The year 2000 has not witnessed significant improvements as to the previous year in respect of the status of human rights and fundamental freedoms.
At the end of the 1996-2000 administration there are still a number of shortcomings related to both the legislation and the practice of the public authorities in the field of human rights and fundamental freedoms. The Romanian authorities have not paid the appropriate attention to the Resolution 1123 of 1997 of the Parliamentary Assembly of the Council of Europe on the observance of the obligations and commitments undertaken by Romania. Consequently, the penal legislation prejudicing the right to privacy (especially art. 200 of the Penal Code, still incriminating the freely consented same sex relations) and the freedom of expression (by continuing to incriminate the offence against authority, insult and defamation) was not modified. In addition to that, no new legislation has been adopted in the field of the carry out of punishments and the detention measures with deprivation of liberty. An obsolete or deficient legislation also affects other aspects of the human rights and fundamental freedoms, such as the freedom of belief and freedom of religion, the right to information, the right of national minorities to use their native tongue in front of authorities.
In the year 2000, even in the absence of an adequate legislation, which was in some cases anticipated by the practical measures taken by the General Directorate of Penitentiaries, there has been a further improvement of the detention conditions in the facilities within the system in the sense of bringing them closer to the international standards. The Government Ordinance on the social reintegration of convicts represents a good starting point for the development of an alternative system to incarceration. However, the lack of an appropriate legislation in the field of penitentiaries seriously affects the organisation and functioning of the lockups within the General Police Inspectorate system, especially with regard to the detention conditions, the right to defence and the right to correspondence. Starting with January 2000, the General Police Inspectorate has imposed such severe conditions for the access of APADOR-CH in police lockups that the visits of the Associations’ representatives would have become practically ineffective. APADOR-CH considers that the decision made by the General Police Inspectorate may be explained by the consistence of the way in which its representatives had reacted to the deficiencies ascertained in the police lockups and by the overall relationships between policemen and citizens. The seriousness of the cases where policemen used their fire weapons entitles APADOR-CH to maintain its statement that the harmonisation of the domestic norms with the international standards in the field is imperatively necessary. In accordance with these standards the use of fire weapons is justified only in the case when the life of another person is in imminent danger.
In September 2000, the Government passed the Ordinance on preventing and sanctioning all forms of discrimination, which, in the opinion of APADOR-CH, represents an effective instrument for the protection of national, ethnic, religious, sexual minorities and of disfavoured persons.
Additional information on the activities of APADOR-CH can be accessed on the Association’s web page at: http://www.apador.org
The year 2000 has witnessed a stagnation of the Parliament’s activities, at least in respect of the legislation with direct relevance to the protection of civil rights. A series of legislative initiatives of the Government, known as the “Stoica package” (after the name of the Justice Minister), including among others draft bills envisaging fundamental amendments to the Penal Code, the Penal Procedure Code, the Civil Procedure Code, the Law on the regime of the carry out of terms in prison, are in various stages in one of the two Chambers of the Parliament. The proposed solution that the Government would undertake responsibility for the whole package of laws was rejected on political grounds by the coalition that had ruled Romania until the November 2000 elections (following the potential undertaking of responsibility, the Parliament was able to introduce within 3 days a no-confidence motion, which, if it had been passed, would have forced the Government to resign).
Only one draft bill out of the “Stoica package” was adopted by the Government Ordinance 92 of August 2000. This regards “the organisation and functioning of the Services for the social reintegration of criminals and for the supervision of the carry out of the sanctions without deprivation of liberty” (in fact, probation services, that is the alternative to imprisonment and the support for the social reintegration of those released on parole). In December 2000 the Government Decision approving the regulation for the application of the Ordinance was also passed. Probation pilot centres are already operating for a few years in 8 counties and the text of the Ordinance was also the result of the consultation with the direct participants in these experiments and non-governmental organisations performing programs in penitentiaries, APADOR-CH included. Even if the Association still has some objections (the establishment of such services at the higher rank court level (“tribunal”), since most of the crimes are thefts thus the first instance is the lowest rank court (“judecatoria”); the denied access to the evaluation reports, supervision plans and minutes to other persons than those laid down in the Ordinance – not including non-governmental organisations – even if there is an agreement of the person concerned; the arguable statute of the NGO representatives working directly with the detainees etc.), this Ordinance is a significant step forward towards reaching the European standards in the field of the deprivation of liberty. To become a binding law, the new Parliament will have to adopt this Ordinance.
In August 2000 the Government also adopted an Ordinance on the prevention and sanctioning of all forms of discrimination. (For details see the “National Minorities” section).
Under the Resolution 1123/1997, the Parliamentary Assembly of the Council of Europe expressly requested the Romanian State to amend articles 200 (same sex relations), 205 (insult), 206 (defamation), 238 (offence against authority) and 239 (paragraph 1 – verbal outrage) of the Penal Code so that Romania aligns its legislation on same sex relations and press offences to the European standards. In late June 2000, the Chamber of Deputies adopted a draft bill under which articles 200, 238 and 239 paragraph 1 were abrogated and the punishments for insult and defamation were lowered (the insult is punished only by fine and the defamation by fine or prison from 2 months to one year). APADOR-CH has constantly advocated both the abrogation of the three articles and taking the insult and defamation out of the penal sphere since the “sedition” should only trigger the civil liability provided bad faith is proved.
For the draft bill on the harmonisation of the five articles of the Penal Code with the Resolution 1123/1997 to enter into force, the vote of the Senate was also necessary. Despite all the efforts of the domestic and international associations and institutions, this has not happened until the November 2000 elections. Since it was obvious that the “hot spot” of the draft bill was the abrogation of article 200, on September 14 APADOR-CH sent the following letter to the Chairman of the Senate and the heads of the parliamentary caucuses of the Senate:
“The Association for the Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH) requests you to pass as soon as possible the draft bill on harmonising certain provisions of the Penal Code and the Penal Procedure Code with the Resolution 1123/1997 of the Council of Europe, a draft bill including, among others, the abrogation of article 200 of the Penal Code on the same sex relations.
Article 200 infringes on the Constitution of Romania, which guarantees the equality in rights “with no privileges or discrimination” (art. 16), the observance and protection of the intimate, family and private life (art. 26) as well as the freedom of association (art. 37). Article 200 represents a constant threat to the persons with a different sexual orientation than the majority, in total disagreement with the European standards and the requirements of a democratic society.
There is no doubt that serious crimes such as the rape or the sexual relations with minors must be punished yet on the basis of unique provisions, irrespective to the sexual orientation of the perpetrator.
APADOR-CH also underlines the need to harmonise the legislation – including the Penal Code – with the Ordinance on preventing and sanctioning all forms of discrimination that will enter into force at the beginning of this November and that obviously also refers to the discrimination on grounds of sexual orientation.
APADOR-CH hopes that you will not be influenced by the pressure placed on you by the Romanian Orthodox Church for maintaining the current wording of article 200. Romania is a secular state where the church cannot – and must not – influence the political decisions. We should also mention the fact that the churches from all the European countries (including the Orthodox Churches from Russia, Ukraine, Republic of Moldova, Bulgaria, Greece, except for the Former Yugoslav Republic of Macedonia and the Republic of Srpska) have accepted the decriminalisation of homosexuality.
APADOR-CH would also like to remind you that both the Council of Europe and the European Union have insistently requested the decriminalisation of homosexuality and the Romanian Orthodox Church expressed unequivocally its support to the European integration strategy.
The Romanian Senate has now the opportunity to eliminate a source of discrimination and demonstrate that Romania observes, in good faith, its international commitments.”
The draft bill is to be debated by the newly elected Senate. Unfortunately, both before and after the November elections, some public figures – including the new Justice Minister – have promoted the idea of organising a referendum on the decriminalisation of the same sex relations. APADOR-CH hereby reminds that article 90 of the Constitution reads that “the President of Romania, following consultation with the Parliament, may request the people to express by referendum its will on national interest matters” (emphasis added). The Association does not believe that the issue of privacy of persons could be a “national interest matter”.
In November 2000, the Government passed the Emergency Ordinance 207 of November 15, 2000, on the amendment of the Penal Code and the Penal Procedure Code. The Ordinance was published in the Official Gazette of November 22, 2000, and was suspended by the new Government in December 2000. APADOR-CH has constantly disapproved the practice of amending the legislation through ordinances in general and emergency ordinances in particular. Ordinance 207 is the more difficult to accept since it amends the penal law – thus an organic law – only a few days before the elections. The amendments envisaged a hardening of the conditions for the parole in the case of serious and very serious crimes and increased punishments for the theft of crude oil, power grid components, rail equipment etc. The Penal Procedure Code was also amended accordingly. Two new provisions were added, which are welcomed by the Association provided they are approved by the Parliament, on the possibility of introducing the second appeal (in one year time) in the cases where the Strasbourg European Human Rights Court would consider that the Romanian State violated the European Convention. In any case, the application of these two provisions was suspended by the new Government.
