the complaint that he filed against the police officers by adopting a resolution not to start criminal prosecution because the incriminated facts were not confirmed.
After the admissibility decision, the plaintiff added more remarks to the merits of the case and filed a request of just satisfaction, invoking Article 41 of the Convention.
1. St. Vasile Polonă Greek-Catholic parish vs. Romania (No. 65965/01)
The Court wanted to have a more factual account from the plaintiff about the evolution of internal procedures after 2002. The requested information was supplied to the Court.
The plaintiff is a Greek-Catholic Parish – St. Vasile Polonă – that Greek-Catholic believers reinstated on August 15th, 1990. The Greek-Catholic cult was outlawed by Decree No. 358/1948, that was repealed by Law-decree No. 9/1989, which actually cancelled the legal ban that had put on this cult. The consequence was that several Greek-Catholic parish were reinstated, including the one in Bucureşti (the plaintiff).
In February 1992, the plaintiff started legal proceedings to recover the church, the home of the parish priest and the land located at 50, Polonă St. that the plaintiff owns legally since 1892. Because Decree No. 358/1948 exempted the wealth of Greek-Catholic parishes from being transferred to the state, the plaintiff considered that they never actually ceased to be owners of the property and requested from the court to evict the occupant, an Orthodox parish.
The trial started in February 1992 in the trial court of Sector 1, Bucureşti , and is not over yet although it has went through the stages of judgement on merits-appeal-second appeal a number of times. All of the courts that have ruled on the matter so far avoided to judge the case on the merits and only adopted exceptional remedies that actually denied the plaintiff’s right to access to justice. There was even a statement, for instance, according to which the plaintiff does not have the right to approach a court of justice because believers of St. Vasile Polonă parish are mostly Orthodox (meaning that more Orthodox than Greek-Catholics inhabit the buildings around the church). Courts also stated that the matter spreads beyond court jurisdiction and that only competent authority to rule upon the matter would be joint Orthodox-Greek-Catholic commission. Legal proceedings actually continue in the Bucureşti Tribunal, after the Court of Appeal dismissed this last exception during an second appeal and ruled that courts of law were competent to handle the issue.
In January 2001, the plaintiff approached the European Court and invoked the violation of rights under Article 6 (right to fair trial within a reasonable time), Article 9 (Freedom of thought, conscience and religion), Article 13 (right to an effective remedy), Article 14 (prohibition of discrimination) of the Convention and also Article 1 of Protocol No. 1 which is additional to the Convention.
The plaintiff invoked primarily the violation of Article 6 which guarantees the right to fair trial in four particular situations: length of legal proceedings; denial of plaintiff’s right to justice; biased attitude of the national courts; repeated change of panel membership, superficial and negligent records of the hearings. In what concerns the violation of Article 1 of Protocol No. 1, the plaintiff invoked the refusal of the courts to restore the use of the property. Under the circumstances, the plaintiff also invoked the violation – by the national authorities – of Resolution 1123 (1997) of the Parliamentary Assembly of the Council of Europe, that called on Romania to solve the problem of confiscate property, including and especially to churches.
2. Mocanu versus Romania (No. 56489/00)
On January 9th, 2004, the Court decided to communicate to the Romanian Government the complaint that plaintiff Silviu Mocanu had filed against the violation of rights protected under Article 3 (prohibition of torture), Article 8 (Right to respect for private and family life), Article 13 (right to effective remedy) and Article 34 (right to approach the Court without being hindered by High Contracting Parties) of the Convention.
The plaintiff and the plaintiff’s brother had been arrested in the night of 25/26 May 1997 by police officers of Brăila and were accused of a homicide that had been committed just a few hours before, in a gas station. Police officers battered the plaintiff from the time of the arrest until the morning of 26 May 1997 to force him into confession. At 09.00 in the morning, on May 26th, 1997, Mr. Mocanu was brought in front of a prosecutor to whom he complained about the ill treatment that the police had administered upon him and requested to see a doctor. The plaintiff explained in the statement which he gave in front of the prosecutor that police officers had battered him on the night before and mentioned an injury he had on his cheek. The plaintiff also pointed out that he got his wound on his left hand when one of police officers hit him and made him lose balance and fall. The statement also reads that the two wounds had been ascertained by a medical doctor too, but the plaintiff denied it in the request he filed to the court. The prosecutor took no action to investigate into Mocanu’s complaint.
Mr. Mocanu remained in police custody under an order of the prosecutor starting that very same date; he complained to have been subject to violence for two more days from the part of the investigators who intended to force him into confession of the manslaughter.
