UMAN RIGHTS DEVELOPMENTS IN ROMANIA THE ACTIVITIES OF THE ROMANIAN HELSINKI COMMITTEE (APADOR-CH) 1994 REPORT
II. PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
III. THE RELATIONSHIP BETWEEN THE POLICE AND INDIVIDUALS
IV. MINORITIES IN ROMANIA
V. REFUGEES IN ROMANIA
THE HUMAN RIGHTS CENTRE
FOLLOW-UP MONITORING OF THE SITUATION IN TIRASPOL
SEMINARS AND COURSES ORGANIZED BY APADOR-CH/page 83
1994 was an extremely important year for human rights in Romania: the European Convention on the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols were ratified, the right to individual complaint and the jurisdiction of the European Court of Human Rights being consequently accepted. Thus, the mentioned documents and their adjacent instruments have become part of the domestic law, and can be now directly invoked in front of Romanian authorities. This allowed the Romanian Helsinki Committee (for purposes of simplicity, furthermore referred to in this report under its Romanian acronym, APADOR-CH) to invoke Romania’s membership to the Council of Europe and the provisions of the European Convention throughout its activity.
However, despite the mentioned legislative success, despite permanent efforts made towards the promotion of theoretical expertise in the field, as well as persistent attempts to raise awareness of their importance in a European context, the human rights record of Romania continued to be defective. This is due to legislative pressure, serious human rights violations perpetrated by the executive power — primarily, by law enforcement bodies — as well as persistent failures to protect human rights on behalf of the judiciary, which either remained passive or proved to be ineffective in a number of cases.
APADOR-CH action often appeared as a response to these challenges, and took the form of independent fact-finding and investigation missions and publication of the association’s position towards the concerned authorities. At the same time, APADOR-CH made theoretical analyses and proposed its own conceptual framework for issues relating to national minorities, a domain in which such efforts are absolutely necessary for the continuation of the dialogue between various ethnic groups and the majority by means of the political decision-making agencies in Romania. Likewise, an important part of the APADOR-CH activity was the continuing effort to influence legislative decisions so as to promote human rights values.
The whole activity of APADOR-CH, as instantiated in investigations, analyses, round tables, information, has been carried out so as to contribute to the implementation of the rule of law, which provides the framework for any substantive declaration on human rights.
II. THE PROMOTION OF HUMAN RIGHTS THROUGH LEGISLATION
During 1994, APADOR-CH continued this program (started in 1993), pursuing two main objectives: the transparency of the works of the Parliament and the promotion of a legislation based on human rights principles.
As far as the first objective is concerned, APADOR-CH joined efforts with other organizations in the attempt to establish an NGO liaison office within each of the two Chambers of the Parliament. Unfortunately, various factors, among which bureaucratic obstacles, prevented the materialization of this project. However, a procedure has been established in the Chamber of Deputies for the accredited media and NGO representatives to access information as any parliamentarian, by means of individual “mail boxes” where incoming materials are deposited.
The second objective, though, was the one which defined the true dimension of APADOR-CH’s activity in the field: access to information is not an end in itself; the information has to be made use of in order to achieve significant results. Thus, in 1994 APADOR-CH continued to analyze draft bills under parliamentary scrutiny, containing provisions potentially jeopardizing the implementation of the rule of law and, implicitly, the protection of human rights in Romania. These analyses, elaborated from the perspective of the Romanian Constitution and international human rights documents, contain references to similar regulations from other countries and are accompanied by excerpts from the jurisprudence of the Court of Human Rights in Strasbourg and the UN Committee for Human Rights in Geneva.
It should be mentioned here that, despite the reserve with which parliamentarians initially met these analyses, APADOR-CH documents came to be welcomed in both chambers (and even solicited by individual members for the information contained in them), the Parliament openly admitting that there are no other sources of information. Likewise, APADOR-CH members came to be invited to participate in the works of the specialized committees of the legislature. In addition, media representatives have highly appreciated the utility of APADOR-CH analyses for their efforts to raise public awareness and participation in the reform of the Romanian legislation.
a) The draft law for the modification and completion of the Criminal and Criminal Procedure Codes
Throughout 1994, the Criminal Code and the Criminal Procedure Code were under the scrutiny of the Romanian Parliament, first in the Senate, and later in the year, in the Chamber of Deputies. This process started in 1993, when the Government forwarded the Senate a draft law for the modification of the two basic texts of the Romanian penal law. At the time, APADOR-CH exchanged views and documents with the Legal Affairs Committee of this Chamber. In February 1994, the Senate voted on the whole package of amendments. Considering that some provisions impose unacceptable restrictions upon rights which are fundamental for the functioning of the Romanian society — and especially upon freedom of expression — APADOR-CH released a set of commentaries in the margin of the version adopted by the Senate; the commentaries, as presented below, were distributed to all parliamentarians, in view of influencing the decision-making process in the Chamber of Deputies:
THE COMMENTARIES OF APADOR-CH TO THE AMENDMENTS OF THE ROMANIAN SENATE TO THE CRIMINAL CODE WHICH THREATEN THE RIGHT TO FREEDOM OF EXPRESSION
…Some of the amendments passed by the Romanian Senate unfortunately demonstrate an intention to create severe limitations on freedom of expression generally, and freedom of the press in particular. In particular, the Senate’s amendments provide that:
* the penalties for insult, libel and outrage are increased;
* new provisions are added almost doubling the penalties for perpetrating the same acts through the media;
* a disproportionate protection is guaranteed to civil servants and politicians, taking into account both the protection guaranteed to ordinary citizens (when victim of the same deeds) and the place that civil servants occupy in a democratic society, normally subjecting them to public scrutiny and a more severe, often relentless criticism;
* “defamation of the country or nation” is criminalized, though it is an offense without a defined content; and
* a new offense has been added to the chapter regarding offenses against state security; it has a vague and ambiguous content (“the transmission of false news”) which leaves too much room for malign interpretations.
These amendments demonstrate the failure of the Romanian Senate to understand the role of freedom of expression in society, especially the essential need for political discourse (including criticism) in a true democracy. At the same time, the amendments reflect a fear of the press’ influence on shaping public opinion. This attitude is in direct conflict with a recent finding by the U.N. Economic and Social Council in its Review of Further Developments in Fields with which the Sub-Commission [on Human Rights] has been Concerned: “The right to freedom of opinion and expression is a decisive vehicle of social change and as such will always be at the centre of political struggles and discourse. The recent changes in Central and Eastern Europe and in other parts of the world have confirmed this once again. The changes that will be necessary in the future will be possible only if the right to freedom of opinion and expression is preserved and properly protected…”
…The right to freedom of opinion and expression is guaranteed by international treaties, such as the Universal Declaration of Human Rights (art. 19), the International Covenant on Civil and Political Rights (art. 19) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 10), as well as other regional instruments. At the same time, the constitutions of democratic states enshrine this right and prescribe guarantees for its exercise. The Romanian Constitution is no exception to this rule: art.11 and 20 provide that such international treaties ratified by Romania have the effect of domestic law and take precedence over conflicting domestic norms for purposes of interpretation and enforcement.
Moreover, art.8 of the Romanian Constitution provides that “[p]luralism in the Romanian society is a condition and safeguard of Constitutional democracy.” Art.30 of the Constitution, which enshrines the freedom of expression, and art.31, concerning the right to information, should both be interpreted according to that principle. Pluralism must refer to more than just the existence of many political parties; it must also comprise a plurality of ideas and opinions and the obligation to ensure that the public can be informed about them. Any attempt to limit such rights should be interpreted as an attempt to limit the democratic process itself.
INSULT, LIBEL AND OUTRAGE
The fact that the Romanian Senate considers the perpetration of libel and insult in the media as an aggravating circumstance proves the intention of this institution to threaten the media, as it did by modifying the provisions for outrage. Even if threats or violence against civil servants or politicians jeopardize the physical integrity or activity thereof and should be sanctioned accordingly, there is no justification for considering the perpetration of these deeds through the media or against certain officials to be aggravating circumstances, for which the maximal punishment is 7 years in prison… Within a true democracy, public persons are subject to greater public exposure than common citizens. Politicians and civil servants give up a lot of the advantages of the right to privacy, especially concerning their political activity, by the very fact of agreeing to become public persons. Because of their position in society, they are more likely to abuse their power or to become corrupt, and that is why they have to be permanently accountable to their constituents and to the taxpayers. Within a democratic regime, the press acts as a “watchdog;” in order to play that role effectively, the press must not be threatened or restricted by the authorities.
A ruling by the Constitutional Court of the Federal Republic of Germany (20, B Verf GE 162) is instructive: “A free press, not limited by government control and censorship, is the essential foundation of a free society; a free, politically active and regularly printed press is particularly indispensable in a modern democracy. If citizens are to make political decisions, they have to learn about the opinions of others, in order to be able to consider the alternatives. The press is the one to animate this permanent discussion; it provides the information and takes a position in this respect, thus orienting the public debate.”
The fact that sometimes unpleasant formulations are used for expressing certain opinions (which may be regarded as insults) is a price which public persons have to pay for the positions they hold. According to the Romanian Senate, however, “the public statement or reproach of a certain fact which, if proven true, would expose its author to criminal, disciplinary, or administrative sanctions, or public contempt” is one of the components of outrage as an offense, which entails censorship of any criticism of the activity of civil servants or politicians. Moreover, this would give these officials unlimited possibilities to perpetrate any abuse, enjoying impunity, as their deeds would not be publicized; at the same time, it would deprive the Romanian voters of their constitutional right to be informed of the activity of their representatives…
DEFAMATION OF THE COUNTRY OR NATION
Since its adoption, the Romanian Constitution has been criticized for the excessive restrictions imposed on freedom of expression contained in art.30 para.7. The first restriction contained in that provision refers to “defamation of the country or nation.” …The new offense created by the Senate amendments to art.236 defines the criminal act as “[p]ublic defamation of the Romanian country or nation, by any means.” This formulation provides no additional clarity because adding the self-evident qualifications “public” and “by any means” does nothing to answer the legitimate question of which particular act of expression may be considered a defamation of the Romanian country or nation. Does criticizing government policy constitute an offense? Does criticizing the activity of the President? Is the statement that the Romanian Senate does not understand democracy an act of defamation of the country? Who does “country” represent? According to art.2 of the Romanian Constitution, “[n]ational sovereignty resides with the Romanian people.” Does this mean that defamation of the country actually means defamation of Romanian citizens?…If these issues are not resolved, a capricious interpretation of the law will undoubtedly result. Romanian citizens will not know how to observe it because they will not know what it means. Judges will act according to their own interests; the truly independent ones will be very cautious in applying the law, while judges who support extremist nationalistic groups or who still have the attitudes of an outdated mentality might apply the greatest possible penalties. Ultimately, the new offense could only result in the arbitrary application of justice, in contradiction to the principles of a state governed by the rule of law.
Even if the legislature would succeed in properly defining the substance of this offense, the provision still should not be included in the bill, as it conflicts with all international documents that make reference to freedom of expression:
– the Universal Declaration of Human Rights provides under art.19 the right to freedom of expression and opinion and its corollary, the right to receive and disseminate information, with no further restriction;
– the International Covenant on Civil and Political Rights provides in art.19.3 the only possible restrictions to the freedom of expression: (a) in order to protect the rights and reputation of others; (b) in order to protect national security, public order, public health, or good mores.
However vague the definition of this offense may be, it is clear that it could not fall within any of the two categories of restrictions mentioned above; the non-compliance with the international regulations could only result in a violation of art.20 para.1 of the Romanian Constitution, which specifies that “[c]onstitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to.” The European Convention restrictively mentions the situations within which limitations may be imposed upon the exercise of the right to freedom of expression, none of these bearing any relationship to the defamation of the country or nation. Para.2 of art.10 of the Convention requires not only that the restrictions be prescribed by law, but also that they be “necessary in democratic society.” It is true that Romania, although a member of the Council of Europe, and a signing party to the European Convention, has not yet completed the ratification procedure; however, this is a matter of time, and the Romanian Government has constantly reiterated its aspiration to European integration and its commitment to observe art.11 para.1 of the Constitution, which stipulates that “[t]he Romanian State pledges to fulfil as such and in good faith its obligations deriving from the treaties it is a party to.”
TRANSMISSION OF FALSE NEWS
The newly proposed art.168(1), punishing with prison from one to 5 years “the dissemination of false news, data, information, or forged documents, if possibly putting into jeopardy state security or the international relations of the Romanian state” is equally ambiguous. It begs the question: how will a judge determine if an act is liable to jeopardize state security?
It is the first time the formulation “state security” has been used in recent times; it cannot be found in the Constitution or in Law 51/1991 concerning “national security.” All international documents Romania is a party to refer to “national security.” The formulation of the amendment might leave the impression that the legislature is trying to protect the state (rather than national security) and its power structures.
Even more vague is the reference to “the international relations of Romania.” This formulation could cover almost anything, from a purchase order for wheat signed by a government agency to Romania’s adherence to NATO. What if someone falsely implies that the wheat might be spoiled — does he thus jeopardize the international relations of Romania and become liable for a 5 year prison sentence? What if someone argues that Romania has not fulfilled its obligations to the IMF and that negotiations would therefore discontinue? Just such an assertion was made quite often in the press during 1993, and the Prime Minister publicly accused the press of acting against the interests of the country. Are the international relations of Romania so frail that they could be jeopardized by such reports, even when published in a newspaper? The Romanian Senate’s addition of art.168(1) (which is placed at the end of the chapter referring to crimes against state security!) merely lays the groundwork for a policy of scapegoating the press for the government’s own foreign policy failures.
APADOR-CH considers that the modifications brought to the mentioned articles of the Criminal Code are in violation of human rights and fundamental freedoms, as enshrined by the Romanian Constitution and by the international human rights documents referring to freedom of expression and information — all legal texts the Romanian state committed to observe. The adoption of these amendments by the Parliament would jeopardize the democratic process in Romania.
The Board of APADOR-CH
During the next stage, APADOR-CH representatives kept in permanent contact with members of the Legal Affairs Committee within the Chamber of Deputies, as the amendments to the Criminal Code were to be debated by the lower Chamber. Given the fact the Romania had in the meanwhile ratified the European Convention, the Committee members were provided by APADOR-CH with information on the European Court and Commission case-law referring to freedom of expression and protection of private life (the latter aspect being related to the criminalization of same sex relations). The Committee adopted improved (as compared to the Senate) versions of the Criminal Code amendments referring to freedom of expression and same sex relations.
Surprisingly enough, the article-by-article debates in the plenum of the Chamber of Deputies allowed for the victory of conservative and nationalist political approaches, which led to the adoption of versions which are unacceptable from a human rights standpoint. The criminalization of transmission of false information and defamation of the country and nation was maintained, while a new sub-type of offense against state insignia was added; at the same time, the punishment for offense against the authority was extended, and an aggravating circumstance was added under this offense: damage to the honour of the President, a parliamentarian, minister, or judge of the Constitutional Court or Supreme Court of Justice, punished with up to 7 years in prison. Given the fact that the Standing Orders provide that the bill has to be voted on as a whole, after the completion of the article-by-article vote, APADOR-CH promptly drafted an analysis of these texts, which was sent to individual deputies and the media, and was subsequently published in several newspapers:
ROMANIAN HELSINKI COMMITTEE COMMENTS ON THE
LIMITATIONS IMPOSED BY THE ROMANIAN PARLIAMENT
UPON THE FREEDOM OF EXPRESSION
… As the law-making process has not been completed as yet in this particular case, APADOR-CH launches a new appeal towards the Romanian Parliament, asking for the modification or even elimination of the articles or paragraphs of law that impose inadmissible restrictions upon the right to freedom of expression by defining as crimes actions absolutely indispensable to the existence of a democratic and pluralistic society…
OFFENSE AGAINST STATE INSIGNIA
Art.236 leaves the provisions of para.2 included in the Criminal Code currently in force unchanged, making punishable by prison from 3 months to one year any “[m]anifestation of contempt for the emblems or insignia used by the authorities.” Under the conditions within which the Romanian penal system does not contain any indication as to the understanding of the notion of “contempt,” while the Explanatory Dictionary of the Romanian Language defines contempt as a “feeling of disrespect for somebody or something…lack of respect or esteem,” the idea of making such a manifestation towards the insignia employed by the state authorities punishable cannot be accepted. Such manifestations are nothing more than the exercise of the right to freedom of expression, and the restriction of this right spelled out in art.30 of the Constitution cannot be made otherwise than under the conditions of para.7 of the same article — and the manifestation of contempt towards the state insignia does not fall within the scope of the restrictions mentioned there.
The inclusion of this crime among the ones provided by the 1969 Criminal Code aimed at protecting the authorities of the communist state against which criticism or manifest contempt was forbidden under any circumstances. Under the current conditions in Romania, it would not be acceptable to come back to such a state of affairs. The attempt to impose by means of force respect towards the authorities is obviously in conflict with the provisions of art.10 of the European Convention, which allows for restrictions of the right to freedom of expression on behalf of a state authority only “for maintaining the authority and impartiality of the judiciary.”
Another new paragraph is para.3 of art.236, referring to “[d]isplaying the flag or insignia or the intonation of the national anthem of other states on Romania’s territory under other conditions than the ones provided for by law” — an offense punished by prison from 6 months to 3 years. It is obvious that the display of flags or insignia, as well as the intonation of anthems are forms of exercising the right to freedom of expression. The exercise of this right is regulated by art.30 of the Constitution and by art.10 of the European Convention, which is, by means of art.11 of the fundamental law of the Romanian domestic legal system, part and parcel of the national law prevailing over conflicting domestic provisions. According to art.10 para.2 of the European Convention, in order for a restriction upon the right to freedom of expression to be justified, it must be “necessary in a democratic society, in the interests of national security, territorial integrity or public safety.” It obviously follows from the formulation of this amendment to the Criminal Code that the mere display of a foreign flag or intonation of an anthem is punished in itself, although these manifestations as such do not pose any threat to the national security, territorial integrity, or public safety. Which means that the limitation imposed upon the right to freedom of expression by means of this article is totally unjustified.
At the same time, the formulation “on Romania’s territory” is in conflict with the provisions of art.26 of the Constitution which protects the right to private life, as this notion includes private property as well as public one. Imposing restrictions upon the right to freedom of expression in a private framework is inadmissible, as crimes are punished due to the social danger they represent. The display of a foreign flag or the intonation of a foreign national anthem in, for instance, private apartments is a manifestation of the right to freedom of expression as enshrined and protected not only by art.30, but also by art.26 of the Romanian Constitution…
OFFENSE AGAINST THE AUTHORITIES
The crime under art.238, para.1 and 2 is maintained under the same formulation as in the current Criminal Code, only that the punishment is extended as follows: for “damage to the reputation or public threat” of an individual in an important state or public position (as defined by art.160 of the Criminal Code) “in relation to [his/her] capacity and of a nature to impair [his/her] authority” — the punishment is prison from 6 months to 5 years; for violent attack upon such a person the punishment is prison from 2 to 7 years. Recently the Chamber of Deputies added another paragraph to this article, specifying that: “If the deeds provided in the paragraphs above are perpetrated against the President of Romania, a Member of the Parliament or of the Government, or against a magistrate in the Constitutional Court or the Supreme Court of Justice, the maximal punishment shall be extended by two years.”
While understanding the seriousness and disapproving of deeds such as threat or violence, APADOR-CH nevertheless notes the harshness of the punishments provided for these deeds. At the same time, it seems unacceptable that the criminal regime of violence be applied to “damage brought to the honour [of an official]” — i.e. to the criticism brought to such a person relating to the activity carried out in an official capacity. Damage to the authority is not brought by criticism (whether formulated in an insulting manner or in a more civilized one), but by faulty activity in itself. Curbing criticism by threatening with years in prison means to establish the foundation for a totalitarian society, where the only authorized form of expression in the hands of the public opinion is the approval. Such a tendency is proven by para.3 which creates new categories of persons favoured by law, in contradiction with the provisions of art.16 of the Constitution…
1. With respect to the regime of penalties, the fact that Romania has one of the toughest criminal systems in Europe (not only as compared to Western European standards, but also in relation to the legislation of other formerly communist countries) is already notorious. The extensions of the punishments proposed by the new amendments to the Criminal Code are incompatible with the standards of a civilized society. The adoption of these penalties would prove that in the conception of the Romanian Parliament, the individual (even when a perpetrator), his/her life and dignity, are of too little value, as long as freedom is “weighed” in years spent in prison allotted with unacceptable ease, especially in the case of crimes whose main purpose is to restrict the exercise of the right to freedom of expression and to protect the representatives of public authorities.
2. The whole criminal system grants disproportionate protection to civil servants and politicians, as compared both to the degree of protection granted to regular citizens (when they are the victims of the same deeds), and to the position of civil servants and politicians in any democratic society, position which exposes them to the scrutiny of the public opinion and obliges them to accept much harsher and often unyielding criticism.
3. As for the exercise of the right to freedom of expression it is drastically limited by the amendments pending now before the Parliament. These restrictions are obviously unconstitutional, being an attempt to intimidate the media, as well as any criticism directed against public authorities.
The adoption of these amendments to the Criminal Code would prove the failure of the Romanian Parliament in understanding the role played by the right to freedom of expression in forwarding the society, as well as the role of political discourse (with its unavoidable critical accents) in the existence of a truly democratic society…At the same time, they reflect a fear of the influence of the press in informing public opinion, which results in the tendency to impose harsh limitations…
The Board of APADOR-CH
November 29, 1994″
Another important aspect of the criminal code was the debate around the criminalization of same sex relations between consenting adults (art.200 para.1). The Council of Europe also
focused on this issue, as the decriminalization of same sex relations is one the commitments made by Romania upon its acceptance as a full member of this international forum.
b) The Law on the organization and functioning of the police
c) Two draft bills on national minorities
d) The draft law on the protection of the state secret
On November 23, 1994, the director of the Romanian Intelligence Service presented before the Parliament the annual report of this agency, covering the period between October 1993 and September 1994. The conclusions of this report accounted for the fragility of national security in terms of the absence of a law regulating the “state secret”. The report was pushing for the emergency adoption of such a law, an opinion shared by most parliamentarians, whatever their political orientation. The need for such a law providing not only the categories of information classified as state secrets, but also the obligations of persons dealing with them, cannot be contested. However, it is absolutely necessary that these provisions be clear and that they do not interfere with human rights and fundamental freedoms under the pretext of protecting national security.
Unfortunately, though, the Senate was forwarded in 1993 a controversial legislative initiative of 4 senators; as of autumn 1994, the Government had not forwarded its own draft bill on the issue. Under these conditions, it is obvious that the “emergency adoption” mentioned by the director of the Romanian Intelligence Service referred to the already existing draft. Considering the draft incompatible with the Romanian Constitution and international human rights standards, APADOR-CH drafted an analysis of the draft bill and a reference list of similar legislation from 8 Western countries, which were sent to the Romanian Senate and media:
THE COMMENTS OF THE ROMANIAN HELSINKI COMMITTEE
ON THE DRAFT BILL ON THE PROTECTION OF THE STATE SECRET
The draft bill on the protection of the state secret was submitted to the Senate in November 1993 as the legislative initiative of a group of four senators of the Social Democracy Party in Romania (Alexandru Radu Timofte, Ilie Platica-Vidovici, Dimitrie Popa, and Doru Ioan Taracila), asking for an emergency procedure. On November 23, 1994, the director of the Romanian Intelligence Service presented before the Parliament the annual report of this institution, covering the period between October 1993 and September 1994; the report made constant reference to the urgent need for a law on the protection of the state secret. Consequently, it was suggested that the draft bill currently pending in the Senate be debated and voted following an emergency procedure — a proposal supported by a large number of parliamentarians.
This bill is supposed to replace Law 23/1971, whose spirit is preserved by the proposed draft (although the four authors consider it obsolete): the aim of the draft is to drastically restrict access to information and free flow of information, and to re-institute a centralized control exercised by the Romanian Intelligence Service.
INSTITUTIONS EXCEPTED FROM THE CONTROL OF THE ROMANIAN INTELLIGENCE SERVICE
According to art.2 para.2 of the draft bill, “the Parliament, the President’s Office, the Supreme Council for the Defense of the Country, the Ministry of National Defense, the Ministry of Interior, the Foreign Intelligence Service, the Guard and Protection Service, the Special Telecommunications Service and the General Penitentiary Directorate under the Ministry of Justice,” which establish their own independent structures for the protection of the state secret, are not subject to the control exercised by the Romanian Intelligence Service.
