INTRODUCTION

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.

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, 30^th, 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 30^th, 2003

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.

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.

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 18^th, 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 21^st 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 11^th or 12^th 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 28^th, 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.

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 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 5^th, 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 24^th, 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 draft law was submitted to the Chamber of Deputies on March 24^th, 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.

- APADOR-CH asks the initiator to withdraw the proposal submitted on March 24^th, 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:

- 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;

- 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 14^th, 2003, on the Integrated Informational System

Published in the Official Gazette no. 631 of September 3^rd, 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:

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:

Requesting you to annul/ revoke Government Decision (G.D.) no. 952 of August 14^th, 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 3^rd, 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 1^st, 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”.

- 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 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.

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.

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.

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.

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.

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.

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.

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.

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 12^th, 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 conclusion that – as suspected – the number of persons under surveillance was unexplainably high and that, in most cases, the authorizations were ungrounded. The Association also points out to the following aspects:

- the data finally provided by the Prosecutor’s Office include only the total count (one figure per year) in the case of authorizations issued based on the National Security Law (at the request of the secret services). No other detail inquired by the Association (duration, number of extensions and, especially, the number of people indicted and consequently convicted following surveillance) was released. On the other hand, the information on surveillance based on the Criminal Procedure Code (for alleged “usual” crimes) is complete. It results that the Prosecutor’s Office insisted to keep the activities of the secret service under total secrecy. Surprisingly, shortly afterwards the SRI itself published the information denied to the Association and so keenly protected by the Prosecutor’s Office. The SRI document is however confusing, the information is impossible to compare with the scarce data provided by the Prosecutor’s Office.

- the SRI interfered with the court actions against the two General Prosecutors (Joiţa and Botoş) and the General Prosecutor’s Office for non-compliance with a final court decision – an incredible occurrence in a state of law – by requesting an intervention in favor of the defendant.

These two aspects demonstrate, in the Association’s opinion, the subordination of the Prosecutor’s Office to the SRI, another proof for the prosecutors’ lack of independence.

In 2003, APADOR-CH requested information of public interest from the Foreign Ministry (on the stage of adoption by Romania of certain international documents), the Ministry of Interior (statistics on court actions against persons handed over by foreign states), the Prosecutor’s Office by the Supreme Court of Justice (statistics on criminal and civil extraordinary appeals - in cancellation - and on prosecutors’ travels abroad). The institutions/ state authorities in cause have answered, in most cases, the requests for information.

APADOR-CH also got involved, alongside other four NGOs, in the unacceptable situation in Şelimbăr, where the local council imposed a 100 000 lei/page fee (over 3 USD) for photocopies requested based on Law 544/2001. This decision was taken after a person asked for copies of all decisions adopted by the Şelimbăr local council. APADOR-CH and the other four organizations filed a criminal complaint with the Prosecutor’s Office by the Sibiu Local Court, accusing the mayor and the local council of abuse in office. The prosecution decided non-indictment. In order to contest this decision, the organizations requested a copy of the prosecution file. As the request was denied, another request was filed based on Law no. 544/2001. As this request was also denied, the five organizations filed a complaint with the Bucharest Tribunal – the administrative division. The trial is pending.

Another request for information was filed by APADOR-CH with the Romanian Government, asking for the documents regarding the appointment of former General Prosecutor Tănase Joiţa as general consul in Strasbourg. The law stipulates that in order to occupy a consular position, a person must prove a good state of health. But Tănase Joiţa was appointed as general consul the day after he had quit his position as General Prosecutor for medical reasons. The Romanian Government communicated to APADOR-CH a single document: a note of the Foreign Ministry advancing Joiţa’s name as consul general. APADOR-CH considered the answer unsatisfactory and sued the Romanian government based on Law 544/2001. The Bucharest Tribunal - the administrative division section - rejected the complaint. APADOR-CH is waiting for the court to issue the grounds of its decision in order to appeal it.

2. Other activities related to the Law on access to information of public interest

During 2003, APADOR-CH organized 8 workshops for attorneys at law, informing them on Law 544 provisions and application norms. The meetings took place in Timişoara, Craiova, Galaţi, Bacău, Sibiu, Bucureşti, Zalău and Eforie Nord, involving about 200 attorneys at law from all over the country. The workshops included presentations of the domestic legal provisions and European standards, difficulties in enforcing the law and possible strategies for barristers when taking over cases based on Law no. 544/2001. Some of the participants promoted requests for information, most of which are in the administrative stage. APADOR-CH announced it would support the court actions in case the requests were denied and the applicants had to resort to justice.

Using its own experience in the matter, APADOR-CH has written a Practical Guidebook for citizens, explaining and offering examples for each administrative step and possible judicial steps to be taken by persons interested to obtain information of public interest. The brochure is to be printed and distributed.

The monitoring of detention conditions continued during 2003. Starting with the second half of the year, APADOR-CH considered that special attention was due to detention conditions for juveniles and young persons sentenced to prison or sent to reeducation centers.

APADOR-CH notes that 2003 failed to bring a new law on serving custodial sentences. After several successive – and absolutely necessary - amendments by Orders of the Minister of Justice and the General Director of the DGP (General Direction of Penitentiaries), Law no. 23/1969 is still effective. Decree no. 545/1972 on the educational measure of committing juveniles to reeducation centers, issued by the President of the Socialist Republic of Romania is also still effective. There have been no new regulations on the statute of penitentiary staff either (the staff continues to be militarized).

Emergency Ordinance no. 56/25.06.2003 has introduced a number of provisions meant to improve “the rights of persons who serve custodial sentences” (it prohibits torture, inhuman or degrading treatment or other ill-treatment; it stipulates the right to be informed, to petition and to send and receive correspondence, the right to medical assistance, visitation and parcels).

It must be said that Emergency Ordinance no. 56/2003 was issued shortly after the ECHR ruled in the case Cotleţ v. Romania that Romania was guilty of violating the right to privacy, more exactly the confidentiality of a detainee’s correspondence. It was the second case of this kind – the first one, Petra v. Romania, was lost by Romania in Strasbourg in 2000. Although it took three years and two cases lost before the ECHR to modify these regulations, APADOR-CH appreciates that the Ordinance is an important step forward in lining-up penitentiary legislation with European standards. An aspect worth mentioning is that the Association was consulted by experts of the Ministry of Justice before the Ordinance was issued and many of its suggestion were included in the text.

In compliance with Emergency Ordinance no. 56/2003, the Minister of Justice issued Order no. 3.131/C/29.10.2003 on the duration and frequency of visits, the number and weight of food parcels and other goods to be received by detainees. On November 13^th, 2003, the Minister of Justice issued Order no. 3.352/C on obligations and interdictions of persons serving custodial sentences and disciplinary measures in case of misconduct. With a few exceptions, to be mentioned below, APADOR-CH considers that the new regulations are bringing detention conditions in the Romanian penitentiary system closer to European and UN standards.

The cooperation between APADOR-CH and the DGP continued to be satisfactory in 2003. The representatives of the Association had unfettered access to all units, in all detention areas and to all information requested regarding detention conditions. The reports prepared following each visit were submitted to the management of the DGP, who showed interest for the conclusions and recommendations made by the representatives of APADOR-CH. The DGP was also receptive to the requests and petitions addressed by some detainees to the Association and which fell into the legal competencies of the Direction.

The representative of the Association also had a good relation with the Direction for Social Reinsertion and Observation (Probation) of the Ministry of Justice.

Unfortunately, the Ministry of Justice also had a disappointing initiative from the standpoint of APADOR-CH. In august 2003, a joint Order issued by the Justice and Health Ministries created a joint committee to analyze the cases of death inside penitentiaries. The Committee is only supposed to publish the cause of death, while the information regarding medical care prior to the death is classified as „office secret”. As a consequence, nobody, not even the family of the deceased, is given access to such information. The obvious aim of the order was to eliminate any chance to question the quality of medical care prior to the death. APADOR-CH considered the provision unacceptable and initiated the declassification procedure, as provided by Law no. 182/2002 on classified information. Since the administrative complaint produced no results, the Association filed a court action against the Order at the Bucharest Tribunal, the administrative division. The case was pending at the end of the year, with a first hearing scheduled for January 2004.

During 2003, the representatives of the Association visited the penitentiaries at Bucureşti-Jilava, Bucureşti-Rahova, Colibaşi, Bacău, Poarta Albă, the penitentiary hospital in Colibaşi, the Juvenile Reeducation Center Găeşti, the Penitentiary for Juveniles and Youth in Tichileşti, as well as the Social Reinsertion and Probation Services (SRSS) by the Dâmboviţa and Brăila Tribunals. This report will describe the conclusions of the visits to the two SRSS, the Găeşti Centre and the Penitentiary in Tichileşti in separate chapters. During their visit to the Bucureşti-Rahova Penitentiary, the representatives of the Association also inquired about the case of detainee Marian Predică (20, deceased on October 5^th, 2003), and of detainee Dan Bejinaru, who complained that on September 25^th, 2003, he was beaten by the “intervention squad” of the prison (the two cases are also described in separate sections).

For APADOR-CH, the general conclusion is that during 2003 the situation in penitentiaries continued to improve. Overcrowding, low budgets and a certain inertia still persisting in the mentalities and attitudes of penitentiary staff explain largely why the progress has not been more dramatic. The activity of probation centers (SRSS) gained momentum and was more useful for both their beneficiaries and courts, who were helped to find “alternatives to detention”, and to establish individual punishments, according to the criminal law, as accurately as possible.

2. The main findings of the visits to the penitentiaries in Bacău, Bucureşti-Jilava, Bucureşti-Rahova, Colibaşi, Poarta Albă and the penitentiary hospital in Colibaşi

DGP official statistics (published on June 16^th, 2003, as part of the “State of matters and perspectives of the penitentiary system” report) showed that on June 1^st, 2003, the DGP units accommodated 47 070 persons, of which 46 703 (44 652 men and 2051 women) in penitentiaries and 367 (355 boys and 12 girls) in reeducation centers. At that time, the penitentiary system had the “legal accommodation capacity, calculated at 6 cubic meters/ person” of 37 995 places. According to DGP figures for the whole system, overcrowding, although still substantial, might not appear as a serious problem.

During 2002 and 2003, the Ministry of Justice and the DGP built new living units to reduce overcrowding. During 2002, 4760 new places were created by building new blocks and modernizing the existing ones. Nevertheless, APADOR-CH appreciates that overcrowding still represents a serious problem of the penitentiary system.

The worst case met by the representatives of the Association in 2003 was that of the Bacău Penitentiary. At the moment of the visit, the penitentiary had 1031 beds. The accommodation space measured 1868 sq m, which, with 1604 detainees and at least 4.5 sq m per detainee (“surface norm”), resulted in an occupation rate of 400%. The 4.5 sq m per detainee surface was recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT) in its 1999 Report on Romania, and this norm should be observed throughout the penitentiary system. The overcrowding had worsened right before the visit, because, due to modernization works, the capacity had diminished by 200 places. During the visit, the representatives of the Association could see that, in some of the most crowded rooms, life was an inferno. The air was hot and unbreathable, detainees were sweaty, pale and with inflamed eyes. They were subjected to inhumane and degrading treatment.

