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Fundatia Konrad Adenauer

Codul Muncii Adnotat

Human rights

Central issues:

There is no strategy concerning human rights.

We are the second country in the ECHR by the number of petitions.

The authorities do not know and apply the European Convention to the required extent.

 

1. Lack of strategy with regard to human rights

National authorities have often asserted that Romania had no problems in the field of human rights observance and promotion. Nevertheless, practice has proven the opposite. Mistaken understanding of the fundamental human rights notion has generated elementary confusion both among the members of the civil society and especially at the level of national administration. The authorities’ lack of interest for this field has currently cost Romania the amount of approximately EUR 50 million1, representing the damage compensation owed on the grounds of ECHR decisions pending on the violation of the stipulations from the European Convention for the Protection of Human Rights and Fundamental Freedoms.2

Although at an international level, Romania has assumed the responsibility to implement an effective educational system with regard to human rights, the lack of cooperation among state institutions has not allowed the fulfillment of the assumed obligations. 3 From this point of view, an extreme importance is assigned to Recommendation (2004) 4E of the Committee of Ministers from the Council of Europe imposing many obligations required from member states, especially from the ministry of education and justice, with regard to the mandatory and proper training of jurists regarding the European Convention and jurisprudence related to the European Court on Human Rights4. Moreover, in Warsaw, no more than one year ago, Romania assumed responsibility that “at the national level, it should observe … an adequate training with regard to the norms of the Convention that ought to be perfectly integrated into higher education and professional training systems. As a consequence, we (the Committee of Ministers from the Council of Europe) decide to initiate a European educational program with regard to human rights aiming at the training of individuals of legal profession while also calling upon member states to contribute to its actuation5.

Nevertheless, we have no knowledge of educational strategies in compliance with the mentioned international instruments elaborated by Romania at a national level. One would have hoped them to be implemented by national authorities, all the more so as Romania has been assigned the presidency of the Committee of Ministers during November 2005 – May 2006. The local programs, progressing with interruptions and random financing are, in the lack of a global and integrating national vision, lacking efficiency, reflecting in the low degree of specialized juridical education and especially current practice of the judges, prosecutors, police-men, lawyers or clerks from the public office.

 

2. Petitions addressed to the Strasbourg Court

Romania is currently ranked second from the viewpoint of petitions whose adjudication is in progress at ECHR6, which represented an alarm signal for the Romanian authorities. With a population much smaller than Russia, ranked ahead of us in the above mentioned classification, Romania is practically the state comprising most ECHR petitions per inhabitant in Europe. This situation proves the decreasing interest of the Romanian state in the promotion of human rights, the existence of national stipulations contrary to the provisos of the Convention, the lack of accuracy and coherence of valid legal norms as well as the low level training of magistrates7 with regard to the compliance with these rights by enforcing international norms8, mainly the European convention and the ECHR jurisprudence.

According to ECHR statistics, approximately 9500 complaints against Romania have currently been brought to the attention of the court. Out of them, more than 6000 causes have already been assigned to adjudication committees. It was noticed that during the past 3 years, the number of causes communicated by ECHR continues to rise: 53 causes in 2003, 70 causes in 2004, 137 causes in 2005 and 162 causes by July 20069. This either proves violation of certain rights guaranteed by the Convention or legal incompatibility or improper enforcement of the law.

All European states have encountered certain problems with regard to the observance of certain human rights yet Romania stands out by complaints regarding violation of most articles stipulated by the Convention. The background issues identified by ECHR are generated both by improper legislation and by the manner of case solving by the Romanian judicial structures10:

 