It is worth underlining the fact that while the activity of the Romanian Intelligence Service is subject to parliamentary control, this institution being bound by law to submit an annual report to the two Chambers, all the other structures for the protection of the state secret within the above mentioned institutions escape any democratic control (be it direct or indirect).
This danger becomes obvious if one takes into account a statement made in the Parliament by the director of the Romanian Intelligence Service, who made it clear that this agency is not responsible for the activity of other 6 intelligence agencies and that he does not hold any kind of information as to the involvement of the latter in potential activities of telephone tapping and mail monitoring.
One instance would be the Special Telecommunications Service, instituted by a mere Government decision in May 1993, at the precise moment when the Parliament was debating the establishment of the Romanian Intelligence Service Control Committee. A few month later, the Government stated in front of the General Secretary of the Council of Europe that the organization of this service represented a purely administrative measure, as its competencies are purely administrative (although this service has the right to set up its own commercial companies). However, the Special Telecommunications Service is listed in the draft bill among the institutions excepted from the control of the Romanian Intelligence Service. Only after one year from its establishment the Parliament was submitted a draft law regulating the situation of this institution.
THE DRAFT BILL
The first article of the draft bill on the protection of the state secret provides that “[t]he defense of the state secret is a legal obligation and a moral duty of all citizens of Romania, by means of which they express their loyalty to the country.” This wording reiterates the Constitutional thesis according to which “faithfulness towards the country is sacred” and further underlines the idea included in the National Security Law –i.e. “Romanian citizens have the moral duty to contribute to the achievement of national security.” If the regulation of a “moral duty” in a legal text is questionable because it cannot, in itself, engender legal obligations whose violation would trigger the enforcement of a sanction, the regulation of a legal obligation has completely different juridical consequences. This is why the vague wording in the draft bill can allow for abusive interpretations. It should be mentioned that the obligation to protect the state secret functions within the framework of the draft bill — which should clearly spell out the conditions within which sanctions for violations are applicable.
The manner in which art.4 of the draft bill defines the state secret practically covers all fields of activity: “Information, data, documents, objects, and activities whose disclosure, transmission, unlawful appropriation, destruction, modification, or disappearance, as the case may be, can jeopardize national security or state defense, or damage Romania’s political, economical, technological, scientific interests or interests of a different nature shall be considered state secrets.” (emphasis added) It should be underlined here that according to the Law on the Organization and Functioning of the Romanian Intelligence Service, this institution carries out activities that are necessary to the counteraction of “any actions that, according to the law, pose a threat to national security” (emphasis added, art.2 of Law 14/1992). It is therefore only natural for the draft bill to make reference to national security or national defense. But it is unacceptable for the Romanian Intelligence Service to coordinate and control activities which may impair “Romania’s political, economical, technical, scientific interests or other interests of a different nature,” as long as they do not jeopardize national security in any way. Likewise, it is not only inappropriate, but also unacceptable for a legal text to include phrases such as “of a different nature” which allow for arbitrary interpretation.
Art.5 lists along 13 paragraphs the “categories of information, data, documents, objects, or activities which are classified as state secrets.” The draft bill mentions some categories which, obviously, are state secrets. Apart from these, however, it mentions documents and information (diagrams, maps, topographical plans to a certain scale, etc.) which should not be defined as state secrets.
Special mention should be made of lit.j), which includes among the categories of state secrets “scientific, technological or economic activities, investments included, connected to national security or defense or presenting special importance for the economic and technical-scientific interests of Romania.” (emphasis added) It would be only natural for a legal text to qualify certain data and information as state secrets, but only restrictively. In the case of this bill, though, the language is very general and allows for abusive interpretations. A full understanding of the danger originating in the ambiguity of the text is provided by correlation with the provisions in art.12 lit.j), instituting the possibility for the Romanian Intelligence Service to completely control even research and production activities carried out by individuals and private companies.
Art.5 lit.m) introduces a new category of data, information, and documents classified as state secrets — i.e. the ones related to “foreign affairs of any kind and activities of the Romanian state, except for the ones which may and must be publicized according to the law.” (emphasis added) In the absence of a statute on publicly available data, information, and documents, as well as of a law on access to information (for which the Constitution offers a framework-guarantee in art.31), any data on foreign affairs and activities can be classified in keeping with this legal provision.
Art.6 of the draft bill provides for a classification of state secrets into 3 categories “top secrets of special importance”, “top secrets” and “secrets”; the only function of this classification can be to further the confusion, as long as these notions are not defined in any way, there are no special sanctions applicable for the violation of each of them, and there are no special regulations as to their definition or protection.
Art.7 introduces the notion of “work secret”, defined as follows: “Information, data, documents, objects and activities which are not considered state secrets but are not meant for publicity either, are classified as ‘work secrets’; the disclosure or transmission thereof, by any means, shall be prohibited.” Several observations are necessary in the margin of this provision.
The draft bill does not say exactly what is the work secret, it does not give a positive definition of the notion. It only mentions what “work secrets” are not — i.e. that they “are not considered state secrets, but are not meant for publicity…” The legal logic of the rule of law imposes the obligation for statutes to define the contents or the components of terms employed in their texts. Beyond this, though, the regulation of secrets relating to work should not be found in a law on the state secret.
Secondly, the text makes reference not only to public authorities and governmental agencies, but also to commercial companies and not-for-profit independent groups, without distinction. Each of these categories should have the right to decide as to what is to be made public or not, which the draft bill fails to mention, suggesting that the competence to classify work secrets falls with the legislature or even the executive.
Thirdly, in the absence of a law regulating access to information, this article potentially eliminates any possibility to obtain information from any source, as the “work secret” can always be invoked as pretext, and the disclosure or dissemination of such information is considered to be a (petty or criminal) offense and is punished by either prison or, at best, a fine. This is, as a matter of fact, a legitimation for the lack of transparency of public authorities.
The practice of democratic states presupposes that institutions themselves be the ones to issue, if necessary, any guidelines for their personnel, as well as lists of work-related secrets — i.e. information that is not considered to be public — so as not to impair access to information as guaranteed by the Constitution. Likewise, it is absolutely necessary for one to be able to challenge the validity of such classifications in court, as access to information of public interest should be guaranteed.
Fourthly, the danger presented by this article also derives from its correlation with the attributions granted to the Romanian Intelligence Service by the draft law. Art.12 lit.c) allows the Romanian Intelligence Service to carry out “investigations and verifications” and to provide data, upon the request of the heads of public authorities and institutions, “on persons to be employed by these in positions presupposing access to information or activities classified as state or work secrets.” (emphasis added) In turn, lit.j) of the same article makes it possible for the Romanian Intelligence Service to “grant specialized assistance for the protection of the secrets — other than the state ones — held by individuals or legal entities of private law, on the prevention of information and leakage of data which cannot be publicized, upon the request thereof and payment according to mutually convened fees.” (emphasis added) This is in flagrant violation of the character and attributions of the Romanian Intelligence Service, which is defined, according to art.1 of Law 14/1992, as “the state agency specialized in information on Romania’s national security, as a component of the national defense system…” (emphasis added)
The draft bill provides under art.9 the obligation for all public authorities and institutions, self-managing state enterprises and trade companies to establish special compartments in order to ensure the security of documents classified as state secrets (very similar to the Secret Documents Offices functioning before 1989 in Romania). According to art.11 lit.d), the heads of the institutions or organizations concerned are obliged to “elicit the approval of the Romanian Intelligence Service” for the employees chosen to work in the special secret documents compartments and to “observe the opinion of the Romanian Intelligence Service.” (emphasis added) These obligations are in conflict with the provisions of art.4 of the Law for the Organization and Functioning of the Romanian Intelligence Service, which provides that the Romanian Intelligence Service can offer data on persons supposed to work in compartments that presuppose access to secret information “upon the request of the head of the public institution, self-managing enterprise, or commercial company concerned” (emphasis added), without instituting any obligation to observe by the opinion of the Romanian Intelligence Service on the part of those concerned, the responsibility for this falling exclusively with the head of the institution. Likewise, the institution of such an obligation would be in violation of art.16 of the Constitution, which bans discrimination.
At the same time, art.9 of the bill spells out an obligation on the part of the mentioned institutions to establish “special protocol compartments for the enforcement of the legal norms concerning the protection of the state secret…during the reception of delegations, talks or negotiations, as well as official visits and other such activities.” (emphasis added) Apart from the fact that this reiterates the inconsistencies between the draft law on the state secret and the organic law of the Romanian Intelligence Service, one should underline the fact that the re-establishment of special protocol compartments is unacceptable. Any head of institution should have the right and competence to take all measures considered necessary for the protection of the state secret. If this right is not recognized, it means that a presumption of incompetence or even guilt is instituted, which is the only explanation for the presence of Romanian Intelligence Service representatives in the institution. Moreover, the establishment of special protocol compartments would drastically restrict human and business contacts, as well as freedom of expression, information and circulation.
Art.12 lit.a) of the draft law allows the Romanian Intelligence Service to verify the way in which the legal norms on the protection of the state secret are respected and enforced. It means that this institution substitutes itself to the judiciary, violating at the same time the principle spelled out in art.5 of Law 14/1992, according to which the Romanian Intelligence Service provides assistance upon request.
According to art.12 lit.h) of the draft bill, the Romanian Intelligence Service “approves draft documents having implications in the protection of the state secret.” Taking into account the fact that art.5 of the bill defines the state secret in relation to any field of activity, the natural conclusion to be drawn from here is that most of the Romanian legislation will have to be subject to the approval of the Romanian Intelligence Service, which is a symptom of a totalitarian state.
Chapter V lists the obligations of individuals and legal entities. Art.14 provides under lit.b) the obligation for individuals or legal entities that have had access to state secrets to allow for verifications made both by the ones who have entrusted the secret and by the Romanian Intelligence Service. This provision permits the Romanian Intelligence Service to make verifications under any circumstances, under the pretext that an individual or a legal entity might have had access to state secrets. The draft bill does not provide for any possibility for those concerned to attack potential abuses on behalf of the Romanian Intelligence Service in court.
Art.20 para.1 provides that an employee has the obligation to “notify at once” the employer, the Romanian Intelligence Service and the penal investigations institutions whenever he/she notices a violation of the obligations stipulated under art.15-19. Para.2 of the same article provides the obligation to notify the Romanian Intelligence Service for any individual who “outside his[/her] job attributions, finds out the content or gets hold of some state secret information, data, documents or activities.” Taking into account the fact that nobody can exactly know which are the data, documents, or information classified as state secrets, this article, as worded in the current form of the draft bill, would encourage abuse and reporting to the authorities among Romanian citizens.
Actually, the correlation of the provisions of art.15-21 with the rest of the provisions included in the draft bill leads to the suspension of the presumption of innocence: any individual is supposed to know which are the classified state secrets and to notify the Romanian Intelligence Service and the law enforcement bodies whenever the content of such secrets is brought to his/her knowledge. This is supposed to happen under the conditions within which all institutions have the obligation to draw up lists of documents, information, data, etc. classified as state secrets, the content of which is not revealed.
Art.29 allows the Government to issue decisions on the classification of state secrets, their registration, drafting, multiplication, transportation, transfer, etc., as well as on the conditions regulating access to information, which means that the executive substitutes itself to the legislature.
1. The draft bill seriously jeopardizes fundamental rights and freedoms, such as access to information, free circulation of information, freedom of expression, presumption of innocence, etc. At the same time, the draft bill is an invitation for citizens to report each other to the authorities, while the Romanian Intelligence Service becomes a control body with functions that go beyond the attributions stipulated in the Law on the Organization and Functioning of the Romanian Intelligence Service.
2. The draft bill does not provide for any possibility to attack in court potential abusive decisions of the Romanian Intelligence Service and, even to a lesser degree, of the other state agencies excepted from the provisions of this bill.
3. The draft bill does not provide any possibility — generally prescribed by the legislation of democratic countries — for the regular citizen to invoke, in his/her defense, unawareness of the classified character of documents, information, etc.
4. None of the provisions of the draft bill make reference to the notion of public interest, unlike the case of state secret statutes in traditionally democratic countries, where public interest takes precedence upon the classified character of state secrets.
(References to similar legislation in Austria, Canada, France, the Netherlands, Spain, Sweden, the US, and Germany are attached to these comments.)
The Board of APADOR-CH”
e) The draft law for the modification of Law 60/1991 on public rallies
In November 1994, the Chamber of Deputies debated the draft law for the modification of Law 60/1991 on public rallies. Following an intense campaign started in 1993 by APADOR-CH and other non-governmental organizations, the Legal Affairs, Human Rights, and Defense Committees of the Chamber recommended the plenum to repeal the bill, which was nevertheless maintained on the agenda of the Chamber. However, on November 7, 1994, the draft was debated and finally repealed.
III. THE RELATIONSHIP BETWEEN POLICE AND INDIVIDUALS
In 1994, APADOR-CH continued the program started in April 1993, whose purpose was to monitor the behaviour of the police officers in their relations with individuals. The need for such a program is due to the fact that, although after December 1989, the Romanian police has undergone a series of transformations, the democratization of this fundamental institution of the state is still at an incipient phase, the stumbling block being the mentality of police force members. APADOR-CH started this program as an attempt to establish a dialogue with the General Police Inspectorate within the Ministry of Interior, in other words as a dialogue between law enforcement agencies and a segment of the civil society. The motivation springs from the fact that for half a century the activity of the militia was — to all intents and purposes — a secret one and the Romanian citizens were deprived of any opportunity to learn about abuses perpetrated by militia forces unless they experienced them directly, or, even less so, about sanctions ordered against lawbreaking officers. The opinion that militia officers — turned into police officers after December 1989 — enjoyed impunity was thus formed.
On the other hand, the military organization system of the Romanian police, currently perceptible especially at the level of the justice system, gives exclusive jurisdiction to the military prosecutors and courts to investigate and punish alleged abuses. Since civilian justice is the rule, while the military system is the exception to this rule, maintaining this exception can only give rise to suspicion.
The Romanian justice system does not allow civilian victims to seize an independent and impartial court in order to appeal the conclusions of a military prosecutor. The only venue available is the complaint lodged with a higher military prosecutor. In case the latter decides to complete the initial investigation, this task is generally fulfilled by the same military prosecutor that investigated the case in the first place. Moreover, the current police system includes officers supposed to investigate their own colleagues, suspected to have perpetrated abuse. Due to a shortage of staff, lack of means of transportation to go on location or lack of time, some military prosecutors found their conclusions mainly on the information forwarded by these police officers. There have been cases when the latter covered up for their colleagues, which led to the military prosecutor’s decision that no charges should be brought against the alleged perpetrators.
APADOR-CH focused also on another aspect, i.e. the practice of military prosecutors to prosecute police officers only when there is absolutely irrefutable evidence pointing to an abuse, their personal opinion on the case ranking only second. In principle, this position would be correct, if it were not for the fact that in this way, in most cases, the bench is not offered the possibility to judge the allegations involving the police. It is deliberately ignored that most abuses are perpetrated in police quarters, where external witnesses can obviously not be present and there are chances that the only witnesses be other police officers, who, for reasons of professional solidarity, would not testify against colleagues charged with abuse by civilians. Apart from this, the Romanian legal system does not offer victims of police abuse any chance to seize civilian courts, in order to obtain moral or material damages in cases where the Military Prosecutor’s Offices decide not to bring charges against some police officers.
As for the approach of this program, APADOR-CH undertook to consider both the theoretical aspect, by analyzing the documents regulating police activity, and the practical one, by initiating extra-judicial investigations in individual cases of violation of human rights by the police.
The first step for APADOR-CH was to publish a poster with excerpts from the Romanian Constitution and the international human rights documents referring to the relationship between police and individuals. Following an agreement with the General Police Inspectorate, part of these posters were to be distributed throughout the country, so as each police station could display one poster. The General Police Inspectorate committed to distribute 5,500 posters, which, according to General Police Inspectorate representatives, sufficed for all police stations in the country. With only one exception, neither the APADOR-CH representatives, nor any other person having come into contact with the association, have so far seen the posters displayed in police stations.
The round tables with representatives of the County Police Departments were organized so as to start from individual cases investigated by APADOR-CH and reach general conclusions on the way in which the police understand to protect human rights. Such (often heated) debates were organized in Galati, Bacau and Botosani (the first two with the participation of an American legal expert in human rights teaching at police academies in the US, while the last with the participation of representatives of the French police). The information offered by the foreign participants on the police systems in their own countries were received with great interest by the Romanian participants enroled in the police. However, their reactions to the concrete examples of police abuse presented by APADOR-CH were as strong as diverse. Beyond all efforts to appease their widely shared suspicion towards the fact that “some civilians” mean to “teach” them how to enforce the law or to question their methods, APADOR-CH representatives were under the impression that some real dialogue can be established.
In January 1994, a documentary on cases of police abuse was produced by the social issues department of the Romanian state-owned television channel in collaboration with APADOR-CH. The program triggered a vehement reaction of the Ministry of Interior, in the form of a reply — broadcast on the same television channel — presenting statistical data on achievements of the Romanian police in their struggle with crime, on the number of police wounded or deceased during missions, without even mentioning the subjects presented in the show at stake. This broadcast reply was followed by a “chilling” of contacts with APADOR-CH; as of this writing, the “chilling”, i.e. refusal of collaboration, is still in effect.
Under these circumstances, as APADOR-CH did not intend to discontinue the police abuse program, it proceeded with its extra-judicial investigations and re-oriented towards closer collaboration with the Military Prosecutor’s Offices Department within the General Prosecutor’s Office. APADOR-CH started to regularly forward this agency its reports on individual cases where civilians had been victims of police abuse. In some cases, the Military Prosecutor’s Offices did take into account the results of APADOR-CH investigations and decided to complete their own investigations. However, in very few instances was the initial decision of the military prosecutors reversed so as to favour the victims.
Wishing to broaden its collaboration with other state agencies, whose mandate, even if different from that of the police, concerns personal liberty, APADOR-CH extended its program so as to include the Border Police, which is part of the Ministry of Interior, too. This new approach is closely linked to another APADOR-CH program which targets the asylum-seekers in Romania.
APADOR-CH has also started to collaborate with the General Department of Penitentiaries within the Ministry of Justice, with a view to investigate individual complaints of prisoners or of their families. On the occasion of visits to different penitentiaries, representatives of APADOR-CH learned about detention conditions and were in a position to make certain comments and suggestions.
The Romanian police is placed under the supervision of the Ministry of Interior and is structured as follows:
– General Police Inspectorate (“Inspectoratul General al Politiei”);
– Bucharest Police Department (“Directia Generala de Politie a Municipiului Bucuresti”);
– County Police Departments (“Inspectorate de Politie Judetene”);
– police departments for railways, air and naval transportation;
– institutions for education and specialized training of police.
Special police stations can be established for guarding certain social and economic objectives, depending on their importance.
According to estimates published by the press, the Ministry of Interior has approximately 75,000 employees. APADOR-CH asked the ministry to communicate the number of active police, but no concrete answer was received, the motivation being that figures relating to personnel are “varying”. An estimate based on unofficial data shows that there are approximately 50,000-55,000 active police throughout the country, which would represent an average of one policeman to every 440 inhabitants. There are approximately 5,000 police stations, which means roughly one station per 4,600 persons. However, APADOR-CH noticed that the distribution of police throughout the country still leaves certain areas unprotected, which leads to their inability to prevent or control crime, especially in rural zones. In a small town like Victoria (county of Brasov), with approximately 12,000 inhabitants, there are 18 police officers in the station, while municipalities like Chetani, county of Mures, or Orasul Nou, county of Satu Mare, administering each 6-7 villages and 7,000-8,000 inhabitants, only have 2-3 non-commissioned officers. Besides the insufficient number of police in rural areas and their poor equipment (most police stations supposed to cover several villages do not have their own transportation means and it is practically impossible to call the police in difficult situations due to the extremely small number of telephone lines in such areas), mention should be made here of the low level of professional training of those police officers. The large majority of the more than 30 conflicts between Romanians (and/or Hungarians) and Roma took place in villages and one of the factors that led to these — often tragic — events was the inability of the local police to prevent or control such situations.
Starting from the belief that respect for human rights implies an adequate legislative framework, APADOR-CH analyzed certain aspects of the statutes regulating police activity, to see to what extent they correspond to the Romanian Constitution and to the international documents ratified by Romania (especially to the European Convention on Human Rights). Until the adoption of the new Police Law (Law 26/1994) in May 1994, APADOR-CH tried — through written commentaries and contacts with parliamentarians — to influence parliamentarians so as to improve the initial form of the draft. Although the legislative eliminated from the text the term military, which is a first step, be it formal, on the road to the demilitarization of the police force, until the stage is reached when police officers can be prosecuted in civilian courts, the demilitarization of the police remains only an aspiration. At the same time, there are significant differences or even inconsistencies between Romanian and international standards.
a) The criminal record
Chapter III, art.15 lit.p) of Law 26/1994 makes reference to the criminal record as a document meant to “register individuals convicted for criminal offenses or against whom other penal measures have been taken.” From discussions held in 1994 between APADOR-CH representatives and the commander of the police station in Victoria (county of Brasov), it turned out that after the signing of the agreement between the Romanian and German ministries of interior on the repatriation of German and Romanian illegal aliens on each party’s territory, the Romanian Minister of Interior issued an order instituting a special procedure for registering Romanian citizens repatriated from Germany (separate files, fingerprints, etc.). As Romania ratified similar agreements with other countries (the Czech Republic, Poland, France), the procedure reportedly extended to the Romanians repatriated from these countries as well. The existence of this order has neither been confirmed nor contested by the Ministry of Interior, although APADOR-CH solicited details in a letter that has not been answered. If still in force, it is obvious that this order denies the exercise of the right to leave one’s country or to return to one’s country of origin; both are human rights and their exercise cannot be assimilated to crimes for which criminal records are opened.
b) Deprivation of liberty
Chapter IV of Law 26/1994 refers to rights and obligations of police officers during the exercise of law-enforcement.
Art.16 lit.a) of Law 26/1994 stipulates that police officers have the right to request self-identification and establish the “identity of individuals violating legal provisions or suspect of having done so, as well as to take the appropriate measures in such circumstances.” Thus, lit.a) allows police officers to decide not only whether an individual is suspect of violating legal provisions, but also whether he has done so. The phrase “legal provisions,” though, covers the whole legislation currently in force, from the Penal and Civil Codes to the Labour and Family Codes. The police, however, has competence only over matters of criminal and contraventional law.
Art.16 lit.b) para.1 authorizes police officers to “lead to police quarters, in order to take legal measures, individuals who, by their actions, jeopardize public order, the life of other individuals, or other social values, as well as suspects whose identity could not be established,” while para.2 allows them to lead to police quarters “suspects…who refuse to reveal their identity or whose identity cannot be established,…in order to clarify the matter and, as the case may be, promptly bring them before the criminal investigation agency which has competence in the matter, action which cannot be extended beyond 24 hours.” (emphasis added) The notion of “public order” employed in art.16 lit.b para.1 is not defined in any legal document, which may lead to abusive interpretations. The phrase “as the case may be” in lit.b para.2 implies that it is not mandatory to bring an individual under custody before the competent judiciary authority; rather, this is a decision where the police use their discretion. In other words, in virtue of lit.a) and b), police officers may request the presentation of identity papers of any individual, may deprive anyone of liberty for 24 hours, after which they may release that person with no further legal formalities, and all these for the mere reason that they think that the individual should not be brought before the competent criminal investigation agency. The European Convention mentions in art.5 para.1 “reasonable suspicion,” while the Criminal Procedure Code specifies, as a pre-condition necessary in order to decide placement under custody, the existence of “well-founded evidence or indications” (art.143). The opinion of police officers as to an individual’s violation of some legal provisions or suspicion of having done so (art.16 lit.a), as well as their authorization to lead to police quarters “suspects…whose identity cannot be established,” can be considered neither reasonable suspicion, nor well-founded evidence or indications. Moreover, the wording of the provisions under lit.b) so as to avoid the term custody may lead to the conclusion that for such measures police officers do not even need an order that the criminal investigations agency or a magistrate has to issue in custody cases.
A question arises; if police officers are authorized to “lead” to the police station suspects whose identity could not be established and, according to lit.b) para.2, they have 24 hours to clarify the matter, what is this 24 hours’ interval, during which the individual “led” to the police station is obviously deprived of liberty? It is true that the text does not employ the term custody in connection to such actions, but it is equally obvious that the individual concerned is actually placed under custody in the police station.