In the particular case of Bacău Penitentiary (but also of other locations facing the problem of overcrowding) the situation is all the more regrettable as solutions seemed to be at hand. In Bacău, for instance, right across the street of the penitentiary there was a four floor building belonging to the Defense Ministry, once used as military barracks and, at the moment of the visit, practically abandoned. On the North side of the penitentiary, a military base (12 hectares of land and several buildings) used to host 3000 soldiers before the restructuring of the army (at the moment of the visit, it was home to about 50 military). APADOR-CH suggested the DGP management and the Ministry of Justice that the Defense Ministry might hand over several buildings in the town of Roman, where the School for Drivers and Mechanics used to be. The Association suggested the DGP and the Ministry of Justice to take into consideration the idea of opening a new penitentiary for the county of Neamţ (necessary, among others, because half of the 1604 detainees at the Bacău Penitentiary were from Neamţ County).

Another overcrowded penitentiary was that in Bucureşti-Jilava. On the day of the visit, April 15^th, 2003, the unit accommodated 3187 persons in 2551 beds.

In Poarta Albă overcrowding did not seem to represent a problem at the level of the whole penitentiary (on the day of the visit, the unit accommodated 1966 detainees, in a total detention area of 7307 sq m, which meant about 3.7 sq m per detainee, a figure somehow close to the CPT norm). However, some of the rooms were extremely crowded. In section VI, for instance, room no. 5 (measuring about 5.5 x 10.5 meters) accommodated 56 long-term detainees in 50 beds. Dividing the surface of the room to the number of detainees, it resulted that the occupation ratio was of one detainee per square meter, way below the minimum density required by CPT standards. Due to the overcrowding, the air was hardly breathable.

Two units which did not experience overcrowding problems (or not in any significant degree, at least) were the penitentiary hospital and penitentiary in Colibaşi. For the former, on July 15^th, 2003, there were 350 approved beds, of which 250 in use, and 221 patients, while the latter had a total number of 1133 detainees and 1198 beds, at a “norm surface” capacity of 1037 places.

Order no. 3.352/C/13.11.2003 of the Minister of Justice regulated disciplinary procedures in a more precise way and closer to international norms. The document provided more efficient methods for detainees to contest the disciplinary measures taken against them, even in court (by filing “a complaint with the local district court”). The obligation of the disciplinary board to hold hearings with all detainees before deciding any form of sanction was also a step forward.

However, the Association believes that there are still unsolved problems. One such example is that of the restrictive regime. The 1999 CPT report on Romanian criticized the fact that this kind of regime is seen as a disciplinary sanction (it could be only accepted as a necessary means to maintain the order and safety of detention places). The time limit of this punishment – up to one year – was also considered to be excessively long. Equally excessive is the fact that detainees on restrictive regime may be denied the right to visitation or that they have no way to contest the measure. Order no. 3.352/C/2003 maintains the provision that detainees on restrictive regime are not allowed to “keep and use audio-visual equipment in their room”. The Association considers that such a restriction, which may last up to one year, is excessive and harmful. At the Colibaşi Penitentiary, the representatives of the Association found out from the detainee held on restrictive regime that he was not allowed to sleep during the day (the penitentiary management explained that the regulation was mentioned in a DGP order). APADOR-CH deems that such procedures, with or without orders, are completely unacceptable for people having to put up with restrictions, even for 12 months.

APADOR-CH believes that conditions for detainees of “strict confinement” also need revising. The confinement rooms usually have cement beds, and the mattresses and bed linen are taken away from wake up until night (these rules were maintained by Order no. 3.352/C/2003). In most case, the toilets are separated from the rest of the room by a 1.2 meter high wall. These are tantamount to inhumane and degrading treatments, jeopardizing the detainees’ health.

In penitentiaries visited during 2003, the representatives found no cases in which detainees were chained for disciplinary or safety reasons, excepting that of Greek detainee Passaris (at the Bucureşti-Jilava Penitentiary), indicted for aggravated homicide and considered to be extremely dangerous. Even thus, the representatives of the Association considered that the use of chains is unacceptable, since the practice is unconditionally prohibited by UN and European penitentiary norms.

During 2003, APADOR-CH noted a concerning number of cases in which “intervention squads” abused detainees. More than in any year before, the representatives of the Association noted the presence of the “masked lot” in almost every penitentiary, ever more numerous, more aggressive and triggering more complaints from detainees. They are omnipresent in penitentiaries and their well-known “special” (repressive) missions, their black gear, their masks, their sophisticated weapons and other means of intervention and restraint (all worn in an obvious attempt to impress and intimidate) tense the mood of detainees.

Almost all complaints made by detainees against “abusive treatment” referred to the “intervention squads”. APADOR-CH has asked the DGP management on several occasions to take steps so that the activities of the intervention staff start to comply with the law as soon as possible. Dan Bejinaru and Marian Predică are only two of the cases indicating the abusive behavior of the „masked lot” (another case was notified to APADOR-CH by two detainees in Poarta Albă, themselves victims of the „intervention squad”).

During their visits in 2003, the representatives of APADOR-CH noted that there were cases when detainees had not been heard by the penitentiary parole board. The Association asks DGP to make it a rule that detainees are invited before the board, especially when parole is likely to be denied. The parole board decisions are of too high importance in the lives of detainees to deprive them of the chance to speak for themselves.

The detainees’ lack of activity continued to represent a serious problem of the penitentiary system. The situation is explained by the high number of prisoners, the understaffed prisons, and insufficient preoccupation in the case of existing staff. In 2003 APADOR-CH noted once again that the worst situation is that of long-term prisoners who are not taken out to work. There are still many cases when ten, fifteen or even more prison years are spent sitting on a bed for 20 hours a day, with nothing to do. Lack of activity and continuous stress end by crushing detainees down and damaging their health. The representatives of the CPT have constantly reminded that keeping people locked all the time in overcrowded and often insalubrious places, without the option of a real activity, without at least the chance to move freely in open air every day, can only be an oppressing experience and that the goal is to keep all prisoners out of their rooms, busy with diverse and motivating activities for a reasonable part of the day – meaning at least 8 hours.

There are penitentiaries where the simple extension of TV hours could improve the situation (such as the Tichileşti Penitentiary). The penitentiary managers have to be more sympathetic to this kind of requests from detainees, especially from long-term ones, who in many cases, excepting one hour of open air exercise per day, have no preoccupation whatsoever.

During their visit at the Colibaşi Penitentiary, the representatives of APADOR-CH met with a case which exemplifies the whole situation is the penitentiary system. The opportunities to take detainees to work were rather poor, an average of 69 men having been able to work during the first semester of 2003 (mainly in constructions and agriculture). The management admitted that the situation was unfortunate but could have been solved. One of the solutions, constantly suggested by APADOR-CH, was that the DGP agreed to let detainees work for less than the minimum national wage. The prison managers in Colibaşi said they could have found employers to pay 14-15 000 lei per hour. The deal would have benefited both the penitentiary (the work of detainees would have earned some money to the budget) and the detainees themselves (who would not have spent months and years locked in their rooms and could have earned days deductible from the prison term and some money). According to the prison managers, the “operative” staff could have been organized so as to provide proper security for the work squads.

During their visits to penitentiaries, the representatives of the Association noted that in some cases detainees were rewarded for “contributing with information of value for the system” by days of work deductible from the prison term (2 days of work are considered as 3 days of prison). Such a practice was made “legal” by the Methodological norms on the computation of the part of sentence deductible following work done by detainees and of the due payment for their work”, issued by the DGP and approved by the Minister of Justice by Order no. 1.704/C/18.07.2002. Such a practice may have serious consequences not only at an ethical level but also in practice (detainees may take revenge against informers). APADOR-CH has asked and insists that the Ministry of Justice and the DGP should give up the respective practice and regulations.

APADOR-CH considers that Emergency Ordinance no. 56/2003 on the rights of persons serving custodial sentences and the Order of the Minister of Justice no. 3.131/C/2003 on the duration and frequency of visits and the number and weight of parcels and goods allowed to detainees brought significant improvements to detention conditions. During their visits, the representatives of the Association were able to see that these rights are generally observed.

The possibility to make phone calls or send mail without fearing censorship was increased by the installation of new pay-phones in most penitentiaries and of mailboxes of the Romanian National Postal Company.

The DGP and prison managers must be more concerned with ensuring the confidentiality of phone conversations (in most penitentiaries, this right is not observed). Meetings between detainees and their lawyers must also be confidential. This was not the case at Bucureşti-Jilava Penitentiary. The visitation area included a special room for legal consultations. At the moment of the visit, a detainee was seeing his two lawyers, and the discussion was supervised by a prison officer (a woman) who declared that she had orders “to listen to what was being said and see that detainees do not get drugs, money and other things from their lawyers”.

The Association has also required that, by virtue of the UN and European penitentiary norms, detainees who have not received a final sentence be allowed to wear their own clothes on every occasion, including in court and during visits.

Among the persisting problems in this respect is the lack of meat in the food. APADOR-CH has constantly asked the DGP to take firm steps in order to ensure the legal quality of food for detainees. During several of the visits made in 2003, the representatives of the Association noted significant differences between the quantity of meat in the books and that on the plates.

As for the medical departments, they ought to get more involved in promoting better hygienic conditions in detention spaces. The high occurrence of skin conditions, for instance, is mostly imputable to the penitentiary medical staff. In two cases, Tichileşti and Colibaşi, the representatives of APADOR-CH noted several cases of scabies. At the moment of the visit, Colibaşi had 10 cases of scabies (especially in young people), while the doctors maintained this was not a serious problem. The representatives of the Association considered, on the contrary, that the problem was extremely serious and deserved full attention from the medical staff. Besides, the explanation that scabies had appeared because some detainees “would not wash” is unacceptable, because if such cases occurred – when detainees refused to obey hygiene rules endangering their own and their mates’ health – the management of the penitentiary and especially the medical staff are under obligation to take drastic measures.

3. The main findings of the visit to the Juvenile Reeducation Centre in Găeşti (October 9^th, 2003)

On the day of the visit, the Centre hosted 117 minors (101 boys and 16 girls) for whom courts had decided the measure of placement in a reeducation centre, as provided by Article 104 of the Criminal Code. Compared with previous years, the number of juveniles had dramatically decreased (in 1999, for instance, the centre had hosted over 500 minors).

The living and school conditions were better than in previous years due to the reduced number of minors on the one hand and to investments made in 2002 and 2003 to modernize the dorms and school on the other hand. Bedrooms, which used to fit in up to 20 or even 30 persons, were arranged to host 4 or 6 juveniles each.

The staff, totaling 247 people, generally covered the needs of the Centre, both as in number and as qualification. The school functioning at the Centre was entitled “Special School no. 5, 1^st to 8^th grade, Găeşti”. There were five primary-school classes, 4 gymnasium classes and one gymnasium “optional attendance” class for the girls. There was also an “arts and crafts” two-year school for boys who had graduated from school and wanted to become locksmiths, mechanics and builders. School hours were scheduled every day from 8.000 to 12.00/13.00 and educational, recreational and sports activities from 14.000 to 18.00 (from 12.00 to 14.00: lunch time and break).

