Doc. 9755

1 April 2003

Homosexual rights in Romania

Written Question No. 367

Reply from the Committee of Ministers

adopted at the 833rd meeting of the Ministers’ Deputies (26 March 2003)

I. Written Question No. 367 by Mr Van der Maelen (Doc. 7578)

To ask the Committee of Ministers

i.       how it assesses the violations of human rights and discrimination against Romanian homosexuals contained in the government bill reforming the criminal code […];

ii.       what measures the Committee of Ministers intends to take to bring Romanian legislation into line with the international human rights texts signed by Romania;

iii.       whether Committee of Ministers can confirm the number of persons being held in Romanian prisons after being sentenced on the basis of Article 200 of the Romanian Criminal Code and the number being held on remand suspected of committing these “offences”.

II. Reply by the Committee of Ministers

1.       The Committee of Ministers would like to thank Mr Van der Maelen for asking Written Question No. 367, thus providing it with a helpful tool in convincing the Romanian authorities of the need to adopt meaningful reforms in response to the serious problem to which he drew attention.

2.       Following its reply to the questioner’s earlier Written Question, No. 364, the Committee wished to assure itself, before committing itself to a further reply, that any revised legislation on the matter would result effectively in an equality of rights between heterosexuals and homosexuals.

3.       During the intervening years, there has been regular dialogue between the Committee and the Romanian authorities in order to arrive at a satisfactory outcome to the problem raised by Mr Van der Maelen.

4.       By the appended letter dated 26 February 2003, the Permanent Representative of Romania provided the Secretariat with translations of official texts concerning the modification of the Romanian Criminal Code, including the repeal of the impugned Article 200, initially by emergency ordinance and subsequently by legislative act. The Committee of Ministers notes that, as pointed out in the appended letter of the Permanent Representative of Romania, “the current legislation on sexual crimes has established a clear, non-discriminatory regime on the issue”.

5.       With regard to the third paragraph of the question, the Romanian authorities have also confirmed that no-one is serving a prison sentence as a result of the application of the former legislation.

Permanent Representation of Romania

to the Council of Europe

The Ambassador

26 February 2003

Dear Mr Davies,

With reference to the preparation of the reply of the Committee of Ministers to the Written question No. 367 by Mr Van der Maelen: “Homosexual rights in Romania", I seize this opportunity to inform you on the current Romanian legislation on sexual offences.

The Council of Europe was informed that the Government of Romania adopted the Ordinance no. 89 on 21 June 2001 amending some provisions of the Criminal Code on sex crimes. This Ordinance repeals article 200 of the Criminal Code.

The ordinance provides that sex related crimes (rape, sexual relations with a minor under 15 years etc.) are punishable regardless of the nature of the sexual relation (homosexual or heterosexual) and establishes a non-discriminatory system of sanctions.

The Ordinance took full legal effect as of the publication in the Official Gazette (Monitorul Oficial al Romāniei) on 26 June 2001.

The only necessary step needed to finalise the procedure in accordance with the Romanian law was a confirmation of the Ordinance by the Parliament. The Parliament confirmed it by the Act no. 61 of 2002, published in the Official Gazette no. 65 of 30 January 2002.

I send you hereby attached the English translation of the Government Ordinance that repealed the art 200 from the Criminal Code of Romania.

The second annex includes the English version of the Act no.61.

Annex no 3 contains the English translation of the art 200 of the Criminal Code as adopted in 1997 and repealed by the Government Ordinance in June 2001.

According to the above, it results that the current legislation on sexual crimes has repealed the former art 200 of the Romanian Criminal Code and established a clear non-discriminatory regime on the issue.

      Sincerely yours,

Mr. Leonard Davies

Secretary to the Committee of Ministers

Council of Europe

…

Appendix 3

Unofficial translation

Art 200 Criminal Code of Romania

(as amended in 1997 and repealed in June 2001)

The sexual relations between persons of same sex committed in public or if they produce public scandal are punished with prison from 1 to 5 years.

The action of the major to have sexual relations with a minor of same sex is punished with prison from 2 to seven years and deprivation of some rights.