  1. Annulment of final and irrevocable decisions through extraordinary ways of appeal. Most decisions issued by the ECHR against Romania refer to the violation of the right to a fair trial (art. 6), as well as of the right to the observance of personal property (art. 1 par.1) as a consequence of accepting annulment appeals promoted by the General Prosecutor against irrevocable civil court decisions („Brumărescu”, which has unfortunately become a “text book” case because a number of other causes of the same type were lost by the Romanian authorities in the ECHR). It is surprising that although the institution of the annulment appeal has been repealed through the amendment of the Penal Procedure Code in 2003, ECHR notified the Governmental Agent with regard to more than 20 complaints pending on the aforesaid matter accepted by the Supreme Court in 2003-2004. Moreover, the interpretation assigned by the Supreme Court, namely that annulment appeals may also go to trial after repealing the annulment appeal provided that the decision appealed against was ruled under the law regulating that way of appeal, is surprising to us. If such ways of appeal are to be accepted, Romania runs the risk of new convictions on the already existing Court jurisprudence.
  2. Impossibility of former owners whose no-title nationalized buildings were sold to tenants under the Law 112/1995, to acquire “in-kind” restitution for such or any other type of compensation. More than 150 complaints have presently been filed with regard to the enforcement of the Law 112/1995 on the violation of the property right by rejecting the actions while holding the complete invalidity of the sale-purchase agreements signed between the state and the former tenants. They have bought the rented buildings from the state. Either previous or subsequent to the signing of the agreements, the rented buildings in question had been restituted to their former owners by the court (i.e. „Păduraru” cause).
  3. Violation of the right to appear before a court of law. Violation of art. 6 par. 1 of the Convention was noticed in most cases such as „Brumărecu”, „Canciovici” and „Mosneanu;” the request submitted by „Parohia greco-catolică Sâmbăta Bihor” - Sâmbăta Bihor Greek-catholic Parish was acknowledged as acceptable, also as a consequence of this article’s violation.
  4. Excessive duration of judicial procedures: violation of art.6. par.1 on the non-compliance with the reasonable term was noticed both with regard to penal causes („Pantea”, „Tudorache”, „Stoianova” and „Nedelcu”), and to civil cases („Moldovan”, „Străin”). The Government has recently been notified with regard to more than 20 causes questioning the duration of the procedures, concerning either penal or civil matters. Long periods of complete inactivity during the penal pursuit were noticed together with the absence of adequate measures from the court in view of diminishing civil procedures. 11
  5. Applying of inhuman and degrading treatments by the representatives of public institutions together with the absence of an efficient investigation regarding this. Violations of art.3 and art. 2 of the Convention mainly refer to mistreatment applied by police and gendarmerie officers as well as to lack of efficient investigations with regard to these causes. The number of convictions concerning the violation of art.3 is relatively low for the moment („Pantea”, „Anghelescu”, „Bursuc”, „Moldovan”), however the number of notifications (over 20) in similar causes has increased. SoJust expresses its concern concerning the fact that the Court jurisprudence in this matter is not studied in the Police Academy.
  6. Violence against the Romany minority. In 2005 only, ECHR reached a verdict on four causes regarding the violation of art. 14 related to art.6 and art.8, out of which it accepted three causes („Gergelz”, „Kalanyos”, „Tănase”) for which the Governmental Agent already initiated the negotiation process for amiable agreement. 12In 2006, the Government has been notified by ECHR with regard to new causes deemed as acceptable („Baciu”, „Nită”, „Stoica”). Besides, So Just notices that the sexual, religious and ethnical minorities have to suffer in Romania not just because of obsolete mentality of the citizens, but also due the inefficiency of the strategies in the field, as well as the lack of adequate training of the authorities.
  7. Conviction of journalists and thus violating the freedom of expression. The ECHR has convicted Romania with regard to the violation of the freedom of expression granted by art. 10 of the Convention („Dalban”, „Cumpănă & Mazăre”, „Sabou & Pârcălab”). The Government has been recently notified on 8 other causes regarding the violation of this right. The new amendments brought to the Penal Code this year repeals insult and slander (SoJust is highly skeptical on the repealing of slander, a criminal offence that is existent in most states). However as they are not assigned distinct regulation, media offences will stand as the object of civil lawsuits from now on. By sentencing the journalist to payment of damage compensation, the final stage of such lawsuits may constitute a conviction in compliance with the jurisprudence of the Strasbourg Court. Therefore judges need to consider such causes with thorough care. In any case, SoJust notices an exacerbation of the jurnalists’ freedom of expression right; they do not realize that the Convention itself is limiting this right in the cases provided by in art. 10 par. 2; hence, a fear of the magistrates to solve causes involving journalists.
  8. Erroneous enforcement of the 1980 Hague Convention stipulations with regard to civil aspects of international children abduction. In the Monory cause the ECHR held the violation of art. 8 as a consequence of the erroneous enforcement of the Hague Convention stipulations by the Romanian court of law. The Government has been notified with regard to 2 other such causes. SoJust is not acquainted with the Romanian magistrates’ practice in this matter or in that regarding the interaction between the Hague Convention and the incident community legislation.
  9. Insufficient justification of court decisions was argued for by the ECHR in the „Albina” cause as a violation of art.6. par.1; the Government has been notified with regard to two such causes that are currently on trial. Besides, the judicial decisions are generally not motivated in Romania: the narrative rendering of the facts claimed by the parties and of those instated by the court, with a flat reproduction of the applicable legal text, without enough analysis of the case de facto and of the incident mechanisms, as well as without explaining the elements that led the magistrate to a certain belief concerning the facts, are far from a sufficient argumentation of the judicial decisions.
  10. Rejection of a registration application from a political party constituted violation of the right to freedom of association – art.11, argued for by the Court in its decision regarding „Partidul comunistilor nepeceristi” – “Party of the non-PCR (Romanian Communist Party) communists”.
  11. Not hearing the offenders before the investigating courts. In the „Constantinescu”cause the court noticed that the petitioner not being heard by the court of appeal that was competent to analyze both the actual case and the legal matters and also to study the matter of the offender’s guilt as a whole, stands as a violation of the stipulations of art.6. par.1. There are currently five similar causes about to be tried by the Court. Upon analysis of national courts’ jurisprudence, it results that the non-hearing of the offenders the judicial investigation courts is a wide spread practice, which might generate a significant increase of causes of this kind. The new amendments brought to the Penal Procedure Code by Law no. 356 of 2006 repeals this practice, but not the convictions for the way causes were instrumented up to date. 

 

 

3. The violation of human rights in certain actual cases

 

            SoJust proceeded to analyzing certain cases of human rights violation in Romania, with the intention of drawing the attention of the institutions and authorities that were involved at a certain time to the way of handling such causes as well as to their consequences.

 

I.       THE PRESUMPTION OF INNOCENCE

 

SoJust strongly draws the attention to the current practices of the state authorities that are susceptible of violating the presumption of innocence, a fundamental right provided by art. 6 par. 2 from the ECHR, according to which “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

 

In Romania, there exist both the theoretical but mostly the practical tendency to transfer to the courts of law alone the responsibilities derived from the obligation of this presumption’s observance. The judges are not allowed to start from the preconceived idea that the accused person has committed the offence of which he is accused, and its entire behavior during the trial should be according to this obligation13.

