HUMAN  RIGHTS  DEVELOPMENTS IN  ROMANIA

THE  ACTIVITIES  OF  THE ROMANIAN  HELSINKI  COMMITTEE   (APADOR – CH) IN 2005

INTRODUCTION

The year 2005 has not seen any major improvement of human rights in Romania, with the exception of freedom of expression and association. After several years of ever increasing pressures on the media, 2005 finally brought about some relaxation in that respect. The problem of economic pressure, by means of preferential attribution of government publicity contracts was solved in term of legislation in May 2005. At the same time, physical attacks against journalists, which had increased to a worrying extent in 2004, ceased almost completely in 2005. Both print media and televisions were able to criticize the power circles without any major impediments. The NGO’s had increased access to televisions. There were no important cases of journalists convicted for insult or calumny, although the courts showed a worrying tendency to grant huge compensations in calumny trials (both criminal and civil), a practice that encourages self-censorship. In the fall of 2005, the Government made a series of amendments to the Criminal Code – among them the proposal to exclude insult and calumny from the list of criminal offences - which it submitted to the Parliament. By the end of the year, the amendment had been voted by the Senate and waited for the Chamber of Deputies to debate it. As for freedom of association, Ordinance no. 26/2000 on associations and foundations was finally approved by a Law, while Ordinance no. 37/2003, which contained many threats against freedom of association, was repealed.

The year 2005 was first of all a step in Romania’s EU accession process. In that context, combating corruption was given special attention, both in terms of legislation and of implementing the existing legislation. The „Anticorruption Campaign” launched by the authorities has generated fears that the rights of persons under suspicion of having committed acts of corruption will be violated. As a reaction to the express requirement of the European Commission to prove the efficiency of the anti-corruption fight by investigating and convicting corrupt dignitaries, the state authorities have given disproportionately high importance to their preventive arrest. On many occasions, the suspects’ arrest and subsequent release generated media circus. APADOR-CH protested on several occasions against such practices, pointing out that preventive arrest was the exception, while the rule was that suspects should be tried in liberty. Economic crimes and corruption offences do not provide sufficient grounds to make an exception.

The unacceptable intervention of the prime minister, who called the General Prosecutor of Romania with regard to an important case, was also a cause for preoccupation, revealing the practice of influencing prosecutors in their impartial work. Although the civil society had a strong negative reaction to the Prime Minister’s behavior, the latter did not review his position, giving APADOR-CH reasons to believe that such practices might be used again.

The laws governing the judiciary system were amended once again in 2005, and the judges were granted increased powers. However, the laws still include provisions that might affect the fundamental rights and liberties, such as the appointment or dismissal of the general prosecutor by the Minister of Justice, or the existence of military courts and prosecutor’s offices.

The legislation continued to be as instable as in the previous years, with frequent modifications that confuse both judges and attorneys. An eloquent example was the amendments for the Criminal Code. The coming into effect of the 2004 Criminal Code was annulled, while the current Criminal Code was modified.

The Police remained the most conservative and less transparent state institution. The 2002 demilitarization of the police produced minimal effects. External control over police activities remained wishful thinking, and public order territorial authorities functioned only on paper. Accusations of ill-treatment or misuse of firearms persisted in 2005, without being genuinely and efficiently investigated, as the European Convention of Human Rights requires.

The penitentiary system functioned according to a totally obsolete law, one of the main obstacles for a complete and genuine reform. The coming into effect of the new Law on the execution of sentences, initially planned for June 2005, was delayed until the 1^st of September 2006. At the same time, a new draft bill on the matter was submitted to the Parliament, but repealed by the Senate. Practically, the worst problems in the penitentiary system were the same: overcrowding, the lack of adequate medical treatment and the insufficient educational and cultural activities able to ensure social reinsertion after release. In that respect, the activity of probation centers (renamed “Services for the Protection of Victims and Social Reinsertion of Convicts) was insignificant. Making victim protection part of their attributions was not an inspired decision, since it actually weakened the capacity of these services to ensure social reinsertion of former prisoners.

In what concerned the protection of private life, the year 2005 did not bring any notable progress either. The 1991 Law on national security was still in effect at the end of the year, with not as much as an amendment.

I.       THE LEGISLATIVE FRAME

In 2005, the legislative activity was relatively slower than in previous years: the Parliament passed 415 laws and the Government issued 209 emergency ordinances and 55 ordinances. Therefore, the total was of 679 principal normative acts. For comparison, 838 normative acts had been passed in 2004 (602 laws - 102 emergency ordinances - 94 ordinances), 832 in 2003 (609 – 128 – 95), 965 in 2002 (683 – 209 – 73) and 1065 in 2001 (782 – 195 – 88).

A decrease may be noticed in the number of laws, as well as an increase in the number of emergency ordinances, with 2005 scoring equal with 2002 (the number of emergency ordinances had decreased in the meanwhile).

The tradition of preferring secondary legislation (normative acts inferior to laws: Government decision, ministerial orders, instructions, etc) was maintained in 2005. Thus, 1,824 Government decisions were issued throughout the year, fewer than in 2004 (when 2,373 such decisions had been issued) but more than in 2003 (1,530 government decisions), 2002 (1,548 government decisions) and 2001 (819 government decisions).

Among the laws passed in 2005, relevant for the enforcement of the state of law and human rights were the following:

- Law no. 160/2005 approving Government Emergency ordinance no. 58/2002 on the modification and completion of Criminal Code provisions regarding offences against dignity and offences against authority, as well as some Criminal Procedure Code provisions. According to the new law, calumny was no longer sanctioned by prison (only by criminal fines), insult and calumny were no longer considered outrage (as were threats or physical violence); 

- Law no. 182/2005 approving Government Ordinance no. 64/2004 on the completion of art. 3 of the Decree-law no. 126/1990 on measures regarding the Romanian Church United with Rome (Greek-Catholic). Although the law did not eliminate the obviously inefficient procedure before the joint committee for the restitution of Greek-Catholic goods, it simplified it and fixed a time limit; at the same time, the parties were given access to a court solution;

- Law no. 247/2005 on the property and justice reform, as well as on other adjacent measures. This was in fact a “legislative package” including, among other things, amendments to the “property laws”, the Criminal Code (preventing home trespassing was accepted as grounds for self-defense), Law no. 303/2004 on the status of magistrates, Law no. 304/2004 on the organization of the judiciary and Law no. 317/2004 on the Superior Council of Magistracy.

APADOR-CH also noted as a negative occurrence the fact that an Emergency Ordinance, no. 58/23.06.2005, was issued in order to delay until September 2006 the coming into effect of Law no. 294/2004 on the execution of sentences and other decisions taken by judiciary bodies during criminal trials. If there was any emergency, it was of implementing, not of delaying the new legislation, given that the existing laws were 35 years old (since 1969) and had long ceased to cover the current requirements of the system.

Besides releasing comments on several laws passed in 2005, APADOR-CH also examined other draft bills that could have posed threats to human rights.

1. The Draft Bill on Amending the Criminal Procedure Code

The comments and observations made by APADOR-CH refer to the draft bill posted on the site of the Ministry of Justice on 10.05.2006, in accordance with the transparency law.

The draft bill includes some useful amendments, many of them welcome, but fails to cover the whole range of problems in the criminal procedure matter.

Thus, the Criminal Procedure Code has to stipulate the right of the parties to effectively access the file that concerns them, by having copies of any documents in the file released, the right of the defendant to ask questions to the injured party, to the civil party and to the witnesses on the occasion of their hearing in the investigation stage, the right of the perpetrator (the individual who is not yet subject to criminal prosecution) and of the witness to be assisted by an attorney.

The following are necessary: to limit the competencies of prosecutors’ offices and of military courts, to forbid the continuation of searches beyond 20:00 hrs, to forbid the surveillance of individuals prior to formal indictment, to give judges the power to authorize any body and car search, to limit the cases when the arrest is decided or extended in absence of the defendant only to those instances where the defendant shuns investigations, to remove the possibility to summon an individual by a phone or by telegraphic note, to provide clear and strict reasons for the commencement of the criminal proceedings, to eliminate the possibility of the court returning the file to the prosecutor.[1]

„APADOR-CH COMMENTS IN RELATION TO THE DRAFT BILL FOR THE AMENDMENT OF THE CRIMINAL PROCEDURE CODE” (excerpt)

1. In art. 6, regarding the guarantee of the right to defense, we require the introduction, after paragraph 5, of a new paragraph 6, that should stipulate the right of the parties to obtain photocopies of all the documents in the file that concerns them, both the file in the criminal prosecution stage, including the drafting of the preliminary documents, and the one being tried, as well as the one for which a solution was awarded by the prosecutor’s office or by the court. The parties are to pay only the price of the photocopies.

In practice, the right of the parties to read the content of the criminal file that concerns them lacks substance in the criminal prosecution stage, although it is a critical element of the right to defense. The criminal prosecution file is often incomplete and is provided only for a short period of time, at the discretion of the criminal prosecution body, the counselor for the defense being in the position to examine it superficially.

In addition to that, the provision of photocopies of the documents in the file to the parties removes the possibility for some of them to get lost/disappear from the file, and is a security measure for a fair investigation.

Making photocopies is usually allowed in court; however, in many courts in the country other administrative barriers are raised: charging other fees in addition to the price of the photocopies, which results in a price between ROL 16,000 and ROL 20,000 instead of ROL 2,000 (the price at any copy shop).

In the absence of an express legal provision to acknowledge the right of the parties to obtain photocopies of the file that concerns them, this critical component of the right to defense is and will remain an illusion.

2. It is necessary to limit the competency of military prosecutors’ offices and courts to the criminal deeds perpetrated by the military of the Ministry of National Defense, in relation to their job-related assignments. As a consequence, art. 26, art. 28 and art. 28/2 of the Criminal Procedure Code have to be amended in this respect.

3. Art. 60, paragraph 1 – the approval or the repealing of the request to relocate the case should be justified, as any other decision made by the court.

4. Art.77/1 regulates special methods to examine the injured party and the civil party. There is no provision to guarantee the right of defendants (the perpetrators or culprits), to take part or, at least, ask questions to the injured party or to the civil party, as part of their right to defense. A similar situation occurs in the case of special hearings of witnesses, under art. 86/2. To note that art. 6, paragraph 3, letter c and d of the European Convention on Human Rights stipulate the right of the defendants to defend themselves and to ask questions to the prosecution witnesses. That is why there should be provisions that enabled the defendant to defend themselves and, for the exercise of this right, to ask questions.