Lit.d) of art.16 of the Police Law authorizes police officers to “take the measure of placing under custody…in cases and conditions prescribed by law.” Given the fact that lit.b) and d) each authorize deprivation of liberty for 24 hours, it follows that in virtue of the new Police Law an individual may be placed under custody for 48 hours without an arrest warrant, which is in violation of art.23 para.3 of the Constitution which provides that “[d]etention [custody] may not exceed 24 hours.”
From discussions that APADOR-CH representatives held with lawyers, judges and prosecutors, it turned out that such situations, i.e. 48 hours’ custody, have already occurred, which proves that the interpretation above is not only a theoretical speculation.
Art.148 of the Criminal Procedure Code refers to situations in which preventive arrest can be enforced. Naturally, this measure can be taken only after the issuing of an arrest warrant by a magistrate (a first warrant for up to 30 days is issued by a prosecutor, subsequent to which all 30-days extensions must be decided by a court; the total length of the preventive arrest period cannot exceed half of the maximal punishment provided for the alleged offence). Although police officers only enforce the warrant issued by the prosecutor, still, given the fact that in most cases of placement under custody, they forward the file to prosecutors eliciting that the latter issue warrants, a brief analysis of art.148 of the Criminal Procedure Code may prove useful at this point. This article specifies the conditions to be met so that an arrest warrant be issued; some of those provisions raise a series of questions, i.e. situations within which:
“a) the identity or domicile of the defendant cannot be established due to insufficient data…
“d) there are sufficient indications that the defendant tried to obstruct the uncovering of the truth by means of influencing witnesses or experts, destruction or modification of material evidence, or other such deeds…
“f) the defendant is a repeat offender;
“g) when one of the aggravating circumstances is present;
“h) when the defendant committed a crime for which the law provides prison terms of over 2 years, and by not arresting him, the public order would be endangered.”
It is obvious that the “well-founded evidence or indications” (art.143 of the Criminal Procedure Code) have to pre-exist the issuance of an arrest warrant. The obligation to prove either the attempt or the actual crime lies entirely with the criminal investigations agencies. The much too frequent practice of the placing of defendants under preventive arrest for a period during which evidence is collected to permit prosecution of the case, denies the general trend of democratic systems — spelled out in another international human rights document, i.e. the International Covenant on Civil and Political Rights, art.9 — to consider detention, placement under custody or arrest of an individual to be an exception to the general rule represented by liberty.
Art.5 para.1 of the European Convention makes no reference to repeat offenders. It is obvious that they should enjoy the same degree of protection as any other suspect during the pre-trial period and that it is entirely and exclusively the responsibility of the court to decide as to more severe punishment (if at all) to be applied to this category. It goes against the spirit of the European Convention to automatically arrest a person for the sole reason that he/she has previously perpetrated and been convicted for other offenses (art. 148 lit.f of the Criminal Procedure Code). The presumption of innocence must function equally in such cases, as well as all the other types of protection, irrespective of whether the suspect is a first or a repeat offender.
Likewise, the European Convention does not make any reference as to aggravating circumstances (mentioned in art.148 lit.g of the Criminal Procedure Code), nor as to the length of the punishment (art.148 lit.h of the Criminal Procedure Code) as representing valid grounds for deprivation of liberty.
c) Domicile search
Art.16 lit.f) and g) of Law 26/1994 refers to searches conducted both “on any precincts of companies, public or private institutions, social-political organizations, irrespective of their form of ownership, administration or destination, aboard Romanian ships and aircraft, according to legal provisions” (lit.f) and “in the residence of individuals” (lit.g). When no arrest warrant has been issued, in the first case the consent of the management of the institution concerned is required and there is no specification as to whether it should be written or verbal, while in the second case the consent must be in writing.
Art.27, para.3 of the Romanian Constitution specifies that “[s]earches may be ordered only by a magistrate and carried out exclusively under the observance of the legal procedure.” (emphasis added)
There are two interpretations as to the consistency of art.16 lit.f) and g) of Law 26/1994 and art.27 para.3 of the Romanian Constitution. A first interpretation holds that the mentioned provisions of the new Police Law are constitutional, in the sense that domicile searches can be conducted based either on an arrest warrant issued by a magistrate or on the written consent of the person concerned. Another interpretation is that art.27 para.3 of the Romanian Constitution contains two obligatory conditions: the order issued by a magistrate and the legal provisions. So no one — the police included — may initiate domicile search without the prior order of a magistrate. Consequently, lit.f) and g) of the mentioned article of law are in violation of the constitutional provisions.
Lit.f) and g) of art.16 of Law 26/1994, corroborated with art.103 of the Criminal Procedure Code are also contrary to para.4 of art.27 of the Romanian Constitution, which provides that “[s]earches at night time shall be prohibited, except in cases of flagrante delicto.” Art.103 of the Criminal Procedure Code, after restricting the period of time within which domicile searches can be conducted between 6 a.m. and 8 p.m., nullifies this limitation by further specifying that “[s]earches started between 6 a.m. and 8 p.m. may continue during the night;” “[d]omicile searches can be conducted by prosecutors (as well as by agencies competent in matters of national security) during the night, too.” (emphasis added) The first provision authorizes any search made during the night, on condition that it is started between the specified hours, while the second one eliminates even this pseudo-limitation by restricting only the agencies competent to conduct night searches. Both provisions are unconstitutional. The emphasized and bracketed text in the quotation above is drawn from the volume “Legea Politiei nr.26/1994 si alte acte normative utile pentru aplicarea acesteia” (“Police Law no.26/1994 and Other Legal Texts Relevant for Its Enforcement”), edited and annoted by Radu Stancu, Esq. (Bucharest: Romfel, 1994). It is worth mentioning that, although art.205 of the Criminal Procedure Code — stipulating the competencies of the “[state] security agencies” over matters of penal offenses — has been repealed, art.103 has not been modified as yet. As before 1989, it specifies that the “[state] security agencies” (not the “agencies competent in matters of national security”, as updated by the mentioned author) are authorized to conduct night searches. It may be argued that this part of art.103 is obsolete and should no longer be enforced, considering the 1991 Constitution, the National Security Law and the Romanian Intelligence Service Law, all adopted after 1989. Why then did the mentioned work make no specification in this direction?
In any event, it is difficult to explain the current lack of legislative initiative to modify art.103 on the night searches, even if conducted by a prosecutor. This article is unconstitutional.
d) Criminal investigations in cases involving police officers
Art.24 of the Police Law stipulates that “[p]olice officers authorized to act as criminal investigation agencies are appointed by order of the general police inspector.” On the one hand, it is natural for the Ministry of Interior to investigate its own employees suspect of having violated the law. The Ministry decides, according to the results of the investigation, upon sanctions such as administrative fines, disciplinary transfers, de-activation, etc. On the other hand, the Military Prosecutor’s Office is the judicial jurisdictional authority in matters of investigation of all military personnel, police included. Military prosecutors carry out their investigations without taking into account the results of the investigations conducted by the Ministry of Interior. There are, however, situations when, due to a shortage of personnel (there are around 80 military prosecutors for the whole country), military prosecutors solicit the collaboration of the investigation agencies within the Ministry of Interior in order to investigate cases of police officers suspect of having violated the law. This only further fuels suspicions as to the objectivity of this type of investigation.
During a meeting with representatives of the General Prosecutor’s Office, APADOR-CH was informed that, following an order dated March 31, 1994, of the General Prosecutor, who supervises the activity of military prosecutors, too, the investigation of cases involving police officers suspect of misconduct (art.250 para.2 of the Penal Code) will be exclusively performed by the Military Prosecutor’s Offices. In the opinion of APADOR-CH, the next step towards a real demilitarization of the police would be for the law to include provisions allowing victims of police abuse to request from civilian courts to grant them appeals against decisions of the Military Prosecutor’s Offices. As a matter of fact, this right is enshrined and guaranteed by the Romanian Constitution in art.21: “(1) Every person is entitled to bring cases before the courts for the defense of his[/her] legitimate rights, liberties, and interests. (2) The exercise of this right may not be restricted by any law.”
e) Torture and other cruel, inhuman or degrading treatments
Art.27 of Law 26/1994 prohibits police officers to inflict upon any individual “physical or mental suffering” in view of obtaining information or confessions, or in order to punish, intimidate or pressure. Para.2 of the mentioned article refers to torture, which is banned under any circumstances “whatsoever” (including war time or threat of war, internal political instability, etc.) According to art.3 (from which member states may not derogate) of the European Convention, “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Para.2 of art.27, though, mentions only torture, despite the fact that inhuman or degrading treatment or punishment should be equally banned, irrespective of the circumstances under which they take place.
f) Law no.61/1991 on sanctioning misdemeanours
The Law on sanctions for violations of social cohabitation norms, public order and peace (no.61 from September 27, 1991) is another legal text regulating police activity in Romania. Art.2 of the law lists a large number of misdemeanours (lit.a-x), some of which allow for abusive action on behalf of the police. For instance, lit.a) provides that “the perpetration, in public, of obscene deeds or gestures… of a nature to disturb public order and peace or to provoke indignation among citizens or offend the dignity and honour thereof or of public institutions” (emphasis added) shall be punished. It is not clear how one could offend the dignity and honour of public institutions — a misdemeanour punishable by fine. Under lit.d) “unrightful possession of knives, switch-blade knives, brass knuckles ….or other such objects machine-produced or manufactured for the specific purposes of cutting, piercing or hitting…” (emphasis added) is punished. It is thus possession (not use or threat of use) that is punished by prison terms from 1 to 6 months or by a fine. Would scissors, Swiss army knives, or needles be also listed under lit.d)? Lit.t) — punishing by fine refusal of an individual to produce identity documents or to go to a police station “upon the request or motivated invitation of the criminal investigations or public order safeguarding agencies” — is a provision that led to a large number of abuses committed by police officers. First of all, because “identity documents” are still understood by the police to be represented only by the identity card, or at best, by one’s passport; no other document is considered valid, be it a photo permit, certification, or any other proof of identity. Secondly, because the “request or motivated invitation” has often been proven to be abusive and used as a means of intimidation. The same for lit.u), which punishes “obstruction under any form” of police or criminal investigators identifying or leading individuals to police quarters.
By virtue of Law 61/91, appeals to the punishments applied under this law have to be requested within 15 days and are judged by a one-judge panel; upon the request for another appeal of either the individual concerned or of the prosecutor in the case, the panel includes two judges of the same court. The sentence pronounced in this last case is final and enforceable. Law 61/91 does not further specify the way in which the fine should be applied (for this, see art.40 of Law 32/1968 on the definition and punishment of misdemeanours), except for the fact that it should be paid within 30 days from the date when the sentence becomes final. Likewise, the law does not mention other possibilities to enforce the fine by other venues such as subtracting it from the incomes or possessions of the offender, but it allows for directly converting the fine into contraventional prison, by dividing the sum to be paid as fine by 300 lei per day of prison.
In case the fine is not paid within the 30-days deadline, the police may ask a civilian court to rule to convert it into contraventional prison. APADOR-CH has recorded two cases in which courts, upon the request of the police, converted fines into prison, although the alleged offenders contested the contravention reports within the legal deadline and the lawsuits were pending before the court; these situation were subsequently rectified and the persons concerned were released.
According to the law, the conversion of fines into prison is made by dividing the sums representing the fine by 300 lei per each day of prison term; the result cannot exceed 180 days, though. A Government Ordinance from August 1994 (approved by the Parliament by Law 129 of December 21, 1994) multiplied all current fines up to 50 times; however, the system of dividing this new sum to 300 lei per day was not changed accordingly. It is obvious that the conversion of the current fines into prison terms based on the same 300 lei per day divider would result in convictions of maximum prison terms, as they are specified by Law 61/1994.
As for the right to defense, it raises the following question: how could one exercise this right as long as, in cases of arrest based on Law 61, alleged offenders are presented before the court within 24 hours from their arrest (holidays included) or, exceptionally, within 5 days, if there is an arrest warrant issued by a prosecutor? What happens to alleged offenders under arrest/custody who do not know any lawyer? From a practical point of view, if a person is placed under custody/arrested on a Friday, Saturday or Sunday, he/she has to wait at least until Monday, when the bar can delegate a defense lawyer ex-officio. It is also unlikely that during weekdays this issue can be solved within 24 hours. In other words, the right to defense works effectively only in the exceptional situations in which the prosecutor issues a 5 days arrest warrant.The very short deadline (24 hours or, exceptionally, 5 days for the first instance and 24 hours for re-examination) does not allow for the preparation of the defense, be this made by a defense lawyer or by the alleged offender him/herself (as it happens in most cases). The re-examination itself (24 hours) does not offer any guaranties in terms of effective appeal.
The analysis above clearly shows that Law 61/1991, which preserves an emergency procedure unjustifiable in the current Romanian conditions, offers a large range of potential violations of the rights provided under art.5 and 6 (the rights to personal liberty and to a fair trial, respectively) of the European Convention, as well as the right to defense enshrined in art.24 of the Romanian Constitution.
There is another unresolved issue relating to the legal framework within which the Romanian police functions: the Status of Police Officers, whose draft law was supposed to be forwarded for adoption to the Romanian Parliament within 90 days from the adoption of Law 26/1994. The deadline passed by the end of August 1994; by late December 1994 this document meant to regulate important aspects of the relationship between police and individuals was not forwarded to the Parliament yet.
SIGNIFICANT INDIVIDUAL CASES DOCUMENTED BY APADOR-CH
a) Cases started in 1993
1. The Comanesti (county of Bacau) case
On November 22, 1992, the brothers Ciprian and Florin Banu from Comanesti were lethally shot in their own yard by police officers from the same locality. A third brother, Aurel Banu, against whom an arrest warrant had been issued for a previous offence, escaped the police but was arrested the next day. Likewise, during the November 22 incident, the father of the Banu brothers was also wounded in the leg by a gunshot. The data gathered during fact-finding missions and extra-judicial investigations led APADOR-CH to the conclusion that the intervention of the police was disproportionate in relation to the offence perpetrated by the Banu brothers (they had started a scandal in a local disco, resulting in insults, broken glasses, etc.).
The investigation of the Bacau Military Prosecutor’s Office concluded that no charges be brought against the police officers involved in the incident on the grounds that they acted in self-defense. In all subsequent meetings with representatives of the Ministry of Interior, and of the Bucharest and Bacau Military Prosecutor’s Office, APADOR-CH brought up the disproportionate use of force in the Comanesti case. While Aurel Banu was serving his sentence for the offence committed previous to the November 22 incident, the Comanesti police solicited that he be prosecuted for outrage perpetrated against police officers on the occasion of the mentioned incident, when the police made use of firearms. His file was returned by the court to the Prosecutor’s Office for completion. In June 1994, the Military Prosecutor’s Office notified APADOR-CH that they requested to see the files of the two cases with a view to analyzing the initial solution. Until late December 1994, APADOR-CH did not receive any further information.
2. The Costel Covalciuc case (Dorohoi)
Arrested on June 29, 1993, judged according to the emergency procedure and sentenced to 3 months in jail for breaking Law 61/91, Costel Covalciuc, father of 6, died on July 4, 1993, in the police lock-up or in the police van, on the way to a hospital. The Military Prosecutor’s office investigated the case and concluded that Covalciuc died of a heart attack and, consequently, the Dorohoi police cannot be held liable for his demise.
There have been allegations relating to Covalciuc’s death coming from the parents of the deceased, but also from APADOR-CH, whose representatives visited Dorohoi three times. According to Covalciuc’s parents’ testimony, he had bruises on his chest, traces of violent attack on the head and wounds indicating cuffing. The post-mortem made first in Dorohoi and then on separate organs in the Forensic Section of the Iasi County Hospital established heart-attack as the cause of death, without any mention as to what might have provoked it.
Covalciuc’s parents requested the excavation of the body for a second autopsy. The Military Prosecutor’s Offices Department decided to complete the investigations but refused to unearth the body. The initial decision was eventually confirmed, absolutely clearing the Dorohoi police officers. They were not even held liable for the fact that, despite being responsible for the physical and mental integrity of offenders under arrest or custody, they did not ensure a health check at the time of Covalciuc’s arrest, which might have helped to save him, and did not react promptly by calling a doctor and taking the man to hospital, which also might have avoided Covalciuc’s subsequent death. As a matter of fact, the idea that the police is responsible for the physical and mental integrity of those under its custody is hardly accepted among the police officers themselves.
3. The Dorel Dinca case (Bors)
On February 20, 1993, Dorel Dinca, a watchman in a private parking lot from Bors, was beaten up by three police officers. As the forensic certificates prove, Dinca subsequently had to be placed under medical care for as long as 12 days. Following the complaints filed with the Military Prosecutor’s Office and the Ministry of Interior, the Oradea Military Prosecutor’s Office carried out investigations that initially concluded by a no-indictment decision for the police officers involved in the case. The investigations also concluded that the police officers had hit Dinca and punished them by administrative fines. Upon the insistence of APADOR-CH, the Military Prosecutor’s Office Department within the General Prosecutor’s Office invalidated the first decision in April 1994; in June 1994, officers Gheorghe Mihalcea, Mihai Palcut and Carol Varodi were prosecuted on charges of abusive conduct under art.250 para.2 of the Penal Code. The first instance, the Timisoara Military Court, fined them by 150,000 lei each, which represents too light a punishment for the deed they committed and pleaded guilty of, but the Military Prosecutor’s Office appealed this decision. The higher court decision is still pending.
4. The Andrei Zanopol case (Galati)
A journalist with the local publication “Impartial” and a correspondent of some Bucharest-based dailies (“Ora” and “Ziua”), Andrei Zanopol was arrested on June 27, 1993, and charged with influence peddling for a deed he had allegedly perpetrated in 1991. Upon his arrest, two plain clothes police who did not have a warrant, handcuffs or a police van with them, immobilized Zanopol by tying his hands with wire to a metal bar, and then beat him. The incident occurred around 8 p.m., during daytime, between apartment buildings in the Mazepa neighbourhood in Galati. He was subsequently taken to the police station, where — according to him — was further beaten. Upon the request of Zanopol’s defense lawyer and of APADOR-CH, the case was transferred to Bucharest. At the end of an investigation that lasted 21 days, during which Zanopol was kept in the police lock-up, the Criminal Investigations Department no.1 within the General Prosecutor’s Office decided to drop charges. However, in order to probably justify his being held in detention, Zanopol was punished with an administrative fine, decision which he contested.
The Iasi Military Prosecutor’s Office (which has jurisdiction over Galati) investigated the brutal conduct of the two non-commissioned officers — Ion Dima and Costin Cotoranu — who had arrested Zanopol and decided not to prosecute them. Upon the insistence of APADOR-CH, the Military Prosecutor’s Offices Department decided to complete the investigations, which lasted until November 1, 1994, when the following conclusion was reached: “Since the person concerned (Andrei Zanopol) resisted arrest, and, at the same time insulted and threatened the police officers, they immobilized him by means of force, tying his hands with wire and cord to a metal bar…Under these circumstances, the evidence, including the forensic reports, points to the fact that Zanopol was injured and needed to be placed under medical care for 7-8 days…Considering the mentioned circumstances, the Iasi Military Prosecutor’s Office appreciates that the conduct of the two police officers should be punished by means of an administrative fine under art.91 of the Penal Code.” (emphasis added) It has thus been admitted that the two police officers have acted with brutality and the victim needed medical supervision as a consequence of their misconduct. It is clear though that “immobilization by means of force” alone, be it with the help of wire and cord could not cause injuries that needed medical care for so many days; obviously, the two police officers had beaten Zanopol savagely. However, the final decision is not to prosecute them.
On the evening of November 9, 1994, Zanopol together with Sorin Titei and Viorica Caprita, municipal council member, were attacked by 5 employees of the private company “Autobloc” (towing illegally-parked vehicles) in the presence of several police officers that did not intervene in the incident in any way. Zanopol and Titei were there in their capacity of journalists with “Impartial,” trying to investigate a conflict between the above-mentioned municipal councillor and employees of “Autobloc”. During the incident, the aggressors destroyed a camera and a tape recorder belonging to the “Impartial” publication. As of this writing, the complaints lodged with the Galati Police have not received any answer. Zanopol and Titei also complained to the Iasi Military Prosecutor’s Office about the passivity of the police officers witnessing the incident.
5. The Ion Trifan case (Bucharest)
Ion Trifan was one of the victims of the miners who plundered Bucharest in June 1990. Between June 14-21, 1990, he was “held” in the military unit of Magurele “for investigations”. The moment he was taken there, he was confiscated everything he had with him, including a sum of money — rather large at the time — destined for the purchase of health treatment resort tickets. No report was made and nothing could be recuperated after his release.
Ion Trifan decided to sue the authorities, i.e. the Ministry of Finance, the Legal and Administrative Review Department, asking for moral and material damages. After many delays, Civil Section no.4 of the Bucharest Court pronounced sentence 31 on January 18, 1994, rejecting Trifan’s claims of 600,000 lei worth of damages; the reasoning was that the complainant could not prove the connection between his 8-days “arrest” — without a warrant — and the deterioration of his health condition, on the one hand, and, on the other hand, that those who confiscated his possessions could not be identified. Consequently, considering his material damage claim unjustified, the claim to moral damages was also “forgotten”. Moreover, Ion Trifan had to prove that no warrant had been issued in his name to justify his detention in the Magurele military unit. It was only in November 1994, that the Military Prosecutor’s Offices Department and the Prosecutor’s Office with the Bucharest Court issued documents confirming the fact that no arrest warrant had been issued for both cases (resulting from the splitting of the initial file) concerning Trifan. The Court of Appeal, seized by Trifan after the rejection of his case by the first instance, refused to include new documents in the file and rejected his claim once more. The appeal filed again by Trifan is due for 1995.
The Ion Trifan case is clear: an individual was held under arrest illegally for 8 days, under very harsh conditions, without having perpetrated any crime. There is evidence to show that a decision not to prosecute him had been taken, and there are two notifications of the fact that no warrant was issued for his arrest. Trifan was therefore placed under arrest illegally in June 1990. He is therefore obviously entitled to be paid damages by the state, which is responsible for the conduct of its agencies. The Romanian judiciary, however, has been procrastinating for almost 4 years taking a decision in this case.
b) Cases taken up in 1994
1. The Ionel Buzoianu case (Bucharest)
At the end of 1992, three officers of the Bucharest Traffic Police Brigade arrested Ionel Buzoianu. The police officers then showed up at the domicile of the suspect and carried out a domicile search in the presence of his girl-friend, confiscating a number of possessions — which were subsequently returned to the owner — and an important, according to Buzoianu, sum of Deutsch marks, never returned to him. Buzoianu notified the Military Prosecutor’s Office, accusing the police officers that arrested him and conducted the search of abusive conduct. On March 31, 1993, he was summoned by the Bucharest Military Prosecutor’s Office for April 8. But on March 1, he had already been arrested and prosecuted under the charge of offense against the authority for having written in graffiti on his brother’s car, parked in a public place, that “the traffic police commander forces his employees to accept bribes so that he can buy himself a villa.”
The court had not made any judgement for one year and a half, between the time of his arrest and early September 1994 when he was released, as to the charges brought against him under art.238 of the Penal Code. According to the Romanian law, an individual may be held under preventive arrest for as long as half of the maximal sentence provided in the law for the offence he had allegedly perpetrated. In Buzoianu’s case, the Penal Code prescribes a maximal sentence of three years. As of this writing, neither the court made a judgement as to the charges brought against him, nor the Military Prosecutor’s Office considered his complaint of abusive conduct of police officers, a complaint lodged more than two years ago.
APADOR-CH repeatedly notified the General Prosecutor, the Military Prosecutor’s Offices Department, and the Ministry of Justice as to this case, and visited Buzoianu in the Bucharest Penitentiary in August 1994. Buzoianu has a criminal record containing several convictions (for theft of public or private property). His detention under preventive arrest for one year and a half on grounds that, on the one hand, he is a repeat offender, and, on the other hand, that he had expressed an opinion, is in violation of art.5 para.1 of the European Convention (liberty of the person) and of art.10 of the same document (freedom of expression), the exercise of both rights being guaranteed also under the Romanian Constitution.
