APADOR-CH report 2018

Human Rights in Romania 2018

After a 2017 marked by political turmoil and street protests, 2018 started with a governmental crisis – the 2^nd in only six months’ time – and continued to deepen the lack of trust in society. Not only between the competing political parties, but also in the citizen’s mentality, who became more doubtful and disoriented after the recent years filled with socio-political upheaval, deceptions and disappointments. An INSCOP survey made in the autumn of 2018 shows that 74% of the Romanians believed the country was heading towards a wrong direction.

               The second government of the governing coalition, installed in the first month of 2018, remained unchanged over the course of the entire year. Nonetheless, the social stability of the country was still absent, having been shaken by two major street protests, contradictory statements, the dismissal of several key people from the justice system, everything under the close supervision of the European Union.

               The Judiciary has caught the public discourse and attention again in 2018, overshadowing other topics that influence the everyday life, which in turn have been affected by last-minute decisions, having lacked the appropriate debates between the power, the opposition and society. The Parliament and the Government continued to work in order to change the basic legislation of the judiciary system. The following issues have been on the agenda:

• Changing leadership in important prosecutors’ offices – the most infamous having been the chief prosecutor of NAD (The National Anticorruption Directorate);
• Elaborating a normative act which would allow for the review of sentences issued on the basis of intelligence services interceptions;
• The operationalisation of the section for investigating justice offences;
• new random draws for the 5 judges panels of the High Court of Cassation and Justice (ICCJ), panels which, when it comes to criminal matters, judge (ultimately) the people with the most important public functions; MPs, ministers, etc.

The latter was based on the Constitutional Court’s (CCR’s) decision number 685/2018 which determined that the ICCJ panels of 5 judges established between 2014-2018 were illegally created and also lacked impartiality and independence. As a result, CCR declared that all papers drafted by the panels, including court orders through which the criminal files have reached a conclusion, are invalid. As a consequence of CCR’s decision, multiple prison sentences have been suspended, allowing the inmates to be free. After a retrial, the individuals can be either released or convicted (including prison time).

CCR’s decision created strong disagreements within society, especially since according to current provisions ofthe Criminal Procedure Code (CPP), only certain individuals judged by the panels of 5 – which have been declared  illegally constituted and lacking impartiality – can challenge the null decisions. This is because the Criminal Procedure Code stipulates a very short term for challenging such decisions, a term which had already expired in the majority of casefiles (solved between 2014-2018) to challenging such decisions, time limit which already expired in most files (which reached a settlement between 2014-2018) by the time the Constitutional Court  declared the unlawful character of the 5 judge panels.

There have been voices in the public space which claimed that the decision regarding the illegal composition of the panel of 5 judges should be maintained, even if it is hit by absolute nullity, as there is the risk of applying the prescription of criminal liability for that person if a retrial occurs, resulting in “freedom” for the above-mentioned individual. These opinions are debatable, since the prescription of criminal liability is a legal benefit and it is a consequence of culpable conduct of the state’s agents (not of the person sent to court) – who could not finalize a trial, in the conditions of the law and within the maximum period fixed by the law. By the end of 2018, there was no legislative solution for this problem.

In the Parliament, the parliamentary majority has been consistently modifying the  Criminal Codes, despite receiving warnings both from the judicial system and from various  surveillance European supervision mechanisms. Close to the end of the year, over one hundred modified articles have been declared unconstitutional by the Constitutional Court, while the Venice and European Commission have recommended a return to the pre-2017 legislation.

In December 2018, the Social Democratic Party  has insistently demanded for both Penal Codes to be adopted by the Government through an emergency Ordinance and for the adoption of the infamous government ordinance on amnesty and pardon which continued to be a hot topic on the publics’ agenda in 2018 and will most likely continue in 2019, as long as over the winter holidays the Government did not issue any of the controversial ordinances.

Two major protests took place on 20^th January and 10^th August 2018, the latter resulting in the use of force by the authorities which ultimately triggered a series of criminal investigations and resulted in a Resolution of the European Parliament which addresses the way  Romania respects  fundamental rights, such as freedom of expression, the right to peaceful protests, etc.

In terms of street protests, 2018 has been marked by a controversial decision of the High Court of Cassation and JusticeJ. The panelassigned to solve the appeal in the interest of the law (RIL) decided, through decision number 19/2018, that there is an obligation to declare in advance (‘prior notification’) any assembly, each time it is going to  going to manifest itself in squares or in public places (public road, roadways and pavements) or in any other outdoor setting which is situated in close proximity to the headquarters/residence of legal entities of public or private interest. Therefore, any public gathering will have to be declared in advance. The supreme court’s decision remained definitive and mandatory starting with 13^th December 2018 (when it was published in the Official Gazette) and will have to be respected by all courts when solving cases in relation to public assembly gatherings. APADOR-CH published a perspective regarding the regime that should be applicable for the spontaneous public gatherings (‘spontaneous rally’), given that there is no such regulation provided by the law.

