The Association for the defence
of human rights in Romania The Helsinki committee
Annual report – 2006
INTRODUCTION
The year 2006 fell under the pressure of Romania’s accession to the European Union, a crucial year for passing new reforming laws and implementing legislation according to the requirements of the European Commission. The situation of human rights did not undergo major changes, with a few exceptions at the level of regulations.
For instance, inasmuch as freedom of expression is concerned, the year 2006 brought about the much sought-after des-incrimination of insult, calumny and defamation of country and nation[1]. The first two crimes mentioned above were used countless times in order to silence probing journalists, or in order to obstruct their investigations by initiating criminal inquiries against them. Many times, these investigations led to convictions and rulings to pay moral damages in sometimes exaggerated amounts.
The year 2006 also saw the adoption of a new law of custodial sentences, which came into effect in October. At the level of regulations, this law entails evident progress in the system of the execution of sentences, capable of triggering an improvement of detention conditions in Romania. From this point of view, the year 2007 will be extremely important in assessing the practical effects of adopting the new regulations.
As far as the Criminal Code is concerned, the situation remains unchanged since 2005: the Criminal Code of 1968, still in effect, was amended (twice), while the coming into effect of the Code adopted in 2004 was once again postponed (until September 2008). At the same time, the Ministry of Justice has been working on a new Criminal Code, accompanied by a Criminal Procedure Code; however, the drafts had not been concluded by the end of 2006.
In 2006 there came a few legal initiatives which endangered civil rights and liberties. One telling example is a draft Law of Cults, passed in December 2006. The Law imposes drastic conditions for the setting up of religious associations, and especially for the recognition of religious cults. The law also breaches the freedom of expression by de-criminalizing offences against religious symbols. Despite protests from non-governmental organizations and recommendations from the Venice Commission, the law was passed with a large majority of votes in Parliament and promulgated by the Romanian president at the end of December 2006.
Another example is the set of laws in the field of national security, promoted by the Presidential Administration in April 2006, despite the fact that the body did not have the legal ability to initiate legislation. Following open criticism, the four laws were amended by the Romanian government. However, by the end of last year, the draft laws had not been submitted to the Parliament for debates.
***
The present report comprises the activities carried out by APADOR-CH in the year 2006, as well as general commentary on the organization’s fields of interest: the legislative framework related to human rights, police activities, monitoring of detention conditions, access to public information and decision transparency in administration, freedom of consciousness. Also, the report introduces a number of strategic cases supported by APADOR-CH in the European Court of Human Rights in Strasbourg, with the purpose of determining changes in the Romanian legislation or practices in the organization’s fields of interest.
I. THE LEGISLATIVE FRAMEWORK
Out of the 517 laws, 136 emergency ordinances and 64 ordinances passed in 2006, we must mention the following as relevant for the consolidation of a lawful society and for issues concerning human rights:
- Law no. 103/2006 for the ratification of Protocol no. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on November 4, 1950 – a general ban of discrimination adopted in Rome on November 4, 2000;
- Law no. 275/2006 on the execution of sentences and measures disposed by the judiciary bodies during the criminal process. The law had been long-awaited, in order to replace an outdated 37-years-old regulation, Law no. 23/1969 on the execution of sentences. Ever since 2005, APADOR-CH substantially contributed to the improvement and finalization of the draft law, before it was submitted to the Parliament and passed in 2006. A great part of the organization’s specific suggestions can be found in the new law which came into effect in November 2006. Through this legislative document, the execution of sentences became more flexible, and closer to modern requirements in this field. For instance, the execution of measures involving deprivation of freedom was nuanced to comprise four levels: a maximum-security level, a closed system, a semi-open system, an open system. Similar provisions on the regime of execution were introduced in the Criminal Code through Art. I, pt. 18 of Law no. 278/2006 for the modification and completion of the Criminal Code, and for the modification and completion of other laws. We must also mention the direct contribution of our organization in preparing and drafting two Ministerial Orders, one on religious assistance in penitentiaries (already in effect), the other on medical assistance for detainees from the penitentiary system (at the end of 2006, the document was being finalized by the Ministry of Justice).
- Law no. 278/2006 for the modification and completion of the Criminal Code, as well as for the modification and completion of other laws. Art. I pt. 56 of the law abrogated several articles in the Criminal Code: Art. 205 (insult), Art. 206 (calumny), Art. 207 (the submission of evidence) and Art. 2361 (defamation of country or nation). The abrogation of these crimes was repeatedly asked for, for many years, by the media and non-governmental organizations, and was a constant preoccupation for APADOR-CH. However, the repeated modification of the old Criminal Code is not a long-term solution. The variant supported by APADOR-CH is adopting a new Criminal Code, together with a new Code of criminal procedures.
- Law no. 356/2006 for the modification and completion of the Criminal Procedure Code, as well as for the modification of other laws. The Association formulated certain objections before the law was adopted, and unfortunately those objections still stand. Among other things, they concern the possibility of surveillance of individuals even when they have not committed a criminal deed, but are merely “preparing” to do so. The term “prepare” is vague, ambiguous and allows for substantial breaches of the right to privacy. Moreover, the law doubled the time, from 24 to 48 hours, for which a person can be placed under surveillance without a judge’s authorization. There is also no limitation set to this practice, which can thus be endlessly repeated. The objections also referred to introducing an article which allows to record a lawyer-client conversation, thus openly breaching Law no. 51/1995, with subsequent modifications, on the organization and practicing of a lawyer’s profession and the Statute of the profession of lawyer, published in The Official Gazette no. 45/2005. Objections also concerned the restrictions upon the right won by lawyers, and consecrated by the previous version of the Criminal Procedure Code, to be present for any criminal investigation act during the investigation process; in the present version, after the modification of the Criminal Procedure Code, the lawyer can no longer be present in any investigation, but only in those acts of justice which entail the hearing or presence of the accused or defendant.
- Law no. 371/2006 for the modification of Law no. 544/2001 on free access to information of public interest. The modifying law extended the areas of authority / public institutions which fall under Law no. 544/2001 to certain kinds of commercial companies. On the other hand, a new exception was added to the free access to information, consisting of protecting intellectual or industrial copyright. In June 2004, APADOR-CH met with the initiator of the legislative document for modification (a member of the Chamber of Deputies), to whom it introduced a list of amendments to Law no. 544/2001, among which increasing the area of applicability of the law.
- Law no. 380/2006 for the modification and completion of Law no. 544/2001 on free access to information of public interest. The modifying law explicitly included public procurement contracts in the category of public information to be communicated by default.
Both modifications to Law 544/2001 were requested and supported by APADOR-CH since as early as 2005. We must specify that the Association also intends to put forth other modifications to this law, which will be promoted function of the circumstances, via various decision-making bodies.
- Law no. 489/2006 on religious freedom and the general regime of the cults. This law replaces a 58-year-old regulation (!), Decree no. 177/1948 on the general regime of religious cults. The law makes definite progress from the previous regulation, but also includes many challengeable provisions. The relation between the state (the Ministry of Culture and Cults) and the religious cults is ruled by too much formalism, with a heavy stress on administrative practices. The conditions imposed for the recognition of cults and religious associations are extremely restrictive (for instance, in order for a religious association to be recognized as a cult, it must have proof of the adherence of at least 0,1% of the total population of Romania – i.e., approximately 22,000 people at present – and of having been active as a religious association for at least 12 years in Romania; religious associations must have at least 300 members, as opposed to 3 members, the number necessary to set up an association, according to common law). Also, Art. 13, par. 2 of the law (“In Romania it is forbidden to carry out acts or actions of religious defamation and hostility breeding, as well as any public offense against religious symbols, under any shape or form, and by any means”) has an at least unfortunate phrasing by its inclusiveness. It was passed despite the protests of the civil society, which APADOR-CH also joined; the protests were generated out of the justified fear that such an article will seriously restrain the freedom of expression.
Apart from issuing comments on certain laws passed in the year 2006, APADOR-CH also examined other draft laws – not passed in 2006 – which included violations of human rights.
For instance, in March 2006, APADOR-CH put forth some observations and comments on the draft law on the organization and functioning of wealth control and verification of conflicts of interests and incompatibilities (later to become the draft law on the National Agency for Integrity, publicly known as the “ANI” draft law).
APADOR-CH expressed its disagreement with those provisions which explicitly violated human rights. Examples: introducing home searches in civil matters under a different name - local investigation; restricting access to justice (the decision which noted the conflict of interests and the decision which recorded a case of incompatibility could have directly lead to sanctioning, destitution or releasing from a certain public dignity or function, without a way of appealing them in court); the lack of sufficient procedural guarantees for prevent harassing people under the pretext of undertaking control activities (the length of the investigation did not have a clearly specified limit, thus it could take place over an indefinite period of time; a re-investigation could be taken up at any time, although, even when we are discussing crimes, the most serious illicit acts, criminal laws specify a statute of limitations, so as to disallow harassment).
A large majority of the objections were taken into consideration by the initiator of the law upon drafting a second version of the law. APADOR-CH participated in meetings organized both by NGOs and the Ministry of Justice in order to debate this draft law in its different variants, on which occasions its objections to the constitutionality of wealth seizure were accepted, to the extent that the illicit nature of its acquisition is not clearly proved.
In April 2006, APADOR-CH issued a first reaction to the Draft Law on the re-use of information in public institutions (transposing into internal legislation Directive no. 98/2003/EC on the re-use of information in the public sector, published in the Official Gazette of the European Union no. L345/31.12.2003).
APADOR-CH pointed out to the Romanian Government that the above-mentioned Directive was formally taken up by the draft law on the re-use of information in public institutions, and that it was not correlated with the provisions of our national legislation on the free access to public information (Law no. 544/2001), with the consequence of conveying to the public the idea that information of public interest will only be obtained upon the payment of a certain fee.