5. We request that paragraph 1 of article 91/1 be amended and supplemented as follows: to eliminate the wording “preparation” from the phrase “preparation or perpetration of a criminal deed”. This is because the criminal code does not sanction actions in preparation of a criminal deed, which are not tantamount to an attempt. Exceptionally, when the preparative actions are considered by the law maker as dangerous for the society, they are to be incriminated distinctly, as they are considered criminal deeds in themselves. An example in this respect is the criminal deed in article 167 of the Criminal Code (conspiracy) that sanctions preparatory actions for the perpetration of treachery, espionage deeds, etc. It results that it is sufficient for the text of art. 91/1, paragraph 1 to refer only to the “perpetration of a criminal deed” and not to its preparation, as well.

In addition to that, “the perpetration of a criminal deed” represents an objective, verifiable reality, while “the preparation for the perpetration of a criminal deed” has an obvious subjective nature. In practice, such a subjectivism does not reflect the attitude of the alleged perpetrator, but rather the attitude of the investigator.

As the provisions of articles 143 paragraph 3 and 228 stipulate that when there is data or solid indication that a criminal deed has been perpetrated, the criminal prosecution commences and the text of article 91/1 paragraph 1 refers to “solid data or indication regarding the … perpetration of a certain criminal deed”, APADOR-CH requests that this paragraph be supplemented in the sense that the tapping/recording authority is to be given “only after the said criminal prosecution has started”.

Under the same article 91/1, APADOR-CH requests the introduction of a new paragraph, at the end of the article, with the following content: “The authorization for tapping and recording the conversations and communications of an individual may be given only once, during the same criminal prosecution”.

The lack of such a provision results in the fact that it is possible to breach the limitation to maximum 4 months provided by paragraph 4 by resuming surveillance of the same individual several times during the same case.

6. The text of art. 98, paragraph 1/2, concerning the seizure of correspondence and of objects, should be supplemented with the following: “the provisions of article 91/2, paragraphs 2-4 shall be applied accordingly”. This is because the exceptional cases when the prosecutor can decide the seizure/submission of the correspondence and of objects sent must have the same restrictive regime as in the case provided in the draft bill for the tapping/recording of conversations/communications. Paragraph 1/2 of article 98 of the draft provides less restrictive conditions for the prosecutor to make such a decision, as compared to the conditions and procedure provided by art. 91/2, paragraph 2 and 3. At the same time, article 98 does not provide the obligation to inform the individual, as provided by article 91/2 paragraph 4.

There is no reason for making a distinction between “conversations and communications” on the one hand and “correspondence” or sending “objects” on the other hand. Article 28 of the Constitution stipulates, in a single text, both the inviolability of correspondence and of conversations over the phone or by other means of communications. That is why there is no justification for a distinction between conditions and procedure, both exceptional, if the prosecutor may decide to limit this right. In the case of written “correspondence” it is necessary for the prosecutor to observe the conditions in article 91/2, paragraphs 2 and 3. At the same time, it is necessary to inform the individual concerned, such as provided by article 91/2, paragraph 4 of the draft bill.

7. Art. 99 regarding the forced seizure of objects or documents allow for this measure to be taken before the start of the criminal prosecution, during the preparation of preliminary documents. The provisions allows for abuse from the criminal prosecution bodies, who may forcefully seize objects or written documents from anyone, legal or natural person, without even having solid clues to justify the commencement of the prosecution. Practically, in the ambiguous phase of the preparation of preliminary documents, all records of a company may be seized and its activity can be blocked. By introducing paragraph 1/1, this problem is not solved, but on the contrary, the role of the court is limited only to the criminal prosecution stage, but before the start of the criminal prosecution, the only one to decide upon the forced seizure is the criminal prosecution body.

8. Art. 100 paragraph 3, regarding the search. Authority has to be given to the judge by law not only in the case of house searches but also for body and car searches. These two kinds of search are not subject to any clear regulation and this allows for abuses.

At the same time, the validity of the warrant, of 7 days, is too wide, having in view the legal grounds that can justify a search and that have an urgent nature. The one-week timeframe between the release of the warrant and the actual search can lead to the alteration or disappearance of evidence (about whose existence there is, or there should be, indication as of the date of search warrant request and release). At the same time, such an extended timeframe can generate speculations and the belief of the searched individual that during those 7 days evidence can be forged and placed so as to accuse them. The validity of the warrant should not be more than 24 hours.

Paragraph 5 of the same article 100, should be supplemented as to provide the obligation of the criminal prosecution body to inform that individual, in writing, that the search is to be performed before the start of the criminal prosecution and that they have the right to perform the search.

9. Art. 103 stipulates in the end that “the search that starts between 6 and 20 hrs can continue during the night, as well”. We request that this text be taken out as it breaches article 27, paragraph 4 of the Constitution. According to the constitutional text, “it is forbidden to perform night searches, except for the flagrant offence”. Or, the exception of the “flagrant offence” is stipulated by article 103, anyhow, so that any other exceptions to the rule provided in the Constitution are not acceptable. 

(...) 

11. Art. 143 paragraph 5 regarding the reasons for the restraint. When defining the plausible reasons, it is not enough that they “can lead to the suspicion that it was the accused or the culprit that perpetrated the deed, instead they should be able to lead to the “reasonable suspicion that the accused or the culprit perpetrated a crime”. The term “deed” is too vague and may lead to abuses, and the “suspicion” has to be reasonable, again in order to avoid abuse, subjectivism. Anybody may have suspicions, at any time and for any reason.

(...)

14. We request that a separate article be introduced after article 174 to expressly provide the right of the individual that is subject to the preparation of preliminary documents to be assisted by an attorney and, at the same time, the right of the individual that is summoned for hearing as a witness to be assisted by an attorney.

In practice, it is during the preparation of the preliminary documents that the crucial part of the criminal prosecution is performed: witnesses are examined, the perpetrator is examined, expert checks are performed, objects and written documents are taken, and searches are performed. The perpetrator has no protection against all these truly criminal prosecution activities, nor can they be assisted by an attorney, as the authorities state that criminal prosecution has not yet started, therefore the criminal trial has not started and the perpetrator is neither accused nor a culprit so that they be “allowed” to be assisted by a lawyer. A legal fiction, that according to which preliminary documents do not belong to the criminal trial, is used for justifying an obviously abusive behavior of the authorities as to the “perpetrator”, against whom accusations are gathered, without giving them the legal possibility to defend themselves and to benefit of the legal assistance of a attorney. The right to defense lacks substance as long as, when authorities make investigations regarding the deeds of a certain individual, that individual is denied the right to defend themselves.

In the case of witnesses, it is also customary to use that position against individuals. It is much simpler for an individual that is suspected of having committed a criminal deed to be summoned as witness in that case. They will give an oath that they are going to say everything they know and, in order not to be accused of misrepresentation, are forced to declare things that may be used against them. An interrogatory is therefore taken of the accused, in the disguised form of a witness hearing. As criminal procedure does not recognize the right of the witness to be assisted by an attorney their interrogatory (which in reality and substantially is a hearing of the accused) is going to be unfair. This is because an individual that, de facto, is in the position of the accused does not benefit of the de jure rights that they should have benefited, had their real capacity been recognized.

15. Even though the draft bill does not refer to the change of article 175, paragraph 1, we request to take out the text giving the possibility for a person to be summoned “by phone or by telegraph notes”.

We believe that the procedure of the “notes” does not represent a real proof of having informed the respective individual.

16. In article 178, paragraph 2/1 provides for the possibility that the summons addressed to an individual living abroad be posted on “the door of the prosecutor’s office or of the court” in certain circumstances.

We request that this text be removed as this is a purely formal summon and does not inform effectively the individual living abroad.

17. Under article 183 on the arrest warrant, we request that paragraph 2 be amended by replacing the phrase “there is a grounded reason” with the limitative list of situations when such a warrant can be issued as, in fact, by enforcing such a warrant, that individual is deprived of freedom. Instances of deprivation of freedom have to be expressly and precisely stipulated by the law, and not judged at anyone’s discretion.

(...)

19. Under art. 228 (start of criminal prosecution), in order to create the possibility for the accused to be as accurately informed as possible on the accusations, we request that a new paragraph 3/2 should be added after paragraph 3/1 in article 228, to expressly provide the prosecutor’s obligation to communicate the accused, ex officio and within a very short time, a copy of the documents based on which the criminal prosecution was decided and confirmed (decision/minutes for the start of the criminal prosecution and decision for the confirmation of the criminal prosecution).

20. We request that a new paragraph 3/3 be introduced after paragraph 3/2 of art. 228 (as proposed in item 19 hereof), that should stipulate the right of the accused to address the court in order to challenge the decision/minutes for the start of the criminal prosecution and of the decision of the prosecutor to confirm them.

At present, there is only a provision as to the possibility to challenge the no-prosecution decision (art. 278/1 that includes all instances for the decisions not to start trial procedures). The decision based on which the criminal prosecution commences or that confirms the commencement of the criminal prosecution is not subject to any means of appeal in the court, which breaches art. 21 of the Constitution, that guarantees the free access to justice.

The impossibility to challenge in court the decision to commence the criminal prosecution allows for the criminal prosecution bodies to commit abuses that cannot be challenged by any means of appeal from outside the system of the prosecutor’s office; therefore, the only ones able to “control” the decision are those that made it.

If criminal prosecution commenced in relation to an individual, it means that there are plausible reasons to suspect that the individual has perpetrated a crime. The commencement of the criminal prosecution coincides with the start of the criminal trial. Starting that date, the individual is considered defendant (accused) and is subjected to severe limitations of their individual freedoms: they can be restrained, held in custody, searched, placed under surveillance, etc. Once the criminal prosecution commences, the criminal investigation also starts and it is often a lengthy process which requires that numerous criminal investigation actions be performed and evidence be gathered (by identifying and hearing the witnesses, by cross-examinations, expert checks, seizure of written documents, etc.).

The involvement of an individual, in their capacity as accused, in such a lengthy and thick procedure may generate psychical traumas, taking into account the permanent stress that individual is subject to when an accusation is expressed against them and thus makes them part of a criminal trial. That is why the possibility for an individual to be abusively involved in a criminal case should be reduced as much as possible. Such a possibility can be reduced mainly by the court censuring the document based on which the criminal prosecution is to commence. The court has to examine the file of the case and to appreciate if there are plausible reasons for a criminal investigation to be launched.