2. The Emil and Virgil Macau case (Victoria)
In May 1991, Emil Macau, together with his wife and their five children, left Romania and, according to their own statements, were granted political asylum in Hungary in August 1992, based on allegations of abuses of Romanian authorities and violations of minorities’ rights (the Macau family belongs to the Roma minority). In April 1993, the Macaus were repatriated from France to Romania: the French police had caught them only with their Romanian passports with no French visas. According to the Macaus’ statements, this was due to the fact that their documents — issued by the Hungarian authorities — had been stolen from them during their stay in France. Upon their return to Romania, the police in the town of Victoria invited Emil Macau at the police quarters in order to register him, in keeping with the new regulations allegedly instituting a special registration procedure for repatriated Romanian citizens. Afraid of repercussions, Emil Macau refused to go to the police quarters, triggering thus a long history of harassment and persecution that continues to this day. Thus, Emil Macau was repeatedly fined under Law 61/1991 for refusal to come to the police quarters (even in the cases when he had been the one to complain to the City Hall against the police), inebriety, disturbance of public peace, and disturbance of the peace of citizens. Although he considered the fines to be unjustified, Emil Macau paid them each time, hoping to avoid further problems with the police.
According to Emil Macau’s wife, in March 1994 the local police conducted a domicile search without having a previously issued warrant or a report made following the search. The Ministry of Interior denied these allegations. In February 1994, Emil Macau had an argument in a restaurant with an individual who subsequently reported to the police that Macau had hit him and broke his leg, following which he needed to be placed under medical care for 80 days. The Fagaras Prosecutor’s Office started the investigations and summoned Macau to testify. He did not go to their quarters, and consequently, a subpoena (requiring law enforcement officers to bring him before the prosecution) was issued.
In April 1994, Emil Macau and his brother, Virgil Macau, while shopping in a local store with their wives, were beaten and forcibly taken to the police quarters (in Victoria) by police officers invoking the above-mentioned subpoena issued by the Fagaras Prosecutor’s Office. According to the law, Emil Macau was supposed to be taken directly to the Fagaras Prosecutor’s Office, without being brought first to the police station. The two brothers say that the police officers continued to hit them in the presence of the prosecutor (who had come from Fagaras to Victoria) and that they were forced to sign statements whose content was not known to them. After approximately one hour, the Macau brothers were taken to the Fagaras police quarters and tried under the emergency procedure prescribed by Law 61/1991 for obstructing criminal investigations or public order maintenance agencies from carrying out their duties. Emil Macau was sentenced to 60 days prison term and Virgil Macau to 40 days. While held in the Fagaras police lock-up, Emil Macau was visited by Deputy Imre Andras, Vice-President of the Human Rights Committee of the Chamber of Deputies, who confirmed that the former had been subjected to physical violence and that it turned out from the file of the two brothers that they did not have a lawyer and had not been informed of their right to appeal for the re-examination of the case.
Following discussions with the commander of the Victoria police, major Gheorghe Maftei, APADOR-CH believes that the case of the Macau brothers involves indeed a series of human rights violations. The commander maintained at first that the special attention the Victoria police paid to the Macaus originated in the fact that in 1992, before leaving Romania, Emil and his wife Maria Macau had been fined for travelling by train without tickets and that this unpaid fine had been converted into contraventional prison terms. However, later on, it turned out from the discussion that the mentioned incident had no bearing to the series of persecutions started after the Macaus return to Romania, as the prescription deadline had passed by that time. As far as the Macaus’ arrest in April 1994 is concerned, the Victoria police commander specified that it was carried out based on a subpoena issued by the Fagaras Prosecutor’s Office, and that, even though at the time of the arrest the validity of the subpoena had passed, the document remained in force until the person concerned was found. Such a statement is in obvious conflict with the provisions of the Criminal Procedure Code, which specify that such a subpoena has to mention the day, time and location where the person concerned has to be brought. Moreover, the Victoria police commander was totally convinced that the enforcement procedure for such a subpoena issued by the Prosecutor’s Office is to bring the person concerned to the police station first, for interrogation, and only then to the Prosecutor’s Office that had issued the subpoena. Not even the fact that the military prosecutor from Brasov — assisting to the meeting — confirmed APADOR-CH’s doubts on the matter could convince the Victoria police commander that it is the prosecutor who conducts an investigation, while the police is entirely subordinated to the prosecution.
This attitude of the police commander demonstrated to the APADOR-CH representatives how little police officers from small localities in the province know about the Romanian legislation and the international human rights documents ratified by Romania.
Following the notifications of the General Secretariat of Amnesty International and the pressures of APADOR-CH the Military Prosecutor’s Offices Department within the General Prosecutor’s Office decided that the Brasov Military Prosecutor’s Office start an investigation in the case. As of this writing, APADOR-CH has not yet received an answer to the matter.
3. The Ioan Epure case (Lunca Pascani, Iasi)
In March 1993, Ioan Epure was arrested by the Pascani police under charges of homicide. The suspect notified APADOR-CH that, during investigations, the police in charge of his case had taken statements from him by means of violence: he was hit on his naked body with wire and rubber sticks, he was placed a wood board on his chest while the police officers would hammer it, etc. From the discussion with Epure, detained in the Iasi penitentiary, it turned out that the Iasi Military Prosecutor’s Office, notified of these abuses, had decided not to prosecute the police officers accused by Epure. Notifying the Military Prosecutor’s Offices Department within the General Prosecutor’s Office, APADOR-CH was answered, in April 1994, that the investigation conducted by the Iasi Military Prosecutor’s Office were incomplete and the decision not to bring charges against the police officers was not founded. Consequently, the initial decision was invalidated and prosecution of the police officers charged now with abusive conduct started. Until late 1994, the case had not been solved.
4. The Liviu-Petrisor Oprea case (Cimpina)
Liviu-Petrisor Oprea, a young man of 19, was arrested in the bar where he worked as bartender and then taken to the Cimpina police quarters, on basis of Law 61/1991, on the evening of April 11, 1993. According to his parents, the arrest originated in the fact that their son had refused to credit on a police non-commissioned officer, who wanted to “offer a drink” to some of the people present in the bar that evening. Once inside the police station, according to Oprea, the non-commissioned officer hit him with his fists and a stool on the head. Upon his arrival at the police station, Oprea’s father found his son, Liviu-Petrisor, laying on the ground with clear signs of violence on his head, and surrounded by pieces of a broken stool. Notified of the youth’s condition by Oprea senior, the officer on duty in the police quarters took immediate action to transfer the victim, accompanied by two other officers, to the local hospital in the police van. The local hospital, as other two hospitals later on (Hospital no.9 and the Central Military Hospital), diagnosed a “skull trauma.”
Notified as to this case (in which all evidence, numerous medical documents included, indicates that Oprea was violently attacked, and that this could have only taken place during the time the victim spent under police custody), the Ploiesti Military Prosecutor’s Office decided, however, not to bring charges against the police officer responsible for Oprea’s condition. The military prosecutor in charge of the case ignored all medical certificates issued by specialized doctors and requested the Bucharest Forensic Institute to examine Oprea once again, nine months after the incident. Obviously, the Forensic Institute last report did not maintain the previous diagnosis, however without excluding the possibility that a trauma had occurred several months before the examination. The Ploiesti Military Prosecutor’s Office issued a no-indictment decision based solely on this document.
From its own investigations, APADOR-CH considered this solution to be obviously unfounded and communicated this conclusion to the Military Prosecutor’s Offices Department, which, in July 1994, decided to invalidate the initial solution and complete the investigations, assigning the case to another prosecutor. Until December 31, 1994, APADOR-CH received no communication as to the final solution of the case.
In the opinion of APADOR-CH, the Oprea case is a typical example of the difficulty, if not outright impossibility, of a civilian victim to seek redress for violence inflicted in the police quarters. At the same time, the fact that there is no consideration shown for the obligation of the police to ensure the physical and mental integrity of the persons placed under their custody is the best indication of the perpetuation of the old mentalities and habits.
5. The Ioan Neagu case (Brasov)
Ioan Neagu is well-known in Brasov for the long labour conflict he had with the S.C.Fartec company. On September 30, 1994, Ioan Neagu was waiting around the part of the company grounds to be visited later by President Iliescu. Two S.C.Fartec watchmen and one police officers requested that he leave the premises, but Neagu explained to them that he had no intention to speak to the President or to provoke any scandal. A few minutes later, Neagu was surrounded by a group of police officers, who hit him and pushed him into a police car that took him to the police station. He was held there for almost two hours, after which he was released, without any charges having been pressed against him. The medical certificate states that Neagu had been hit. Ioan Neagu complained against the police officers, whom he accused of abusive behaviour and notified APADOR-CH, too. As of this writing, neither our organization, nor the victim of the abuse, received any communication as to the stage of the investigations in the case.
6. The Gabriela-Ioana Gavrila case (Bucharest)
On July 4, 1994, Gabriela-Ioana Gavrila was hit by two police in the hall-way in front of her apartment. She was then dragged to the elevator, forcibly pushed into the police car, while continuously insulted and threatened. She was taken to the Sector 3 Prosecutor’s Office — although the police involved in the incident belonged to the Sector 1 — where she was interrogated briefly and subsequently released. Gabriela-Ioana Gavrila went immediately to a hospital where she obtained a medical certificate confirming the beating and the subsequent haemorrhage triggered by the blows she had received.
Gabriela-Ioana Gavrila lodged complaints with the Military Prosecutor’s Office and the Ministry of Interior as to the abusive conduct of the police officers. There is also an eye-witness in the case, who made a written statement concerning the incident. APADOR-CH monitors the investigations in this case and has taken upon itself the victim’s legal defense. As of December 31, 1994, no communication was received as to the stage of the investigations.
c) Cases investigated by APADOR-CH in penitentiaries
Following individual complaints coming from detainees or relatives thereof, APADOR-CH considered necessary to extend its activity upon detention places as well. This was additionally motivated by the fact that Romania ratified in 1994 the European Convention for the Prevention of Torture, scheduled to enter into force in February 1995. APADOR-CH decided to study detention conditions only from the perspective of individual complaints.
A first observation concerning the APADOR-CH’s relationship with the Penitentiaries Department within the Ministry of Justice would be that there is manifest willingness to collaborate with organizations representing the civil society, despite the tendency to permanently invoke the obsolete notion of “state secret,” even in connection to the internal regulations of penitentiaries. If a comparison were made between the different degrees of openness of Romanian law enforcement agencies, it would suffice to mention that, while the Ministry of Justice and the General Department of Penitentiaries authorized all visits to penitentiaries requested by APADOR-CH and made available for consultation (true, only at the quarters of the two institutions) the internal regulations of penitentiaries, the Ministry of Interior denied access to police lock-ups regulations (different from those of the penitentiaries) and refused APADOR-CH a permit to access Bucharest police lock-ups expediently, with no prior notification, having in view the rule of the 24 hours prescribed for custody without an arrest warrant.
1. The Radu-Daniel Achim case (Bucharest)
Radu-Daniel Achim, a young man of 16, was sentenced in 1992 to two years and six months internment in the Special Labour and Re-education School in Gaiesti, being found guilty of theft. In August 1993, he was placed in the Jilava Penitentiary hospital under the diagnosis of lung tuberculosis. On January 14, 1994, he was transferred to the Filaret TB Hospital, where he died one week later. From the investigations carried out by APADOR-CH it turned out that Achim’s death was due to the late diagnosing of his condition while at the Special School from Gaiesti and the long bureaucratic procedure of approval of transfer to the Bucharest TB hospital. Achim was brought to this last place in extremely critical condition, with no real chances to survive: TB in both lungs, acute renal failure and cachexia. According to the medical experts consulted by APADOR-CH, the period elapsed between the time the patient solicited the suspension in serving the sentence in order to take care of his health (October 10, 1993) and the date the court decided to grant this request (January 13, 1994) was too long for Achim’s condition. APADOR-CH notified the Ministry of Justice, supervisor of detention places. Likewise, the Military Prosecutor’s Office has started investigations relating to the cause of Achim’s death. As of this writing, the investigations are ongoing.
2. The Marian Tudorache case (Gherla Penitentiary)
In May 1994, prisoner Marian Tudorache brought to APADOR-CH’s attention the degrading treatment inflicted upon him in the Gherla Penitentiary. The fact-finding mission, conducted by APADOR-CH on the location largely confirmed his allegations: he was illegally and unjustifiably prevented from marrying his girlfriend, herself temporary detained in the Gherla Penitentiary; there is evidence pointing to the fact that Tudorache was subjected to physical violence inflicted by some of the guards; likewise, he was severely punished for attempting to send a letter to APADOR-CH, the letter being withheld on grounds that it “slandered the personnel”.
APADOR-CH informed the General Department of Penitentiaries of these irregularities, as well as of other general problems. At the same time, APADOR-CH solicited and obtained Tudorache’s transfer to another penitentiary, motivated by the hostility of most personnel officers in Gherla towards the detainee.
3. The Relu Axinte case (Gherla Penitentiary)
In August 1990, a mutiny of the prisoners took place in the Gherla penitentiary. Relu Axinte, one of the participants, was sentenced to five additional years in prison. The detainee notified APADOR-CH as to the ill-treatments inflicted upon him by the penitentiary personnel. The fact-finding mission sent by APADOR-CH in 1994 confirmed most of his allegations, in the sense that, for almost two months after the mutiny, the participants in the incident were isolated in a separate building, and kept there with their hands tied and their legs chained. The guards admitted that such punishment had been resorted to at the time; later, the General Department of Penitentiaries forbid such practice. Relu Axinte also stated that they had been ordered to sit on their knees from morning till bed-time, that they had been beaten daily, and that their food ration had been reduced to 6-7 tablespoons per day throughout the investigation period. He also declared that in his case the ill treatments continued, an allegation confirmed by the entries of the penitentiary doctor in his medical record.
APADOR-CH informed the General Department of Penitentiaries of this situation, as well as of the other problems encountered during the visit to the penitentiary. Relu Axinte was transferred to another penitentiary.
4. The Nicolae Gheorghe case (Bucharest Penitentiary)
Prisoner Nicolae Gheorghe complained to APADOR-CH of having been horribly beaten by a supervising officer (guard), following which he had been taken to the hospital in a coma; he also alleged that the left side of his body was paralysed as a result of the beating. Likewise, he complained about not being allowed to challenge a decision of the court which denied his release on parole. APADOR-CH representatives investigating the case in the penitentiary concluded that most of his allegations were not true: the accused officer had not been on duty on the respective day, the prisoner had been taken to hospital long after the date mentioned by him, the medical record had not registered any trauma, while the paralysis he invoked did not exist. On the other hand, the medical record of the prisoner registered a long list of diseases, from TB to spondilosis, but all of them stabilized. Despite all this, on the cover of the medical file, the penitentiary doctor had written in large characters “simulant”. The arguments used by the doctor to support this labelling consisted of the fact that the prisoner simulated fits of blood cough which were actually the consequence of self-inflicted blade cuts in the mouth. According to the doctor, the prisoner behaved in this manner in order to get transferred to the penitentiary hospital under the pretext that his TB had reactivated. For the APADOR-CH representatives who had visited the only penitentiary hospital in the country and seen that it was not only overcrowded, but also totally deficient in terms of food, daily exercise, hygiene, etc., it was hard to comprehend why any prisoner would want to be transferred there. As for the refusal of the penitentiary authorities to allow Gheorghe to appeal the court decision on his release on parole, confused explanations were received from both parties. Finally, it turned out that, upon the prisoner’s request, a decision had been taken to transfer him to another penitentiary where, in Gheorghe’s opinion, he might have better chances for release before serving the whole term in prison.
Likewise, in the Bucharest penitentiary — which has no formal connection to the Bucharest penitentiary hospital, except for their vicinity — APADOR-CH representatives heard the appreciations of a young officer on the subject of suspects under preventive arrest. In his opinion, such individuals waiting for trial should go through a period of “preparation”, of “adjustment to penitentiary life” for two weeks, as “they are all guilty and will therefore be sentenced by the court.” This young officer was thus rejecting the very notion of presumption of innocence. The Bucharest penitentiary, as many similar institutions, does not make a difference between convicts and suspects awaiting trial.
d) Ethnic conflicts; the reaction of the local police
1. The Hadareni case (municipality of Chetani, county of Mures)
On September 20, 1993, following a violent incident between two Roma — brothers Rupa Lupian and Pardalian Lacatus — and one Romanian — Craciun Chetan — the latter was wounded and died on the way to hospital. The two Roma took refuge in the house of a relative, while the villagers surrounded and set fire to the house in order to force them out. The Chetani police officers who had arrived on the spot in the meanwhile attempted to arrest the Lacatus brothers, but were obstructed by the angry crowd. The two Roma were lynched by the villagers, the house was burned to the ground, and a carbonized body was found among the ruins, later identified as the corpse of another Roma, Mircea Zoltan. For several hours after this first incident, despite the presence of the police, the villagers set on fire other 12 Roma houses.
From the facts presented above it follows that the police failed to protect the two Roma from the mob and to prevent the arson. Moreover, the police had already received information about tensions in Hadareni, springing from the dissatisfaction of the villagers with the way in which the local authorities had dealt with their complaints about the anti-social behaviour of the Roma community. Preventive measures should have been taken under these conditions, either by installing a temporary police station on the location, or by putting the Tirgu Mures police and gendarmerie on the alert. After the conflict irrupted, their intervention was not efficient.
The only measure taken until the end of December 1994 (one year and three months after the conflict) was to dismiss colonel Palade, the chief inspector of the Mures county police. A representative of the Council for National Minorities stated that one of the police officers present in Hadareni during the conflict had been arrested. On the occasion of a seminar held in Tirgu Mures in November 1994, a representative of the General Police Department confirmed it, while later on, non-governmental sources from Tirgu Mures denied these facts.
2. The Racsa case (municipality of Orasul Nou, county of Satu Mare)
In Racsa, on May 26, 1994, two Roma men, both living in another village, robbed and killed a Romanian shepherd. The police captured the perpetrators in less than 24 hours and returned 64 of the 66 sheep stolen to their legal owners from Racsa. Three days later, on May 29, the funeral of the victim was held. The participant villagers, inflamed by alcohol, went to the Roma neighbourhood located 2 kms out of the village. The Roma, warned beforehand of the intentions of the villagers, rapidly abandoned their nine households, which were subsequently plundered and set on fire by the villagers. A police patrol from Negresti, which happened to be in the area, could not do anything, as upon their arrival in Racsa, all the Roma households were already on fire. The police maintains that they could not risk to intervene, given the small number of police officers present (three), as compared to the 800-1,000 angry villagers. The violence stopped only upon the arrival of the gendarmes from Satu Mare.
Following the investigations conducted by the county police, the Prosecutor’s Office issued arrest warrants for 13 suspects, who were subsequently released by the Satu Mare court. On June 30, 1994, the indictment of the Prosecutor’s Office with the Satu Mare court charged the 13 mentioned individuals, as well as other 25 persons, with theft of private property, damage to private property (including arson),illegal entry into a residence, and outrage against good mores. The first hearing was held on November 23, 1994, but, since part of the defendants were not represented by attorneys, a new hearing was scheduled for January 18, 1995.
In the Racsa case, the police took action more promptly and effectively than in similar cases. However, one could say that they failed to anticipate the violent reaction of the villagers, under the circumstances within which at least two such incidents had already taken place in the county of Satu Mare (Turulung and Apa). The Racsa Roma refused to come back to the village, despite the insistence of the county authorities that had obtained from the villagers a commitment to rebuild the destroyed houses. The Roma argued that the police in the municipality of Orasul Nou (2 kms away from Racsa) could not guarantee that the incident would not recur. However, the county police transferred another police officer in the municipality, increasing the number of police from two to three.
1. The General Police Inspectorate has demonstrated that it is neither prepared nor willing to collaborate with human rights groups. The opinions of APADOR-CH and the General Police Department differ radically as far as priorities are concerned: the latter consider that police officers perpetrating abuses are exceptions and their cases should not be dwelt upon lest the public image of the police be damaged, while the former believe that abuse victims should be defended and police officers responsible for abuse should be publicly held liable. In the opinion of APADOR-CH, the down-playing or even cover-up of such cases is precisely the factor that damages the reputation of the institution as a whole.
2. Especially in rural areas or in small towns, many police officers have incomplete legal training, even with respect to the Constitution, the Penal Code and the Criminal Procedure Code. As far as human rights are concerned, such police officers fail to understand that suspects under custody or arrest benefit from the presumption of innocence until a court decision becomes final. Although inhuman or degrading treatments — battery included — are banned, there are quite a few cases in which police officers resort to such methods in order to constrain suspects to confess deeds they are held liable for or even other offenses perpetrated by “unidentified authors”, as well as because they are indignant at the crime the suspects allegedly perpetrated (robbery, rape, same sex relations).
3. The professionalism of some police officers, especially of those not operating in large urban centres, is defective; this is demonstrated by their insufficient theoretical training, the alternation of failure to intervene in critical situations with brutal reaction in others, the insufficient knowledge of the many techniques for immobilizing an adversary (otherwise than by disproportionate force), the inability to detect potentially explosive reactions of the civilian population, resulting in a failure to curb violent incidents.The objective difficulties the Romanian police is confronted with are not to be contested, including the lack of properly trained personnel. The current educational system for future police officers emphasizes the idea of hyper-specialization by means of profound theoretical studies. Doubtlessly, experts are necessary in a democratic law-enforcement system, but their presence does not solve the issue of poorly-trained police in rural areas or in the small towns. Intensive several-months courses organized for the benefit of the many young persons interested in joining the police might help the speedy refreshment of police troops outside the large cities.
4. The existence and enforcement of laws such as Law 61/1991 (adopted before the Constitution) offer police officers a legal though unconstitutional chance to violate human rights.
5. The demilitarization of the police is still at the level of aspiration, despite the formal elimination of the term military from Law 26/1994. The status of the police officers, which could have settled many controversial issues in this respect, has not yet been forwarded to the Parliament, although the Ministry of Interior was supposed to initiate the procedure as early as August 1994. As long as police officers accused of abuse are investigated by military prosecutors (sometimes with the help of criminal investigation agencies within the Ministry of Interior), as long as they are judged by military tribunals, and especially as long as victims of alleged police abuse cannot appeal in court the decisions of the Military Prosecutor’s Offices, free access to justice guaranteed to all citizens by art.21 of the Romanian Constitution is still an aspiration.
6.Despite APADOR-CH’s opinion that the Military Prosecutor’s Offices’ jurisdiction over the investigations of police officers should be modified, this institution proved to be more cooperative with human rights groups than the General Police Inspectorate. On several occasions, the Military Prosecutor’s Offices Department seriously considered the arguments and pieces of evidence provided by APADOR-CH following fact-finding and investigations of individual cases of police abuse whose victims were civilians. There have been cases in which the Military Prosecutor’s Offices Department invalidated previous no-indictment decisions and, upon the completion of the investigations, decided to prosecute the police officers concerned.
Special mention should be made of the support provided to APADOR-CH by the Human Rights Service within the General Prosecutor’s Office.
IV. MINORITIES IN ROMANIA
A. THE SITUATION OF NATIONAL MINORITIES
National minorities issues in Romania include a wide range of matters, among which violations of the human rights of the individuals belonging to national minorities. There are enough grounds to take into consideration the collective, systematic dimension of these issues. There are 18 recorded national minorities in Romania. The numbers of minority members differ from a few thousands, in the case of 16 minorities, to 409,723 ethnic Roma and 1,620,199 Hungarians (according to the January 7, 1992, census). The problems and needs of these minorities vary, function of the different ways in which they construe their identity as a minority or as a national group. The approach to the use of mother tongue and to access to education in the language of national minorities differs in the case of ethnic groups comprising of 10-20,000 members from the situation of, for instance, the Hungarian minority, which includes 1,700,000 members and is self-sufficient, in the sense that its members can live and work within this group alone. Likewise, the range of issues the Roma community is confronted with is wider than the narrow group of needs the authorities have so far responded to (publication of periodicals and running performances) and appropriate solutions should be sought immediately beyond this limited cultural domain.
The chauvinist, xenophobic, and anti-semitic campaign in the media continued throughout 1994, as well. An ethnic conflict that followed the same pattern as the previous 30 cases took place in Racsa, county of Satu-Mare: the Roma community was chased out of the village, following the arson of some of the houses. At the same time, at the end of 1993 the Chamber of Deputies was forwarded two national minorities rights bills drafted by the Democratic Alliance of the Hungarians in Romania and by the Council for National Minorities, respectively. A special committee was established for their analysis. 1994 was also the year of the first inclusion into the cabinet of representatives of a political party that defines itself as nationalist: the Party of the National Unity of Romanians. On the other hand, the Romanian Government begun to negotiate with the Hungarian cabinet a good neighbourhood relations treaty which should, in principle, contain references to the rights of the Hungarian minority in Romania.
