The year 2003 meant, in terms of civil rights, the official recognition of discrepancies between the Romanian criminal legislation and the European standards as set by the European Convention on Human Rights and Fundamental Freedoms and its Five Protocols and interpreted by the European Court of Human Rights in Strasbourg (ECHR). The latter ruled against Romania in the case Pantea vs. Romania for the violation of several rights guaranteed by the Convention and declared admissible, for similar violations, a complaint in which the victim was an underage boy from Tg.-Mureş. The ECHR decision was the latest – and strongest – impulse for a substantial modification of the criminal legislation, insistently demanded over the years by domestic and international NGOs, as well as by European governmental and non-governmental institutions. The Criminal Procedure Code has finally been modified, mostly in the sense of bringing it closer to European standards. However, the way in which it was adopted and especially the way it was enforced, spoke of itself about the disarray in the Romanian legal system. After the first important amendments made in 1996 (unfortunately, almost all of which had a negative impact upon civil human rights), it took no less than 5 separate laws and 5 emergency ordinances over a period of 3 years (2000-2003) to get to the current version of the Code. Moreover, Law no. 281/2003 (modifying the Criminal Procedure Code) was enforced in several “installments”, including by emergency ordinances, creating confusion and triggering errors.
At the same time, the at least equally complicated history of the Criminal Code has not reached any conclusion until the end of 2003. After repeated attempts – some successful, some not – to keep in place some provisions that make the Romanian Criminal Code one of the most restrictive laws in Europe, or to simply cosmeticize them, the Ministry of Justice and the Government were forced to give up, at least partially, to internal and international pressure for bringing the Criminal Code to European standards. The parliamentary debates on this text, which is essential for the observance of civil rights, were interrupted by the adoption of the new Constitution, the enforcement of which will require new amendments to the draft Criminal Code.
Other laws with a great impact on civil rights also require drastic amendments. Among them, the Law on national security (in force since 1991) and the Law on classified information (in force since 2002) require particular attention, since in the current form they contain direct threats to civil rights such as the right to respect of private life and free access to information of public interest. If one has no doubts about the necessity of changing the Law on national security (there have been several legislative initiatives in this respect, a public debate has been launched, pro and cons emerged), the Law on classified information has hardly been taken into consideration, although organizations such as APADOR-CH have insistently pointed out to its deficiencies. That some of the provisions of the Law on classified information are extremely restrictive and undemocratic became all the more obvious when legal entities or individuals tried to obtain information relying on the Law on free access to information of public interest.
The right to private life is also seriously threatened by Government Decision no. 952/2003 which has “made operational” (but actually created) the Integrated Informational System (SII), an obscure institution in charge with gathering and administrating all data on individuals and legal entities in Romania. Under the pretext of protecting national security, the SII has been given full powers, exercised without any control and without reasonable guarantees regarding the protection of privacy. Moreover, APADOR-CH believes that G.D. no. 952 was issued in disregard of the constitutional provisions ruling that such a decision can be only issued to enforce an existing law. In this case, there is no law regulating the creation and functioning of an Integrated Informational System. The decision of the Supreme Council for the Defense of the Country (CSAT), on which the G.D. was based, cannot replace a law.
The genuine independence of the judiciary remains wishful thinking as long as the Ministry of Justice keeps courts under its control through the legal attributions of both the Minister and his/her inspectors. The draft laws on judicial organization and the statute of judges, currently under debate in the Parliament, bring minor improvements to the system but leave the fundamental problem untackled, although it is exactly the lack of independence of judges which has been constantly criticized by the EU and the Council of Europe.
2003 was also the year when two major tendencies, visible ever since 2001, gained significance: the ruling party achieved control over all domains of activity and the failure to implement – or the deficient implementation – of new pieces legislation.
“He who controls the media, has the power”, seems to have been the motto of the government. The public radio and television are completely subservient to the power which, on a few occasions, intervened directly in the policy of the station. The most meaningful example was that of the TVR program “The Mincing Machine”, a talk show by Stelian Tănase, the only program on public television where voices critical to the government could still be heard. Following pressures by the PSD (Social Democratic Party), the show was put off several times, until it was completely closed down. Private televisions - with very few exceptions - did not stand anywhere better. No matter the type of pressures exercised by the government, the results were obvious: the massive presence of government officials on the screen, the reduced presence of political opposition representatives, but also of anyone who might have other opinions than the “official” ones; the excessive weight of entertainment programs, while debates were either scheduled at late hours or completely disappeared. The situation was largely the same for private radio stations, with a few exceptions. The substantial decrease of the role of the BBC Romanian program and the closure of Radio “Free Europe” (even if suspicions regarding the influence of the PSD in these cases were unfounded) could only be disappointing for those who worked in the audiovisual media in Romania.
The only media organizations which managed, with great efforts, to preserve their role as watchdogs of democracy were a few central dailies and weeklies, the local newspapers being completely controlled by local representatives of the government. The most significant examples in this respect were those in Vrancea, Gorj and Bacău counties, where local PSD “barons” managed to get rid, sometimes by force, of “troublesome” papers. Worse even, the number of physical assaults against journalists “guilty” of investigating abuse by people in power increased (16 cases in 2003). The police acted slowly or not at all in order to find and indict the perpetrators, either by lack of professionalism, either because of “political orders”.
It must also be said that, although the authorities have pledged again and again to modify the criminal law in what concerns the “crimes of opinion”, the Criminal Code that incriminated this type of offences was still effective at the end of 2003. The hundreds of insult and calumny trials against journalists and/ or publications went on, and some of them were concluded with disproportionately large criminal fines and damages.
APADOR-CH considers that all these negative signs, visibly intensified in 2003, are as many serious threats to freedom of expression.
Another area targeted by the ruling power was that of NGOs. Between 1990 and 2000, associations and foundations were created according to very old regulations (Law no. 21/ 1924). In 2000, the Government issued Ordinance no. 26, which simplified the registration/functioning procedures and eliminated some useless or even harmful provisions. According to the law, the Ordinance was supposed to be debated in the Parliament, which did not happen until the end of 2002. But in January 2003, the Government issued a new Ordinance (no. 37) which practically placed associative activities under governmental control using two main tools: 1) re-instituting “the approval of the responsible body” for the creation of an association/foundation; 2) the selective status of “public utility” has to be granted by the government. Only officially recognized “public utility” organizations may benefit from funding granted by the European Union through the government. In other words, the funds meant to support the democratization of all domains will only benefit NGOs that meet the approval of the government. The Ordinance was met by vivid protest from several associations and foundations, supported by some MPs. However, Ordinance 37 (debated alongside Ordinance no.26/2000) was passed by the Chamber of Deputies with the only notable amendment of eliminating the “approval of the responsible body”.
APADOR-CH considers that, alongside a previous draft law regarding associative activities (which, fortunately, has not materialized), Ordinance 37 was aimed at either subordinating the NGOs or eliminating the “troublesome” ones through administrative and financial constraints. As a consequence, the very freedom of association is in danger.
As for the tendency to fail to enforce – or enforce in a selective and restrictive manner – certain legal provisions, the most notable example is Law no. 544/2001 on free access to information of public interest. Attempts by individuals or by organizations (among them APADOR-CH) to obtain certain information of public interest were made futile by the old mentalities of the authorities/public institutions, which either denied, or only partially answered the requests, without any grounds. A meaningful case in this respect was Şelimbăr (Sibiu County) where the local council imposed prohibitive fees (tenfold the current value) for photocopying the documents requested under Law 544. In practice, the access to information of public interest is denied and the law is inoperative. Equally important is the fear of civil servants of the Law on classified information which covers not only state secrets, but also office secrets. There were many cases when the “struggle” to obtain certain information of public interest ended before the court. Even after the applicants obtained final sentences granting them the access to information, the public authorities still refused to enforce the court decisions, which means that the state of law, in which compliance with the law is the utmost priority, is not a reality in Romania.
Nor did the long due demilitarization of the police, enforced in 2002, have the expected effects. Besides the purely formal changes (ranks, uniforms), there was no evolution in the mentality of police agents and, more seriously, of authorities in charge with investigating police misconduct. Maybe the admissibility decision of ECHR in the case of the Tg.-Mureş juvenile, a decision referring exclusively to police misconduct and to the unacceptable investigations of the Prosecutor’s Offices in such cases, will lead to a substantial change of behavior among policemen in relation with individuals.
The big problems of the penitentiary system have persisted. They come from the obsolete legislation (the Law on serving custodial sentences was passed in 1969) and an excessively harsh criminal law, leading to overcrowded prisons, from the weakness of institutions meant to ensure alternatives to prison, and from an insufficient budget compared to the real needs of the system. The three rulings of the ECHR against Romania (Pantea v. Romania, Petra v. Romania and Cotleţ v. Romania) have confirmed, if necessary, that the small positive steps taken by the General Direction of Penitentiaries, or even by the Ministry of Justice and the Government (see Emergency Ordinance no. 56/2003 on certain rights of detainees) are not enough to bring the Romanian penitentiary system to European standards.
In 2003 there was no progress in legislation necessary for ensuring a real protection of minorities either. There were no draft laws on national minorities or on freedom of religion, or if there were initiatives in this respect, they did not reach the Parliamentary agenda. The Law against discrimination, essentially a welcome regulation, proved to be insufficient. A group of non-governmental organizations among which APADOR-CH drafted a series of amendments to remedy its flaws, especially in enforcing the law, and to ensure a greater independence for the National Council for Combating Discrimination.