In late 1999, two Deputies introduced in the Parliament a legislative initiative on the access to information. APADOR-CH considered that the draft bill had deficiencies and would endanger both the right to access to public information and the protection of personal data. Consequently, APADOR-CH requested the initiators to withdraw their legislative proposal for the following reasons:
1. The access to public information is guaranteed by the Constitution. Thus, a law in this field should be a framework law regulating the access of every person to the information hold/produced/assumed by the public authorities. Any restriction of the right may be made only by law yet only within the limits established by the Constitution (art. 31 paragraph 3). Regulating the access to information under the Constitution is welcomed yet it is unacceptable to condition this fundamental right by the exaggerated existing constraints in the laws in force (Law 51/1991 on national security, which has not been amended; the Audio-Visual Bill 48/1992 and the Archive Bill 16/1996 etc.). Or, article 1 of the draft bill has exactly the same wording. In other words, this draft bill encompasses all the existing constraints and adds some new ones, jeopardising the very essence of the right in question.
2. The draft bill mixes public authorities and private law persons in an intolerable manner, contradicting thus article 31 of the Constitution and the concept of access to information according to the international standards and the norms in force in the established democratic systems. The information to which every person has access are that of public interest, that is, the information hold/produced/assumed by the public authorities and the institutions with public functions (such as education, health care or post office) or using public money. The notion of private interest information also refers to the information hold by the public authorities. On the other hand, APADOR-CH is assured that a law on data protection is absolutely necessary, which should regulate the management of such data by the authorities, since the draft bill in question ensures the protection of privacy to a very limited extent. APADOR-CH also mentions that the access to the personal interest data – irrespective to the holder of the information – is available only to the directly interested person (or to his/her authorised representatives, or in the case of a deceased person, only to the legal representatives of that person). In the case of persons filling public positions, the information exclusively related to the way in which they fulfil their tasks should be accessible to every citizen.
3. The Ombudsman has limited tasks, under the law regulating this institution. Involving this institution, as a mandatory intermediary step between the justice and the persons whose access to information was denied by the public authorities – as provided by the draft bill in question – is nothing but a useless delay of the procedures, which is equivalent to deterring anyone who would like to obtain public information. Moreover, this also means a limitation of the free access to justice, which is guaranteed by art. 21 of the Constitution.
4. The latest trend of the Council of Europe is to request its member states to allow their citizens the widest possible access to public information. The European Union has similar concerns for widening the access of persons to the information held by this institution. Even the states with a long tradition in the field (such as Sweden, where the access to public information has been guaranteed ever since 1766) are considering possible amendments of the respective laws in the sense of widening the access. The limitation until the annulment (as the draft bill in question does by its article 5) of the right to access to information means to ignore the standards and developments of the Council of Europe and the European Union.
APADOR-CH has made comments on the draft bill itself. Excerpts from these comments are presented below:
“Article 1 should be rephrased taking into consideration the above arguments. APADOR-CH recommends the following wording: “every person is entitled to obtain the information hold/produced/assumed by the public authorities. The ‘public authorities’ are those nominated as such by the Constitution of Romania”.
Article 5 is thus worded to annul the very essence of the right that the draft bill attempts to regulate, that is, the free access to information. By assuming some of the limitations imposed by article 31 of the Constitution, the draft not only attempts to differentiate among the information that is generically included under the title of information on the national security or foreign politics or commercial activities etc., and from it, that which would not represent any danger to such fields if made public, but it expands the range of bans to any “other field established by a special law”. In other words, besides the limitations exceeding by far art. 31 of the Constitution, any other “special” law will be able to introduce new restrictions.
Art. 6 is confusing. In paragraph 1 it is not understood who has the initiative of providing the information and in which form. It is absolutely fair that the public authorities should provide on their own, as many – ideally all – information as they have, irrespective to the source, which does not exclude, obviously, the ability of a person to request information. APADOR-CH considers that, for reaching this aim, the law should provide a minimum number of obligations to be imposed on the public authorities, such as an annual report available for every interested person; the legal basis of the respective institution; a list of the documents hold by the respective public authority – including the secret ones – which is also available to anyone; a separate room where the persons who requested certain information can access it; minimum equipment (photocopier) for multiplying documents.
Art. 7 is useless since it only repeats a provision of art. 31 of the Constitution, without the nuances already mentioned in this comment regarding the difference between a regular citizen and a person filling a public position, who is thus more exposed to the public criticism, including the mass media. Therefore, the protection of the right of “every citizen to his own image” should be ensured to different degrees according to the position – public or not – filled by every person.
Art.11 stipulates that the affirmative reply given to the petitioner “is notified to the public opinion through the mass media”. The idea is at least bizarre for several reasons: 1) the petitioner may request information from the public authorities for performing a study/research/work on a specific matter; 2) the petitioner may request strictly personal information; 3) no mass information medium cannot – and should not – be forced to publish the replies given to the petitioner by a public authority.
The entire Chapter V – Right to access to private law information – has nothing to do in a draft bill on the access to information unless the Hungarian model is taken into consideration, which is the only one in Europe, combining the access to information and the protection of personal data. However, if the draft bill follows the Hungarian law, it should be mentioned from the beginning that the share of the two aspects should be at least equal, which has not been achieved in this legislative proposal. APADOR-CH considers that the protection of personal data should be subject to a separate law, thus making Chapter V worthless.
Conclusions:
- APADOR-CH considers that the draft bill on free access to information contradicts the Constitution of Romania, the European standards in force and the recent developments of modifying the legislation in the sense of widening the access to the information produced/hold/assumed by the public authorities
- APADOR-CH believes that a law on access to information should be a framework law, and all the possible limitations should be regulated by other laws observing the right to access to information;
- APADOR-CH requests the Romanian Parliament to adopt firstly a law on the access to information – yet a radically different text than the one discussed above – and then other laws envisaging this right, including the Law on the Security of State and Job-Related Secret Information;
- APADOR-CH requests the Romanian Parliament to immediately adopt a law on the protection of personal data.
Introduced in the Senate back in 1993, the controversial draft bill was adopted by this Chamber in 1996. In late 1999, the Chamber of Deputies passed a variant that, although differing from the one passed by the Senate, does not represent a significant improvement of the text (for the comments made by APADOR-CH to this draft bill, see the 1999 Report of the Association, pp. 11-13). In the year 2000 the Senate rejected the Deputies’ variant and the draft bill went to the mediation committee. Until the general elections of November 2000 the draft bill had not been debated by this committee.
The year 2000 has not witnessed any change in the sense of police demilitarisation and decentralisation. The draft bills introduced in the Parliament in 1999 – amending Law 26/1994 on the organisation and functioning of the police and the statute of the police officer – were not debated by the Legislative. The trumpeted demilitarisation “in steps” to be finalised in 2005 has not even started yet. The decentralisation – a subject included in virtually all the statements of the Ministry of Interior officials – is still just an intention.
However, a project carried out by the British Police together with the Romanian police, in which APADOR-CH is also involved, considered the concrete possibilities of adapting the British model to the Romanian reality. This would mean in broad terms decentralising the police at the county level, establishing a “civil authority for the police”, made up exclusively from civilians – who would establish the general policies of the police based on the community needs, monitor their implementation, supervise the management of police funds, monitor the way in which the cases of abuse perpetrated by police officers are solved etc. –, authorising the groups of lay visitors in the police lockups and others. Although the statements of the newly elected Prime Minister and Interior Minister following the November 2000 elections refer directly to their intent to decentralise and demilitarise the police, it is obvious that some of the laws regulating this field (firstly Law 26/1994), as well as the internal regulations will have to be amended. The Statute of the Police Officer, which should have been in force ever since 1995, will have to be adopted as soon as possible.
1. The use of fire weapons by police officers
A very special concern for APADOR-CH is the regulation of the use of fire weapons by police officers.
Law 26/1994 stipulates in art. 19 five cases when the police officers may make use their fire weapons. According to APADOR-CH, three of them are incompatible with the international standards established by the UN in the field. Therefore, in letter b) the use of fire weapons is authorised for “rejecting attacks against the police facilities or other goods of the police...”(emphasis added), in letter c) for “defending the objectives, perimeter or persons they are in charge of” (emphasis added), and in letter d) for “apprehending the criminals caught in the act who are trying to escape and do not submit to the warning”. While the UN standards stipulate that the fire weapons may be used only if the life one or more persons is in imminent danger or in cases of escape, it is obvious that this extreme measure cannot – and must not – be taken for defending buildings or land, as provided in letters b) and c).