 

Nevertheless, the European Court has firmly ruled - in causes that should be models of good practice for the Romanian authorities - that the violation of the presumption of innocence may come both from a judge and from any other public authority. The person accused with an offence must be presumed innocent not only in the court room, but generally in society. For that reason, the state must institute formal measures for the efficient guarantee of the presumption, first by regulating the public authorities’ behavior towards the suspected person and by instituting self-control to the way in which they provide information concerning the presumptive illegal act and its author. Any informing of the public with respect to the ongoing penal investigations must be done discretely and especially with all due reserves imposed by the observance of the presumption of innocence14.

 

            These obligations apply both to the police bodies, the Prosecutor’s Office or other special investigating bodies, but also to the authorities in general, including the ministries, the parliament or the local public authorities. The press conferences, the handouts and the communiqués offered by the investigating bodies from Romania are abundant in these unequivocal references to the persons’ guilt. The declarations of guilt indiscriminatingly issued by the authorities incite the public, prejudice the appreciation of facts by the judges, may constitute a disallowed pressure on them, but especially represent an equal number of possible convictions of the state for the violation of this fundamental human right.

 

    II. THE HĂDĂRENI CASE

 

A. The actual case

            On the night of the 20th of September 1993, inter-ethnical incidents took place in Hădăreni. As a consequence of Crăciun Cheţan’s murdering by Rupa Lăcătuş (Romany), 3 other Romanies were lynched, namely: Rupa Lăcătuş, Aurelian Pardalian Lăcătuş and Mircea Zoltan, 14 houses belonging to the Romany community were set on fire, 4 houses were partially destroyed, and 175 romanies were chased out of the village. According to official data, Pardalian Lăcătuş died of 89 distinct wounds on his body, Rupa Lăcătuş died as a consequence of wounds covering „nearly 70% of his body”, and Mircea Zoltan burned to death in his own house which he did not dare leave due to the offensive crowd outside.

            Witnesses stated that local policemen incited the angry mob to set the Romanies’ houses on fire and promised the involved villagers that they will help them cover up the entire incident. As a consequence of the three Romanies’ death, the police did nothing to prevent the villagers from destroying the Romanies’ houses and goods.

             The days following the incidents were marked by forbidding the Romanies to return to the village by the Romanian and Hungarian communities, with the authorities’ approval. Only by international pressures could most of the Romanies return to the village.

 

B. The situation of the ECHR internal decisions in the Hădăreni Case

The case was investigated in own penal prosecution by the Prosecutors’ Office by the Târgu Mureş Court of Appeal until November 1994, when the case was sent to the Millitary Prosecutors’ Office, after which it returned to the initial prosecutor’s office for continuing investigations, after the Mureş Territorial Military Prosecutor’s Office issued (in September 1995) a resolution of canceling penal prosecution of the police-men from the local police station by motivating that their incapacity of stopping the crown did not represent a form of participation in itself15.

On the penal side, after it disposed the disjunction of the civil from the penal side, the first court, namely the Mureş Court (the 17th of July 1998 decision), disposed the conviction of five villagers for the offences of first degree murder and twelve villagers, among which the first five, were convicted for other offences, their convictions varying from 1 to 7 years.

As a consequence of the appeal formulated by the Prosecutor’s Office, the appeal court convicted a sixth citizen for first degree murder and increased the conviction of one of the defendants; the convictions of the other defendants were reduced. In November 1999, The Supreme Court of Justice maintained the convictions for destruction, but changed the accusation from first degree murder to voluntary manslaughter for three of the defendants.

In 2000, two of the convicted villagers were reprieved.

            Shortly after the attack on the Romanies, the Romanian Government allocated the sum of 25.000.000 lei 1) for the reconstruction of the damaged or destroyed houses. Only 4 houses were rebuilt from these funds. In November 1994, the Government allocated another 30.000.000 lei 2), other 4 houses being rebuilt16.

On the civil side (the decision from the 12th of May 2003 of the Mureş Court) the judge granted the plaintiffs material compensations for the destruction of houses, ascertaining that during the 20th of September 1993 events 18 houses belonging to the Romany population of Hădăreni were completely or partially destroyed and three Romanies were killed. Relying on an expertise report, the court granted material compensations for those houses that had not been rebuilt in the meantime, as well as supporting pension for the children of the Romanies who were killed in the incident. On the grounds of an expertise, the court granted material compensation for the partial or total destruction of the houses of the fifth, the ninth, the fifteenth, the seventeenth, the eighteenth and the nineteenth plaintiffs. The demands regarding the loss of personal objects and moral damages were rejected as unsubstantiated17.

On the 24th of February 2004, the Târgu Mureş Court of Appeal granted the plaintiffs moral compensations. By Decision no. 1420/2005 of the High Court of Cassation and Justice18  (case no 1425/2004 of the Supreme Court) both the appeals of the defendants and the civil parts were rejected, so that the decisions on the civil side remained permanent, sanctioning the defendants’ obligation to pay material and moral compensations, mainly considering that by the previous decisions on the penal side the defendants were found guilty and convicted for several offences.