Nor did the crucial problem of a real independence of the judiciary find a solution in 2003. The intrusion of the executive – thus of the political power – in judiciary activities was obvious. As long as the Ministry of Justice retains direct control (the system of promotions for judges, the “temporary transfer” of certain court presidents, the body of inspectors from the Ministry of Justice, etc) or indirect control (salaries, budget, equipment, etc) and as long as the prosecutors, part of the executive, continue to be considered equal to judges, the independence of justice will not be ensured, as insistently and constantly required by European institutions (the EU and the CoE) and by domestic and international NGOs. Legislative initiatives to modify the Law on judicial organization and the Law on the statute of magistrates, which were debated by the Parliament but were still not finalized by the end of 2003, can only bring a partial solution to the problem.
APADOR-CH notes that, if there has been some progress in terms of legislation during 2003, Romania is still lagging way behind European standards in terms of civil rights. From the standpoint of the Association, the most serious and more obvious problem, is that of a huge discrepancy between theory and practice. More concretely, between what laws stipulate and how their provisions are enforced and complied with.
I. The Legal Framework on Human Rights
1. The Draft of the New Criminal Code
The Criminal Code has represented a major preoccupation for APADOR-CH ever since 1993. The repeated changes of the criminal law, the most significant of which took place in 1996, maintained the communist text in both letter and spirit, the only exception being the de-criminalization of same-sex sexual relations (as late as 2001). Provisions that threaten freedom of expression (insult, calumny, offence to authority, dissemination of false information, etc) are among those having repeatedly drawn criticism from international bodies (see the ECHR judgment in the case Dalban v. Romania as well asthe annual reports of the US State Department and EU) and from national and international human rights groups. Other provisions that have fallen under criticism are mainly those of the Criminal Procedure Code (pre-trail detention, the course of a fair trial, treatment of juveniles, etc).
The recalcitrance of the legislative and of the executive to align the criminal law to international standards started to recede under internal and – especially - external pressures only in 2003, and in a rather surprising way. At the end of 2002, the Parliament was yet to debate a draft law (which the Romanian President had refused to sign) which merely reduced sentence terms for insult, calumny and outrage, and only eliminated the crime of “offence against authority”. At the beginning of January 2003, the Ministry of Justice published a draft law (472 articles) supposed to be a new Criminal Code according to international standards. In fact, excepting a few real improvements (increasing the range of the alternative sentence of criminal fine, clearly defining alternatives to prison sentences, concentrating under the same law offences covered by several normative acts, etc), the draft retained the old philosophy of preferring penal sentences to non-penal ones (civil, administrative, etc), defined new offences and retained most of the old ones, even the most criticized. All “crimes of opinion” (excepting “offence against authority”) were still sanctioned under penal law and new ones were introduced (such as pro-war propaganda or articles granting excessive protection to… foreign states)
APADOR-CH sent the Ministry its comments and suggestions, which it also presented verbally during consultations between the institution and NGOs. Although the draft law was very consistent and the deadline for submitting observations was very short (one week), the Ministry was remarkably open to the opinions of the “civil society”, so often mentioned by the government when it wishes to create the impression of “ wide public consultation”. In the case of the Criminal Code, the Ministry retained however some of the observations, eliminating or amending certain articles of the law (insult is no longer a crime, unpaid fines for calumny no longer lead to terms in prison, publications may no longer be closed down as a sanction, some of the “crimes” against foreign states have been suppressed, etc).
On May, 30th, 2003, the Government submitted the new draft of the Criminal Code to the Chamber of deputies. Debates were interrupted due to changes in the Constitution following the November 2003 referendum, and will not be resumed until the draft is modified accordingly. Since this did not happen before the end of 2003, the Criminal Code of the communist regime, only superficially amended after 1989, is still in effect.
APADOR-CH has sent the Chamber of Deputies its opinion on the draft law submitted by the Government. Excerpts from the document are presented below; the articles which have been removed or modified to our satisfaction are no longer referred to.
The Comments of APADOR-CH on the Draft Criminal Code, Submitted to the Chamber of Deputies on May 30th, 2003
(Excerpts)
A. MATTERS OF PRINCIPLE
The draft constantly uses the Law on serving custodial sentences as a reference. The Law still in effect is Law 23/1969, which is clearly obsolete and impossible to correlate with the provisions of the new Criminal Code. It is absolutely necessary that a new law on serving custodial sentences also be adopted alongside the new Criminal Code. Also, the budget of penitentiaries must be increased. In the current conditions, it is hard to believe that penitentiaries will be able to guarantee the “open regime” stipulated by the new Criminal Code in the case of lesser offences. The “semi-open regime” is not described in every detail either.
It is also necessary to develop the social reinsertion and observation (probation) services. At present, they only function at county level (but not in all counties), understaffed and with minimal equipment. If such services are not developed, the measure of freedom under probation for juveniles cannot be applied, as provided by the new law.
The draft also regulates the regime of weapons and ammunition (Article 401-405). At the same time, a different legislative initiative tackles the same topic based on totally different approach. The two drafts need to be harmonized.
B. GENERAL REMARKS
With all the improvements regarding the freedom of expression in general, and the freedom of the media in special, the new Criminal Code still contains provisions that may threaten these rights (e.g. Article 220 – calumny, Article 271 and 273 on dissemination of false information)
There is a lack of proportionality among punishments for certain offences. Thus, torture is punished by 2-7 seven years of strict prison, and theft by 1-7 years. The two crimes are beyond comparison, the former being one of the most severe violations of human rights.
Certain deeds (moral outrage and disturbance of public order, refusal to disperse after the third warning by public order authorities, etc), are still incriminated, although they are more petty offences than crimes.
The period for which a person may be led to the police station, of maximum 24 hours (“administrative detention”) – which is a separate form of deprivation of liberty than the taking into custody provided by the Criminal Code – is not deducted from the final sentence. The Criminal Code only mentions custody and pre-trial detention as deductible from the prison term. By this, the Criminal Code is in contradiction with the Criminal Procedure Code which, after having been modified by Law no. 281/2003, stipulates under Article 144 that the custody term is reduced by the period of deprivation of liberty resulted from the administrative measure of leading the defendant to the police station.
The draft maintains crimes such as prostitution and avoiding army service, although draft laws have already de-criminalized prostitution and have eliminated the compulsory military service.
C. MODIFICATIONS THAT APADOR-CH DEEMS NECESSARY
1. APADOR-CH asks that article 106 of the draft, on the computation of days spent in custody and pre-trial detention also provides that the duration of “administrative detention” be deduced from the period of deprivation of liberty or community work, that is, the period of time spent in deprivation of liberty during the administrative measure of being led to the police station, as provided by Article 31, letter b, Law no. 218/2002 on the organization and functioning of the Romanian Police.
The “administrative detention” provided by Article 31, letter b, Law no. 218/2002 is distinct from the detention stipulated by Article 143-144 of the Criminal Code.
“Administrative detention” must also be computed, since it is a measure having the same consequences (deprivation of liberty) as “criminal” detention or pre-trial detention.
In this respect, we invoke the Optional Protocol to the Convention against torture and other cruel, inhumane or degrading treatment or punishment approved by the UN General Assembly on December 18th, 2002 and already ratified by Romania.
Article 4, para 2 of the protocol defines deprivation of liberty as follows: “… deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”.
The computation of “administrative detention” was already included in article 144 of the Criminal Procedure Code, such as modified by Law no. 281/2003, so a similar disposition must be also included in the Criminal Code, to avoid contradictions between the two laws.
2. Article 208 of the draft regarding violations of the right to privacy must be removed. It is a new crime uselessly added to the list.
APADOR-CH requires the elimination of article 204, because, in its current wording, it limits the freedom of expression and the debate of matters of public interest.
Practically, it may be considered a crime even if a journalist takes pictures of an official’s villa without permission. Because the villa is inside the yard and taking pictures of whatever is inside the yard violates the official’s right to privacy.
It must be stressed that the ECHR jurisprudence has constantly given priority to the right to debate matters of public interest when it had to choose between protecting the private life of an official and protecting the right of freely, uninhibitedly debating matters of public interest (like the possible corruptness of the official). Thus, the Court stated: “[A politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues” (see among others, Oberschlick 1, 3 v. Austria, Dichland and others v. Austria).
The incriminations brought by Article 204 are also a backslide compared with the provisions on the audiovisual. Thus, the old audiovisual law (Law no. 48/1992) considered any damage to a person’s private life to be a crime punishable by 6 months to 5 years in prison (Article 39, letter a, referring to Article 2 para 1 of Law 48/1992). The new law (Law no. 504/2002) had however eliminated damage to private life from the list of crimes.
That means that the progress made by the new audiovisual law in 2002 was reversed by the Criminal Code draft one year later, in 2003.
Of course, not listing these deeds as crimes does not mean that privacy remains unprotected. Only that it has to be protected by civil, not criminal laws.
If there is no political will to eliminate this incrimination, the draft should at least be modified by introducing a provision to stipulate that the deed is not a crime if it refers to aspects of private life impeaching over a person’s capacity to exercise a public function.