Letter d) has been the most frequently applied and the police officers made use of their fire weapons even in the case of minor crimes (such as attempts of theft from vehicles or attempts of burglarising small shops), ignoring the principle of proportionality of intervention and especially the fact that the suspect put nobody’s live in danger.
The draft bill on modifying the Police Law recommends the elimination of article 19, making however reference to Law 17/1996 on the regime of weaponry and ammunition, which stipulates in art. 47 ten cases where fire weapons may be used. This would mean a wider gap between the domestic law and the international standards, an aspect that has been raised by APADOR-CH ever since late 1999.
In May 2000, following two incidents resulting in serious injuries for one person and the death of another, APADOR-CH issued a press release on the use of fire weapons by police officers.
“APADOR-CH ascertains with concern the fact that in the last few days (on May 19 and 22, 2000) Bucharest police officers used twice their fire weapons. In both cases, the consequences were extremely serious: Mugurel Soare, shot in the head on May 19, risks to be paralysed for life, and Petre Leţea, involved in the May 22 incident, passed away.
In the first case, the police officers invoked the self-defence. There are however a few unclear issues (completely different declarations from the civilian witnesses, the fact that the wounded police officer was not transported immediately to the hospital either, his superficial wound etc.), which should be clarified by the military prosecutors with utmost objectivity.
In the second case, the police officers, called by the neighbours, discovered two persons attempting to break into an apartment, who ran off when discovered. One of the suspects ran between the apartment blocks. The second one jumped in a car parked in front of the building and left at once. The police officers shot the driver, Petru Leţea, in the head and he lost the control over the car and deteriorated a few parked vehicles. All these happened in broad daylight, in a crowded area. There was the risk of wounding a completely uninvolved bystander or that the driver hit passers-by, not only cars. Thus, by using the fire weapons in an ordinary case of theft attempt, the police officers endangered the safety of the persons in that area.
In accordance with the international standards, the use of fire weapons is justified only in the case where the life of a person is in imminent danger. Or, if in the first case clarifications from the Military Prosecutor’s Office are necessary with regard to the self-defence, in the second case, the use of fire weapon is totally unjustified and disproportionate.
APADOR-CH requests the Interior Ministry to take immediate measures for the drastic limitation of the use of fire weapons by police officers and the Military Prosecutor’s Office to perform, with celerity and impartiality, the required investigations in both cases.
APADOR-CH requests the Romanian Government to urgently initiate a draft law limiting the possibilities established by the legal regulations in force on the use of fire weapons by police officers.”
In September 2000, the Interior Minister signed the Order 112 regulating the use of fire weapons. Although, by introducing certain cumulative conditions and the principle of proportionality, one may assume that the cases when fire weapons are used will become less frequent, the core problems remain the same since the circumstances in which such measure may be applied have remained unchanged. In addition to that, although it is stipulated that fire weapons may be used in the case of those caught in the act and attempting to escape if a serious crime is involved, since the appreciation of the seriousness of the act is up to the police officer, the risk remains high.
APADOR-CH reasserts the fact that the unique circumstance in which the use of fire weapons by police officers (or gendarmes or public guards) is justified is only the existence of a real and imminent danger for the life of one ore several persons.
2. The right to defence
According to the repeated statements of high rank officers, every person being in a police station has the right to be assisted by a lawyer from the moment of taking the statement preceding the issuance of the order for police custody. The presence of the lawyer is also mandatory when the suspect is sent to a prosecutor (following the 24 hours of custody) for issuing the pre-trial detention warrant (between 5 and 30 days).
An essential problem constantly raised by APADOR-CH is another form of liberty deprivation up to 24 hours, which is different from the police custody and entitled “leading to the police station” (Law 26/1994, art. 16 letter b). The Association has constantly affirmed that this measure is unconstitutional. The Constitution expressly stipulates the possibility of holding a person in custody for no more than 24 hours outside the pre-trial detention warrant. The Penal Procedure Code has similar provisions. The measure of “leading”, contrary to the Constitution and the penal law, is extremely dangerous. The person thus deprived of liberty is extremely vulnerable since, in the absence of regulations made public; he is fully at the disposal of the police officer and lacks every right, including the right to defence, which do not apply in this interval.
In Romania there are 123 police lockups. The placement under custody is made based on an order for police custody, there are registers where all the data of the person held in custody are recorded, the medical examination is performed, the contacts between the person held in custody and the lawyer are allowed etc. Besides the stations with lockups, there are numerous police stations/precincts that do not have such areas. The practice of “leading to the police station” is frequent in such stations/precincts. In some cases, the “led” person cannot even prove that he/she was for several hours in a police station/precinct since, in some of them, there is no register and in others the register includes the data of all the persons entering that building, irrespective to their reason and with no mention of the “led” persons. Finally, where there is a separate record of the “led” persons, it is not mentioned what happened to such persons (whether they were released or an order for police custody was issued). Although the representatives of APADOR-CH were told that the police officers “leading” persons to the station would be bound to prepare reports on the reason of “leading”, in spite of their insistent requests, they have not been able to see such a report.
The draft bill for amending Law 26/1994 does not eliminate the “leading”, moreover it adds the mandatory presence of a lawyer, which means that the initiator of the draft bill (the Ministry of Interior) finally admits that this “leading” represents a deprivation of liberty and not just an “administrative” measure, as stated by all the officers on all occasions when the representatives of APADOR-CH brought this aspect into discussion. On the other hand, even with this minimum guarantee of the lawyer’s presence, the “leading to the police station” remains an unconstitutional provision. In the opinion of the Association, for observing the Constitution and the penal law, a person may be brought to the police station only in the cases where there is already evidence that he/she committed a crime or whether he/she is caught in the act. In both circumstances, issuing the order for 24-hour police custody is justified, obviously in the presence of a lawyer. In practice, if art. 16 letter b) will be amended, the police officers in communes and other localities where there are no lockups should no longer be allowed to perform “leads” to their stations if in the respective localities there are no law firms ensuring the exercise of the right to defence.
Very many persons “led” or held in custody lack the necessary material means to hire a lawyer. In such cases, the defence is ensured by an ex officio lawyer. However, the representatives of APADOR-CH have encountered enough cases when the detainees declared that either they had not been assisted by any lawyer, neither when the order for police custody had been issued nor in front of the prosecutor who issued the pre-trial detention warrant (for instance in the Nărtea case), or that the lawyer had been present yet he/she had not support their cause in any way, limiting to sign the record. Of course, this aspect is mostly related to the professional ethics of lawyers. On the other hand, there is the mentality – shared by almost all the police officers, as well as some lawyers, especially those who used to work in the police forces –, that the role of the defence counsel is to contribute to the learning of truth (a sort of aid to the investigator) rather than defend his/her client by all legal means. The right to remain silent, including the right no to self-incriminate – a right repeatedly affirmed by the European Human Rights Court – is considered by investigators as an attempt to obstruct the finding of truth.
3. The access to police lockups
For 14 months (December 1998 – January 2000), APADOR-CH had had access to the police lockups in certain conditions that were observed by the Association: it announced the visit date, it did not approach matters related to the legal situation of the persons detained in lockups, the visits were made only in the presence of a delegate from the General Police Inspectorate (or, the case be it, the relevant County Police Inspectorate) and promptly submitted reports both to the General Police Inspectorate and the respective County Police Inspectorates.
The Association believes that the issues raised in the discussions with the police officers from the County Police Inspectorates (“leading” a person for up to 24 hours to the police station followed – or not – by the 24-hour custody, the relation between lawyers and persons held in custody/arrested persons, as well as the use of fire weapons) and the criticisms against the conditions of detention in lockups have made the management of the General Police Inspectorate – supported unfortunately by the Ministry of Interior – to harden the access conditions so that the visits became totally ineffective. This happened notwithstanding all the assurances regarding the openness and transparency of the police and the arguments and counterarguments brought by APADOR-CH. The lengthy correspondence between APADOR-CH and various echelons of the General Police Inspectorate and the Ministry of Interior on the theme of access to lockups has resulted in the following conclusions:
It should be mentioned that one of the reasons invoked by the police was the fact that the statutes of the Association refers to persons whose rights were violated and thus the organisation needs to wait to be notified.