The sexual relations with a person of same sex that is unable to defend himself or herself, or to express his/her will or by force are punished with prison of 3 to 10 years and with deprivation o some rights.

If the actions mentioned in lines 2 and 3 have as result the serious damage of physical condition or of health, the punishment is prison of 5 to 15 years and deprivation of some rights and if it has as result the death or suicide of the victim the punishment is prison of 15 to 25 years and deprivation of some rights.

The instigation or the temptation of a person to commit sexual relations between person of same sex as well as the propaganda or the association as well as every actions of proselytism done with this aim are punished with prison of 1 to five years.

Appendix 1 to Doc. 9755

Unofficial translation

The Government of Romania

Emergency Ordinance no. 89 of 21 June 2001 for the change and addition of certain provisions of the Criminal Code regarding the crimes on sexual life

Published in the Official Gazette, Part I no 338 of 26 June 2001

In accordance with the provisions of art 114 line (4) of the Constitution of Romania,

The Government of Romania adopts the following emergency ordinance,

Art I – The Criminal Code of Romania, republished in the Official Gazette of Romania Part I, no 65 of 16 April 1997 is amended and changed as follows:

1.       The lines 1, 2 and 3 of the article 1971 will read as follows:

"The sexual act, of any nature, with a person of different sex or with a person of same sex, by force or taking advantage of his/her inability of self defence, or to express his/her will is punished with prison for 3 to 10 years and deprivation of some rights.

The punishment is prison for 5 to 18 years and deprivation of some rights if:

a) the action was committed by two or more persons together;

b) the victim is under care, education or guard of the offender;

b1) the victim is a family member;

c) the action causes serious damages to the physical condition or health of the victim

The punishment is prison for 10 to 20 years and deprivation of some rights if the victim is under 15 years old and if the action resulted in the death or suicide of the victim the punishment is prison for 15 to 25 years and deprivation of some rights"

2.       Article 1982 will read as follows:

" Sexual Relations with a minor

Art 198- Sexual relations, of any nature, with a person of same sex or different sex, which is under the age of 15 years old, is punished with prison for 2 to 7 years and deprivation of some rights.

The same punishment is reserved for the sexual relation, of any nature, with a person of same sex or different sex, aged 15 to 18 years old if the action is committed by the foster parent, guardian, care taker, current doctor, teacher or educator by using of his/her capacity.

When the fact defined in the line one was committed under the circumstances defined in the art 197, line 2 b) or if the facts defined in the lines 1 or 2 resulted in the consequences defined by article 197, line 2 c) the punishment is prison for 7 to 18 years and deprivation of some rights."

3.       Article 2003 is repealed

4.       The lines 2 and 3 of article 2014 will read as follows:

" The actions of sexual perversions with a person under the age of 15 years are punished with prison for 2 to 7 years and deprivation of some rights.

The same punishment shall apply for the actions of sexual perversion with a person aged from 15 to 18 years old if the action is committed by the foster parent or by the care taker, guardian, current doctor, teacher or educator, by using of his/her capacity."

5.       After the line 3 of the article 201, the lines 4 and 5 will read as follows:

" The actions of sexual perversion with a person which is unable to defend himself/herself or unable to express his/her will or by force will be punished with prison for 3 to 10 years and deprivation of some rights.

If the action defined in the lines 1-4 resulted in serious damages for the physical condition or for health, the punishment is prison for 15 to 25 years and deprivation of some rights."

6.       After the second line of the article 2025 will read as follows:

" The instigation of a person to engage in sexual relations with a minor, of same sex, or of different sex, will be punished with prison for 1 to 5 years."

7.       Article 2046 will read as follows:

"Sanctions for the attempted crime

Art 204 – the attemptive crime defined in art 197, 198, and 201-293 is punished"

Art II – For the facts defined in art 200, lines 2–4, that are under investigation or under judgment, if defined by other articles of the Criminal Code or special legislation, the law shall apply accordingly.

If a final decision of conviction was delivered for the actions defined by article 200, lines 2-4, and the punishment is currently served, if these actions are defined by other texts of the Criminal Code or special legislation, the Court that supervises the execution of the decision by its' own decision or at the request of the public prosecutor or of the convicted person, will proceed to the legal re-definition of the actions in accordance with the present legislation.