3. Article 220 of the draft incriminates calumny, punished only by a criminal fine (under the form of "per day fine") of 2 000000 and 120 000000 lei. Such penalties may be way over journalists' income (being also disproportionate with the average income), leading to self-censorship and implicitly to the limitation of editorial freedom and, in general, to inhibition of the media. Moreover, criminal fines are written down in a person’s criminal record.
Legal regulations regarding calumny are crucial for the freedom of the media in Romania, because most Romanian journalists have been sanctioned civilly and criminally based on this provision.
APADOR-CH requires first of all that calumny is no longer included in the Criminal Code, because the honor and dignity of a person can be very well “restored” through a civil court action. In this context, it is important to remember that - as in the case of our arguments for excluding insult from the Criminal Code – dignity, honor and the right to reputation are not clearly guaranteed by any of the international treaties ratified by Romania, while freedom of expression is.
If there is no political will to exclude calumny from the Criminal Code, there is the alternative solution of changing its definition, by introducing the condition that conviction is “necessary in a democratic society”. Such a condition is mentioned in Article 10 para 2 of the European Convention on Human Rights. Thus, the text would benefit from the flexibility given by the principle of proportionality and by requiring “an overriding social need” for the conviction.
The changes suggested by our Association to regulations regarding defamation would allow critics to voice their opinion on public matters, when they aim at debating problems of general interest, even if the debate might bring prejudice to the honor or dignity of certain individuals.
4. Article 271 on dissemination of false news aiming at starting a war, has been uselessly introduced in the draft law. It seems to have resulted from a “transformed” Article 356 of the current Criminal Code, referring to war propaganda.
The Association considers the article anachronistic and asks for its elimination. In the 21st century, an age when information travels freely, it is ridiculous to believe that the average person may trigger a war by simply launching or transmitting rumors.
A war involves detailed analysis and decisions by state officials, who are supposed to check upon rumors. Such incriminations may have made sense in the 11th or 12th century, when it was enough that a false messenger reached an isolated burg, launched a rumor which could not be verified and determined the lord to declare war. But we are now living in another age.
If such incrimination is to be maintained, at least the quality of the subject must be refined, so that the article refers not to any individual, but only to the chief of state and members of Government.
5. Article 273 of the draft law, regarding the communication of false information, reiterates the current article 168/1 plus the wording “knowingly”. Before any other comment, it must be reminded that such a provision did not exist even during the communist dictatorship; it was introduced in the Criminal Code in 1996, at the suggestion of the former PUNR, and used arbitrarily and abusively in the case known as “Armageddon 2”.
Firstly, APADOR-CH asks that this article, which can be only described as excessive regulation, is removed from the draft Criminal Code. The chapter on national security in the same draft contains (more than) enough provisions to safeguard the security of the nation. As for “Romania’s international relations”, they are a purely political and therefore subjective matter which does not belong to the Criminal Code and cannot be protected by criminal provisions, but by a sound international policy.
If there is no political will to eliminate this article, APADOR-CH requires its modification as follows:
Firstly, the consequence represented by the possibility of bringing damage to “Romania’s international relations” must be eliminated. International relations are an essentially political concept and therefore volatile and often unpredictable due to changes in Romania’s or other countries international policy, or in the configuration of international relations. International relations are part of the foreign policy, therefore part of a governing program which, obviously, may differ from one government to another, or even change during the same government. For these reasons, there is no permanent and objective standard of “sound” international relations, to which one may oppose a “damaging” gesture. There is no objective, observable and verifiable method to assess international relations. It is therefore at least exaggerated to submit an individual to deprivation of liberty and criminal punishment because s/he has endangered a purely political and volatile notion, depending very much on the group in power at a certain moment and on other international political elements. As a general principle, criminal charges must not depend, not even in the smallest degree, on political changes inherent to a democratic society. As a consequence, references to “Romania’s international relations” have no place in a Criminal Code.
Secondly, the wording “of nature such as to bring damage…” is vague, ambiguous and must be replaced by the creation of a real, observable and demonstrable danger. In the current form, the crime occurs when one of the two protected values (state security or international relations) is not necessarily “damaged” but merely put into a state of danger. The draft does not require that the “dissemination” or “communication” of information or materials have led to a verifiable or noticeable result, respectively to a state of danger. Practically, the provision sanctions the act of expressing or disseminating ideas or documents if the authorities believe that the activity might bring a prejudice to one of the two values. It is hard to imagine how one might prove the existence of this elusive situation which, without triggering a concrete danger, still is considered (by whom?) to represent a potential danger, yet undefined and therefore inexistent.
Thirdly, at least one modification is necessary in what concerns the subject of the provision, who must be not just an individual, but the chief of state or a member of the government. This is because, as shown above, it is hard to believe that an individual may put the national security (protected by the authorities) or the foreign policy in real danger by launching or disseminating rumors. It is obvious that any information is checked before being taken into consideration by the authorities. If state authorities are unable to make the difference between a mere rumor and true information, it only means that the real problem for national security is their lack of competence.
6. In Article 274 of the draft Criminal Code regarding hostile acts against a foreign state, the wording “hostile acts” is too general, and therefore ambiguous. “Hostile acts” are not defined or at least exemplified.
It must be said that under Article 269 of the draft law, the legislator defined “hostile acts against Romania” (they refer to deeds included in Articles 266 and 268, treason and treason by supporting the enemy, committed by a foreigner).
Logically, the legislator should also have defined under Article 274 para 1, the “hostile acts against a foreign state”, possibly by a symmetric adaptation of the definition of hostile acts against Romania.
Also, the legislator should have defined the wording “hostile acts against the security of a foreign state” in Article 274, para 2 and explained the difference between “hostile acts against a foreign state” (Article 274 para 1) and “hostile acts against the security of a foreign state” (Article 274 para 2).
It is unacceptable that such wordings (“hostile acts against a foreign state” or “hostile acts against the national security of a foreign state”), which may send a person to prison for 7 to 10 years, are not clearly defined by the law. Such omissions allow for over-zealous prosecutors or judges to qualify even plain criticism against a foreign official as a hostile act, and therefore a crime.
According to the European Court jurisprudence, the legal provisions that lead to sanctions must be “accessible to the individual and predictable as concerns the consequences” (…) The Court reiterates that a rule is "foreseeable" if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct” (among others Rotaru v. Romania - in this judgment, the Court ruled that Law no. 14/1992 on the organization and functioning of the Romanian Intelligence Service (SRI) does not have the qualities of a law, since it is not foreseeable).
Moreover, a similar requirement is made even by domestic legislation; Article 7 of Law no. 24/2000 on legislation technical norms used in the drafting of laws provides: “legislation texts shall be clear, fluent and understandable, without syntactical difficulties and obscure or equivocal wordings…”; according to Article 23, “… concepts and notions used in the new regulation, that have other meanings than in plain language, shall be explicitly described in order to ensure their understanding and avoid misinterpretation”; and, according to Article 33 of the same law, “laws shall be written in concise, simple, clear and precise language, to exclude any ambiguity. The wording shall be governed by the desire to make it easily understandable to its beneficiaries”. Such requirements are all the more important when they refer to provisions of the criminal law triggering the heaviest penalties – criminal sanctions.
For all these reasons, APADOR-CH considers that Article 274 of the draft law lacks foreseeability.
7. In Article 280 on diversions, the wording “of nature such as to bring damage…” is ambiguous and the provision is not “foreseeable”. The wording must be modified so as to define a real danger, which is certain, noticeable, verifiable and demonstrable.
8. From Article 285 on betrayal of secrets that endanger national security, any reference to “office secrets” must be eliminated, and only “state secrets” must be mentioned.
This is because information detained by a legal entity of public or private law, which interests national security, cannot be a mere “office secret”, but it belongs to the category of state secret information. Therefore, the mention of “office secrets” in paragraph 1 is completely unjustified and must be removed.
For the same reasons, paragraph 3 on office secrets is unjustified and needs to be eliminated. If certain office secrets are crucial for national security, then they are state secrets and are covered by para 1.
Also, para 2 must be removed, as pointless, because it only incriminates the attempt to commit the crime under para 1. If the paragraph is kept in place, however, it must be mentioned, as it is in para 1 – that “detaining a state secret document out duty” refers only to persons who know the secret(s) due to their position. The current wording suggests that any person who might come across such a document, without knowing that it is a state secret, would be liable, which is unacceptable.
The change is necessary because Article 16 of Law no. 182/2002 on the protection of classified information rules that only “authorized persons”, not “every citizen”, have the obligation to protect state secret information. Since citizens (including journalists) are not among the authorized persons mentioned by Article16, it means they no longer have the obligation to protect state secrets.
Since Law no. 182/2002 is the framework law for the protection of state secrets, it should be used as a reference in the attempt to protect such information and to define the related crimes, including the crime described under Article 285 of the draft Code.
This approach also has an intrinsic logic. Once information has been disclosed – as it happens when it has been released by the media, for instance – the secret character is lost and cannot be reestablished. This principle has been established by the European Court (among others, the cases of Sunday Times v. the United Kingdom, Observer and Guardian v. the United Kingdom, Vereniging Weekblad Bluf! v. Netherlands)
9. Article 286 on propaganda for totalitarianism, the wording “totalitarian state” is ambiguous and needs to be defined by the law.