This complex situation determined APADOR-CH to act simultaneously on two levels: on the one hand, the association drafted studies on principles defining the status of national minorities in Romania, and, on the other hand, continued to carry out investigations and fact-finding missions in cases of violations of the human rights of individuals belonging to national minorities — particularly in cases of collective violence against ethnic Roma.
2.1. The analysis of the draft bills on national minorities
APADOR-CH’s focus on the status of national minorities is, on a conceptual level, in agreement with the concerns of international fora in the field, concerns springing from the notoriety of the reemergence of ethnic tension, of the conflicts from the former Yugoslavia and the former Soviet Union, as well as the reconsideration based on ethnic criteria of the European borders set after World War II, etc. The analyses have focused on legal and political aspects relating to the status of national minorities. The Centre for Human Rights (a section of APADOR-CH) drafted documents which provided a basis for the association’s actions and co-operation with agencies involved (whether directly or indirectly) in national minorities issues in Romania.
APADOR-CH decided at a first stage to debate with representatives of the Hungarian minority its options in terms of the status of national minorities. A meeting between members of APADOR-CH and the main authors of the bill on national minorities drafted by the Democratic Alliance of Hungarians in Romania took place in May 1994, at Tusnad Bai. Later on, in October 1994, the Centre for Human Rights published a Study on the Conception of the Democratic Alliance of Hungarians in Romania on the Rights of National Minorities (printed both in Romanian and in English), analyzing the conception of the Democratic Alliance of Hungarians in Romania on national minorities, as spelled out in the draft bill forwarded to the Parliament in November 1993.
The conclusions of this study are as follows: the draft bill proposed by the Democratic Alliance of Hungarians in Romania is consistent and allows for unambiguous interpretation of the concepts employed in its text. However, the draft proposes concepts that raise serious legal and political issues, requiring separate analyses. The whole draft bill relies on three major concepts. The first one refers to the understanding of minority rights as collective rights which belong to the category of human rights, a theory which, despite the vivid debate around it, has not yet been enshrined in the international human rights legislation. The second principle states that minorities should have the right to define and organize themselves as “autonomous communities”, entitled to “internal self-determination” manifested by means of “personal, local, and regional autonomy.” Finally, the third point is the understanding of the autonomous community as political subject, integral part of the state, and legal entity of public law.
A first observation would be that the ethnic criterion lies exclusively at the basis of these concepts. This is why they can be interpreted from the perspective of the connotations similar concepts have received under international law, connotations which justify reservations. Thus, internal self-determination, when related to autonomous communities constituted on ethnic criteria, under the conditions within which communities can be understood as peoples (an interpretation already enshrined by the literature in the field), can easily loose its qualification as internal, gliding into the principle of self-determination of peoples as such, which can ultimately result in separatism. It should be noted that international terminology interprets internal self-determination as having a different meaning than that employed by the draft bill under discussion — i.e. “popular participation” involving all citizens, not only an ethnic group or particular community, the civic character of the term being the sole component of meaning.
To consider the autonomous community — envisaged exclusively in ethnic terms — a political and legal subject of public law and a constituting factor of the state means, first of all, to admit that the state can be made up of autonomous communities, ethnic or religious minorities, national majorities, etc.. But this entails a radical reinterpretation of the notion of state, opposed to the generally accepted one; present-day terminology defines the state as a political and legal organization having the power to require obedience and loyalty only from its citizens and having institutional relationships with them and not with ethnic communities or national minorities as such. On the other hand, this reinterpretation entails the acceptance of fragmentation and imbalance of the state, in its relationship to the various ethnic “components” (autonomous communities, majority, and minorities), under the conditions within which autonomous communities and minorities become subjects of law, while the national majority is denied this status.
Likewise, to consider a national minority a legal entity of public law means to establish an authority parallel to the state one, as public law regulates relationships established between persons holding authority and persons subjected to it. Two types of consequences derive from this: the first type refers to the relationship between the minority and the state, while the second one includes the relation between minorities and their own members. In the first case, the problem is the institutionalization of a potential competition at the level of the internal and external functions of the state. The granting of this status (claiming the right to internal self-determination of an autonomous community based on ethnic criteria) may lead to a fragmentation of the state sovereignty and to its substitution, at the level of international relations, with the autonomous communities. As for the internal functions, these communities are granted the same prerogatives upon their members — in specific fields relating to the mother tongue and national identity — as the state has upon its citizens. The communities are supposed to have jurisdiction upon their members, irrespective of where they live throughout the country, both in terms of protection and with respect to the obligations they are allowed to impose. But the draft bill does not provide any remedies against potential abuse perpetrated by the autonomous community as a subject of law. Individuals belonging to national minorities appear to be less protected against the autonomous community than against the state, which can be the subject of international procedures in cases of individual-state legal contentions.
At the same time, although it is obvious that de-centralization and administrative autonomy are the most effective means to ensure the exercise of the rights of persons belonging to national minorities, the insertion of ethnic nationalism as a structuring criterion for the state administration and the setting up of territorial-administrative boundaries within the state, on ethnic principles as sole criteria, cannot be accepted.
As for the rights listed in the draft bill as such, there is a number of provisions that are consistent with the international standards in the field and are indispensable to the protection and forwarding of national identity of ethnic groups. However, there is a number of rights that, although similar to those enjoyed by minorities in other states, do not have a correspondent in the Romanian political will, especially when it comes down to amendments to the Constitution proposed by the draft (as is the case of the employment of the mother tongue in the court system, or the allocation of quotas for members of national minorities in the public institutions and the judiciary).
A second study concerned the draft of the Council for National Minorities forwarded to the Parliament in December 1993. (The study was published in January 1995 in a collection entitled Legislation in Transition.) The draft is far from covering all issues relating to minorities rights and is defective in terms of its compliance with international standards. Despite the fact that it contains references to collective rights, it appears to be more interested in stressing the loyalty of national minorities members to the Romanian state and in ensuring financial security and some prerogatives for organizations representing national minorities. Even if some of the individual rights provided in the draft are natural and necessary, the mentioned approach to the whole set of issues relating to national minorities voids the draft of the substance necessary for such an important law.
Among the main observations made by APADOR-CH in the margin of this draft bill, the following should be mentioned:
(a) the text of the bill repeatedly stresses the loyalty of national minorities towards the Romanian state; thus, a presumption of potential subversive activity on behalf of the national minorities organizations is implicitly instituted;
(b) emphasis is laid less on the rights of persons belonging to national minorities (or of ethnic groups as such), and more on the rights of the representative organizations thereof;
(c) there are no prescriptions of natural guarantees, such as the right of national minorities to establish political parties on ethnic criteria provided in Council of Europe Recommendation 1201, which Romania committed to observe;
(d) as a domestic law, it fails to make specific reference to the prescribed proportion of persons belonging to national minorities in regions where the right thereof to address public authorities in their mother tongue would be enshrined; rather, the only reference of this kind is vaguely worded as “substantial proportions;”
(e) the draft bill contains the unacceptable obligation for “young persons belonging to national minorities” to learn the official language; the official language is the one in which authorities address citizens, which does not imply any the obligation for citizens to learn it;
(f) the draft bill defines several offenses, without prescribing punishment or referring to penal law; moreover, the formulations employed in this respect potentially jeopardize freedom of expression.
2.2. The drafting of an alternative bill
Considering that, for the reasons mentioned above, none of the draft bills stands any real chances of adoption, while a positive solution to issues relating to national minorities is a precondition for Romania’s internal stability, the Centre for Human Rights within the framework of APADOR-CH drafted an alternative bill. The main objective of this initiative is the achievement of recognition for the rights of persons belonging to national minorities and providing guarantees for their exercise, individually or in community with others, without resorting to formulations which the Romanian society and political circles are not ready to accept as yet. At the same time, permanent reference was made to the binding international standards in the field.
A few observations should be made in the margin of this last draft bill:
(a) the authors have considered national identity (which includes the use of mother tongue and cultural specificity of national minorities) to be a collective right within the domain of human rights;
(b) the right to promote the traditions of ethnic groups was understood to include the re-establishment of specific institutions in the field of education, religion, etc. (one of the most important issues with the Hungarian minority in Romania being that of the re-establishment of the Bolyai University in Cluj as a Hungarian language higher education institution);
(c) thirdly, the employment of mother tongue in the state administration and bilingual inscriptions was considered appropriate in localities where the percentage of minority members exceeds 20%; this limit is higher than that proposed by the Democratic Alliance of Hungarians in Romania (10%, offering more chances to smaller minorities), as it takes into account the Romanian traditions from the period between the two World Wars, as well as similar legislation from other countries; it should be mentioned that, according to the draft, this threshold can be lowered by the decision of local councils;
(d) provisions called to complement the Constitution were included, starting from the idea that any attempt to amend the fundamental law is regarded with hostility by political circles: any draft law aiming to undertake such modification is bound to fail; thus, while abiding by the constitutional provision that judicial proceedings are carried out solely in the official language (Romanian), the solution of the Centre for Human Rights draft is referring to using mother tongues of national minorities through interpreters provided free of charge in all categories of cases (currently, this system functions only in criminal cases); it is true that this solution does not give satisfaction to ethnic Hungarians (the 1965 Romanian Constitution stipulated using of mother tongue in judicial procedure), but it fully agrees with the provisions of the European Charter on Regional and Minority Languages, which Romania undertook to ratify upon its accession to the Council of Europe.
APADOR-CH followed up on this initiative by means of subjecting it to public debate in order to convince political and governmental agencies to promote the alternative bill. Thus, contacts were established with the Council for National Minorities, and parliamentary leaders representing a wide range of political parties. The end of the winter recess of the Romanian Parliament, in February 1995, will mean for APADOR-CH the beginning of a campaign for obtaining parliamentary support for the alternative minorities draft bill elaborated by the Centre for Human Rights.
3. The relationship with the Council for National Minorities
APADOR-CH continued in 1994 to cooperate with the Council for National Minorities; since 1993, the association has been participating in the meetings of the Council as an observer. In 1994, APADOR-CH representatives made presentations in the seminars organized by the Council for National Minorities, exchanged with this agency documents on minorities issues, and even established a principle agreement to promote a national minorities law.
The strategy used by APADOR-CH throughout its cooperation with the Council for National Minorities was determined by a few factors which emerged from the close monitoring of the activity thereof:
(a) the Council for National Minorities proved to be a useful structure for solving the problems the 16 smaller ethnic groups are confronted with; it offered an important framework for expressing and supporting the interests of these minorities; the Council made a real contribution to the preservation (or, in many cases, the revigoration) of their identities and traditions, by funding publications in the languages of national minorities or projects of their representative organizations;
(b) with its specific means, the Council for National Minorities intervened in narrowing the consequences of Racsa conflict, where Roma households were attacked, plundered and destroyed, while the Roma were chased away from the village; likewise, the Council made efforts to get involved in rebuilding the Roma houses in Hadareni; however, this effort proved to be more of a cosmetic nature (funds allotted for rebuilding houses, or directly to the victims, efforts to mediate between conflicting communities, etc.), as long as it failed to eliminate the factors contributing to the emergence of ethnic conflicts: (i) the persistence of chauvinistic and racial propaganda (even on the national state-owned television channel); (ii) the absence of political will or inability of the state agencies to ensure the necessary protection of the population in small localities against crime and violence; (iii) the emergence of a culture of impunity due to failure to prosecute cases of collective violence against Roma; moreover, in its capacity of governmental agency, the Council constantly tried to deny the ethnic character of conflicts to which Roma fell victims and the responsibility of the Government for such cases; this is why Roma organizations suitably reproach the Council’s inappropriate position on the situation of the Roma minority;
(c) the most controversial aspect of the organization and functioning of the Council for National Minorities, however, is its position of counterbalance to the claims regarding the rights of the Hungarian minority, as advocated by the Democratic Alliance of Hungarians in Romania; as an expression of dissatisfaction with the activity of the Council, this organization announced its withdrawal from this agency in 1993; it is only natural that the Hungarian minority should not receive the same treatment as the smaller ethnic groups; the strategy counteracting the claims of this minority by means of positive actions in the case of the 16 other groups can only be termed as dangerous.
Within this context, APADOR-CH considers that a mediation effort is necessary in order to bring together the Roma and Hungarian organizations with the Council for National Minorities. While maintaining contact with and enjoying the respect of all parties involved, APADOR-CH insisted for a real dialogue between the Government and the two large minorities, in the spirit of fundamental rights and freedoms, non-discrimination and tolerance principles, the Romanian Constitution and international documents, as a pre-condition for reducing the potential for ethnic conflicts.
4. Violence against Roma
In 1994, APADOR-CH continued to monitor cases involving collective violence targeting parts of the Roma community. Following a close analysis of these cases, APADOR-CH concluded that such conflicts have always had an ethnic character, beside their social one; this conclusion has been brought to the attention of the competent authorities. From the investigations conducted by APADOR-CH so far, it turned out that there is a constant pattern followed by all such incidents: an initial tension between Romanians and/or Hungarians, which deteriorates due to failures in punishing anti-social and even criminal conduct of some ethnic Roma; under these circumstances, large groups of local majority members decide to take justice in their hands by setting fire to Roma households, chasing the Roma out of the village, and sometimes even killing or wounding several of them.
Obviously, during the first incidents of this type, this reaction had a social character. However, subsequent developments led to changes in the nature of these conflicts: the authorities, instead of taking immediate action to identify and prosecute culprits (as the rule of law presupposes not only the abidance by the law on behalf of all citizens, but also indiscriminate enforcement of the law), procrastinated investigations (when they started them at all) until the cases waned in the public eye. Thus, the preconception that whenever Roma fall victims the Romanian and/or Hungarian assailants enjoy impunity was formed. Some of these cases have been extensively followed by the media: especially the national state-owned television channel insisted upon the social character of these conflicts and presented them so as to justify the actions of the villagers. At the same time, the media failed to make any reference to the legal consequences of such deeds. These facts encouraged the inhabitants of other villages to apply similar methods in “penalizing” their Roma neighbours.
The outcome of the over 30 cases of violence against Roma is incredible: on the victims’ part, hundreds of burnt houses (only few of which have been rebuilt), a large number of Roma (including old people, women, and children) chased away from their villages, and a few deaths; on the assailants’ part, no arrest made, and only a few convictions for minor offenses related to the incidents. In legal terms, this translates as impunity. This explains why such a position was expressed by one of the local political leaders during a rally in Hadareni. Likewise, it explains why the Military Prosecutor’s Office considered the “penalization” action undertaken by a group of military officers in the Rahova case as self-defense, despite the fact that the spark of the incident had taken place two days before, when an officer had a personal conflict with an ethnic Roma; this led to the invasion of the market place by the former’s colleagues, in uniforms and armed with truncheons, plundering the place and hitting several of the persons present.
By failing to enforce the law or protect the victims, the state authorities were precisely the factor that over time gave these conflicts an ethnic dimension.
4.1. The Racsa village, municipality of Orasul Nou, county of Satu Mare
The only ethnic conflict in 1994 took place in Racsa, county of Satu Mare. On May 26, two Roma youth from another village killed a shepherd from Racsa and stole his sheep. The police identified the perpetrators within 24 hours and returned 64 of the 66 sheep stolen to their legal owners. The funeral of the shepherd took place on May 29, when the villagers decided to tech the Roma in their village a lesson, although the latter had nothing to do with the crime and no conflict between Romanians and Roma had been previously recorded in Racsa. A few hounded villagers went to the Roma neighbourhood (approximately 2 kms away from the village) and set fire to 9 houses abandoned by their owners, who had been warned of the danger. A county police patrol that happened to be in the area went to the spot but could not intervene, due to the disproportion between the number of police officers (3) and that of the assailants (800-1000). The villagers then tried to set fire to the house of a Roma leader, Ioan Varga, but only succeeded to burn one of the separate wings thereof, after they stole electric appliances and electronic devices. The violence was curbed only upon the arrival of the Satu Mare gendarmes.
As opposed to the previous conflicts, the Satu Mare Police Inspectorate (led by commander Fernea) and the county Prosecutor’s Office promptly opened criminal investigations, so that the case was soon completed. The Prosecutor’s Office issued arrest warrants for 13 persons — subsequently released by the Satu Mare Court — and another 25 individuals were prosecuted without having been arrested for charges such as instigation, destruction (arson included), theft of private property, and outrage against good mores, pressed against the entire group of 38 defendants. A first court hearing was held in November 1994; due to the absence of defense attorneys, another hearing was scheduled for January 18, 1995.
The Roma in Racsa refused to return to the village, although the county authorities had obtained promises from the villagers supposed to re-build the burnt down houses. The Roma’s refusal was motivated by the authorities’ failure to guarantee that such incidents would not recur. The county police transferred an additional non-commissioned officer to the Orasul Nou police station, increasing the number of local police to 3; however, the Roma considered that this would not offer them sufficient protection. Consequently, they were offered an apartment building at the outskirts of the county capital.
APADOR-CH made two investigations in the Racsa case and sent its reports to the competent state agencies: the General Prosecutor’s Office, the Ministry of Interior, and the Council for National Minorities. APADOR-CH kept in permanent contact with these institutions, as well as with Roma organizations, and presented its opinion on law enforcement and the activity of the judiciary in the case. Despite the prompt action of the police after the incidents, the opinion that this law enforcement agency cannot cope with explosive situations was once more reinforced in the Racsa case: they are not properly equipped with transportation means and communication devices, which diminishes the effectiveness of any intervention and does not allow them to prevent such situations. At least two similar incidents had taken place in the county of Satu Mare before Racsa (Turulung and Apa), while the Hadareni case was still under public scrutiny at the time of the conflict: these precedents should have alerted the police in Orasul Nou on the day of the shepherd’s funeral. Maybe in this way the incident could have been avoided or at least its consequences — restricted.
4.2. The evolution of the main cases of violence against Roma recorded between 1990-1994
a) Cases investigated by APADOR-CH
In May 1994, representatives of APADOR-CH and of Human Rights Watch/Helsinki visited the locations where the most important cases of violence against Roma took place, looking into the progress of prosecutions and local conditions, generally (the rebuilding of burnt houses, return of the Roma communities, etc). Information was collected both from villagers (whether victims of the conflict or assailants) and from local public authorities.
Municipality of Turulung, county of Satu Mare (January 11, 1990)
Due to a local history of tension owed, according to some of the villagers, to thefts perpetrated by Roma, as well as to the latter’s dissatisfaction with the dismissal of the local mayor, one of the first cases of collective violence against Roma took place in Turulung on the night of January 10/11, 1990. 41 houses were set on fire, out of which 38 burnt down to the ground, and 3 partially destroyed by the fire. On January 12, Stefan and Veronica Varga announced the disappearance of their son, Istvan, age 3. The Roma took refuge in Satu Mare. They were offered material damages (5,000 lei per each child and 10,000 lei per each adult) from the “Libertatea” account, specifically in order to rebuild their houses. The Roma rebuilt 40 houses so far.
The victims filed complaints to the police and Prosecutor’s Office, but, according to their statements, the local authorities demanded that they withdraw their complaints lest they should not return to the village.
In May 1994, representatives of the Satu Mare Prosecutor’s Office declared that they renounced prosecution due to the plaintiffs’ withdrawal of their complaints. In July 1994, Mr. Ioan Rusu, first prosecutor of the Satu Mare Prosecutor’s Office declared to APADOR-CH representatives that the file of the case was not yet complete. The bottom line, however, is that, as of this writing, no one has been arrested or tried for arson and chasing Roma out of the village. Likewise, the disappearance of Istvan Varga has not been elucidated.
The Lunga village, county of Covasna (February 5, 1990)
On February 5, 1990, around 7 p.m., Roma households were attacked and put on fire by 200-250 Hungarian villagers. 6 houses were destroyed and burnt, together with other premises belonging to the Roma inhabitants of the village. 4 of the Roma beaten by the villagers during the conflict died.
According to Mr. Carol Fabian, the prosecutor in charge of the Lunca case, “everything was solved” between March and December 1990, as the villagers paid for the destroyed goods, in exchange for the Roma’s withdrawal of their complaints.
180 villagers were placed under investigation, but, although they did not refuse to go to the Prosecutor’s Office, were not willing to provide information on those involved in the conflict. Prosecutor Fabian maintains that the 4 Roma died due to a large number of wounds inflicted by means of different objects by at least 6 individuals, but it is impossible to establish the author of a specific wound that was the immediate cause of death. Prosecutor Fabian also considers that the authorities could not arrest such a large number of people (50-60 individuals), as such an action would have very serious consequences in a small village like Lunca. As of this writing, the case has not been concluded.
Town of Huedin, county of Cluj (August 20, 1990)
Following an incident in a local restaurant where the waiter refused to attend to a group of Roma, approximately 100 persons from Huedin gathered to beat and chase all Roma in the area. Two Roma were wounded.
Although all Roma interviewed declared that they would like the prosecution to proceed and bring their assailants before the court, the General Prosecutor’s Office stated that the investigations revealed three culprits (all Hungarian) for the violent attack upon the two Roma, but, since the victims reconciled with their assailants, a no-indictment decision was made.
The Mihail Kogalniceanu village, county of Constanta (October 9, 1990)
A number of minor conflicts led to the degeneration of tension between Roma and the other ethnic communities in the village (the Macedonian Romanians or Vallachs, in particular). On October 9, 1990, the villagers gathered in front of the church upon the signal given by church-bells and attacked and destroyed Roma households. 33 houses were attacked, 25 of which were burnt to the ground, while 8 were destroyed. Approximately 200 Roma were left without shelter.
Some of the houses were rebuilt with money paid as damages by the Romanian Government (10 million lei in 1990) and an aid received from Germany (9 million lei in 1991). According to the statement of Mr. Petre Anghel, a local Roma leader, another 28 million lei are need for the completion of all houses; the Roma seek to receive this money as damages in a civil lawsuit.
According to the statement of Ms. Monica Alexandrescu, the attorney of the Roma, 31 victims filed complaints. As of June 24, 1994, none of these complaints were withdrawn. The lawsuit is still pending.
APADOR-CH and Human Rights Watch/Helsinki representatives met on May 16, 1994, with some of the prosecutors in the Constanta Prosecutor’s Office, who declared that the investigations were still unfolding. 13 perpetrators had been identified; some of these had run away from the village and never came back. As of this writing, no one has been arrested; according to the interviewed prosecutors, the reason for this is that they were threatened that, in case they arrest any of the suspects, their own houses would be burned down.
The Bolintin Deal village, county of Giurgiu (April 7, 1991)
In Bolintin Deal, on the night of April 6, 1991, one Roma killed a Romanian during a fight. Although the police arrested the perpetrator a few hours later, on April 7, upon the call of the church bells, thousands of villagers gathered to attack the houses of the semi-nomadic Roma in Bolintin Deal, chasing them away and putting the households on fire. On May 7, some of the Roma attempted to return to the village, but the bells were rung once more, the villagers gathered again and set fire to another 5 Roma houses that had been devastated but not burnt on April 7. A total of 26 houses were thus burnt: 21 on April 7, and 5 on May 7.
As the Roma were not received back in the village, they found shelter in other locations. None of the houses was rebuilt, and many Roma were forced to sell out.
From the declarations of the Giurgiu police and Prosecutor’s Office it turns out that, during the first stages of the investigations, they could not interview any of the Roma, as nobody knew were they had taken refuge. The investigations gradually died and were resumed in March 1994. For two months before the arrival of the APADOR-CH – Human Rights Watch/Helsinki mission in the county of Giurgiu, hundreds of persons were interviewed, out of which 23 victims of the conflicts and 12 suspects. The priest and mayor of the village have been placed under investigation as suspects.
The Ogrezeni village, county of Giurgiu (May 17,1991)
This conflict appears to have been started by a fight during which an ethnic Roma stabbed a Romanian. Consequently, between May 16-17, 1991, the village underwent violent attacks of Romanians upon Roma. 21 Roma households were completely destroyed and burnt. All Roma were chased away from the village.
As of this writing, no house has been rebuilt, and none of the Roma families returned to the village.
From the statements of the Giurgiu police and Prosecutor’s Office, it turns out that there is a number of 11 suspects prosecuted under art.192 para.2, art.271 para.1, and art.321 para.2 of the Criminal Code, all defining minor offenses.
The Bolintin Vale village, county of Giurgiu (May 18, 1991)
The Ogrezeni conflict extended to the neighbouring village, Bolintin Vale, where the villagers attacked and set fire to the houses of the Roma, chasing the latter out of the village. The number of houses destroyed and/or burnt is either 11 or 13, according to the Giurgiu Prosecutor’s Office.