APADOR-CH asked the Government to respect and re-state in the draft law on the re-use of information in public institutions, the principles specified in Law no. 544/2001, on the free access to public-interest information. According to that law, access to public information is free, which, among other things, entails free access to public information, unconditional upon any justification of reason or purpose. In that respect, it was absolutely necessary for the draft law to clearly distinguish between the stage of obtaining public information, which still falls under Law no. 544/2001, and the stage of re-using information from public institutions, which is subsequent and separate from obtaining information. Although the draft law was criticized by numerous non-governmental organizations, it was still passed in Parliament as an emergency act, in September 2006. The Romanian president required the re-examination of the law, and the initiator of the law (the Ministry of Communications and Information Technology) organized a series of consultations on the topic. APADOR-CH participated in all the meetings, issued observations and suggestions; at the end of October 2006, the association presented the initiator of the draft law with its written proposals for the modification of the draft law. These suggestions detailed on the principles put forth in April 2006 and discussed subsequently. By the end of 2006, the draft law had not been submitted for parliamentary debate.
The set of laws on national security and the secret services
The Law of National Security no.51/1991, still in effect to this day, was adopted a few months before the first post-December 1989 Constitution, and contains some provisions which clash with the constitutional guarantees and, beginning with 1993, also with the European Convention on Human Rights and Fundamental Freedoms. However, the interest of the legislative and executive powers in modifying the Law of National Security was extremely low. Between 1992 and 1998 laws were issued based on this undemocratic law that still regulate the organization and functioning of “secret” services (The Romanian Intelligence Service, the Foreign Intelligence Service, The Guard and Protection Service and the Special Communications Service), as well the orders on the informative structures within the Ministry of National Defense, the Ministry of Interior and Administration Reform, and the Ministry of Justice.
A. Drafts initiated by the Supreme Council of National Defense (CSAT)
At the beginning of 2006, CSAT resorted to a measure that was not only unusual, but quite unconstitutional in order to promote a set of four laws on national security and the “secret” services. The CSAT, which is not entitled to initiate legislation, sent to Parliament the four texts entitled “draft proposals” and asked for Parliament’s opinion. None of the four “proposals” had been publicly presented. Following numerous protests from non-governmental organizations and a heavy press campaign, the Parliament decided not to examine the “proposals” put forth by CSAT. Under those circumstances, CSAT asked the Government to analyze the set of laws, assume responsibility for it and re-submit it to the Parliament as its own legislative initiative. At the same time, the four drafts were made public on April 18, 2006. These were the Law on Intelligence, Counter-Intelligence and National Security, the Law on the Organization and Functioning of the Romanian Intelligence Service (SRI), the Law on the Organization and Functioning of the Foreign Intelligence Service (SIE) and the Status of Intelligence Officers.
APADOR-CH publicly expressed its opinion on these drafts, insisting on the threats they posed to civil rights and fundamental freedoms[2]. Briefly, the objections of the Association envisaged the following aspects:
1. The Draft Bill on Intelligence, Counter-Intelligence and National Security
The proposal contains extremely loose and inclusive definitions of the threats to national security, multiple possibilities for “under-cover” activities and staff, secretizing absolutely everything pertaining to the field of intelligence, counter-intelligence and security, plus a pseudo-control at the level of both the legislative and the judiciary. The only institution with full powers over the “secret” services is the Supreme Council of National Defense (CSAT), to which the National Intelligence Community subordinates and which, in turn, comprises all the “informative authorities” (The Romanian Intelligence Service, the Foreign Intelligence Service, The Guard and Protection Service, The Special Communications Service, the General Directorate for Defense Information and the General Directorate for Intelligence and Internal Protection).One serious issue is maintaining the present regulations in the field of authorizing the surveillance of a person for an initial period of 6 months, followed by an undetermined number of three-month extensions. The improvement it contains – that authorizations are to be issued by a judge, after the request is filtered through a prosecutor’s agreement – is entirely insignificant, since the judge does not have access to the information, facts, documents which determine an intelligence or security service to request this radical form of restricting the practice of human rights.
The law maintains and even extends the right of these services to undertake their own economic and financial operations, which are almost impossible to audit (see, for this, recommendation 1402/1999 of the Council of Europe Parliamentary Assembly, requesting for the “secret” services to be exclusively financed from the state budget), by setting up “private law legal persons” (NGOs or companies, for instance), which the services could use in theiractivities related to intelligence, counter-intelligence and security.
2. The Draft Proposal on the Organization and Functioning of the Romanian Intelligence Service (SRI)
a) The Romanian Intelligence Service continues to be a mixed, military-civilian structure, plus “contract-based military personnel” (why does a modern intelligence service, in a democratic state, need its own military troops?) and which also includes the right for the entire personnel “to bear and use weapons”.
b) The draft proposal maintains the right of SRI to “subordinate or coordinate health institutions, autonomous administrations, commercial operators…” (Art. 52). A provision is added in Art. 18, par. e, by which SRI is authorized “to set up…. legal persons... including undercover ones, as well as to undertake the activities for which they were set up”. Consequently, SRI will be able to set up “straight” administrations/operators, but also undercover companies which are actually going to conduct business!
c) Art. 9, par. b lists among the competences of the SRI “national security interests of a political, economic, industrial, technical and scientific, commercial, financial and banking nature…” In other words, SRI is allowed to control all areas under the pretext of preventing and combating “the undermining of Romania’s national security interests”. In fact, SRI is the only one authorized to conduct “technical” surveillance operations on persons, regardless of the informative authority which requested and received the authorization to collect intelligence.
d) The concept of total “secretizing” is wrong, as not everything pertaining to an intelligence service must remain inaccessible to the public. The publication of statistics, information on the number of employees, structure, revenues and expenditures of the SRI etc., according to the requirements of Law no. 544/2001 on the free access to public information and of Law no. 182/2002, does not in any way jeopardize national security.
e) Art. 54, par. 2 establishes that “information concerning national security can be made public only 20 to 100 years after being archived…” The same regime applies to the archives of the former national intelligence bodies, thereforeincluding the famous former-Security files. APADOR-CH asked for the setting of a sole declassification term of 20 years from the creation of a record, parallel to the legislated obligation for SRI to periodically reassess (for instance, once every three years) the level of classification for all information held. Information which no longer entails any danger to national security will be immediately declassified.
3. The Draft Proposal on the Organization and Functioning of the Foreign Intelligence Service (SIE)
The issues are largely similar to those concerning the draft proposal for SRI: maintaining a mixed civilian and military status, setting up own military troops, the right to use firearms, setting up “legal persons”, extra budgetary financing sources, individual surveillance, “secretizing” all information regarding its activities, personnel, structure etc. However, the main issue would be that it remains unclear what the object of its activity is (there is no definition of what constitutes “foreign” intelligence/threats) and the place of undertaking its activities (in the country? abroad? both?). In fact, there are many situations in which the “areas” covered by SIE and SRI seem to overlap.
4. The Status of Intelligence Officers
Besides its double, military and civilian status, or the right to bear and use fire weapons, the proposal includes and impressive number of material benefits, among which the most conspicuous concern retiring at 55 or after 25 years in the service (12 months of activity are thus equated to 18-24 months), the multiple components of the basic salary (including ranks, gradations, permanent bonuses, etc.) and the opportunity to buy their service apartments.
Besides that, Art. 31, Par. 1 specifies the lifelong obligation of keeping professional secrets after ceasing work relations with the service, which is an obviously excessive and unjustified provision. APADOR-CH proposes that the obligation of keeping professional secrets be restricted to 5 years or until the declassification or revealing by any means of the respective information.
An unacceptable provision is that according to which intelligence officers can “ask any person for support in defending national security...” Defending national security is a task exclusively assigned on the authorities. Persons, especially individuals, have no competence in this field and cannot be forced to provide “support” for intelligence officers.
B. The Government’s Initiative
Between June-August 2006, the Secretariat General of the Government organized several public consultations on the topic of national safety/security and secret services, with the stated intention of substantially modifying the four proposals submitted by the CSAT and of preparing a fifth legislative motion which was to comprehensively define national security (APADOR-CH participated in these consultations). The draft law on national security (the fifth) was made public in August 2006. APADOR-CH noted its commentaries on this text[3], the main objections being the following:
1. If this draft law is presented to the government together with the four laws drafted by the CSAT, it must be specified that between the first and the other drafts there are several inconsistencies and contradictions. The four draft proposals put forth by the CSAT openly breach national and international regulations on human rights. They cannot be amended, but only fully rewritten, based on completely different principles;
2. The draft does not refer at all to activities of person surveillance, which is a vital aspect from the point of view of the Association, as they contain drastic limitations on essential rights (protection of privacy, freedom of expression, freedom of association etc.). The Association considers that this extremely delicate issue must be regulated within the Law on National Security, based on Recommendation 1402/1999 of the CEPA and the regulations of the Code of Criminal Procedures on the length of interception authorizations. The conditions for the exercising of the surveillance must be the following:
a) The request for the authorization of the interception/surveillance is handed to the judge, together with all the documents/data which the request is based on, as formulated by a “secret” service;
b) The judge issues the authorization for a period of 30 days;
c) At the end of that period, the beneficiary service presents the judge with the results gathered. If the judge assesses that the surveillance must be continued, he/she can extend the authorization by another 30 days. Under the same conditions, the judge may dispose two more extensions of 30 days each. The total duration of the authorization must not exceed 120 days;
d) If the evidence collected is irrelevant or insufficient for the prosecution of the person under surveillance, the judge disposes on informing the person on the measure that was taken;
3. It is necessary for the law of national security to include the express interdiction, for all intelligence services, and intelligence departments/structures, to undertake economic, commercial, financial, banking or any other type of operation that may bring in extra budgetary revenues. All “secret services”, irrespective of the name, must be financed exclusively from the state budget;
4. APADOR-CH supports the dismantling of SPP and STS as separate services, and their inclusion as departments within the Ministry of Interior and Administration Reforms, and the Ministry of Communications and Information Technology. However, in order not to perturb specific activities, either there has to take place a simultaneous modification of the laws for the organization and functioning of the two ministries, or transitory measures will have to be included in the Law on National Security;
5. The Association noticed that in some articles the phrasing mentions the security of the Romanian state, although the draft law attempts to create the impression that all the activities envisage the safety of the citizen. The “state” is an abstract notion which cannot be “threatened” by any danger.