The dictionary definition – dictatorship by a minority and lack of rights for the majority – does not have the required “foreseeability”, since it fails to indicate precisely and of a limited manner which are the totalitarian regimes, or at least those characteristics that could identify them clearly. That is why the beneficiaries of the legal provision are unable to adapt their behavior so as to avoid an infringement of the law. Moreover, the lack of a clear and unanimously accepted definition impairs both the content and the consistence of prosecution and court decisions, one being at liberty to interpret the concept in its own way.
The definition of “propaganda” in para 2, Article 286 – “systematic dissemination or apology of ideas, conceptions or doctrines aimed at convincing and bringing new followers” – increases the ambiguity of the incrimination and the risk of abuse. Any public or private expression (speech, article, etc) is aimed exactly at convincing and attracting other people to the ideas it contains. Or, if we take into account the above mentioned definition of propaganda, there is a risk that any coherent and convincing article or speech may be qualified as “propaganda”.
The risk of abusive interpretation and enforcement of this text are increased by the circumstance that the current form allows for the sanctioning of mere political opinion, not conditioned by the proof of a real danger for democracy.
10. Article 338 on illegal arrest and abusive investigation, the sanctions for para 1 were alleviated (!) by introducing criminal fine (days of fine) as an alternative to 1 to 3 years in prison. Currently, the crimes defined under para 1 of Article 338 are punished more severely, only by terms in prison (6 months to 3 years, under Article 266, para 1 of the Criminal Code).
Given the seriousness of crimes under Article 338 of the draft law, sanctions should have been increased, not alleviated, which is true for all the paragraphs of the article. Thus, special maximum limits of penalties (3, respectively 5 years in prison) must become special minimum limits of penalties for paragraphs 1-3 of art 338.
11. Article 339 on torture sanctions one of the worst forms of human rights abuse, torture, by a penalty similar to that for theft! (2-7 years for torture, 1-7 years for theft). The penalty for torture should start from 10 years in prison, ending, as stipulated in para 3, to life in prison.
12. The situation is very much the same in the case of Article 342 of the draft law, on subjecting a person to ill-treatments, the 1-5 years penalty being disproportionately lenient for such a serious crime. APADOR-CH asks that ill-treatments be punished by 5 to 10 years in prison.
13. From Article 343 of the draft Code on theft and destruction of documents, the wording “when such documents are necessary to solve a court case” must be removed. Such a wording would allow the police and prosecution to go on with their practice of taking statement after statement from the defendant and use only the one in favor of the prosecution, placing the rest at the end of the file or in the “in-house file” (documents which stay with the police, instead of being sent to the court), under the pretext that they are not necessary to solve the court case.
14. Article 351 of the draft Code on defining organized criminal groups and serious crimes, para 2 must be changed: “serious crime” is not the one sanctioned by a special maximum penalty of at least 5 years in prison, but the one for which the special maximum penalty is – at least – over 5 years in prison.
Otherwise, there is a risk that a NGO that criticizes the government is qualified as an organized criminal group having the aim of committing serious crimes (criticism against the Government could be defined – by zealous prosecutors – as dissemination of false information, punished by maximum 5 years in prison, therefore a serious crime).
15. Article 358 on nationalist–chauvinist propaganda must be put in agreement with Emergency Ordinance no. 31/2002 on the prohibition of fascist, racist and xenophobic organizations and of promoting the cult of persons guilty of crimes against peace and humanity, published in the Official Gazette no. 214, Part I, of March 28th, 2002.
More precisely, Article 358 must be correlated with Article 5, thesis II on promoting fascist, racist or xenophobic ideologies and Article 2, letter a, exemplifying categories of ideas, conceptions or doctrines having a fascist, racist or xenophobic character, both of the above mentioned Emergency Ordinance.
16. Article 414 of the draft Criminal Code on providing confidential data on the movable national cultural heritage must be eliminated, because the protection of these social values can be efficiently achieved by non-criminal laws.
Moreover, since the article refers to national and cultural heritage, there is no reason it should be associated with the term secret or its semantic derivatives.
Otherwise, there is a risk that debates over the national heritage might be qualified as crimes. This leads to the conclusion that the matter is excessively regulated.
17. Article 490 of the draft Code on instigating members of the army to non-compliance with their duties is a new provision which must be removed, since it is a case of excessive regulation.
The article incriminates “instigating members of the army, by any means, to disobey the law or their sworn duty and obligations”, an incrimination which, in para 3, also includes instigation of civilian army staff.
This newly defined crime is not justified by antecedents. The only case of possible “instigation of members of the army” happened during the 1989 Revolution, when the military were “instigated” by demonstrators not to shoot them, and to support the Revolution.
It is not clear what current need determined the legislator to include this new provision. Given the lack of real utility, the provision may be used to curb the freedom of expression: criticism against the authorities during a meeting with army representatives could be one day qualified – by over-zealous prosecutors or judges - as instigation of the military.
APADOR-CH considers that Article 490 creates a supplementary risk for the freedom of expression and must therefore be removed.
18. Articles 496 and 497 on avoiding enlistment/call-up are no longer justified, since the new Romanian Constitution (approved by referendum in November 2003) eliminated the compulsory army service.
2. Draft laws on national security
The Law on National Security (no. 51/1991) became effective in August 1991, before the first post-1989 Constitution was adopted. Besides the fact that certain provisions are unconstitutional (especially the lack of any protection from “secret services” misconduct, the lack of control on the activities of these services and the fact that all information about their actions, regardless of nature, is surrounded by mystery) – which soon became obvious – the constant efforts to line-up Romanian legislation to European standards pointed out to huge discrepancies in the field of human rights and fundamental freedom. There has been a lot of talk about the necessity to modify Law 51/1991, but concrete initiatives only emerged after 1997 and materialized in 2001 and 2002 as draft laws. Four such drafts (of which only the one prepared by two deputies from PNL and PD was close to European standards) had been submitted to the Parliament before March 2003, when the Government presented its own proposal for the modification of the Law on national security. Since the Government’s version did neither bring the expected progress, nor come anywhere near European standards, APADOR-CH published a public protest against the draft law. The protest was published by central newspapers and certain radio stations. Moreover, the International Helsinki Federation (which our association is a member of) publicly supported the position of APADOR-CH. The arguments of that protest were subsequently used in the following comments, sent to members of the Chamber of Deputies:
The Position of APADOR-CH regarding
the Draft Law on Romania’s National Security
(submitted by the Government to the Chamber of Deputies on March 5th, 2003)
The substantial modification of the Law on national security (Law no. 51/1991, adopted before the current Constitution) has been insistently demanded by civil rights non-governmental organizations for several years.
The new draft law, submitted by the Government to the Chamber of Deputies on March 5th, 2003, brings some improvements to the current law, such as: limiting the duration of authorizations for surveillance by intelligence services and departmental structures to at most one year (the first authorization lasts for maximum six months and may be extended or two three months periods), the possibility to declassify certain state secrets “for the needs of justice”, free access to justice for individuals who consider themselves victims of activities by intelligence services or structures, etc.
Unfortunately, the draft law maintains the principles of Law 51/1991, the authors ignoring both the provisions of the Constitution and the current European standards, including Recommendation 1402 (1999) 1 of the Parliamentary Assembly of the Council of Europe on domestic secret services control. Equally serious is the fact that the draft law ignores the ECRH judgment in the case of Rotaru v. Romania[1] regarding control over SRI activities (of course, the findings of the European Court are also true for other services /information structures in Romania).
1. The intelligence activity in the field of national security remains under the control of the executive, because prosecutors have the competence to authorize surveillance and investigation activities without any control from the judiciary. Under the Romanian current legal system, the Prosecutor’s Office, directly subordinated to the Minister of Justice, is part of the executive and does not meet the condition of independence required by the European Convention (see also, among others, the cases of Vasilescu, Brumărescu, Nasta v. Romania).
According to Recommendation 1402(1999)1 of the Parliamentary Assembly of the Council of Europe, surveillance (telephone tapping, photographing, video and audio surveillance and other operational measures) should be subject “to special a priori authorizations by the judiciary. Legislation should normally establish parameters which are to be taken into consideration by judges or magistrates, who should be available for prior authorizations twenty-four hours a day so that the demand for authorization can be processed within a few hours (maximum), before they authorize operational activities such as house searches” (section B, para ii). The Recommendation expressly mentions that “the authorization to undertake this kind of operative activity should be time-limited (to a maximum of three months). Once observation or wire-tapping has ended, the person concerned should be informed of the measure taken” (section B, par ii, final).
Or the draft law rules that the surveillance period is of maximum one year, without stipulating the obligation of the intelligence services/structures to inform the person concerned that s/he has been under surveillance.
APADOR-CH asks that the duration of the surveillance authorization be limited to three months, at most.
Moreover, even though the draft law includes certain guarantees (Article 29, para 2 – free access to justice, complaints filed with the Ombudsman or with the Parliament’s Committees), these can only be efficient if, upon concluding the surveillance operations, the competent institutions inform the person concerned that s/he has been under surveillance.
APADOR-CH asks that the new law should place information services/ departmental structures under the obligation to inform the persons under surveillance - at the termination of the authorized period - that they have been subject to such an operation.
In its judgment in the case of Rotaru v. Romania, the European Court found that there must be “adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it”; “Supervision procedures (of secret services’ activities) must follow the values of a democratic society as faithfully as possible, in particular the rule of law ... (which) implies, inter alia, that interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary…”; “The Court notes that the Romanian system for gathering and archiving information does not provide such safeguards…”.