In addition to that, the control exercised by the court on all documents and decisions in the criminal prosecution stage is a principle that should govern the entire criminal procedure and, logically, it also has to govern the commencement of the criminal prosecution.

21. Art. 234 paragraph 1 and art. 235, regarding the start of the criminal proceedings have to be amended as follows:

The two mentioned texts regulate the start of the criminal proceedings, a very important moment in the development of the criminal trial, as starting that moment the accused is considered a culprit, and, as a consequence, they are subject to the most severe restraining of their individual rights and freedoms.

The two legal texts do not make any reference as to how solid the evidence against the accused should be to support the decision of starting the criminal proceedings. The only condition stipulated is “If the criminal investigation body considers that there are grounded reasons for launching the criminal proceedings….”. There is no reference, not even as an example, as to what these grounded reasons that start the criminal proceedings are. This is equivalent to acknowledging that the free will or discretion of the criminal investigation body are valid criteria. Obviously, this omission determines the unpredictability of the law regulating the start of the criminal proceedings, as the individual subject to such proceedings cannot have any idea on how and when the criminal proceedings are to start against them. 

That is why we request that these two articles be amended and supplemented, by indicating the conditions, the reasons that might justify the start of criminal proceedings (for instance the existence of solid, clear, indubitable evidence proving the guilt of the accused). 

(...)

23. At present, there is a possibility for the court to return the file to the prosecutor when it is noticed that the criminal investigation is not complete, according to article 333.

We request that this article be entirely repealed, as it is only a compromise solution between acquittal and conviction (a disguised acquittal). Moreover, the culprit is going to remain in an insecure and unsafe situation as to the accusations written in the document that sends them before the court. If the evidence gathered during the court investigation did not prove, beyond any doubt, the guilt of the accused, the acquittal is the fair decision. There is no reason to give the criminal investigation bodies the possibility to resume investigations in a case that was once finalized.

For correlation reasons, the reference to article 333 should be removed from the text of article 338.

24. Under art. 504, on the cases giving the right to redress the damage in the event an individual was wrongly convicted or illegally deprived of freedom we request that paragraph 3 be eliminated, as the exercise of the right to redress the damage is conditional upon the determination of the illegal character of the deprivation of freedom by the prosecutor, based on an ordinance, or by the court, based on a decision.

This condition is an arbitrary restriction as, from the very moment the acquittal decision is adopted or the no-prosecution ordinance is released, the deprivation of freedom decided in that case gives birth to the right to indemnification, irrespective of how the judiciary body characterizes such a measure. Therefore, it is sufficient for an individual to cease to be subject of criminal prosecution or to be acquitted for the respective individual to have the right to redress. The distinct determination of the illegal nature of the measure that deprived that individual of their freedom is not necessary any longer. The illegal nature of that measure results from the very acquittal or from the solution of ceasing the prosecution. It is also illogical to claim that an individual who was acquitted had been legally deprived of freedom, as it is obvious that on the date they were deprived of freedom there were no real grounds for that decision, such lack of solid evidence being maintained until the cause was concluded with the acquittal of that individual.

2. Draft bill on Amending the Criminal Code

The comments and observations made by APADOR-CH refer to two versions of the draft bill on amending the Criminal Code, initiated by the Ministry of Justice.

APADOR-CH considers that the Criminal Code needed to be amended, especially in order to diversify sanctions, which have been limited so far to prison and fines – and, for that reason, could not be individualized adequately - and in order to “air” the special chapter, by eliminating at least some obsolete crimes, from the many included.

Although the draft Criminal Code is a step ahead, APADOR-CH has asked essentially for: rethinking fines for both physical and legal persons, because their exaggerated quantum may lead to the cessation of the legal person or to over-burdening physical persons; repealing certain articles, among which: art. 164, paragraph 4, sanctioning any person who comes into possession of classified documents[2], art. 236 (offence against ensigns), art. 321 (outrage against morality), art. 328 (prostitution); introducing community service as an alternative to prison; eliminating prison sanctions for minors[3].

I. THE OBSERVATIONS OF APADOR-CH REGARDING THE DRAFT BILL ON AMMENDING THE CRIMINAL CODE(version posted by the Ministry of Justice on August 31, 2005)

1. General remarks:

1.1. Sanctions for legal persons are excessive both in terms of quantum of fines (from 25 million to 20 billion lei) and of complementary sanctions which may become mandatory if the fine is over 100 million lei (art. 53/1 and art. 53/2).

The aim of fines for physical persons is both to sanction criminal deeds and to reeducate, and help them reintegrate into society. In the case of legal persons, sanction is the only goal. Any of the complementary sanctions under art. 53/1, but especially a) dissolution and b) suspending activity or one of the activities for 1-3 years, together with a substantial fine, will surely lead to the definitive cessation of the legal person in cause.

As political parties, union, employer’s organizations, religious and ethnic organizations and the media are excepted from serious complementary sanctions, it results that the only legal persons in the scope of these draconian provisions are companies and NGOs, other than religious and minority groups. The variety of possible “crimes” is so wide that any company may be easily dragged into bankruptcy or prevented to function, to say nothing of non-governmental organizations.

These are the possible solutions:

a) All legal persons, including the state, public institutions and authorities have criminal liability. APADOR-CH reminds that they have repeatedly committed crimes provided by the Criminal Code (for instance torture/inhuman treatment or failure to abide by definitive court decisions or passing government or ministerial orders that actually invented new structures or modified the existing laws);

b) The liability of legal persons is limited to association with the intention to commit crimes provided by the Criminal Code;

c) No criminal liability for legal persons. Since physical persons who were involved in committing the crime are liable, the legal persons may answer only if they were aware of / facilitated the crime.

Besides, the maximum quantum of the fine (20 billion lei or 2 million RON) is 10 times higher than the quantum for extremely serious consequences in art. 146 (2 billion lei or 200 000 RON in the August 31 version of the MoJ). Therefore, it’s only logic to either lower the ceiling for legal persons to 2 billion RON) or to rise the quantum of fines for “extremely serious consequences” to 20 billion (2 million RON).

1.2. The minimum and maximum fines are increased tenfold compared to current provisions (art. 63, par. 2 – 1,500,000 ROL or 150 RON and 100 million ROL or 10,000 RON; and par. 3 - 3 million ROL or 300 RON and 150 million ROL or 15,000 RON). At the same time article 90 (the conditions for alternatives to criminal sanctions) the ceiling for losses is 100,000 ROL (10 RON) and, under special circumstances, 500,000 ROL (50 RON), which means that the ceiling is maintained at the current level. Obviously, almost any loss produced by the most common of all crimes – theft – will overcome this 10 RON ceiling and as a consequence, will not qualify for an alternative sanction.

1.3. The extremely vague wording “of nature to…” was maintained in many articles, mainly in the Special chapter. The threat represented by a crime must be real, concrete and demonstrable.

2. Articles of the Criminal Code that should be repealed/modified besides the ones already included in the August 31 version of the MoJ.

- The definition of a deed committed in public (art. 152) remained unchanged. APADOR-CH asks for letter c to be repealed. If a place is not accessible to the public, it’s hard to understand “the intention to have one’s deed seen or heard”, or how “two or more persons” might be present. The Associationalso asks for letter e to be repealed, as too vague and lacking predictability (“by any means that the perpetratorhas seen asa possibility to make his deeds known to the public”)

- Art. 161 (attempt against a collectivity) has remained unchanged. Quite unnaturally, the attempt against a collectivity is sanctioned only if it is “of nature of weakening the state”, a typical sample of totalitarian thinking. Not the people in a collectivity are important, but the power of the state.

- From art. 169 (divulging a secret that threatens state security), the Association asks that paragraph 4 be repealed. The responsibility of protecting data and documentsconcerning national security lies exclusively with those who know those secrets as part of their work duties. No other person may be sanctioned criminally for their mistakes. Moreover, no other person is expected to be aware of the importance of data and documents he/she accidentally has in possession.  

- Art.  201 (sexual perversion) was maintained, although no definition is offered for this deed. The Association asks for the article to be repealed.

- Art. 236 (offence against ensigns) must be eliminated.  In the USA and Germany, burning the national flag is considered to be a form of manifesting one’s freedom of expression.

- From art. 253/1 (conflict of interests), newly introduced, we ask for paragraph 2 to be repealed. The paragraph excludes sanctions against conflicts of interests arisen by issuing, approving or passing normative acts.There is no justification for this exception, especially since the media have pointed out to cases when such acts were passed (irrespective of their level – from government decisions to local council orders) in a situation of conflict of interests.

- In art. 317 (instigation to discrimination), newly introduced, we ask that the wording “instigation to hatred” be replaced by a wording that signified the instigation to an action, not to a feeling (hatred is a feeling and instigation to feelings cannot be sanctioned by the criminal law). Article 317 might provide that instigation to discrimination on grounds of race, nationality, etc, is sanctioned by the law (discrimination is an action) instead of instigation to hatred on grounds of race, nationality, etc. Also, in order to increase the predictability of incrimination, a separate paragraph might define discrimination. Government Ordinance no. 137/2000, approved by Law no. 48/2002, includes a definition of discrimination, but as the ordinance expressly provide, that definition is only applicable to aspects contained in that ordinance which covers contraventions, not crimes. Art. 2, par. 1 of GO stipulates: “In this ordinance, discrimination means...”. Also for the sake of predictability, the legislator should include in the definition of the deed some criteria according to which the crime may be distinguished from contraventions provided by GO 137/2000.

- Art. 321 (outrage against morality and disturbing public order) must be repealed. Such deeds do not represent a social threat that justifies criminal sanctions, and they may be punished by fines.

- Sanctions under art. 325 (dissemination of obscene material) must be limited to cases when the receiver is a minor. Moreover, it is not clear who and according to which criteria may decide whether the materials are or not obscene.

- APADOR-CH asks for art. 328 (prostitution) to be repealed. The Association is convinced that legalizing prostitution will have a benefic effect on the state of health of both those who engage in prostitution and for their clients. Moreover, if legalization is accompanied by a legal framework, the tax basis may increase by a category of revenues that will always exist, but remain for the moment in the underground economy.

