20 September 1993
on the application by Romania
for membership of the Council of Europe1
(Rapporteur: Mr JANSSON,
Finland, Liberal, Democratic and Reformers Group)
The Committee on Legal Affairs and Human Rights met in Romania from 26 to 28 April 1993. During this three-day visit, the committee spent two days in Bucharest and then went to Brasov on Wednesday 28 April 1993 to meet the local authorities there and representatives of the German minority. Previously, in Bucharest, it had had a very full meeting which included exchanges of views with the President of the Republic, ministers, members of parliament, the Ambassadors of Council of Europe member states, high officials, the Procurator General, representatives of the media and of the bar association, non-governmental organisations, etc. The full programme of the three-day visit is appended (Appendix I).
The main aim of the meeting was to obtain a solid picture of the implementation of the basic principles of the Council of Europe, that is, parliamentary democracy, the respect for fundamental rights and freedoms, the respect of the rights of minorities and the rule of law in Romania.
In as far as parliamentary democracy is concerned, the committee felt that it had sufficient proof of the new democracy, both at national and at local level through previous Council of Europe and other reports. The discussions therefore concentrated on the respect for human rights and, especially, on the rule of law.
Mr König, the Rapporteur of the Political Affairs Committee, and I myself, had visited Romania already from 8 to 10 March 1993. Subsequent to this visit, we drew up a list of points on which we thought it would be useful to seek further clarification and submitted this list to the Romanian authorities and to the Committee on Legal Affairs and Human Rights. The questions and the replies given by the Romanian delegation are appended (Appendix II),2 whereas further comments were received through the Romanian Consul General in Strasbourg in a letter dated 30 May 1993. Thus, the committee was able to deepen the discussions on some of the most delicate matters.
On 11 May 1993, the committee reserved the whole of its meeting for a discussion of the situation in Romania on the basis of a memorandum I had prepared and which I then revised in the light of the committee's discussions. Subsequently, it was transmitted to the Political Affairs Committee which considered my revised memorandum at its meeting on 27 June 1993 in Geneva and on 1 July 1993 in Strasbourg. At that last meeting, the Political Affairs Committee adopted a favourable opinion concerning the admission of Romania to the Council of Europe.3 An Assembly debate is scheduled to take place during the September 1993 part-session.
The present opinion was discussed at great length and then adopted at the committee's meeting of 2 September 1993 in Paris.
2. Parliamentary democracy
In as far as parliamentary democracy is concerned, the committee feels that there is sufficient proof of the new democracy, both at national and at local level through previous Council of Europe and other reports, for instance the report of the observers to the parliamentary and presidential elections of 27 September 1992.4 Although some doubts were shed about the regularity of these elections, most international observers agreed that they were free and fair and that their outcome reasonably reflected the will of the Romanian people. In June, the Prime Minister of Romania wrote a letter to the Speaker of the Chamber of Deputies asking him to analyse the declarations made by Mr Petre Roman and their consequences and to take the appropriate measures in accordance with the Romanian Constitution. In fact, during a visit to Italy in May, Mr Roman, a former prime minister, was quoted as having said that the Romanian Government was conducted by nationalists, communists and fascists and that Romania was violating the international embargo against Serbia.
A few days later, the Speaker replied that, after consulting the Bureau of the Chamber of Deputies, he had come to the conclusion that it was not the task of Parliament to judge any complaints against its members, that in accordance with the Romanian Constitution it did not exercise any jurisdictional functions and that the government would have to look elsewhere if it wanted to take legal action against Mr Roman.
Personally, I think this has been the right reaction and that it shows that Romanian democracy is maturing.
3. The intelligence service
After the Revolution of 1989, the notorious Securitate was dissolved and replaced by the Romanian Intelligence Service (SRI). As one knows, or suspects, many former officials of the Securitate are now in the SRI, there may be some reason for concern and prudence. In accordance with Article 62, paragraph 2.g, the two chambers of Parliament meet together to appoint the director of the SRI at the proposal of the President of the Republic, and to exercise control on its activities. One deducts from this that Parliament has also the right to dismiss the director.
In accordance with paragraph 2.b of the same article, Parliament in joint session must approve the budget of the state which includes the budget of the SRI. Parliament may therefore also exercise some budgetary control on the service. Moreover, the director must submit an annual report to parliament and must submit additional information on the exercise of his assignments whenever parliament asks for it.
A bill is now before Parliament proposing to set up a joint committee of the two chambers to control the SRI.