No one was paid damages. Some Roma came back to the village and took shelter in barracks, according to Mr. Emilian Niculaie, one of the representatives of Roma from the county of Giurgiu.
6 suspects were prosecuted, 3 being convicted to prison from 6 months to one year for minor offenses; the serving of the sentences was suspended; the trial of another 2 suspects is still pending, while charges against a sixth suspect were dropped, as the suspect was a minor.
The Gaiseni village, county of Giurgiu (June 5, 1991)
This case, too, is an extension of the conflicts in the neighbouring villages. The villagers chased away the Roma, destroyed and burnt 9 houses.
Some of the Roma came back to the village. The houses, however, were not rebuilt and no damages were paid to the victims. Following an investigation that lasted for more than one year, 25 suspects were prosecuted. As of this writing, the trial is still pending.
The Plaiesii de Sus village, county of Harghita (June 9, 1991)
This conflict between the Roma and the Hungarians in Plaiesii de Sus followed the stabbing of a Hungarian villager by a group of Roma on June 6, 1991. On the same night, an infuriated group of Hungarians violently attacked two Roma passing through the village in a cart; one of them was taken to hospital in a coma, and died. On June 8, 1991, villagers order the Roma to leave. Although the police and the city hall were notified by the Roma, no measure was taken to prevent the potentially violent conflict. On the night of June 9/10, the Hungarian villagers gathered to attack the houses already deserted by the Roma, burning 27 of them.
The local authorities made efforts to convince the Hungarian villagers to receive the Roma back. Consequently, the latter came back a few months after the incident, and lived without shelter until most of the houses were rebuilt.
The Chief County Prosecutor, Ms. Maria Rusu, and her assistant. Mr. Ioan Mihaly, declared that all Roma families in the village had filed complaints and as of May 12, 1994, when the mentioned interview with the Harghita Prosecutor’s Office took place, none of these complaints had been withdrawn. Approximately 450 persons had been interviewed, 30 of whom were Roma victims, while other 400, Hungarians. However, the latter refuse to give any information. As of this writing, the investigations are not completed as yet.
The Rahova square, Bucharest (July 3, 1992)
On July 1, 1992, a sergeant was beaten by a group of Roma in the Rahova square. There are sources that indicate that on the evening of the same day a group of Roma tried to force their way into the domicile of another sergeant of the same military unit. On July 3, the colleagues of the two sergeants decided to go to the Rahova square to identify the Roma responsible for the previous two incidents in order to turn them to the police. Thus, approximately 40 military officers, in uniforms (according to the statements of some of the Roma, wearing masks; this information was not confirmed by the representatives of the Bucharest Military Prosecutor’s Office) and armed with rubber batons, left their quarters and went to the Rahova square around 3 p.m.. Violent incidents took place between the officers and the Roma present in the square.
3 of the beaten Roma have forensic certificates issued in their name, while 9 filed complaints, although the number of molested individuals is much larger. No damages were paid to the victims, and no arrests made.
The Bucharest Military Prosecutor’s Office decided not to prosecute the officers, on grounds that they had acted in self-defense.
The Hadareni village, municipality of Chetani, county of Mures (September 20, 1993)
On the afternoon of September 20, 1993, a violent conflict erupted in Hadareni, following the attack of two Roma (brothers Rupa Lupian and Pardailan Lacatus) upon one Romanian (Craciun Chetan). Lupian stabbed Chetan, the latter dying on the way to the hospital. Shortly after the incident, a few tens of villagers, armed with axes, pitch-forks and seithes, gathered where the spark incident had taken place. The two Roma, together with one of their cousins, Mircea Zoltan, took refuge in the house of a relative. The villagers surrounded the house and set it on fire. At least two of the four police officers from the Chetani station (6 kms away from Hadareni) witnessed the arson. When the Lacatus brothers tried to escape from the burning house, the police tried to arrest them but were prevented to do so by the infuriated mob that proceeded to lynch the two Roma. The carbonized body of Mircea Zoltan was discovered after the fire had been put out. After killing the two brothers, the infuriated villagers continued to set on fire and destroy other Roma houses. Thus, 13 buildings were burnt, while several others were destroyed. All Roma were chased away from Hadareni and took refuge in neighbouring villages.
With the exception of 4 families that stayed in neighbouring villages, all the other Roma families returned to the village after the incidents.
In a rally held on the Hadareni stadium on October 5, 1993, the villagers adopted an open letter to the President, Parliament, and Government, expressing their wish not to continue to live together with the Roma. They invoked the numerous anti-social deeds perpetrated by Roma over the past few years, as well as the fact that most of these were left unpunished. (In the Tirgu Mures Prosecutor’s Office, 7 complaints against Roma had been registered in 6 files; two of these were closed due to the conciliation of the parties; aside from these, 17 Roma from Hadareni had been served with fines during 1990-1993). The speeches held during the rally mentioned similar cases of ethnic conflicts (Kogalniceanu, Bolintin, etc.) when the assailants of the Roma had not been prosecuted. Likewise, the speeches made reference to an alleged promise of the local authorities not to prosecute the villagers of Hadareni for the deeds perpetrated on September 20. Later on, the villagers decided to establish a “council of the wise” in charge of drafting “black” lists with the names of the undesirable Roma.
Despite the authorities’ many promises to legally solve the matter as soon as possible, none of the participants in the killing of Mircea Zoltan and the Lacatus brothers or in the arson of the Roma households was prosecuted as of late December 1994. In the summer, there was an attempt to arrest some of the suspects based on warrants issued by the Prosecutor’s Office, but they were released after a few hours, under the pretext that they needed to work their land. Although prosecutor Dan Petre from the Mures Prosecutor’s Office declared to APADOR-CH and Human Rights Watch/Helsinki representatives that he could issue a number of arrest warrants any time, no one was arrested for arson or homicide by May 11, 1994. This was explained by prosecutor Petre in the same terms as before, in November 1993: the representatives of the Prosecutor’s Office would like to fulfil their duty, but they are themselves subject to political pressure.
The only measure taken so far is the dismissal of colonel Palade, the chief of the Mures County Police Inspectorate.
On the other hand, the Council for National Minorities obtained funds from the Government to rebuild the destroyed houses. As of late 1994, 4 of the 13 burnt houses have been repaired or rebuilt.
The Racsa village, municipality of Orasul Nou, county of Satu Mare (May 29, 1994)
b) Cases documented based on the data provided by the General and local Prosecutor’s Offices conducting criminal investigations
Municipality of Varghis, county of Covasna (December 1989)
Three inebriated Roma broke the windows of the local police station and threatened to kill a few villagers passing in the area. Being subsequently followed by approximately 200 villagers, they took refuge in the house of a relative. The conflict resulted in the death of one Roma and the damaging of two Roma houses. None of the victims filed any complaints.
11 defendants were brought before the court (two of them being placed under preventive arrest) under charges of homicide, attempted homicide and domicile violation. 10 of the defendants were Romanians and one was Roma. The latter had been charged with outrage and destruction. The defendants were sentenced to prison between 5 months and 3-6 years.
Reghin, county of Mures (January 29, 1990)
2 Roma houses and other goods were damaged in the course of a conflict between a group of Roma and 400-500 people. According to unconfirmed information, the local city hall offered apartments to the Roma families left without shelter as a result of the conflict.
On January 31, 1992, following the victims’ withdrawal of the complaints they had filed, a no-indictment decision was taken in favour of the assailants.
Village Casinul Nou, county of Harghita (August 12, 1990)
As a consequence of previously existing tension, over 400 Hungarians destroyed and set fire to the Roma houses in the village. 23 houses were burnt and 150 Roma were left without shelter. All Roma ran away from the village.
Although the villagers vigorously opposed the action, the local authorities supported the Roma’s return to the village, who came back a few weeks after the conflict.
The houses were rebuilt with the financial support of the state, while the Roma families benefited from foreign aid.
In November 1990, the County Prosecutor’s Office decided, based on the opinion of prosecutor Andrei Gabriel Burjan, not to investigate the case, motivating that the conflict had been in the public interest of the village and had originated in the fear of a Roma attack. On February 22, 1991, the General Prosecutor’s Office refused to confirm this solution and sent the case back to the Harghita Prosecutor’s Office. 10-15 suspects have been identified. As of this writing, the investigations are still unfolding.
Village Cuza Voda, county of Constanta (October 7, 1990)
A violent conflict erupted between the villagers here and one of the Roma groups in the village, fuelled by old accumulations of tension. The Romanians threw stones at the Roma, broke windows, and eventually set on fire 34 Roma houses. The Roma filed complaints and were subsequently paid damages by the city hall.
Several persons, most of them Roma, were fined. No one was charged with arson. The prosecutor investigating the case considered that the arson of the Roma houses did not imply any public danger, as they were “lousy tents and barracks,” not houses.
Municipality of Carpinis, county of Timis (March 17, 1993)
Several inhabitants of Carpinis attacked and damaged 5 houses and other goods belonging to local Roma.
On June 9, 1993, the Prosecutor’s Office brought before the court 23 defendants charged with outrage, disturbance of public order, destruction, and battery. The trial is pending before the Timisoara court.
B.THE SITUATION OF SEXUAL MINORITIES
During 1994, APADOR-CH continued the series of protest actions against the criminalization of consensual same sex relations between adults (prescribed by art.200 para.1 of the Criminal Code), based on the conflict between the domestic criminal law, on the one hand, and, on the other, the international documents ratified by our country and the Romanian Constitution. The focus of the activity of APADOR-CH in this direction was determined by: (a) the seizure of the Constitutional Court by a Sibiu court in the case of homosexuals invoking the exception of unconstitutionality; (b) the parliamentary scrutiny of a number of amendments to the Criminal Code.
Following contacts between APADOR-CH and the Constitutional Court, in March 1994 APADOR-CH started a letter-writing campaign involving international human rights groups and foreign organizations trying to influence the decision of the Court in the Sibiu case, as it became clear that this type of information was missing from the original documentation of the case. The International Helsinki Federation for Human Rights, Amnesty International, Federation Internationale des Droits de l’Homme, Human Rights Watch/Helsinki, International Human Rights Law Group, International Commission of Jurists, International Lesbian and Gay Association, etc., responded to the call of APADOR-CH.
The Constitutional Court Decision pronounced in the public hearing on July 15, 1994, ruled as follows:
1. [The Constitutional Court of Romania] partially admits the exception of unconstitutionality relating to art.200 para.1 of the Criminal Code, invoked by B.O.N., B.O., B.L., S.I.C., H.F.P., and N.G.C. by means of files no. 5298/1993, 5711/1993, and 5943/1993 with the Sibiu Court, and notes that the provisions of this paragraph are unconstitutional – to the extent to which they apply to same sex relations between freely consenting adults, not perpetrated in public or not producing a public scandal.
2. [The Constitutional Court] rules against the claim of unconstitutionality related to art.200 para.2 of the Criminal Code, raised by B.O.N. by means of file no. 5298/1993 and by B.L.in file no. 5711/1993 pending with the Sibiu Court.
APADOR-CH appreciated this decision as a step forward from the original legal provisions contained in the Criminal Code, but criticized the reference to “public scandal” contained in the text of the sentence, as there is no legal criminal definition of the notion, whether in theory or jurisprudence, which allows for abusive interpretations and actions. The wording of the decision is similar to that given in early 1994 by the Romanian Senate for art.200 para.1.
APADOR-CH gave special attention to the debates unfolding in the two Chambers of the Romanian Parliament in the margin of the amendments brought to art.200. After the Senate voted in favour of criminalization of same sex relations resulting in public scandal, the Legal Affairs Committee of the Chamber of Deputies eliminated the wording “public scandal” from the draft text of art.200, motivating that the notion is not defined in the Romanian criminal law and could therefore allow for abuse; the mentioned Committee voted in favour of criminalization of same sex relations perpetrated in public. Surprisingly enough, the plenum of the Chamber rejected this version on October 25, 1994, and took the alarming decision to maintain the formulation of the current Criminal Code, punishing with prison from one to 5 years same sex relations between consenting adults, irrespective of the circumstances in which they take place. On October 26, 1994, APADOR-CH forwarded a protest to the President of the Chamber, pressing for the re-opening of the debates on this article when the whole draft bill would be voted on. The APADOR-CH letter was also distributed to all members of the Chamber of Deputies:
To Mr. Adrian Nastase
President of the Chamber of Deputies
APADOR-CH, Amnesty International, International Helsinki Federation for Human Rights, Human Rights Watch/Helsinki, as well as other organizations referred as early as 1991 to the continuous criminalization of same sex relations as being an anachronic situation as compared to the existing international human rights standards. Upon the accession of Romania as a full member of the Council of Europe, we welcomed the commitment made by the Romanian state to harmonize its internal legislation with the provisions of the European Convention. One of the recommendations of the Parliamentary Assembly made express reference to the decriminalization of same sex relations between consenting adults.
In March 1994, the Romanian Senate adopted the draft Law on the modification of the Criminal Code. The wording of art.200 para.1 was changed so as to criminalize same sex relations resulting in “public scandal.” At the time, APADOR-CH expressed its concern regarding the vagueness of the language employed to criminalize same sex relations in this new version, given the fact that the Romanian criminal law provides no definition of public scandal, a fact which potentially allows for conflicting interpretations and abuse. Subsequently, the Legal Affairs Committee of the Chamber of Deputies modified this version and forwarded for the approval of the plenum of the Chamber a proposal aiming at the criminalization of only same sex relations taking place “in public”, formulation consistent with the provisions of the Romanian Constitution and the international standards of human rights protection.
On October 25, 1994, the plenum of the Chamber of Deputies voted in favour of the maintenance of the present stipulations of the Criminal Code, i.e. punishment with prison from 1 to 5 years of consensual same sex relations, even if conducted in private. Thus, art.8 of the European Convention, art.17 of the International Covenant on Civil and Political Rights, and art.26 para.1 and 2 of the Romanian Constitution were violated.
APADOR-CH considers this vote of the Chamber of Deputies as a victory of at least three positions unacceptable for a society that wishes to be regarded as democratic based on the rule of law:
1. The non-compliance with the commitments Romania made before the Council of Europe — to which Romania itself chose to apply — can be considered as a perpetuation of the unfortunate tradition established by the communist regime: signing, ratifying, or promising anything with a view to obtaining immediate advantages, while constantly disregarding any commitments made. When Romania was admitted to the Council of Europe, none of the political parties represented in the Romanian Parliament made any objections as to the Recommendations of the Parliamentary Assembly. Moreover, the European Convention for Human Rights was ratified with two very precise reservations, none of which made reference to art.8 of the Convention concerning the respect of private life or to the related case-law of the European Court of Human Rights. The vote of the Chamber of Deputies, taken the very day when the Secretary General and four other dignitaries of the Council of Europe were opening in Bucharest the Documentation and Information Center of the Council of Europe, can be qualified, at best, as ignorance of the national interests.
2. The criminalization of same sex relations between consenting adults is a continuation of the tradition of the totalitarian state in terms of treating private life with contempt. This is in flagrant breach of the provisions of art.26 of the Romanian Constitution which institutes the obligation of public authorities to respect and protect intimate, family and private life. As a matter of fact, the Constitutional Court recently judged art.200 para.1 as unconstitutional.
APADOR-CH expresses its concern for the Romanian Parliament’s failure to distinguish between “traditional moral values” and brutal and unacceptable interference of the state in the intimate life of citizens, for the Parliament’s position in asserting that Romania’s situation would be unique in Europe, for the disregard of the legislature for the individual and his/her rights.
3. Discrimination based on sexual orientation, as instituted by the Parliament through its recent vote, is banned not only by the European Convention and the jurisprudence of the European Court, but also by the decisions of the UN Committee for Human Rights, based on the provisions of the International Covenant on Civil and Political Rights, ratified by Romania, too.
APADOR-CH urges the Romanian Parliament to reconsider its position and to adopt a legislation that would prove respect for human rights in the same way as the other member states of the Council of Europe.
The Board of APADOR-CH
October 26, 1994
On November 1, 1994, the Chamber of Deputies debated art.200 once again and, due to the efforts of some of the deputies, the following formulation of para.1 was adopted: “Same sex relations, if perpetrated in public or under conditions which lead to the disturbance of public order, shall be punished by prison from one to 5 years.” According to the legal procedure, the plenum of the Chamber was also supposed to vote on the draft bill as a whole. On December 13, 1994, the Chamber voted against the adoption of the draft bill for the modification and completion of the Criminal Code and Criminal Procedure Code. For such situations, the Romanian Constitution provides that the draft bill has to be returned to the chamber that has approved it. Consequently, the Senate will have to debate the bill in 1995. APADOR-CH wishes to maintain the constant dialogue with the members of this Chamber; moreover, APADOR-CH intends to propose further amendments to articles (left unchanged by the mentioned drafts) containing provisions conflicting with the rule of law principles and seriously jeopardizing human rights.
V. REFUGEES IN ROMANIA
LEGISLATIVE AND PROCEDURAL MATTERS
Romania is still a country of origin for refugees, while at the same time, starting with 1990, it has begun to receive refugees from other countries. However, this new capacity of asylum-country did not determine the Romanian authorities to speed up the process of adoption for laws regulating the status of asylum-seekers and refugees, as well as the legal procedures leading to the granting of this status.
The UN Convention on the Status of Refugees (Geneva, 1951) and its Additional Protocol spell out a number of refugees-related obligations that the Romanian state committed to comply with by ratifying these documents in 1991. Art.11 and 20 of the Romanian Constitution incorporate these instruments into domestic law, giving them precedence over conflicting provisions in the national legislation. However, the mere existence of this general framework does not solve the legal and social issues asylum-seekers and refugees are confronted with in Romania. A law regulating these matters is absolutely necessary; still, it is unlikely that such a bill will be soon adopted, given the low priority of the draft on the agenda of the Chamber of Deputies.
The Romanian Committee for Migration Problems was established by Government Decision no.417/14.06.1991 precisely in order to fill in the needs created by the absence of specific legislation and to bridge the gap between the international commitments made by the Romanian state and the influx of asylum-seekers. The purpose of the Migration Committee is to “coordinate all domestic activities relating to the migration of natural persons into and out of the country, actions connected to Romania’s relations with other states, and related actions concerning international bodies in the field.” (art.1(1) of the mentioned Decision) This body is made up of representatives (at the level of state secretary or sub-secretary) of the Labour and Social Protection, Foreign Affairs, Interior, Justice, Economy and Finance, Health Care, and Education and Science Ministries, as well as of the Local Public Administration Department within the General Secretariat of the Government. The same Decision establishes the Technical Secretariat of the Migration Committee, served by the Labour and Social Protection Sector within the cabinet of the minister in charge of welfare and social protection, the Passport Division and the Border Police within the Ministry of Interior, and the Human Rights Department within the Ministry of Foreign Affairs.
Although art.3.1. of the mentioned Decision provides that one of the main attributions of the Migration Committee is to facilitate the return to Romania, as well as the social and professional reintegration of Romanian migrants, neither the Committee nor its Secretariat carried out any activities along this line.
The mechanism for registering requests for asylum and for establishing the status of aliens has been defined by the Guidelines issued on September 29, 1992, by 4 Migration Committee member Ministries: Labour and Social Protection, Interior, Foreign Affairs, and Justice. Important parts in the registration process are played by the Technical Secretariat of the Migration Committee, the Passport Division, and the Border Police. The local sections of the Border Police are obliged to identify asylum-seekers at border crossings, to allow them to declare this in writing, and then forward the requests to the Technical Secretariat of the Migration Committee. Asylum claims are further analyzed by a commission of the Migration Committee. The decisions taken are then individually communicated in writing to asylum-seekers. The latter have the right to ask the body that took the initial decision to re-examine their cases, whenever their request is rejected. If the request is granted, the Technical Secretariat has to take over matters of humanitarian assistance granted to refugees and their families, as well as issues relating to their legal status.
LEGAL ASSISTANCE PROVIDED BY APADOR-CH FOR REFUGEES AND ASYLUM-SEEKERS
Since 1992, APADOR-CH developed a program providing legal assistance to refugees and asylum-seekers. In 1994, the APADOR-CH program was supported by the UN High Commissioner for Refugees. As the international practice and the interest of asylum-seekers and refugees require that the names of those involved in individual cases remain confidential, only the initials of the persons assisted by APADOR-CH will be used throughout this chapter.
Function of the individual cases taken up in 1994, the unfolding of the program was structured as follows:
1. assistance during procedural stages prior to filing asylum claims;
2. assistance during the period preceding the Migrations Committee decision as to the status of asylum-seekers; assistance provided to persons granted the refugee status;
3. assistance during the appeal procedure for cases in which the asylum claim is rejected.
1. The Guidelines issued in October 1992 establish the only procedure currently available to asylum-seekers; however, the Guidelines are not consistently enforced or respected. Although the Border Police is obliged to allow access to the country for all individuals claiming asylum in Romania, irrespective of whether they produce valid travel papers, APADOR-CH has been informed of cases in which asylum-seekers who, upon reaching the Otopeni airport without valid passports or visas, were not allowed to enter the country.
In March 1994, H.A., an Iraqi citizen, was prevented from entering Romanian territory by the border authorities on the Otopeni airport. Although he had declared his intention of seeking asylum in Romania, he had been held on the airport for 11 days, at the time APADOR-CH intervened. The Romanian authorities considered that, since the Iraqi citizen had come from Jordan, which is considered to be a safe country, he had to be returned. Only after APADOR-CH contacted the Romanian border authorities was he allowed to enter the national territory under the supervision of the Technical Secretariat of the Migration Committee. During the same period of time, another Iraqi citizen, M.A.H.M., spent 8 days in the transit area of the Otopeni airport, in spite of his declared intention to seek asylum in Romania. Similar incidents took place in May and then June 1994: Q.M., a Pakistani citizen, was held for approximately one month in the airport, waiting to be sent back to his country of origin; S.D. and K.S., Angolan citizens, were held on grounds that they had forged passports. Following the interventions of APADOR-CH and the Bucharest office of the UN High Commissioner for Refugees, they were allowed to write their asylum claims and to enter the country. In February 1994, a group of 91 persons, 30 of whom had come from Bangladesh, notified APADOR-CH, accusing some of the border police officers of ill-treatment. Similar allegations were made by R.F.T., an Iraqi citizen, who additionally mentioned that she had been refused health care.
As it turned out during the investigations conducted by APADOR-CH in various border crossing points, the Guidelines are little known by the agencies supposed to enforce them. The conduct of police officers in some of the border crossing points hardly shows any understanding for the situation of asylum-seekers trying to enter Romania. Although the Guidelines emphasize the fact that border authorities and territorial passport offices are not competent to decide as to the grounds invoked in support of asylum claims, the very same Guidelines provide that aliens without valid travel documents going before one of the mentioned agencies in order to claim asylum have to specify in writing the reasons for not carrying the mentioned documents, as well as the justification for the imminent threat to their life, physical integrity, or liberty in their countries of origin. False testimonies may lead to the unappealable rejection of asylum claims (point 3 of the Guidelines chapter on requesting protection from the Romanian state). However, the Guidelines do not mention what happens with asylum seekers after making this statement. The fact that it is only those who do not possess valid travel documents that have to make this statement at the border crossing point casts doubts as to whether this procedure allows for the pre-selection of asylum-seekers on subjective criteria, precisely upon their entry into Romania.
Likewise, another point of concern is the return to the countries of origin of those refused access into Romania. Such cases appear particularly in the Otopeni airport, where there are possibilities to ship aliens directly to their countries of origin. The Romanian authorities construe non-refoulement as applicable only to aliens who claimed or have already been granted asylum. The Border Police generally offers little information to aliens as to venues for asylum claims in Romania and procedures and competent institutions included in the Guidelines. Travel documents of asylum-seekers who reach border points or passport offices are automatically taken away, and a certification is issued, specifying that the carrier is an asylum-seeker. However, some of the aliens are confiscated their forged documents and then let in the country with no proof of their claim to asylum (as was the case of the Angolan citizens S.D. and K.S.).
Before they enter into the asylum-granting procedure, part of the seekers are considered to be illegal immigrants. They can be arrested and convicted for crimes relating to border violation (art.65-68 of Law 56/1992 on Romania’s state frontier) or to forgery of official documents (art.288 of the Criminal Code), fraud (art.291 of the Criminal Code) or identity-related fraud (art.293 of the Criminal Code). Under such circumstances, they are sometimes subject to a “procedure of return” to the neighbouring country they came from, even before having the opportunity to formulate a claim to asylum.