The same ECHR judgment reiterates arguments used in other cases (Malone v. United Kingdom and Amann v. Switzerland) regarding the application of secret surveillance measures on individuals: “Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference” (our highlight).
APADOR-CH asks that surveillance should be authorized exclusively by judges from the Courts of Appeal and Supreme Court of Justice. Judges shall have access – under condition of confidentiality – to all information detained by the secret service on the individual to be placed under surveillance. Therefore, the Association demands that all the articles in the draft law which refer to “authorizing and enforcing intelligence activities which may limit an individual’s rights…” (Section 2, Articles 23, 24, 27 and 28) are modified so that judges – not prosecutors – are entitled to authorize or reject the demands of the secret information services. Moreover, the law should include an obligation for the secret services to inform the judges who issued authorizations on the progress of the operation, as well as the competence of the judge to revoke the authorization in case the operation does not prove fruitful.
Besides the a priori control, the judiciary should also be entitled to exercise ex post facto control. “The overriding principle for ex post facto control should be that persons who feel that their rights have been violated by acts (or omissions) of security organs should in general be able to seek redress before courts of law or other judicial bodies. These courts should have jurisdiction to determine whether the actions complained of were within the powers and functions of the internal security services as established by law. Thus, the court should have the right to determine whether there was undue harassment of the individual or abuse of discretionary administrative powers in his or her regard”.(Recommendation 1402, section C, para iii)
2. “Romanian citizens, “legal entities of private and private law”, cannot have any obligations in “achieving national security” (Articles 4, 7 and 8 of Chapter II of the draft law). This responsibility lies exclusively with intelligence services and departmental structures. It is absurd to ask people to “contribute” to activities which, being secret, are not available to citizens or legal entities of private and public law.
APADOR-CH asks for the final part of Article 4 (regarding the contribution of citizens to achieving national security) as well as Articles 7 and 8 (regarding the contribution and responsibilities of legal entities of public and private law) to be eliminated. Also, that part of Article 17 referring to “legal entities, public or private” from which the intelligence services/structures are supposed “to require and receive” data, information and documents required for the fulfillment of their legal attribution should also be eliminated.
3. The draft law contains plenty of ambiguous phrases like: “of such nature, as to…” or “any other type of undemocratic actions”, or “deeds of a similar nature”, thus failing to meet one of the repeated requirements of the European Court jurisprudence – the foreseeability of law. This means that a legal text must be sufficiently precise to enable any individual to regulate his conduct.
The European Court insisted on this requirement in the vast majority of its cases, including Rotaru v. Romania: “…the Court reiterates that a rule is "foreseeable" if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. The Court has stressed the importance of this concept with regard to secret surveillance”.
APADOR-CH requires the rephrasing of all articles in the draft containing general wording which could be interpreted according to the authorities’ wish and which prevent the public to clearly understand the law.
4. The control of the Parliament over the activities of intelligence services/structures (Article 38 of the draft law) is inefficient, because para 2 stipulates that “activities regarding specific procedures, information sources and ongoing operations are not under the control of parliamentary committees”. Therefore, parliament control is only ex post facto.
APADOR-CH believes that parliamentary control must be exercised in the case of ongoing operations also, precisely in order to prevent or stop possible abuse.
5. The draft law maintains the military organization of intelligence services/structures (Article 49, para 1), although Recommendation 1402 mentions, under section A, para iv: “Internal security services should preferably not be organized within a military structure. Nor should civilian security services be organized in a military or semi-military way”.
As a consequence, APADOR-CH requires the full demilitarization of intelligence services/structures (excepting the intelligence structures of the Defense Ministry).
6. The draft law qualifies as “a threat against national security” the activities of “accessing, using, modifying or destroying, unlawfully, data from the computer systems of public authorities, legal entities of public or private law or individuals” (Article 10, letter k). The Association considers that it is totally unjustified to extend this type of protection to legal entities of public or private law or individuals under the pretext of national security. Therefore, APADOR-CH asks that the final part of letter k, Article 10 (from “legal entities” onwards) to be removed.
7. The draft law stipulates in Article 45, para 1, that “information regarding an individual’s private life… found out incidentally during intelligence gathering… shall not be made public”. APADOR-CH asks that information on private life, found out incidentally, no matter the means, during specific operations regarding national security should be destroyed. The mere interdiction to make such information public is not enough to guarantee the protection of privacy. Also, para 2 on related sanctions should be modified accordingly.
On March 24th, less than three weeks after this criticized draft law was submitted to the Parliament, the Chairman of the Defense, Public Order and National Security Committee of the Chamber of Deputies submitted another draft law regarding the protection of rights and fundamental freedoms during activities for national security and defense. Since this text also contravened to European norms, APADOR-CH prepared and distributed the following comments:
Legislative Proposal Regarding the Protection of Fundamental Rights and Freedoms During Activities for National Security, Defense and Safety.
The Opinions of APADOR-CH
The draft law was submitted to the Chamber of Deputies on March 24th, 2003, when the special committees (defense, public order and national security, legal) had already decided to launch debates on the five existing draft laws on national security.
1. APADOR-CH considers that the regulations regarding the protection of fundamental rights and freedoms during activities for national security, defense and safety should be included in the law on national security. This should be a unitary and complete law, based on which the laws regulating the organization and functioning of the various intelligence services/structures must be modified. Having a separate law on the surveillance of individuals by state authorities would infringe upon the unitary and predictable character of the law on national security.
2. The draft law ignores the principle ruled by Law no. 182/2002, according to which the responsibility for achieving national security rests exclusively with the authorities. As a consequence of this principle, a law regulating the limitation of certain rights and freedoms “during activities for national security and defense” must concern strictly the relation between individuals and authorities in charge with national security.
The draft law goes beyond the regulatory area defined by the title (“national security, defense and safety”). It is also covering the “public order” domain (Article 11, para 1, letter b), criminal offences with no connection to national security (for instance, crimes against the life, freedom and rights of persons mentioned under Article 6, para 1, letter b), the activity of institutions with no connection to national security (firefighters, ambulance services, etc), or the private domain (private investigators).
A first comment refers to the presence of criminal investigation bodies (police, prosecutors) in the draft law. In the opinion of the Association, all regulations regarding the surveillance of persons suspected of crimes sanctioned by the Criminal Code must be included in the Criminal Procedure Code. Since all surveillance operations should be controlled – according to the draft – by a unique structure (the Technical Center for National Security), there is a risk that all information gathered by one service, under authorization, may be accessed by other services, including the police, without authorization. (The guarantees under Article 46 and 47 are totally insufficient. Besides, Recommendation 1402 (1999) 1 of the Council of Europe Parliamentary Assembly stipulates under letter A, para ii that “Economic objectives, or the fight against organized crime per se, should not be extended to the internal security services. They should only deal with economic objectives or organized crime when they present a clear and present danger to national security” (our highlight). While in letter B, paragraph iii, the Assembly recommends internal security services “toavoid duplication of traditional police activities”.
Therefore, the above mentioned legislative proposal should define with utmost precision only those situations where intelligence services/structures are authorized to run surveillance operations on individuals.
A second comment refers to the competence of an “authority established by the CSAT” to issue a surveillance authorization “in exceptional situations caused by the state of war, siege or emergency” (Article 4, para 2 of the draft) or that of the General Prosecutor – for a period of maximum one year – if the situations include “foreign enemy powers or organizations, or their agents” (Article 22). APADOR-CH reiterates the principle that only the judiciary may and must control the operations of surveillance on individuals both a priori and ex post facto. As a consequence, the Association asks that the competencies of an “authority established by the CSAT” – which obviously is part of the executive – be removed. Equally, the Association insists that the control/”filter” role of the prosecutors (Article12 para2-4, Article14, Article22 para3 and 4, Article25, Article29 para2, Article33 para2) be eliminated. The Romanian legal system places the Prosecutor’s Office under the control of the Minister of Justice, therefore making it part of the executive power. According to this draft law, prosecutors should analyze the requests of secret services for surveillance authorizations and decide whether they require or not the approval of judges, which means that they would be infringing the authority of the judiciary.
A third comment refers to Article 12, para 1 (“The order … shall be issued by judges specially appointed by the president of the Supreme Court of Justice” – our highlight). APADOR-CH asks that any judge, starting from the criminal sections of tribunals upwards, is entitled to issue surveillance authorizations, in full knowledge and confidentiality, especially since Recommendation 1402 rules, under letter B, par ii, that judges “should be available for … twenty-four hours a day” to issue authorizations prior to “operational activities” of the secret services. As a consequence, there has to be as high a number of judges as possible to approve - or reject – requests by intelligence services/structures for surveillance authorizations. Moreover, the creation of a category of “specially appointed” judges leads to a type of hierarchy inappropriate to the judiciary. As long as any judge at a tribunal or court of appeal is legally entitled to rule in a case connected to national security, it is only logical that any judge, not just “specially appointed” ones, should also be entitled to issue a surveillance authorization. Of course, any judge would be equally committed to confidentiality.
Also, given the legal competence of judges in tribunals or courts of appeal to rule in criminal cases connected to national security (Article 27/1, letter c; Article 28/1, letter a of the Criminal Procedure Code), authorization requests should be examined not only by Supreme Court judges, but also by tribunal or court of appeal judges.