APADOR-CH mentioned on every occasion that it is interested only in the conditions of detention in the lockups, also involving, of course, individual complaints related to the possible ill-treatment from police officers. The condition of a prior notification is completely unrealistic since the persons in lockups have no access to public phones and their right to correspondence is limited to one postcard every month (which represents a confirmation of the preservation of censorship). Even if notified by a person from a lockup or someone else, the Association cannot accept the idea of informing the General Police Inspectorate on the identity of the plaintiff and the object of his/her complaint since there would be a clear risk of pressure placed by the police on the respective person. Finally, signing a joint protocol at the end of a visit is a difficult condition to accept since it is very likely that the police officers and the representatives of the Association may have divergent opinions (which has happened in numerous occasions). APADOR-CH also mentioned that other Helsinki Committees from Central and Eastern European countries either have unlimited access to the police lockups (in the Czech Republic, Poland, Hungary, Albania), or the access is reasonably limited (in Bulgaria, Uzbekistan and the Republic of Moldova). It should also be mentioned the fact that APADOR-CH has unlimited and unconditional access to all the penitentiaries in Romania based on permits valid for one calendar year, which proves the difference in mentality of the management of the two institutions who, although they have comparable tasks in the field of depriving persons of liberty, have totally opposed reactions to the concept of transparency and the acceptance of the monitoring of their activities by the civil society, APADOR-CH being a part of it.
The conditions imposed to APADOR-CH in order to allow the access of its representatives in the police lockups is based on the Order 901, which was signed by the Minister of Interior in May 1999 and entered into force only in August 1999. It should been mentioned that this Order, whose text was insistently requested by the Association, is considered a “job-related secret”, being thus inaccessible both to the persons from lockups (except for the part referring to their rights and obligations) and lawyers and non-governmental organisations. This situation lasted until late December 1999, when the “job-related secret” concept was relinquished, or this is what the management of the General Police Inspectorate stated in a letter addressed to APADOR-CH. The fact is that in February 2000 the Association received a copy of this Order with a serial number, thus with a limited distribution. Or, one of the basic requirements of the Strasbourg European Human Rights Court is the accessibility of every legal regulation.
Following the entering into force of Order 901, in the period when APADOR-CH still had access to police lockups in acceptable conditions, its representatives could notice that one of the essential provisions of the new regulations – observing the confidentiality of the discussions between the lawyer and his/her client – are not applied in any lockup. Some officers from the visited County Police Inspectorates stated that the lawyers should be the ones requesting the observance of confidentiality (how could they have requested such a thing if Order 901 were a “job-related secret”, thus they did not have access to it?). The First Deputy Chief Inspector of the General Police Inspectorate replied in written to APADOR-CH that the provision is not observed because there are no adequate rooms in the police stations.
APADOR-CH can only draw the following conclusion: some aspects in the police lockups are changed for the good only on paper, rather than in practice. This is probably one of the reasons for which the visits of the Association in the police lockups are not welcomed anymore. The opinion of the Association is that only those governmental/non-governmental organisations not criticising, not making public various abuse cases and affirming that police officers have a difficult life and they are not compensated according to their efforts are and will be encouraged to collaborate with the police.
APADOR-CH agrees that the police officers in general have a hazardous job and that the Romanian police officers in special have unsatisfactory salaries, primitive working conditions and insufficient professional training. However, this cannot justify the violation of the rights and freedoms of the persons investigated by and in the custody of the police.
The Association also mentions that both the European Committee for the Prevention of Torture (who visited Romania twice – in 1995 and 1999 – and has made public only its first report) and the UN Special Reporteur on Torture (who visited Romania in 1999 and publicised his report in the year 2000) have reached in many aspects similar conclusions to those drawn by APADOR-CH in its reports in respect of the situation in the detention facilities, including the police lockups.
In the above conditions, the Association was able to visit only one lockup – of the Buzău County Police Inspectorate – in February 2000, just before the beginning of the “negotiations” on the new access conditions in lockups. In brief, the following aspects could be mentioned, which also apply for most of the police lockups in Romania:
In respect of the right to medical assistance, APADOR-CH would like to mention a special situation ascertained in the lockup of the Buzău County Police Inspectorate. Constantin Mihalache, placed in the lockup on January 19, 2000, had constantly been complaining of pain in the hand due to a swollen and black-and-blue finger. The lockup doctor– with whom the APADOR-CH representatives had a phone conversation – declared that it would have been a “minor affection” that he did not consider important and did not write in the medical record. Strangely enough, the very same doctor wrote in the detainee’s record a derisory detail, that is, “knee abrasions”. On February 3, 2000, Constantin Mihalache was subject to forensic examination necessary for the solution of his case. On this occasion, the forensic doctor ascertained the fracture of the finger bone and ordered a plastering. In other words, a person held in police custody did not benefit from the binding health care under the law for two weeks. The Association considers that by ignoring the affection the lockup doctor contributed to the concealment of the fact that Mihalache had been seriously aggressed by the police officer responsible for his apprehension. “He fell on his finger” was the explanation, at least hilarious, from the police officers from the Buzău County Police Inspectorate.
Although the Association requested the General Police Inspectorate to perform the necessary investigations in this case, until the end of the year 2000 no reply has been received.
4. Individual cases investigated by APADOR-CH in the year 2000
During the year 2000 the Association has investigated 9 cases where abuses made by police officers were notified.
In two of the investigated cases (a journalist from Constanţa and a man from the commune of Bujoreni, Dolj county, both beaten by police officers) the victims withdrew their complaints submitted to the Military Prosecutor’s Office.
Four of the other cases stand out due to their seriousness:
In the evening of May 18, 2000, Mugurel Soare, aged 19, was beaten and then shot in the head by a police officer in plain clothes. The incident happened around 7:00 p.m., in the middle of the road and in the presence of eyewitnesses. The young man was transported to the emergency room and he stayed there in a coma for five days. He was operated twice yet the right side of his body remained paralysed and he was unable to speak any more. Mugurel Soare checked out of the hospital in early August, yet he is to come back to the hospital for new surgery.
The Military Prosecutor’s Office has not yet adopted a solution in this extremely serious case. The Soare family fears that the investigating prosecutor will accept the self-defence invoked by the police officer. He also went to the emergency room, a few hours after Mugurel Soare had been brought there and requested medical care because he would have been “cut with the knife” by the young man. The wound on the abdomen was that superficial that it did not need any medical intervention not to mention hospitalisation.
The eye witnesses declared that Mugurel Soare had no knife with him (in fact, the knife, that is, the material evidence, has not been found) and that, after shooting the young man, the police officer seemed in perfect shape, with not a drop of blood on the shirt as it would have been natural if he had been “cut”. It should be mentioned that the police officer, together with other two colleagues also in plain clothes, was in a mission that had nothing to do with Mugurel Soare (in fact, no member of the Soare family has ever had anything to do with the police).
APADOR-CH requested the Military Prosecutor’s Office to establish who and when wounded the police officer, why the other two police officers did not intervene either to immobilise Mugurel Soare (if he had a knife), or to stop their colleague to use his weapon and why the two eye witnesses were kept for a whole night in the police station (around ten hours), with no water and in an insufferable tension due to the threats made by the investigators.
In the evening of October 12, 2000, Teodor-Cicerone Nărtea was beaten by two police officers in plain clothes, and then he was handcuffed and was taken to the 10th police station. Both on the way and in the police station, the police officers continued to hit him in order to make him recognise the theft of 15 audiotapes and a screwdriver from a car, which Nărtea was denying. Placed in the lockup, Nărtea felt so bad that he was taken to the polyclinic of the Ministry of Interior where, according to him, the following were ascertained and recorded in a register: the fracture of a rib, the fissure of another, open cut lesion and hematoma on the left cheek, hematoma on the right cheek affecting the nasal septum.
Teodor-Cicerone Nărtea is currently in the Jilava Penitentiary. His medical record, with which he had been transferred from the police, has only the entry “fissure of 9th right rib”. None of the other traumas suffered following the beating is mentioned in the record. There is however a witness who was in the night of October 12-13 in the lockup, in the room where Nărtea had been brought, who fully confirmed his declaration.
Teodor-Cicerone Nărtea also stated that, besides the inhuman treatment applied to him, the police officers from the 10th police station repeatedly threatened him that they “will plug him in”, that is, they will apply electric shocks on him. He declared that he had no lawyer either when the police custody order was issued or in the Prosecutor’s Office, when the pre-trial detention warrant was issued.
APADOR-CH is persuaded that the absence of a lawyer, be it an ex officio one, is due to the fact that nobody from outside the system (unfortunately, including those prosecutors issuing pre-trial detention warrants although they see that the suspects were beaten or tortured for incriminating themselves) had to see Nărtea’s condition.
Both the victim and APADOR-CH notified the Military Prosecutor’s Office on the inhuman treatment applied to Nărtea by the police officers from the 10th police station.
