Is pre-trial detention used as last resort measure in Romania?

                                                                                                                                                                                             This publication has been produced with the financial support of the Criminal Justice Programme of the European Commission. The contents of this publication are the sole responsibility of the Association for the Defence of Human Rights in Romania- the Helsinki Committee (APADOR-CH) and can in no way be taken to reflect the views of the European Commission. 

Pre-trial detention in Romania is applied significantly more often than other alternative preventive measures. Recent changes to the law have reduced the use of pre-trial detention, but there is little research analysing the nature of pre-trial detention decision-making and whether pre-trial detention is applied lawfully and the defence’s rights are safeguarded throughout the procedure. These aspects are assessed in this report.

As part of an EU-funded project, a common research methodology was applied in 10 EU Member States, with research data gathered through the monitoring of pre-trial detention hearings, analysing case files, as well as surveying defence lawyers and interviewing judges and prosecutors. In the course of the Romanian research, 19 hearings were observed, 67 case-files analysed, 23 defence lawyers surveyed, and 6 judges and 2 prosecutors interviewed.

APADOR-CH has identified a serious of problematic issues that require the attention of various stakeholders at the national level.

1. Decision-making procedure: Despite extensive defence rights provided by law, in reality the practical enjoyment of these rights remains limited. Lawyers are often only notified shortly before hearings, and have only 30 minutes to study the case file. Even judges will sometimes have insufficient time to read the file, and therefore rely too strongly on the prosecutor’s arguments. Evidence in favour of detention is rarely provided by the prosecution, and lawyers are not able to provide evidence to counter the arguments for detention.
2. The substance of decisions: Many national courts fail to provide substantial reasoning for pre-trial detention orders. The research demonstrated that the most common reason given for ordering detention is that the accused presents a potential danger to the public, followed by the risk of reoffending and flight risk. Yet, the researchers discovered that in fact the severity of the offence is usually the real reason for ordering pre-trial detention, albeit in violation of ECtHR-standards. 70% of lawyers surveyed have encountered pre-trial detention being ordered on unlawful grounds. The researchers observed several cases in which the pre-trial detention order was poorly motivated and a less restrictive alternative measure would arguably have been sufficient.
3. Use of alternatives to detention: Despite different alternatives to detention being available by law, including house arrest, judicial supervision and bail, they are rarely used. Judges are reluctant to consider non-custodial alternatives to detention as they consider them to be less effective. In the vast majority of cases reviewed during the research, alternatives to pre-trial detention were not even considered.
4. 4.     Review of pre-trial detention: Although in all cases observed and case files reviewed, the pre-trial detention decision was reviewed in compliance with the law, the initial decision to detain was generally upheld, often based on the same reasons as in the previous order, and alternatives were never ordered. In the cases observed and reviewed, no new evidence was provided at the review stage.
5. Case outcomes: None of the defendants in the case files reviewed were acquitted; in fact the vast majority was convicted to a custodial sentence longer than the time spent in detention pre-trial. However, a chosen lawyer might enhance the likelihood of a lower sentence as these have less clients and more time to prepare each case. 68% of all defendants in the case files reviewed pleaded guilty. 

Given that the ECtHR-standards are often not upheld in practice during the judicial decision-making process on pre-trial detention, it is recommended that a number of priorities need to be identified in order to tackle these problems. The main recommendations are the following:

• Urgent adoption of the Interpretation and Translation Directive (2010/64/EU) which is crucial in ensuring the right to trial and the right to defence guaranteed by the ECHR to defendants, who do not speak or understand the language of the court. Proactive measures also need to be taken by the state to oversee the proper and effective implementation of the Right to Information Directive (2012/13/EU), and the Access to a Lawyer Directive (2013/48/EU). In particular the implementation of the Right to Information Directive which provides access to case-file is essential to effectively challenge the lawfulness of detention.
• An increase in the fee of legal aid lawyers and an increase in the number of judges who deal with pre-trial detention cases, to ensure both can spend more time on each case.
• Trainings regarding the national law and the standards of the ECtHR concerning pre-trial detention should be provided to all lawyers involved in the procedure of pre-trial detention, especially to the ones who are appointed by the state.
• Judges and prosecutors should also be trained in the application of ECHR-standards in the context of pre-trial detention. Despite judgments of the ECtHR against Romania for breaching Article 5 ECHR, the situation has not changed systemically in the areas identified by the ECtHR as problematic. All responsible authorities for the implementation of judgments should present action plans to address the underlying issues.
• The provisions of the new criminal procedure code concerning non-custodial alternatives for detention should be completed by secondary legislation concerning the practical application of preventive measures.
• Judicial supervision should also verify the correct application of these preventive measures.
• Sufficient resources (both human and technical) must be put in place to ensure the effectiveness of non-custodial measures, which would lead to increased judicial confidence.

APADOR-CH is aware of the fact that some recommendations require financial resources and therefore might take time to be addressed. But this report also includes practical steps to be taken to correct some of the gaps identified in the application of the law and practice related to pre-trial detention in Romania. The organisation will continue to work with all parties interested in the promotion of good practices in the field.

For a full list of recommendations see in Section X on page 44 – 46.