6. Parliamentary control over the intelligence services/structures – proven to be inefficient so far – must be strengthened. The specialized commissions must also have access to information on the operations of the services, if there are suspicions or complaints from individuals or legal persons. Lacking that, it is impossible to protect persons from potential abuses. Access to justice is not an effective way of appeal, either, since the wronged person would have to bring forth evidence in support of the case. It is clear that such evidence with legal value cannot be obtained, because the intelligence services/structures are fully protected by state secrecy. The solution is, at the end of the operations, for the services/structures to inform the envisaged persons, who were not prosecuted, that they were the target of surveillance. If those persons express their intention to take the matter to court, then the services must make the collected materials available to them. If the persons do not wish that, the materials will be immediately destroyed.
After numerous delays and successive modifications, the Government decided to send the set of five laws (the four initiated by CSAT but modified by governmental experts, plus the national security draft law) back to CSAT for sanction, in agreement with the Constitution. According to the statement of the Romanian President, the proposed set of laws does not meet the national and international standards. During a meeting organized by CSAT in December 2006, in which APADOR-CH took part, officials from CSAT announced that the draft laws, with numerous amendments, were re-submitted to the Government in December of that year. It was specified, however, that the decision on the final shape of the draft law belongs exclusively to the Government[4].
II. ACCESS TO PUBLIC INFORMATION AND DECISION TRANSPARENCY
In the year 2006, APADOR-CH continued, for the fourth year in a row, to monitor the implementation of Law no. 544/2001 on the free access to public information and promoting the prosecution of cases against the unjustified refusal of authorities and public institutions to release the information requested. At the same time, the Association carried on procedures for the strategic cases which were initiated the previous years.
Also, at the beginning of 2006, the Association finalized a project financed by the Open Society Justice Initiative, with the purpose of implementing the Law of free access to public information. Within this project, APADOR-CH organized, in January of 2006, a training session with the civil servants in charge with implementing Law no. 544/2001 in the county of Ilfov, and it also launched volume II of a collection of court-cases based on this particular law. At the same time, the webpage of the Association inaugurated a special section devoted to these cases.
In 2006, APADOR-CH started a project focused on monitoring the implementation of Law no. 52/2003 on decision-making transparency in public administration. The project, entitled “Improving the relation between citizens and the administration in the decision-making process”, is financed by the United States Agency for International Development within the “Romania Civil Society Strengthening Program”.
With this project, the Association attempts to bring together a coalition of non-governmental organizations at the local level, which will monitor the stages of the implementation of Law no. 52/2003 on decision transparency in public administration, will identify the main issues in the implementation of the Law, as well as the practical or legislative solutions necessary for improving decision transparency; it will also conduct an awareness campaign in this field, for both the administration and the citizens. At an initial stage of the project, carried out in 2006, APADOR-CH selected 30 local NGOs for which it organized two training sessions on how to use and how to monitor the implementation of Law no.52/2004. The Association also printed 75.000 flyers for citizens, containing general information on the Law of decision transparency. These will be distributed throughout 2007 by the 30 organizations members of the coalition. The project will be finalized in October 2007.
1. Requests for Information and Court Actions
1.1. Cases initiated in the previous years and continued throughout 2006
In 2006, APADOR-CH continued with its enforcement procedures initiated against the Public Ministry and Prosecutor General Ilie Botoş. In June 2005, the Bucharest Tribunal fined Prosecutor General Ilie Botoş for a second time, for failing to abide by a court order to release full statistical information on person surveillance. The Public Ministry and Ilie Botoş appealed the decision. The Bucharest Court of Appeals rejected both appeals in January 2006.
A court action carried on by APADOR-CH in 2006 was that focused on the refusal of the Romanian Government – the General Secretariat of the Government – to release copies of the minutes from the government sessions which debated and adopted, between 2001-2004, normative acts on the situation of RAFO S.A. ONEŞTI, including the minutes of the meeting which debated and adopted the Governmental Emergency Ordinance no. 101/2004. Through this emergency ordinance, Adrian Năstase’s Cabinet decided that the Authority for State Assets Recovery (AVAS) should take over some post-privatization debts incurred by RAFO Oneşti and Carom Oneşti. In the first instance, the Association’s court action was dismissed on grounds of admissibility by the Bucharest Tribunal, which considered that the information requested was classified, thus being excepted from free access of citizens, according to Art. 12, par. 1, letter b) of Law no. 544/2001 and Law no.182/2002. APADOR-CH appealed this decision, and in February 2006 the Bucharest Court of Appeals ruled in favor of APADOR-CH, forcing the Romanian Government – the General Secretariat of the Government to release the requested public information. In March 2006, the Romanian Government appealed the ruling, applying for a contestation in annulment and review. Both extraordinary ways of appeal were rejected by the Court of Appeals in Bucharest.
In the year 2005, through one of its members, N.P., APADOR-CH requested the National Authority for Consumer Protection (ANSV) to release information on the composition of bread, the situation of complaints on the quality of bread, the number of controls carried out between February 1 – September 15 2005, as well as the number of contraventions found. 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. ANSV answered incompletely to the request for public information; as a consequence, APADOR-CH filed a court action. In March 2006 the Bucharest Tribunal admitted in part the complaint filed by the plaintiff and forced the public authority to release the information requested, but rejected the request for damages as ungrounded. N.P. appealed this sentence. The Bucharest Court of Appeals admitted the appeal in October 2006, and forced the ANSV to release all the information requested.
The action in court started by APADOR-CH against the Insurance Supervisory Commission (CSA) in 2005 and carried on in 2006 targeted the incomplete response to a request for statistical information on the number of complaints/notifications received between 01.01.2002-01.06.2005 against insurance agencies. The Insurance Supervisory Commission answered that the requested information can be found on its Internet website and in their published annual reports, although they had not published a report for 2005, and the other reports did not contain all the information requested. 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. In February 2006, the Bucharest Court of Appeals admitted the appeal of the Association and granted moral damages to the amount of 1000 RON. CSA executed the sentence in its entirety.
Also in 2006, APADOR-CH finalized the action initiated in 2005 against the Bucharest City Hall. Initially, the Association filed a request for public-interest information to the Bucharest City Hall, concerning the contracts signed between 1.01.2000-1.06.2005, with the purpose of building, rehabilitating and maintaining public roads in Bucharest. APADOR-CH also asked for copies of the contracts. The City Hall refused to release the copies of the requested contracts, invoking the existence of clauses of confidentiality. In order to clarify the incidence of clauses of confidentiality in public procurement contracts on the release of public information by virtue of Law no. 544/2001, APADOR-CH filed a complaint in court against the refusal to release copies of the contracts. In October 2005, the Bucharest Tribunal found the motion filed by APADOR-CH against the Bucharest City Hall partly admissible, and ruled the accused to release the public information requested. The court rejected the Association’s request for moral damages. Both parties appealed the decision. The Bucharest Court of Appeals rejected the appeals in February 2006. The information requested was released with an unjustified delay of 8 months from the final ruling.
1.2. New cases
As suspicions of serious infringements of human rights arose Romania, consisting of deprivation of liberty and subjection to torture of persons suspected of terrorism, APADOR-CH filed a request for public information with the Ministry of National Defense, in order to release the flight schedule for the U.S. airships flying over Romania which landed at one of Romania’s military airports between 2001-2005, as well as the procedures on using military airports in Romania by military airships flying other persons than the crew, the existence of transit centers, accommodation spaces or detention areas. This request for information was answered the following way: “the structures subordinated to the Ministry of Defense only have attributions to monitor state or civil airships over-flying national air space, with or without landing on Romanian airports (airdromes), without having specialized responsibilities and structures in processing personnel and materials upon crossing state borders, as that attribution falls within the competence of the specialized national bodies. The flight schedule for airships that landed on Romanian airports (airdromes) contains information which is not public.”
In May 2006, APADOR-CH filed a request for information with the Ministry of Foreign Affairs, by which it requested the Ministry to release the list of countries which the Romanian delegation had voted to be part in the Council for Human Rights at the United Nations General Assembly, the criteria used to assess the observance of human rights by candidate countries, as well as the documents used by Romania in order to assess the candidate countries. The request of the Association was part of a larger action undertaken by Freedom of Information Advocates Network, by which such requests were addressed to several states at the same time, in the context of several countries with human rights observance issues being elected to the first Council for Human Rights. The Ministry of Foreign Affairs only released part of the information requested, considering that information on the processes of promotion and support given to Romania’s national candidates to the UN system, and on the processes of finalizing mutual support pledges and decision-making processes concerning Romania’s support of other countries’ candidatures are classified documents. We must note, however, that the answer APADOR-CH received from the Ministry of Foreign Affairs was the most comprehensive, compared to the answers received by the other organizations involved in this action.
In October 2006, the Association addressed the Autonomous Administration „The Official Gazette” a request for information on the organizational structure of the institution, the name or title or the individuals or legal persons that are or were associates beginning with 2002, the total number of employees, itemized per year between 2002-2006, activities undertaken apart from editing the Official Gazette of Romania between 2002-2006, the revenues of the Administration from other activities than the editing of The Official Gazette between 2002-2006, the patrimony of the Administration between 2002-2006, the amount of loans between 2002-2006 and how much of the loan was paid back to date, the income of the director general, of the members of the board of administration and the directors between 2002-2006, the budget of the Administration between 2002-2006, as well as a copy of the annual report presented to the general secretary of the Chamber of Deputies by the board of administration on the activity of the Administration in the preceding year and the activity schedule for the current year. The request was made in the context of the “secretizing” of the budget of the Autonomous Administration “The Official Gazette”, and did not receive any proper answer. The refusal to fully release the information requested was contested by APADOR-CH in court; the ruling was expected in January 2007.