In the night of January 25-26, 2000, Silviu Roşioru, aged 33, was savagely beaten by 6-7 police officers from the Buzău rapid intervention unit in a bar in that city. He was taken to the police station where a fine ticket was written (for Lei 200,000) under Law 61/91 for “uttering insults to the bar staff” and the refusal to “disclose data for establishing his identity”. Roşioru appealed the fine in court.
About two hours later, Roşioru was taken out of the police station and abandoned in the street, although it was obvious that he was not able to walk by himself due to the traumas suffered. Finally, he took a taxi to the hospital where he was admitted with the following diagnosis: “trauma of the thorax and abdomen, large bruises on the left buttock and thigh, cranial and facial trauma, concussions on both hands”.
The publicity of this case in the mass media (including footage and colour photos of the multiple traumas suffered) made the General Police Inspectorate to order the transfer of the police officers involved in other positions, far from the “public eye”. However, the former head of the rapid intervention unit (Major Tudorel Mircea) was discretely promoted as deputy head of the office for fight against the economic crime. Not only that by the end of the year 2000 the Military Prosecutor’s Office has not adopted any solution in the case of Roşioru, but he was also threatened to be put in jail by the recently promoted major unless he gives up to the legal procedures against the respective police officers.
Constantin Vrabie is in a similar situation as Silviu Roşioru, who was subject to a similarly brutal treatment by the same rapid intervention unit of Buzău, in December 1999. His case has not had a solution yet from the Military Prosecutor’s Office.
In the evening of December 4, 2000, Dumitru Matei was shot in the head by the gendarmes surveying the area of the “Arpechim” refinery in Piteşti. (The gendarmes are subordinated to the Ministry of Interior and, with regard to the use of fire weapons, they follow the same rules as the police officers). Dumitru Matei sustained that he had absolutely no connection with the gas thieves – allegedly – discovered by the gendarmes, that, as it was dark, he did not see anyone (neither the thieves nor the gendarmes) and that he did not hear any warning or warning gunshot. He became unconscious and he woke up only at the hospital in Piteşti, wherefrom he was immediately taken to the Emergency Room in Bucharest, with the following diagnosis: “shot in the left mandible, with retained bullet”. He was operated, then he checked out from the hospital in mid December, yet, only a day after that, the family hospitalised him to the psychiatry unit of the Argeş County Hospital since Matei was having insufferable headaches.
Both Dumitru Matei’s mother, who lives in a village in the Argeş county and his wife-to-be were constantly harassed by police officers from Piteşti, who tried to find evidence incriminating him for the gas theft in order to justify him being shot by their colleague gendarmes.
The Military Prosecutor’s Office is still investigating the incident.
5. Old cases still unsolved
With very few exceptions, the decisions given by the Military Prosecutor’s Office in the abuse cases – some of them very serious – notified by APADOR-CH were the no indictment against the defendant police officers. This is due, on one hand, to the fact that a military prosecutor investigates another military (the police officer), thus the idea of impartiality is questionable, and, on the other hand, to the difficulty of the victims to produce undoubted evidence of the abuse (witnesses, medical certificates etc.). (In practice, the victim is the one who has to produce the evidence).
Beaten by the police officers from the commune in September 1998 in order to admit that the he had been an accomplice to theft of a bicycle, Nicolae Cazacu submitted to the military prosecutor witnesses, colour photograph (clearly showing police stick marks on his back and hands) and medical certificates. However, in the year 2000, the Military Prosecutor’s Office decided only to apply administrative fines against the police officers from the commune (since “the perpetrated deed does not have concretely the degree of social danger of a crime”), a solution appealed both by the victim and APADOR-CH. Moreover, a short time after the incident, the head of the Argeş County Police Inspectorate assured the representatives of the Association that the police officers involved would be moved to another police precinct, until the investigation is solved, which has not happened. Although APADOR-CH repeatedly requested that in such situations the defendant police officers to be temporarily transferred in order to prevent the possibility that they put pressure on the victims, unfortunately this measure has not been applied but in very few cases.
Beaten twice by police officers from Hunedoara (in January and March 1998), then held with chains linked to his hands and feet in the Deva lockup (82 days, according to the victim), Vili Rupa was convicted by the court to a punishment approximately equal to the period spent in the lockup for the theft of 2.4 kilos of mercury. Vili Rupa submitted two complaints to the Military Prosecutor’s Office on the treatment applied to him by the police officers from Hunedoara (beating) and Deva (chaining). In both cases, the Military Prosecutor’s Office made a no indictment decision, a solution also maintained after the appeal. In this situation, Vili Rupa addressed the European Court of Strasbourg. Threats followed – including in the presence of a witness – from the police officers from Hunedoara (where the victim lives). In late December 2000, APADOR-CH found out that Vili Rupa was arrested again, this time for verbal outrage. The Association tried to contact him over the phone in the Bârcea Penitentiary (Deva) yet the penitentiary governor refused to call him under the pretext that the regulation allows him to make a phone call, provided that he had a phone card, but not to receive a phone call.
APADOR-CH has some doubts regarding the verbal outrage accusation against the police officers from Hunedoara and considers that it may be related to the complaint made in Strasbourg.
Shot in the leg by a police officer from the 9th police station in May 1997, since it was suspected of the theft of ... 6 bottles of mineral water, Nicu Olteanu was sued for verbal outrage, since he would have threatened the life of the police officer (the opinion of APADOR-CH is that this was an invented pretext for justifying the use of the fire weapon). After the rejection of the verbal outrage accusation by the first instance and the court of appeal, maintaining however the “theft” – consequently, Nicu Olteanu was convicted to the very period spent already in custody – the Supreme Court of Justice resumed in the year 2000 the verbal outrage accusation besides the theft and convicted him to 5 and a half years in prison. Nicu Olteanu was pardoned by the President of Romania.
Since, in relation with the use of fire weapon, the Military Prosecutor’s Office made the no indictment decision against the police officer, a solution also maintained following the appeal, Nicu Olteanu submitted a complaint to the European Court of Strasbourg.
d) Aurel Uluiţeanu (Bărcăneşti, Ialomiţa county)
On September 24, 1999, Aurel Uluiţeanu was taken by the police officers to the court in Urziceni, where he would have been prosecuted for disturbance of public order (Law 61/91). Uluiţeanu escaped from the courthouse, went back home and hid over night in the garden. The next day he was found by the police officers and taken to the police precinct in the commune of Bărcăneşti, where there were also some inhabitants participating – allegedly – to the birthday party of one of the police officers. The same day, the Uluiţeanu family was informed that Aurel died in the police precinct. According to the information received, he died following the violence of the police officers and at least one of the civilians. One police officer and one of the civilians, directly involved, were placed in police custody. Until the end of the year 2000, APADOR-CH has not received any notification from the Military Prosecutor’s Office regarding the solution given in this extremely serious case.
The four cases above confirm the opinion of APADOR-CH regarding:
Besides the individual liability of the police officer, the demilitarisation of the police would imply the investigation of the cases where police officers are involved by a civilian prosecutor (or, according to the draft amendment of the Penal Procedure Code, by a judge with penal investigation tasks) as well as the possibility of the plaintiff to appeal the solution given by the prosecutor/judge. In the case of prosecuting the police officer accused of abuse, the court will be civilian rather than military as it is now.
No penitentiary legislation has been passed in the year 2000, which means that Law 23/1969 on the regime of the carry out of punishments with deprivation of liberty is still in force. The steps forward made this year were made possible especially due to the concern of the General Directorate of Penitentiaries and the management of most penitentiaries to improve the situation in the system, even in the context of a inadequate and faulty legislation. (However, there are still situations when the obviously passé legislation, passed prior to 1990, and even some subsequent internal regulation norms, which have become obsolete in the meantime, are invoked as an insurmountable fatality for the steps that need to be taken for modernising the penitentiary system). In addition to that, nothing has been done for the demilitarisation of the penitentiary system. The draft bill on the statute of penitentiary personnel, drafted by the management of the General Directorate of Penitentiaries ever since 1997, has not been discussed and approved by the Parliament this year either. As shown in Chapter I (“Human Rights Legislation”), in August 2000 the Government adopted the Ordinance on the organisation and functioning of the services for the social integration of criminals and for the supervision of the carry out of the sanctions without deprivation of liberty.