The High Court of Cassation and Justice holds the expresis verbis concerning the “contest” of compensations granted by the Romanian state and those that are about to be paid by the defendants who were found guilty, namely: “i) upon setting the quantum of the granted material compensations, the appeal court did not consider that, by concern of the Romanian Government, the injured parties’ houses were rebuilt and their current value surpasses the one of the destroyed buildings; in other words, the appeal court correctly considered that, the assistance given to the victims by the Romanian state, must not diminish the material and moral liability of the defendants, who are still compelled to an integral compensation of the damages”19

On the 5th of July 2005, the ECHR pronounced the aforementioned partial decision by which it confirmed the partial agreement between the 18 civil parties and the Romanian state, such that the ECHR ruled the case’s dismissal, considering that the commitments of each party represented a just solving of the case, according to ECHR standards. So, the Government committed to pay the 18 plaintiffs sums between EUR 11.000 and 23.000 as material and moral compensations, as well as to initiate or to continue the implementation of measures meant to prevent similar cases in the future; these are provided for in the Governmental Strategy concerning the improvement of Romanies’ situation from 2001.

Among these, we find the improvement of educational programs for the prevention and the fighting of the Romanies’ discriminations, the stimulation of Romany participation in the economical, social, cultural and politic life, respectively the identifying, the prevention and the solving of conflicts that are likely to generate family, community, or inter-ethnical violence. In their turn, the plaintiffs committed to discarding any claims to the Romanian state deriving from the present cause.

In the summer of 2005, the civil parts that were granted material and moral compensations by internal court decisions started the procedures of enforcement, for which the judicial executor elaborated 11 distrains protocols upon the goods of the defendants shown in the disposition of Decision no. 1420/2005 of the High Court of Cassation and Justice.

With respect to these enforcement papers, the defendants and their families formulated contestations upon execution; their first term was set in September 2005.

One disposed 10 successive adjournments in the cause concerning the contestations upon execution, by the execution instances, namely the Luduş Court. The reasons were various, mainly that the ECHR decision was not transmitted to the court by the Romanian Foreign Affairs Ministry, or that this decision was not yet translated into Romanian and was not published in “Monitorul Oficial al României” 20.

In the end, on the 27th of April 2006, over 8 months from the formulation of requests regarding the contestations on execution, the Luduş Court acknowledged these contestations and annulled the execution papers made by the judicial executor21.

At the time of drawing up this document, the cause is in appeal in the Mureş Court.

An extremely important element, with serious consequences on an independent and impartial justice act, is the communiqué of the Ministry of Foreign Affairs, published on the 18th of August 2005 and addressed to the Romanian authorities22. In this communiqué, one shows that concerning the 18 plaintiffs (civil parties and parties in the case concerning the contestations upon execution) the ECHR, in the cause of Moldovan and Rostaş vs. Romania, took act of the amiable agreement between the Romanian state and the 18 plaintiffs, that is the Romanian state (i.e. the Government), committed to paying sums between EUR 11.000 and 23.000 with the designation of material and moral compensations (a total of EUR 262.000), and the plaintiffs committed to discarding any claims whatsoever, stating that „this is the permanent solving of these causes, including our internal civil actions.”

In the same communiqué, one also shows that the ECHR specified on par. 152 from the decision that, “these sums are the complete and permanent solving of the case, including the ones that are granted at an internal level.” The Ministry of Foreign Affairs continues by saying that “By consequence, the sums granted with the designation of compensation by the decisions of the European Convention for Human Rights include the ones granted by national courts of law, the prejudice suffered by the plaintiffs not being able to be repaired twice. On the 16th of August 2005, the Governmental agent for the ECHR informed the local authorities, the judicial executor and the plaintiffs on the dispositions of the aforementioned decisions of the ECHR.”

On the 12th of July 2005, The ECHR ruled a decision concerning the other 7 plaintiffs, who had not accepted the amiable solving of the cause. The plaintiffs were given sums between EUR 11.000 and 95.000 as material and moral compensation, a total sum of EUR 238.00023 .

 

C. Possibly violated rights

1. SoJust considers that at the time of drawing this up, the appeal regarding the contestations upon execution is on trial in the Mureş Court, so it avoids pronouncing itself on the background of this cause until the decision remains irrevocable.

            But it cannot disregard the lengthy trial. From this point of view, the first court has already ruled, so that SoJust may have assessments concerning the reasons for successive postponing, not fewer than 10 terms being needed for the case’s solving.

As the media accounted, the reasons for postponing the cause were those either linked to the publishing of the ECHR’s24 decision, in which one sanctioned the Romanian state’s violation of the rights provided for by art. 8 from the Convention, art. 3 from the Convention, art. 6. par. 1 from the Convention concerning the duration of the trial (par. 131) as well as art. 14 from the Convention, related to art. 6 and 8 from the Convention, either by the communication of this decision by the Ministry of Foreign Affairs.

Or, the Decision no. 1420/2005 of the High Court of Cassation and Justice correctly ruled that the appeal court has decided that the assistance given to the victims by the Romanian state must not diminish the defendants’ material and moral liability; they are still compelled to integrally pay the damages that were done25.

More than that, Decisions 1 and 2 / 2005 of the ECHR have the Romanian state and the defendants (the Romany civil parties) as parties and do not consider the convicted-defendants.