Another case was generated by a request addressed to the Ministry of Foreign Affairs, by which the Association requested the release of the total number of advisors to the minister of Foreign Affairs and of the number of persons “holding the status of advisors to the minister of Foreign Affairs”, as well as their name, citizenship, professional training, date of appointment and, function of the situation, the date of release from their position for each of the minister’s advisors, the total amount paid to each of them, and if these amounts were paid from the budget of the Ministry of Foreign Affairs or other public sources, to be indicated accordingly. In the answer received there was a list of advisors, which however did not comprise all the persons known to have held that position (for instance, Mr. Wolfgang Dix, a foreign advisor appointed by Governmental Decision nr.505/2005). Also, the answer did not indicate the amounts paid as salary from the state budget, but only mentions the legislation by virtue of which the remuneration of these advisors was established. APADOR-CH filed a court action against the incomplete answer received. The court will try the case in January 2007 in the Bucharest Tribunal.
In 2006, APADOR-CH initiated execution procedures (administrative contentious procedures) against the Bucharest City Hall, Mayor Adriean Videanu, the Romanian Government – the General Secretariat of the Government, former secretary general Mihai Alexandru Voicu and current secretary general Radu Stroe. These procedures were generated by the failure to comply with two definitive and irrevocable sentences which obliged the Bucharest City Hall and the Romanian Government – the General Secretariat of the Government to release public-interest information (the cases were described in the previous section, “Cases initiated in 2005 and carried on into 2006”).
In the case of the Bucharest City Hall and the mayor general Adriean Videanu, in September 2006 APADOR-CH asked the court to fine the mayor general, as the manager of that public authority, with a sum to the amount of 20% of the minimum wage in Romania per each day of delay in the execution of the civil sentence no. 258 of February 20, 2006, ruled by the Bucharest Court of Appeals, i.e. beginning with February 22 until the date of execution. On December 13, 2006, the Bucharest Tribunal admitted in part the complaint of the Association and forced Adriean Videanu to pay the requested fine for the period March 23, 2006 – October 10, 2006, but rejected the request of damages for the ungrounded delay of execution of a civil sentence. APADOR-CH appealed this decision. A similar complaint filed against the Romanian Government – the General Secretariat of the Government, former secretary general Mihai Alexandru Voicu Radu and current secretary general Radu Stroe was to be tried in court by the Bucharest Tribunal in February 2007.
In February 2006, APADOR-CH filed a criminal case against the Prosecutor General attached to the High Court of Cassation and Justice, Ilie Botoş, for offences indicated by Law no. 554/2004 on administrative contentious procedures (failure to comply with the definitive and irrevocable sentences even after the manager of the institution was fined by the court for non-observance of the execution period) and Art. 246 of the Criminal Code (abuse of administrative authority against personal interest). The complaint targets the failure to fully comply with the irrevocable court decision by which the public Ministry was ordered by the court to release to the Association statistical information of person surveillance.
In July 2006, the Prosecutor’s Office attached to the High Court of Cassation and Justice answered the Association by stating that the criminal case filed against the Prosecutor General was dismissed as “there was no clear indication of the perpetration of a deed specified by criminal law”. Against the clearly illegal refusal of the Prosecutor’s Office to issue a procedural solution (to start or dismiss criminal prosecution) in the criminal case filed against the former Prosecutor General by the High Court of Cassation and Justice, in September 2006 APADOR-CH appealed the ruling in court. The High Court of Cassation and Justice is to try the case in January 2007[5]. Also, in October 2007 the Association sent a notification to the minister of Justice so that the necessary measures are taken for the Prosecutor’s Office, falling under the authority of the Minister of Justice (on the ground of Art. 132, Par. 1 in the Constitution), to record and rule in the criminal case. A similar notification was sent to the Superior Council of Magistracy. The Ministry of Justice sent the notification to the Public Ministry, which, in November 2006, communicated to the Association that preliminary motions had been undertaken against Ilie Botoş for offences specified in Law 554/2004 and Art. 246 of the Criminal Code.
III. FREEDOM OF EXPRESSION
During the year 2006, APADOR-CH publicly protested against two cases in which the Romanian authorities violated the right to freedom of expression. In the first case, in February 2006, APADOR-CH together with the Media Monitoring Agency and APPLE protested against the authorities taking into custody and starting criminal investigations against a journalist, on grounds of his being in possession of classified information. The press release of APADOR-CH contained the following:
„Protest against the illegal taking into custody of journalist Marian Gârleanu for allegedly committing an offense against national security
APADOR-CH, the Media Monitoring Agency and APPLE are protesting against the illegal taking into custody of journalist Marian Gârleanu, the Focşani correspondent of România Liberă daily, for allegedly committing an offense against national security.
Briefly, the journalist is accused of possessing unauthorized military information, which the Defense Minister described as “not representing an immediate danger for the Romanian army, since this is outdated information, two and a half years old, therefore this is not an issue that seriously jeopardizes the Romanian army...”.
First of all, if the information held by the journalist does not pose any threat to the army, as the Defense Minister himself states (and he is expected to be in full possession of the necessary data), then the information cannot be classified. According to article 15 of Law no. 182/2002 on the protection of classified information, it is only information the release of which would harm national security or defense that constitute secret state information.
Secondly, with the adoption of Law no. 182/2002, the obligation to protect classified information is the sole responsibility of the “authorized persons”, not of any other persons. Art. 16 in that law specifically states that only the authorized persons who issue, manage or come in possession of classified information have the obligation to protect it. Since journalists, as well as the public, are not among the authorized persons that article 16 refers to, it follows that for them there is no obligation to protect classified information. A change in defining the persons under obligation to protect classified information results in an implicit abrogation of par. 4 in Article 169 of the Criminal Code, a text which instituted an obligation for any person to protect classified information.
Such a claim is perfectly logical: once an information has exited the area of secrecy – which is accomplished once the data/information have come into possession of the media – the information becomes declassified and cannot re-gained the original status. In fact, the European Court of Human Rights has established that “information on national security, once part of the public sphere, can no longer be restricted, withdrawn, and the authors of the dissemination cannot be punished…”
APADOR-CH, the Media Monitoring Agency and APPLE consider that journalist Marian Gârleanu’s deprivation of freedom is completely unjustified and ask the competent authorities to relinquish the enforcement of Par. 4 in Art. 169 of the Criminal Code in this, and in any other similar situations.”
The second protest, of June 2006, focused on the sentencing of the president of the National Audio-Visual Council to paying moral damages in an exaggerated amount, for an article published while he was a journalist. Here is the press-release issued by the Association:
“APADOR-CH protests against the recent court decision that orders journalist RALU FILIP to pay moral damages in the amount of 90,000 RON (900 million lei) for publishing statements and opinions which resulted from an investigation he carried out in a matter of public interest, concerning the behavior of persons holding important public offices.
Ordering the journalist to pay an exorbitant amount of money is an evidently disproportional penalty; its direct effect will be restricting the freedom of expression to the point of annihilation. Anyone intending to initiate a debate on matters on public interest, especially the press, is intimidated and discouraged by the penalties thus imposed by the courts.
By granting moral damages, the court should not attempt to punish the journalist, but to provide adequate and proportional compensation for the moral prejudice that was caused. There must be real and genuine guarantees in the legislation and in courts against granting disproportional compensations.
The European Court of Human Rights pointed out on several occasions that the essence of a democratic society is the free, uninhibited discussion in the public space of any matter of public interest. Enforcing disproportionate sanctions, even when there is a fault with the journalist, constitutes a clear violation of Article 10 of the European Convention of Human Rights, as these sanctions have an intimidating and inhibitive role, annihilating the possibility of free debate specific to democratic society.”
Also in 2006, APADOR-CH supported the case of journalist Cristian Anton from Constanţa, sued by the mayor of the Constanţa municipality, Radu Mazăre. The latter asked the court to force the journalist to pay moral damages to the amount of one billion five hundred million old lei, for the alleged attack against his reputation by an article published on November 24, 2005, in Replica de Constanţa, a local daily. In an article entitled „Tîrnăcop zice că e săpat de grupuri de interese” (Pickaxe claims backstabbing by interest groups), Cristian Anton released information obtained following a discussion with a prosecutor from the National Anticorruption Department (DNA) on the activity of DNA in Constanţa. The article reviewed the difficulties DNA was confronted with, like staffing shortage and political pressure. At the end, it quoted the prosecutor’s opinion on the alleged abuses of the DNA against Radu Mazăre. On this issue, the journalist recorded the prosecutor’s opinion that there was no abuse against the mayor; on the contrary, he was allowed to freely leave the country, while no steps were taken against him. The prosecutor mentioned that such a measure “might possibly be taken”, “function of the results of the investigation”. In the same court action, mayor Mazăre had asked for prosecutor F.T., together with the National Anticorruption Department, to be ordered to pay damages. APADOR-CH represented the journalist before District 1 First Instance Court in Bucharest. The court ruled in favor of journalist Cristian Anton, denying both requests of Mr. Mazăre in a decision issued on December 15, 2006. The court found that there was no contestation on Mr. Mazăre being investigated by the DNA, that the statement on the possibility of taking certain measures during the investigations represented a mere supposition, pending on the result of the investigations, and that the journalist merely reported a discussion with the prosecutor referring to the activity of the DNA and the important cases the Department was working on, within the boundaries of the freedom of expression on a topic of public interest and concerning a public figure – a political figure who, as occupying a representational position, must remain in the public eye and in the attention of those who had elected him. “Were it not so, the practice of democracy would be void of content”, the court concluded. By the end of 2006, Mayor Radu Mazăre had not appealed the decision.
IV. DETENTION, REEDUCATION AND SOCIAL REINSERTION OF PERSONS SERVING CUSTODIAL SENTENCES
1. Legal Framework
1.1. The Regime of Execution of Sentences
The passing and coming into effect of Law no. 275/2006 on the execution of custodial sentences was the most important step taken since 1989 to align penitentiaries in Romania to European standards. The new law regulates essential aspects, such as: the permanent presence, in each prison, of a liaison judge for the execution of sentences, who is not part of the penitentiary system and exercises impartial control over the way prisoners are treated; the classification of detainees by category of detention regime (high-security, closed, semi-open and open) with a clear definition of conditions for each category and for moving from one category to another; improvement of medical care for detainees by stipulating the obligation of doctors and nurses to tend only to prisoners, and not also to members of the staff; eliminating the restrictive regime as a disciplinary sanction (which was used for periods of 3 months up to one year, in very tough conditions); giving up the prison uniform, which was not only degrading, but also often insalubrious; eliminating the obligation of detainees to work and the sanctions applied when they refused; etc.