II. THE OBSERVATIONS OF APADOR-CH REGARDING THE DRAFT BILL ON AMMENDING THE CRIMINAL CODE(version posted by the Ministry of Justice on September 15, 2005) – excerpt

1. Community service

Community service should be an alternative to prison sentences. The MoJ draft bill has turned this alternative to prison, frequently used in democratic countries, into an accessory measure, at the free choice of the judge, as part of the observation and convict obligations package (art.103, par.1, letter a1). Moreover, the law includes an exaggerated amount of unpaid work (500 hours, the equivalent of 3 months of 8 hours a day, 5 days a week work, impossible to provide by a convicted person who already has a job or permanent occupation).

APADOR-CH insistently asks for community service to be included in the draft bill as an alternative to prison. The number of hours should be computed by taking into account the situation of each convict (working/jobless, student, permanent occupation), so that the person may be able to observe the court order without endangering his career or the livelihood of his family.

2. Fines and complementary sanctions for legal persons; fines for physical persons (the same observations as for the August 31 version).

3. Minors

APADOR-CH pleads against prison sanctions in the case of minors. If a minor committed a deed representing a high social threat (manslaughter or rape), he/she may be detained in a re-education centre or, if necessary, in a medical institution. When they turn 18 or 20 (when the measure of detention was extended for two years), the situation of minors in reeducation centers will be examined by a court, who will decide whether they are to be released or to be sent to prison. In the case of minors confined to a psychiatric institution, they may be released at 18 or 20, or even before, if the cause of their confinement has disappeared. In all other cases, minors should be sanctioned by alternatives to prison, no matter what is the nature of their deed.

(...)

6. Deeds committed in public (art.168)

The Association asks for letter c (“in a place not accessible to the public, but with intention to be seen or heard, and if the result was witnessed by two or several persons”). If a place is not accessible to the public, there can be no intention for the deed to be seen or heard, and there’s no justification for two or several persons to be present. Also, we ask for letter e to be repealed (“by any means that the perpetratorhas seen asa possibility to make his deeds known to the public”). On the one hand, the wording “any means” is much too general, and ton the other hand the notion “possibility” widens the sphere of personal responsibility to a too great extent, requiring an exceptional power of anticipation.

II.    ACCESS TO PUBLIC INFORMATION

APADOR-CH continued to monitor throughout 2005 the implementation of Law no. 544/2001 on fee access to public information, by sending information requests and launching court actions whenever the authorities or public institutions failed to provide the required information without legal justification. At the same time, the Association followed all cases opened in previous years. Besides monitoring the enforcement of Law no. 544/2001, APADOR-CH also embarked in projects promoting free access to public information and improvement of the existing legislative framework in the field.

1. Requests of information and court actions

1.1. Cases initiated in 2004 and continued throughout 2005[4]

First of all, during 2005 APADOR-CH continued its enforcement procedures launched against the Public Ministry, against Prosecutor General Ilie Botoş, Prosecutor General Tănase Joiţa, the Ministry of Public Finance and the Minister of finance. All these motions followed the failure to enforce definitive court sentences that obliged the public authorities to communicate certain public information.

A first such case was the one against the Public Ministry, and former Prosecutor General Tănase Joiţa, who failed to observe, while he was in office, a definitive and irrevocable court sentence that obliged the Ministry to release statistic data on surveillance. In October 2004, the Bucureşti Tribunal fined Tănase Joiţa for failing to abide by a court order by 500 ROL for each day of delay, and the Ministry to joint damages of 300,000 ROL/day. The appeals against the decision were judged by the High Court of Cassation and Justice and on June 14, 2005, and denied.

A second set of court motions were those concerning the Public Ministry and Prosecutor General Ilie Botoş, who also failed to abide by the same  court order, after being appointed in Joiţa’s place (August 2003). Botoş was fined by the Bucureşti Tribunal on December 2, 2003. The appeal was judged on February 7, 2005, and the Bucureşti Court of Appeal maintained the ruling of the first instance court.

A third set of court motions were filed against the same Public Ministry and Prosecutor General Ilie Botoş, this time for failing to abide by the court order in totality – the data on surveillance finally release included information on surveillance authorizations issued by virtue of the Criminal Procedure Code, but not on those issued by virtue of the National Security Law. APADOR-CH asked the administrative courts to note that the court ruling was incompletely enforced, to fine the Prosecutor General and to grant damages. In June 2005, the Bucureşti Tribunal ruled in favor of the Association and fined Prosecutor General Ilie Botoş for a second time, for failing to abide by a court order, but denied the request for damages. Both APADOR-CH and the Public Ministry and Ilie Botoş filed appeal against the sentence. The Bucureşti Court of Appeal was expected to rule on the case in January 2006.

An enforcement motion submitted in 2003 against the Ministry of Public Finance and the Minister of finance was finalized by a definitive and irrevocable sentence of the High Court of Cassation and Justice, ruled on March 9, 2005. The High Court of Cassation and Justice denied the appeal made by the minister and his institution against the decision passed in March 2004 by the Court of Appeal and which sentenced them to pay joint compensatory damages amounting to 3,000,000 ROL to the Association, ruling that the minister should pay a civil fine of 500 ROL/day of delay for the whole period when the Ministry was due to release information on stamp duty exemptions.

Another court action still under way in 2005 was the one triggered by the refusal of the Romanian Government to release documents regarding the appointment of former Prosecutor General Tănase Joiţa as general consul in Strasbourg, including medical documents. The Association’s motion was dismissed in first instance by the Bucureşti Tribunal, who considered that the Government had communicated all the information it had (actually, only a half a page note!). The Court of Appeal decided that the first instance court had to rule again, and the motion was once again dismissed. APADOR-CH filed an appeal against that decision as well, but the Bucureşti Court of Appeal denied the appeal in May 2005.

In 2004, N.P., a member of APADOR-CH, filed a petition with the Romanian Government requesting information regarding the number of controls concerning conflicts of interest carried on by the Prime Minister’s Control Department after the anti-corruption law package was passed, the names of those under control and conclusions of the investigations (copies of the document). The petition was filed as part of a program launched by Open Society Justice Initiative and run in Romania by APADOR-CH, which monitored the enforcement of Law no. 544/2001. The Government failed to release the requested information on the grounds that an official order had the Prime Minister’s Control Department had been dismissed by official order. N.P. opened a court action against the Romanian Government, requesting that the information be released. In November 2004, the Bucureşti Tribunal ruled that the Romanian Government should release the information and pay 1000 Ron as moral damages to the plaintiff. In February 2005, the Bucureşti Court of Appeal decided that the defendant, the Romanian Government, may not be sued and sent the motion back to the tribunal. Upon retrial, N.P. asked that the Prime’s Minister’s Office be considered as the defendant. In September 2005, the Bucureşti Tribunal once again ruled in favor of the plaintiff, sentencing the Prime Minister’s Office to pay moral damages of 1000 RON. The office filed an appeal against the court decision, expected to be judged in January 2006.

During 2005, APADOR-CH offered legal assistance to the Association of Unprivileged Revolutionaries (ARP) in a cased based on Law no. 544/2001. At the end of 2004, the ARP asked the State Secretariat for problems concerning the December 1989 Revolutionaries (SSPR) to provide information on the rights and material benefits granted to participants to the revolution and to victim’s relatives, as well as the names of the beneficiaries. The SRSS claimed it did not hold such information, and the ARP sued the institution by virtue of Law no. 544/2001. On January 28, 2005, the Bucureşti Tribunal ruled in favor of the ARP, sentencing the ARP to release the information and pay 500 RON as moral damages. The SSPR appealed against the damages. The Bucureşti Court of Appeal dismissed the motion on June 30, 2005. Following the court action, the State Secretariat for problems concerning the December 1989 Revolutionaries started to publish information on the people who received privileges as a result of their participation to the December 1989 events on its internet site. Also, it was one of the first cases, if not the first, when a legal person whose right to access public information was infringed upon was granted moral damages.

1.2. New Cases

In 2005, APADOR-CH filed requests for information with the National Authority for Consumer Protection (data on the composition of bread, the number of complaints with regard to bread quality, the number of controls made between February 2001 and September 2005 to check bread composition, as well as the number of contraventions. The request was aimed at verifying to what extent the authorities balanced public interest and exceptions to free access to public information when they respond to such a request); with the Ministry of Administration and Interior (data on the complaints regarding assault and misuse of firearms by employees of the ministry between January and August 2005); with the General Inspectorate of Police (information on people taken in police custody but not brought to trial, and the surface of police custody cells); with the National Administration of Penitentiaries (data on sanctions against prison staff between 2000 and 2004, on persons serving custodial sentences who were found HIV positive between September 1998 and December 1999, as well as on the costs of medication for prisoners and for penitentiary staff in 2004-2005). Most requests received satisfactory answers, in time, except the one addressed to the National Authority for Consumer Protection, which failed to forward the request to the institution who detained all the data, as provided by Law no. 544/2001.

At the same time, APADOR-CH continued to sue public authorities/institutions who failed to release public information in accordance with Law no. 544/2001. The Association was particularly interested to sue those authorities/institutions that used exceptions to Law no. 544/2001 (art. 12) as grounds for denying the request for information, so that the proper use of exceptions may be clarified.

Such a court action was triggered by a petition filed with the Romanian Government/ the General Secretariat of the Government, requesting the release of copies from the shorthand records of meeting during which the Government debated and passed ordinances regarding RAFO S.A. ONEŞTI, including the record of the session when the Government Emergency Ordinance no. 101/2004 was debated and approved. The Government refused to release the information, on grounds that all records of Government meetings are classified. The Association filed a complaint with an administrative court against the refusal of public authority to release information. At the same time, APADOR-CH filed a petition asking the Government to declassify the information, because only information on national security is classified as state secret, which was not the case. The request was denied. In September 2005, the Bucureşti Tribunal dismissed the motion filed by APADOR-CH on grounds of admissibility. The Association appealed against the decision. The appeal was scheduled before the Bucureşti Court of Appeal in February 2006.

In June 2005, APADOR-CH filed a request for public information with the Bucureşti City Hall regarding contract signed between January 2000 and June 2005 for the building, rehabilitation and maintenance of public roads in the capital. Beside the information, APADOR-CH also asked for copies of the contracts. The City Hall denied the request on grounds that contracts contained confidentiality clauses. In order to clarify the incidence of confidentiality clauses in public procurement contracts upon access to public information by virtue of Law no. 544/2001, APADOR-CH filed a complaint with the court. In October 2005, the Bucureşti Tribunal found the motion partly admissible and ruled that the defendant (the city hall) should release the public information as requested. The court dismissed the motion for moral damages. Both parties appealed against the ruling, and the appeal was scheduled for February 2006.