During the year 2000, the representatives of APADOR-CH visited the following penitentiaries, penitentiary hospitals and re-education centres for minors: Penitentiary and Penitentiary Hospital of Bucharest-Jilava (March 10), Penitentiaries of Târgu-Jiu (March 16), Pelendava (March 17), the Tichileşti Re-education Centre for Minors (April 5), Penitentiaries Brăila (April 6), Galaţi (April 7), Slobozia (May 18), Mărgineni (May 19), Botoşani (June 6), Vaslui (June 8), Miercurea Ciuc (June 9), Gherla (July 19), Aiud (July 20), Rahova (September 28) and the Re-education Centre for Minors Găeşti (November 10). The collaboration of the Association with the management of the General Directorate of Penitentiaries has been constantly good. The reports prepared and transmitted to the General Directorate of Penitentiaries following the visits performed by the Association were reviewed and replies were received for most of the problems notified (except for those in Tichileşti, Brăila and Galaţi as well as the cases regarding the detainees Marin Săbăreanu and Florin Rudaru from the Jilava Penitentiary). The General Directorate of Penitentiaries promptly replied to the notifications and requests addressed by certain detainees to APADOR-CH, which were relevant to the legal competencies of the Directorate.
The main aspects resulting from the visits to penitentiaries
Overcrowding
Unlike the previous years, although still the main problem faced by the penitentiaries, the overcrowding had a slightly downward trend. This is explained, on one hand, by the entering into force of the legislation on replacing the terms in prison for petty offences by community service and, on the other hand, the fact that there is a perceptible trend of judges and prosecutors to use more vigilantly the measure of placement under police custody.
The most overcrowded penitentiaries visited this year by the representatives of APADOR-CH included those of Bucharest-Jilava (designed capacity of 1,530, with 6 cubic metres per detainee, 2,555 beds, 3,373 detainees), Târgu-Jiu (designed capacity of 500, 875 beds and 1,230 detainees), Galaţi (1,384 detainees in 700 beds).
Since by the end of the 1996-2000 administration the expected measures in the reform of the penal system have not been taken, APADOR-CH must reiterate the fact that Romanian law is still too permissive in respect of the placement in pre-trial detention, in the sense that such measure may be taken in a number of cases surpassing the provisions of the European Convention for the Protection of Human Rights. In the Romanian penal system, the measure of placing on remand may be extended until half the maximum punishment for the crime for which the defendant is arrested.
The relative diminishing of the overcrowding is to a certain extent the consequence of the concern of the General Directorate of Penitentiaries and the management of certain penitentiaries to identify and arrange new accommodation facilities or to use more effectively the already existing ones. This is the case of the Gherla Penitentiary, which established a new section in Cluj-Napoca (accommodating 330 detainees, in a closed and semi-open regime), the Mărgineni Penitentiary, which took over an old military barrack, in Movila Vulpii, which was to be arranged as a semi-open section with around 150 detainees, and the Târgu-Jiu Penitentiary, which took over a former ammunition storage facility in Pojogeni, which was to be arranged as a section for around 200 detainees).
Since it is very likely that the current budgetary scarcity will continue to affect in the future the situation of the penitentiary system, APADOR-CH considers that the General Directorate of Penitentiaries and the Ministry of Justice should make the necessary steps to take over from the patrimony of the Ministry of Defence further spare facilities following the reorganisation of military units.
The scarcity of funds continues to be one of the serious problems faced by the penitentiaries. The overcrowding is still the most direct consequence of the insufficient funds. The budget resources were far from covering the needs of the 16 penitentiaries and re-education centres visited in the year 2000 by the representatives of APADOR-CH. However, with funds from the State Budget or sources identified by the penitentiaries, they have managed to renew and upgrade certain accommodation facilities, areas for preparing and serving food, areas for walking or sports in the Gherla, Botoşani, Aiud, Slobozia, Târgu-Jiu, and Bucharest-Rahova penitentiaries. The budget contributions were supplemented by the efforts of the management of most of the penitentiaries to find work for as many detainees as possible and to make thus additional incomes.
Feeding the detainees
In most of the penitentiaries visited by the Association representatives, the detainees complained that the food was inadequate both quantitatively and qualitatively. Most of the criticisms were related to the quasi-total lack of meat from the food. Of course, the first problem is represented by the legal norms on food (on which the detainees do not receive, most of the times, the necessary clarifications) The second explanation of the dissatisfaction of detainees is related to their overall suspicion that not all the food products that should be used for the preparation of their food are found in the portions distributed to them. The suspicion of the detainees is not unfounded, especially in the rather numerous cases where, although the accounting records show dishes cooked with meat, this product is practically non-existent in the cauldrons. In the visits made by the APADOR-CH representatives, they had more than once serious doubts regarding the use of the entire quantity of meat from the accounting records for the food of detainees (the Slobozia and Mărgineni penitentiaries are only two examples from many other cases). The above mentioned facts and the situation encountered during the visit to the kitchen of the Galaţi Penitentiary, when an officer was discovered to have stolen from the food of the detainees around 8 kilos of meat out of the total 28.5 kilos allocated for that day, indicates the fact that the General Directorate of Penitentiaries and the management of the penitentiaries should take the management of the food for detainees very seriously. (The General Directorate of Penitentiaries has not yet replied to the report prepared following the visit to the Galaţi Penitentiary).
During the years when they have visited penitentiaries, the representatives of APADOR-CH noticed that where there is a way by which the detainees can supervise – effectively and not just in a formal and protocolar manner – the management and preparation of their food items, the food has a better quality and especially the complaints of the detainees – persuaded that “this is what we deserve, this is what we eat” – are significantly fewer. In almost all the penitentiaries visited in the year 2000 where such a mechanism was lacking, the commanding officers and those responsible with the logistics considered the suggestions of the Association’s representatives as interesting and concluded that they are worth it to be implemented.
Medical assistance
Taking into consideration the scarcity of funds and the insufficient staff, APADOR-CH considers that efforts are made in general to ensure an adequate medical assistance.
The quality of the health care is mostly related to the insufficient number of medial staff and especially doctors. The low number of doctors in the organisation charts and the absence of the existing ones (specialisation, leaves etc.) led to a wide gap between what should be done and what can actually be done. Another cause, at least as important as the first, is that the doctors are required to provide health care not only to the detainees, as it should be natural, but also to the staff (and sometimes even more than that). During the visit to the Târgu-Jiu Penitentiary, for instance, the representatives of APADOR-CH noticed that two general practitioners had to provide the health care for over 1,200 detainees as well as the staff of the County Court (following this visit, the General Directorate of Penitentiaries intervened and “the general practitioners were relieved from other tasks in order to provide the permanent health care to the detainees”). A relatively similar situation was found in the Vaslui Penitentiary, having only one general practitioner (the other position was vacant). The doctor had to deal with over one thousand detainees and almost 200 staff (who, like in many other penitentiaries visited, had two hours reserved every day). In the Miercurea Ciuc Penitentiary there was only one general practitioner (the second position had been vacant for about two and a half years), dealing more with the staff (except for the situations when he was called by the nurses for more complicated cases). The average number of consultations (and sometimes treatments, too) that one doctor has to ensure in on workday (seven hours) is around 50-60, and in some cases it exceeds 100, which, obviously, affects the quality of the health care.
APADOR-CH has constantly requested the management of the General Directorate of Penitentiaries that, under its very own regulations, the doctors should deal exclusively with the detainees and with the staff only in emergency situations and the periodical medical check-ups. In 2000 there have been even more complaints regarding the lack of diligence shown by some doctors in respect of the problems of detainees (and even the violent behaviour of them, as it is the case of Dr. Maier from the Botoşani Penitentiary).
Handcuffing the detainees interned in civilian hospitals is another problem raised by the representatives of APADOR-CH. In the opinion of the Association, handcuffing ill detainees is, on one hand, an excessive measure as long as they are permanently guarded by two supervisors and, on the other hand, this is likely to make them subject to a useless public contempt that can be avoided. The management of the General Directorate of Penitentiaries and the penitentiaries were reminded the report for 1991 and 1992 of the Committee for the Prevention of Torture (CPT) mentioning that the detainees in such situations should not be handcuffed and that other ways should be found to ensure the security. APADOR-CH suggested the arrangement of special rooms with window bars. In fact, the experience of some penitentiaries (Miercurea Ciuc and Aiud) showed that solutions can be identified if sought with sufficient diligence (arranging special rooms in the Harghita County Hospital and the Aiud Hospital respectively). Anyway, until a solution will be found for this situation according to the civilised world’s standards, APADOR-CH considers that the penitentiary doctor should be consulted in each and every case regarding the adequacy of handcuffing.