Although the law only came into effect in November 2006, and the regulations henceforth derived three months later, APADOR-CH noted the first welcome signs of change as early as December 2006 (the appointment of liaison judges, the intense activity of classification committees). Some things are still unclear (for instance, what is the concrete role of the liaison judge, in what way may prisoners access him/her and what effect should his/her decisions have) and APADOR-CH will see if and how they are clarified. It is obvious though, that besides these much needed and substantial changes of the legal framework, efforts to improve detention conditions (accommodation, food, education and social activities, preparation for social reinsertion after release) must go on.
1.2.The Legal Framework for Medical Care in Detention
Given the numerous complains made by detainees with regard to the quantity and quality of the medication they received in the penitentiary system and to the lack of adequate medical care, APADOR-CH repeatedly asked the ANP - National Administration of Penitentiaries - in 2006 that prison doctors should tend exclusively to detainees. Penitentiary staff should only be entitled to medical assistance inside the prison in emergency situations. In 2006 as well, medical expenditures statistics indicated that ANP employees used a substantial part of the CASAOPSNAJ health insurance agency, although the number of employees is sensibly lower than the number of detainees.
Law no. 95/2006 on health reform created the National Exclusive Health Insurance Fund and a future “reorganization” of the CASAOPSNAJ (the health agency for army, police, penitentiaries, secret services and the judiciary), with the administration of the exclusive fund by the National Health Insurance Agency and county agencies. APADOR-CH had repeatedly asked for CASAOPSNAJ to be closed and all beneficiaries to be transferred to the National Health Insurance Agency.
In September 2006, APADOR-CH stated its point of view on a Draft Order the Ministry of Justice prepared to regulate medical care in the penitentiary system. The Association welcomed the Order, as it attempted to fix many of the problems APADOR-CH had criticized over the years. The most remarkable provisions are the obligation of medical staff to tend exclusively to detainees, the decision to move prisoners on hunger strike to infirmaries and the decision to distribute condoms to prisoners in order to prevent HIV infection.
However, the draft also included provisions which fell shot of the expectations or were rather imprecise; APADOR-CH made comments on them and sent those to the initiator of the draft on September 27, 2006. The main problems concerned the medical record of detainees, the forensic evidence (autopsy) for detainees who died in prison, and the right of relatives, lawyer and human right organizations to access the medical record on a deceased detainee. The Association also recommended the elimination of provisions stipulating that detainees who intentionally got ill should cover the cost of medical care - with the prison doctor being the sole judge of their intention.
The Ministry of Justice finally operated only some of the suggested amendments. The suggestions made by APADOR-CH that the statements of the detainees should be included in the medical record and that provisions with respect to self-inflicted illnesses should be eliminated were ignored. Therefore, the Association filed a petition with the Ministry of Justice on November 1, 2006. At the end of 2006, the Order had not been yet passed.
1.3. The Problem of Religious Assistance In Penitentiaries
Religion assistance in Romanian prisons had been governed, until recently, by a protocol signed between the Ministry of Justice and the Orthodox Church in 1993 and reviewed in 1997. According to the protocol, each prison had an Office for religious assistance run by a chaplain, who was also the spiritual advisor of the Governor and had several other competences which had nothing to do with the divine service, such as keeping and constantly updating the list of prisoners by denomination, to be part of the parole board, or to endorse the appointment of room supervisors. Prison religious assistance was constantly criticized for being a sort of monopoly of the Romanian Orthodox Church, restraining the religious freedom for detainees from other denominations (see the APADOR-CH Annual Report for 2005).
Following Decision no. 202/2.08.2005 by the National Council for Combating Discrimination (CNCD), which noted the discriminatory character of legislation and interior regulations governing religious assistance in prisons (the decision was triggered by a complaint made by APADOR-CH), the Association asked the Ministry of Justice to pass an Order that would denounce the existing protocol with the Orthodox Church and replace it with a non-discriminatory set of regulations. APADOR-CH even prepared a draft proposal (an order of the Minister of Justice). Essentially, the proposal included the censuring of the protocol by the Ministry and a regulation of religious assistance based on the fair treatment of all religious denominations, whether minority confessions or the main religion of the country.
Order no. 610/17.02.2006 of the Minister of Justice, published in the Official Gazette no. 326 of April 11, 2006, introduced the new Regulations on religious assistance in detention. These generally include the proposals made by APADOR-CH: detainees are provided with religious guidance only upon request; nobody may be forced to declare one’s faith upon arrival to the penitentiary or during detention; priests and servants of any religious denominations and/or representatives of religious associations have access to the penitentiary for religious activities, even if detainees have not expressly requested it.
However, Order no. 610/17.02.2006 fell short of denouncing the protocol between the Ministry of Justice and the Romanian Orthodox Church, and therefore the existing structure of the ANP, including the offices for religious assistance, is still in function. It is true that, according to the new Law no. 275/2006 on the execution of sentences and to the new regulations on religious assistance, chaplains lost most of their responsibilities and can no longer interfere with the activity of other denominations in detention places.
Nevertheless, the religious organization Jehova’s Witnesses notified APADOR-CH in 2006 that on several occasions (in Tulcea and Gherla Penitentiaries), its representatives had difficulty in getting approval to access the prisons. APADOR-CH assisted the organization in obtaining access to the prisons in cause, as stipulated in the Regulations on religious assistance.
2. Detention Conditions in the Romanian Penitentiary System
In 2006, APADOR-CH visited five penitentiaries: Mărgineni (March 29), Slobozia (June 29), Aiud (December 12), Gherla (December 13) and Baia Mare (December 14). The representatives of the Association also went to the Slobozia Penitentiary to talk to Cristian-Marius Macaşoi, whose case is presented in a separate chapter.
2.1. Overcrowding and Poor Detention Conditions
According to the criteria used by the Romanian penitentiary system (6 m3 air/detainee), overcrowding showed the same slightly decreasing tendency. But according to recommendations made by Council of Europe’s Committee for the Prevention of Torture - CPT, (4 m2 and 8 m3 of air for each detainee), the problem of overcrowding continues to be a serious one. In other words, Romania is still far behind European standards in the matter.
In Mărgineni and Slobozia, the prison population was by about 200 or 300 above the detention capacity – even by the ANP standard. If the CTP recommendation were taken into consideration, then Mărgineni was 230% occupied. The situation was better at Aiud or Baia Mare, but Gherla is the only one of the five penitentiaries visited where overcrowding is not an issue. Nevertheless, in all five places, including Gherla, keeping scores or even hundreds of empty metallic beds inside detention rooms makes the available space even scarcer than it is. The Association recommended that unoccupied beds which exceed the detention capacity should be taken out of the room.
Throughout the year, the Association kept reminding – as it had constantly done before – that overcrowding had ill effects on all the parties involved directly or indirectly in the detention system. Too many detainees and too few staff means that inmates sit in their rooms for 24 hours a day, with no useful activity. Finding work for so many detainees is extremely difficult. Only about one third of the apt detainees have work to do, and it is generally seasonal work. The large number of inmates generates tensions inside the rooms, which often break into open conflicts. Medical care is completely unsatisfactory. Two or three general practitioners are unable to cope with so many patients (a detainee should be examined in at most 5 or 6 minutes, which is, of course, not enough), especially as prison doctors also functioned as GPs for the members of the staff and their families, who occupy one hour of the doctors’ seven hours daily program. Detention rooms (the ones that have been modernized) are generally complete with a lavatory (including shower, sink and toilet). When the place is overcrowded (20, 30 or even 40 detainees in every room) it is practically impossible to maintain personal hygiene at acceptable standards. The lack of minimum intimacy also adds to a state of humiliation. Moreover, the food is insufficient and bad. And the more prisoners there are, the more difficult it is to provide decent meals.
In the opinion of APADOR-CH, the problem of overcrowding may only be solved if the criminal law, one of Europe’s toughest in terms of alternatives to prison, is substantially amended; the mentality of the whole judiciary system regarding crimes with reduced social danger could thus be changed (at present, about half of the total prison population serves time for theft, and often the value of the damage they have produced is very small); the change would significantly increase the ANP budget and the managerial autonomy of each detention unit.
As for detention conditions, these are often critical. In Aiud, for instance, room 329, a very small space, accommodated five minors in bunk beds. The lavatory was not separated from the room, the toilet was out of order, the mattresses and blankets were torn and filthy and there were no sheets on the beds. The minors were allowed to shower once a week, for 5 minutes. But the most obvious sign of lack of interest from the prison management was the absence of window panes. Room 329 (just like room 340, by the way) had no window panes, while the winter had freezing temperatures and the children wore light, worn clothes. In room 340, the adult detainees had covered the windows with a plastic sheet, which could not, though, provide thermal insulation.
2.2. The State of Health of detainees and Medical Care
Many detainees from prisons visited by APADOR-CH in 2006 complained that they were not taken to the infirmary, or that they were ignored by the doctors and denied treatment.
If there were four doctors for about 1200 detainees at Mărgineni and for almost 1400 at Gherla (where only four of the five doctors tended to detainees), and two doctors for the approximately 600 inmates at Slobozia, the situation was far worse in Aiud and Baia Mare. Of the two GPs employed by the Baia Mare Penitentiary, one was on medical leave for an indefinite period of time, so in fact one doctor had been dealing single-handedly with all 600 detainees for quite a while. In Aiud, two doctors tended to 950 detainees. Moreover, at Slobozia, none of the doctors was at work on the day of the visit, although the schedule said that one of them should have been present.