Another motion filed by APADOR-CH by virtue of Law no. 544/2001 was against the incomplete answer given by the Insurance Supervising Committee to a request of statistic data on the number of complaints/notifications registered between January 2002 and June 2005 against insurance agencies. The Insurance Supervising Committee replied that all the information requested was posted on the institution’s internet site, although the 2005 report had not been published yet and other reports did not contain all the requested data. APADOR-CH filed a court motion, in the attempt to clarify whether publishing information ex officio excludes its release upon request. In November 2005, the Bucureşti Tribunal declared the complaint admissible before a first instance court; as a result, the public institution in cause released the requested information. The court however dismissed the motion for moral damages and APADOR-CH appealed against the ruling. The appeal was due in February 2006.

A fourth case was triggered by a request filed by a member of the Association with the National Sanitary Veterinary and Food Safety Authority. The information was similar to that requested from the National Authority for Consumer Protection (data on the composition of bread, complaints with regard to bread quality, the number of controls received between February 2001 and September 2005 to check bread composition, and the number of contraventions). With that request, APADOR-CH wanted to see how authorities weighed public interest (public health hazards) against exceptions stipulated by the transparency law (commercial secret – the recipe of bred), when the answer a request for public information. As he answer was not satisfactory, and even mentioned the professional secret, which was not among the legal exceptions, the petitioner, supported by the Association, filed a motion with the Bucureşti Tribunal. The court hearing was scheduled in February 2006.

2. Proposals made by APADOR-CH for the amendment of Law no. 544/2001 and of other laws with an impact on free access to public information:

Four years after the Law no. 544/2001 came into effect, APADOR-CH considered that it would be useful to summarize the experience of monitoring its enforcement into a set of amendments to this law and to others, also impacting upon access to information (Law no.182/2002 on classified information, Law no.14/1992 on the organization and functioning of the Romanian Intelligence Service, Law no.1/1998 on the organization and functioning of the External Intelligence Service, Law no.16/1996 on National Archives), in order to increase institutional transparency.

The Association’s proposals to amend Law no. 544/2001 aim at expanding its scope, at clarifying the exceptions, among other things by testing the extent to which certain information are of public interest, detailing provisions regarding media access to public information, completing provisions on administrative court procedures and including a new chapter of sanctions.

As concerns the amendment of other laws impacting on access to public information, APADOR-CH suggests that Law no.182/2002 on classified information should define classified information more clearly, to provide a renewable time limit to classification and to eliminate the notion of professional secret information. As concerns Law no.14/1992 on the organization and functioning of the Romanian Intelligence Service, APADOR-CH considers that it should abandon the philosophy according to which all SRI documents are classified. Only those documents who may pose a real and palpable danger to national security should be classified, while the law should stipulate classification procedure and criteria, as well as reviewing and declassification procedures for all types of SRI internal documents. Law no. 1/1998 on the organization and functioning of the External Intelligence Service (SIE) should mention that classification procedure and criteria, as well as reviewing and declassification procedures for SIE documents are the ones provided by Law no.182/2002 on the protection of classified information. Last but not least, Law no.16/1996 on the National Archives should also be amended as to provide a possibility to access documents of Romania’s National Archive Fund by virtue of Law 544/2001. The extremely long declassification limits of some information in the National Archive (100 years, for instance) should also be modified.

In order to make all these suggested amendments known to the public, in June 2005 APADOR-CH organized a round table entitled “Access to Public Information in Romania: The Need for Legislative Correlation”. The event was attended by international experts, the Minister of Culture and Religious Affairs Mona Muscă, the Chairman of the Judicial Committee of the Chamber of Deputies Sergiu Andon, representatives of the Agency for Governmental Strategies, experts of other parliamentary committees and NGOs involved in promoting free access to information. APADOR-CH will continue its efforts to amend transparency laws in 2006 as well.

3. Promoting the Transparency Law

In 2005, the Association organized two seminars for journalism and law students, to inform them on the provisions and enforcement of Law no. 544/2001. About 70 students of journalism from Bucureşti and 100 law students from Iaşi participated. APADOR-CH also organized two workshops entitled “Free Access to Public Information” for civil servants involved in enforcing the Transparency Law. The workshops, organized in Iaşi and Bucureşti, aimed at facilitating and exchange among civil servants on the one hand and between them and organizers on the other hand, with regard to practical and legislative difficulties encountered in enforcing transparency legislation. The civil servants were asked to fill in a form on the main difficulties in communicating public information. The forms were analyzed in order to substantiate the suggested law amendments.

Also in order to promote the Transparency Law, in June 2005 APADOR-CH opened a competition for journalists who use the law in their investigation. The competition has two sections: one for students and one for employed journalists, and the winners were Cosmin Buhuş (for the students section), respectively Mihai Belu (“Cotidianul” Daily), who received their prizes on the international “Right to Know Day” (September 28). This Day was nominated by several organizations in the Freedom of Information Advocate Network (FOIANet), to promote free access to public information. In Romania, APADOR-CH, “Academia Caţavencu” Press Monitoring Agency and the Centre for Independent Journalism on September 28, 2005, organized a conference on the Transparency Law, in the attempt to promote the Right to Know Day.

In 2005, APADOR-CH edited the second volume of its case study entitled “Access to Public Information in Romania”, including six cases based on Law no. 544/2001. The book is going to be published and distributed in 2006. APADOR-CH continued to disseminate its Practical Guide for Citizens with every occasion, and through a network of associations and civil servants involved in transparency activities.

III. DETENTION, REEDUCATION AND SOCIAL REINSERTION OF PEOPLE SERVING CUSTODIAL SENTENCES

1.1.  The Law on the Execution of Sentences

The penitentiary system is governed by Law no. 23/1969 on the execution of sentences. The law has not been amended and any improvements in detention conditions were due to a series of orders signed by either the Minister or the General Director of the Penitentiary Administration (ANP), which however were unable to alter the communist spirit of the legislation. In 2004, the Parliament passed a new bill on the execution of sentences that should have become effective in June 2005, alongside the 2004 version of the Criminal Code. The government created after the elections in November-December 2004 decided to delay the enforcement of both laws until September 2006. APADOR-CH protested against this decision, especially in what concerned the Law on the execution of sentences. In August 2005, the Ministry of Justice noted that the 1969 law was not just obsolete, but also in contradiction with European standards, and prepared a new draft bill. The Association’s criticism referred mainly to the following aspects:

- Maintaining the current form of police custody. APADOR-CH has repeatedly asked that, once an arrest warrant is issued, suspects should be immediately transferred to penitentiaries; thus, there is a guarantee that suspects are not put under pressure during investigations.

- Insufficient regulation regarding alternatives to imprisonment, especially community work.

- Lack of regulations regarding the regime of juvenile reeducation centers (JRC). Confinement in such a centre differs from imprisonment, but is still a form of deprivation of freedom, and like prisons, JRCs are subordinated to the ANP. Therefore, the regime in such centers should be governed by the same law.

- Insignificant differences between the “semi-open” and “open” regimes, the latter being far from what it means in traditional democracies.

- Making prison uniforms compulsory. Uniforms single out detainees wherever they go and create a psychological discomfort, for visitors, but mainly for prisoners themselves.

- Maintaining the “means of restraint”, including chains.

After several discussions between representatives of APADOR-CH and of the Ministry of Justice, the draft bill on the execution of sentences was partially improved (no more uniforms or chains). However, by the end of 2005 the bill had not been debated in Parliament.

1.2.  Religious Assistance in Prisons

Until recently, religious assistance in Romanian penitentiaries was regulated by a protocol signed by the Ministry of Justice (MoJ) and the Romanian Orthodox Church (ROC) in 1993 and reviewed in 1997.

Art. 10 of Law no. 195/2000, on the creation and organization of military clergy created a religious assistance department as part of the Ministry’s General Direction of Penitentiaries. Later, law no. 293/2004 on the status of civil servants in the ANP (formerly the General Direction of Penitentiaries) demilitarized prison staff, including military priests working for the penitentiary system.

As part of the protocol between MoJ and ROC, each prison has a religious assistance office run by a chaplain, according to a status annexed to the protocol. The chaplain is also the spiritual counselor of the governor, and has several other attributions among which keeping up-to-date records of the prisoners’ religion, sitting on the parole board or approving the appointment of room representatives.

The religious assistance practice in prisons has been repeatedly criticized as a monopoly of the Orthodox Church that limited religious freedom for prisoners of other denominations. Orthodox priests actually control the religious lives of all detainees, irrespective of denomination. Moreover, they have been granted competencies that have nothing to do with religion.

At the beginning of 2005, APADOR-CH notified the National Council for Combating Discrimination (NCCD) about the discriminating laws and regulations that governed religious assistance in prisons. By Decision no. 202/02.08.2005, the NCCD concluded that both Law no. 195/2000 and the Protocol between the MoJ and ROC contained discriminating provisions. In its decision, the NCCD “recommends the Ministry of Justice to take al necessary steps to eliminate discriminating provisions from both the Protocol and Law no. 195/2000”.

Later, in September 2005, the Association asked the Ministry of Justice to respond to the NCCD decision and issue an order denouncing the Protocol and replacing it with non-discriminating regulations regarding religious assistance in prisons. APADOR-CH also prepared a legislative proposal (a draft bill by the Minister of Justice), which basically denounced the Protocol signed with the Orthodox Church and regulated religious assistance for all denominations – majority church and small cults alike. Prisoners would be able to receive religious assistance upon request. No one would be forced to declare their religious denomination upon arrival into a penitentiary or during detention.

The Association also suggested that priests or representatives of cults and religious association should be allowed into penitentiaries for religious activities even if there are no specific requests from prisoners.

At the end of 2005, the draft submitted by APADOR-CH was still under study at the Ministry of Justice.

