Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law

19/04/2022/in Comunicate, /by Rasista

Over the past few years, governments, media and citizens have become increasingly alarmed about the backsliding of fundamental European values. This has led to a series of policy measures designed to halt and reverse the trend. In 2020, the European Commission adopted a new annual rule of law review cycle – and in a separate process, structural funds have been withheld as a result of its negative rule of law assessments.

With the rule of law becoming an issue of sanctions and hard political controversy, the situation of the rule of law in EU member states should be correctly and exhaustively understood. A missing piece in this puzzle of rule of law shortcomings is the non-implementation of judgments of two key European courts: the European Court of Human Rights and the Court of Justice of the European Union.

The non-implementation of judgments of the European Courts has become a systemic problem. 37,5% of the leading judgments of the European Court of Human Rights relating to EU states from the last ten years have not been implemented. Each of these judgments represents a significant or structural problem, often with direct consequences for many citizens. And yet, authorities have not implemented them.

At the same time, the Court of Justice of the European Union (CJEU) is facing increasing contestation. Non-implementation of CJEU judgments is a recurring phenomenon with the EU Member States ignoring CJEU’s judgements since its inception. Yet, the resistance against the Luxembourg-based court has increased in recent years, with courts and governments in EU Member States openly challenging the top body of the EU’s judiciary.

The EU’s response to the rise of democratic and rule of law backsliding is at an important stage of development. This is a key time to ensure that it is as effective as possible. We hope that this report will help put the implementation of European Courts’ judgments firmly inside the EU’s rule of law agenda, to be seen as an essential requirement of all European states.

The ECtHR implementation record in Romania is among the poorest in the European Union. The statistics set out below indicate an extremely high number of leading judgments pending, as well as a high percentage of leading judgments which are waiting to be implemented. These have been pending implementation for a significant amount of time.

106 Leading judgments pending implementation

As of January 2022, there are 106 leading judgments pending implementation in Romania. This is the highest number of pending leading judgments of any country in the European Union. Just since the beginning of 2020, the ECtHR has delivered 36 new leading judgments in respect of Romania. Recent judgments include those concerning the failure of authorities to carry out an effective investigation into ill-treatment by a third party (Toma v. Romania), the failure to protect the life of a victim of a subway station accident (Nedelcu v. Romania), and unlawful psychiatric confinement as a security measure (R.D. and I.M.D. v. Romania).
The implementation of these cases needs to be effectively addressed through the taking of individual and general measures.

4 years, 2 months – Average time that leading judgments have been pending

Of the leading judgments handed down by the ECtHR against Romania over the past ten years, 57% await full implementation. Only five leading judgments have been implemented by authorities since the beginning of 2020.
While the data shows that there is significant room for improvement, there are also some positive examples of ECtHR judgment implementation where reforms have been initiated or are underway. However, significant efforts are required further to improve ECtHR compliance and its overall implementation record.

Download the Report here

Submission before the Committee of Ministers in respect to the case of Bucur and Toma v. Romania (Application No. 40238/02)

14/10/2021/in /by Rasista

The case of Bucur and Toma v. Romania (Application No. 40238/02) placed under examination by the Committee of Ministers of the Council of Europe for the 1419th meeting (30 November – 2 December 2021), concern the lack of safeguards in the statutory framework governing secret surveillance.

Through the present submission APADOR-CH would like to provide the Committee of Ministers with additional information on this issue. Currently, in Romania, the Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law is being transposed, The Ministry of Justice draft law for the transposition of the Directive provides for some cases for the exemption of liability of whistleblowers. However, these cases do not operate in any form if the information disclosed was acquired or accessed by committing an offence.

This condition provided in the draft law, as well as in the Directive, that the information or evidence must not be obtained by committing a crime, brings back into discussion a problem raised in the case of Bucur and Toma v. Romania. In that case, the applicant Bucur had to take several audio tapes from the workplace which contained illegal recordings, in order to provide evidence for his allegations regarding the illegal recordings. In the absence of this evidence, which he presented to the public, the complainant would not have been able to prove the accusations he was bringing in connection with the carrying out of illegal recordings by the information service where he was working. However, a criminal file was drawn up for Bucur and he was convicted for stealing those audio tapes from his workplace.

If we would apply this situation to the provisions of the draft law for the transposition of the Directive, the result would be that even after the draft law is adopted, a whistleblower in the situation of Bucur would not be protected by law, as it will be considered that the evidence in support of the warning was obtained through an offence (theft).

Therefore, APADOR-CH considers that the text of the draft law should be supplemented with a provision in the sense that it does not constitute an offence to acquire evidence in support of the warning in the public interest. Such a provision would also provide security for any person wishing to make a public interest warning, in the way that he will not be exposed to the risk of a criminal conviction if he owns documents or recordings from the work place in order to use them as evidence in support of the warning he makes.

There are situations in which the whistleblower needs evidence for his statements / disclosures, evidence that may consist of documents that do not belong to him, data stored on electronic media (computer data) to which he has no right of access, audio/video recordings etc. What real alternative can a well-intended whistleblower who needs evidence (and who will surely be asked by everyone for evidence) for his statements has? If he does not provide evidence, he will be discredited and probably excluded from legal protection on the grounds that he makes uncovered statements. If he provides evidence, to which, in most cases, he has no legal access, he will commit one or more offenses, he will be excluded from the protection provided by the law of whistleblowers. The national example of such a case was presented in the ECHR judgment in Bucur and Toma v. Romania.

At this moment, after 25 years from the events in Bucur case (1996) and about 8 years from the date of the ECHR decision in this case (2013), a similar and poor regulation is proposed regarding the offenses committed by a whistleblower. However, APADORCH considers that it would not be contrary to the Directive and it would be particularly useful a provision stating that it is not an offense for the whistleblower to access or provide the evidence necessary to support and to prove a public interest warning.

At this time, in the current technological conditions, the relevant information is no longer stored on audio tapes, but on other data storage media (DVD, BluRay, internal or external hard disks, flash memories, etc.). Some of these items may contain important data / information about violations of the law. The question is whether accessing / storing this data / information or taking the media on which this data / information is stored and using it as evidence in the event of a public interest warning, when there is virtually no other solution, should or should not be qualified as an offence. APADORCH doesn’t consider it an offence if the whistleblower took/accessed them for the purpose of the public interest warning.

For these reasons, APADOR-CH recommends that, following art. 20 al. 2 of the project law to introduce a new thesis, containing a provision that would allow access to evidence necessary for a warning in the public interest. Thus the text of art. 20 al. 2 would have the following content:

“(2) The whistleblower shall not be liable for the acquirement of information that is reported or disclosed to the public or for the access to it, under the condition that such acquisition or such access does not constitute an offense. It is not an offense for the whistleblower to access or store any data or information belonging to the entity where he works or to acquire from the entity where he works documents or physical media on which data are stored, if the purpose of access, storage or acquirement was to establish evidence of law violations which he reported or disclosed publicly in accordance with this law. Also, it is not an offense of the whistleblower to disclose any classified or confidential data or information, if the disclosure was necessary for reporting a law violation, under the conditions provided by this law.”

APADOR-CH considers that the inclusion of this provision in the draft law would, along with other recommendations, improve the protection system for whistleblowers and would lead to a successful execution of the Bucur and Toma case.

Submission before the Committee of Ministers on the new action plan of the Romanian Government in respect to the cases of Bragadireanu v. Romania and Rezmives and Others v. Romania

26/01/2021/in Buna guvernare, /by Rasista

26 January 2021

Submission before the Committee of Ministers on the new action plan of the Romanian Government in respect to the cases of Bragadireanu v. Romania and Rezmives and Others v. Romania

The cases of Bragadireanu v. Romania (Application No. 22088/04) and Rezmives and Others v. Romania (Application No. 61467/12), placed under enhanced supervision before the Committee of Ministers of the Council of Europe, concern the overcrowding and the poor detention conditions in Romanian prisons.

In respect of these cases, on 23 November 2020, Romania submitted the new action plan for the period of 2020-2025 regarding the general measures taken so far and the future measures in order to solve the above mentioned issues.

Through the present submission we would like to provide the Committee of Ministers additional information and recommendations regarding the action plan.