APADOR-CH also assisted individuals to start the asylum-granting procedure. Thus, asylum-seekers have been assisted in formulating proper claims, and then directed towards the Technical Secretariat of the Migration Committee. Such were the cases of the Angolan citizen S.D., the Iraqi citizens A.K.D., M.H.M., and R.F.T., of the Sri Lankan citizen M.S.N., the Pakistani citizen M.H.S., the Iranian citizen S.S., and of an alien from Mauritania, B.M.S..
2. Asylum seekers and refugees were provided by APADOR-CH with legal assistance relating to procedures prescribed by the Romanian law, such as: marriage to a Romanian citizen, obtaining identity documents to replace lost papers, rent contracts for apartments, registration of newly born children, extension of visas, etc. Legal assistance was provided during 1994 to citizens from Somalia, Bangladesh, Pakistan, Iran, Iraq, Angola, Sri Lanka, Sudan, Mauritania.
3. According to the Guidelines, decisions of granting refugee status fall within the competence of a commission within the Migrations Committee, that has to make a pronouncement within 30 days from the filing of the claim. However, in practice, these provisions are not enforced and sometimes decisions are taken two years after the filing of the claims. This is one of the factors that contribute to the continuous deterioration of the material and social situation of asylum-seekers: some live under awful conditions, other get involved in illegal activities, while others try to go to Western countries, sometimes even crossing the border illegally or using forged passports.
Although the Guidelines were adopted in view of enforcing the Geneva Convention in Romania, they do not make any mention as to criteria for granting refugee status, nor do they further detail on the selection of persons entitled to this status.
Point 9 of the chapter on solving asylum claims of the Guidelines provides that the decision of commission within the Migration Committee has to be communicated in writing to the asylum-seeker concerned. The contestation of this decision is made “in writing, to the Bucharest Court, within 5 days from the date the refusal was communicated. Until the entry into force of the Law on the status of refugees in Romania, the Romanian Committee for Migrations Issues will function as a body of appeal” (emphasis added). This means that the very same agency acts as first instance and appeal body. Access to justice is thus blocked, which conflicts with art.21 of the Romanian Constitution, according to which everyone can resort to justice to defend his/her legitimate rights, freedoms, or interests. It is true that these Guidelines were issued for a period of “transition” until a law is adopted, but three years have already passed since they came into force, and there are no indications that this situation will come to an end very soon.
Often when asylum claims are rejected, the written answer of the Migration Committee either does not specify at all the motivation for the decision, or contains extremely vague formulations. The “inconsistency of the claims with the Geneva Convention,” “the non-compliance with the procedures specified in the 1951 Geneva Convention on the Status of Refugees” or the fact that “procedural grounds that cannot be changed add to the issue” or the claimant “did not comply with procedural terms” are invoked. The absence of clear motivation hampers the seekers’ efforts (as well as those of the non-governmental organization assisting them) to formulate coherent contestations.
In the case of the Pakistani citizens M.F. and M.S., as well as in the case of other Pakistani citizens, contestations were rejected on grounds that the political situation in the country of origin had changed following the 1993 events, with no further reference to the individual motivations brought by each of the claimants. The claim of A.A., another Pakistani citizen, based on religious grounds, was rejected because “it did not comply with procedural terms.”
APADOR-CH FACT-FINDING MISSION TO FOUR BORDER AREAS
Between July-August 1994, APADOR-CH representatives carried out a fact-finding mission in four border areas considered crucial for the entry into Romania of potential asylum-seekers. The fact-finding was conducted in order to gather first-hand information from each location, given the fact that procedures for allowing asylum-seekers into the country are unclear, while the practice of the Romanian authorities — completely unexplored.
1. The purpose of the mission
The mission aimed primarily at identifying and making a preliminary inventory of the main problems in the domain, function of location, institutions involved, and procedures followed, i.e.:
•To investigate border authorities’ procedures (and practice) regarding asylum‑seekers and foreign citizens who cross borders with false or no documents;
•Find asylum‑seekers at each location, and the number of foreign citizens detained, arrested, tried and sentenced for border violations;
•Obtain access to asylum‑seekers and foreigners detained for (attempted) illegal border crossing;
•Interview detained foreign citizens about detention conditions, their access to asylum procedures, legal counsel and interpreters.
2. Theoretical and procedural aspects
The Border Police and the National Border Guards Authority are the two governmental authorities that control Romania’s borders. Road, rail and harbour points which are specifically designated for border crossing are administered by the Border Police. The National Border Guards Authority controls the long stretches of border between transit points, which are usually not meant for passage, i.e. the green line. The Ministry of Interior administers both Border Police and Border Guards, which cooperate. Often, four border guards patrol the outer limits of each of the Border Police’s border passage points.
According to officials interviewed by APADOR-CH representatives, the Border Police are organized into six regional administrative zone centers: Arad, Bucharest, Constanta, Iasi, Oradea, and Timisoara. Officials at each zone center supervise several border crossing control points. A point of control for border crossing is an official border crossing point, including all the operations of guards, employees and specialists from different government agencies involved in work at that one point. In addition to the border police, representatives from the Ministries of Transportation, Health, etc. may conduct checks at border crossing points. A border police post is the actual quarters of the border police within a border crossing control point.
The National Border Guards Authority have six administrative brigades: Constanta, Giurgiu, Iasi, Oradea, Timisoara, Turnu- Severin. Each is divided into smaller units. Border guards control some minor traffic gates, which are generally designated for Romanian and citizens of neighbouring countries only.
Romanian authorities in Bucharest are currently changing the administration of borders. New zone centers are being formed, border crossing control points are being expanded, and some traffic points previously designated for regional traffic are now being open for international traffic. Central Romanian authorities apparently have undergone a process of formulating, organizing, and updating of the regulations, policy, administration, and communications of Border Police and Border Guards.
One of the major phenomena identified during the APADOR-CH mission is the so-called human trafficking, or people trafficking. Officials from all corners of Romania complained that individuals from Russia and the Ukraine locate vulnerable — and often illiterate — families on the move (in Moscow and other cities) en route to western Europe, extract large sums of their lifetime savings and promise to help them cross borders. According to Romanian authorities, many foreign citizens caught at borders describe their experiences with these organized criminals, who cooperate with Romanian partners. The foreigners say traffickers demand as much as 20,000 Deutsch Marks and their passports, pledge to return the travel documents and then fail to do so. The foreigners apprehended find themselves with little or no money and no nearer to their destination or safety.
a) Constanta zone center
Several officials declared that there is only one place of temporary detention for illegal border crossing: the Constanta police quarters. However, prosecutors from the city maintained that the Mangalia police quarters may as well temporarily detain aliens suspect of having crossed the border illegally. Prison terms are served in the Poarta Alba penitentiary, approximately 30 kms West of Constanta.
APADOR-CH representatives visited 3 types of border crossings: the Constanta port, the Vama Veche road border, and the Kogalniceanu airport and interviewed officials from the Passport Division, Prosecutor’s Office, and Trial Court in Constanta. In addition, APADOR-CH unsuccessfully tried to establish contacts with members of the Local (county) Migration Committee.
b) The Iasi zone center
Suspects are held in the Iasi County Police quarters, while accused and convicted persons are detained in the Iasi penitentiary.
APADOR-CH visited Albita (the main road border in the area), the border train station in Iasi, the Passport Division, Police Inspectorate, penitentiary, and border guards quarters of the county. Likewise, a prosecutor and a judge were interviewed.
c) Arad zone center
Suspects are held in the County Police quarters, while accused and convicted persons are detained in the Arad penitentiary.
The Nadlac border crossing control point, the Arad Passport Division, the court, and the border crossing point in the Arad airport were visited. Likewise, the chief prosecutor of the Arad Court Prosecutor’s Office was interviewed. APADOR-CH tried to interview a representative of the County Police Inspectorate, but failed.
d) The Giurgiu border crossing control point
The road border crossing in Giurgiu, as well as the County Police Inspectorate were visited. A judge, one prosecutor, and representatives of the Passport Division and border guards were interviewed.
3. Identified issues
Three foreign citizens had submitted asylum claims to the Constanta passport office during the past year and a half: I.V.S., a Ukrainian citizen, in 1994; J.K.M. and A.I.R., Iranian citizens, in 1993. A.I.R. was convicted for illegal border crossing. After serving part of his sentence, he was released in order for him to file his claim to asylum. Very few asylum-seekers come to Constanta, as most prefer to go all the way to Bucharest. One of the interviewed officials said the passport office is authorized to give two-months temporary identification to asylum-seekers. The latter have the opportunity to lodge asylum claims in Constanta, which are further forwarded by the Constanta passport office to the Bucharest Passport Division, which is then supposed to submit the claim to the Migration Committee. Upon the decision of the Committee, the Constanta passport office notifies the concerned asylum-seekers as to the final result.
APADOR-CH representatives were informed by the Passport Division of the Iasi county that 4 asylum-seekers living in the area lodged claims in 1990. The Bucharest Migration Committee directed them to the Iasi office. The claims were still pending as of July 1994. The Bucharest Migration Committee office asked the Iasi passport office to provide asylum-seekers with two-months temporary identification.
At the Nicolina international railway station the commander of the Iasi zone center declared that no one lodged asylum claims in the Iasi area in 1992 and 1993. Foreign citizens crossing the border here come from the Republic of Moldova. Some have been convicted of illegal border crossing.
According to the deputy commander of the border guards brigade in Iasi, this agency is able to identify foreigners crossing the border illegally within 24 hours. However, they do not deal with asylum-seekers, but do accept special requests for asylum and include them in their reports to the prosecution. Written declarations, on a plain white sheet of paper, can be attached to the files that go to the Prosecutor’s Office. One of the problems border authorities are confronted with here is foreigners that enter the country legally and then destroy their documents, or whose visas expire. These generally claim asylum only after they realize that they cannot go further westward. Border guards have no mandate for handling asylum-seekers, and are consequently obliged to transfer such cases to the Prosecutor’s Office, irrespective of whether the persons have crossed the border illegally or are asylum-seekers.
The chief of the Arad passport office declared that the area has the highest number of problems with asylum-seekers and their status. The largest groups thereof come from Sri Lanka, Bangladesh, India and Pakistan. Most asylum-seekers transit Romania illegally, via Moscow, where they find human traffickers who promise to lead them to the West. At the time of the interview, no one had ever asked for asylum; the interviewed official was of the opinion that, generally, asylum-seekers go to Bucharest, to the Labour Ministry, trying to gain time to leave Romania illegally, after having obtained temporary identification documents. In the course of 1994, the authorities discovered 300 such people waiting in groups to leave illegally. They rent apartments in the poorer districts of Arad. The head of the Passport Division in Arad stated that this agency looks for these people, as it is the policy of the office to help them stay in Romania legally. Many have expired visas or passports, while some do not have any travel documents whatsoever. They pay large sums of money to traffickers who take advantage of their situation; likewise, most live in horrible conditions and have no possibility of material assistance. The head of the Arad passport office would have liked to find a solution for these people and considered that it was necessary to build a camp for them.
Representatives of the Passport Division of the Giurgiu county informed APADOR-CH that if a person does not manifest his/her will to apply for asylum, the passport office does not have any contact with that person. This agency contacts only foreigners that enter Romania illegally, only after they are caught by the border police or guards, returning them to Bulgaria. 50% of the aliens crossing the border illegally here would not admit they have forged passports. The other 50% would admit to forgery and say they want to reach other destinations, alleging employment or relatives already in the West.
b) Illegal border crossing by foreign and stateless citizens
According to the vice-president of the Constanta County Court, at the time of the interview there had been very few cases of aliens crossing the border illegally — around 10 every year. Only two such cases were recorded in 1994, which, just as cases recorded in 1993, had not been solved by the courts as of June 1994. APADOR-CH representatives were allowed by the vice-president of the court access to some of the files of the Constanta Court; one of these contained the case of a group of foreigners that had crossed the border illegally in 1994 and were all returned to Bulgaria.
With respect to the Nicolina international railway station, the commander of the Iasi zone center said that those attempting to cross the border illegally usually come from Sri Lanka, India, Bangladesh, and Pakistan, and generally travel in groups, falling prey to Moscow traffickers.
The Commander of the Iasi County Passport Division said he did not know of any cases of foreigners accused of illegal border crossing and detained in the Iasi penitentiary. In general, those captured at the green line — i.e. between two border crossing control points — are returned to the last country of transit.
The commander of the Albita border crossing control point declared that foreigners attempt to cross the border illegally, with no documents or forged ones; however, the matter falls less under the jurisdiction of the Border Police, being generally referred to the Border Guards. Likewise, a group of “Afro-Asians” with no documents had reportedly reached Albita by bus, and were returned to the Republic of Moldova. No foreigner was detained for illegal border crossing at this border crossing control point.
The data on illegal border crossings received from the commander of the Albita border crossing control point are as follows:
1993: – no case of border crossing without documents;
– 118 persons had problems with their documents, including people who had allegedly committed other violations, such as illegal border crossing;
– 6,633 had problems with the customs;
1994: (first semester):
– no case of border crossing with no documents;
– 63 cases of forged or expired documents;
– 851 persons were denied access to Romania.
The commander of the Iasi Penitentiary declared to the representatives of APADOR-CH that 7 Pakistani men who had allegedly come to Romania from the Republic of Moldova were held in this institution. They had been initially detained by the border guards and then sent to the police, who brought them to the penitentiary. A prosecutor subsequently issued arrest warrants. APADOR-CH was told that an official from the Pakistani Embassy had visited the penitentiary in order to take over the case. The 7 did not give any reason for coming to Romania. According to the commander, no other foreigners had been detained in the Iasi penitentiary for illegal border crossing.
The commander of the Iasi border guards brigade declared that this agency generally solves problems locally (not at the level of the brigade, however) and forwards reports to the county Prosecutor’s Office. Aliens caught are detained for up to 24 hours and fed in the brigade precincts, where there are no special detention rooms, but one or two offices are used for this purpose. Likewise, it was mentioned that the county police has difficulties with detaining large numbers of aliens, due to a shortage of medical staff, food, or cleaning facilities.
According to the commander of the border guards brigade, there was an explosion of foreigners crossing the border illegally after December 1989. The commander gave APADOR-CH the following approximations on the number of aliens caught by his brigade:
1994 (first semester)….200 (140 from Asia, 60 from the former USSR).
APADOR-CH representatives were given the following information:
– 12 Pakistani citizens had been convicted for illegal border crossing; the criminal file was opened in May 1993, the trial concluded in May 1994; the Pakistani were sentenced to one year and 3 months, with the suspension of their term in prison;
– 2 Pakistani citizens, M.A.A. and M.A.B., convicted for the same offense as the previous 7; the criminal file was opened in September 1993, the trial took place in February 1994; the two were sentenced to one year and three months, and the serving of the prison terms was suspended in both cases.
The commander of the County Police Inspectorate declared that he had not come into contact with any asylum-seekers and that, in 1994 as opposed to 1993, the number of aliens crossing the border illegally diminished. The commander described the following problems relating to refugees, asylum-seekers, and aliens that commit violations related to border crossing: citizens of the Commonwealth of Independent States often transit Romania on their way to Western Europe; when they are arrested, they often have no documents because human traffickers had taken them; victims are either unable or unwilling to provide information on the traffickers; the police are improperly equipped to provide these people with food and shelter.
According to the commander, the police do not investigate these cases because typical victims have little education and have faced many problems in their country of origin. Traffickers leave the victims near the Romanian border, say they will return, and fail to show up and meet them again. This problem appeared only in 1992 and continued in 1993. In 1994, counties Vaslui and Galati had problems of this type. Aliens apprehended for border violations are returned to the last transit country. The county police lock-up can shelter 100 people; as of mid-July 1994, 90 persons were detained there. 16 foreigners were detained in 1994 for border violations, as compared to 26, in 1993. When foreigners are apprehended for illegal border crossing, their files are sent to the Prosecutor’s Office.
The police commander also mentioned that foreigners caught at borders leave a lasting impression upon the Romanian authorities, due to their dramatic situation. In past cases where foreigners were not organized in groups and no Romanian citizens were involved in trafficking, those apprehended were released after they paid an insignificant fine. As aliens crossing the border illegally are now organized in groups, the Border Police are obliged to enforce the law much harsher than before. As a consequence of intensified police actions in 1993, traffickers began coming from the Republic of Moldova by night, helped by Romanian contacts.
The commander of the border crossing control point declared that Nadlac is an important location for illegal crossing and identified two categories of violations committed here:
– offenses prescribed by the Criminal Code (art.288, 291, and 293, defining respectively forgery of official documents, fraud, and identity fraud);
– crimes prescribed by Law 56/1992 on Romania’s state borders; the number of such crimes (150 in the first semester of 1994) is double as compared to the criminal offenses (76 for the same period of time).
Foreigners crossing the border illegally often hide in buses or trucks. The number of such incidents is increasing. According to the interview APADOR-CH had with the border point commander, foreigners committing border violations in Romania fall into two categories, function of their motivation:
– political: Kurds from Turkey, Iran and Iraq; deserters from the Gulf War;
– economic: “third world” citizens in search of employment, Asians and Africans, particularly from Sri Lanka, Senegal, Ghana, Bangladesh, Afghanistan, and Pakistan.
APADOR-CH representatives were told that in January 1994, 100 people (families with children — 15 from Iraq and 85 from Turkey) had hidden in an international merchandise truck and crossed the border illegally. The authorities say that they had used various legal and illegal connections to get to Romania. After crossing the border, the Hungarian authorities apprehended them, reported the case to the Nadlac border point, and started a criminal investigation. The foreigners were sent to the Arad county police where some were subsequently released, while others were placed under arrest and convicted to prison terms.
The police commander also declared that foreign citizens often attempt to exit Romania illegally, with false documents, are then apprehended and released, after which they try again. For short investigations, suspects are held in the police lock up, while for longer ones, in the penitentiary.
The commander of the Arad penitentiary declared that foreigners entering Romania legally and attempting to exit illegally are the most serious problem for this agency. Authorities take into account international circumstances when they decide on individual cases. As of the time of the mission, 22 foreigners were detained in the penitentiary: 17 under preventive arrest, and 5 convicts. All those convicted for violations under art.68 lit.b of Law 56/1992 (fraudulent border crossing of armed individuals or groups) are from Turkey.
According to the commander of the penitentiary, 173 foreigners were detained or served sentences during 1993 in Arad — all convicted for illegal border crossing. 166 of these had been released before the time of the interview. Terms are usually short — 3-6 months — and for approximately half of the convicts, the sentence is suspended. Defendants may be released on bail. The harshest punishments are applied to traffickers.
The commander of the penitentiary also said that the institution was overcrowded (at the time the APADOR-CH mission arrived there, 1,400 prisoners occupied 600 beds). Likewise, he mentioned that the penitentiary had problems with the special diets of foreigners (pork is generally served in the institution, but muslims have special requirements).
The same source specified that in Timisoara and Oradea there might be foreigners who attempted to cross the border illegally.
Representatives of APADOR-CH interviewed several prisoners in Arad. One of them, C.D., declared he was a Turkish muslim, and had been looking for employment as a truck driver at the time he was apprehended at the Varsand border point in Hungary, on January 13, 1993, 8 a.m.. He had been hiding in a truck, having his Turkish passport with him, and had been taken by traffickers to the border. When the Hungarian authorities apprehended him without a visa, he was returned to Romania. He was reportedly taken to the Arad police lock-up, where he stayed for one month, being kept in a small cell, with little air to breathe, as 15 or 16 other suspects were held in the same place; he could not feed himself, as only pork meat was served. He was not issued an arrest warrant within the first 24 hours. He maintains that he paid a defense lawyer 600 Deutsch Marks in the Arad police station, and never saw the attorney again. The lawyer had extorted the money for “bail,” but provided the defendant with no legal assistance. After paying, he said the police showed him a receipt, removed it, promising to bring it back to him. The receipt was never returned to him. For 29 days, he was not told what was happening. Then he was taken to the Prosecutor’s Office and brought to the penitentiary. The prisoner alleged that no one interpreted for him, and was sentenced to 5 years in prison, although he himself was never in court and does not know the charges brought against him. On January 16 or 17, 1993, he appealed, but, at the time of the interview, had not received an answer. He also complained that he cannot receive or send any mail, even from or to his family.
S.R.G., Afghan citizen in detention in Arad, declared that he left his home in Afghanistan because of the war and Russian intervention; his brother and his sister were killed. He was caught by Hungarian authorities on the morning of July 28, 1993, between 8 and 10 a.m., with a friend, at Varsand, on the Hungarian border. He was arrested and sent to the temporary detention area at the Arad Police station. He maintains that he had paid someone to falsify a French passport for him (with an altered photo), which he had with him when he was apprehended. Hungarian authorities brought him to the Romanian Border Police, after which he was taken directly to the Arad police lock-up. He said he paid 200 Deutsch Marks directly to a lawyer, as bail, around July 29, but he did not get a receipt and the lawyer never went to his trial. He remained in the police lock up for 36 days; there was no window, and the cell’s capacity was 8 but it held 16. Police did not speak to him properly; he did have a translator and was not harmed. He was then taken to the prosecutor and subsequently to the penitentiary. On January 17, 1994, he was taken for the last time to court, possibly to the county court. He lodged an appeal but did not remember on which day. He said he received a letter on March 17, notifying him that he was convicted.
In the Arad court, APADOR-CH representatives were informed that, since the beginning of 1994 and up to July 26, 45 files were recorded, involving 248 persons charged with or convicted for the following two types of violations:
– crossing the green line between border points;
– crossing at the border point with false documents, a combined crime (art. 291, 293 of the Criminal Code and art. 65 and 68 lit.b of Law 56/92).
The estimates show that 90% of the foreigners sentenced have had their punishments suspended. Prior to the trial, about 10% of them are let out on bail, fail to attend the hearing(s) and are arrested again.
Statistical data on illegal border crossings received from the Arad Prosecutor’s Office show the following dynamics:
– 1990 – 63 files;
– 1991 – no file, due to the lack of legislation;
– 1992 – 87 files involving 236 defendants, 176 of whom had been arrested, 35 brought before the court and released on bail, 17 released from prison after paying fines; of the total number, less than 10 are Romanian citizens;
– 1993 – 210 files involving 504 defendants, 185 of whom had been arrested, 36 released on bail, 19 paid fines under art.18(1) of the Criminal Code;
– 1994 (first semester) – 42 files for 261 defendants, 35 of whom were arrested, 12 released on bail, 4 released after paying a fine.
The chief prosecutor of the Arad Prosecutor’s Office said authorities always charge the maximum bail of 100,000 lei (the minimum is 10,000 lei). He said there is not enough room at the police lock‑up. On July 26, there were 14 foreigners detained for border violations in the police lock-up, coming from: Turkey (2), Algeria, Morocco, Angola (4), Nigeria (2), Rwanda, Somalia, plus two additional foreign detainees with unspecified citizenship.
The deputy of the Giurgiu road border crossing control point said there have been no asylum‑seekers at this border point. Yet, almost every day there are 1-2 foreign citizens who try to enter here illegally. He estimated that 300‑400 aliens are caught per year for entering Romania illegally or attempting to do so. 5-6 foreigners claim every year to have entered at Giurgiu. According to him, border police do not formally punish foreign citizens who attempt to enter Romania illegally, but levy a fine; the same measure is applied for attempting to exit illegally. He said border authorities give a foreign citizen a receipt after paying the fine, and then return them to Bulgaria. He said foreign citizens typically try to enter Romania by hiding in buses or trucks or by using false identity.
90-95% of the foreign citizens entering illegally come from Turkey, Syria, Jordan, the Near East and Africa. There are some who have left the former Yugoslavia to avoid the conflict, and some Turks, mostly of Kurdish background. Often, the foreign citizens do not declare their intentions and do not say they are refugees because they are afraid to. Even after some are caught with false documents, they refuse to admit that the passports they have used are false. In such cases, border police issue the mild penalty of 1,000 lei fine.
c) The right to interpretation
The deputy commander of the Iasi border guards brigade declared that among groups of foreigners caught at the border there is almost always an English‑speaker. If not, the guards contact foreign students in Iasi and pay them to interpret. A prosecutor does not receive a defendant’s file unless interpretation has been provided. There is still an old government budget line which pays for Russian interpretation sums that are disproportionate as compared to the other languages.
The commander of the County Police Inspectorate informed APADOR-CH representatives that some of the problems appearing between foreigners and the police are due to:
– inability to communicate with arrested persons;
– difficulties in finding interpreters, as in the case of Sri Lankans;
– difficulties in gathering information necessary to police investigations;
– inability to communicate with detainees on matters such as food and other necessities.