During the summer of 2003, the Centre managed to organize 4 holiday camps: in Costineşti (10 minors), Timişoara, in co-operation with the Keros Foundation (7 minors), Vânătoru, Dâmboviţa County (8 minors) and Siriu, Buzău County (12 minors). The representatives of the association appreciated the fact that 37 minors – a third of the total – benefited from summer camps (and, notably, they were in camps alongside children their age, from various schools in the country). The selection for the camps was mainly based on school results and good behavior.

As part of the “Access to the Community” program, run in co-operation with the Town Hall, the Cultural Centre, the Children’s Club and the stadium in Găeşti, the juveniles occasionally enjoyed cultural, educational and sporting activities outside the centre. Once a semester, trips were organized to Piteşti, Curtea de Argeş and Târgovişte.

Juveniles received the proper medical care. A positive fact was that patients were not handcuffed during their stay in hospital.

The bedrooms were remodeled, had Thermopane windows and wooden furniture like wardrobes, chairs and bed tables. The bathroom had Turkish toilet cabins, sinks with mirrors and showers. The juveniles took a bath twice a week

It resulted from the discussions that classes took place as scheduled, with very rare exceptions. They pointed out, however, that they were not satisfied with the food, especially because meat was generally replaced with fat and grease. The representatives of the Association were able to check the truth of these complaints for themselves. The meals were served in modern, functional rooms on each floor of the building.

In one of the primary school classrooms (1^st to 4^th grade), there were 10 students and their teacher (there were 4 students in 1^st grade, 2 in 2^nd grade, 3 in 3^rd grade and 1 in 4^th grade). The representatives of the Association noted that the students’ knowledge was, in general, at the required level.

All juveniles had their own clothes, which they were allowed to wear whenever they wanted. In case some minors did not have what to wear, the centre was able to provide clothes and shoes according to the season.

The representatives of the association remained under the impression that disciplinary punishments, especially those by “isolation from the group”, were too easily applied (the Centre managers admitted, among others, that most girls had been, at a time or another, sent into confinement).

4. The main findings of the visit to the Tichileşti Juvenile and Youth Penitentiary (December 3^rd, 2003)

Starting November 2002, the Juvenile Re-education Centre in Tichileşti has been reassigned as Juvenile and Youth Penitentiary. The unit hosts juveniles and young detainees from Bucureşti and 20 counties in Moldova, Dobrogea and Muntenia (the other counties use the similar unit in Craiova). At the moment of the visit, the penitentiary accommodated 198 juveniles and young detainees.

For 2004, the penitentiary planned a major investment: building two new living units, the rehabilitation of the sewage system and the forage of a well for drinking water (at that moment, drinking water came from the heating plant nearby, at standard quality). Since 2002, the penitentiary had been connected to the natural gas pipeline and had managed to install a modern heating system.

The daily schedule was the following: 6.00 wake up, 6.00-6.30 administrative activities, 7.00-8.00 breakfast, 8.00-13.00 school, 13.30-14.30 lunch, 14.30-19.30 afternoon activities (professional training with instructors in two of the days and educational activities with educators in all the others, including Saturdays and Sundays).

Detainees ate in the two canteens of the kitchen area (at the moment of the visit, the staff was filling the plates and detainees had not yet arrived at table). The representatives of APADOR-CH noticed that about a third of the second course portions contained very little meat, if any.

The detainees received proper medical care. Doctors worked in shifts between 7.30 and 19.30 while nurses were present on a permanent basis. During each day, doctors gave about 40 consultations and treatments. Several cases of scabies had been identified in the penitentiary, mainly due to dirty and worn-out mattresses.

The cooperation with Brăila County Hospital was constantly good. A positive fact noted by the representatives of the association was that detainees taken to the County Hospital were not handcuffed, but merely accompanied by two non-commissioned officers.

The representatives of the Association found out several cases in which juveniles had been photographed and videotaped without their permission while in police custody and their pictures and names had been in the newspapers or on TV (B.U. and M.-G.O., while in custody of Iaşi Police, and S.T. of Câmpina Police). The Association asked the DGP to initiate actions by the Interior Ministry to stop this practice contravening to the UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”).

While by no means a general practice, there were cases when juveniles were hit by members of the staff. APADOR-CH has asked the penitentiary management and the DGP to act with maximum severity in order to sanction such misconduct. Also, the Association cannot but disagree in the most categorical terms with cases when the juveniles are handcuffed to their beds - even for a day and a night.

Juveniles in pre-trail detention were allowed to wear their own clothes, but inside the visiting area they had to wear a gown (“in order not to be mistaken for visitors and escape from prison”, the staff explained). APADOR-CH reminded that, according to European penitentiary norms, people in pre-trial detention must be allowed to wear their own clothes on every occasion. Forcing the juveniles to wear a prison gown over their clothes was equivalent to annulling their right. Also against European norms was the practice of forcing juveniles in pre-trial detention to go to court hearings in prison uniforms.

The main goal of the penitentiary school - dubbed as “special” school – was for juveniles to complete their studies from the point where they had abandoned them (following arrest or dropout) and to get some professional qualification. Most of the juveniles and young detainees here had 3, 4 or 5 years since they had dropped out of school. On the day of the visit, the school had four elementary school classes, each of them over the 12 student norm: 16-17 students (the total number was about 70). Illiterate juveniles took two years in one (intensive classes). The gymnasium had 65 students (the 5^th and 6^th grades had 2 classes each, the 7^th and 8^th had one class each). Starting on the 5^th grade, school was organized according to the general curricula, without any “intensive” classes. Detainees who had graduated secondary school (8 grades) were under professional training (for the 1^st year of professional school there were four classes, with a total of 45 students, trained as carpenters, welders, turners, electro-mechanics). The choice of profession belonged exclusively to the students.

The school needed another 10 education instructors, besides the existing staff, as well as four more social assistants (there was only one), 3 elementary school teachers and 1 sports teacher. One of the problems noticed by the representatives of APADOR-CH was that when the number of detainees happened to drop down, certain teaching positions were made redundant, while when they increased, the school was always understaffed. The Association suggested that, in such cases, there should be no redundancies among teaching staff, since there are none among the other staff – operational, logistics, financial, medical, human resources, etc.

5. The visits to Social Reinsertion and Probation Services (SRSS) by the Brăila and Dâmboviţa Tribunals

SRSS-Dâmboviţa, visited by the representatives of APADOR-CH on October, 3^rd, 2003, had started its activity in September 2001, while SRSS-Brăila, visited on December 4^th, was created on December 13^th, 2002.

The legal framework for the functioning of the Service is provided by Government Ordinance no. 92/29.08.2000, approved and modified by Law no. 129/18.03.2002.

The staff of SRSS-Brăila consists of 3 counselors for social reinsertion and probation, including the chief of service, plus a volunteer, while the other institution had 4 counselors, including the chief.

The services do not have separate budgets, being supported from the budgets of the Tribunals they function by. They have to cover the courts and prosecutor’s offices in their territorial area (SRSS-Brăila, for instance, covers the three first instance courts in Brăila County, the Brăila Tribunal, and the Prosecutor’s Offices by these courts).

In what concerns the assessment reports requested by the above mentioned courts (SRSS-Brăila had prepared about 50 such documents in 2003), the main information sources used were the criminal record, visits to the defendant’s home, interviews with family members, neighbors, teachers, according to the case. Counselors avoid using local police as a source of information for the assessment reports. Prosecutor’s Offices have not requested such reports, explaining that during a criminal investigation there is no time to wait for an assessment report.

In what concerns probation activities, most of the subjects are convicted persons for whom the court has requested the suspension of the sentence under probation, under Article 86 of the Criminal Code. The activity of the counselors is mainly based on monitoring the execution of duties provided by Article 86 para 1, letters a)-d) of the Criminal Code, and less of the duties imposed by the courts by virtue of Article 86, para 3. At the moment of the visits, SRSS-Dâmboviţa had 40 persons under probation and SRSS-Brăila had 48.

Until the moment of the visit, the Services had never recommended that the suspension of the sentence under probation should be ceased as a result of a breach of duties by the convicted person.

The persons under probation may request the SRSS to provide assistance and counseling starting with the beginning of the monitoring period (for instance, 10 persons have requested assistance and counseling from SRSS–Dâmboviţa).

SRSS-Brăila has signed protocols of cooperation with 11 local institutions, among which: the County School Inspectorate, the City Hall, the Prefect’s Office, the Police, the County Council, the County Labor Agency, the Tichileşti Penitentiary and the Brăila Penitentiary. As part of the protocol signed with the County School Inspectorate, School no. 5 organized basic school courses for persons under probation who wanted to complete their studies. As part of the protocol signed with the Tichileşti Penitentiary, a counselor made weekly visits to the institution and tried to enroll all detainees about to be released in a counseling program. 5 of them were taken to visit the relevant institutions in Brăila. Also, SRSS-Brăila counselors went to the Brăila Penitentiary to counsel the detainees who had applied for it. At the request of the Parole Board in Brăila, the Service prepared 15 reports on detainees who were going to be heard by this board.

SRSS–Dâmboviţa has also established cooperation protocols with several institutions and authorities. Such protocols have been established with the Juvenile Re-education Centre in Găeşti and the Penitentiary in Mărgineni, in order to involve the SRSS–Dâmboviţa counselors in the assessment of juveniles or detainees younger than 25 following their quarantine period. An intervention plan and, prior to release, assessment reports were drawn at the request of the Teachers Council or the Parole Board. At the Juvenile Re-education Centre in Găeşti, SRSS–Dâmboviţa only monitors minors from the county of Dâmboviţa. Persons who came under the incidence of the cooperation protocols were able to request assistance and counseling from SRSS–Dâmboviţa following release.

APADOR-CH appreciates that the activity of the two Services, although in an incipient stage, proves to be useful, especially in the area of alternatives to detention. It is commendable that, after analyzing assessment reports by the SRSS counselors, courts have started to decide the suspension of the sentence under probation, as an alternative to detention. It is also notable that courts give serious credit to reports by SRSS counselors when individualizing sentences.

The Services should get more involved in preparing juveniles and young detainees from the Re-education Centre in Găeşti and the Tichileşti Penitentiary, as well as detainees in Mărgineni and Brăila Penitentiaries for release.

The Associations believes that the Ministry of Justice should support the activity of the two Centers more substantially – in terms of budget, logistics and staff.

Marian Predică, 20, a detainee at the Bucureşti Rahova Penitentiary, was arrested in March 2000 and transferred to Bucureşti Rahova in 2003. On September 21^st, 2003, Marian’s parents visited him and were able to see that he was in good health. During the visit, the detainee did not complain about any violent act against him, although he did mention that the penitentiary staff treated detainees more roughly than in Jilava Penitentiary, where he had been previously imprisoned.

On September 25^th, 2003, Marian Predică was taken to the Supreme Court of Justice for his appeal on points of law. His father, Ion Predică, was present at the hearing and was able to see that his son did not bear any signs of physical violence.