Doctors in all the prisons visited also functioned as GPs for the staff and their families, as well as for other CASAOPSNAJ beneficiaries (sometimes, as was the case in Gherla, the chief doctor tended exclusively to the staff), although the medical staff is any way insufficient. The problem should be addressed by passing an Order on medical care in penitentiaries. For now, a January 2006 Order of the ANP stipulates that prison doctors should tend “mainly” to detainees. Such a provision fails to introduce a definite criterion for dividing the doctor’s time between detainees and the prison staff.
Facing a medical staff shortage, the Baia Mare prison management found the solution of “borrowing” a doctor from Gherla. However, as the shortage affects the whole prison network, the displacement of personnel cannot solve the problem, and it is necessary to create supplementary positions for both doctors and nurses.
In 2006 many penitentiaries continued to face a medicine crisis, as pharmacies refused to deliver after experiencing big delays in payment. That resulted in detainees – especially those worse off or who were not visited by friends or family – being deprived of medication.
According to the chief doctor in Aiud, the failure of the health insurance agency CASAOPSNAJ to allocate the necessary funds resulted in a drug penury during the first half of the year, with moth detainees deprived of treatment for long periods of time. The effects of this interruption were especially severe in the case of epilepsy and heart patients (over 100 detainees, according to medical records). Heart and mental conditions are the most frequent health problems at Aiud Penitentiary.
At Gherla, the medical staff in charge said that detainees were often left without their medication because the money from CASAOPSNAJ fails to come on time. Funds are generally over by the 10th day of each month, drained by the Military Hospital in Cluj. The Gherla Penitentiary has a delivery contract with a single pharmacy.
According to staff in charge of the Aiud in-house pharmacy, only 70 % of the drugs go to detainees, while the rest are distributed to the staff, who use the prison pharmacy mainly for non-subsidized drugs. The Gherla in-house pharmacy is well-provided with emergency drugs for both detainees and staff. Detainees get 82 % of the medicine. According to data provided by the financial department for the year 2006, 76,430 RON were spent for medication for detainees and 16,430 Rom were spent for the staff. That means 18% of the funds for medication went to the staff.
The Association considered it unacceptable that up to a third of the scarce medicine stock in prisons should go to the staff, who have access to any other pharmacy, while detainees depend exclusively on the in-house stock. As a consequence, the Association asked that the pharmacy should only cover the needs of detainees, except in emergency situations, when it should also provide medication for members of the staff.
Worse, at Slobozia, statistics provided by the prison management showed that for the first semester of 2006 medication for the staf cost by 13% more than medication for the detainees (21.235 RON for the staff and 18.722 RON for prisoners). The disproportion is even flagrant if we think that the number of staff is much lower than the number of detainees.
An almost general problem of prison medical care is the fact that certain detainees are labeled as “simulators”, and consequently ignored by doctors and nurses, no matter what they complain about. APADOR-CH does not deny that there are inmates who simulate illnesses in order to be transferred to infirmaries or hospitals, where conditions are better. But there is a risk that even “simulators” may get sick. Therefore, the Association asked that labels should be abandoned (there have been cases where the medial record bore the mention “simulator”) and that every detainee who comes to see the doctor should be carefully examined.
Another general problem is the lack of genuine preoccupation of the medical staff to oversee and improve hygiene problems and the quality of prison food. Bedware (mattresses, blankets, sheets, etc) is usually unhygienic, due to high wear and age (see the old mattresses in Baia Mare) or to the absence of washing machines (see Aiud). None of the medical staff appeared preoccupied by the precarious sanitary conditions (at Baia Mare there is one lavatory with 15 shower cabins for more than 500 detainees) or by the fact that hot water is so sparsely provided.
The result is that the most frequent health problems at Baia Mare are mental conditions, gastritis and dermatitis, all of them directly connected to living conditions (overcrowding, lack of hygiene and bad food). At Aiud, the most frequent acute illness was scabies (2-3 cases every week), caused by the old bedware and the appalling sanitary conditions, acknowledged even by the medical staff.
Another problem is that dental assistance does not include prosthodontics, as there is not specific contract for that type of works with CASAOPSNAJ.
The Association noted some progress in allowing detainees to get photocopies of their own medical records, as well as in no longer using handcuffs on detainees who are transferred to hospitals. Another commendable step is that condoms have started to be distributed among detainees, not just upon release, as was the practice in 2005. The measure is not a generalized practice yet.
Infirmaries in prisons visited by the Association often lacked conditions to treat patients efficiently; it was either too cold (a few hours of heating), as in Gherla, or too damp and badly ventilated.
At Baia Mare, several detainees complained that doctors were not present at all times and that, no matter what their complaints were, they were prescribed Paracetamol. One of them, suffering from ulcer and gastritis, claimed he had not received any medication since August. Another said his ear problem was ignored, although he had complained several times of hearing an annoying noise. The prison doctor told the representatives of the Association that the patient needed a hearing aid, but to the day of the visit no steps had been taken to obtain one.
At Slobozia, the representatives of the Association looked into the medical record of a detainee who had complained of not receiving specialist care, although he had problems with his heart and lungs. Indeed, the record showed no trace of a cardiology exam, although it mentioned symptoms of arrhythmia.
2.3. Social and Educational Activity
APADOR-CH noted some improvement of activities in this department which is crucial to social reinsertion after release, but also for boosting the moral of prisoners – with direct effects on relations with fellow inmates and with the staff. The education system covered seven years of elementary and secondary school and included a relatively high number of students (although school rooms often lacked minimal conditions for study – at Baia Mare, they were not heated, for instance, even in mid-December). Unfortunately, very few were involved in professional training, as masons, carpenters, cooks, hairdressers, farmers and PC operators.
Problems noted by APADOR-CH previously persisted in 2006 as well. One of them was, for instance, the small number of detainees involved in activities and the short duration of education programs. No matter if they are part of the ANP strategy or local initiatives, the programs address very few inmates (8 to 15), last for 3 month and usually take place once a week, for no more than one hour. On the other hand, APADOR-CH repeatedly suggested that in order to increase the prisoners’ interest for the programs questionnaires and polls should be used to consult them on the contents of the various activities.
Detainees who are not taken out to work are deprived of any type of activity, spending 23 hours a day locked in their rooms. The outdoor exercise time, supposed to be a daily activity, only lasts between 30 and 60 minutes, except in minors’ sections, where more time is allotted to physical exercise.
It should be noticed, though, that even if the classification by detention regime was ongoing (as provided by the new Law no. 275/2006 on the execution of sentences), 599 detainees at Gherla had already been heard by the Committee for individualizing the detention regime. 71 of them had been placed in open regime, 305 in semi-open regime, 197 in closed regime and 26 in high-security regime. The relocation of detainees according to their new regime was ongoing. Prisoners in semi-open regime had already been accommodated in Unit no. 3, where they were allowed to move freely, but only inside the building.
In other penitentiaries, such as Aiud, although part of the detainees had already been categorized by detention regime, the operation remained in the books, and accommodation in open and semi-open regime had not been prepared.
Penitentiaries sometimes worked with partners outside the system, unfortunately quite few (religious denominations, local NGOs), who, in their turn, run activities with the prisoners – also small scale, short term programs. At Slobozia, for instance, educational activities took place on the day of the visit in the central courtyard, to mark the “Day of Penitentiaries”. Representatives of the Bethesda Pentecostal Church said they were coming to the prison almost every week, following an agreement with the prison management. Other religious denominations and associations that regularly organized activities at the Slobozia Penitentiary were the Christian Evangelical Church, the Roman-Catholic Church and Matei Basarab Religious Association.
The activity of the county probation services in penitentiaries is almost inexistent, because services are understaffed and lack motivation. The sole aim of visits by probation counselors is to sit in committees for the individualization of detention regimes.
Prison libraries remain ill assorted, with old and uninteresting books. Penitentiaries edit, with the participation of detainees, makeshift in-house magazines, printed in a small number of copies. There are also closed-circuit radio stations producing a two hour program, once a week.
The number of specialized staff is much too low and many of the positions remain vacant. There are 6 occupied positions at the Baia Mare and Aiud, 7 at Slobozia, 10 at Mărgineni and 15 at Gherla, including the orthodox priest who may only provide service to orthodox detainees. Moreover, the Association noted that in 2006 psychologists were in general busy writing assessments for the classification of detainees by detention regime. They rarely ran any “hands-on” program (as was the case at Mărgineni).
Except for sporting games, all social and educational programs take place at the detainees’ club, mostly in the morning. APADOR-CH repeatedly suggested that other locations should be also used (the staff club, for instance, which is still inside the prison, even if it is outside the detention area; or even detention rooms that are not overcrowded).
2.4. Special Cases
i. Prison Protests on December 9-11, 2006
In almost half of the Romanian penitentiaries, detainees staged protests during the first half of December 2006. The Association visited three penitentiaries soon after the events, and was able to collect information on the causes of the protests, on the film of events and on the reaction of authorities.
The most worrying case was that of the Aiud Penitentiary. Although Aiud was not on the list of the protesting prisons in December, in reality detainees demonstrated here, too. According to the prison management, on the evening of December 9, 36 inmates in 2 rooms cried out loudly, “shouting and knocking into doors”, breaking windows and destroying the window frame shutting systems. The same sources say that the special intervention squad restrained and took protesters out of their rooms, relocating them in other sections, in smaller rooms. The staff mentioned that a disciplinary investigation was impending, although no steps in that direction had been taken until the day of the visit.
On Sunday, December 10, protests went on with 160 detainees refusing breakfast. Other 95 detainees refused food the next day, on Monday, December 11. Detainees who announced their intention to get on hunger strike were heard by the liaison judge on Monday. On Tuesday, when the Association’s visit took place, none of the detainees had refused food.
Talking about the causes of the protest, the prison management mentioned rumors about an amnesty law, which was expected to pass as soon as the new law on the execution of sentences came into force. The media and to the excessive coverage of prison protests elsewhere were considered the main instigators, because they triggered a solidarity reaction among inmates. However, the staff admitted that poor conditions were also a reason for the recent protests. Moreover, detainees heard by the liaison judge during the protests complained chiefly about detention conditions, improper medical care and lack of activity.