Besides, they were convicted for different offences (voluntary manslaughter, voluntary destruction), with respect to which one established moral and material compensations.

In exchange, for example, in the ECHR Decision no. 1/2005, the Romanian state assumes guilt not for the actual offences for which the 12 people were convicted, for which one began the forced execution, but for the context that led to the 1993 events from Hădăreni, but also the much delayed judicial procedures, a fact for which one is also held liable for remedying these situations (we quote in extenso for a better understanding: - improving the educational programs for preventing and fighting the Romany discrimination in the school curricula from the Hădăreni communitiy, Mureş county;

-         elaborating programs for public informing and for removing stereotypes, prejudices and practices affecting the Romany community in the public institutions from Mureş that are competent for the Hădăreni community.

-         Initiating juridical education programs in cooperation with the members of the Romany community;

-         Supporting the positive changes in public opinion from the Hădăreni commnunity concerning the Romanies, on the grounds of tolerance and the principle of social solidarity;

-         Stimulating the Romanies’ participation in the economic, social, educational, cultural and political life of the local community from the Mureş County, by promoting mutual assistance and community development programs;

-         Implementing programs for the rehabilitation of the houses and the community environment;

-         Identifying, preventing and actively solving the conflicts that are likely to generate family, community or inter-ethnical violence.).

 

From this perspective, it is more than obvious that we have two different cases: one of them is connected to the two ECHR decisions, the compensations that were granted being related to human rights violations by the authorities, and decision no. 1420/2005 of the High Court of Cassation and Justice is referring to the material and moral compensations that are directly connected to the established guilt of the convicted persons by the internal Romanian courts of law. Also, the executing procedures concern only the internal decisions, connected to the guilt of individual persons and do not refer to the Romanian authorities.

We may say that, from this viewpoint, the successive postponements did not consider this actual case, such that, regardless of the solution given to the contestations upon execution, there is doubt that the parties benefited from judgment within reasonable term.

Another problem that is raised regarding the trial of the contestations upon execution concerns the unjustified mixture of another state power, namely the executive, which, by the aforementioned communiqué intervened without having this right, affecting the independence and impartiality of the court invested with judging the contestations upon execution.

So, from the Ministry of Foreign Affairs communiqué it ensues that it anticipated or led or influenced the court to rule a certain solution (we remind that this communiqué was issued on the 18th of August 2005, after distrains were set upon the goods of the convicted, and the convicted have immediately afterwards formulated contestations upon execution, knowing the fact that (even the ECHR having ruled this several times) even the phase of forced execution is a part of the civil process, and the court judging such contestations is an independent and impartial court, according to art. 6 par 1 from the Convention).

 

In other words, SoJust considers that there are strong suspicions concerning the Romanian’s state violation of the independence and impartialness provided for in art. 6 par. 1. from the Convention.

 

       III.   The M.I.S.A. case

A. The actual case

            One of the cases that arose publice suspicions regarding the procedural correctness and compliance with the fundamental rights is that of the Spiritual Movement for Integration into the Absolute (MISA) 25. The M.I.S.A. leader, Gregorian Bivolaru and others of his disciples were prosecuted, put under arrest, beaten by the Securitate even from the 70’s. One does not rule out that the prosecution of the M.I.S.A. leader continued after 1989 as well. To these, one adds the public’s reticence towards the yoga techniques, especially in the 90’s, due to a lack of a reasonable education.

             The biggest official action directed against MISA took place in March 2004: Operation “CHRIST”. On the 18th of March 2004, a few hundred policemen, gendarmes and prosecutors forcefully broke into several personal property buildings belonging to yoga students, locations where tens of yoga practitioners were living together, pursuing their spiritual practice by the model of the Indian ashrams. The immersion was broadcasted by several TV stations and an entire country could see the breaking of doors by law-enforcement officers and the forceful treatment of persons who were found in the buildings (of whom some were foreign citizens): while being held at gunpoint, they were summoned to lie down on the floor, face down and hands around their necks; they were not allowed to get dressed; they were not asked for their approval to be recorded on camera. In one of the cases, it seems that there was no search warrant. Several tens of persons were carried by police vans to the Prosecutor’s Office where they were questioned. One did not allow them to contact their lawyers, for the reason that they were questioned as witnesses, and the Romanian Law provides for the possibility of allowing defense only for parties, and not for witnesses27.

            According to the content of the search warrants, they were supposed to concern information data, regarding information users and traffic. The people who were searched claimed that huge quantities of personal goods were confiscated28, some of them without being mentioned in the search protocols and most of them having no connection to the motives specified in the warrants whatsoever; two years later, the owners were only returned one third of all these. One of the evidence, the journal of a yoga practitioner witness, was released to the press and made public, although the authorities guaranteed confidentiality.

            The prosecutor now investigates organized crime and human traffic cases concerning some of the MISA members. One has instituted the measure of “insuring arrestment” on 70 buildings for covering the damages that they claimed. Officially, one has noted that, under the cover of courses for initiation in the yoga practices, the investigated persons attracted, manipulated and exploited the participants (of whom many were minor) to their own personal interest, thus endangering their psychic development29. Nevertheless, from the contradictory data published by the media, there are only 8 victims. Some of the investigated persons were sent to trial. A completely unusual thing for Romania, the entire indictment was made public30 by the penal prosecution body, which among violating the rights to an equitable trial and the protection of the investigated persons’ private life, may be yet another element for the manipulation of public opinion.