In the morning of October 6^th, 2003, Ion Predică was informed by two police non-commissioned officers that he was expected immediately at the Rahova Penitentiary. There, he was told that his son had died and that the body was at the University Hospital. At the hospital, Ion Predică found out that Marian had been admitted on October 1st, and had deceased on October 5th, around 18.00 hours. On October 9th, 2003, Ion Predică, his wife, Maria Predică, and one of his sons, Marcel Predică, went to the Forensic Institute to identify the body of Marian Predică. The family claimed that Marian was completely disfigured, the left part of his face being crushed, that he had a depression in the nasal bone, which they suspected came from a blow with a hard object, and that there were handcuffs marks around his wrists, the left hand being broken at the joint. Marian’s head was shaved bare. Due to these physiognomy changes, the family was unable to identify the body. Only later, when they recalled his particular mark on a fingernail of the left hand, were they able to confirm the identity of their son’s corpse.

The conclusions of the forensic certificate (no. 3589/VIII-1/2003) issued by the Forensic Institute state that: “The death of the said Predică Marian was violent. It occurred following meningo-cerebral and intraventricular hemorrhage caused by skull and face trauma with nose bone fracture, face ecchymoses and right occipital excoriation. The traumatic lesions could have been produced by a blow in the face with a hard object followed by fall onto a hard surface producing occipital skull and left brain damage, a few day prior to the patient’s admission into hospital on 01.10.2003. There is a direct causal connection between the traumatic cerebral lesions and his death”.

Under such circumstances, Ion Predică filed a complaint with the Military Prosecutor’s Office in Bucureşti, asking for an investigation on the cause of Marian Predică’s death and the perpetrators. The investigation file at the Military Prosecutor’s Office in Bucureşti was registered under no. 404/2003.

At Bucureşti-Rahova Penitentiary, the representatives of APADOR-CH talked to the prison governor, to the chief doctor, to Marian Predică’s room mates and to V.L., Marian’s co-defendant, who had accompanied him in court on September 25^th, 2003.

From the discussions with the penitentiary management and the chief doctor, as well as from the prison medical record, it resulted that on the morning of October 1^st, 2003, Marian Predică was brought to the infirmary in a severe state, and provisionally diagnosed with “comitial crisis”. Around 10.30 a.m., Marian Predică was admitted at the Rahova Penitentiary Hospital, where documents were prepared for his transfer to the Floreasca Emergency Hospital, for specialist examination. Since during transportation the patient became comatose, he was redirected towards the closest unit, which was the Bucureşti University Hospital, where he was admitted around 11.15 a.m. The penitentiary doctor was unable to explain the rapid deterioration of Marian’s health otherwise than by a cerebral aneurism. The doctor also confirmed that Marian had never been ill and had never shown any signs that he had suffered any ailment before October 1^st, 2003.

The governor informed the representatives of APADOR-CH that he had not ordered any internal investigation to find out the circumstances of Marian’s death, since, from the standpoint of the penitentiary, there are no suspicions in the case.

The representatives of APADOR-CH visited the room where Marian Predică had been detained and talked to his mates. Although Marian Predică was only 20, so he belonged to the 18-21 years old category, he shared the room with adult detainees.

The “room spokesman” recalled that in the morning of October 1^st, 2003, Marian Predică became ill and fainted beside his own bed. He did not hit any hard object during the fall. The guards were immediately called and they took Marian out the room, probably in order to take him to the infirmary. The room mates said that over the two weeks preceding the event, Marian had complained of headaches and that they had given him painkillers. Also, they stated that Marian had never had any conflict or fight with them, because he was a quiet, aloof type of person who hardly communicated with the others. The representatives of APADOR-CH were able to notice that the detainees in Marian Predică’s room were afraid they could be accused of his death. That is why they maintained that the death had probably been caused by an older head injury, produced sometimes during Marian’s stay in Jilava Penitentiary, after allegedly fighting with his mates over there.

Talking to V.L., the representatives of APADOR-CH found out that on September 25^th, he had been with Marian Predică in court, and that the latter had not complained to him of any ailment, although the two were long time neighbors and friends. V.L. stated that Marian had never been part in any fight for all the time he had been his room mate at Jilava, and ruled out the possibility that he had any conflict with colleagues at Rahova either. At the same time, V.L. said he heard rumors that Marian had been beaten by members of the staff and that this was the cause of his death. On September 25^th, 2003, V.L. was beaten by the intervention squad at the reception desk, upon returning from the court, following which his head was forcefully shaved (the detainee had very short hair). According to APADOR-CH, it is extremely significant that another detainee from the Rahova Penitentiary, Dan Bejinaru, also maintained that he had been beaten by the intervention squad, at the same reception desk, on the same day of September 25^th, 2003.

Given the conclusions of the forensic report according to which the detainee had a violent death and the suspicion that the violence was perpetrated by penitentiary staff, APADOR-CH has asked the Military Prosecutor’s Office to examine the circumstances of Marian Predică’s death in conformity with EHRC standards.

Following complaints from detainee Dan Bejinaru’s family, according to which he was beaten by the prison “intervention squad” on September 25^th, 2003 (the marks of the violence were visible when his mother visited him on the same day), two representatives of APADOR-CH went to Rahova High-Security Penitentiary on October 1^st, 2003.

There, the representatives of APADOR-CH talked to both the detainee and the prison management.

According to Dan Bejinaru, on September 25^th, 2003, he went to court in a uniform borrowed from another prisoner. When he returned to prison, at the reception desk, the officer on duty, captain Puiu, ordered him to hand in the uniform he was wearing and take a fresh one, which was however in a much poorer condition than his. Dan Bejinaru refused, explaining that the uniform he had worn in court belonged to another inmate. As a consequence, captain Puiu summoned the “intervention squad” consisting of two masked guards, who started to hit and kick Bejinaru around, forcing him out of the borrowed uniform. About half an hour later, Dan Bejinaru was asked by captain Puiu to sign a statement admitting that he had refused to obey the officer’s orders. He refused to sign such a statement and as a consequence he was beaten again. Shortly after being sent back to his room, Bejinaru was summoned to the visitation area, where he met his mother.

The representatives of APADOR-CH were able to see on older bruises on the detainee’s chest and left arm.

The next day, Dan Bejinaru asked to be taken to the doctor for treatment. The nurse required the help of Dr. Matei, who wrote down the results of the clinical examination in the medical record: two bruises of approx. 3/3cm on the chest; a bruise on the left arm and edema at the elbow level, without loss of mobility; a bruise on the right cheek following violent blow (statement). The detainee was given anti-inflammatory medication and painkillers. The representatives of APADOR-CH also talked to Dr. Matei, who confirmed the recorded diagnosis.

The representatives of the association concluded that there are enough reasons to believe that detainee Bejinaru was beaten by the penitentiary staff. Even if the uniforms for the court have to be handed in at the reception desk, Bejinaru’s refusal to do so does not justify his beating by the members of the “intervention squad”, summoned by captain Puiu (in his statement, the officer maintained that the guards just happened to be around).

APADOR-CH has asked the Military Prosecutor’s Office to examine this case, too, according to with EHRC standards.

One year and a half after the demilitarization of Police (see Law no. 218/2002 on the organization and functioning of the Romanian Police and Law no. 360/2002 on the statute of police workers) APADOR-CH still could not see any improvement in the behavior of police. In 2003, Romania lost a case before the European Court (Pantea v. Romania) which, although not referring specifically to police activities, represented a harsh criticism of criminal procedures[2]. As a consequence, the Criminal Procedure Code was substantially amended. Among other things, arrest warrants issued by prosecutors now last for only three days (compared with 5-30 days, before), persons in pre-trial detention must be brought to trial in maximum 6 months (compared with half of the maximum prison term for the alleged crime, which until now could be spent in prisons before even being judged by a first instance court), the suspect has the right to remain silent (to avoid self-incriminating statements), the presence of an attorney is compulsory at all stages of the criminal trial, etc. For APADOR-CH, the important thing is that the period for which a person is “led” to the police station (up to 24 hours) is deducted from the 3 days warrant issued by the prosecutor. The legislator has finally admitted that “leading” a person tot the police is also a form of deprivation of liberty – as APADOR-CH has constantly reminded – not just a mere administrative measure, as police officials have vigorously maintained over the years. It results that any person must enjoy all the legal rights from the moment when s/he is “led” to the police station.

Another complaint lodged with the European Court, referring directly to police misconduct (the case of an underage boy in Tg. Mureş, deprived of freedom and abused) has been declare admissible in Strasbourg. Otherwise put, the complaint has gone beyond the stage where the Court examines the arguments of the plaintiff and the defense of the government. All the violations of the European Convention by the Romanian authorities (more precisely, by the police) claimed by the plaintiff (illegal deprivation of freedom, ill-treatment, failing to presume the suspect to be innocent, violation of private life, inconsequential investigations by the Military Prosecutor’s Office) were confirmed by the Court (the only accusation rejected was that of ethnic discrimination) by is decision of admissibility. Trial will follow.

These incidents took place in 1995 but APADOR-CH has a list of many other more recent abuse cases. Even if most of the victims were adults, the Association reminds that in the case of Nelu Bălăşoiu, an 18 year old who died in June 2002 following ill-treatment while arrested at the Tg.Cărbuneşti police station, two minors were also beaten by the same group of police officers to confess to petty thefts. (The civilian prosecutor investigating Bălăşoiu’s death in October 2003 took the “traditional” decision: non-indictment of police officers. The Association strongly believes that investigations were purely formal, proving that, unfortunately, demilitarization did not solve the problem of the impunity policemen used to enjoy – and still do).

At the end of the year, APADOR-CH was informed of two new cases – one in Suceava and the second in Bucureşti – when minors were abused by police, either as a “punishment” or to obtain confession. The Association did not have the necessary time to run its own investigation on the cases.

The Association considers that the main problems of the relation between the police and people have remained very much the same, as underlined in its reports ever since 1993.

- “leading” somebody to the police station, prior to the legal 24 hours taking into custody, is a measure not yet regulated by law, during which a person, although deprived of freedom, does not enjoy any legal right;

- the use of firearms by police complies to much too lenient regulations, unlike rules in democratic European countries which stipulate the use of such extreme measures only if the suspects are putting somebody’s life in real danger;

- raids are stipulated by the Police Law but are only regulated by internal rules, which are not accessible to the public. In the absence of regulations, there have been many abuse cases all of which have been only superficially investigated by prosecutors who decided for non-indictment.

It must be also said that when raids are operated – as is often the case – by police and gendarmes together, it is the Military Prosecutor’s Office (not the civil one, as should be the case following the demilitarization of police) who investigates the case, because the gendarmerie is still a military institution.

On April 11^th, 2003, Lucian Lăcătuşu (19), a member of the Roma community in Parincea, was approached and led to the local police station. During that afternoon, he was questioned about a recent break-in robbery at the village store. According to witnesses who talked to the representatives of the Association (Ion Lăeşelu’s family, distant relatives of Lucian’s, Costică Holban and others), a “lieutenant” from the Bacău Police had also joined the investigations, alongside the local officers. After the „lieutenant” left, around 21.00 hours, Lucian was beaten by the non-commissioned officer „Geluţu” (Gheorghe Gârţu), the second-in-command, and by several villagers among which Nelu Drăgan, Roşu and Poenaru (owner of the local restaurant).