3. According to the legislative proposal, the authorization is valid for at most six months and may be extended for another three months. Recommendation 1402 stipulates clearly under letter B, para ii that the authorization should be time-limited to a maximum of three months, and does not mention any possibility of extension. Besides, even the initiator of the draft stipulates, under Article 19, that “the first third of the term (meaning the first two months) are relevant. If … there are no informative results in concordance with the aim of the authorizations, the surveillance shall be terminated…” Therefore, there is no justification for a six month time-limit. All the less justified is the provision under Article 18, para 3, stipulating unlimited periods of surveillance in certain situations, including “… prevention of computer fraud, protection of classified information or identification of persons wanted for serious crimes”. The protection of classified information rests exclusively on those who detain the information (see Law No. 182/2002) and therefore cannot be a reason to authorize surveillance on individuals who have nothing in common with such information. The protection of classified information also makes the object of Article 6, para 2, letter d, which must also be removed.
Besides all these, the wording “preventing computer fraud” allows for any person owning a computer to become a suspect of intended fraud for intelligence services and be placed under surveillance for an unlimited period. This is because “prevention” activities aim at removing uncertain consequences (which may or may not happen) and the service demanding authorization is thus exempted from proving the existence of a real, visible and measurable danger. The real danger is replaced by a virtual danger. As for “serious crimes”, they may mean anything, from petty theft to homicide.
As a consequence, APADOR-CH asks that surveillance authorizations are time-limited to a maximum of three months, no extension admitted, irrespective of the nature of the deed an individual is suspected of.
Also, APADOR-CH asks that the term “prevention” be removed from the list of grounds which may justify surveillance. Its ambiguity makes the law lack foreseeability.
4. All articles in the draft law regarding surveillance without authorization are unacceptable. “Experimenting equipment”, “preparation of studies”, “professional duties of thepostal services” (Article 5), “tapping by an employee of the General Inspectorate of Communications … in order to check cable or radio transmission norms… with the objective of service delivery or testing specific equipment”, “technical equipment testing”, “training of intelligence personnel” (Article 27, para 1, letter d and para 2) as well as the whole Article 28 (aviation, firefighters, ambulance services, physical protection (?), “protection of information” again, all followed by “other situations that may require the interception of communications between two individuals”) practically allow a number of authorities/ public institutions, connected or not to national security, to fell free to place anyone, anytime, under surveillance without an authorization from a judge.
APADOR-CH asks that all these provisions be removed. At the same time, the Association insists that an express reference is introduced in the Law on National Security, ruling that “in the absence of an authorization issued by a judge, any surveillance operation on an individual, irrespective its methods and duration, IS ILLEGAL”.
5. APADOR-CH notes that not even this legislative proposal, supposed to be protecting fundamental rights and freedoms, does not place intelligence services/structures (to say nothing of the other institutions dubbed as “exceptional” cases) under the obligation to inform the persons under surveillance - at the termination of the authorized period - that they have been subject to such an operation, mentioning the period and the methods used. In the absence of this obligation, the individual under surveillance is deprived of any possibility to seek legal remedy. Article 12 of the draft law stipulates the possibility to inform the persons under surveillance only “if this does not put the operation at risk” – a good pretext for the authorities to deny the release of such information.
In contradictory provisions, the draft rules under Article 36, para 2 that “the person under surveillance is entitled to contest proofs thereby obtained if the information was gathered illegally or in breech of the legal provisions”, while Article 48 stipulated that “the information processed according to Articles 46 and 47 may not be contested. Its contestation in bad faith or by procedural formalism shall be sanctioned as provided by the law”.
Chapter V on the rights of individuals opens with the ridiculous Article 50, para 1: “Romanian citizens … fully enjoy the right to be presumed innocent, and that is why … they shall not be informed about measures taken by virtue of the warrant as long as its purpose could be put at risk” (our highlight). In the evident absence – of course – of any obligation to inform the person under surveillance, the following provisions sound at least strange: “if the person finds out about the measures …” (Article 50, para 2) or if “the operation subsequently proves to be unjustified” (Article 51, para 1), then the individual may file a complaint. It is yet completely unclear how can anyone “find out” about the surveillance or how this may “prove” to be unjustified.
Moreover, Article 50 is a typical example of the way in which a fundamental right of persons (to be presumed innocent) is used by the state as justification for the violation of other rights: the citizen has to “pay” for his right to be presumed innocent with the right to be informed and to be able to seek remedy for the infringement of privacy. According to the completely illogical line of reasoning provided by Article 50, if a citizen is presumed to be innocent, s/he gives up the right to the protection of privacy.
CONCLUSIONS:
- APADOR-CH asks the initiator to withdraw the proposal submitted on March 24th, 2003, regarding the protection of fundamental rights and freedoms during activities on behalf of the national security, defense and safety.
- The Association asks the two special committees of the Chamber of Deputies to include in the National Security Law certain articles that would strike a balance between the need to safeguard national security and human rights and fundamental freedoms, more precisely those regarding:
- surveillance authorizations issued exclusively by judges;
- the obligation of intelligence services/structures to inform the persons under surveillance - at the termination of the authorized period - that they have been subject to such an operation, the methods and the period of the operation;
- time-limiting the surveillance authorization to maximum three months, with no option for extension, irrespective of the charges;
- eliminating the intermediary role of the Prosecutor’s Office;
- declaring ILLEGAL any surveillance operation done in the absence of an authorization issued by a judge, irrespective of which institution may run it.
Until the
end of 2003, none of the five draft on the modification of the National Security
Law, nor the proposal regarding the protection of fundamental rights and freedoms,
had been analyzed by the special committees. APADOR-CH hopes that, under the
new Constitution approved by referendum in November 2003, and following domestic
and international pressures to line-up legislation to European standards, the
Parliament will finally vote a truly democratic law in this domain, drastically
limiting the powers of
”secret services” and ensuring a genuine protection of persons.
3. Government Decision no. 952, of August 14th, 2003, on the Integrated Informational System
Published in the Official Gazette no. 631 of September 3rd, 2003, GD no. 952 worried both APADOR-CH and the media under two main aspects: the legality of the normative act itself and the threats posed against certain fundamental rights (mainly the right to privacy).
APADOR-CH filed an administrative complaint with the Government, based on Article 5 of Law 29/1990 on administrative courts, pointing out that the GD was illegal and it violated the right to privacy, and asking that the decision be annulled/ withdrawn. Following is the complaint:
To the ROMANIAN GOVERNMENT
Bucureşti, No. 1 Piaţa Victoriei, sector 1
The Association for the Protection of Human Rights in Romanian – the Helsinki Committee (APADOR-CH), based in Bucureşti, No. 8 Nicolae Tonitza Street, sector 3,
Relying on Article 5 of Law 29/1990 on administrative courts, presents the following:
ADMINISTRATIVE COMPLAINT
Requesting you to annul/ revoke Government Decision (G.D.) no. 952 of August 14th, 2003 on the approval of norms and procedures to operate the Integrated Informational System, part of the National Electronic System, published in the Official Gazette, part I, no. 631 of September 3rd, 2003.
The above mentioned Decision is illegal and represents an infringement upon the right to privacy and upon democratic principles for the following reasons:
1. G.D. 952/2003 regulates the functioning of a structure (the Integrated Informational System) which has not been established by law, since it is not mentioned in Law no. 161/2003 or in any other legal norm. Furthermore, the Integrated Informational System is inexistent legally speaking, because, even if it has been established, the documents have never been published and therefore they are not accessible in any way to the public. The current constitutional system does not allow for the functioning of such “ghost” structures/institutions.
The G.D. is illegal because it has not been issued to enforce an existing law, although Article107 of the Constitution rules that the Government may only issue decisions “to organize the enforcement of laws”.
G.D. 952/2003 cites in its preamble, purely formally, two laws it allegedly enforces: Law no. 415/2002 on the organization and functioning of the Supreme Council of National Defense (CSAT) and Law no. 161/2003, but none of these acts establishes the Integrated Informational System. It means that G.D. 952/2003 has not been issued for the enforcement of any of the two laws.
The Integrated Informational System might have been established by a “secret” decision of the CSAT, but in that case, G.D. 952/2003 is blatantly illegal, since it does not enforce a law, but a CSAT decision, which does not amount to a law. The CSAT is not a second parliament. In addition, a decision to establish a public structure/ institution cannot have any effect until published. That structure or institution simply dos not exist.
2. G.D. 952/2003 obliges every institution detaining a database to transmit copies of the database to the new Integrated Informational System, which threatens to turn into a super-power within the state, an extremely dangerous evolution that creates the premises of dictatorship. G.D. 952/2003 does not mention who should run the giant organization, to whom it is subordinated, whom will it answer to or how.
G.D. 952/2003 contains no guarantee whatsoever regarding the protection of personal data. Legal entities and individuals have no means of finding out how data concerning them are used, or how to react to possible abuse.
As a consequence, the Integrated Informational System is completely out of control, while controlling everybody’s lives.
3. A strange provision, to say the least, is the obligation of the Ministry of Interior to hand over a copy of its database before February 1st, 2004. It is the only institution for which a deadline is set, arousing suspicions about a connection with the electoral events of 2004 and 2005.