APADOR-CH considers that the new action plan contains many measures necessary to solve the existing problems in the penitentiary system. However, the strict observance of the implementation timetable of the established measures remains a matter of great importance and has to be a priority in itself. In the case of the old action plan, a serious problem was the exceeding – sometimes a substantial exceeding – of the set deadlines for achieving the objectives of the plan, especially those on investments. Of course, the special situation of the Covid-19 pandemic cannot be neglected. The pandemic creates additional problems and obstacles in all areas.

In this context, APADOR-CH makes the following recommendations:

Adopt and publish a set of criteria for the selection of transferable detainees in order to reduce overcrowding

As mentioned in the para. 47 of the new action plan, decision no. 369/2018 of the general director of National Administration of Penitentiaries (‘NAP’) provides for the establishment of the Commission for the analysis of the degree of occupation of the detention spaces. According to the action plan, the Commission meets weekly to analyze which places of detention are the most overcrowded and the least crowded.

Based on this analysis, some detainees are transferred from very crowded prisons to less crowded ones, in order to achieve a balance between penitentiaries regarding the degree of occupation.

This measure of managing the situation created by overcrowding is a reasonable one. Nevertheless, some problems have arisen in practice, which generally consist in the dissatisfaction of several transferred detainees, as the transfer to other penitentiaries moves them too far away from their place of residence. Several of those transferred detainees have interpreted this measure as a punitive one, directed against them. In this regard, the association has received complaints from the transferred detainees or their family members, who expressed their dissatisfaction with not being informed of the reasons for the transfer, together with the suspicion that the transfer was in fact a disguised punishment.

APADOR-CH emphasizes that it failed to identify the criteria according to which a certain detainee, and not another, is transferred from an overcrowded penitentiary to another less crowded penitentiary (transfer motivated by the reduction of overcrowding). Therefore, the association recommends that a clear and unitary set of criteria should be adopted at the NAP level, one that establishes which detainees are selected to be transferred to another penitentiary on grounds of reducing overcrowding. These criteria should be public and accessible to everyone.

The measure of transfer should also be motivated, and the motivation should be communicated to each detainee that is transferred, as the transfer to another penitentiary is an important event in their life. Moreover, the adoption of a clear and uniform set of criteria to be taken into account for the selection of the transferable persons will only help to ensure that the measure is sufficiently motivated in each case.

In conclusion, adopting this set of publicly available criteria for the selection of transferable detainees would lead to the defusing of some tense situations and would also remove suspicions and the current dissatisfaction among some detainees and their families.

Increasing transparency and improving public communication within NAP concerning the Covid-19 infected detainees

The public communication of the NAP on the subject of the pandemic and the reporting of cases of Covid-19 infected detainees presents some discrepancies that may raise questions about the transparency of the institution in general.

APADOR-CH has been using two main methods to monitor the evolution of the spread the virus in the penitentiary system since the beginning of the pandemic: monitoring of the public statements present on the NAP website and through public information requests according to Law 544/2001. The figures resulting from the two monitoring methods differ substantially and APADOR-CH has no explanation for this.

The monitoring of the public statements on the institution’s website showed the following:

– On April 28, the first case of a detainee infected with Covid 19 (Deva Penitentiary) was announced

– Throughout the summer, until 6 August 2020 when the methodology of reporting cases was changed, a total of 7 cases of sick detainees were reported

– Starting with 6 August 2020, the communication began to be more general and less regular, only the total cases of infected detainees was announced, without naming the units where the patients came from. At the end of September 2020 there were 12 infected detainees

– By October 2020, the number of detainees with Covid-19 gradually reached 80, a figure that includes all cases announced since the beginning of the pandemic (April-October), including those that have probably recovered in the meantime. However, in a statement issued on 21 October, 81 active cases of sick detainees suddenly appeared at the Jilava Penitentiary and on 26 October- 105 active cases

– On 11 November 2020 the cases tripled, in Jilava Penitentiary 214 cases of detainees with Covid-19 and 123 declared recovered were announced, i.e. a total of 337 cases

– On 9 December 2020, the first death among detainees was announced, and on 14 December, 164 cases of detainees under treatment at Jilava and Poarta Albă were announced

– On 7 January 2021, the NAP announced that it only had 50 detainees infected with Covid 19 in the Jilava and Poarta Albă Penitentiary Hospitals

The answer received by APADOR-CH from NAP, as a reply to a December FOI request, reveal completely other statistics. On 5 January 2021, there were 853 Covid-19 infected detainees in the penitentiary system. Of these, on 31 December 2020, 729 people had recovered and 115 people were being treated. NAP also announced 5 deaths on this occasion – the deaths are still not published on the website so far.

The data provided by NAP are deficient, both in the press releases on their website and in the answer provided to APADOR-CH: the figures collected from all press releases, throughout the year 2020, do not match either with the numbers provided to APADOR-CH, nor with the different numbers announced on the site.

As such, it is not possible to know exactly the extent of the pandemic spread in the penitentiary system, what penitentiaries are the most affected, the causes that determined the outbreaks and the way in which the administration managed the situation.

The NAP website is also a means of information for the families of detainees who, in the absence of the opportunity to visit their relatives during the pandemic, should have had safe and clear information about the health of their relatives in prison. During this period, APADOR-CH received emails from relatives of some detainees, worried about the conditions in the penitentiaries and the possibility that their relatives would contract the virus and not receive proper care.

As such, a clearer communication from NAP is required in a complicated period and in a matter as sensitive as such a dangerous disease.

Intensifying the efforts to attract medical staff in the penitentiary system

There is still a shortage of medical staff, as presented by the Government in the new action plan. According to the NAP’s response to APADOR-CH’s request for public information, on 5 January 2021, the deficit was 50.89%. In order to address the situation, in 2020, competitions for filling 95 vacant medical positions were organised, as a result of which 48 doctors were hired. Also, according to the action plan, another desideratum of the Government is the improvement of the legislative framework regarding the medical staff. This measure is highly needed in order to make the work in the penitentiary system attractive for doctors. However, this desideratum is not included as a priority in the Annex III of the action plan which raises questions about its feasibility and doubts over the Government’s motivation in this regard.

Regarding psychiatric medicine in particular, APADOR-CH considers that the number of psychiatrists provided in the staff scheme is too small compared to the prison population. According to the NAP’s response to APADOR-CH’s request for public information, 21 psychiatrist positions are provided for 40 penitentiary units, of which 13 positions are occupied. In 2019, only in the first 6 months of the year, there were 2225 detainees who received psychiatric treatment. At that time, only 11 psychiatrists were working in the system.[1] The gravity of the situation was also confirmed following the APADOR-CH monitoring visits carried out during 2019[2]. Therefore APADOR-CH considers that the presence of at least one psychiatrist in each penitentiary is required. Even in these conditions, the workload would be very high (a psychiatrist can have up to 100 patients under psychiatric treatment[3]), which raises concerns over the quality of the psychiatric services. For these reasons, it is necessary to supplement the number of positions and to intensify employment efforts.

Last but not least, APADOR-CH considers that the same measures should also target psychologists in the penitentiary system. It has to be highlighted that the psychological service is responsible for all the detainees and implies a broad sphere of activities with inmates. According to the NAP’s response to APADOR-CH’s request for public information, there are 136 psychologists currently working, the number provided in the staff scheme being 192. On 26 January 2021 there were 21788[4] detainees in the penitentiary system (for 136 psychologists). This reality resulted also from the monitoring visits carried out by APADOR-CH during 2019 (a psychologist having under supervision an average of 150 detainees).[5] Not to mention that in the current context of the pandemic and the restrictions imposed, the need of psychological assistance is even greater. This situation requires more efforts to supplement the positions and to attract the psychologists in the system.

APADOR-CH appreciates the efforts to solve the shortage of healthcare workers by organizing competitions, but the gravity of the situation requires much more. APADOR-CH stresses out the importance of legislative and financial measures in order to motivate doctors to work in the penitentiary system and also to increase the quality of medical services in penitentiaries. In order for this to happen, the Government has to think of a proper and complex strategy of measures, strategy that has to be included in the budget of the action plan.

[1] According to NAP’s response to APADOR-CH’s FOI request on august 2019

[2] E.g. Miercurea-Ciuc Penitentiary (in 2019) had no psychiatrist, although between 30-40% of detainees suffered from a mental health problem (the report of the visit is available at: https://www.apador.org/en/raport-asupra-vizitei-in-penitenciarul-cu-regim-inchis-miercurea-ciuc/). According to the NAP’s response to APADOR-CH’s request for public information, Miercurea-Ciuc Penitentiary still didn’t had a psychiatrist on 5 January 2021.