1.3.  Medication Spending for Prisoners and the Staff

Given the numerous complaints made by prisoners regarding the quantity and quality of their medication during detention, APADOR-CH asked the ANP, by virtue of Law no. 544/2001, for the medical spending record for 2004 and the first half of 2005, divided by category: medication for detainees and medication for prison staff. The numbers showed that one third of the overall budget was spent for the staff, although the number of employees one fourth of the number of detainees. Moreover, there are penitentiaries where the medication for the staff cost more than that for detainees. At Poarta Albă, for instance, medication for staff members had amounted in 2004 to 214.000 RON, while for detainees – obviously, much more numerous – only 52.000 RON. The situation was the same in the first half of 2005 (106.000 RON, medication for staff members and almost 39.000 RON for detainees). At Colibaşi Penitentiary Hospital, the cost of medication for staff members amounted in 2004 to 371.000 RON, while that for detainees to 250.000 RON. In 2005, the situation was reversed (118.000 RON for staff members and about 175.000 RON for detainees. Should one presume that the state of health of ANP employees had improved?). At Slobozia and Craiova penitentiaries (adults), over 60% of the 2004 medication budget had been spent for staff members, and in 2005 the percentage only slightly decreased at Craiova. Nor was the situation any better at Juvenile Penitentiaries in Tichileşti and Craiova, and it certainly did not improve significantly in 2005. Quite different was the case of Codlea Penitentiary (in 2004: almost 4.000 RON for staff members and 43.000 RON for detainees; in the first half of 2005: 2.300 RON for staff members and 28.000 RON for detainees), Jilava Penitentiary, Deva Penitentiary and the other four prison hospitals in the system (Tg. Ocna, Dej, Rahova and Poarta Albă, the latter totally separated from the penitentiary). Given such discrepancies, not just in the spending for staff and detainees, but also in the way the various prisons budgeted heir medication, APADOR-CH filed a petition with the MoJ and asked for the situation to be thoroughly analyzed and steps be taken to remedy the deficiencies. The Association asked once again that prison doctors should tend exclusively to detainees. Penitentiary staff (but under no circumstances their families) should be able to request medical assistance in prison only in emergency situations. Also, APADOR-CH asked that all the staff in prisons should undergo serious medical checkups, because the spending records show that many employees have serious health problems that may make them unable to continue their work.

By the end of 2005, the Ministry of Justice had not answered the petition. However, there were public talks between the ministries of justice and health regarding the closing of the special health insurance agency that covers the army, the police, the magistrates, secret services and penitentiaries (CASAOPSNAJ) and transferring all beneficiaries to the National Health Insurance Agency, to eliminate some of the privileges the above mentioned categories enjoy.

In 2005, APADOR-CH visited the following 11 penitentiaries: penitentiary hospitals Rahova (May 26) and Dej (July 16); penitentiaries Ploieşti (May 17), Rahova – the women section (May 26), Baia Mare (July 14), Satu Mare (July 15), Bistriţa (July 18), Giurgiu (October 12), Mândreşti - Focşani (November 2), Galaţi (December 12) and Vaslui (December 13)[5]. The representatives of the Association also went to Jilava and Rahova to talk to detainee Ionel Garcea, whose case is presented separately.

According to the Romanian penitentiary standard (6 m³ of air/detainee), overcrowding has slowly continued to decrease (under 40.000 de detainees on about 32.000 places). But according to the recommendations of Council of Europe’s Committee for the Prevention of Torture (4 m² of space and 8 m³ of air for each detainee)[6] the problem of overcrowdingis still serious in our prisons.In other words, Romania is still far from the European standards. At Ploieşti, 774 detainees (including25 minors) shared 642 beds, with a little more than one square meter for each of them. At Rahova’s women section, 323 de detainees had to share 196 beds, in most cases sleeping two in a bed (in room 716, for instance, the 10 beds accommodated 20 women), and the air was unbreathable. At Baia Mare, even after the transfer of a large number of prisoners to the Satu Mare penitentiary, there were still 705 detainees in 942 beds. The improvement was only apparent, because, according to the 6 m³ of air/detainee criterion, the housing capacity was of only 540 persons. As for the CPT norm, it was out of question, since each prisoner had less than 2 m². At Satu Mare, there were 798 inmates in 717 beds, but the problem was the same as in Baia Mare. The Bistriţa Penitentiary was among the few with no overcrowding problems, at least according to the 6 m³ norm. But each of the 701 detainees had about 2.5 m² of space, better than in most places but way under the 4 m²/detainee recommended by the CPT. At Mândreşti-Focşani Penitentiary, holding 1448 prisoners in 1999, there were 857 inmates to 780 beds in 2005. The comparative figures showed substantial improvement, but the prison was still overcrowded, even by the 6 m³ norm, not to mention that many prisoners had to share their bed with another inmate. At Vaslui, the situation was similar to that in Mândreşti, although the prison population also decreased, from 1005 in 2002 to 817 in 2005, when the number of beds was of 724.

Overcrowding has a negative impact upon all parties directly or indirectly involved:

a) Too many prisoners and too few members of the staff. The result: most inmates stay in their rooms for 23 hours out of 24, with no meaningful activity (watching TV cannot be considered an activity) because the staff is insufficient in numbers, but also disinterested in the detainees.

b) It is extremely difficult to find work for so many inmates. Only about one third of the able bodied detainees have work to do, and in many cases just seasonal work.

c) The density of room occupants creates tensions that often degenerate into conflicts or fights.

d) Medical assistance is totally unsatisfactory. Two or three GPs cannot cope with the hundreds of patients (a prisoner is examined for 5, at most 6 minutes, obviously not enough), especially since the GPs also tend to the staff and their entire families, for 2 out of the 7 working hours per day.

e) Detention rooms (the refurbished ones) are generally provided with a lavatory that includes a shower, sink and toilet seat. It becomes impossible to keep an acceptable standard of personal hygiene in overcrowded conditions (20, 30 or even 40 detainees sharing a lavatory), not to mention the permanent humiliation caused by the absence of elementary privacy.

f) The food is insufficient and of poor quality. The more crowded a prison is, the harder it becomes to provide acceptable food for detainees.

APADOR-CH believes that the problem of overcrowding may be solved only if:

- criminal legislation – among the toughest in Europe – is substantially changed, especially with regard to alternatives to imprisonment;

- the whole judiciary system changes its mentality regarding how offences that pose little social threat are punished (at present, about half of the total prison population serves time for theft, and often the prejudice is extremely small);

- the ANP budget is substantially increased and each detention place increases its managerial autonomy.

      B.1 Penitentiary Hospitals

Rahova and Dej hospitals are not overcrowded, even by the highest standards. Both are relatively well endowed (Rahova, however, needs at least one more fully-equipped ambulance: in 2005, the hospital only had one ambulance that took patients only to Bucureşti, to and from “civilian” hospitals; on the same year, the Dej hospital had three such vehicles).

A special problem is generated by CASA OPSNAJ, the health insurance agency, which created a ceiling number of beds: Rahova has 90 beds, but only 77 are covered by the insurer; at Dej, there are 180 beds, but only 129 are covered). The insurer also stipulated a minimum number of patients to be admitted over a month (200 patients, at Dej). In the opinion of APADOR-CH, such financial regulations have no connection to the reality, and they compel hospitals to make veritable accounting acrobatics to receive their money from CASA OPSNAJ.

The key difference between the two prison hospitals concerns the use of handcuffs to restrain agitated patients: handcuffs are never used at Dej, but they are at Rahova. APADOR-CH has repeatedly asked that detainees in general, and especially ailing detainees, should no longer be handcuffed. As far as the Association knows, the draft bill on the execution of sentences submitted to the Parliament contains some provisions in this respect.

Another difference between the two hospitals concerns the right of detainees to daily exercise. This right is not observed at Rahova, not even for mothers with infant children, while at Dej, it is. Of course, in the case of ailing detainees, their wish should be taken into account, as well as their health condition.

Finally, it must be said that the Rahova Penitentiary Hospital does not provide medical assistance to staff members, setting a commendable example that should be followed by the whole penitentiary system. At Dej, not just staff members, but also gendarmes, police officers and magistrates in the area may receive free consultations and medical services (lab tests, X-rays, etc) for one hour a day, from Monday to Friday.

        B.2. Penitentiaries

In most prisons visited in 2005, doctors tend to the members of the staff and their families, as well as to other beneficiaries of CASA OPSNAJ. The only exception is the Ploieşti Penitentiary, where no such services are provided - not for the belief that prison doctors should tend to detainees only, but because no separate cabinet could be arranged for the staff.Other exceptions include a GP from Satu Mare, for instance, who is paid by the hour (not employed by contract with CASA OPSNAJ) and therefore does not have the right to be a family doctor for the staff.

At Giurgiu (1467 detainees), Baia Mare (705 detainees) and Rahova – the women section (323 detainees) there is only one GP, obviously unable to offer quality services. At Galaţi, in December 2005, there were two GPs and two nurses (of the five existing positions) tending to the 1.268 detainees and 200 members of the staff, plus families.

In the fall of 2005, many penitentiaries were faced with the refusal of pharmacies to supply drugs, because of severely delayed payments. Some of the prisons (Baia Mare, Focşani) found solutions in good time. Others (the most blatant case was at Galaţi) “sat and waited” for as long as three months, not caring that prisoners, mostly those with no money and no families to visit, were deprived of their medication. And this was only one manifestation of the medical staff’s lack of interest for the health of prisoners for whom they are directly responsible. Many inmates complained that they were either not taken to the doctor or not given the right treatment to cure their problems, or repeatedly delayed in getting to a specialized hospital. At Rahova’s women section, despite the chief guard’s assurances (when APADOR-CH visited, the only doctor and only nurse were absent for unknown reasons) that medical care covered all the needs of the detainees, inmates complained of being ignored or inappropriately treated. Gabriela Iancu had massive hemorrhages caused by ovarian chists. But instead of treating the cause (most probably by surgery), the doctor prescribed her calcium, vitamin E and painkillers. Nela Constantinescu had had eczema on her arms and legs for four months, but no one had diagnosed her yet. It seems totally unexplainable to have such cases at the women section, which is in the same building as the Rahova Penitentiary Hospital. Even more seriously, women who are transferred to “civilian” hospitals are handcuffed during the whole duration of transportation and stay in hospital. Handcuffing ailing detainees is the rule throughout the penitentiary system (there are few exceptions: some – not all – hospitals, the Women Penitentiary at Târgşor and the Juvenile Reeducation Centers). APADOR-CH has repeatedly asked that the practice of handcuffing ailing detainees during transportation and the stay in hospital should be abandoned. If such a detainee becomes violent, he/she may be restrained with less traumatizing means (with elastic bandages, for instance), and only until he/she calms down.