4. G.D. 952/2003 is written in a cryptic incomprehensible language, with many carbon copied English words which may puzzle even experts. For this reason, too, G.D. 952/2003 is in breech of the law. It violates Law no. 24/2000 on technical legislative norms, stipulating under Article 7 that “legislation texts shall be clear, fluent and understandable, without syntactical difficulties or obscure or equivocal wordings…”; according to Article 23, “… concepts and notions used in the new regulation, that have other meanings than in plain language, shall be explicitly described in order to ensure their understanding and avoid misinterpretation”; and, according to Article 33 of the same law, “laws shall be written in concise, simple, clear and precise language, to exclude any ambiguity. The wording shall be governed by the desire to make it easily understandable to its beneficiaries”.
For all these reasons, G.D. 952/2003
- which is not issued to enforce a law, but - possibly – a CSAT decision;
- which lacks foreseeability and any real guarantees for the protection of privacy
Has seriously infringed upon the subjective right to privacy of members of APADOR-CH (as well as of all the other people), a right guaranteed by Article 26 of the Constitution and Article 8 of the European Convention of Human Rights.
This is why we ask you to annul/revoke G.D. 952/2003. Otherwise, we will ask the Court to annul the aforementioned Decision.
The government rejected all the objections raised by APADOR-CH. As a consequence, the Association as a legal entity and two of its members as individuals filed a court complaint, the first hearing being scheduled for January 2004.
4. The draft laws regarding judicial organization and the statute of magistrates
The two draft laws were initiated by the Ministry of Justice and submitted to public debate. In July, APADOR-CH sent the initiator its observations regarding, largely, the following aspects:
- both drafts should refer exclusively to courts and judges. The organization of the Public Ministry and of the Anti-corruption National Prosecutor’s Office, as well as the prosecutors’ statute should make the object of separate laws. According to the European Convention and the ECHR jurisprudence (see, among others, judgments in the cases Vasilescu v. Romania or Pantea v. Romania) there are essential differences between judges and prosecutors. While the former are part of the judiciary and are independent, the latter are part of the executive and are subordinated to the Prosecutor General and to the Minister of Justice. A single normative act for both judges and prosecutors creates the false idea that prosecutors are also independent.
The draft law on judicial organization
- the right of the Minister of Justice to send general inspectors and inspecting judges “to control” courts must be eliminated. This prerogative risks to intimidate and influence judges on the one hand, and to create the possibility that the executive interferes with the activity of judges on the other hand. If the control is to be maintained, it has to be decided by the Superior Council of Magistracy.
- the law must stipulate expressly that the transfer of a judge from one section to another is only possible with the judge’s consent. Otherwise, the very irremovability of judges is at stake;
- the random distribution of causes to courts must be ensured by a computer system. This is the only way to eliminate suspicions regarding possible “backstage” arrangements regarding the act of justice. For the same reasons, the conditions in which a cause may be reallocated must be clearly and restrictively regulated;
- a substantial increase in the number of judges at the High Court of Cassation and Justice, ICCJ (which has taken over all appeals on points of law in civil causes), as well the introduction of computer systems in all courts in the country are absolutely necessary;
- each court must have the liberty to prepare its own budget and submit it – with the assent of the Superior Council of Magistracy - to the ICCJ. It is the ICCJ and not the Ministry of Justice that should submit the general budget of courts to the Parliament. Real financial independence is crucial for the independence of justice.
The statute of magistrates
To the previous comments regarding the removal of prosecutors from the category of magistrates and the placement of inspectors in the subordination of the CSM, we may add:
- removing the attributions of the Minister of Justice to exercise disciplinary action and decide preliminary inquiries in case of disciplinary misconduct of judges;
- the right of judges to contest decisions by CSM sections in front of the ICCJ (not in front of the general assembly of the CSM).
None of the two draft laws had been finalized by the Parliament by the end of 2003. They have been both approved by the Senate and are still to be debated by the Chamber of Deputies.
5. Debates regarding the necessity of a law on lobby activities
At the beginning of 2003, a NGO in Timişoara organized a public debate on the possible regulation of lobby activities (activities meant to influence decisions of the executive or legislative bodies), as a possible instrument in the fight against corruption. The participants expressed their pros and cons verbally and in writing. APADOR-CH expressed the following opinion:
1. Among countries with strong democratic systems, only the US have legally regulated lobby activities. None of the European countries has considered necessary to pass laws in this respect, although lobbying is widely practiced and accepted in most of them (except France). Besides, there are many authorized voices maintaining that a law on lobbying would not diminish or, ideally, eliminate corruption. Such a regulation – its supporters believe – would make apparent the interests of certain groups in passing, rejecting or modifying laws and decisions, as well as the methods of influence (accredited lobby makers, whose activities are totally transparent) and the “targets” (MPs, members of the Government, of the county and local councils, heads of national agencies, etc).
Those who do not believe in the efficiency of a law on lobbying argue that nothing can prevent the existence of illegal practices alongside the legal ones. APADOR-CH is among them, believing that a law on lobbying would not be efficient in the fight against corruption.
2. A clear distinction has to be made between advocacy (which includes general activities of supporting points of view/ draft laws/ decisions, etc, for the public interest, without any material benefit for the supporters) and lobby (which serves the interests – including financial gains – of certain groups).
If the Romanian business community considers that it needs legal intermediaries – the lobbyists - APADOR-CH would agree to the regulation of such an activity, strictly limited to the financial and economic domains. But a legal norm that would oblige all forms of associative life (NGO, foundations, unions, etc) - even when they have no economic or financial connections - to use lobbyists (and pay them, of course) is unacceptable.
3. APADOR-CH considers that much more important for the fight against corruption are the approval of the Law on conflict of interests, the enforcement of existing laws (the Law on free access to information of public interest, the Law on decisional transparency in public administration) and especially the enforcement of the criminal law.
In conclusion, APADOR-CH does not believe that a law regulating the lobby activity is necessary. Such a provision would be a threat against the freedom of association, by limiting the possibilities of organizations, foundations, unions, etc, to take actions in order to promote their objectives.
6. Government Ordinance no. 37/2003 on associations and foundations
Government Ordinance no. 37/2003 on the modification and completion of Government Ordinance no. 26/2000 on associations and foundations introduced new concepts and procedures resulting in the limitation of the right to freedom of association, by placing restrictions on the creation, organization and functioning of associations. The Ordinance triggered the reaction of a group of associations and foundations, among which APADOR-CH, which asked that G.O. 37 should be repealed or rejected by the Parliament. Besides all the objections included in the joint protest of the associations, referring to the tedious registration procedures (restrictions on names, the reinstated approval from the ministry or responsible body), APADOR-CH considered that particularly threatening was the change of regulations regarding public utility foundations and associations. First of all, G.O. 37/2003 stipulates that only certain associations and foundations have access to national and local budget resources (Article 41, letter b), which is a matter of grave concern, compared with the previous provision which only established a right for preference. Although the new regulation may seem justified – public money have to serve public, not personal interests, and have to be under adequate control – its excessive character becomes apparent if one carefully analyzes the way a public utility foundation is supposed to work. According to Article41, letter d (also newly introduced by G.O. 37/2003), a special body of the Government “makes an annual analysis of the activity of public utility associations and foundations”, that is of their whole activity, not only of the part connected to public funds. At the same time, the aforesaid body “promotes and assesses governmental policies regarding associative life and makes recommendations” (letter a, of the same article). Thus, the activity of associations and foundations is subordinated to governmental policies regarding associative life, the NGOs in cause losing their primary role. They are called to serve the public interest, not specific governmental policies which may conflict, at a certain point, with public interest.
The fact that, under the new regulations, access to public funding is limited to associations and foundations “favored” by the government is also evident from another excessive requirement of the law. Thus, for those NGOs trying to obtain the status of public utility, Article 39, para 1, letter e stipulates that the request must include “the names and addresses of individuals, or the names and headquarters of legal entities with whom the association or foundation cooperates frequently in fulfilling those activities it requires to be acknowledged as being of public utility”. Of course, there has to be some check-up on requirements for the status of public utility, but it could be done by using references/recommendations from persons/legal entities which may be checked for conformity as part of administrative procedures stipulated under Article40, para 2. But to extend governmental control to partner associations/foundations, which also have to be among the “favored”, seems excessive.
As a consequence, the regulations of G.O. 37/2003 regarding public utility associations/foundations indicate an intention to subordinate associative life to governmental policies. The tendency was even more obvious with the pre-draft submitted during debates surrounding G.O. 37, which should have become a new “framework law” on associations and foundations. The extremely dense text of the draft, lacking legal and even logical grounds, was meant to turn the whole associative system in another instrument of power. Fortunately, the text, which circulated in insider circles, did not reach, at least until the end of 2003, the stage of a legislative proposal. On the other hand, G.O. 37 has been approved by the Chamber of Deputies with just a few amendments which APADOR-CH considers unimportant, since they do not cover the issue of public utility associations and foundations. The Senate is still to decide on the matter.
7. The legislative initiative to modify the Gendarmerie Law (no. 116/1998)
In July 2003, the General Inspectorate of Gendarmerie (IGJ), part of the Ministry of Administration and Interior, published a proposal to modify Law no. 116 on its website. Since the draft gave the gendarmerie exaggerated powers, APADOR-CH sent the IGJ the following critical remarks:
1. Compared to the existing law, the draft law contains additional provisions which are considered by APADOR-CH as a serious threat against human rights, especially in what concerns the issue of deprivation of liberty. Section 41 of the draft law (modifying Article 32, para 2 of the current law) contains five new paragraphs, all of which – excepting para 1, letter e – place these rights in real danger, infringing upon the existing laws and European standards.