Another bill, put before Parliament on 21 May last, will make the Director of the SRI responsible to the Minister for Justice who is a minister politically responsible towards Parliament. At present, the Director of the SRI, who has the rank of minister, is not responsible to Parliament.
On paper, this system of controlling the SRI seems completely adequate, but, of course, it is the practice which counts. We should, however, not forget that the accountability of the Secret Service to Parliament is a matter which certainly has not yet found adequate solutions in all Council of Europe member states.5
During the discussions at the meeting of the Committee on Legal Affairs and Human Rights on 2 September 1993, the wish was expressed that the hidden microphones in all public buildings be removed.
4. The judiciary
Our attention was drawn to Article 19 of the Act on the Organisation of the Judiciary. This article reads as follows:
"The Minister for Justice, through his general inspectors, through the inspecting judges from courts of appeal or through delegate judges, shall have the right to inspect the work of the judges (Judicatorii, district courts and courts of appeal). Court presidents shall enjoy the same prerogative over subordinate judges.
This control shall be exercised by monitoring the effectiveness of their work, the current status of professional relationships with the parties and their advocates, as well as an assessment of professional activities, training and proficiency.
Court rulings shall not be subject to this control unless they are final."
It has been observed that this article must be read in the light of the articles of the Constitution which guarantee the independence of the judiciary such as its Articles 123 and 124 and other provisions of the Act on the Organisation of the Judiciary. These legal texts also provide for the establishment of a high council on the judiciary, which is made up of judges elected by Parliament and in which participates the Minister for Justice without right to vote. Yet, in order to avoid any misunderstanding, it will no doubt be better if Article 19 were to be modified. No minister should ever give any instructions to a judge. There is now a bill before Parliament to delete the words "through his general inspectors".
We have also been informed that of the forty-seven members of the Supreme Court, forty-five have been appointed for periods of three, six and nine years.
To guarantee the independence of the judiciary, judges in Council of Europe member states, as a rule, are appointed for an indefinite period. In the United Kingdom, they may be appointed for life; in most other Council of Europe member states they are appointed until retirement. It is clear that judges who have been appointed for a limited period of time, and who may wish to seek re-election, cannot be considered to be fully independent. There are, however, two reasons why I would suggest not criticising the present system of appointing supreme court judges although, eventually, it should be changed. The first reason is that in the present, transitory period, it may have been difficult to find so many competent and irreproachable judges. The present system may enable their replacement after a relatively short period of time.
The second reason is that it is certainly not so that in all Council of Europe member states, judges are appointed for an indefinite period. Switzerland is an example. In accordance with Article 40 of the European Convention on Human Rights, judges in the Court of Human Rights are also elected for a limited period, (that is, nine years) by the Parliamentary Assembly. This situation is, no doubt, much better than the one in the European Community, where the judges in the European Court of Justice are appointed by governments for a period of six years.
5. The Prosecutor General
The committee greatly appreciates that the Prosecutor General is no longer a general and submitted to military hierarchy but that he is now a former judge of the Supreme Court and subordinated to the Minister for Justice but the former Procurator is still his deputy. The fact that he is a member of the military was criticised by some members of the Committee on Legal Affairs and Human Rights, but was explained with the argument that there is no separate military jurisdiction in Romania. Title 3 of the Act on the Judicial Organisation (Articles 30 and following) guarantee a certain amount of independence to the Prosecutor General in matters of prosecution. Although the Minister for Justice may request the Prosecutor General to open legal proceedings, he does not have the right to request that there be no prosecution in a particular case or that a certain prosecution, once started, be stopped.
6. The advocates
The Romanian Bar Association informed us that a Bill on the organisation and the exercise of the profession of advocate6 was pending before Parliament and that, therefore, the situation of the advocates was still as it had been under communist rule. For instance, advocates could not establish themselves individually or jointly in partnerships with colleagues. Foreign advocates could not exercise their profession in Romania. In the meantime, a bill drafted by the Romanian Bar Association has been approved by the Senate and is therefore now before the Chamber of Deputies. Unfortunately, the Senate amended the bill in such a way that foreign advocates may only exercise in Romania if there are bilateral agreements between Romania and the country concerned. It should be guaranteed that any person arrested should have the right to an advocate of his own choice.
We all know that independent advocates are essential for the implementation of the rule of law. As long as a proper legislation on their profession has not been adopted, they may not be able to do their work properly.