Worried about what they heard was happening to Lucian, the witnesses who talked to the representatives of APADOR-CH went to the police station, where they found “Geluţu” in front of the building, in an advanced state of inebriation and brandishing a bat. The non-commissioned officer - who “is intoxicated most of the time, behaves foully and beats people around” - had been drinking, as usually, at Poenaru’s place. The witnesses asked the policeman to stop beating Lucian and he retorted that “he’d show them, too” the next day.

Around midnight, Commander Constantin Silion left the station for a short while, asking „Geluţu” to be careful and watch Lucian. After the commander’s departure, „Geluţu” went back to the room where Lucian was kept and started threatening him with his gun in order to make him admit to other crimes, ones he had not committed (it must be said that Lucian had already admitted that he was the author of the store break-in). Seeing that Lucian would not confess to what he was told, „Geluţu” tried to force him place his hands in the burning stove. At that moment Lucian took a piece wood from near the fireplace and hit the policeman on the head. (The representatives of the Association were unable to establish precisely in the end whether „Geluţu” was hit with his own bat or with a piece of fire wood). The two began to struggle and Lucian, although handcuffed, managed to take the policeman’s gun and shot at him three times. The commander reached the station a few seconds later and asked Lucian to drop the gun. In his turn, Lucian asked that no one came near the room, because he would only turn in and talk to the prosecutor. The gendarmes and the prosecutor had already been alerted by a villager, Relu Hulubei, approximately 15 minutes before, and were on their way. At a certain moment, Lucian went near the window and the commander shot him in the head. Immediately, Relu Hulubei entered the room and hit Lucian with a fork in the head (he would later whitewash the wall covered in Lucian’s blood). Five minutes later, the prosecutor reached the station. The ambulances came later: the non-commissioned officer was taken first and, several hours later, Lucian, was also taken to a hospital in Iaşi.

The representatives of APADOR-CH went to the Prosecutor’s Office attached to the Bacău Tribunal and talked to the deputy chief prosecutor and the prosecutor on the case. Although the case was “under investigation” and Lucian was at the Jilava Penitentiary Hospital for psychiatric evaluation, the two prosecutors spoke in almost certain terms about Lucian Lăcătuşu’s guilt and non-commissioned officer Gârţu’s innocence (one of the main arguments was the fact that Lucian had been convicted before).

- APADOR-CH considers that all the threats and brutal acts committed by non-commissioned officer Gheorghe Gârţu against Lucian Lăcătuşu were the ones that triggered the latter’s violent reaction with all its consequences, as mentioned in the present report;

- the Association believes there is serious evidence that non-commissioned officer Gârţu led an abusive investigation of Lucian Lăcătuşu, threatening him with the gun and forcing him to put his hands into the stove, in order to get confessions about other crimes than the one he had committed and admitted to;

- alcohol abuse and unrestrained behavior, which were known to be a rule for the respective non-commissioned officer, explain both the violent acts against Lăcătuşu and the ease with each the exasperated man managed to disarm the policeman; the illegal and abusive behavior also made it possible that villagers should beat Lăcătuşu while he was in police custody, under the authority of the officers; the association believes that the liability of each police officer should be investigated;

- The Prosecutor’s Office investigation must establish whether, as Lăcătuşu had ceased to be a threat and as the gendarmes and prosecutor were expected any moment (and Lăcătuşu had promised to turn in), there was any justification in shooting the man;

- it is necessary that prosecutors in the cause should voice their opinion only after analyzing all the relevant circumstances of the case, including hearing the witnesses who maintain that during the April 11^th events (and in general), the policeman in question had an abusive behavior, in defiance of the law.

APADOR-CH asks the Prosecutor’s Office to consider the present report as a complaint, just in case Lucian Lăcătuşu (or his sisters in Bacău, which are his only living relatives) was unable to file a complaint regarding the April 11^th, 2003 incident.

On November 8^th, 2003, two representatives of APADOR-CH traveled to Urlaţi and to the Ploieşti County Hospital to find out the circumstances and consequences of the October 11^th incident, which involved policemen from the Albeşti-Paleologu station and from the Police Rapid Intervention Unit (DPIR).

From the discussion with Niculina Catrinescu it resulted that on October 11^th, 2003, around 10.30 AM, she received the visit of five policemen (two from the village station, wearing uniforms, three from the Mizil police station, in plain clothes) who asked permission to search the house. The policemen explained that 1500 kilos of corn had been stolen the night before from a commercial farm in the commune and that one of the Catrinescu children, Gheorghe, was among the suspects. Knowing that there was no stolen corn in her homestead, Niculina Catrinescu denied the policemen’s access inside the courtyard, especially since, when asked, they were unable to produce any search warrant. After about an hour, during which the policemen were still denied access inside, a group of about 20 DPIR policemen came to the gates (dressed in black gear and wearing masks). The forced their way inside the yard, in the garden and in the house; Niculina Catrinescu, her two sons and a nephew were hit and handcuffed (the children were aged between 14 and 17); the three boys were punched and kicked, while Niculina was also hit with the butt of the gun. Ion Catrinescu, Niculina’s husband, who was holding their youngest, a one year old baby girl, was shot in the right leg by a policeman. The use of the firearm was totally unjustified (a single bullet was shot, aimed at Ion Catrinescu from close range and without any warning). A press release issued by the Prahova County Police Inspectorate (no. 46541/ 13.10.2003, annexed) showed that the policemen used fire power against Ion Catrinescu because he had allegedly resisted the search and had threatened to kill his baby if the search went on. Niculina Catrinescu categorically denied this version and was unable to offer any logical explanation for the shooting.

Violence was used against the Catrinescu family members although none of then had behaved aggressively towards the policemen. The only person who had managed to make a defensive move was one of the two sons, who witnessed the incident and tried to use a pitchfork to defend himself from the policeman who threatened him with a gun. After being shot in the leg, Ion Catrinescu was put on the local ambulance and sent to the County Hospital. At the same time, policemen picked up several tools from the yard, later alleging that the Catrinescu family members used the objects to attack them.

The search of the Catrinescu homestead produced no evidence of any stolen corn. The Catrinescu family did not receive any copy of the search or seizure reports (if any such reports were ever filed in).

Niculina Catrinescu and her two sons were taken – handcuffs on – to the Ploieşti Prosecutor’s Office and charged with “outrage”. After making their declarations (Niculina Catrinescu signed hers without having read it), the three were allowed to go home the following day, around 2.00 PM.

The fact that Niculina Catrinescu and her sons, Cristian (17) and Bujor-Iulian (14), were victims of violence is confirmed by the forensic certificates issued by the Prahova Forensic Service on October 13^th, 2003. The documents show that Niculina Catrinescu had injuries “which could have produced by a blow with a hard object on 11.10.2003 and which required 12-14 days of medical care”.

At the Ploieşti Hospital, the representatives of APADOR-CH talked to Ion Catrinescu (who confirmed that the evens took place exactly as Niculina Catrinescu had described them). The records of the orthopedics section, where Ion Catrinescu was treated between 11 and 13 of October 2003, show that he suffered: “shot wound, laceration on dorsal aspect of right foot, comminuted open fractures of the 1^st and 2^nd metatarsals of the right foot, type 3B, open fractures of the navicular and cuneiform bones of the right foot, type 3B” It must be said that the press release of the Prahova County Police Inspectorate mentions, against all evidence, that Ion Catrinescu had been “slightly wounded in the right ankle”.

APADOR-CH believes that the police raid on October 11^th, 2003, was grossly abusive and illegal. Acting on the mere suspicion that the stolen corn was hidden in the Catrinescu homestead – which the so called “search” proved completely ungrounded – the police launched a brutal action with very serious consequences: shooting and injuring Ion Catrinescu and severely abusing his wife and the three minors. The involvement of over 20 policemen, who used the fire arms and handcuffs, was blatantly out of proportion, since it was directed against 5 persons (among which 3 children) who did not make any aggressive gesture against the police.

The use of the fire arm against Ion Catrinescu was totally unjustified. The assertion of the Police that they fired the gun in order to prevent him to kill his baby was preposterous. Ion Catrinescu had no reason to oppose the search in such despair since he knew very well there was no stolen corn in his home. The use of the gun would have remained unjustified even in the situation where – as claimed by the Police in its very questionable press release – Catrinescu had really threatened to kill the girl. Had the life of a child really been in danger, the obvious solution would have been was to give up, or postpone, the search. The common practice in such situations is to attempt negotiations with the person who uses such a threat, not to launch a direct attack.

Taking into account all these circumstances, APADOR-CH asks the Prosecutor’s Office by the Prahova Tribunal to take the appropriate legal measures in order to punish the perpetrators of violence against the Catrinescu family during the incident of October 11^th, 2003.

At the foreground of the minority issue and, more generally speaking, of minorities and fragile communities, the year 2003 was dominated by the campaign for combating discrimination. Alongside organizations like the Centre for Legal Resources, the Open Society Foundation, ACCEPT, Romani-C.R.I.S.S., the Partnership for Equality Centre, Liga Pro Europa, the Institute for Public Policies, APADOR-CH was part of a task force working on proposals for future amendments to anti-discrimination legislation. The proposals were sent to the National Council for Combating Discrimination and, then, to the Parliament. Here are the main proposals made by the task force:

“Any occurrence by which a person, a group or a community is treated less favorably than another is, has been or would be treated in a comparable situation on grounds of race, nationality, ethic origin, religion, social category, conscience, sex, sexual orientation, belonging to a disfavored category, age, disability, status of refugee or asylum seeker or any other grounds, is considered to be direct discrimination”

“Any behavior on grounds of race, nationality, ethic origin, religion, social category, conscience, sex, sexual orientation, belonging to a disfavored category, age, disability, status of refugee or asylum seeker or any other grounds, which has the purpose or effect of creating an intimidating, hostile, degrading or offensive environment, is considered to be harassment and is sanctioned as contravention”.

“It is considered to be victimization and is sanctioned as contravention under the present Ordinance, any adverse treatment following a complaint or court action regarding violations of the equal treatment and non-discrimination principles”.

“In the sense of the present Ordinance, the elimination of all forms of discrimination shall be accomplished by:

a) preventing any discriminatory acts/ deeds by setting protection measures in the benefit of persons under the present Ordinance, or special measures when the persons in cause do not enjoy equality of chances.

“If the deed sanctioned as contravention under the present Ordinance is repeated, the amount of the contravention fine may be increased by half of the maximum penalty”.

“The fines for contraventions stipulated under Article 20 shall be paid at the CEC with the mention of the name of the victim. The contravener shall hand out a copy of the receipt to the agent who ascertained the contravention or shall mail it to the respective authority, within the legal term provided under Article28, para1 of Ordinance no. 2/2001 on the legal regime of contraventions”.

“(1) Non-governmental organizations for the protection of human rights or who have a legitimate interest in combating discrimination have the right to bring court action whenever case discrimination adversely affects a community or a group.

(2) Organizations mentioned in the previous paragraph have the right to bring court action whenever discrimination adversely affects a person, at the latter’s request”.

“In order to guarantee respect of the principle of equal treatment for persons with disabilities, employers shall provide reasonable accommodation. It means that, where needed, employers shall take steps to enable such persons to have access to, participate in, or advance in employment, or participate in training, unless this requirement creates an undue hardship for the employer”.