[3] According to APADOR-CH monitoring visit to Craiova Penitentiary. The reports is available at: https://www.apador.org/en/raport-privind-vizita-in-penitenciarul-craiova/

[4] According to NAP’s website, http://anp.gov.ro/

[5] APADOR-CH monitoring visits in Craiova, https://www.apador.org/en/raport-privind-vizita-in-penitenciarul-craiova/, Giurgiu, https://www.apador.org/en/raport-privind-vizita-apador-ch-efectuata-la-penitenciarul-giurgiu/, Miercurea-Ciuc, https://www.apador.org/en/raport-asupra-vizitei-in-penitenciarul-cu-regim-inchis-miercurea-ciuc/, Targu-Jiu, https://www.apador.org/en/raport-asupra-vizitei-in-penitenciarul-targu-jiu-3/, Galati, https://www.apador.org/en/raport-asupra-vizitei-in-penitenciarul-de-maxima-siguranta-galati/

Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)

15/10/2020/in Buna guvernare, /by Rasista

Date: 16/09/2020

Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)

The cases of Ciorhan v. Romania (No. 49379/13) and Ghiulfer Predescu v. Romania (No. 29751/09), placed under enhanced supervision before the Committee of Ministers of the Council of Europe, concern the unjustified State’s interference with the right to freedom of expression.

In each of these cases, Romania submitted an action report in relation to the individual and general measures taken in which the Government concluded that there is no problem with the national legislation regarding freedom of expression and therefore there is no need for any change.[1] Moreover, it stated “the lack of appropriate justification from the judges of the sanctions imposed and the failure to ensure a fair balance between relevant rights that were considered as excessive by the European Court in the case at hand.”[2]

Through the present submission APADOR-CH would like to provide the Committee of Ministers with additional information on this issue.

APADOR-CH considers that there is a need for more predictable provisions regarding the human rights restriction, the freedom of expression in this case. For this reason, more concrete limits/criteria should be provided.

First of all, it is necessary to amend the legislation in the sense that it provides criteria or limits for assessing whether restriction of freedom of expression is necessary in a democratic society.

Currently, there are no criteria or methods to determine whether restricting freedom of expression in one case was necessary in a democratic society. Thus, the decisions of the courts in this field are subject to unpredictability in terms of establishing the circumstance that gave rise to the prejudice. The Civil Code provides in a general way the restriction limits of the rights regarding the privacy and dignity of the human person (that includes freedom of expression) without offering concrete criteria.[3] In other words, the courts must take into account the international provisions, but this obligation for the courts exists anyway, despite the Civil Code provision. Therefore, it is necessary to provide concrete criteria regarding the proportionality test that should be carried out by the domestic courts whenever they have a case that violates a human right or freedom.

Secondly, there must be more precise criteria for establishing the quantum of damages.

According to the current legislation, there is an absolute free will of the judge when establishing the moral damages. A court is not obliged to take into account the previous decisions of another domestic court regarding the reasonable amount of damages awarded in similar cases. Each judge may award any damages he considers as there are no objective criteria or any limit for establishing the compensation in a certain case. This lack of legislation has a very strong inhibitory effect on freedom of expression, because the author of statements on controversial topics of public interest is exposed to a total unknown / unpredictability regarding the amount of damages to which he could be obliged to.

The provisions of the Civil Code regarding the establishment of damages do not set concrete criteria.[4] The court must have a margin of appreciation, but the limits within this margin must be clearly set. Thus, the Civil Code must provide more precise criteria regarding the amount of damages.

APADOR-CH recommends that a possible solution would be capping the moral damages at a number of average salaries per economy with the possibility of exceeding it only in exceptional cases, e.g. when the author is of obvious bad faith and has acted repeatedly.

Another solution could be providing into legislation of criteria imported from the doctrine and jurisprudence for assessing the gravity of the moral prejudice and implicitly of the moral damages. This will lead to a standard practice and therefore to predictability of the trials.

Nevertheless, the judge could grant pecuniary moral damage up to a certain amount and after that, if the prejudice is not totally repaired, he could add other means of compensation that are not of a monetary nature (e.g. public apology, public denial, publication of a statement, etc.).

APADOR-CH considers that there is a problem with the quality of the legislation in this field, therefore it recommends that the Ministry of Justice initiate consultations with the Superior Council of Magistracy and the High Court of Cassation and Justice in order to modify / complete the legislation accordingly. It is necessary for this issue to be debated and brought to public attention by the judges in order for the authorities to take action.

In light of the above, APADOR-CH recommends that the Committee of Ministers highlights this issue to the Romanian Government and continues working together in order to find reliable solutions.

[1] Government’s Action Report in the case of Ciorhan v. Romania, p. 2, https://rm.coe.int/09000016809eb7d7

[2] Government’s Action Report in the case of Ghiulfer Predescu v. Romania, p. 3, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016808cb359

[3] Civil Code, Art. 75 – The limits of the rights restriction:

(1) The violations that are allowed by law or by the international human rights conventions and pacts to which Romania is a party do not constitute a violation of the rights provided in this section (the respect for the privacy and dignity of the human person).

(2) The exercise of constitutional rights and freedoms in good faith and in compliance with the international pacts and conventions to which Romania is a party does not constitute a violation of the rights provided in this section.

[4] Civil Code, art. 253 – Means of defense:

(1) The person whose non-patrimonial rights have been violated or threatened may request at any time the court:

a) the prohibition of committing the illicit deed, if it is imminent;
b) cessation of the violation and prohibition for the future, if it still lasts;
c) the ascertainment of the illicit character of the committed deed, if the produced disturbance subsists.

(2) By exception from the provisions of par. (1), in case of violation of non-patrimonial rights by exercising the right to free expression, the court may order only the measures provided in par. (1) b) and c).

(3) At the same time, the person who has suffered a violation of such rights may request the court to oblige the perpetrator to perform any measures deemed necessary by the court to reach the restoration of the violated right, such as:

a) obliging the author, at his expense, to publish the conviction decision;
b) any other measures necessary for the cessation of the illicit deed or for the reparation of the damage caused.

(4) Also, the plaintiff may request compensations or, as the case may be, a patrimonial reparation for the damage, even non-patrimonial, if the damage is imputable to the author of the prejudicial deed. In these cases, the right of action is subject to the extinctive prescription.

Civil Code, Art. 255 – Provisional measures:

(1) If the person who considers himself damaged makes credible proof that his non-patrimonial rights are the object of an illicit, current or imminent action and that this action risks causing him a damage difficult to repair, he can ask the court to take provisional measures.

(2) The court may order in particular:

a) prohibition of the violation or its temporary cessation;
b) taking the necessary measures to ensure the preservation of evidence.

(3) In case of damages brought by the written or audiovisual media, the court may not order the cessation, provisionally, of the prejudicial action unless the damages caused to the plaintiff are serious, if the action is not obviously justified, according to art. 75, and if the measure taken by the court does not appear to be disproportionate in relation to the damages caused. The provisions of art. 253 para. (2) remain applicable.

(4) The court shall resolve the request according to the provisions regarding the presidential ordinance, which shall be applied accordingly. If the request is made before the introduction of the substantive action, the decision by which the provisional measure was ordered will also set the term in which the action on the merits must be introduced, under the sanction of legal cessation of that measure. The provisions of par. (6) are applicable.

(5) If the measures taken are likely to cause harm to the adverse party, the court may oblige the plaintiff to provide a bail in the amount set by it, under penalty of cessation of the measure ordered.

(6) The measures taken according to this article prior to the introduction of the lawsuit for the defense of the infringed non-patrimonial right shall cease by right, if the plaintiff has not notified the court within the term set by it, but not later than 30 days after the taken measures.

(7) The claimant is obliged to repair, at the request of the interested party, the damage caused by the provisional measures taken, if the substantive action is rejected as unfounded. However, if the plaintiff was not at fault or had a slight fault, the court, in relation to the actual circumstances, may either refuse to oblige him to pay the damages claimed by the adverse party, or order their reduction.