Romania is one of the countries which impose a total ban on homosexual relations in accordance with Article 200 of its Penal Code. Even the attempt to "engage in homosexual behaviour" is considered to be illegal. In accordance with information we received from the International Lesbian and Gay Association (ILGA), homosexuality in Romania is considered a mental disease and sinful sickness. Incidents of "treatment" with drugs and electro-shock are reported. This also applies to lesbian relations.
In our questions to the Romanian authorities (question 6), we raised this matter and the reply was quite frank. They consider that decriminalisation of homosexuality at present is not possible, given the fact that homosexuality offends the general moral feeling and religious consciousness of the great majority of the population.
A solution might be to change the prosecution policy without changing the law, thus leaving unimpeded homosexual relations between consenting adults.
I have been informed in the meantime that amendments to the Penal Code have now been adopted by the Legal Committee of the Chamber of Deputies and that they are now before the plenary chamber. These amendments would include the repeal of Article 200.
8. Torture and ill-treatment
In accordance with a recent report by Helsinki Watch (January 1993), there is systematic and brutal mistreatment of arrestees at police stations immediately following their arrest, in order to force a confession. The report says that virtually all of the eighty-six inmates interviewed in depth reported having been beaten during police interrogations. These are serious allegations and clarification is necessary.
As no names were given in the Helsinki Watch report, it was impossible for the Romanian authorities to investigate these cases and to obtain clarification, for instance, from the police. The situation must, however, be improved and it is not sufficient that, on paper, Romanian law is fully in conformity with international legal instruments in this field and that torture and ill treatment of arrestees and of detainees are serious offences. Unfortunately, a recent report from Amnesty International,7 confirmed to a large extent the information given by Helsinki Watch. It said that Amnesty International "has also received reports alleging that police officers resort to torture and ill treatment of detainees, often in order to force them to confess. In other instances their use of fire arms is frequently not in accordance with appropriate international standards, but relatively few cases have been fully investigated and brought to trial."
The Committee on Legal Affairs and Human Rights, during its discussions on 2 September 1993, expressed the desire that the Romanian Government now gives rapid and detailed replies to the allegations in these reports.
Parliament adopted, in June, some modifications to the Romanian Code of Criminal Procedure which are intended to improve the situation of the arrestees. Of course, the fact that Romania is a party to the United Nations Convention against torture also imposes obligations on the country.
9. Mass media
In accordance with the information we received, there is a large number of independent newspapers and the press is relatively free. Unfortunately, we heard reports that the press cards of some journalists who had been critical of the government, had been withdrawn. This is to be clarified and, if it is so, these press cards should be returned.
The political parties and the minorities enjoy a reasonable amount of access to radio and television but some doubts have been shed about the impartiality and the independence of the Romanian state television. In many instances, television broadcasts are guilty of disinformation by over-estimating without criticising actions taken by the government. Undoubtedly, it gave too pretty a picture of the President during his recent visit to Washington. The new Director General of the television service is notorious because of his reactionary and anti-semitist observations and press articles.
During the session I was informed that there was a bill before parliament to change the status of the state television and that parliament was looking into ways to improve the situation of journalists dealing with parliamentary matters.
No doubt, Romania has done much for its minorities. In Parliament, the Hungarian minority is represented by twelve senators and twenty-seven deputies. Given their small numbers, the thirteen other minorities would, normally, not succeed in having one of their members elected, but under the electoral law, they have an ex officio seat in the Chamber of Deputies. Recently the government set up a consultative council of minorities in which representatives of the different government departments concerned are represented. Unfortunately, at the end of August, the representatives of the Hungarian minority decided to quit this Council considering that their participation was of no use. Generally speaking, the situation of the minorities is satisfactory and where there are tensions, they are mainly in respect of the Hungarian minority. Not all of the claims of the Hungarians and of the other minorities are justified, but one can understand that they are concerned about some recent developments such as the loss of a university and high schools which once used to be purely Hungarian and the fact that they no longer hold the post of governor of the two provinces, where they constitute 70% of the population. With 1,6 million people, they are by far the largest minority in Romania, although the Gypsies claim that they have 2 million (official census 400 000). For the Gypsies, there is very much a social problem and there is reason to follow their situation closely.