 

B. The MISA files

            With all the internal investigations performed by the CSM31 or the judiciary ones performed as a consequence to the filed complaints, the presumptive negative aspects concerning the actual development of the investigation were not cleared up. From the 55 penal complaints that were filed in May 2004, only 9 were retained in view of solving at the Prosecutor’s Office, and those for a single offence. The rest got a non-prosecution resolution, without even questioning the victims; at present, this resolution is appealed at the Supreme Court.

            At the same time, two arrest warrants were issued on the name of Gregorian Bivolaru (gone to Sweden), one for the offense of sexual act with a minor and the other for human traffic. These were the grounds for the Romanian State’s request of his extradition. But the Supreme Court of Stockholm got to the conclusion that, due to the violation of the presumption of innocence, of implicating the political scene32and the media in this case (one even got a special mention that the authorities deliberately turned the public opinion against the defendant), the Romanian Justice cannot ensure an equitable trial to the citizen whose extradition was requested, a reason for which the Romanian State’s request was turned down33. After two more months, the Swedish Government accepted to grant Mr. Bivolaru the statute of political refugee.

 

C. Possibly violated rights

On the way in which the searches, the hearings and the investigations were conducted one has questions as to the possible violation of several internal dispositions (illegal confinement; threatening; unjust repression; illegal entry; destruction; misfeasance against the person’s interests; misfeasance by restraining rights; attempt to determine false testimony; illegal arrest and abusive investigation; abusive behavior) and international ones (freedom from torture, the right to liberty, the right to a fair trial, freedom from arbitrary interference with one's privacy and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association; freedom from discrimination; the right to own property).

The inefficiency of the internal investigations concerning the claimed abuses is all the more serious as Bivolaru got the asylum and then the refugee status in a foreign country. From this viewpoint, the competence or the bona fide of the Romanian bodies is seriously questioned.

 

            IV.  SRI – The audio or video interceptions and recordings

A. The premises

            The audio and video interceptions and recordings are means to obtain very important evidence especially in cases of serious offences like drug traffic, human traffic, corruption, national security. No doubt, the audio or video interceptions or recordings are interference in the individual’s private life, which the Strasbourg Court does not rule out, to the extent in which such interference rigorously meets the principles of lawfulness, proportionality and legitimacy.

 

B. Legal regulations

            In Romania, for the first time in the Penal Procedure Code, by Law number 141/199634, the audio or video recordings were added to the evidence means. This regulation was successively modified by the 281/200335 Law, then by the 356/200636 Law. Along with common law in the matter, contained in the Penal Procedure Code, there is also a special body of laws that instate dispositions concerning the audio or video recordings and interceptions in the respective fields, either with direct reference to the general provisions37, or with a derogating content38.

            On a legislative level, although perfectible, the documents that were adopted after 2003, referring to audio or video recordings and interceptions, show the Romanian legislator’s preoccupation to align the internal provisions with every individual’s right to his private and family life. (art. 8 from the European convention and explained by an evolving jurisprudence of the European Court of Human Rights). Thus, the measures are disposed only in the case of actions that are considered to be serious, expressly determined, only if they are needed, only by the judge39 and for a specific limit period determined by the law. This way, the positive regulation that is brought in agreement with the Strasbourg Court jurisprudence, claiming the instituting of a jurisdictional control, exerted by the independent and impartial magistrates, in view of objectively supervising the concrete ways of using this investigation method40. Or, establishing a competence plenitude of the prosecutor in the initial regulation - without any control possibility from another authority than the network of Prosecutor’s Offices - was generating abuses.

 

            SoJust further points out a case from this year’s spring, regarding “Serviciul Român de Informaţii (S.R.I.)”, a case that proves to be – as the Foundation for an Open Society41 emphasized at that time – “a menace and a huge regress of the state of law, an inadmissible disconsidering of the judges and the act of justice, with serious consequences for the democratic future of the country.”

            Thus, by a communiqué that was made public42 on the 28th of February 2006, SRI expresses its point of view according to which the regulations of the Penal Procedure Code - regarding the need for the phone conversations’ interceptions and recordings to be done on the ground of an authorization issued by the judge - does not apply to SRI actions that are done by considering art. 3 combined with article 13 from the Law of National Security no. 51/199143, considering that, for the information activity, one suffices the warrant that is issued by the prosecutor who is specifically designated by the general prosecutor of the Prosecutor’s Office by the High Court of Cassation and Justice.

      No mention is made to art. 20 and 21 of the Law no. 535/2004 regarding the prevention and the fighting of terrorism44. At the same time, one does not consider art. 46 from the Law no. 535/2004, according to which, at the time of that Law’s coming into effect, any other contrary provisions are abolished, by consequence the text of art. 13 from the Law no. 51/1991 is abolished even from the 11th of December 2004. So, more than a year and 2 months from the coming into effect of Law no. 535/2004, SRI is guided by an abolished legal document and supports its validity with arguments that, even if we relate to the period between the 1st of January 2004 and the 11th of September 200445, flagrantly argue with the principles of the law state and raise natural questions: “is the citizen protected against abuse in Romania?” and “why does “Serviciul Roman de Informatii” fear a judge?” 46.