According to detainees in Section IV, who talked to the representatives of the Association during their visit, the intervention squad was quite violent in putting down protests in Section V.
The Association asked the ANP to extend the disciplinary investigation as to include the agents who intervened during the December 9-11 protests, meaning that the prosecutor’s office should be notified on the nature, duration and consequences of the intervention.
Between December 9-11, protests were staged at Gherla prison too.
According to the prison management, on Saturday, December 9, around 6 p.m., detainees in one room refused to go to dinner and voiced out their discontent. Shortly after, other six rooms joined the protest. The total number of protesters went up to 200, including four rooms for preventive arrest and three for repeated offenders. The protests were “peaceful”. The governor, accompanied by the intervention squad and a psychologist, went to each room to listen to the complaints. The intervention was recorded on video.
No sanctions were applied. Activities went on normally, although security was reinforced and the daily exercise was relocated to another yard. Detainees were no longer taken to the habitual exercise yards, but to one of the sport fields where fences were high and they could not communicate with inmates who sat inside, at the windows. Protests continued with some of the detainees refusing to go out for exercise and half of the prison population refusing to go to the showers.
The liaison judge listened to those who announced their intention to go on hunger strike. The staff, too, talked to the detainees, who complained about detention conditions, more precisely about the filth in cockroach infested rooms and the bad food. During the protest, about 200 persons refused prison food, but, according to the management, they were able to get their bread ratio back, upon request. The protests ended on Monday, December 11, 2006.
ii. The Cristian Marius Macaşoi Case
The discussion with the prison management, on June 29, 2006, revealed that on May 24, Cristian Marius Macaşoi was expected in court, to plea for a merger of his prison sentences. That morning, the inmate was taken to the control area, to change into the prison uniform.
The prison management pointed out that prison uniform was only mandatory for detainees who went out to work, to court or who did not have decent clothes to wear. In short, the prison uniform was mandatory outside the prison, as a means to distinguish convicts from detainees on preventive arrest. According to Macaşoi, he had been allowed to wear his own clothes in court before. The prison management said this was, indeed, true, but it was only because at the time he had been in a different legal category – that of preventive arrest – while on May 24 he appeared as a convicted felon serving a definitive term and pleading for a merger of prison sentences.
It was precisely Macaşoi’s refusal to put on the prison uniform that triggered the May 24 incident, during which he was physically abused by prison guards. According to the prison management, the guards used full force to restrain Macaşoi and change him into the prison uniform. Even admitting that it was absolutely necessary for him to wear the uniform, the violence that put the inmate into hospital with multiple injuries was obviously out of proportion.
According to Macaşoi, his reluctance to wear the uniform was due to the fact that it looked dirty and he suffered from a skin condition (“a rash”). Moreover, he claimed that he had informed the staff of his condition asking to be allowed at least to keep his own clothes under the uniform (a T-shirt and trousers). The Association notes that the explanation seemed serious and reasonable and should have been treated with understanding.
When the guards led by a chief inspector rushed in - the agents were masked, although the Slobozia prison management claimed that the penitentiary did not use an intervention squad (see the report on the penitentiary, following the visit on June 29, 2006) - Macaşoi was the last of a group of prisoners about to leave for court, and was alone with the guards. As there was no other detainee around, his “reluctant” behavior could not be considered as a bad example for discipline – a pretext often used by penitentiary staff for rough interventions.
According to Macaşoi, one of the three masked guards punched him in the face and then all the others kicked him and hit him with their bludgeons
The brutality of the intervention was obvious – the detainee had a nasal hemorrhage (epistaxis) that left blood marks on his T-shirt. Before leaving the control area, Macaşoi was made to put on a clean T-shirt. Despite his state, he has taken to court, in handcuffs, in a separate compartment of the van (“the sleeping cabin”), where he started to feel sick. As he complained of pains and general sickness, he was not finally taken back to the prison’s medical ward, and hence sent to the Slobozia emergency hospital.
Following his brutal beating on May 24, 2006, Cristian Marius Macaşoi was admitted into the Slobozia emergency hospital on the same day, and was diagnosed with multiple injuries: “closed acute skull trauma, thorax and abdominal contusion, right hip contusion”. He was seen by a forensic doctor on May 26, 2006. The forensic report was issued by the forensic lab of the emergency hospital on June 27, 2006 and communicated to the Slobozia penitentiary. The report noted multiple extensive ecchymoses (for instance, one of 10/3 cm on the right abdominal and lumbar area and one of 6/2 cm under the right clavicle) on the head, thorax, abdomen, right hip, as well as a sub-conjunctive hemorrhage of the left eye. As a conclusion, the forensic report stated that the traumatic injuries produced on May 24 could have been produced by blows with hard objects and required 6-7 days of medical care.
However, the representatives of the Association noted with surprise and concern that Macaşoi’s penitentiary file included a handwritten statement dated May 29, in which he took responsibility for refusing further medical investigations. This statement is highly suspicious, especially since on the same day the prison management decided to sanction Macaşoi by 10 days of severe confinement for the May 24 incident. The Association considered that the disciplinary sanction was used to pressure the detainee, and discourage him to continue medical investigation that might have revealed new consequences of the aggression over his state of health and could have increased the responsibility of his aggressors.
Another consequence of the May 24 incident was that on June 6 Macaşoi was classified as a high-risk detainee, but was not informed of the decision, so he may contest it. Although he received no formal notification, he was able to notice the changes in his detention regime: he was handcuffed whenever he was taken out of the room and during visits, and was the last to leave the room. His new room was searched twice in two weeks in his new room, the second search being performed by masked guards (normally, rooms are searched once a month).
As for the four members of the staff who brutalized Macaşoi, the discipline board concluded that they made no abuse, but had to use force because the detainee failed to cooperate. The report had been submitted to the prison manager who had not, at the time of the visit, confirmed or infirmed the conclusions.
According to the prison management, the Prosecutor’s office had been notified abut the May 24 incident, but the representatives of the APADOR-CH failed to understand was the purpose of the notification could have been. Until the day of the visit, more than a month after the incident, there had been no criminal investigation. Macaşoi said that he had not filed a criminal complaint. The Association is not surprised, given the fact that he was submitted to a wave of retaliation to scare away any plans of complaint.
iii. The Szücs Iosif Case
APADOR-CH received complaints from detainees at Gherla concerning violent abuse by the prison staff, especially by the special intervention team (“the masked squad”).
Mr. Szücs Iosif complained of having been fiercely beaten at Gherla on January 9, 2005 by three masked agents led by inspector Mureşan, who swore at him and then punished him with blows and kicks in the head for allegedly being rude. The beating caused him serious injuries and long-term suffering (recurrent headaches, hearing and sight problems).
Despite his serious state, the detainee was not taken to the doctor until he became very sick, one night later. As his head and thorax were badly injured, he was finally sent to the Dej Penitentiary Hospital.
The representatives of the Association talked to Mr. Szücs on December 14, 2006, at the Baia Mare Hospital, where he had been recently transferred, upon request. The discussion revealed that during the criminal trial that followed his complaint against the three agents and the inspector at Gherla, he was constantly pressured to withdraw his complaint and renounce appeals. Mr. Szücs was threatened, among other things, that he might lose any chance to get approval for parole release if he continued his action. The harassment proved fruitful in the end, as the victim did not appeal after the court decided against him.
The Association asked the prison to release the results of the internal discipline investigation that followed the violent intervention against Mr. Szücs Iosif at Gherla, in January 2005.
***
In spite of all the criticism and comments regarding the prison system, APADOR-CH must point out that it co-operated very well with the National Administration of Penitentiaries, as well as with the management of each detention place they visited. In 2006 too, there were signs from the ANP and prison managements (in Baia Mare, for instance) that they are ready to take criticism and suggestions from the Association. The Association refers to recommendations which do not require legislation changes, but only minimal expenditure, yet may have an enormous impact upon detainees.
V. THE POLICE
The year 2006 confirmed that the openness expressed by the Ministry of Administration and Interior with regard to the civil society, starting in 2005, was not a mere "display" action. The Ministry of Administration and Interior continued its consultations with NGOs in various domains. APADOR-CH was thus able to materialize two of its constant concerns regarding the relations between the police and citizens, on one hand, and the monitoring the police activities from outside the system, on the other hand.
1. Visiting Police Custody Facilities
APADOR-CH had the opportunity of visiting police custody facilities between 1998 and 1999. At the end of 1999, the Ministry of Interior modified the protocol signed with the Association by introducing excessive conditions, thus forcing APADOR-CH to give up this program. In 2006, the Association was once again granted permission to access police custody facilities. The five facilities they visited were located in Stations 6, 7, 9 and 15 in Bucharest (the custody facility in Station no. 7 was exclusively destined to women, who were subsequently moved into Station no. 15), plus the custody facility of the Ialomiţa County Police Inspectorate (IPJ), in the city of Slobozia[6]. Regarding detention conditions, the Association made the following comments: a) in Bucharest: the custody facilities were located in basements with strictly artificial lighting systems; there were no fund available to provide a few mandatory products for personal hygiene; improper medical assistance; small exercise yards etc. At Station no. 15, the Association noted that women detainees in one room, mostly Roma, had much worse conditions than the women in the other rooms (bare mattresses, worn-out blankets, unexplained delays or direct refusal of certain normal requests etc.) However, as opposed to the interval 1998-1999, one should mention a series of improvements such as the toilets installed in each room, bigger food ratios for detainees and relatively easy access to refrigerators; the possibility to receive books and newspapers; and, in the custody facility of Station no. 6, but only here, TV sets in each room; b) in Slobozia: apart from the deficiencies already listed for Bucharest, the IPJ Ialomiţa custody facility had not been renovated, and as a consequence the toilet was outside the custody rooms, which left the detainees entirely at the discretion of security agents whenever they had to use the bathroom. APADOR-CH considered this situation was humiliating, and its effect was the increase of the stress inherently generated by the arrest. The Slobozia custody facility had a single advantage: it was situated on the ground floor, which allowed for natural light during the day.