Other provisions refer to: discrimination in the services area (sales, rentals, access to theatres, shops, hotels, public transport, etc); ensuring the autonomy of the National Council for Combating Discrimination by placing it under the control of the Parliament; court procedures.

b. Discrimination by harassment: the case of the Szekler National Council initiators

Some discrimination cases take the form of harassment against groups belonging to national minorities, but having a cultural, social and political project different from the majority of the respective national community. The most worrying case, in this respect, was that of harassment against the Szekler National Council (SzNC) initiators. This is the APADOR-CH analysis:

On November 7^th, 2003, Mr. Márton Lajos, member of the UDMR in Târgu-Mureş, sent APADOR-CH a complaint about pressures exerted by public authorities in Mureş County on members of the Szekler National Council. Mr. Márton Lajos declared: „On the evening of October 9th, 2003, after 9.00 PM, I was at a bus stop in Republicii Square in Târgu-Mureş with Andrassy Arpad, member of the County Council, when I saw a police van coming straight towards the sidewalk, blinding us with headlights; then the police came out, surrounded us and asked to see our ID, on grounds that „Police has issued the ID cards and has the right to do take them away from anyone, any time, without any reason” (...) We were threatened and then taken to the Târgu-Mureş police station (...) where we were held for about an hour. While we were waiting for the investigator in the courtyard we were submitted to psychological pressures which reminded the methods of the former security: Why should we use prints in the Hungarian language? We were surely going to go to jail for 15 years! It was us, Hungarians, who were the enemies of this country, etc”. Mr. Márton Lajos declared that from the 9^th of October on, “after being threatened by police and prosecutors that he was going to spend 15 years in prison”, the stress caused by their ill-treatment made him experience physical and psychological problems that have reduced his capacity to work.

On November 10^th, Mr. Tökes Andras, a UDMR member of the County Council, was stopped on his way to Sovata and had his car searched, being accused of distributing posters in Hungarian promoting the ideas of the Szekler National Council.

A point to be made is that these events took place while on Thursday, October 9^th, the deputy mayor of Târgu-Mureş, Fodor Imre, was detained. He was stopped on his way by a gendarme, then led by two policemen to the local police station in Sângeorzu de Pădure, where he was accused that he kept posters in his car featuring the map of the Szekler Region.

Mr. Márton Lajos also said that “following the correlated and repeated actions of the police and prosecutors during the month of October in several locations, the Hungarian population in Mureş, Harghita and Covasna Counties was noticed to be afraid to participate in the meetings for the local creation of the SzNC, which took place between the 12^th and the 16^th of October…”

The representative of APADOR-CH checked the statements made by Mr. Márton Lajos during discussions with Fodor Imre and Szilagy Zolt, who also complained to the Association. The conclusions were the following:

1. Imre Fodor, Márton Lajos, Arpad Andrassy and Tokes Andras were led to the police station and searched because of their activity as part of the Szekler National Council. The activity consisted of printing and distributing posters with the map of the Szekler Region or establishing local Szekler councils. The declared goal of the SzNC is to create an autonomous region.

2. The Statute approved by the Consultative Council of Szekler Seats during the meetings of 13.04.1995 and 23.05.1995, whose project has been reconsidered over the last months, stated the will of the Szekler communities to use the right to territorial autonomy of the Szekler Region and to seek legal guarantees to freely exercise this right.

3. Promoting the ideas of territorial autonomy and self-administration by the Initiative Group of the Szekler National Council is absolutely legal, and protected by the right to freedom of expression and of association. In what concerns the associative structures the SzNC plans to create, they would violate the Constitution only if their action were against “democratic pluralism, the principles of a state of law or Romania’s sovereignty, integrity or independence” (Article 37, para 2 of the Romanian Constitution). It is clear, at this moment, that there is no evidence to suggest such threats.

4. One of the principles cited by the Mureş County authorities during their harassment actions is that the Constitution prohibits “urging to … territorial separatism” (Article 30, (7)). Besides the fact that even the constitutional principle is – here - in breech of the general principles of international law protecting human rights and the freedom of expression, there is a total confusion between territorial separatism and territorial autonomy. While separation means taking a territory from under the national sovereignty, autonomy does nothing more than to define certain forms of organizations as part of the domestic administration and as a way of self-determination of that population, while confirming the state sovereignty. Or, for the SzNC, the meaning of autonomy of the Szekler Region is obviously not separatism. This aspect was made clear even in the draft statute of the SzNC: “The autonomy of the Szekler Region (Székelyföld – Terra Siculorum) does not bring damage to Romania’s territorial integrity or to he national sovereignty. The autonomy of the Szekler Region is based on the right to internal self-determination of communities and on the principles of subsidiariness and self-administration”.

5. It is significant that it was not the first attempt by the public authorities to discipline initiatives protected by constitutional and international guarantees for the freedom of expression and association, and to intimidate their authors. In 1994-1995, the Prosecutor’s Office launched investigations against the UDMR Council of Representatives and Council of Mayors and Local Councilor, maintaining that such forms of association were unconstitutional. Since, as expected, the authorities were unable to prove the violation of constitutional principles and of the laws, the investigations had to be stopped, as they proved to be ungrounded. The fact that, in 2003, the Prosecutor’s Office takes almost the same line of action suggests that there is a plan to harass Hungarians who promote administrative projects different from the existing ones.

6. The harassment on grounds of identity – against either members of the Szekler community or representatives of a specific Szekler identity project – is obvious when compared to the attitude towards other political options which do not (did not) comply with the constitutional frame. There was a relevant difference of attitude towards similar initiatives coming from members of the majority, or towards joint actions of the Romanians in Harghita and Covasna, aiming, equally, at changing the form of representation and administration for minorities[3].

7. The actions of the Târgu-Mureş Gendarmerie, Police and Prosecutor’s Office against members of the SzNC may be qualified as “difference, exclusion, restriction (…), aiming to or resulting in a restriction or prevention of the equal recognition, use or exercise of human rights and fundamental freedoms in the political, economic, social and cultural field” (Ordinance 137/2000, modified, Article 2, para 1). Ordinance 137/2000 would sanction as contravention (when it does not fall under the incidence of the Criminal Code) the behavior of authorities which was tantamount to: “active (…) behavior that generates effects liable to (…) disadvantage, in an unjustified manner or (…) that subjects (…) to an unjust or degrading treatment” (Article 2, para 2) the four SzNC members and other Szekler subjected to intimidation.

8. The common actions of the Târgu-Mureş Gendarmerie, Police and Prosecutor’s Office against the four members of the SzNC, including threats against persons in custody and statements regarding the unconstitutionality of the SzNC – including a comment by the Minister of Public Administration, Gabriel Oprea – shows that the actions were not mere routine operations of leading persons to the police station and conducting searches, as provided by the law. Rather, they were premeditated actions aimed at intimidating, through harassment, certain members of the Szekler community, Romanian citizens having a different identity than the majority, prevented to exercise their fundamental rights guaranteed by the Constitution and international conventions.

9. Taking into account its competencies, as well as the seriousness of the restriction and exclusion acts operated by the Târgu-Mureş authorities, it is indispensable and urgent that the National Council for Combating Discrimination (CNCD) should take firm steps, including sanctions against the perpetrators, as stipulated by Article 1, para4 and 5 of Government Decision no. 1514/2002 and Article 2, letter k of Government Decision no. 1194/2001. If even in a case like this, when fundamental rights and freedoms are restricted in such an obvious manner, based on obvious grounds of identity, the CNCD avoids to assume the responsibility it has by virtue of the law, it may send the signal that discrimination has no consequences and is, therefore, acceptable, because those discriminated against are different from the persons and groups tolerated by the political representatives of the majority.

The year 2003 brought about an important change in the general regime of religious cults by the official acknowledgment of Jehova’s Witnesses as a denomination.

An Order signed by Minister Răzvan Theodorescu on May 22^nd, 2003, acknowledged the statute for the organization and functioning of the Organization. “By virtue of its statute, the religious organization Jehova’s Witnesses is a denomination” (Article 2).

The recognition came after 3 years after the Supreme Court of Justice had ruled, by an irrevocable decision, that Jehova’s Witnesses are a religious denomination. Among the privileges official denominations enjoy – unlike religious organizations – are state budget salaries for clerical personnel (upon request), subsidies for student accommodation, tax exemptions for churches, monasteries, residences and offices. The local authorities may offer cost-free lands for building churches or social assistance institutions. Officially recognized cults have access into military units, hospitals and penitentiaries to offer spiritual relief to those who wish it. Finally, they have the right to provide religious education in schools according to the children’s own faith.

Jehova’s Witnesses do not request salaries or subventions from the state. But tax exemptions are an advantage. Anyway, the May 22^nd Order was not followed by the due modification of the Methodological norms on local taxes, which continued to stipulate that Jehova’s Witnesses are not an officially recognized denomination and, as a consequence, many local authorities still asked the organization to pay taxes. At the end of 2003, several court actions were pending, as the cult attempted to force the government to make the due modifications of the legal provisions[4].

APADOR-CH was involved in court procedures trying to oblige the Ministry of Culture and Religious Cults to enforce the final ruling of the Supreme Court of Justice, which it did with an unacceptable delay, as well as in procedures before the ECHR.

A case of harassment on grounds of conscience is that of members or followers of the Falun Gong movement. Following complaints addressed to the Association, APADOR-CH sent the CNCD the following note:

The Association for the Protection of Human Rights in Romania – the Helsinki Committee was notified by members of the Qigong Association FALUN DAFA ROMANIA about the violation of their fundamental rights. Under certain aspects, the violation looks like a discriminatory policy against persons who belong to a spiritual movement.

Falun Gong is a traditional practice from China based on a double exercise: physical and spiritual. Falun Gong is practiced today by tens of millions of people worldwide. The movement also exists in Romania, having centers in Bucureşti, Cluj, Timişoara, Suceava, Piatra Neamţ and Oradea.

After Falun Gong became popular in China, the communist authorities in that country tried to repress the movement. Tens of thousands of its members were arrested, imprisoned in psychiatric hospitals, many of them tortured or killed. This was one of the reasons why, in democratic countries where the freedom of speech is guaranteed, Falun Gong members hold protests against the behavior of Chinese authorities.

The repression of Falun Gong by the Chinese authorities was criticized by Amnesty International, Human Rights Watch, Human Rights Advocates, the United State Congress (resolutions no. 218/1999, 188/2002, 304/2003), The European Parliament (its decision on 15.02.2001), etc.

The members and followers of the Qigong Association FALUN DAFA ROMANIA (AQFDR) complained of the following:

1. In the autumn of 2001, the gendarmes confiscated the banner of the Falun Gong School, carried by Adrian Sturdza, member of the AQFDR, claiming that it represented a swastika. The person who carried the banner was fined.

2. On March 24^th, 2003, the police prevented a protest in front of the Chinese Embassy, although all legal steps had been followed. The participants were fined.

3. On March 31^st, the painting exhibition of Mrs. Zhang Cui Ying, organized by AQFDR at “Teatrul Foarte Mic” was closed at the request of the Chinese Embassy.