(8) If the adverse party does not request damages, the court will order the release of the bail, at the request of the plaintiff, by decision given with the summoning of the parties. The application shall be judged in accordance with the provisions of the Presidential Ordinance, which shall apply accordingly. If the defendant opposes the release of the bail, the court will set a deadline for filing the action, which may not be longer than 30 days from the date of the decision, under penalty of cessation of the measure of bail unavailability.

43% din condamnările CEDO sunt neimplementate la nivel european

17/02/2020/in Buna guvernare, Comunicate, /by Rasista

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Care sunt „țările cuminți” ale Europei și cine ignoră deciziile Curții Europene; Unde se situează România și ce cauze continuă să preocupe CEDO

Câștigarea unui proces la CEDO e abia începutul. Faptul că un cetățean obține dreptatea prin condamnarea țării sale la CEDO nu înseamnă automat îmbunătățirea situației sale și cu atât mai puțin a altora suferind de aceeași problemă din respectiva țară. CEDO nu poate face legi sau schimba sistemul de justiție din țările pe care le condamnă, însă poate să ceară statelor respective, în decizia de condamnare, pe lângă despăgubirea financiară a victimei și anumite măsuri de îndreptare a sistemelor care au generat respectivele nedreptăți.

Implementarea deciziilor CEDO e un proces destul de lent și dificil. Debutează cu despăgubirea victimei, o acțiune ce se petrece relativ rapid după condamnarea la CEDO, pentru că banii dați de la buget sunt adesea cea mai ușoară măsură de executat. Schimbările sistemice, însă, nu sunt la fel de ușor de făcut, ele pot dura luni, ani sau decenii. În acest timp alți cetățeni cad victime ale acelorași încălcări de drepturi.

În prezent, la nivelul Europei, 43% dintre condamnările în cauzele pilot date în ultimul deceniu sunt neimplementate. Este o statistică făcută de Rețeaua Europeană de Implementare (REI), care a și lansat astăzi un site util pe această temă. Pe site găsiți informații despre gradul de implementare a deciziilor CEDO în fiecare țară și care sunt cauzele care încă așteaptă implementarea, de zece ani încoace.

Cum se face implementarea unei decizii CEDO

Toate țările din Europa au semnat Convenția Europeană a Drepturilor Omului (mai puțin Belarus) și s-au angajat să respecte drepturile cetățenilor lor statuate astfel. O condamnare la CEDO înseamnă că țara respectivă a încălcat unul din drepturile prevăzute în Convenție.

După decizia CEDO, organismul care urmărește implementarea ei este Comitetul de Miniștri, format din reprezentanți ai celor 47 de țări membre ale Consiliului Europei. În practică însă, implementarea hotărârilor CEDO este urmărită de secretariatul Consiliului, prin Departamentul de Executare a Hotărârilor.

Statele prezintă în fața Comitetului de Miniștri un plan de acțiune pentru implementarea hotărârii CEDO. În același timp, în fața Comitetului pot interveni și victimele, ONG-urile sau alte organisme naționale sau internaționale pentru protecția drepturilor omului. Organizațiile societății civile, chemate să confirme afirmațiile guvernelor, sunt adesea ochii Comitetului de Miniștri.

Comitetul de Miniștri încheie supravegherea cazului în momentul în care se consideră că statul a luat toate măsurile necesare pentru a-i face dreptate victimei și pentru a preveni repetarea situației în alte cazuri.

Care sunt țările fruntașe și care sunt codașe

Harta interactivă de pe site-ul lansat astăzi de REI arată gradul de implementare a hotărârilor CEDO în fiecare țară. În medie, în ianuarie 2020, 43% dintre hotărârile pilot emise de Curte în ultimii zece ani se află încă în implementare. În total sunt 1200 de cauze pilot în așteptare.

Țările cu cele mai multe cauze neimplementate sunt:

Azerbaidjan – 95%,

Rusia – 89%,

Ungaria – 74%,

Ukraina – 67%

Turcia – 63%.

La capătul celălalt al clasamentului se află țările cele mai disciplinate:

Cehia – 3%,

Austria, 8%,

UK – 9%,

Muntenegru, Estonia, Letonia – 10%,

Suedia și Elveția – 16%,

Germania – 17%,

Franța și Norvegia – 18%

Pentru ce e condamnată România

România se situează în media europeană, cu 44% din cauzele pilot în curs de implementare, adică 71 în ultimii zece ani. Printre cele mai vechi cauze pilot în care România a fost condamnată și nu sunt nici astăzi implementate, se află:

Dosarul Revoluției din 1989 – dus la CEDO de Asociația 21 decembrie 1989, care privește dreptul la viață și protecția împotriva torturii;
Cauza Maria Atanasiu și alții v România, privind nerestituirea proprietăților naționalizate.
Numeroase cauze ce vizează condițiile proaste de detenție
Cauze ce vizează drepturile persoanelor cu handicap
Cauze ce vizează violența în familie

Cauzele în care România a fost condamnată în ultimii zece ani, și care se află în implementare, vizează: dreptul la un proces echitabil, accesul la o justiție eficientă, condiții improprii de detenție, nerespectarea dreptului de proprietate, protecția persoanelor cu tulburări psihice, protecția vieții private și de familie, dreptul la viață și protecția împotriva torturii, protejarea corespondenței și supraveghere secretă, libertatea de expresie, defăimare și hate speech, violență domestică, discriminare pe motive sexuale, lipsa accesului la justiție și durata prea mare a procesului, libertatea de conștiință și de religie, dreptul la educație, abuzuri ale forțelor de ordine.

De ce e importantă implementarea

European Implementation Network este o rețea care aduce împreună ONG-uri, avocați, victime și specialiști în implementarea hotărârilor CEDO. APADOR-CH este membru fondator al rețelei și s-a implicat adesea în monitorizarea implementării cauzelor CEDO, prin susținerea unor puncte de vedere în fața Comitetului de Miniștri.

Una dintre cauzele în care audierea va avea loc chiar în aceste zile vizează cauza Rezmiveș, în care România a fost condamnată pentru condițiile proaste de detenție. APADOR-CH a monitorizat în ultimii ani modul de derulare a planului de acțiune la care s-a angajat Guvernul României în această cauză – citiți aici rezultatul analizei.

Implementarea hotărârilor CEDO este importantă deoarece repară neajunsuri sistemice, previne încălcarea drepturilor altor persoane și contribuie la economisirea banilor pe care altfel statul este silit să-i plătească periodic pentru despăgubirea victimelor care obțin dreptatea de la CEDO.

Analysis of the implementation of the infrastructure measures of the action plan pertaining to the ECHR judgement in the case REZMIVEȘ and others v. ROMANIA

26/06/2019/in Aresturi, Comunicate, , Monitorizare condițiilor de detenție, Penitenciare, Speciale /by Rasista

On the 25th of April 2017, ECHR has adopted a pilot judgment in the case REZMIVEȘ AND OTHERS v. ROMANIA which concerned prison overcrowding and inadequate prison conditions.

Following this judgment, on January 25^th 2019, the Romanian Government sent out to the Committee of Ministers of the Council of Europe (appointed for the implementation of ECHR judgements) an action plan aimed at solving the problem of prison overcrowding and the improvement of detention conditions.

The action plan also includes a timetable for the implementation of these measures spanning over 7 years (2018-2024).

We are currently in stage II of the implementation. Investments in infrastructure are the key component of this plan, which in turn will increase the number of detention places (to solve overcrowding) and modernize them (to address the other problems related to conditions of detention).

APADOR-CH has submitted many freedom of information requests (based on the Law on the freedom of information no. 544/2001) to establish whether the implementation of this plan adheres to its timetable.

The modernization of prisons

Promises: 8095 new places of detention and 1351 modernized places

I.A. According to the action plan, 8095 new places for detainees will be created along with the modernization of 1,351 places, over the span of 7 years. The creation of these new places will be done by the construction of 2 penitentiaries (the Berceni Penitentiary and the Unguriu Penitentiary) which will also ensure an extra 1,900 places (paragraph 47 of the action plan).

According to Annex 1 of the action plan, the new detention places will be created by:

– changing the use/transforming some existing facilities into detention areas (e.g. by turning places such as the canteen, festivities room, production workshops, offices or storage areas into detention spaces).