Regarding the large group that was recently caught at the border, the commander of the border crossing control point said officials and the apprehended foreigners communicated in English with great difficulty; authorities later provided Turkish translators.
d) Legal counsel
According to the deputy chief prosecutor of the Iasi Prosecutor’s Office with the Court of Appeal, the Romanian government pays for legal counsel if a foreign citizen cannot afford it. While a case is investigated, the prosecutor asks the bar association to send an attorney ex officio. Funding for this comes from a budget line for legal counsel. The court judge makes sure that the needs of the accused are attended to; the prosecutor conducts investigations only in the presence of a lawyer; the judge will not rule on a trial unless the defendant has legal representation.
The commander of the border crossing control point declared that foreigners are entitled to legal counsel only upon submitting a written request.
At the 4 border zones visited by APADOR-CH, the numbers of refugees, asylum‑seekers and foreigners accused and/or convicted of illegal border crossing were very low. For that reason, it was felt that some information was not available. Border authorities were generally cooperative and receptive to the questions asked by the representatives of APADOR-CH.
Border Police do not inform people about their right to claim asylum. Foreigners caught without documents or with false papers are returned to the last country of transit (due to bi-lateral return agreements with most of Romania’s neighbours) or their country of origin. According to authorities’ statements, officials treat all foreigners as simply that ‑- foreigners ‑- even in cases of possible asylum‑seekers or refugees. In cases when authorities told us about foreigners’ fear of persecution in their countries of origin, officials still did not inform individuals that the asylum process could provide them with a remedy for their situation.Border authorities maintain that many foreigners do not have the notion of asylum, are very poor, uneducated, and consequently fall easily prey to traffickers from the former Soviet Union, who in turn cooperate with Romanian partners. The activity of these traffickers seems to be a major factor in bringing to Romania vulnerable persons, who are subsequently forced to hide and then live under precarious conditions. Naturally, some are apprehended by border authorities and end their trip in prison.
Local border and regional district police officers say foreigners and westward‑bound asylum‑seekers cross borders illegally at the green line, avoiding border crossing control points; the green line is controlled by the National Border Guards Authority, whose soldiers are generally young men on their obligatory military service. According to information received by APADOR-CH, more foreigners, asylum‑seekers and refugees cross the border illegally over the green line than at border crossing control points. Therefore, the role of the border guards is especially important in monitoring the treatment of foreigners who need to be protected from being “refouled”. Also, the rapid turnover of border guards results in a constant need for training of new draftees. For these reasons, the National Border Guards Authority is a primary candidate for legal and procedural training regarding asylum‑seekers and refugees, as is the Border Police and local police at critical border areas, such as Arad and Iasi.
The information collected by APADOR-CH points to Arad as the most critical area to which programs should be targeted for protecting refugees and asylum-seekers in Romania. Investigations of the cases of foreigners arrested, detained and convicted there should continue. Prisoners allege that Arad lawyers have taken hundreds of Deutsch Marks from them in exchange for promises of legal counsel, only to disappear and never be heard from again. Convicts serving prison terms in Arad also maintain they are detained without warrants, sentenced without trials and forced to go through legal proceedings without legal counsel. APADOR-CH representatives could not verify whether this information is true. One of the explanations for the low official figures of asylum-seekers could be that many foreigners, although aware of the availability of asylum procedures, decide not to apply in Romania because they have another final destination. Many want to apply for asylum in Western Europe. This leads to the idea that Romania is a “transit” country.
Although authorities have often shown themselves open for dialogue and cooperative towards APADOR-CH representatives, a few mentions should be made of the difficulties encountered during the preparation and unfolding of the mission:
•in order to solicit government information in Romania, APADOR-CH had to request permission in writing at the ministerial level in Bucharest for meetings and specific information sought; therefore, more time was devoted to gaining access instead of gaining information;
•lack of automation makes accessing court and other records difficult for officials; this contributed to logistical problems in gathering data, especially in courts;
• APADOR-CH was unable to speak with anyone at the Arad police station; the press service officer who would not consent to speak with APADOR-CH representatives, nor to fix any appointment, responded: “I don’t know who you are, what you want and it would take a long time to run a check on you. You must get approval from the Ministry of Interior.”
ROMANIAN REFUGEES TO OTHER COUNTRIES
During 1994, APADOR-CH continued to receive a large number of requests for information from foreign governmental and independent organizations and institutions, regarding cases of Romanian citizens seeking political asylum abroad and to Romanian legislation before and after 1989. This activity presupposed the carrying out of investigations and inquiries, drafting reports, etc.; substantive cooperation was established with Immigration and Refugee Board (based in Ottawa, Canada), Commission Permanente de Recours des Refugiés (Bruxelles), as well as other organizations from France, Switzerland, Norway, etc.
As far as the legislative aspects of this activity are concerned, it is worth mentioning that while inquiries about legislation adopted before 1989 concerned mostly the right to property, the issues that aroused the most interest in terms of current regulations were the criminalization of same sex relations, trade union freedom and activity, and alternate military service.
VI. OTHER ACTIVITIES
THE HUMAN RIGHTS CENTRE
The information and documentation centre
In 1994, this section of the Human Rights Centre purchased a large number of human rights, comparative law, and international relations books and documents. The centre has been functioning not only as library, but also as a documentation centre, providing a continuous flow of information for both the internal needs of the association and beneficiaries outside it. When information from a certain field is not available in the already existing supply of documents, the centre identifies potential sources of information in the field and orders the necessary information or documents.
According to the needs it has to supply on a day-to-day basis, the centre functions as:
– documentation and information centre for experts, providing them with a large collection of books and periodicals, official documents of inter-governmental organizations, and the jurisprudence of international courts;
– data base on individual cases and actions taken to protect the victims of human rights violations; along this line, the centre continuously develops its collection of periodical and occasional reports on Romania and other countries, issued by APADOR-CH and other domestic and international governmental organizations and independent groups.
Thus, the centre provides:
– specific legal information and bibliographical references in support of the on-going projects and campaigns developed by APADOR-CH and other human rights groups;
– general and educations materials, information, data, bibliographical references for experts and interested persons.
The fields of interest or type of documentation contained in the collections developed by the centre vary function of the orientation of the activity of APADOR-CH and the requests of those who resort to the services of the centre.
A new theme section on international relations was established in 1994. The law section was enlarged due to the purchase of works on international and constitutional law. Likewise, in view of providing better assistance of asylum-seekers during the refugee status determination procedure, new contacts were established with governmental and non-governmental organizations publishing reports on the human rights record of various countries.
For a better management of the existing information, the centre has been developing computer data bases. The standard HURIDOCS (Human Rights Information and Documentation Systems) formats are employed for recording and cataloguing data, which facilitate exchanges of information between APADOR-CH and other organizations around the world. A data basis on all bibliographical materials (books, periodicals, documents, reports, etc.) already available in the centre has been completed. As of this writing, the data basis on human rights violations monitored by APADOR-CH is in progress.
The beneficiaries of information on human rights violations are APADOR-CH members, human rights organizations from Romania and abroad, asylum-seekers in Romania, and victims seeking assistance from the association.
Moreover, requests for books and bibliographical references also come from lawyers, law professors and students, who seek information on the jurisprudence of international tribunals and courts which can be invoked before the Romanian judiciary, on academic studies necessary in the preparation of theses, papers, lectures, and courses on human rights law.
Educational materials are usually sought by persons who, not having expertise in the field, look for basic information.
The number and categories of direct or indirect recipients of information springing from the centre, the types of requests (written, phone, personal, etc.), as well as the kinds of information sought are decisive factors for the development and structuring of the collection.
Round tables and surveys organized by the Human Rights Centre
As in 1993, human rights issues of utmost importance continued to be the focus of these activities developed by the Human Rights Centre in 1994. The round table on Cooperation in the Field of Human Rights benefitted from the participation of representatives of human rights groups and departments within important state agencies (General Prosecutor’s Office, Ministries of Interior and Foreign Affairs, the Romanian Academy, the Council for National Minorities, etc.). The debates focused on the concrete functioning mechanisms of these organizations or institutions, their effectiveness in terms of practical actions taken to protect human rights or change the mentality of state officials and agencies.
The survey on the Effects of the Ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms upon the Romanian Domestic Law inquired into the positions of high Romanian dignitaries and prominent judges on the matter. Judges of the Constitutional Court, the Ministers of Justice and National Defense, the President of the Chamber of Deputies, etc., responded in support of the precedence of this document over the national legislation.
Both the round table and the survey were extensively presented in the Romanian Human Rights Review.
The Romanian Human Rights Review and its supplements
In 1994, the publication of the APADOR-CH quarterly continued, focusing on matters of domestic legislation and the compatibility thereof with the international human rights standards, on the presentation of individual human rights cases and their legal consequences (if any), as well as on the publication of the activities and positions of domestic and international human rights groups.
Two supplements to the Romanian Human Rights Review were published in 1994:
* The Conception of the Democratic Alliance of Hungarians in Romania upon the Rights of National Minorities, an extensive analysis of the draft bill on national minorities proposed by the mentioned organization, of the conceptual formulations implied in the draft text and their compatibility with current international standards in the field; the supplement was published as a bi-lingual edition (Romanian and English), and distributed in 1,200 copies.
* Legislation in Transition is a supplement that resulted from the collaboration of APADOR-CH and the Netherlands Helsinki Committee; Romanian and Dutch experts analyze a number of chapters of the Romanian legislation from the standpoint of their compliance with international human rights instruments: constitutional law and the separation of state powers, independence of the judiciary, administrative review, human rights in labour law, Romanian criminal law, the rights of national minorities; the supplement was printed only in Romanian, in 1,200 copies.
As in the previous years, the legal assistance program of APADOR-CH developed along two lines: legal counsel, on the one hand, and legal representation of human rights violations victims in court.
Free legal counsel
During 1994, starting from the successful experience from 1993, APADOR-CH continued to provide interested persons with free legal advice on a weekly basis, at the quarters of the association. The beneficiaries of this activity were individuals who, without necessarily being victims of human rights violations, have difficult legal problems and seek the advice of an attorney. The purpose of the consultations is to educate such citizens to fight for their rights themselves, as the association cannot provide representation for them. Thus, they were directed to resort to justice, to address specific authorities properly,etc., function of their situation. Some of the cases discovered during the unfolding of this program were referred to the legal assistance and representation program and benefitted from the support of APADOR-CH.
The total number of consultations given in 1994 was 274, of which 144 new cases. Function of the types of problems encountered, the cases fall into the following categories: civil, family, and labour law — 134 cases; criminal law — 15; political persecutions during the communist regime — 25; the rest dealt with issues of emigration, consequences of refusal to serve military service on religious grounds, etc.
Legal assistance provided in individual cases
A victim of psychiatric abuse as political persecution during the communist regime, the plaintiff filed a request to be considered as such under Decree-Law 188/1990. His allegations and documents show that he was institutionalized a psychiatric patient in 1951-56, 1961, and 1973, and was arrested in 1948-1951, 1960-1961, as well as in 1962, following which he was placed under house confinement. The court decisions in his file show that he was convicted for political crimes, and there is evidence of searches conducted in his domicile by militia and “Securitate” forces, who confiscated from him manuscripts containing his position towards the communist regime.
The Stroescu case was adopted by APADOR-CH after the completion of a whole judicial cycle (including the decision of the Supreme Court of Justice), during the appeal to the second cycle (civil file 649/1994 of Civil Section 4 within the Bucharest Court of Appeal). The appeal was admitted and the challenged sentence repealed, the case being sent for re-examination to the first-trial court (registered as no.5584/1994 with Civil Section 4 of the Bucharest Tribunal). Upon the request of the plaintiff, the hearing for judging the transfer of the case is scheduled for January 20, 1995.
Trifan sued the Romanian state, represented by the Ministry of Finance, claiming moral and material damages for the illegal arrest and inhuman treatments he had been subjected to between June 14-21, 1990. APADOR-CH adopted the case during the appeal to the decision of Civil Section 4 of the Bucharest Tribunal repealing his claims on the rationale that they were unfounded (civil file 534/1994 of Civil Section 3 with the Bucharest Court of Appeal). Although the appeal is a venue that allows for the revision of the facts of the case (i.e. the total re-administration of evidence), all evidence presented by the plaintiff was rejected, the only “rationale” being that they are immaterial and excessive to the case. The appeal was rejected as unfounded and was motivated in the same way as in the case of the first-trial court; specific human rights provisions were ignored, although they had been invoked throughout the appeal as a part of domestic law prevailing upon any conflicting national regulations. An appeal to be forwarded attached to the file of the case to the Civil Section of the Supreme Court of Justice was filed.
CARSTEA Rodica and GRECU Veronica
A labour conflict concerning the contestation filed by two journalists against a disciplinary dismissal order of the ROMPRES press agency, sanctioning the two for expressing their opinions against the management of the agency, according to their own allegations and to the evidence attached to the file. Freedom of expression, as protected by art.30 of the Romanian Constitution and art.10 of the European Convention, was thus violated. The case was adopted by APADOR-CH during the appeal phase of the second judicial cycle, after the first cycle had been completed (including the appeal to the Bucharest appellate court), being registered under civil file 7867/1994 with Civil Section 4 of the Bucharest Tribunal. The motivated appeal was filed, and a hearing was scheduled for January 18, 1995.
From the evidence attached to the file it turns out that no disciplinary investigation was conducted previous to the dismissals. Thus, the specific labour law provisions, the applicable constitutional provisions, as well as corresponding international human rights instruments which are part of the domestic law were violated. Likewise, it can be argued that the unfolding of the lawsuit, and especially the first-trial court and appeal proceedings, are in breach of art.6 of the European Convention.
The plaintiff is involved in a labour litigation, contesting a transfer, change in job description, and disciplinary dismissal decided by the Bucharest Polytechnic Institute (currently Bucharest Polytechnic University); according to the plaintiff and to the evidence attached to the case, these measures sprung from the fact that in her capacity as trade union leader, she militated for the rights of the employees and for the sanctioning of those who had embezzled part of the assets of the institution (some of whom held management positions). The case was taken over at the first-trial phase (civil file 4808/1992 with the Civil Court of Sector 6). The two contestations filed were rejected as unfounded; an appeal was lodged and registered under no.6341/1993 with Civil Section 4 of the Bucharest Tribunal; the first hearing was scheduled for January 30, 1995.
Both the way in which the contested decisions were taken and the way in which the lawsuit has unfolded so far are in breach of human rights regulations, violating art.37 para.1 of the Romanian Constitution and art.6 and 11 of the European Convention.
G.S. lodged a penal complaint against some of his relatives who, according to him, had involved his daughter (from the age of 3 until 6) in sexual practices which resulted in disturbance to the psychological development of the girl, as diagnosed by medical experts. G.S. complained of unjustified delays in the unfolding of the criminal investigations, as well as of interference of some of the persons named in his complaint with the proceedings of the investigations. Likewise, he directly accused the prosecutor in charge of the case of abusive conduct towards his wife (the step-mother of the child), including extortion of testimonies under duress.
Following the involvement of APADOR-CH, which suggested the transfer of the case to another investigator, the prosecutor in charge was changed. As of this writing, the file is with Section 1 of the Bucharest Police, who, apart from some testimonies of the authorities and of the girl, did not administer any other pieces of evidence, further procrastinating the investigations.
FOLLOW-UP MONITORING OF THE SITUATION
The situation of the convicts from the “Tiraspol Trial”
During 1993, when the trial of Ilie Ilascu, Andrei Ivantoc, Tudor Petrov-Popa, Alexandru Lesco, and Petru Godiac, APADOR-CH brought to the knowledge of international organizations the serious human rights violations related to the unfolding of the trial. The 5 did not benefit from a fair trial before an independent and impartial court, as requested by all international human rights documents. Likewise, APADOR-CH publicized the torture and inhuman and degrading treatments the defended had been subject to. Subsequent to their conviction (on December 9, 1993, Ilie Ilascu had been sentenced to death, while the other to between 2 and 15 years in prison), APADOR-CH representatives went on a mission to Tiraspol, in order to contact the 5 convicts and investigate their conditions of detention. A first brief visit took place on June 26-29, 1994, when 4 of the 5 convicts were still in prison, and APADOR-CH issued the following press release:
… The delegation of the Romanian Helsinki Committee faxed the de facto Tiraspol Ministry of Interior, asking for approval to visit the 4 convicts. Minister Fucidji rejected our request, motivating that the prison was under quarantine, and refused to have further discussions. The delegation, however, interviewed on of his deputies, Mr. Zaharov, who declared that the visit to the prison had not been approved because the Tiraspol authorities did not have the necessary time to make a decision, but in principle there was no difficulty in obtaining a positive decision. The Romanian Helsinki Committee was to be notified as to such a decision in the near future.
The Romanian Helsinki Committee delegation addressed the de facto Supreme Soviet in Tiraspol in order to find out the position of local authorities on the CSCE recommendation to re-open the trial in a neutral country, bringing it before an international tribunal. Mr.Victor Cebotari, the deputy of the head of the Foreign Policy Committee with the Tiraspol Supreme Soviet declared the local authorities were willing to accept that the trial be conducted by an international tribunal on condition that the proceedings take place on the territory of TransDniestria. Likewise, Mr.Cebotari mentioned that, according to a statement made by Mr.Grigore Maracuta, the president of the Tiraspol Supreme Soviet, in April , the enforcement of the capital punishment in the case of Ilie Ilascu was out of the question…
As at the time Petru Godiac, one of the defendants, had served his term in prison and had already been released, APADOR-CH representatives interviewed him and gathered information on detention conditions: according to him, he had spent the last 6 months of his sentence in solitary confinement in a 1.5 m per 1.5 m cell, having a dim light on round the clock and being allowed to sit only between 0 a.m. and 5 a.m; he had been taken out to take air only 3 time during all this time, and had been beaten on several occasions, especially whenever he asked for medication; the food had been more than unsatisfactory. He consequently fell seriously ill, and subsequent to his release had to be placed in a hospital and undergo surgery.
Later, on November 22-23, 1994, APADOR-CH representatives came back to Tiraspol in order to visit the convicts. Although this time the approval to visit the convicts had been issued as early as June, the de facto Tiraspol authorities refused APADOR-CH access to the 4 prisoners, proving to be in breach of international human rights documents.
The situation of Romanian language education in Tiraspol
On the occasion of the November 22-23, 1994, mission to Tiraspol, APADOR-CH representatives gathered information on whether the Tiraspol authorities protect the right to Romanian language education. The conclusions of the mission were:
– during 1993, the Tiraspol Education Direction issued a program imposing the Cyrillic alphabet instead of the Latin one; a campaign was immediately started in order to intimidate teachers and faculty who would not comply with the order;
– as a consequence of this campaign, which resulted even in the dismissal of recalcitrant headmasters, School 20 in Tiraspol was on strike for 3 weeks, while the parents of students were interrogated on their option in terms of alphabet;
– despite the Moldovan nation-wide program for Latin alphabet education, Mr.Alexandru Caraman, the vice-president of TransDniestria’s Supreme Soviet, declared in August 1994, during the TransDniestrian primary schools teachers’ conference, that Romanian language schools in the region may function only as private institutions;
– a peaceful protest march of the Tiraspol School no.20 and Tighina School no.19 teachers, students, and parents was brutally ended by the Tiraspol militia forces;
– on the night of October 24/25, 1994, School no.20 from Tiraspol was attacked by a groups of 20-30 individuals claiming to be students in the “corporate university;” they immobilized and sequestered the watchman of the school, destroyed files and educational materials and equipment, stole the coupons and money deposited in the safe-box of the school, a few calculators, and 30 litres of gasoline; militia forces who came to the spot did not try to identify or arrest any of the assailants; the situation came back to normal within the next 24 hours;
– the campaign hostile to Romanian language and Latin alphabet education constantly intensified, even on television.
SEMINARS AND COURSES ORGANIZED BY
During 1994, APADOR-CH members participated in a number of freedom of expression, minority rights, parliamentary transparency, police abuse, legal assistance, etc. conferences and symposia, organized both in Romania and abroad by the Council of Europe, UN Human Rights Centre, International Helsinki Federation for Human Rights, the Netherlands, Bulgarian, and Albanian Helsinki Committees, the European Studies Centre within the Institute for East-West Studies, the National Minorities Council, League Pro-Europe, Pro-Democracy Association, International Foundation for Electoral Systems, etc.. APADOR-CH representatives were asked to give presentations on specific themes in these seminars, due to their expertise in human rights.
Apart from this, APADOR-CH co-organized successful seminars and courses:
National Minorities Rights
This seminar was organized between March 21-23, 1994, in cooperation with the Humanitas Foundation and the Embassy of Sweden in Bucharest. UN experts, Romanian parliamentarians, members of the Government, representatives of political parties, non-governmental organizations, and foreign embassies, as well as judges participated in the seminar.
The protection of minorities in the international context was debated, with special reference to the UN and Council of Europe documents.
Likewise, concrete aspects of the situation of national minorities in Romania were debated, with special attention for the Hungarian and Roma minorities; the participants concluded that only official admission of the existence of problems in this respect can lead to solutions for these issues.
Human Rights and Democracy Advocacy
This course was organized within the Black Sea University Summer School series, between August 1-13, 1994. An APADOR-CH representative was involved in the theoretical preparation of the course, proposing themes for debate and conducting the course as such.
25 Romania, Albanian, and Danish law, sociology, politology, and journalism students, as well as members of independent human rights groups attended the course.
American professors and personalities of the civic and political life in Romania were invited to lecture.
The course included debates and moot trials,so that students could get actively involved in every single theme proposed for debate. A real interest was suscitated by the presentation of concrete issues from the activity of independent groups. Many students have maintained contacts with APADOR-CH, with perspectives for potential collaborations.
International Human Rights Protection and Domestic Legislation
The course was organized in cooperation with the Netherlands Helsinki Committee, and took place between October 31 and November 18, 1994, in the Peace Palace from the Hague.
The large majority of the 30 Romanian participants had legal training: attorneys, judges, prosecutors, members and expert staff of the two Chambers of the Romanian Parliament, independent human rights groups representatives.
Prestigious international human rights experts and professors from Dutch universities were invited to participate, their presentations being highly appreciated.
APADOR-CH representatives organized and conducted workshops linking theoretical aspects presented during the lectures to concrete issues of the Romanian legislation, thus allowing for a profound critical analysis thereof.
The activity of APADOR-CH was sponsored during 1994 by:
* The German Marshall Fund of the United States
* The Dutch Government,
through the Netherlands Helsinki Committee
* Agir Ensemble pour les Droits de l’Homme (France)
* The UN High Commissioner for Refugees
* Institute for Democracy in Eastern Europe (USA)
* The Flemish Government, through Vrije Universieit Law School at Brussels
The publication of this report was made possible by the financial support of the German Marshall Fund of the United States
 Throughout this report, quotations from Romanian statutes and official documents are based on unofficial translations, with the exception of the Romanian Constitution.
 The ratification instruments were completed in June 1994, after APADOR-CH distributed these commentaries.
 See Minorities in Romania.
 See Relationship Between the Police and Individuals.
 See Minorities in Romania.
 For details, see Aspects of the Evolution of Human Rights in Romania and the Reactions of APADOR-CH. 1993 Report.
 Throughout this report, the term “civilian” is understood as an antonym of “military”.
 See the fact-finding mission report under Refugees in Romania.
 The English term state security is used here to translate the Romanian securitate — i.e. secret (political) policing agency of the communist regime in Romania.
 The English term misdemeanour is employed throughout this report to translate the Romanian notion of contraven_ie, which is somewhere at the intersection of misdemeanour and petty offense.
 In such contexts, the term unrightful has been chosen to translate the Romanian f_r_ drept, whose meaning lies at the intersection of unauthorized, inappropriate and unmotivated.
 For further details on the inter-ethnic character of these conflicts, see Minorities in Romania.
 For details, see Aspects of the Evolution of Human Rights in Romania and the Reactions of APADOR-CH. 1993 Report.
 see G. Andreescu, V. Stan, R. Weber — Study on the Conception of the Democratic Alliance of Hungarians in Romania on the Rights of National Minorities, Bucharest: Centre for Human Rights, 1994.
 See 4.1. above
 APADOR-CH chose not to include the full names of the defendants in the case.
 For purposes of simplicity, furthermore referred to in this report as “Migration Committee.”
 See further the fact-finding report.
 See Minorities in Romania.
 Also see The Relationship Between Police and Individuals.