At Baia Mare Penitentiary, the only doctor was about to retire and had been transferred from Arad in 2004, for purely financial reasons. Unfortunately, he showed little interest for the health of prisoners. Teodor Lupuţu had a very swollen, painful abdomen and, although he had been kept at the infirmary for a month the doctor did not know the cause, not had he ordered any tests or sent him to a specialist. Another case, with dire consequences, was that of detainee Gavrilă Toma. In April 2004, another inmate stepped on his big toe and his nail went purple. Then he lost his nail and his toe got infected. In May 2004, he was taken to the Dej Penitentiary Hospital, where his left leg had to be amputated from hip. It is impossible to understand why the prison doctor did not do anything to prevent such a drastic solution. APADOR-CH believes that both cases may be defined as inhuman treatment.

At Galaţi Penitentiary, the chief doctor said she examined about 50 detainees per day, although, according to CASA OPSNAJ regulations, the insurer only paid for 30 consultations. Therefore CASA OPSNAJ decides not only how many detainees may be treated in prison hospitals and for how long (see above, the problem of hospital beds and number of patients), but also how many of them have the right to fee sick and ask for the doctor! Beside the aforementioned problem - of drug supplies being interrupted for three months - several detainees at Galaţi complained of lack of preoccupation among the medical staff. Nicolae Bolea had undergone kidney surgery in early December 2005 and had returned to Galaţi with the express recommendation to have his bandages changed every second day to avoid infection. The bandage had been last changed four days before the visit by APADOR-CH, but the chief doctor explained that “the nurse shortage” was to blame. Melinte Niţu had had a fungus on his foot for three months. He had come back from hospital two weeks before and, ever since, had not received any treatment for it. 

A prevalent problem regarding medical care in prisons is the fact that some detainees are labeled as “simulators”, with the result that doctors and nurses ignore them, no matter what their complaints are. APADOR-CH is aware that some detainees simulate certain medical conditions in order to be transferred to infirmaries or hospitals, where conditions are better. However, even simulators may get ill. As a consequence, the Association has constantly pleaded for such labeling to be abandoned (there are cases when the medical record even bears the mention “simulator”) and for the doctors to conscientiously examine each and every inmate who requires it.

Another general problem is the lack of constant preoccupation and involvement of the medical staff in supervising and improving sanitary conditions in detention, as well as the quality of food. Pest control is sporadic, the mattresses, blankets and linen are only formally verified, and to no consequence. None of the doctors seemed preoccupied by the lack of drinking water (see the Galaţi Penitentiary report) or the precarious washing conditions (at Ploieşti Penitentiary, there is only one bathroom, with 25 shower heads of which only 17 functional, for the over 800 detainees) and the unsatisfactory hot water program. Yet, whenever skin conditions such as scabies surface, the medical readily blame the prisoners who are “unable to observe elementary hygiene standards”!

Each prison handles in a different way the right of detainees to obtain photocopies of their medical records. A unique practice should be found, so that all prisoners have free access to their own medical record (and also to their penitentiary file, which is kept separately by the administration) and are able to make copies.

A commendable change is that condoms are now distributed to detainee during detention (not only upon release, as it was the case at the beginning of 2005). APADOR-CH has always maintained that condom distribution is the simplest way to prevent sexually transmitted disease, including HIV. Out of prudishness, the ANP has constantly opposed the idea, claiming, quite arguably, that it may “encourage” homosexuality (years ago, the ANP even refused to admit that detainees had same-sex relationships!). The first step has been finally made, but the road is bumpy. Apparently, condoms are only distributed upon request, and detainees are surely reluctant to declare, even to doctors, that they have homosexual relations. The simplest solution would be to place condoms in an accessible location, where inmates could get them with no formalities and no supervision.

APADOR-CH has noted some improvement of the activities that are so important for the prisoners’ social reinsertion after release, but also for their mental attitude during detention, with direct impact on the relations between staff and detainees. (Re-)education includes school classes, in some penitentiaries going up to the eighth grade and to professional schools (trades like masonry, carpentry, cooking, hairdressing, vegetable growing, tailoring, etc). Until recently, professional training depended on the equipment in prison workshops (which were extremely old and obsolete, and mostly used in trades that had nothing to do with the demands of the labor market) and on the existing technical instructors. In 2005, it became a rule that penitentiaries consulted and even worked together with the County Labor Agencies, picking up trades in high demand. Social and educational programs have diversified and, even though most of them are “centralized” (prepared by the ANP), there have been instances when the staff took the initiative. This is the good news. Unfortunately, there’s also bad news, such as:

-         the small number of detainees involved in activities and the short duration of programs 

As far as APADOR-CH is informed, about one third of able-bodied detainees have work to do. Among the prisons visited, only Baia Mare was an exception to this rule (with half the detainees working). At the opposite end were the penitentiaries Galaţi (under 200 detainees working from a total of 1,268), Vaslui (less than 20% of the total number of 817), Giurgiu (less than 10% of the 1,467 detainees) and Rahova – the women section, with the negative record (only 20 of the 323 detainees).

As a result, at least two thirds of the men and women in prisons, plus those unable to work and those who would not, should be included in social and educational programs. The alternative is sitting idle in overcrowded rooms for 23 or even 23 ½ hours out of 24 (the outdoor exercise lasts for 30 to 60 minutes and takes place every day – at least in theory; minors are allowed to exercise longer). Programs - both those coming from the ANP and local initiatives - include a limited number of prisoners (from 3-4 up to 15-20, depending on the type and theme), they usually last for 3 months, two hours once a week. In other words, a whole program meant to educate inmates and to prepare them for their return to society lasts no longer than 24 hours!

Some penitentiaries have been “lucky” to find partners outside the system (religious cults, local non-governmental organizations, faculties sending students for practice) to organize more activities with the prisoners, though also for short periods of time and with few participants. The Satu Mare Penitentiary works with five NGOs and charities, as well as with the "Vasile Goldiş" Psychology Faculty (every year, 13 psychology students do their practical work in prison). The Bistriţa Penitentiary works with students at the Babeş-Bolyai University, who run special programs with detainees for 3 months a year. Unlike these, the Mândreşti – Focşani Penitentiary has no external partner, except the Service for the Protection of Victims and Reinsertion of Convicts (SPVRC), also subordinated to the Ministry of Justice and having the obligation to work with certain categories of detainees. As for the women section at Rahova, not even the SPVRC works with detainees there.

-         the quality of programs

Some of the routine activities in prisons have been labeled as „programs” and have received pompous names such as INSTAD (the 3 weeks quarantine – mandatory for all newly arrived inmates), CONIS (which is, in fact, a compressed module for primary school) or ALFAZ (literacy courses). Others have brought some added value. Libraries, for instance, very poorly endowed with old, torn books and titles of no interest for detainees (with the exception of the Mândreşti – Focşani Penitentiary, boasting a remarkable collection of books) manage to put together their own “magazines”, in one up to three copies! (at Mândreşti there are 3 such magazines, one of which is written for and by Roma inmates). There are also some close circuit radio stations, usually broadcasting about 2 hours once a week (music and information on management decisions) or even CCTV programs (at Vaslui, for example), as well as occasional programs (anger control, family education, preventing family abandonment, make-up and hair-style – for women detainees, etc.).

The most important question is whether these programs trigger the interest of prisoners and whether they support their social reinsertion. APADOR-CH believes that the only “popular” program is EDUCOSPORT – sporting games, mostly soccer, but also chess or (as in Giurgiu) bodybuilding. Obviously, the program has substantial participation. To some extent, EDUCOLEX also triggers interest, but chiefly because, instead of “legal education”, the meetings debate the individual legal situation of detainees.

Programs bearing mysterious names such as STRADAV or VAAD fail to ring any bell to prisoners. So does EDUCOSAN (sanitary and sexual education). APADOR-CH has repeatedly suggested that prisoners themselves should be consulted on what programs they would like, through questionnaires or opinion polls. Prisoners are the direct beneficiaries of social and educational programs, whose success is given, first and foremost, by the way they manage to change their behavior, and that is impossible without active participation. In the answer to the Association’s report on Mândreşti, ANP informed APADOR-CH that, among other things, “a questionnaire was being prepared to find out the needs, interests and options of detainees”.

-         the lack of personnel and of adequate spaces

The number of specialized staff is much too small. It ranges from one employee (at Rahova’s women section with 323 detainees) to eight (at Galaţi, for 1268 detainees). There are ten employees at Mândreşti Penitentiary, but, for unclear reasons, only four work directly with prisoners.

Excepting sporting games, all social and educational programs take place at the detainees’ club, generally in the morning. It goes without saying that one room is not enough to accommodate the whole range of activities. APADOR-CH has repeatedly suggested that other spaces should also be used (for example the staff’s club, even if it is placed outside the detention space; or even detention rooms, if they are not overcrowded).

Some penitentiaries have had the commendable initiative to take detainees outside the prison: at Satu Mare, minors were taken to see a museum and at Vaslui, minors went on two such trips. The Mândreşti Penitentiary took adult detainees to play a soccer game against a local team but did nothing of the sort for minors. Mândreşti may be among those prisons where minors are considered “the worst sort of prisoners”. The Association has often herd that kind of labeling, muttered by penitentiary staff under their breath. Of course, minor detainees are a more difficult category, but so are minors who are not detained. Imprisoned minors are teenagers who, beside the typical problems of adolescence, have also gone through traumatizing experiences. Therefore, they need to be treated with more care and understanding than adult detainees, and even than free teenagers. Unless attractive programs are organized for them, unless they are listened to and guided with utmost patience, if they keep being sanctioned for every misdemeanor, their chances of reinsertion into society are extremely small. APADOR-CH maintains that juvenile delinquents do not belong in prisons. The whole penal system must be thus organized, so that minors may serve their sentences in freedom. And for serious crimes, they should be confined to re-education centers, but definitely not in prisons.

Excepting penitentiary hospitals, all prisons visited in 2005 held a number of “high risk” detainees, ranging from 3 (the women section at Rahova) and 87 (Galaţi Penitentiary). The detention regime for “dangerous” prisoners usually includes small rooms, extra grids  at the windows and doors, handcuffs whenever they are taken out of the room (even if it is only to the doctor, to the visitation area or to the exercise yard) and, of course, small chances of parole. However, the ANP has constantly argued that this regime is not a disciplinary sanction, but only an administrative measure. The result of this bizarre interpretation is that the prisoners in cause are not heard by any board, nor do they have the right to appeal, as the law stipulates in the case of disciplinary sanctions.