– the construction of new detention spaces (by building new wings/ sections in some prisons and by creating two new penitentiaries: Berceni and Unguriu)

The action plan contains 6 stages (paragraph 48) as follows:

Stage 1 (2018) – objective: the creation of 1 new detention place and modernization of 500 existing places.

Stage 2 (2020) – objective: the creation of 44 new detention places and modernization of 85 existing places.

The answer received from the Ministry of Justice in April 2019 states that 70 new detention places were finalized between January 2018 – February 2019 (30 at the Giurgiu Penitentiary and 40 at the Deva Penitentiary) and 282 detention places were modernized (Deva Penitentiary). We can already see a negative deviation from the plan, both regarding the creation of new detention places (there should have been 316 new detention places at the end of 2018) and the modernization of existing places (by the end of 2018 500 detention places should have been modernized).

Stage 3 (2021) – objective: the creation of 508 new detention places and modernization of 85 existing places.

Stage 4 (2022) – objective: the creation of 3.997 new detention places and modernization of 666 existing places. At the end of 2022 the Unguriu Penitentiary, with 900 places, should be finalized. Furthermore, also at the end of 2022, the modernization of the existing detention places should be finished, because stages 5 and 6, which refer to 2023 and 2024, don’t include any modernizations but only the creation of new detention places.

Stage 5 (2023) – objective: the creation of 2730 new detention places. At the end of 2023, the Berceni Penitentiary should be at least partially finalized, it will ensure 500 new detention places (of its full capacity of 1,000 places).

Stage 6 (2024) – objective: the creation of 500 new detention places and modernization of 85 existing places. The 500 new detention places will be ensured by the Berceni Penitentiary, which should be fully functional by the end of 2024 (1,000 places).

Achievements in 2019: 70 new places, 282 upgraded places, 0 steps to build new prisons

I.B. Under point 3 of Annex 1 the action plan establishes the stages and the calendar for the construction of the Berceni Penitentiary with a total capacity of 1,000 places which must be finalized and operational by December 2024.

According to this action plan, the following activities should have been finished by June 2019:

preparation of a feasibility study [target date: June 2018]
approval of this feasibility study by the Interministerial Council (IMC) [target date: December 2018]
adoption of a Government Decision (GD) to approve the technical and economic indicators of the investments [target date: June 2019]

The answer received by the Association from the Ministry of Justice stated that as of March 27th, 2019 none of the above-mentioned activities had been carried out.

I.C. Under point 4 of Annex 1 the action plan establishes the stages and the calendar for the construction of the Unguriu Penitentiary, with a total capacity of 900 places, which must be finalized and operational until December 2022.

According to this action plan, the following activities should have been finished by June 2019:

– definition of the concept and design brief [target date: January 2018]

– approval by the technical and economic council of the Romanian Prison Administration Authority of the concept and design brief [target date: January 2018]

– preparation and submittal by the Ministry of Justice of a GD proposal to be approved by the Romanian Prison Administration Authority for the tender of the feasibility study [target date:

– performance of the technical reports and feasibility study [target date: June 2018]

– approval of the feasibility study by the Romanian Prison Administration and submission for approval to the Ministry of Justice of the technical and economic indicators by the Interministerial Council and preparation for the GD proposal to the approval thereof [target date: December 2018]

– preparation and approval of the requirements specification for awarding the works, course of the procedure and preparation of the technical project [target date: throughout 2019, until December 2019]

The answer received by the Association from the Ministry of Justice stated that until the 27th of March 2019 none of the above-mentioned activities had been carried out.

The overcrowding of prisons in 2019 – constantly 111%

Regarding occupancy index in the penitentiaries, a detailed situation was published for June 25, 2019, on the website of the National Prison Administration (ANP). Essentially, on 25^th of June 2019 the rate of occupancy was at 111.12% (19,083 prisoners and 17,173 detention places observing the 4 sqm per person standard). For prison hospitals, the occupancy rate at that date was 68.38%, for provisional detention centres it was 42.41% and 71.23% for juvenile detention centres.

Thus, on the 4th of June 2019, the rate of occupancy was at 111.68% (19,178 prisoners and 17,173 detention places observing the 4 sqm per person standard). For prison hospitals, the occupancy rate was 61.93%, 43.86% for provisional detention centres and 75% for juvenile detention centres.

A similar overview was published on the website of the Romanian Prison Administration Authority on May 21st, 2019. Thus, on May 21st, 2019 the rate of occupancy was at 111.45% (19,179 prisoners and 17,209 detention places observing the 4 sqm per person standard). For prison hospitals, the occupancy rate at that date was 66.12%, for 43.73% for provisional detention centres and 75% for juvenile detention centres.

Furthermore, an overview on the occupancy rate was published by the Romanian Prison Administration Authority in February 2019 as well. Thus, on February 19th, 2019 the rate of occupancy was at 111.83% (19,244 prisoners and 17,209 detention places observing the 4 sqm per person standard). For prison hospitals, the occupancy rate at that date was 71.10%, 46.74% for pre-trial detention and 73.97% for juvenile detention centres.

Solutions to reduce the overcrowding in the short-term

The 111% occupancy rate for penitentiaries could be reduced to 100% either by a reduction of the number of prisoners by 2,000 (19,178 – 17,173 = 2,005) or by creating/modernizing approximately 2,000 detention places (and maintaining the same number of inmates).

According to the action plan, the proposed 2,000 new detention places or modernized places should be achieved only by the end of 2022, provided that there are no deviations from the timetable. However, as shown above, the calendar hasn’t been observed. Although there should have been an extra 816 (new or modernized) places in prisons by the end of 2019, by February 2019 only 352 had been created (70 new places and 282 modernized), i.e. only 43% of the planned number of places. We are safe to assume that there will be further delays in the future.

At this pace, we can conclude that the reduction of the occupancy rate from 111% to 100% by adding 2,000 places in prisons is likely to occur in 2022 – 2023. The most feasible target date, however, would be 2023.

The effects of the law on conditional release

A fast solution for reducing the occupancy rate to 100%, would be the reduction of the number of inmates by 2,000, which seems to be an alternative to increasing the number of places in prison. This is the solution currently used (to reduce the number of inmates) and translates into several legislative changes: such as the law on conditional release or the use of alternative penal sanctions to imprisonment.

Considerations on the law on conditional release (Law no. 169/2017). The compensatory measures introduced by Law no. 169/2017 consist in the reduction of sentences with 6 days for every 30 days executed in unsuitable conditions. Thus, for every 30 days executed, 36 days are counted (for one actual month, one month and 6 days are counted, thus almost one month and one week, and 5 months for every 4 actual months etc.)

The action plan also mentioned this law as one of the measures which will contribute to solving the problems related to penitentiaries (paragraph 34 of the action plan).

According to the Romanian Prison Administration Authority’s press release no. 21652/14.01.2019, in the timeframe since the law on sentence reduction became effective (21st of July 2017) and the press release (January 14th 2019), so within two and a half years, 14,402 inmates benefited from this law and were thus released. Out of the total number of inmates 2,551 were released due to the “reductions” provided by the law and their sentence was deemed as fully executed, while 11,851 were released on probation, because based on the “reductions” they had executed a quota (fraction) of their sentence, thus allowing them to be released on probation.

The actual concern regarding the “law on conditional release” is that it was applied with no differentiation whatsoever (for all inmates). Thus, it allowed and still allows the early release of inmates imprisoned for severe and grave offences, since this reduction also applies to them. However, such a law could apply only to those who were subjected to the same conditions of imprisonment throughout their sentence, for the law not to be discriminatory.

The public reacted vehemently especially when the “beneficiaries” of the law on conditional release committed new serious offences after their release (murders, rapes, robberies etc.).

Maybe a different political approach would have found alternatives to the “law on conditional release”, solutions which would not have permitted the fast-tracked release of recidivists (inmates who had previous convictions besides their current sentence) and to inmates who have committed serious and grave offences.

For example, legislative measures could have been taken to accelerate the release of first-time offenders and for the release of prisoners convicted for less severe offences. This would have freed up new places in the penitentiaries and would have enabled the relocation of the prisoners detained in substandard facilities, without the accelerated liberation of repeat offenders and the prisoners sentenced for serious or very serious offences.

At present, it would be possible to repeal the law on conditional release and to adopt alternative measures with less harmful effects for society, so that the penitentiary occupancy index, which is currently 111%, falls below 100% (see also APADOR-CH opinion on the law on sentence reduction.