4. On July 29^th, 2003, several members and followers of the AQFDR were stopped, intimidated and fined because they were gathering signatures on the street, in Bucureşti, in favor of the court action brought in the United States against the former Chinese president who persecuted the Falun Gong movement in China.

5. On August 12^th, 2003, the members and followers of AQFDR who were exercising in front of the statue of Matei Corvin and distributed informative materials were intimidated by the chief of the Public Order Department of the Cluj Police, Mr. Ovidiu Brici. He asked them to leave the place because they had no permit from the City Hall for their action and threatened to fine and send them to prison. The AQFDR had informed the Cluj City hall about the action several days before.

6. The families of some of the Falun Gong members were visited by the police, who asked for information about their life and made offensive remarks about the spiritual movement, which they dubbed “a sect”.

In one of the cases, the members of AQFDR were threatened and fined for having distributed informative materials. The right to distribute materials “in speech, in writing, in pictures, in sounds or other public communication media” (Article 30 of the Romanian Constitution) is part of the freedom of expression, guaranteed by the fundamental law and by international human rights conventions ratified by Romania. None of the restrictions on the freedom of expression is applicable in the case of information about Falun Gong and the repression its members are subjected to in China.

The intervention of public authorities in such cases is regulated by Law no. 60/23.09.1991 on organizing and holding public assemblies. The members of AQFDR fulfilled all legal obligations concerning their protest, by informing the City Hall about the meetings (Article 6) and submitting written statements with at least 3 days in advance (Article 7).

There are a number of restrictions on public assemblies: they have to be peaceful and not involve any kind of weapons (Article 1), they have to restrain from promoting the ideas of totalitarianism, of terrorist and diversionist organizations, of organizing coups, or other actions against national security, they have not to infringe upon public order, safety or morality (Article 9), etc.

Restrictions on holding public assemblies are the exception, not the rule, and must therefore be assessed/ interpreted in the strictest way. They must preserve the substance of the law, without arbitrary interpretation. In that sense, the substance of Law no. 60/1991 is to ensure conditions for exerting the right to freedom of meeting rather than to make this right relative. Even in unexpected situations, when the police or gendarmes are forced to intervene, the law stipulates that “the use of coercion means will cease as soon as the area was cleared, the participants dispelled and the public order restored” (Article 24).

The harassment of AQFDR members by local authorities in Bucureşti is obvious in this respect. Not only did the public order authorities have no apparent reason to intervene during the Chinese Embassy protest, but also - against the very substance of the law – they concentrated on detaining and sanctioning the participants. Their intervention was not aimed - as it should have been – at protecting public order and citizens from possible violent effects of a gathering. Rather, it attempted to limit the exercise of a fundamental right by members of the AQFDR.

Authority officials explained their repressive actions by saying that the Chinese Embassy is a military objective, although no proof was brought in that respect. The abuse committed by including the Chinese Embassy in that category is obvious if we take into account the meaning of the freedom of assembly – to share opinions and take a stand through public meetings. The freedom of assembly underlines the importance of expressing and sharing attitudes in the public space. Or the very point of the AQFDR meeting was to protest against the Chinese Government’s policy regarding the Falun Gong movement. It was only natural that such a protest should take place in front of the Chinese Embassy. This is clear from the fact that protests all over the world against the Falun Gong repression in China take place in front of the diplomatic missions of the state.

6. Harassment against AQFDR members as an issue for the National Council for Combating Discrimination

There is one aspect of the case that falls under the competence of the CNCD: the harassment of a group defined by spiritual options. Article 2, para 2, of Ordinance 137/2000, respectively Law no. 42/2001 stipulates that: “Any active or passive behavior that generates effects liable to favor or disadvantage, in an unjustified manner, a person, a group of persons or a community, or that subjects them to an unjust or degrading treatment, in comparison to other persons, groups of persons or communities, shall trigger contraventional liability, unless it falls under the incidence of criminal law” (our highlight).

The members and followers of AQFDR who took part in the association’s actions were harassed by the limitation of their fundamental rights. They were refused the same rights which are guaranteed for other citizens: protests, meetings, distribution of informative materials. AQFDR members were not obstructed by an isolated incident due to the lack of professionalism or bad faith of certain officials. All their actions were censured and stopped and the members of the organizations were fined.

It may not be easy to identify those in charge with this form of discrimination – collective harassment on grounds of spiritual identity – against the Falun Gong movement. In individual cases, the culprit may be easily discovered – the chief of the Public Order Department of the Cluj Police, for instance. The case would not normally fall under the competence of the CNCD, since it involves criminal liability following a complaint from those prevented to exercise their fundamental rights.

On the other hand, the CNCD would act against its own authority if it used the possible criminal character of the harassment as a reason not to get involved in the case.

As a consequence, APADOR-CH has asked the CNCD to acknowledge the case of harassment against the members and followers of the AQFDR, even if it is unable to identify exactly who is responsible for the harassment. Once the decision of the CNCD made public and communicated especially to the Ministry of Administration and Interior, the Romanian Gendarmerie and the Mayor’s Offices involved in the harassment against AQFDR members, it may determine the authorities in cause to give up their harassment, which is the ultimate goal of the CNCD: to combat discrimination in Romania.

For several years APADOR-CH has been involved in bringing action and supporting cases before the ECHR, considering the plaintiffs were victims of violations of human rights protected by the European Convention for the protection of human rights and fundamental freedoms. The following cases are now before ECHR, excepting the first one, which was concluded in 2003[5].

On June 3^rd, 2003, the European Court of Human Rights ruled in the case deciding that there have been three violations of article 8 and a violation of article 34 of the European Convention (the decision of the Court become final).

The first violation of Article 8 was on account of the delays in forwarding the applicant’s letters to the European Commission for Human Rights in 1995 and 1997 (prior to Order no. 2036/24.11.1997 of the Minister of Justice, granting the confidentiality of detainees’ correspondence) while the applicant was serving a final prison sentence. The Court noted that there was no legal support to justify the censorship of correspondence, because at that time there was regular control on detainees’ mail, there was no judicial control, the legal provisions regulating this censorship were not published – all of these leading to the conclusion that the monitoring of prisoners’ correspondence was not "in accordance with the law" as required under Article 8 § 2 of the Convention. The second violation of Article 8 consisted in opening the applicant’s letters to and from Strasbourg (the Court and the Commission) before and after the issuance of Order 2036/1997. The third violation of Article 8 consisted of the prison authority’s refusal to provide the applicant with writing materials (envelopes, stamps and paper) for his correspondence with the Court, the applicant claiming that the authorities had a positive obligation in this respect otherwise the right to correspondence would have been devoid of substance. The violation of Article 34 was due to repeated hostile and intimidating acts by the penitentiary staff following the applicant’s petition to the European Court.

On November 13^th, 2003, the ECHR declared admissible the complaint of the applicant, Gheorghe Notar, relying on Articles 3, 5 para 1-5, 6 para 1-2, 13 and 34 of the European Convention on Human Rights. The complaint was not admissible in what concerns Article 14 (discriminations on grounds of Roma ethnic origin). Following the decision of admissibility, the applicant made further comments on the merits of the cause and answered the Government’s observations. The complaint was lodged with the European Court in 1998.

The applicant – at that time underage - lives in Tg. Mureş. In 1996, while he was at the entrance of a block of flats, he was approached by a police officer, hit with the bludgeon, kicked and taken to the police station where he was interrogated, alongside other underage kids, about a robbery which had taken place that day. During the questioning, the applicant was hit again and, because he refused to write what the policemen was telling him, his head was repeatedly banged against the desk. The questioning at the police station lasted for about 5 hours, during which the applicant had no contact with a legal adviser or his parents. He was then taken to the Youth Shelter without any arrest warrant on his name, only by virtue of a letter with no date and no registration number, signed by a police officer. At the Shelter, his head was forcibly shaven, had to endure a cold shower, to wash his hair with diesel oil and to put on the Shelter’s uniform. The applicant was kept at the Youth Shelter for 5 days during which he had no access to a doctor, a lawyer or his parents, who had repeatedly asked to see him. He was beaten repeatedly by Shelter guards. During the 5 days of detention the applicant was repeatedly taken to the police station for questioning, which also took place in the absence of a legal adviser or a parent. While he was interrogated alongside another minor, the two were forced to slap each other’s face every time the investigators did not like the answers. On the second day of detention, the applicant and other minors were taken to the police station and videotaped by the ANTENA 1 TV station and shown on TV as the authors of a robbery. Neither the applicant nor his parents were asked permission for the shooting and showing on TV. The applicant was finally released following the insistence of Liga Pro Europa, a Târgu-Mureş NGO. The applicant was never brought to trial for any crime. On the contrary, the criminal action for robbery against the applicant ceased. In 1998, certain Târgu-Mureş police officers put pressure on the Notar family to withdraw their complaint at the European Court, by making home visits or summoning them to the police station under various pretexts.

Internal procedures: the applicant complained to the Military Prosecutor’s Office against illegal arrest and detention, against the physical aggression he has suffered at the hand of police and guards, against the degrading treatment he was subjected to at the Youth Shelter, against the infringement of his right to be presumed innocent by being presented on TV as a robber. His complaint was allocated to military prosecutor Sandu Marin, who decided, on several occasions, non-indictment of the three persons accused by the minor. His decision was confirmed eventually by the General Prosecutor’s Office. In one of his decisions, Sandu Marin referred to the applicant as “the author of a robbery”, although his innocence had been proven.

Procedures before the European Court: The complaint was lodged with the European Court in 1998 and subsequently, further comments for admissibility and on the merits of the case were made.

In short, the applicant complained that he had been a victim of violations of: Article 3 – he was subjected to inhuman and degrading treatment both during arrest and during questioning and detention (by beatings, cold shower, shaven head, lack of contact with parents, doctor and legal adviser, videotaping, all of which produced deep physical and psychological suffering); Article 3 - the investigation led by military prosecutors was inefficient, long and biased; Article 5, para 4 - he could not contest his arrest and detention before a court; Article 5 para 5 - he lacked legal remedy for his illegal detention; Article 6 para 1 – he had no access to court in order to seek damage for the unlawfulness of his detention and the degrading and inhuman treatment he had suffered; Article 6 para 2 - his right to be presumed innocent was infringed when his identity was revealed during a television program which presented him as the perpetrator of an offence although he had not been sentenced as such and when military prosecutor Sandu Marin declared that the applicant was the author of a robbery; Article 13 – his right to an effective remedy for violations under Articles 3, 5 and 6 of the Convention was infringed upon; Article 14 – the infringements of his rights were discriminatory, on grounds of his Roma ethnic origin; Article 34 – the police put pressure on the applicant’s family to withdraw their petition.

Except for the claim under Article 14, all the other claims were declared admissible by the European Court in November 2003. Following the decision of admissibility, the applicant sought just satisfaction a well as costs and expenses.

On September 2^nd, 2003, the ECHR declared the complaint of applicants Dan Corneliu Sabou and Călin Dan Pîrcălabadmissible with regard to the violation of Articles 10, 8 and 13 taken together with 8 of the European Convention on Human Rights. The complaint was not admissible with regard to Article 6 (since the applicants had not claimed the respective infringements before the national courts). Following the decision of admissibility, the applicants made further comments on the merits of the case and answered the observations of the Government. The case was lodged with the European Court in 1998.