Another reason for major dissensions in society, at least at the level of public debates, was the referendum for modifying the Constitution and redefinition of marriage. Although it involved significant actors from society, was supported and promoted by important parties, by the Orthodox Church and by other known cults, the referendum recorded only 21,2% turnout, a new low since ’89.

It still is to be seen whether all these issues, which have characterised 2018 will be reflected in the electoral ballots in 2019 (Euro parliamentary and presidential elections) and in their outcomes. A higher turnout – compared to the 40% registered at the last elections in 2016 – would be the real achievement of these years,  during which people should have understood that active citizenship requires voting turnouts, but also monitoring the chosen politicians. Doing only one would bring frustrations both to the people who voted, as well as to those who chose not to vote.

Therefore, similarly to the 2017’s conclusion, the loss of this year is that given the civic activation doubled by a tremendous flow of information, a general state of confusion appeared within society. Caused by the special nature, hardly accessible by the masses, of the legal, technical  data spread in the public space, but endorsed by fake news, misinformation campaigns, manipulation and propaganda, the general state of confusion is harmful even for the civic spirit and demobilised a big part of the population. As a result, the Romanian society finds itself more and more radicalised, with moderate opinions and factual information being often rejected or overlooked by all the actors involved.

In its activism for civil rights, APADOR-CH has advocated again this year for organising public debates regarding any amendments to the legislation, has  elaborated proposals for the  improvement of the Criminal Codes  and has been involved in the prevention campaign against  those measures which aimed to limit limit the right to free association and abusive control of the NGOs, and on an European level has been part of civic coalitions that aimed to stop the Copyright directive.

In 2018 there have been at least 3 attempts to adopt certain regulations that would substantially affect (in a negative way) the normal functioning of NGOs:

1. Under the pretext of applying the national Directive against money laundering, a new law was adopted, which stipulates that all NGOs have the obligation to declare/report to the authorities any ‘real beneficiaries’, hence, nominal lists containing the personal data of every individual who benefits – in any form – from the activity of an NGO. It is worth mentioning that, in the European directive that needs to be applied, the obligation to declare real beneficiaries lies with the banks and financial institutions, not with NGOs. The law has been declared unconstitutional, but only due to a minor reason (the wrongful exclusion of national minorities’ organisations from the reporting obligation), not on the basis that it improperly adds to the European Directive. On that account, it is highly possible that in 2019, after the minor correction required by the Constitutional Court, this law will be adopted, thus, affecting the smooth running of any NGO.
2. Under the pretext of transparent funding of the NGOs (objective which, in its core, is appropriate), the majority party has initiated in 2017 a draft law  which contained disproportionate obligations and sanctions for the NGOs, in relation to  reporting each funding and grant maker , no matter how small the sum was. The mandatory activity would have required such a great level of involvement, that each NGO would have needed to allocate one person (out of the already small staff) to conduct financial reports only. Additionally, the stipulated sanctions for non-reporting and even late reporting were heavily disproportionate, ultimately leading to the decomposition of the organisation. This draft law was passed tacitly in the Senate. Until it was debated into the decisional chamber (Chamber of Deputies), the draft law was examined by the Venice Commission and OSCE which, in a shared opinion, have brought numerus critics. At the end of the year, the draft law was ‘pending’ in the Chamber of Deputies since it did not constitute a priority. However, it can be brought into debate at any given time, and even adopted.
3. Under the pretext of caring about the spending of public money, a new initiative was promoted at governmental level (Ministry of Finance): establishing regular inspections in NGOs in order to check how funds (from sponsorship and from redirecting the 2% from the annual income tax) are being spent. This step has been materialised through Ordinance number 18/2018 regarding the regulation of several measures in the economic-financial inspection field carried by the Ministry of Public Finance and for the completion of particular normative acts. Although there have been various complaints from the authorities regarding the insufficient personnel in the economic-financial inspection bodies, the governors have decided to continue redirecting the staff’s activity towards scrutinising the NGOs, instead of focusing on the relevant economic-financial entities.

At the beginning of September 2018, APADOR-CH has asked the Ombudsman to raise a constitutionality question to the Constitutional concerning the nature of Court Ordinance number 18/2018, since it endangers the good functioning of the NGOs and, implicitly, affects the freedom of association. The Ombudsman’s reply was that notifying the Constitutional Court is not required. Nevertheless, through the same answer, the Ombudsman has made a few essential remarks regarding the necessity of retroactive non-application of the civil law (namely of the Ordinance number 18/2018).

The only reasonable explanation for the series of anti-NGO measures that have been initiated by the Government in 2018 is that, at the level of the majority coalition, there was a desire to burden the  activity of the non-governmental sector, mainly for the purpose of decreasing the reaction capacity (which, in many cases, was rather critical).

At an organisational level, APADOR-CH continued to pursue its ongoing projects, has ran multiannual projects in partnership with other European organisations and has pursued activities such as legal advice and representing strategic cases before the European Court of Human Rights.

Read APADOR-CH’s extensive activity report in 2018.

Georgiana Gheorghe

Executive Director of APADOR-CH