Obviously, the ideal measure would be the accelerated construction and modernization of new prison places, which in return would eliminate the accelerated release of repeat offenders, but within a tense social climate, the most reasonable solutions are often the hardest to implement.

The Council of Europe is not convinced and calls for further modernization measures, but also financial compensation for inmates

In this context, the recent Decision No. H46-21/2019 of the Committee of Ministers of the Council of Europe (which oversees the execution of the ECHR judgements) in the meeting no. 1348, 4-6 June 2019 on the implementation of the European Court’s judgment in the case Rezmiveș and Others and Bragadireanu group v. Romania (Application. 61467/12) is worth mentioning.

This decision established that:

regarding the current efforts to upgrade prison infrastructure, clarifications are still required to enable the Committee conclusively to assess the authorities’ strategy; requested them to specify whether the modernization work envisaged covers all premises in need of such intervention and, should this not be the case, to state their intentions in respect of the rest of these premises(point 4 of the decision)

the authorities must review and adapt their current plans to modernize and renew the existing network of arrest detention centres, to ensure that all facilities intended for holding remand prisoners before trial offer Convention-compliant conditions, adapted to the length of their stay, including sufficient living space, adequate material conditions with direct access to natural light and air, an appropriate regime of out-of-cell activities and suitably equipped premises for such activities (point 7 of the decision)

alongside improvements in the living conditions in prisons and pre-trial detention facilities, accessible and effective preventive and compensatory remedies at domestic level are necessary to allow the European Court, in due course, to refer back to national courts the thousands of applications pending before it relates to the problems raised by these judgments [Rezmiveș] (point 8 of the decision)

while Romania established a preventive remedy in 2014 and a mechanism providing for reduction of sentence of persons detained in inhuman or degrading conditions in 2017, it remains for the authorities to enact legislation allowing persons who did not, or will not, benefit from a reduction in sentence, who have lodged or could lodge complaints with the European Court about their conditions of detention, to claim financial compensation (point 9 of the decision)

it expressed its deep concern at the delay in establishing the compensatory financial remedy, urged the authorities to step up their efforts with a view to finalizing draft legislative proposals and engaging the necessary procedures for their adoption; in the event that no tangible progress in the legal process is reported by 1 October 2019, instructed the Secretariat to prepare a draft interim resolution for consideration at their 1362nd meeting (December 2019) (DH) (point 10 of the decision).

Modernization of prisons, release of inmates or financial reward – what would the public opinion choose?

To this day, the Council of Europe considers that all problems related to overcrowding and living conditions of prisoners are not solved and requests new measures pertaining both to the modernization of the infrastructure and the adoption of new laws to establish compensatory remedies for the prisoners.

Currently, the Romanian Civil Code (art. 1349 and following) contains provisions which allow the payment of injuries, either moral or material, suffered by a person regardless of the circumstances in which these injuries occurred. Thus, the courts have the ability, to judge every individual case within the legal statute of limitations and to evaluate whether or not an injury existed, the nature of the injury, what the exact injury was and to determine the best remedy.

In the current social and economic environment, the idea of adopting new laws enabling the financial compensation of convicted persons is quite challenging to put into practice under different conditions than those stated by the Civil Code. It’s not the first time this option was on the public agenda, and the reactions weren’t positive.

The modernization of police arrests

Promises: 1596 new places and 187 modernized places

The action plan also establishes the creation of new places and the modernization of the existing places in the pre-trial detention centres (commonly known as “police arrests”). The action plan establishes the creation of 1,596 new places and the modernization of 187 places over the span of 6 years (2018-2023) (paragraph 55 of the plan).

The action plan contains 3 execution stages (paragraph 56) structured as follows:

Stage 1 (2018) – target new/modernized places – 114

Stagiul 2 (2019-2021) – target new/modernized places – 153

Stagiul 3 (2021-2023) – target new/modernized places – 1.516

The answer received by the Association from the Romanian General Police Inspectorate (RGPI) in March 2019 states that no new places have been created between January 2018 – February 2019, but 147 places have been modernized as follows:

– Provisional Detention and Pre-trail Detainment Centre of the Maramures Police Inspectorate (30 places) – currently being commissioned;

– Provisional Detention and Pre-trail Detainment Centre of the Galati Police Inspectorate (34 places);

– Provisional Detention and Pre-trail Detainment Centre of the Iasi Police Inspectorate (50 places);

– Provisional Detention and Pre-trail Detainment Centre of the Maramures Police Inspectorate (33 places) – currently being commissioned.

Thus, the target for stage 1 (2018), i.e. 114 modernized places was achieved together with a part (33) of the total number of 153 places established under stage 2, with the commissioning date December 2021.

It bears mentioning that the highest number of new/modernized places is planned for stage 3 (2021-2023) i.e. 1,516, for the provisional detention and pre-trial detention centres. The total number of places for stages 1 and 2 (2018-2021), i.e. 267 is quite easy to achieve. However, there is a significant difference between the initial two sages where the target was 267 places (for 2018-2021) and the last stage with a goal of 1,516 places (for 2021-2023).

Occupancy rate in police arrests: 55,7%

Regarding the occupancy rate of pre-trial detention facilities, the Romanian General Police Inspectorate declared that on 19.03.2019 the total number of detainees was 779 out of the 1398 places which fulfilled the 4 sqm per person standard. Thus, there was an average of 55.7% on 19.03.2019.

Furthermore, the Romanian General Police Inspectorate sent us the statistic for the inflow and outflow of detainees for the entire month of February, split for each day of the month. This enabled us to determine that during the month of February 2019 the number of persons held in custody varied between 719 and 751 per day, with a total number of 1398 of places (hence an occupancy rate between 51.4% and 53.7%).

Observations during monitoring visits in arrests and prisons

APADOR-CH representatives visited 10 units of detention ( policearrests and penitentiaries) during January-June 2019, namely: Prisons and Police Arrest and Pre-trial Detention Centres from Giurgiu, Miercurea Ciuc, Galati, Craiova, Bucharest and Târgu Jiu.

Detention conditions in police arrests

The use of alternative arrest methods as well as the investments made in recent years in the rehabilitation of police arrest and pre-trial detention centers have made the arrests no longer overcrowded, with the occupancy rate being far below the capacity of the centres in all the visited units.

Although extensive investments have been made in many units, there are still issues to be resolved regarding the hygiene of premises, the placement of too many beds in rooms related to their surface or other aspects such as:

There are still rooms without toilets in which inmates use the classical bucket during the night for their needs, while during the day they have to resort to the goodwill of the officers to be taken to the toilet or shower;
In some police arrests that are located in the basement there is still the problem of illumination and insufficient ventilation of the rooms. Even though air conditioners have been installed, in some places they do not work and they do not replace natural light and fresh air anyway;
In most police arrest centres there is no medical assistance dedicated to the detainees. The same medical staff of the County Police Inspectorates, which provides medical assistance to the police staff, also sees the inmates. And this assistance is not always assured;
Psychiatric or psychological assistance is still lacking, although a significant percentage of the arrested population has mental health problems;
In most arrest centres, the right to shop is solved by sending police officers to the market, which reduces the dignity of their function, being practically turned into a messenger for the inmates.

Detention conditions in prisons

In the penitentiary system, despite the important releases of the past two years, the overcrowding continues to exceed the detention capacity. Investments in the modernization of existing premises or in creating new ones are at this moment lacking taking into consideration its necessary amplitude in order to see a considerable improvement.

In order to improve the life of the inmates, in 2019 the food allowance was doubled from 3.5 lei / day / prisoner to 7 lei / day / prisoner and the value of hygienic-sanitary materials received monthly by each prisoner increased substantially: razors, two rolls of toilet paper, toothpaste, shaving paste, comb, soap, shampoo, nail clippers, detergent, etc. According to the statements of inmates, these materials are sufficient, but most of the inmates with whom APADOR-CH has been interacted continue to complain about the quality of the food.

According to administrative estimations, the monthly expenses with a prisoner are 505 lei, plus the amount representing the salaries of the staff.

With few exceptions, such as the new and modern building of the Giurgiu Penitentiary, put into use at the beginning of 2019, attempts were made to rehabilitate the existing premises, a third row of overlapped beds was removed in order to create a less crowded space to existing rooms.