PRIME-MINISTER

ADRIAN NĂSTASE

Minister of Justice

Rodica Mihaela Stănoiu

Appendix 2 to Doc. 9755

Unofficial translation

Act no 61

of 16 January 2002

on the adoption of the Emergency Ordinance no. 89 of 21 June 2001 for the change and addition of certain provisions of the Criminal Code regarding the crimes on sexual life

Published in the Official Gazette, Part I no 65 of 30 January 2002

The Parliament of Romania adopts the present Act:

Sole Article

The Emergency Ordinance no. 89 of 21 June 2001 of the Government of Romania for the change and addition of certain provisions of the Criminal Code regarding the crimes on sexual life, published in the Official Gazette of Romania Part I no 338 of 26 June 2001 is hereby adopted with the following changes and adding:

1.       Article I, point 2, second line of art 198 will read as follows:

"With the same punishment is punished the sexual relation, of any nature, with a person of same sex or different sex, of 15 to 18 years old if the action is committed by the foster parent, guardian, care taker, current doctor, teacher or educator by using of his/her capacity."

2.       Article I, paragraph 4 will read as follows:

"The actions of sexual perversion committed in public or if they created public scandal shall be punished with prison for 1 to five years.

The actions of sexual perversions with a person under the age of 15 years are punished with prison for 2 to 7 years and deprivation of some rights.

The same punishment shall apply for the actions of sexual perversion with a person of 15 to 18 years old if the action is committed by the foster parent or by the care taker, guardian, current doctor, teacher or educator, by using of his/her capacity.

The actions of sexual perversion with a person which is unable to defend himself/herself or unable to express his/her will or by force will be punished with prison for 3 to 10 years and deprivation of some rights.

If the action defined in the lines 1-4 resulted in serious damages for the physical condition or for health, the punishment is prison for 15 to 25 years and deprivation of some rights."

3.       Article I, paragraph 4 is repealed.

4.       After article I, paragraph 6 will be added paragraph 6 as follows:

"6 Following article 203, will be added article 203 reading as follows:

Sexual Harassment

Harassment of a person by force or coercion in order to obtain sexual satisfaction by a person who abuses of his/her authority or influence given by his/her position in the working place will be punished by prison for 3 months to 2 years or by fine."

This Act was adopted by the Chamber of Deputies in the session of 18 December 2001, in accordance with the provisions of art 74 paragraph 1 of the Constitution of Romania.

PRESIDENT OF THE CHAMBER OF DEPUTIES

VALER DORNEANU

This Act was adopted by the Senate in the session of 20 December 2001, in accordance with the provisions of art 74, paragraph 1 of the Constitution of Romania.

PRESIDENT OF THE SENATE

NICOLAE VĂCĂROIU

Bucharest, 16 January 2002, no.61

Permanent Representation of Romania

to the Council of Europe

The Ambassador

26 February 2003

Dear Mr Palmer,

Following the letter addressed to Mr. Leonard Davies on the changes of the Romanian Criminal Code, I can add the following elements which might be useful for the Secretariat on this subject:

According to the information available to our delegation the former article 200 of the Criminal Code was already not applied by June 2001 for homosexual acts between consenting adults.

Therefore, the change in the Criminal Code did not affect any ongoing criminal investigation or any judicial decision.

I would like to stress however that the retroactive application of the more favourable criminal legislation is guaranteed by Article 15 paragraph 2 of the Constitution of Romania that reads as follows:

"The law acts only for the future, with the exception of the more favorable penal law."

      Sincerely yours,

Mr. Simon Palmer

Secretariat of the Committee of Ministers

Council of Europe

1 Article 197 is entitled "Rape" in the Criminal Code

2 Article 198 is entitled "Sexual Relations with a minor"

3 Art 200 was entitled "Sexual Relations between persons of same sex"

4 Art 201 is entitled "Sexual Perversions"

5 Art 202 is entitled "Sexual corruption"

6 Art 204 is entitled "Sanctions for tentative"