Although the hygienic and sanitary conditions tend to improve, they are still precarious in most of the detention facilities. There are still lice in penitentiaries (Vaslui, Botoşani, Bucharest-Jilava, Miercurea Ciuc, and Târgu-Jiu penitentiaries), many mattresses and bed sheets are used and dirty. In the Bucharest-Jilava Penitentiary the drinking water has been for many years a very serious problem, since the detainees have often to filter the water through a handkerchief before drinking it in order to eliminate the impurity contained in the water (sand, larvae etc). There are cases when the detainees complain that they do not receive (or they receive insufficient) soap, tooth paste, toilet paper, and detergent. Another problem repeatedly advocated by the representatives of APADOR-CH is that in certain detention rooms the lavatories are not separated by anything from the rest of the room or they are separated by curtains or walls not going all the way to the ceiling, where the detainees are thus subject to a degrading treatment (Aiud, Mărgineni, and Gherla penitentiaries). Unfortunately, such an unacceptable situation still exists in the modernised facilities or those under modernisation destined for isolation punishments, based on the need of permanent surveillance of the detainees locked in such areas, who could allegedly try to escape or commit suicide. Most of the lavatories are dank, the plumbing is faulty and the water leaks.
An assessment performed by the representatives of APADOR-CH together with doctors from the Bucharest-Jilava Penitentiary Hospital indicates that about half of the detainees suffering from tuberculosis caught this disease after they had been placed in the penitentiary system. In the opinion of the Association, this is relevant for the accommodation, feeding, hygienic and sanitary conditions of the penitentiaries in Romania.
The representatives of APADOR-CH noticed the concern of the medical staff of the Bucharest-Rahova Penitentiary to develop a prophylactic programme at the level of the penitentiary system. The Association also welcomed the intent of the chief doctor to propose that the draft programme should even include the distribution of condoms to detainees.
In the Bucharest-Jilava Penitentiary Hospital, the HIV infected detainees and those suffering from AIDS complained that they are not allowed to smoke. The management – and unfortunately also of the General Directorate of Penitentiaries – invoked a certain law from 1978 forbidding smoking in all hospitals (civilian and military). Only that when the respective detainees mentioned their wish and the representatives of APADOR-CH supported them, the situation of three persons under the jurisdiction of the Romanian penitentiary system, that is, suffering from an incurable disease and imprisoned for carrying out a punishment, was radically different from that of “ordinary” sick people. The logic of this opinion also took into account that a person suffering from AIDS which is free and in a civilian hospital can smoke whenever he/she wants in the specially arranged smoking areas.
Daily exercise
APADOR-CH considers that in the overcrowding and stress conditions from the Romanian penitentiaries, the daily exercise is very important for the physical and mental health of detainees. It can also partly compensate the deficiencies of sports and recreation. There is a rule that can be easily noticed: where the detainees spend more time outdoors and also have the possibility to practice various sports, their dissatisfaction and the tension between them and the staff are significantly diminished. The insufficient time spent by detainees outdoors is explained either by the insufficient space for walking, or the fact that the existing ones are not used effectively. The first category includes cases such as the Miercurea Ciuc Penitentiary, where there is only one walking yard (circa 15 m by 30 m), resulting in the fact that, due to the existing number of detainees, they go out only once every week, every two or even three weeks. APADOR-CH requested the General Directorate of Penitentiaries and the management of the penitentiary to find a solution as soon as possible. In the Gherla Penitentiary, although there are six yards of 100 square metres each, the detainees are taken out for exercise much below the regulated time, which could be ensured if used appropriately. Two different examples could be those from the Vaslui Penitentiary and the Mărgineni Penitentiary (in the latter, the detainees are taken out for air between two and three hours daily, including Saturdays and Sundays and those “unable to work”, four hours a day – two in the morning and two in the evening).
2. Disciplinary punishments
The Order of the Minister of Justice 2963/C of December 15, 1999, laid down the methodologies of disciplinary procedures against the detainees violating the internal order rules. This norm represented a step forward especially since it established the binding procedure of “incident report” for all the penitentiaries (until then, some of the penitentiaries were using the older and inadequate rules of “punishment report” and others had introduced, often with various interpretations, the new procedure of “incident report”).
According to the provisions of the Order, the main stages of the disciplinary procedures are: the person ascertaining the events mentions them in the “incident report” (the “ascertaining agent” does not propose or suggest the disciplinary measure); the officer with disciplinary responsibilities performs a research and submits a report to the disciplinary commission; the disciplinary commission reviews the case and establishes whether the respective detainee is guilty or not guilty and the required disciplinary measure; the possible appeal made by the punished detainee is reviewed by the prison governor or the delegated prosecutor, who makes a decision on this appeal.
On the occasion of the visits, the representatives of the Association noticed that the provisions of the Order are applied in an adequate and unitary manner. One exception is the fact that the disciplinary commissions do not hear all the detainees to be applied a disciplinary measure. A faulty wording of the norm resulted in the fact that in some penitentiaries were heard only the detainees to be placed in isolation, to be subject to the restrictive regime or to be transferred to a maximum security penitentiary, while in others (Aiud, Târgu-Jiu, Brăila) all the detainees are heard, irrespective to the punishment to be carried out. APADOR-CH considered, together with the management of the latter penitentiaries, that it is natural that the commission hears all the detainees. This solution is required for at least two reasons. First, hearing a detainee facilitates a better understanding of the commission of what happened and, consequently, a more solid decision (being in most of the cases a way of “clarifying the incident”, as it is understood by the very wording of the norm). Second, one should take into consideration that the disciplinary punishments have very serious consequences on the legal status of detainees, since they matter to a significant extent in the decisions made by the courts when judging the applications for release on parole. The replies provided by the General Directorate of Penitentiaries with regard to this aspect, which was repeatedly raised in the Association’s reports, followed the same line of the usefulness and mandatory character of hearing all the detainees who are to carry out disciplinary punishments. APADOR-CH considers that the General Directorate of Penitentiaries should order the penitentiaries to apply the disciplinary procedures in an unitary manner in this respect.
APADOR-CH considers that in many of the visited penitentiaries the “disrespectful behaviour” of detainees towards the staff is sanctioned much to easily and to severely (Târgu-Jiu, Bucharest-Jilava etc). When making such a remark, the Association only requires more caution and understanding in treating such cases rather than encouraging the unlawful or uncivilised behaviour. APADOR-CH considers that it is absolutely necessary that such behaviours should be judged in their context, not at all simple, related most often to the intellectual and cultural level of the detainees and the very difficult conditions in which they carry out their punishments, which are most of the times violating both the standards of the civilised world and even the norms laid down in the legislation and regulations of the Romanian penitentiary system. The rather adequate way in which the management of other penitentiaries treat this aspect – Bucharest-Rahova (very rare cases when such behaviour is sanctioned), Slobozia and Brăila (rare cases and minor sanction) – should be regarded as an experience that should be encouraged.
The situation of the detainees sanctioned to isolation and restrictive regime is one of the most serious problems of the penitentiary system in Romania. Most of the officers share the prejudice – not stated as such to the representatives of APADOR-CH yet easily perceivable – that the detainees in this situation are despicable and deserve the harshest treatment. Such a mentality is inspired to a certain extent by the very internal regulatory norms. Thus, for instance, the detainees under restrictive regime are not allowed to have a TV or radio in the cell, they are entitled to only a quarter of the cigarette ratio of the regular detainees, have no right to send or receive mail etc. With regard to this last aspect, the Association considers that the detainees should be allowed at least to inform their families by a letter that they are under restrictive regime and that during this period they would not be allowed to have visitors, send and receive mail etc. The recent regulations, which have started to be applied, stipulate that the beds in the isolation cells should be made of stone and during the day (between 5:00 a.m. and 10:00 p.m.) the detainees are taken the mattress and bed sheets away, which means that for 18 hours they can only stand or sit directly on stone. APADOR-CH considers this is an inhuman and degrading treatment endangering the health of detainees. The most illustrative examples for the treatment applied to this category of detainees were found in the Târgu-Jiu and Galaţi penitentiaries. The permanent persecution and harassment of detainees by the officers, the deplorable hygienic and sanitary state of the cells (the smallest, darkest and less aerated), quasi-non-existent medical assistance, around one hour of outdoor exercise every week represent an inhuman treatment in the most literal meaning of the word. (In the reply to the report of APADOR-CH on the Târgu-Jiu Penitentiary, the General Directorate of Penitentiaries mentioned that the deficiencies notified in respect of the accommodation conditions had been dealt with).