The facts and internal procedures: In 1998, both applicants received final sentences to criminal sanctions and pecuniary damages for calumny aimed at a judge who was also president of the Baia Mare First Instance Court. At that time, the two journalists worked for “Ziua Nord Vest” newspaper in Baia Mare. The applicant Sabou was sentenced to six months in prison and denied certain civil rights, including parental rights. He was imprisoned on August 20^th, 1998 and released on October 1998, being subsequently pardoned by presidential decree (on February 2^nd, 1999). The applicant Pîrcălab was sentenced to a criminal fine. Both applicants and their newspaper were sentenced to pay damages of 30 million lei (which amounted to almost 50 million after adjustment). The civil damage was paid in totality. The national courts (the Năsăud Court and Bistriţa Năsăud Tribunal) found that the two journalists had made calumnious statements by accusing the court president of using false documents and influencing public administration in order to win a real estate litigation.

Procedures before the European Court: The complaint of the two journalists was lodged with the European Court in 1998 and followed by comments on the admissibility and merits of the cause. The applicants claimed the following violations of the European Convention: Article 10 – their sentencing was not „necessary in a democratic society” to protect the reputation of the victim; the accusations in their articles were based on facts (the documents were submitted to the court of appeal, the one having competence to judge on the merits of the cause); they had acted in good faith, their goal being to inform the public of matters of public interest such as the functioning of justice and the implementation of property laws; the prison term and prohibition of civil rights for applicant Sabou were obviously out-of-proportion; both penalties had the aim and the capacity to discourage journalists to criticize magistrates; Article 8 – only for applicant Sabou, who claimed that the suspension of civil rights during detention violated his family life and the relation with his three underage children; Article 8 taken together with 13 - only for applicant Sabou, who claimed that he had no effective remedies to acknowledge and remedy the violation of Article 8, since the restrictions on parental rights are provided by the law and absolute; Article 6 – the lack of a fair trial and independent judge during the first hearing in Baia Mare.

The complaint was declared admissible under all claims excepting the one regarding Article 6 of the Convention. Following the admissibility decision, the applicants sought just satisfaction as well as costs and expenses.

The complaint was lodged with the ECHR in 2003. The applicant claimed the violation of Articles 6, 9, 6 and 9 taken together with 14, and 13 of the European Convention and Article 1 of the First Additional Protocol to the Convention.

Facts and internal proceedings: In 1993, the applicant brought action for the restitution of the church, churchyard, parish house and the surrounding land, now in the property of the Orthodox Church. After 10 years long proceedings, the trial ended in 2003 by an irrevocable ruling of the BraşovCourt of Appeal. The Court maintained the initial decision on the merits to reject the applicant’s claim. The motivation: the joint Greek-Catholic/ Orthodox Committee – which in the Court’s opinion was entitled to decide the fate of reclaimed property according to the will of the believers, under Decree Law no. 129/1990 of the CPUN – had failed to materialize. The Court issued this judgment although, for three years, the courts themselves had tried to create the joint committee, but failed – and not because of the applicant. On the contrary, it was the Orthodox Church that refused to be part of the joint committee. The Greek-Catholics in Comana have no place to officiate their mass while the Orthodox denomination is alternately using two churches (of which one is Greek-Catholic), and one of them stays locked while the other is in use.

Procedures before the European Court: The Greek-Catholic Parish has claimed the following violations of the European Convention: Article 6 – the irrevocable court decision denied its access to justice, because normally courts are under obligation to judge any civil litigation (such as the right to property); the joint committee is not an independent and impartial judge, being made up by the litigating parties, it has no procedures, least of all adversarial, is unable to take enforceable decisions; moreover, the will of the believers is irrelevant in establishing rights (on property) and property does not depend on the numbers of those who make up the „ownership”; Article 6 – the unreasonable duration of legal proceedings which lasted for about 10 years; Article 9 – preventing the Greek-Catholic believers to exert their freedom of religion; Articles 6 and 9 taken together with Article 14 – the violations were due to the applicant’s belonging to a religious minority; Article 13 – the domestic legislation provides no efficient remedies for the recognition and reparation of these violations; Article 1 of Protocol 1 – the applicant is unjustly denied the right to use its own property.

The complaint was lodged with the European Court in 2003. The applicant claimed the violation of Articles 10 and 6 of the European Convention.

Facts and internal procedures: The applicant is a journalist and in 2001 she was working for „Independentul”, a daily newspaper in Constanţa. Following a critical article about a judge at the Constanţa First Instance Court, the journalist was accused of calumny and received a final sentence which included 6 million lei as penal fine and 60 million lei as pecuniary damage to the judge. The Constanţa First Instance Court ruled on the merits of the cause and the appeal was judged at the Galaţi Tribunal.

Procedures before the European Court: The applicant claimed the following violations of the European Convention: Article 6 – the lack of impartiality of the first instance who judged a complaint filed by a fellow judge, the impossibility to question the victim, who was not heard by the court; the fact that essential evidence was rejected (the press release regarding the opening of disciplinary procedures against the judge in question); Article 10 – the criminal penalty was not “necessary in a democratic society” in order to protect the reputation of the victim; the incriminated article expressed a critical opinion and did not state any concrete facts; the functioning of justice is a matter of public interest; the journalist acted in good faith; the sanctions were obviously out-of-proportion, since the pecuniary damage was 15 times the average national salary and over 30 times the journalist’s salary; the civil, but also the criminal sanctions (which are mentioned in the criminal record) may discourage journalists to debate matters of public interest in the media.

1. With very few exceptions (the modification of the Criminal Procedure Code, the Government Ordinance on prisoners’ rights), the expected progress in lining-up domestic legislation regarding civil human rights to the European standards failed to materialize. The draft Criminal Code is still being debated by the Parliament; several draft laws which amend the National Security Law have been submitted but not even one has been finalized by the special committee; the draft laws on custodial sentences and the statute of penitentiary staff are not even of the legislative agenda. Other laws which should be modified, such as the Law on classified information or the Law on the regime of weapons and ammunition have not been even taken into account. Yet the Gendarmerie wants extra powers and has submitted a proposal to amend the law that governs the institution by which it receives attributions equaling those of the police.

2. During 2003, there was a growing tendency of non-compliance or partial compliance to the law. It was the case of the Law on free access to information of public interest or the Law on Transparency, constantly ignored because of rusty mentalities and fear of the Law on classified information.

Another reason for the discrepancy between theory and practice is the very complicated legislative system itself. Any law, or even Government Ordinance, must be followed by enforcement regulations, in the absence of which the law remains a dead letter. In addition, the endless ordinances, emergency ordinances and government decision as well as the equally numerous decrees and orders of the various ministries, some of which end by modifying the laws they rely on, only increase the uncertainty and confusion.

3. The freedom of expression, and particularly the freedom of the press, has been under more serious threat than in previous years. Maintaining certain provisions of the Criminal Code (incriminating insult, calumny, dissemination of false information when it poses a threat against national security or international relations, etc), political or economic and financial pressures on the media, especially on TV stations, interference of central and local authorities in the activity of newspapers – mainly local ones, and an increasing number of physical aggressions or threats against “troublesome” journalists were the methods used by the ruling power in order to “shut up” the media. To all these, the justice added overwhelming pecuniary damages against journalists who were brought to trial for insult or calumny.

4. The freedom of association, which, just as the freedom of expression, seemed a right secured forever, was endangered in 2003 by a Government Ordinance aimed at placing associative life in its totality under government control through financial and administrative methods.

5. Justice is not independent and remains a non-articulate system, contributing to the widespread feelings of insecurity and mistrust among its beneficiaries. The act of justice seems to be more the result of arbitrary powers than of respect for the law. The interference of political factors with the act of justice is obvious, among others though the control exerted by the Minister of Justice over courts. The two draft laws – on judicial organization and on the statute of magistrates – now debated by the Parliament are only partially solving the existing problems and are unable to ensure the genuine independence and coherent functioning of justice.

6. The demilitarization of police had no effect on the relation between the police and people, the behavior of the former remaining unchanged while prosecutors continued to decide non-indictment in each and every case of abuse. One of the widely-promoted initiatives of the police – creating the “proximity” policeman – produced no positive effect until the end of 2003. The idea of decentralization of the police, constantly supported by APADOR-CH over the years, seemed to gain visibility again. But if the same people with stale mentalities are maintained in the police, if the training of future members of the police continues to have important professional and ethical flaws, and if the Prosecutor’s Office continues to take sides when analyzing complaints against police, a possible decentralization would have the same effect as the demilitarization: a totally insignificant one.

7. As in previous years, the penitentiary system took some steps to improve detention conditions. However, the system is far from the European standards and until a new law on serving custodial sentences is approved (Law no. 23/1969 is still in effect!) such measures are only small steps. However, the hoped for demilitarization of penitentiary staff is expected to have a positive impact on detainees (unlike the demilitarization of police), and on the relations between the two categories, especially because of the small steps taken over the years.

8. The problem of national, religious and other minorities was still not solved in 2003. There are still no laws regulating national minorities or religious freedom. Moreover, the Law against all forms of discrimination, considered, upon issuance (year 2000), as a good law, proved to be flawed during enforcement and should therefore be modified. Also, many cases of property litigation between the Orthodox Church and the Greek Catholic Church, claiming restitution, are still unsolved.

APADOR-CH considers that the situation of civil rights has deteriorated in Romania during 2003 and that such backslide distances the country even further from European standards in the matter.

[1]Court judgement from May 4^th, 2000, published in the Official Gazette no. 19, Part I, on January 11^th, 2001.

[2] In 2003, APADOR-CH issued public protests regarding two individual cases of deprivation of liberty following decisions of the Prosecutor’s Office (journalist Andrei Gheorghe and Judge Andreea Ciucă). The Association pointed out again that the prosecutors’ lack of independence was obvious from their very statute which made prosecution part of the executive power, that the powers placed in the hands of prosecutors by the Romanian criminal law is in conflict with the European Convention, that preventive arrest warrants are issued by prosecutors with unacceptable ease and that persons deprived of liberty are applied inhumane, degrading and abusing treatments.

[3] See the proposals and common action of organizations such as the "Andrei Şaguna" Cultural Christian League, Despărţământul ASTRA Covasna-Harghita, the “Miron Cristea” Cultural Christian Foundation, the “Vatra Românească” Cultural Union - Covasna, the “Justinian Teculescu” Cultural Christian Foundation - Covasna, the “Mihai Viteazul” Cultural Foundation, The Association of teachers in Harghita County, the Association of Romanian Teachers in Covasna, The League of Romanian Christian Orthodox Youth - Sf. Gheorghe Branch, The National Foundation “Neamul Românesc” – Covasna Branch, The National Foundation for Romanians Everywhere - Covasna and Harghita Branches, which were respectfully received by the Romanian President and the Government.

[4] The matter was finally solved when the Methodological norms of the Fiscal Code were published in February 2004, placing Jehova’s Witnesses among Romania’s official religious denominations.

[5] For cases pending at the ECHR which did not progress during 2003, see the Association’s annual reports in 2002 and 2001.