Classification criteria include the nature of the crime, intended escape, attack against the staff, suicide attempt, etc., as well as behavior during detention. APADOR-CH believes that only the latter criterion – how the prisoner behaved during the current stay in prison – should be taken into account. If “the nature of the crime” is clearly stated in the court decision (“lifers” are automatically included in the “dangerous” category, which is tantamount to a second conviction), the various “intentions” and “attempts” generally result from mere notes made by the police or prison staff in the individual files, seldom supported by evidence and thorough reports. Often, the classification is grounded on facts from a previous detention. Starting in 2005, each case is reviewed every three months (instead of monthly).

The Association has found plenty of examples showing how superficial the board was, both in classifying a detainee as “dangerous” in the first place and in reviewing the decision. Thus, at Ploieşti Penitentiary, Gheorghe Tuică had been among the “dangerous” for 3 years because in 1992, when he was serving a different sentence in a different prison, he had been earmarked with “intended escape”. At Rahova’s women section, detainee Margareta Iordache was mentioned in 7 incident reports (of which 6 at Rahova), most of them for “uncivil attitude towards the staff”. The latest such incident (a verbal exchange with a guard, during which the prisoner dropped a bottle of water and the guard considered it as an “intended attack”) resulted in Margareta Iordache’s being taken out only in handcuffs and being placed on the list of proposals for “dangerous” detainees. At Satu Mare Penitentiary, Tolvai Jozsef had been serving his sentence since 2003 with no incident report. In March 2005, he had been transferred for a short whole to the Oradea Penitentiary, where he had been classified as “dangerous” for “the nature of his crime”. And “dangerous” he stayed, even upon his return at Satu Mare! It is hard to explain how a prisoner can be “not dangerous” for two years and then, all of a sudden, turn dangerous without having done anything wrong. Teofil Balaş, detained at Bistriţa, has been classified as “dangerous” during his stay at Gherla in 2000, on grounds that he had expressed his intention to escape in writing. In fact, Balaş had sent his wife letters containing threats that he was going to fulfill “after release” – a phrase which was interpreted as “clear intention to escape”! Worse, Balaş carried his classification along through several penitentiaries, but no board noticed the error or reviewed the classification (the latest review had been at Bistriţa in April 2005). Also at Bistriţa, detainee Emilian Branea was in the “dangerous” category because, right after committing the crime that he had been convicted for, he ran away and tried to cross the Danube border. The board decided this was an “intended escape”, although, clearly, Branea had not been taken in custody by any authority when he tried to leave the country.

At Galaţi Penitentiary, the 87 detainees classified as “dangerous” were held in the maximum security section, without being separated from prisoners who were there from different reasons. Confusion was created among detainees, who were no longer sure what category they were in. The situation could have been solved quite simply, had the staff bothered to explain things. The fact that they hadn’t may be seen as yet another proof of their lack of interest for detainees.

Some prisoners (such as Dan Perju at Vaslui) claimed that they had not been informed the grounds on which they had been classified as “dangerous”. As for Emilian Branea, he had no idea that his attempt to leave the country was the reason for his classification. He was convinced that his psychological profile had matched “the robot profile of prisoners who plan to escape”. Of course, this was also because no one told him the real reason for his classification.

Given all these facts, APADOR-CH has asked the ANP to consider the classification of high risk detainees as a disciplinary sanction. This would allow prisoners to be heard by a board, to have a thorough report done and an official and grounded decision issued, and to be able to appeal the decision before a court, as provided by Government Emergency Ordinance no. 56/2003.

APADOR-CH has noticed that the most severe disciplinary sanctions – up to one year of restrictive regime and up to 10 days of confinement – are rarely used. Prison managements prefer milder sanctions, from warning to reprimand and to the restriction of the right to parcels and/or visitation, usually for a month.

In all 9 prisons they visited (in hospitals, reprimand is the toughest form of sanction), the representatives of the Association found two detainees on confinement (at Ploieşti) and three on restrictive regime (to at Bistriţa and one at Galaţi).

Unfortunately, the rules of confinement have remained the same: mattresses and bed linen are taken out at 5.00 and brought back to the room at 22.00. During the whole day (excepting the short exercise time) prisoners can either sit on the extremely uncomfortable iron beds (or even stone beds, as was the case at Baia Mare, although at the beginning of 2005 the ANP claimed that such “beds” no longer existed in any penitentiary) or stand. Both alternatives are a real danger for the detainee’s physical and mental health. Toilets are not separated in any way from the room, placing detainees in humiliating situations in front of inmates and guards. Moreover, the Association has always doubted that the doctors complied to their duty of carefully examining a prisoner before confinement, in order to decide whether he/she may endure a tougher detention regime. The same doubts surround the frequency and readiness of mandatory medical care during confinement.

In the case of the restrictive regime (3 to 12 months), besides the tough conditions (the prisoners are handcuffed every time they leave the room, even during outdoor exercise, they are not allowed to keep a radio or TV set, they have limited rights to parcels and visitation, etc), another problem arises. A detainee who commits a serious offence that may be sanctioned by restrictive regime (the decision is taken by the ANP at the suggestion of the prison discipline board) is usually taken to confinement until the official decision is issued, without the formal procedures generally taken for confinement. This is the result of an ambiguous provision in the regulations: “confinement from the group”, a distinct sanction from “confinement”. The Association believes that “confinement from the group” means separating a detainee who committed an offence from his room mates, by moving him to another room, not to solitary confinement. Under the present circumstances, the prisoner is left in confinement until the ANP decision regarding the restrictive regime is issued, which can be as long as 10 days. How are these days counted, since the prisoner is confined without having been sanctioned by confinement? What happens if the ANP decides against the restrictive regime? Most probably, the prisoner is unable to contest this “deprivation of freedom”, since it is not covered by any procedure (hearings, reports, official sanction).

Moreover, in some cases prisoners are sent to court. It means that for the same offence, a detainee may be sanctioned three times: de facto confinement, restrictive regime and conviction by the court. This was the case of Marius Imbrea at the Bistriţa Penitentiary: a room mate had been sanctioned and was about to be taken to the confinement room. His room mates (eight detainees), instigated by M.I., had allegedly opposed the move, arguing that the sanctioned inmate was ill. A squad of about eight “masked” guards stormed the room and bludgeoned the prisoners, before ordering them to lie down, as the standard procedure would have required. Marius Imbrea allegedly hit one of the guards on the head with a glass window. The prisoner claimed that he had had no intention to hit the guard:  he had merely tried to avoid the blows and accidentally pushed a window that stood on the floor, propped against the wall. Marius Imbrea was taken into confinement, ten days later he was sanctioned by 6 months of restricted regime and indicted for outrage, for which, most probably, he will be convicted. It must be said that, from documents provided by the Bistriţa prison management and the discussions with his room mates, APADOR-CH concluded that the intervention of the “masked” squad was out of proportion and unjustified. Only two of the detainees (Imbrea and Moldovan) had opposed, and only verbally, the attempt to mover their colleague to confinement. The others did not react in any way. Surely the management could have found another solution than a violent intervention.

Giurgiu Penitentiary

The representatives of APADOR-CH noticed that longstanding tensions between two groups of inmates - “the Bucureşti group” and “the Giurgiu group” - had increased dangerously and had even generated violent incidents, especially in the high risk section. More seriously, the conflict seemed to have involved, according to some detainees, members of the staff. The staff had allegedly instigated some local detainees to attack “unruly” inmates from the Bucureşti group. Such an incident took place on October 4, 2005, under the following circumstances: One of the activities that detainees appreciated the most was bodybuilding, taking place at the gym club. The fitness equipment provided by the management was worn out and made of odd bits and pieces. The only modern piece of equipment was the one provided by Viorel Cucu, an inmate from Bucureşti, on condition he decided who could use it and who couldn’t. After long and tedious negotiations – including a court trial won by Viorel Cucu – the prison management accepted to allow the use of the bodybuilding equipment for two hours a day. One of the beneficiaries was detainee Iulian Fentzel, well known throughout the penitentiary, and not only, for his extensive knowledge of law and for the legal advice he offered to other inmates, less familiar with the complexities of legislation. Enough for the prison staff to consider him an “instigator”, a label also placed on Viorel Cucu. On October 4, 2005, several “dangerous” detainees were exercising at the club. To their surprise, in came inmate Dumitru Marian, recently transferred to the “dangerous” section, who punched Fenzel in the face “totally out of the blue”, as detainees recalled. Then he picked up a metal bar and violently hit Vasile Alexandru, an inmate who had come between him and Fenzel. A few seconds later, the intervention squad showed up and the detainees were taken to their rooms. The blow caused an open fracture on Alexandru’s right arm. Despite repeated pleas and the protests of other inmates, Vasile Alexandru was not sent to the hospital until the next day, first to Rahova and then to Floreasca hospital, where he underwent surgery on October 7, and a plaster was applied. APADOR-CH does not understand why the surgery has not been performed at the Rahova Penitentiary Hospital, which is specialized in surgery. Why did he have to be transferred to Floreasca Hospital?

Besides the blows suffered by Vasile Alexandru and Iulian Fentzel, the October 4 incident led – quite predictably – to the reduction of bodybuilding activities from two hours per day to one hour a week, which created discontent among detainees. Another consequence was the aggressor’s fear of retaliation. Even if guards and special agents wearing masks were around every time he left his room, and contacts between him and the other inmates were avoided, the representatives of the Association were able to see for themselves the aversion or even hatred the others showed towards D.M. Inmates were convinced that Dumitru Marian had been brought to section 3 - “dangerous detainees” only in order to provoke the October 4 incident, a perfect pretext for the management to cut down the time allowed for body building (it was not possible to prohibit the activity completely because the court had decided in favor of Viorel Cucu). Moreover, D.M. was from Giurgiu, he served time for a minor crime (6 years for theft) and had no prior reputation as a reluctant or difficult prisoner. His transfer to the “dangerous” section could not be explained unless he had “the task” to act violently.

Whether this was true or not, the representatives of APADOR-CH recommended the prison management to transfer D.M. to any other section of the penitentiary, as soon as possible.

Another reason for the detainees to be suspicious was the speedy intervention of the masked squad; the guards stormed in, in high number, immediately after the incident, as if they knew what was going to happen.

Finally, the one day delay in taking Vasile Alexandru to the doctor was interpreted by inmates as an attempt of the staff to protect the aggressor from the possible legal consequences for hitting an inmate, and they would have probably succeeded, had the fracture not required su