In addition to that, a special situation is of the detainees categorised “operatively inapt” (“dangerous”). First, this categorising is made in some penitentiaries based on more than questionable criteria (with very serious consequences on the situation of the detainees – an especially restrictive regime, problems with the judgement of the applications for release on parole etc). The representatives of APADOR-CH found cases when detainees were included in the category of “dangerous” detainees based on a simple note on the cover of their personal file, written under the anonymity of an illegible signature, without any indication of the position of the person, undated, with no stamp etc. (and even without informing the detainees about the reasons for the measure taken against them). Some of the illustrative cases are those of the following detainees: Gabriel Chitic (Miercurea Ciuc), Iosif Lăcătuş (Aiud), Ioan Steclariu (Bucharest-Rahova). In most of the cases the management of the respective penitentiaries explained that some of the respective notes were made in the police lockups and others in the penitentiaries, at the suggestion of the officers from the Information, Protection and Anti-Corruption Service (SIPA). In the latter case, the explanation was that the SIPA officers do not want to argument the scarce data invoking the “rules of the intelligence work”. The representatives of APADOR-CH were constantly against such a practice. Nobody, including the police officers, the SIPA officers or anyone else, has the right to aggravate to such an extent the situation of the detainees using the anonymity or a secrecy that has nothing in common with the rule of law. Including a detainee in the category of dangerous detainees should be based on precise criteria, excluding the arbitrariness and the persons concerned should be informed of the reasons for taking such measure against them (and should be provided with effective means of appeal against the decisions they deem invalid). The “precise criteria” should not be like those encountered in the Târgu-Jiu Penitentiary, where two detainees were included in the category of “dangerous” detainees because one of them escaped from prison 32 years before and the other one deserted from the army 16 years before.
Another problem related to the category of “dangerous” detainees (and the detainees with life sentences) is the more than exaggerated security measures that need to be taken for entering their cells. The representatives of the Association witnessed situations when for entering such cells (sometimes with only one detainee) both impressive and useless forces were deployed, that is , 6, 8 or even 15 armed officers mobilised on site.
In the Bucharest-Rahova Penitentiary one of the detainees included in the “dangerous” detainees category, rightfully in the opinion of the representatives of APADOR-CH, convict Naşcu, who had a life sentence, and who in the summer of 2000 killed in the Rahova penitentiary the second detainee since his imprisonment. Naşcu was kept alone in his cell, immobilised with handcuffs and chains. The objection of the representatives of the Association was related to the use of chains for immobilising the detainee since the use of chains had been completely banned in the Romanian penitentiaries seven years ago. The explanations given by the commanding officers that this measure aimed at preventing an attack against the staff were unconvincing since, being warned of the detainee’s hazardousness, the staff dealing with him has sufficient means to defeat a potential aggression, especially since he is handcuffed.
3. The right to correspondence
In principle, the written correspondence is unlimited and free from any form of censorship. There are however exceptions, such as the case of the convict Silvestru Cotlet from the Târgu Ocna Penitentiary, whose correspondence was read by the authorities of the penitentiary. This case is in an advanced stage of the procedure on the docket of the European Court. This year there have been still some problems relating to the telephone conversations of the detainees from the public phones from penitentiaries. Under the Order of the Minister of Justice 2036/1997, the right of detainees to telephone calls is granted based on the regulation established by the penitentiary governor. Although APADOR-CH has noticed lately a more adequate approach of this issue, there are still some problems deterring the detainees to benefit to the adequate/possible extent from the right to telephone calls. First, it should be mentioned that in some penitentiaries there is still the mentality that such right would be a reward (or an “incentive”, according to a letter from the General Directorate of Penitentiaries addressed to APADOR-CH). Starting from such an assumption, the right to making phone calls is limited either through conditions such as that the detainees must not have suffered disciplinary punishments in order to have access to the telephone (the case of the Gherla Penitentiary), or through a discouraging bureaucracy (the detainee must fill in an application, which has a lengthy approval procedure), or rules affecting the secrecy of correspondence (the detainee must specify in the application who he/she wants to call and what he/she wants to talk about, the supervisor accompanying the detainee hears the conversation etc). The Association reiterates the request repeatedly transmitted to the General Directorate of Penitentiaries that the telephone should be considered a similar correspondence as the written mail (as it is understood by art. 28 of the Romanian Constitution) and should follow the same regime, that is, it should be not subject to arbitrary limitations and its secrecy should be inviolable. The only acceptable limitation of this right could relate to the existing technical possibilities in each penitentiary.
4. Complaints regarding statutory offences committed by certain officers
During the visits made by the representatives of APADOR-CH in the year 2000, a relatively high number of detainees complained about the (violent most often) behaviour violating the regulations of some of the officers. Complaints about physical harassment of detainees by officers were notified in the Vaslui, Botoşani, Gherla, Bucharest-Jilava, Miercurea Ciuc, and Brăila penitentiaries (during the incidents on the night of December 28-29, 1999, when the beginning of a mutiny was stopped) as well as the Găeşti Re-education Centre for Minors. Some of the detainees complained about what happened to the Military Prosecutor’s Office. In July, three officers were discharged from the Gherla Penitentiary following the “inadequate behaviour” in the relationships with the detainees (APADOR-CH welcomed the measure taken against the three officers and considered that it was “likely to induce positive changes in the mentality of the officers”). Since there is the impression that such manifestations were more numerous in the year 2000 than in the previous years, the Association considers that the General Directorate of Penitentiaries should act as firmly as possible against them.
5. Cultural and educational activities
APADOR-CH believes that most of the cultural and educational activities are still formal and ineffective. Most of the detainees with whom the representatives of the Association discussed said that no educator had ever talked to them. Although there are rigorous plans and thick files with the respective units, the discussions with the detainees show that extremely little has been done out of what it has been put on paper. The insufficient number of specialised staff is of course an explanation to be reckoned with. However, this is only one of the explanations, besides that the practical activities are significantly more welcomed and more effective than the theories in the plans and files of the department. The representatives of APADOR-CH had the opportunity to acknowledge that the cases where there was a wish to do useful things, beneficial for the detainees, have been successful. In Vaslui, for instance, in only a few months the psychologist of the penitentiary had managed to perform 155 full psychological exams (since each exam supposes 7-9 sessions with each detainee). Although timidly, penitentiaries such as Gherla, Mărgineni, Botoşani, Târgu-Jiu, and Miercurea Ciuc organised a few cultural, sportive and recreational activities (even outside the penitentiaries) together with local community institutions, very important for the mood of detainees and for the perspective of their social reinsertion. In Gherla, Aiud and Miercurea Ciuc they organised social reintegration experiments for detainees (“probation”) together with non-governmental organisations (“Pro Democraţia” association and “Prisons Fellowship”). Together with the Romanian Group for Human Right Defence (GRADO) two prisons continued the theatre therapy programmes (in Botoşani and Bucharest-Rahova). APADOR-CH believes that the General Directorate of Penitentiaries and the penitentiaries could benefit more effectively from the capability and willingness of the non-governmental organisations.
6. About the situation of minors and youth
APADOR-CH granted a constant attention to the conditions of detention, education and training of the minors and young detainees from the penitentiaries or those placed in the re-education centres. The penitentiaries generally assure relatively better conditions to the minors in comparison to the adults. However, a higher degree of consideration should be given to the re/education of minors and youth and preparing them for the reintegration in the society. It should be welcomed and encouraged the concern shown by the management of some penitentiaries to organise actions where the minors make contact with the local community and especially with the young people of their age. Such activities should become a practical priority rather than the theoretical concern of the cultural and educational departments. Until the moment when the ex officio lawyers will give the minors the proper attention, the staff with legal training from the penitentiary system (especially from the cultural and educational department) could advise them at least in the merits of their files. APADOR-CH considers that the General Directorate of Penitentiaries should as soon as possible allow the minors and youth who have the possibility to get civilian clothes to wear them all day long, including – or especially – during the visits. It is also necessary to give up to the practice of appointing adult detainees as heads of cells with minors.
During the visits to the Tichileşti and Găeşti re-education centres APADOR-CH noticed the concern of the officers and teachers to ensure adequate activities with the minors and youth. The Association would like to mention the preoccupation to extend the time spent by inmates with open air activities, encouraging the contacts with the outside, organising camps and other actions outside the centres, renouncing to the schedule of visits. However, it should also be mentioned that the hygienic and sanitary conditions are less than inadequate in Găeşti and improvable in Tichileşti. In Găeşti, a relatively high number of minors complained of the non-statutory behaviour of some of the officers and instructors and in both centres the representatives of APADOR-CH ascertained that there are cases where the children are punished much too easily and the punishments are too severe (isolation and handcuffing) for minor deeds (such as unintentionally breaking a blackboard). APADOR-CH requested and continues to request the General Directorate of Penitentiaries to take the necessary steps to reconsider the list of trades so that the qualification of minor to reflect the current demand of the Romanian labour market and the preferences and skills of the youth. The application of Decree 545/1972 conditioning the release of minors upon the age of 18 of passing the qualification exams should be discarded.
7. Other aspects
APADOR-CH requested and continues to request the General Directorate of Penitentiaries :