Over 1998-2001, the plaintiff filed several criminal complaints of abusive investigation against the prosecutor who heard him on May 26th, 1997. Complaints had not been resolved by November 11th, 2002, when the court decided not to start prosecution because the deed did not exist. The solution was confirmed on December 22nd, 2002.
He also complained against the police officers that had tortured him on the night of 25/26 May 1997, but the Prosecutor’s Office of the Territorial Military Tribunal denied prosecution on May 22nd, 2002. The resolution was confirmed on March 21st, 2003.
While serving a sentence of life imprisonment that Brăila court had ruled on December 2nd, 1997 and that was confirmed by the Supreme Court on June 23rd, 1998, Mr. Mocanu found it difficult at times to get his correspondence from the European Court and to send his letters to the court. On the one hand, on August 17th, 1999 the plaintiff received a June 26th, 1999 letter from the Court. The letter was open and had no envelope and had been stamped by Rahova penitentiary. On the other hand, the plaintiff also complained against the refusal of the penitentiary to provide stamps for his correspondence to the Court.
The defendant (i.e. the government) submitted the defence plea on April 2nd, 2004 and the plaintiff filed a statement of response subsequently.
1. Ştefănescu versus Romania (No. 11774/04)
This complaint has been triggered by a request of public information that the plaintiff made by virtue of Law No. 544/2001 to the Heating Power Distribution Company in Bucureşti (RADET). The plaintiff started legal proceedings following RADET's refusal to communicate the requested information.The Bucureşti Tribunal accepted that complaint only partially to oblige the defendant to provide the requested information. The tribunal denied the plaintiff’s requested civil compensation for the moral damage the plaintiff alleged to have suffered by not having that information and explained that the damage was not substantiated. The Bucureşti Court of Appeal maintained that resolution and dismissed the appeal of the plaintiff.
The complaint was filed on March 30th, 2004 when the plaintiff invoked the violation of Article 6 (right to fair trial) and of Article 13 of the Convention, because the request of compensation for moral damages had been denied on an arbitrary basis, on grounds that it was unsubstantiated. Courts never took into account what the plaintiff was saying and refused to accept plain assumptions as evidence, in circumstances where psychological suffering is impossible to prove by direct and “tangible” means.
2. Siseşti Greek-Catholic parish vs. Romania (No. 32419/04)
The complaint originates in a request of the plaintiff to recover a number of real estate properties (the church, the adjoining land, the graveyard) that communist authorities expropriated abusively in 1948, when they banned the Greek-Catholic cult. Essentially, insofar as the plaintiff’s request regarded the church, the Cluj Court of Appeal dismissed the action on grounds of judicial incompetence to rule upon issues of this kind, since according to Law-decree No.126/1990, such issues should be handled by joint inter-clerical commissions. The plaintiff filed a second appeal and the High Court of Review and Justice ruled on February 24th, 2004 to maintain the decision Court of Appeal in Cluj, but it changed the grounds for dismissal since “the joint commission has not studied the claimed buildings of worship as yet”, therefore provisions of special Law No. 213/1998 (of the public property), Law No.18/1991 and Law No.1/2000 (on land properties, as amended) were applicable.
The complaint was introduced on August 11th, 2004 and the plaintiff invoked mainly the violation of the right to justice as per Article 6 of the Convention. Given the judicial issues that this complaint has raised, it adds to other complaints of Greek-Catholic parishes that are on the docket of the European Court of Human Rights, that – essentially – are similar to the complaint of the Greek-Catholic parish of Sâmbăta-Bihor (described above).
1. 2004 marked a deterioration of human rights, especially in terms of the freedom of the press and freedom of expression. Incumbents put some glaring economic pressure upon the media (they conditioned advertising funds on less criticism; rescheduled the debts of media companies depending on their position to incumbents; took a number of legislative initiatives meant to confine the freedom of expression under pretence of human rights protection; opinion-related offences were maintained and journalists were sentenced to pay huge amounts of money as moral damages, etc.).
2. Excessive legislation has increased confusion among common people and legal specialists. The primary problem is the lack of predictability (any person should understand what laws allow or not in order to adjust they behaviour. If laws are changed too often or if they are inconsistent with each other or if certain provisions are only changed by regulations and orders of the line ministers, then there can be no compliance with the said essential law).
3. The extremely thorny issue of the independence of the juridical power has not been solved on the merits. The package of three laws that was adopted in 2004 contains a number of arguable provisions that enable the political factors to continue to control judges and prosecutors.