Overall, the following problems persist:

Poor hygiene in many of the detention rooms or food blocks;
Disabled or insufficient bathrooms for the number of inmates per room and a hot water program too short for everyone to shower;
Few or no medical staff (except for the Galati Prison, all the other visited prisons had a deficient number of physicians or did not have at all – Miercurea Ciuc case);
As with police arrests, there is a chronic lack of psychiatric medical staff;
Lack of testing programs when entering the prison system for sexually transmitted diseases and generally lack of methods to prevent the spread of these diseases, eg condoms;
Lack of effective programs for qualification of inmates, to facilitate their reintegration after release;
Insufficient staff to carry out socio-educational activities that most inmates say they need;
Insufficient jobs for inmates, with or without payment. Given that the Romanian labor market lacks staff and the prisons have people wanting to work, it would be desirable for the Ministry of Justice to find solutions together with the Labor Ministry to link the two segments.

Observations and recommendations for the visited police arrests

Police arrest and pre-trial detention Centre from Bucharest (Central Police arrest) (full report)

Although there have been large investments in the semi-basement, there is still a need for funds to be allocated to the ground floor of the detention centre where women are accommodated. All 11 rooms require rehabilitation, as they have not been rehabilitated and have dampness, water infiltrations, rusty sanitary facilities and poor hygiene conditions.
Further, police officers are personally involved in making the shopping and distributing the products to the arrested persons.

Police arrest and pre-trial detention Centre from Miercurea Ciuc (full report)

All 11 arrest rooms require urgent investment. They have water infiltrations, rusty sanitary facilities and poor hygiene conditions. There are two bathrooms on the hall, one used by women (also used by the centre staff) and a sanitary group used by men.
Walls are blocked with plastic bottles because the sewage odor is penetrating and difficult to bear. All sanitary facilities are rusty, old and partially functional. Using a bucket for the physiological needs during the night is inhuman and degrading treatment within the meaning of the jurisprudence of the European Court of Human Rights in Strasbourg.
The placement of the telephone is totally inappropriate because of the chosen location – in the medical cabinet – but also because it is not possible to provide visual supervision to those who use it.

Police arrest and pre-trial detention Centre from Galați (full report)

The arrest is visibly changed from the last APADOR-CH visit, freshly renovated, modernized sanitary units, insulating glass windows, ventilation system on the hall and in the rooms.
However, the project could have provided for the location a smaller number of beds, in order to respect the norm of the room space.
There is no psychologist / psychiatrist for detainees.
Phones should be located in an area to ensure the confidentiality of calls.
It is required to supplement the book fund from the library with copies of the Criminal Code and Criminal Procedure Code, the most required books in the system.
Refurbishment and equipping of the courts with minimal equipment for physical activities.

Police arrest and pre-trial detention Centre from Dolj (full report)

Over the last 4 years, funds have been allocated for repairs, cleaning and improvements, however, the sensation left by Dolj Centre, probably due to its basement location, is one of dirt and darkness.
It is necessary to install doors to bathrooms and to ensure a periodic cleaning of them.
It is necessary to re-establish the visiting sector for minors so that the visits to take place without a separator, according to the legislation in force.
Install the 4 fitness bikes and treadmills purchased in the walking courts to give people the opportunity to do sports.
Provision of medical assistance within the arrest, including by intensifying the efforts to fill the vacant post of arrest doctor.

Police arrest and pre-trial detention Centre from Giurgiu (full report)

Although it is no longer overcrowded, it is necessary to construct a new arrest centre, as employees have stated, because there are no conditions for a reorganization of the existing detention space, for example there is no technical possibility of installing bathrooms in the rooms.
The center is often confronted with power outages, which is why air conditioners in rooms do not work.
It is recommended to remove the perforated metal panels from the windows, which prevents the air from entering the rooms.
The phones for detainees should be placed in an area to ensure the confidentiality of the conversations.
Supplying the medical room with a first aid kit.

Observations and recommendations for the visited prisons

Giurgiu Penitentiary (full report)

It is the only visited prison that had a new building structure, built to modern standards of detention. Otherwise, only 50% of the penitentiary provides adequate conditions of detention. Even if it is not overcrowded, many rooms in the penitentiary still do not meet the hygienic legal standards.
According to the management, the unit has a low capacity to spend funds for the rehabilitation of the detention facilities, because it does not find skilled persons neither inside the penitentiary, among inmates, nor outside.
The hot water program in rooms with more than 3 people should be extended for more than one hour so that all the occupants of the room have the time to shower.
Intensify the efforts to collaborate with the School Inspectorate for organizing classes of 5th-8th grades in the penitentiary so that the level of schooling is no longer an obstacle in obtaining a qualification and, later, in finding a job.

Galați Maximum Security Penitentiary (full report)

As for 2012 (the last visit of APADOR-CH here), some things from the Galati Penitentiary have changed for the better, but the conditions of detention in general and the overcrowding of the rooms remain to be solved.
It is commendable that the socio-educational sector manages to involve a large number of prisoners in educational activities. It would be desirable to emphasize the qualification courses, in order to give prisoners an advantage when leaving the penitentiary and aproaching the labor market.
It is understandable and appreciated the leadership’s concern to stop the traffick of drugs and mobile phones, which it says there were on a large-scale in the years before 2017. But some measures taken in this regard seem to punish prisoners and make their detention more difficult, in addition to the conditions that are so improper. These effects also seem to be reflected in a slightly increased number of aggressions and self-aggressions among prisoners, according to activity data from 2018 – 68 cases in 2018 compared to 48 in 2017, in the circumstances of a decreasing number of prisoners. According to the same report, the number of acts of violence against the staff sharply increased, from 1 in 2017 to 14 in 2018, which may indicate a latent state of frustration among prisoners.
The management should reconsider the decision to ban refrigerators on the hallways for the use of prisoners.
Extending the warm water distribution period, from one hour and a half – two hours to three hours, at least in the eight-person rooms, so that everyone can have a shower.
Finding solutions for keeping the prisoners busy through paid work, at least those under an open regime, which would not require such a strict guard.

Miercurea Ciuc Penitentiary (full report)

APADOR-CH appreciates that Miecurea Ciuc Penitentiary is one of the cleanest and most neated prisons in the country. However, there are two major problems: the overcrowding and the lack of medical assistance since 2014 to provide health care.
At the time of the visit, in one room there were, for example, 16 prisoners and 18 beds, each prisoner having 1.56 sqm space, much below the 4 sqm standard. The prisoners in this room have complained that there are no staircases at the overlapped beds, that the food is bad, the yards are small and the time spent outside is limited, they do not receive envelopes and stamps, they would like to work no matter if they are paid or not.
It is recommended to solve the problem of overcrowding, including through the development of a medium and long-term strategy considering that the space and nature of the penitentiary does not allow the extension or construction of new premises.
Hiring a permanent general practitioner in the penitentiary. Given that some of the nurses are about to retire, penitentiary officials have to think of solutions to replace them so they will not end up in a deadlock.

Târgu Jiu Penitentiary (full report)

The level of overcrowding remains high, a prisoner having a maximum of 2 sqm space, which flagrantly contradicts the 4 sqm recommended by the Committee for the Prevention of Torture. The association recommends to the prison’s leadership but also to the National Administration of Penitentiaries to find urgent solutions for the decongestion of rooms where the air is unbreathable.
Nearby, in Bumbeşti-Jiu, there is a fully equipped unit of the Gendarmes’ Authority that would meet the conditions for a penitentiary with a minimum investment. This location is no longer used, being left to degrade. The Târgu-Jiu Penitentiary’s management mentioned that made proposals to National Administration of Penitentiaries to take over this space starting with 2016, but no solutions were found at the level of the two ministers: the Ministry of Administration and Interior and the Ministry of Justice.
Investments in the food sector are needed (renovation, purchase of a ventilation system).
Reorganize the visitor space with minors.
Intensify the efforts to take over the Bumbeşti-Jiu location to be transformed into a penitentiary, given the need for new detention spaces at international standards.