 

C. Conclusions

SoJust draws the attention to the fact that, up to this date, there is no official document to show the total number of interceptions made by the SRI, the number of warrants that were issued to this purpose and by whom (prosecutors, judges), respectively the number of causes in which the penal prosecution was disposed and the judging courts were notified as a consequence of the probatory material obtained in this way. Because SRI is the institution with competence to make such interceptions in causes concerning national security, it is obvious that such a statistics exist in its possession, being the only way to check its efficiency and justify its activity.

 

            Performing such interceptions in lack of going to trial and possibly convicting the suspects raises great questions as to the formal correctness of the procedural system for issuing warrants, but also to the efficiency of SRI’s specific activity. As a principle, intercepting conversations, and breaking into houses or other locations means restraining the right to private life. The only legitimate justification of the state’s intrusion in the right to private life is its finality, given by the number of penal prosecutions that are began, by the number of trials under indictment and, especially, by the number of permanent convictions applied by the courts of law.

One has to emphasize that the Romanian legislation does not provide the possibility for a person whose private life was the object of SRI surveillance to go to trial in order to obtain compensations for the prejudices that were brought to him, because of the simple fact that he will never find out about the intrusion in his private life. From this perspective, the person’s access to justice is impossible to achieve and his possibility to obtain a remedy for the violated right is null.

 

4. RECOMMENDATIONS

Considering the previous, as well as the fact that most of the causes against Romania argue about the solutions of the courts and the prosecutors’ actions, SoJust advises the following.

·                     the fast implementation of the 4E Recommendation (2004) provisions of the Council of Europe Committee of Ministers.

·                     giving a special importance to the human rights education and including the course regarding the European protection of the human rights in the curricula of law, police, administrative, political and social sciences schools etc;

·                     performing legislative modifications in view of ruling out contradictions, lack of clarity and coherence of the effectual normative acts; in this respect, one should create a special department in the Ministry of Justice or the Legislative Council which to check the compatibility of the entire legislation.

·                     the need for a better knowledge and acquirement of the ECHR jurisprudence by the internal courts of law and the direct application of the ECHR decisions by the Romanian judges, even before legislative modifications47; as well as adopting a national strategy concerning the forms of making the judges body responsible to the obligations that they directly have on the grounds of the Strasbourg court decisions.

·                     adopting a national strategy concerning the forms of making responsible the public administration bodies that dispose the selling of buildings to the tenants by breaking the decisions of the courts of law having disposed the in-kind restitution to the owner, by instating clear sanctions:

·                     adopting a national strategy concerning the forms of making responsible the magistrates’ body in view of a uniform interpretation and application of the law.

·                     Adopting a legislation which to explicitly deny the authorities that are involved in judiciary procedures (police, Prosecutor’s Office, special services, courts of law) but also the state authorities (government, ministries, parliamne, county or local authorities) to pronounce themselves as to a person’s state of guilt before the existence of a permanent judicial decision of conviction.

 

*

*      *

 

  1. The situation of the sums to be paid, on the 1st of June 2006: EU 4382569.6; USD 153655; French francs 424100.82.
  2. The Ministry of Public Finances Report, July 2006.
  3. The knowledge of the rights of man has been the object of UN goals (the Vienna Program of Action was elaborated in 1993, followed by the UN Decade for Human Rights Education during 1995-2004 and by the World Program for Human Rights Education from 2005 up to now) and in the Council of Europe (the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1993, numerous recommendations and plans of action etc).
  4. The 4E Recommendation from 2004 is available at the following web address: https://wcd.coe.int/ViewDoc.jsp?id=743277&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75
  5. The 5th of May 2005: The Warsaw Action Plan of the Council of Europe Comittee of Ministers.
  6. Prof. univ. dr. Corneliu Bârsan, Romania’s judge at ECHR, quoted by “Curierul Naţional”, July 2006, quoted in:  http://www.curierulnational.ro/?page=articol&editie=1221&art=79285
  1. One must not forget that the first judge of the court is the national judge.
  2. Norms, which by ratification become a part of national legislation.
  3. The Statistics of the Government Agent.
  4. The Report concerning the presence of Romania’s cases at ECHR and the Council of Europe Committee of Ministers, elaborated by the Cabinet of the Romanian Prime Minister on the 7th of May 2006. A translation of the ECHR decisions concerning Romania is available at http://www.csm1909.ro/csm/index.php?cmd=9503
  5. ibidem
  6. ibidem
  7. see the Barbera, Messegue and Jabardo vs. Spain, the 6th of December 1988
  8. see the cause Allenet de Ribemont vs. France, the 10th of February 1995
  9. see Decision no. 1/2005 of the ECHR, published in “Monitorul Oficial, Part I, no. 796/01.09.2005: http://www.csm1909.ro/csm/linkuri/14_10_2005__1290_ro.doc .
  10. ibidem.
  11. ibidem
  12. see in extenso at http://www.scj.ro/cautare_decizii.asp
  13. ibidem.
  14. the local media has extensively presented this case. See: http://www.romanialibera.ro/editie/index.php?url=articol&tabel=z08022006&idx=147, http://www.zi-de-zi.ro/fullnews1.php?ID=10047&IDQ=hadareni ,

      http://www.zi-de-zi.ro/fullnews1.php?ID=12168&IDQ=hadareni .