4. The penitentiary system was demilitarised in September 2004, which will have – or will hopefully have – a major impact on the mentality of people who work inside this system and, implicitly, upon their relationship with inmates. A new law was also adopted to regulate how prison sentences should executed (due to come to effect in June 2005, along with the new Criminal Code); this new law, although not perfect, actually brings a huge progress compared to the old 1969 law. On the other hand, detention conditions have remained quite precarious, although correctional facilities are not that overcrowded. There is a long way to go before solving some of the problems such as scarce cultural and educational activities to support the social reinsertion of detainees (correctional centres for minors are an exception to this rule and the women’s correctional facility in Târgşor is just a “partial” exception); unsatisfactory medical care; too few jobs for detainees; low quality of food; too many sanctions for breach of internal regulations and many other issues. The most serious issues are associated to: excessive use of handcuffs (including on ill inmates and minors), the use of chains for physical restraint (renamed “safe means of restraint”), the system used to categorize detainees as “dangerous” and excessive use of “masked troops”, the so called rapid reaction squads.
5. Although the police was demilitarised as early as 2002, the expected input has been late in coming. All of the problems and issues that APADOR-CH has flagged out over the years have remained in place unfortunately: people are held in custody for 24 hours after being “led” to the police station; fire arms are used in unjustified circumstances and excessively; raids are performed based on internal regulations, unknown to the public; there is excessive use of masked intervention troops, including - and especially - in minor cases; police officers against whom abuse complaints have been filed apparently benefit from “impunity”, etc.
6. The persistent action of the civil society has determined a kind of openness of the authorities in enforcing the Law on free access to public information. This is one of the few areas where progress has been seen, in terms of both the enhanced availability of some authorities to supply information, as well as of an increased number of persons interested in getting such information. Nevertheless, authorities continued to show reserve in providing certain types of information (which is clearly public information), because of the restrictive provisions of other legislation, mainly the Classified Information Law.
7. Religious groups considered to be dangerous by the “secret” services, mainly the Romanian Intelligence Service - although their arguments are arguable, to say the least - have been harassed and persecuted, the most striking example in terms of disproportionate action being the one against MISA members.
8. Cases that Romanian (or foreign) citizens have won against the Romanian State in the European Court of Human Rights in Strasbourg have diversified. These cases involve – apart from the “classic” complaints against violation of ownership rights or protection of the right to expression and private life, torture while in police custody or failure to enforce final court judgements. Apart from paying considerable amounts of money from the state budget (meaning from the money of each and every taxpayer) in the form of damages, the Romanian state has been constantly “invited” to amend a number of laws that are faulty or inconsistent with European standards and that have made abuse possible (see the case of the Notary Public vs. Romania, Sabou and Pârcălab vs. Romania, and also the older case of Rotaru vs. Romania).
9. Not lastly, the issue which is most frequently subject to criticism and which worsened throughout 2004 is the one of the non-enforcement or partial enforcement of the legislation. Examples are quite numerous: the law on free access to public information (despite the minor progress that was made in 2004), the Law on decisional transparency, the Law on observation and social reinsertion, etc.
APADOR-CH activities have been financially supported by:
OPEN SOCIETY INSTITUTE (USA)
NATIONAL ENDOWMENT FOR DEMOCRACY (USA)
GLOBAL MINISTRIES OF THE UNITING CHURCHES (NETHERLAND)
AGIR ENSEMBLE POUR LES DROITS DE L‘HOMME (FRANCE)
ARTICLE 19 (UK)
OPEN SOCIETY JUSTICE INITIATIVE (USA)
 The bill was passed by the Parliament in June 2004, with some amendments, not enough though to ensure real independence of justice
 The bill was passed by the Parliament in June 2004. The observations made by APADOR-CH largely the same for the new law.
 Judges are “irremovable” (art. 3) and prosecutors are “stable” ( art. 4)
Unfortunately, this has already happened. Nicolae Popa, former adviser of President Ion Iliescu, although lacking any experience as a judge, was appointed president of the High Court of Cassation and Justice. And prosecutors Ilie Piciorus and Alexandru Tuculeanu, strongly contested by the public opinion for years, were appointed in important positions inside the Superior Council of Magistrates.
 The draft Bill was adopted by the parliament in June 2004. Some of the comments made by APADOR-CH are still valid for the new Law.
The Bill was passed by the Parliament at the end of 2004 and became a Law.
At the end of 2004, the bill was under debate in the Chamber of Deputies.