Among aspects regarding deprivation of freedom in the form of preventive arrest. APADOR-CH noted that the confidentiality of direct or phone conversations between the suspects and their legal advisors - was not observed. Confidentiality is an essential component of the right to defense and implicitly of the right to a fair trial. But whenever a person held in preventive arrest meets (or discusses by phone with) his/her legal counselor, the escorting policeman, if not the investigation policeman as well, is present and will hear their discussion. According to APADOR-CH, the right to defense, based on equality between defense and prosecution, is not yet perceived as a fundamental human right. Moreover, there is a widespread idea that the role of the legal advisor is to help find out "the truth", i.e. to help the investigators, and not to protect their client. Since mentality change is a slow and difficult process, APADOR-CH requests regulations that would forbid the presence of any member of the police during discussions - be them direct or by phone - between a detainee and his/her legal counselor.
Another aspect that needs to be mentioned is the routine handcuffing of all the people taken out of the custody facility, regardless of the purpose (minor people, pregnant women and elderly women are exempt). Handcuff restraining should be the exception, not the rule, when people are being brought to Court - and this should only occur upon the express request of the judge. The same rule should apply whenever detainees are taken out for an investigation or for routine medical checks. Also, handcuffs should not be used in the case of ailing detainees or during family visits.
2. The Territorial Authority for Public Order (ATOP)
Created by virtue of Law no. 218/2002 on the organization and functioning of the Romanian Police, ATOP operates in every county and in Bucharest. Each ATOP county subsidiary includes 6 county councilors, the IPJ chief, the representative of the National Corps of Police (a kind of union), the deputy prefect and three representatives of the community. (ATOP Bucharest includes municipal councilors.) ATOP has numerous attributions (e.g. developing the annual police strategy and police performance indicators, establishing a direct relation with the local communities, solving petitions and complaints regarding certain police activities, facilitating the supplementing of the police budget etc.).
In 2006, APADOR-CH initiated a project aimed at weighing the efficiency of this police monitoring instrument (but also of other forces with attributions in the public order sector, such as the gendarmes, the community policemen, the rural policemen etc.). The project was financed by the Royal Embassy of the Netherlands in Bucharest, through its MATRA-KAP program.
40 (out of 41) ATOP county subsidiaries provided the Association with information regarding their activities since their establishment until present. There followed meetings with 3 ATOPs (Brăila, Iaşi and Bucureşti), where participants filled a questionnaire especially prepared by the Association. Here are the first conclusions:
1. Approximately one quarter of the ATOP subsidiaries are only operating at paperwork level; another quarter of them are active and have already provided results, while the rest are operating with low efficiency;
2. The main problem seems to be that decision-making is limited to a mere "advisory opinion". In other words, the territorial authority has no... authority in front of the people it is supposed to monitor. Even the “advisory opinion” is questioned by the simple presence - within the ATOPs premises - of the chief of the County Police Inspectorate and the chief of the policemen union (usually a high-rank officer). Moreover, ATOP members lack the necessary expertise in terms of policing;
3. ATOPs are not legal persons and therefore they do not have authority for expenditure. As a consequence, they lack an essential lever of the democratic control, i.e. the budget of an institution in charge with public order.
4. ATOPs are only rarely confronted with the management of complaints from individuals or groups of people regarding the actions of policemen or other public order forces;
5. It is not clear whether ATOPs should handle all police structures (most of those questioned excluded the judicial police and border police), the gendarmes or the communal security force.
One possible solution for increasing efficiency within ATOP is changing the legislative frame, i.e. that chapter of Law no. 218/2002 on this particular authority and, accordingly, the Governmental Decision no. 787/2002. The main changes should be: a change of status, i.e. making ATOP a legal person (having a separate budget and the authority for expenditure within the police); changing the “advisory opinion” into a “binding advisory opinion”; making clear distinctions between the various professional categories with responsibilities in the public order domain that are to be monitored by ATOP; granting ATOP the possibility of hiring experts (on police business, legal matters, strategy and minimum performance indicators designing); removing police representatives from ATOP; expanding ATOP's attributions in investigating citizens' complaints against policemen.
Until the laws are amended, a temporary solution would be spreading the best practices of some of the ATOP subsidiaries (county visits, identifying the problems of local communities in relation with the public order authorities; identifying financial resources to supplement the budget of the county police, mainly for headquarters, vehicles and electronic equipment etc.)
However, the most important thing for the future of the ATOP subsidiaries is the upcoming law on police decentralization, which at the end of 2006 was still in the draft at the Ministry of Administration and Interior.
3. Other APADOR-CH Activities With Regard to the Police
3.1. An Individual Case of Police Abuse - Ninel Viorel Onţică
According to Ninel Viorel Onţică, on September 29, 2006, around 9 p.m., a group of approximately 15 policemen, some wearing masks - some without masks - waved his car to a halt just before it entered Bucharest, coming from Arad. There were three other men in the car. The four were suspected of having robbed various apartments from Arad and Deva, on September 27 and 28. They were pulled out of the car, forced to lie down on the ground and handcuffed, then taken to the Bucharest Police Sector 4 Headquarters, at the Department for Criminal Investigations.
Ninel Viorel Onţică, 32, was a former heroin addict who had been hospitalized in Obregia several times between 1997 and 2001. Since then, Onţică was on methadone treatment, and he owned of a “permit for purchasing narcotics”, issued by the Authority for Public Health, Bucharest (the permit is issued precisely in order to justify, in front of any investigators, why any such substances have been found on its owner). Onţică claimed that 50 methadone pills were among the items confiscated by the police during the search and never returned. Although he showed them his permit, the policemen refused to give him back the pills and did not allow him to ingest his daily dose. APADOR-CH considers that this abusive decision makes the investigators guilty of inhuman treatment.
The worst thing however was the way in which policemen tried to make Onţică confess his participation in the robberies. He was repeatedly hit on his face and body, and forced to stand on his knees for hours on end, until around 2.00 – 2.30 a.m., when the policemen realized he had to be taken to a hospital. Upon returning in the police headquarters, Ninel Viorel Onţică issued his first written statement, assisted by his chosen lawyer, and then he was taken to the custody facility in Station no.14. On September 30, in Court, he had to be held by two policemen, as he was not able to stand on his own. The Sector 4 First Instance Court decided that preventive arrest was not necessary and ruled to set him free. On October 2, Onţică was examined at the "Mina Minovici" National Forensic Institute, where forensic report no. A2/6403/2.X.2006 was issued, acknowledging numerous bruises, tumefactions and excoriations, including on both knees. The signs were still visible more than a month after his arrest. APADOR-CH considers the treatment used by policemen from DGPMB – Sector 4 Police against Ninel Viorel Onţică is tantamount to torture, since its aim was to force a confession.
Ninel Viorel Onţică filed petitions with the Prosecutor’s Office and with the police, complaining of ill treatment while he was retained.
In its turn, APADOR-CH wrote to the General Inspectorate of the Romanian Police, asking for an investigation into the circumstances of Onţică's arrest and the way he was treated throughout the detention interval. By the end of December, the Association had only received a confirmation from the IGPR that the complaint had been filed.
3.2. Use of Firearms by Police and/or Gendarmes
Due to an increased number of cases where policemen and/or gendarmes used their firearms, wounding or even killing unarmed people, APADOR-CH issued the following protest in October 2006:
“APADOR-CH protests against the increasingly frequent use of firearms by policemen or gendarmes. This demonstrates, on one hand, lack of respect for the fundamental right to life, and on the other hand, poor professional training. In less than one month (September 2006), three such situations occurred: in Reghin, during a police raid organized in a Roma neighborhood in order to track down and arrest two people who had allegedly offended a policemen; in Bucharest, against a 22-year old man, Adrian Cobzan, killed by a policeman while he was running away from the crime scene (he had allegedly stolen candies from a truck); and once again in Bucharest, where this time the gendarmes acted against spectators acting aggressively during the Dinamo-Steaua match.
APADOR-CH notes that, according to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art.2 – the right to life), the use of firearms by law enforcing authorities is only justified when it is absolutely necessary. The jurisprudence of the European Court of Human Rights clearly stipulates that authorities can only resort to a firearm when life or limb is in danger. The European Court also stipulates that, before using firearms against a person, authorities should consider the nature of the deed (shooting and killing a thief is totally unjustified). CEDO also considers that police actions need to be very carefully planned, in order to reduce the risk of resorting to firearms to a bare minimum.
APADOR-CH asks the Ministry of Administration and Interior to urgently regulate the use of firearms by its employees (policemen, gendarmes, border policemen) in the sense of authorizing this extreme measure only if a person's life (the life of a policeman, a gendarme or any other person) is in real danger. Use of firearms in any other situation must be explicitly forbidden.
The Association asks the Ministry of Administration and Interior, as well as local authorities, to thoroughly investigate all situations in which policemen or gendarmes make use of firearms, and subsequently make public any resulting sanction and/or legal action.”
APADOR-CH has not been notified yet whether authorities have launched any investigations or whether anyone was sanctioned. However, firearms have no longer been used during interventions against undisciplined sport fans on stadiums and around.
As for the robbery suspect who was shot to death, the Association was contacted by the victim's father, who has been provided legal support to file a criminal complaint against those who were responsible for his son's death. The criminal investigation had not been completed at the end of 2006.
3.3. The Position of APADOR-CH on the Public Policy Proposal of the Ministry of Administration and Interior, in July 2006
The proposal of the Ministry of Administration and Interior aimed at increasing efficiency of “actions meant to provide compliance with rules governing public space, morale, public order and the exercise of civil liberties”. Behind this pretentious formula, the proposal referred to sanctions against those who made “excessive noise”, disturbing other people.
APADOR-CH considered that the purchase and use of noise meters by policemen and/or gendarmes, and especially the strict enforcement of existing legislation could help reduce noise pollution. But the Association firmly opposed the idea of "grounding" (holding, retaining) people, that would add to another form of deprivation of freedom, besides "leading” to the police station an