  1. see: http://www.romanialibera.ro/editie/index.php?url=articol&tabel=z28042006&idx=138
  2. in extenso at: http://www.mae.ro/index.php?unde=doc&id=26856&idlnk=&cat
  3. the ECHR decision no. 2/2005 http://www.scj.ro/strasbourg/moldovan%20romania%20R.html
  4. ibidem
  5. the Decision of the High Court of Cassation and Justice quoted above: : http://www.scj.ro/cautare_decizii.asp
  1. Founded as a non-profit association in January 1990, the association has a socio-professional, philosophic, educational character, having the purpose of elevating the people’s spiritual level by promoting the Yoga theory and practice.
  2. We emphasize the easiness of starting a search in Romania: it is practically enough for one to begin the in rem penal prosecution for a certain action and, practically any person, who may have no connection to that case, could be subjected to a house search.
  3. The confiscated goods were: ID cards, official documents and contracts, property titles of houses and cars, accounting documents, money, jewels, computers, video devices, photo and video cameras, clothing, watches, lingerie, shoes, food, books and magazines, audio-video tapes, phone cards, etc. Over 100 requests that were made to the Prosecutor’s Office for returning the goods were rejected on the pretext that they might have a connection to the case. It remains to ascertain the extent to which such goods, as the above mentioned, may have a connection with computers and IT technology.

      29. http://www.mpublic.ro/presa/2004/c_03_30_2004.htm

      30. http://www.mpublic.ro/presa/2004/c_08_16_2004.htm

      31. http://www.csm1909.ro/csm/linkuri/24_02_2006__3092_ro.doc,

            http://www.csm1909.ro/csm/linkuri/24_02_2006__3093_ro.doc

    32. Note the stand of Senator Radu Tirle at the Romanian Senate Tribune, concerning a MISA meeting: http://www.cdep.ro/pls/steno/steno.stenograma?ids=6128&idm=2,04&idl=1

     33. The decision from the 21st of october 2005, Case no. o 2913-05

     34. Published in „Monitorul Oficial al României” part I, nr 289/Nov 14, 1996.

     35. Published in „Monitorul Oficial al României” part I, nr 468/Jul 1, 2003.

     36. Published in „Monitorul Oficial al României” part I, nr 677/Aug 7, 2006

     37. See, for example, Law no. 143/2000 (published in „Monitorul oficial al României”, part I, no 362/Aug 3, 2000), Law no. 78/2000 (published in „Monitorul oficial al României”, part I, no. 219/May 18, 2000), Law no. 656/2002 (published in „Monitorul Oficial al României”, part I, no. 904/Sep 12, 2002), Law no. 39/2003 (published in “Monitorul oficial al României”, part I, nr. 50/Jan 29 2003).

38.   See Law no. 535/2004 (published in „Monitorul oficial al României”, part I, no. 1161/Dec 8 2004).

  1. Exceptionally, if there is an emergency, the interceptions and recordings may be disposed by the prosecutor, under the conditions provided by art. 912 paragraphs 2, 3 from the Penal Procedure Code or, in the frame provided by Law no. 535/2004, may be done by specialized state bodies that have qualifications in the field, in lack of an authorization but in observance of art. 22 from the Law.
  2. Note, as an example: The European Court of Human Rights, the Klass decision and others against Germany from the 6th of September 1978, the Kruslin and Huvin decisions against France from the 24th of April 1990, in V. Berger, the European Court of Human Rights Jurisprudence, third edition, The Romanian Institute for Human Rights, Bucharest, 2001, page 436 and following, the Valenzuela Contreras against Spain decision from the 30th of July 1998.
  3. See: the viewpoint adopted by FSD on phone conversations interception by SRI, published on the Internet page: http://www.osf.ro/ro/eveniment_detaliu.php?id_eveniment=8
  4. http://sri.ro/index.php?nav=cultura&subnav=cics&dnav=prpr&ddnav=&ddnav=detalii&sbnav=cultura_de_securitate&dbnav=detalii&id=3 and withdrawn shortly thereafter.
  5. Published in “Monitorul Oficial al României”, part I, nr 163/Aug 7, 1991.
  6. According to art. 20 from the Law, the threats to Romania’s national security, provided for in art. 3 from Law no. 51/1991 are the legal grounds for suggesting the prosecutor, by the state bodies that are qualified in the field of national security, in justified cases, to ask for the authorization of activities with the purpose of gathering information, consisting of: interception and recording communications, and according to art 21, paragraph 4, if within 24 hours from the filing of the request one considers that it is well-founded and all the conditions provided by the law are met, the general prosecutor of the General Prosecutor’s Office by the High Court of Cassation and Justice or his rightful replacement makes a written request to the president of the High Court of Cassation and Justice to authorize the respective activities. The request is examined by the judges, in the council chamber, and they either approve or reject it for a good reason by closing it.
  7. The time period between enforcing the dispositions of art. 911-916 from the Penal Procedure Code brought by Law no. 281/2003 until the coming into effect of Law no. 535/2004.
  8. The arguments are also expressed in the speciality literature – see: D. Lupaşcu, Some observation concerning the audio or video interceptions or recordings in „Dreptul” nr. 2/2005, p. 169 and following.

          47. SoJust shares the propositions included in the address no. 50844/June 7, 2006 sent by the Ministry of Foreign Affairs and the Ministry of Justice to the attention of the President of the National Council of Magistracy.

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