Craiova Penitentiary (full report)

It is a visible improvement regarding the overcrowding since the 2014 visit. Also, the Craiova Penitentiary is among the few who benefits from a psychiatrist. However, in relation to the workload here, APADOR-CH recommends that there should be at least another psychiatrist.
In addition, it would be necessary:

– placing refrigerators in the rooms;

– placing condoms in places accessible to prisoners to prevent the spread of sexually transmitted diseases;

– supplying the medical room with fast HIV tests;

– repairing the ventilation system at the food block.

CEDO vs. România — de ce rămânem în topul condamnărilor?

29/06/2016/in Buna guvernare, , inPresa /by Rasista

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(Articol apărut inițial în secțiunea opinii a Digi24)

România se află pe locul patru în ceea ce privește numărul de condamnări la CEDO, după Turcia, Italia și Rusia. A fost condamnată în 1,076 de cazuri între 1994 și 2015. Comparativ, împotriva Norvegiei s-au pronunțat 28 de condamnări în perioada 1952-2015.

Numai în anul 2015 statul român a plătit din banii publici aproape 8 milioane de euro, după ce a pierdut procese la CEDO.

Țara va râmâne fruntașă în topul perdanților dacă va continua să plătească daune fără a adresa problemele care o duc acolo — adoptarea unor măsuri generale (legislative și de practică) în urma acestor cazuri, care să prevină încălcări viitoare.

Principalele cauze în care România pierde la CEDO

Cele mai multe cauze pierdute la CEDO sunt referitoare la încălcarea dreptului la protecția proprietății — privesc imobilele preluate în mod abuziv în perioada regimului comunist. Urmează cauze legate de: dreptul la un proces echitabil, dreptul de a nu fi supus tratamentelor inumane și degradante, durata procedurilor judiciare, dreptul la libertate și siguranță, lipsa unei anchete eficiente, dreptul la viață privată, ne-executarea hotărârilor judecătorești, interzicerea discriminării, dreptul la libertatea de exprimare, dreptul la un recurs efectiv, dreptul la alegeri libere, condamnarea fără bază legală, libertatea de conștiință și religie.

Majoritatea condamnărilor împotriva României apar din cauza unui sistem de justiție nefuncțional. Implementarea hotărârilor CEDO ar presupune o reformă semnificativă a sistemului, care se lasă așteptată.

Spre exemplu, deși plângerile cetățenilor privind dreptul la protecția proprietății au început să ajungă la CEDO în 1994, abia în anul 2010 (în urma hotărârii pilot Maria Atanasiu şi alţii împotriva României) statul a adoptat o lege pentru remedierea dreptului la protecția proprietății — dar nu sunt adresate toate problemele, spre exemplu când există mai multe hotărâri judecătoreşti definitive care stabilesc, pentru titulari diferiţi, dreptul de proprietate asupra aceleiaşi clădiri.

Statul român încalcă sistematic drepturile omului și când este condamnat pentru asta nu face mare lucru pentru a remedia situația în mod real. Cauzele sunt multiple și oscilează, nesurprinzător, între neputință, necunoștință și rea-credință.

Mai este și problema lipsei de dezbatere în spațiul public asupra necesității implementării hotărârilor CEDO. Adică, ce urmează după o hotărâre definitivă? Are guvernul un plan? Cine face planul ăsta și cine este responsabil pentru ca planul să fie dus la bun sfârșit?

Nu se întâmplă ca în țări precum Norvegia, unde, în urma unei condamnări la CEDO, statul comunică publicului într-un limbaj simplist ce s-a întâmplat și ce are de gând să facă pentru a remedia încălcarea de drepturi constatată.

APADOR-CH a publicat un studiu care explică procedurile legate de CEDO și conține recomandări pentru îmbunătățirea sistemului. Dar pentru a face asta guvernul are nevoie de un plan, multă bună-voință și comunicare instituțională. Lucruri care lipsesc.

Cazul abuzurilor forțelor de ordine

Ca și Bulgaria, Ungaria și Polonia avem probleme cu privire la respectarea dreptului la un proces echitabil și cu durata procedurilor judiciare.

Am pierdut la CEDO, la fel ca și celelalte state comuniste din Europa de Est, foarte multe cazuri din cauza tratamentelor inumane și degradante care au avut loc sub custodia forțelor de ordine ale statului (polițiști/jandarmi) și a lipsei unei anchete efective în aceste cazuri.

E vorba inclusiv de condamnări privind condițiile de detenție. Am sesizat că drepturile deținuților nici măcar nu sunt cunoscute de o mare parte din cetățeni, așa că am creat o platformă interactivă pentru informare.

În iunie 2015, Guvernul a reușit să convingă Comitetul de Miniștri al Consiliului Europei să închidă supravegherea într-un grup de cauze denumite Barbu Anghelescu v. România (2005) referitoare la abuzurile poliției. În aceste spețe, Comitetul a identificat probleme sistemice care nu au fost rezolvate: lipsa unei anchete eficiente în ceea ce îi privește pe abuzatori (1995-2010), lipsa unui remediu eficient pentru compensarea daunelor suferite ca urmare a relelor tratamente, eșecul de a investiga posibilele motivații rasiste care au stat la baza morții/relelor tratamente aplicate reclamanților. Argumentele guvernului sunt destul de stufoase și dau bine pe hârtie (vezi aici).

Adevărul este însă că statul român a eșuat în a lua măsuri eficiente pentru a preveni viitoare abuzuri ale forțelor de ordine.

Cercetarea APADOR-CH în cadrul proiectului “Cu ochii pe abuzurile poliției” relevă faptul că doar 14 din 3,034 de plângeri penale făcute de cetățeni în perioada 2012-2014, referitoare la abuzuri ale forțelor de ordine, au ajuns în fața instanțelor de judecată.

Discretă fără voia ei, CEDO își face treaba și încet, dar sigur, schimbă lucruri în bine în țara asta (de 22 de ani). Nu fără cusururi, a ajuns ultima speranță a unui om căruia i-au fost încălcate drepturi fundamentale în țară.

Dar cât timp România nu adresează problemele care o duc în topul țărilor perdante la CEDO, va continua să rămână în compania unor state recunoscute pentru atrocitățile comise împotriva oamenilor și va pune presiune pe propriii cetățeni.

Autor: Georgiana Gheorghe (foto), Expert drepturile omului (APADOR-CH). A absolvit facultatea de științe politice (Universitatea din București) și un master în drept în cadrul Universității Central Europene (CEU) din Budapesta, Ungaria. Lucrează în societatea civilă din 2008, în organizații neguvernamentale din România, Ungaria și Letonia.

Intervențiile APADOR-CH pe lângă Comitetul de Miniștri, pentru implementarea hotărârilor CEDO

11/02/2012/in Buna guvernare, , /by Rasista

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16/09/2020 – Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)

Comunicarea depusă de APADOR-CH în cauza Ciorhan v. Romania (No. 49379/13) și Ghiulfer Predescu v. Romania (No. 29751/09) privind libertatea de expresie.

Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law

Submission before the Committee of Ministers in respect to the case of Bucur and Toma v. Romania (Application No. 40238/02)

Submission before the Committee of Ministers on the new action plan of the Romanian Government in respect to the cases of Bragadireanu v. Romania and Rezmives and Others v. Romania

Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)

43% din condamnările CEDO sunt neimplementate la nivel european

Cum se face implementarea unei decizii CEDO

Care sunt țările fruntașe și care sunt codașe

Pentru ce e condamnată România

De ce e importantă implementarea

Analysis of the implementation of the infrastructure measures of the action plan pertaining to the ECHR judgement in the case REZMIVEȘ and others v. ROMANIA

The modernization of prisons

The modernization of police arrests

Observations during monitoring visits in arrests and prisons

Observations and recommendations for the visited police arrests

Observations and recommendations for the visited prisons

CEDO vs. România — de ce rămânem în topul condamnărilor?

(Articol apărut inițial în secțiunea opinii a Digi24)

Principalele cauze în care România pierde la CEDO

Intervențiile APADOR-CH pe lângă Comitetul de Miniștri, pentru implementarea hotărârilor CEDO

16/09/2020 – Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)

04/11/2019 – Rezmiveș și alții și Bragadireanu grup v. România (Dosar 22088/04, 61467/12)

04/09/2019 -Țicu grup v. România (Dosar 24575/10)

12/06/2014 – Bragadireanu grup v. România (Dosar 22088/04)

17/02/2012 – Asociația „21 decembrie 1989” și alții împotriva României (Dosar 33810/07)