Thus:
a. “Inviting to the Gendarmes headquarters” those persons “whose presence is necessary for the gendarmerie to fulfill its attributions” is completely unjustified. The attributions of the Gendarmerie are public order and security watch, which means to follow orders, not to conduct independent inquiries or investigations.
A written “invitation” to a person is a prerogative of the criminal investigation bodies. The Gendarmerie is not among them.
b. “Leading” persons to “the Gendarmerie or police headquarters” is an unacceptable provision. “Leading” means depriving of liberty, because the person who is “led” to the headquarters is not free to leave the place at will (see the definition of deprivation of liberty in the Optional Protocol to the UN Convention for the Prevention of Torture, signed by Romania). The new Criminal Procedure Code stipulates that the period of time when a person is “led” and/or detained is deductible from the maximum 3 days warrant for arrest on remand issued by the prosecutor. By this, it has admitted that the measure of “leading” a person to the station means deprivation of freedom.
The Gendarmerie cannot and must not replace the criminal investigation bodies, the only ones entitled to deprive persons of freedom. Law 116/1998 stipulates clearly that the gendarmes must hand over the perpetrator to the nearest police station.
Moreover, the proposal makes no mention about the duration of this “leading”, the rights of the person who is “led” to the gendarmes headquarters, the legal consequences of this type of action for the person involved, or the right to contest it.
c. The proposed right of gendarmes to perform body and house searches, luggage control and vehicle control “when there are positive information that a crime is being perpetrated” overlaps the current attributions of criminal investigation bodies. APADOR-CH states once again that the Gendarmerie is not among them. In addition, it is unclear how gendarmes could detain “positive information” about crimes being perpetrated.
The same is true about the new provision on the right of gendarmes to enter “residences, companies, public or private institutions…”
Section 46 of the proposal also needs to be brought to attention. It stipulates that gendarmes may use their weapons “against those members of groups who, although they are part of an organized, non-violent demonstration, commit acts that obviously prepare actions of such nature as to trouble public order” (our highlight). On the one hand, gendarmes are thus allowed to act against peaceful demonstrators if they consider that they might prepare violent actions, even though the actions are not materialized. As far as we know, in democratic countries gendarmes only intervene when violent actions do happen. On the other hand, the wording “of such nature as to” is vague and can mean anything, from rising banners to crying slogans. APADOR-CH considers that this provision infringes upon the freedom of assembly, consecrated by Article 36 of the Constitution.
Also, section 47 of the draft law (modifying Article 34, by adding letter d) gives gendarmes the right to detain persons or groups of persons. The procedure of detaining people pertains exclusively to the police.
2. The draft law gives the Gendarmerie an unexplainably high degree of independence as compared to the other public order authorities.
Thus:
a. Section 23 (modifying Article 20 of the current law) eliminates the control of the Minister of Interior on the extension of gendarmes activities to other areas than those of permanent activity. This decision belongs to the commander of the Romanian Gendarmerie, although the institution is subordinated to the Ministry of the Interior.
b. Section 24 (modifying Article 21) allows the gendarmes to undertake, independently or in cooperation with other forces (para 2 and 3), public order missions – a vague definition which could cover any event, no matter its degree of danger.
In the opinion of APADOR-CH, such initiatives should come from central and local public authorities and from law enforcement bodies.
Para 8, section 24, enables the Gendarmerie to organize and undertake “intervention to reinstate public order when it is troubled by any kind of action or deeds in violation of the laws” (our highlight). Besides the fact that, according to the proposal, the Gendarmerie would become solely responsible with initiating interventions, this institution cannot – and must not – decide which actions or deeds are in violation of the law. This is the responsibility of law enforcement bodies (the Prosecutor’s Office and the Police). As provided by Law no.116/1998 and by para 14 of the draft law, gendarmes may only ascertain and sanction contraventions, which is anyway an activity doubling that of the police. It is, however, unacceptable for the Gendarmerie to become in fact another criminal investigation body.
Section 19 of the draft law stipulates the right of the Gendarmerie to rent away firearms and ammunition. But, according to the law (Law no. 17/1996) only the Police detains full control over weapons and ammunition, and this is how it should be. The Gendarmerie, as a state institution, should not provide weapons – not even for a cost – to legal entities of private law such as security companies.
3. Section 75 of the draft law modifies Article 65 by exonerating gendarmes of “criminal or civil liability for deeds committed in good faith and within the law while on duty”, which is tantamount to impunity. This is unacceptable in a state of law, violating the Romanian Constitution (“No one is above the law” rules Article 16, para 2 of the Constitution).
APADOR-CH considers that, by overlapping the responsibilities of the gendarmes with those of the police, the Gendarmerie would become a parallel police. Such a situation would be confusing, even for the two institutions themselves, and would generate a state of ambiguity encouraging non-observance of human rights.
That is why APADOR-CH requests for the draft law on the modification of the Gendarmerie Law to be withdrawn.
The Government has also submitted to the Parliament a draft law aimed at modifying the Gendarmerie Law. It is not clear whether it is the same draft initiated by the IGJ and, if so be the case, whether the draft has been amended and to what extent. The only positive information is that debates within the special committees on this proposal had already started by the end of 2003.
II. ACCESS TO INFORMATION OF PUBLIC INTEREST
Law no. 544/2001 on free access to information of public interest has been effective since March 2002. Considering it to be an important instrument in the fight against corruption and abuse and, at the same time, an efficient way to force state institutions and authorities to become more transparent, APADOR-CH immediately initiated a series of concrete steps aiming, on the one hand, to obtain specific information of public interest and, on the other hand, to check on how the law was enforced and observed. Most of these initiatives were concluded by 2003 with court actions. During the same year, the Association launched a programme to inform attorneys at law on procedures to follow in case requesters to whom authorities denied access to information wanted to go to court. By the end of 2003, a guide for all those interested by Law 544 was almost completed.
1. Requests for information and court actions based on Law no. 544/2001
1.2. Proceeding started in 2002 and continued in 2003
In 2002, APADOR-CH, as a legal entity, filed requests for information with several public institutions/authorities. The SRI, the Prosecutor’s Office by the Supreme Court of Justice and the Ministry of Public Finance denied the requested information and therefore the Association brought the matter before the administrative division of the Bucharest Tribunal.
From the Ministry of Public Finance, APADOR-CH had requested statistics on court fees waivers. The Bucharest Tribunal – as the first instance court – ruled that the Ministry should release the requested information of public interest within 30 days since the decision becomes final. The Ministry of Public Finance appealed, arguing that the request is too complex to be solved in 30 days. Moreover, they argued that the requested data referred to waivers granted to specific persons, and therefore did not belong to the category of information of public interest. In February 2003, the Bucharest Court of Appeal rejected the appeal of the Ministry of Public Finance and upheld the first instance decision. Since the Ministry did not comply with the court judgement and did not provide the requested information in due time, APADOR-CH sued the MPF and the Minister for violating the Law on administrative matters and asked for damages for the delay in complying with a court decision. The Association also asked that the Minister of Finance be fined per day of delay. The case is pending. In the meanwhile, in May 2003, the Ministry communicated most of the requested information.
From the SRI, the Association requested statistics on requests filed by SRI with the Prosecutor’s Office in order to obtain surveillance authorizations for politicians, members of NGOs and journalists, between 1991 and 2002, breakdown by year and category. The Association also asked information on the commercial companies owned by the SRI, their activity and revenues. APADOR-CH lost the case against the SRI’s refusal to provide the information, both in first instance, before the Bucharest Tribunal and in appeal, before the Bucharest Court of Appeal. The decision of the Bucharest Court of Appeal is final and irrevocable.
The Prosecutor’s Office by the Supreme Court of Justice was requested to provide statistic information on surveillance authorizations issued based on the Law on National Security and the Criminal Procedure Code between 1991-2002, respectively 1996 and 2002. The Bucharest Tribunal decided in favor of APADOR-CH, ordering the Prosecutor’s Office to communicate the requested information. The Court of Appeal upheld the decision, also considering that the requested information is of public interest. As the Prosecutor’s Office by the Supreme Court did not comply with the court decision, the Association filed a complaint with the administrative court against the institution and against the General Prosecutor Tănase Joiţa for noncompliance with a court judgement, requesting damages for delay and the fining of the GP. Four days after the filing of the complaint, Prosecutor General Tănase Joiţa filed an extraordinary appeal (in cancellation) against the final and irrevocable decision which compelled his institution to provide the information of public interest. In November 2003, the Supreme Court of Justice rejected the extraordinary appeal. In August 2003, following the appointment of a new Prosecutor General, Ilie Botoş, APADOR-CH filed a complaint against him, too, for failing to comply with the court judgement. In December 2003, the Bucharest Tribunal – the administrative division – fined the General Prosecutor with 500 lei per day of delay but denied the request for damages. APADOR-CH appealed the decision.
On December 12th, 2003, the Prosecutor’s Office by the High Court of Cassation and Justice provided only part of the requested information, which was interpreted by the Association as an ongoing refusal to comply with the court decision.
The trial enjoyed wide media coverage and the information finally issued by the Prosecutor’s Office led to the concl