For the time being, one may urge the Romanian Government and Parliament to adopt a proper law on the protection of minorities, based on the Assembly's draft protocol.8 This should include education in the "mother tongue at an appropriate number of schools and of state educational and training establishments, located in accordance with the geographical distribution of the minority".9
In the Committee on Legal Affairs and Human Rights the opinion was expressed that — as soon as possible — Romania should become a party to the Council of Europe Charter on Regional and Minority Languages.
In July of this year it seems that a meeting, arranged under the auspices of the "Project on Ethnic Relations", reached agreement on tangible improvements for the Hungarian and German minorities. This agreement provides for "the training of 300 more Hungarian teachers at the Babes-Bolyai University in Cluj, more elementary school classes in history and geography taught in minority languages".10
Racist acts have been reported in a number of instances. The Committee on Legal Affairs and Human Rights, during its discussions on 2 September 1993, expressed the wish that the Romanian Parliament and Government should do everything in their power to fight it. Incitement to racial hatred — in the media and everywhere else — should be made a criminal offence and included in the Penal Code.
11. The prisons
When the other members of the committee visited Brasov in order to get acquainted with the problems of local government and of the German minority, the two Swedish members of the committee visited prisons in Bucharest and in its vicinity. They very much appreciated the fact that they were allowed to see and to visit everything they requested and for the frank discussions they had with the prison directors. Yet they were shocked to find thirty, forty or even more prisoners in one cell or cells being shared by ten psychiatric patients. Prison conditions in Romania certainly do not meet the United Nations or Council of Europe minimum rules for the treatment of prisoners. Yet they found that the conditions they had seen in other applicant countries were even worse. They appreciated that there were windows in all cells and that the prison system was decentralised so that the prisoners were kept close to their homes and relatives. Among the measures they recommend for immediate implementation are:
—ju venile delinquents and handicapped persons should not be kept together with other prisoners;—
—th e conditions of those who are held in isolation cells must be improved;—
—mo re work must be provided in the prisons and prisoners should be allowed to leave their cells at least once a day in order to get some exercise and a bit of fresh air;—
—me asures should be taken in order to reduce the periods of detention pending trial which, generally speaking, are far too long, and —
—me asures should be taken to reduce the prison population in general.Fr
From the information I received, the Romanian authorities are making an effort to improve the prisons and to bring them up to international standards but one must understand that the lack of financial means is among the major reasons why progress cannot be more rapid in this respect.
Romania is clearly in a transitory period. Since the revolution of 1989, a tremendous amount of progress was made in the fields for which the Council of Europe is competent. In many fields, communist legislation was replaced by modern laws which respect the individual rights of the Romanians. Parliament adopted more than 250 new acts, many of which are on very sensible issues which might have taken our own parliaments many years to agree upon. Parliamentary democracy was installed both at national and at local level. The rights of the Opposition are respected.
However, much remains to be done, especially in the implementation of fundamental rights and freedoms and the rule of law. This is nothing short of simple and may require a certain amount of time. It may be relatively easy to change the law but it is much more difficult to change traditions and mentalities at all levels of society, particularly administration and officials. Although there has been a change of regime, many of the persons in charge already held high positions under the communists. One may be confident that more improvements are likely to come through the workings of parliamentary democracy, through the free press and through the intelligence and desire for freedom of the Romanian people. We must appreciate that, on the one hand, an enormous amount of work has been done and considerable progress was made in many ways. The developments since 1989 have been very positive in many respects and we may expect that these positive developments will continue. Of course, one cannot expect from a country like Romania to redress in just a few years the damage inflicted on the country by a disastrous and ruinous regime over a period of more than forty years.
On the other hand, there are a number of questions and serious problems which ask for clear solutions. One may ask whether there are any guarantees that Romania will respect the principles and the basic legal texts of the Council of Europe once it has become a member of the Organisation. There is also much concern about the fact that many of those who hold the highest positions in the state already had senior positions under the Ceaucescu regime. Have these persons now suddenly become convinced democrats and are they prepared to respect and to defend the human rights of their fellow citizens under difficult circumstances? Quite often one gets the impression that, although on paper legislation is adequate, proper implementation is still lacking. Significant in this respect is the Helsinki Watch report which I mentioned before which stated that all the detainees they had interrogated had declared that they had been tortured.
Under these circumstances, one may understand the hesitations of members of the Assembly who prefer to abstain from voting or even vote against Romania's admission as was the case in the vote by the Political Affairs Committee on 1 July last and by the Committee on Legal Affairs and Human Rights on 2 September 1993.
Of course, there are clear political arguments to admit Romania to the Council of Europe. These political arguments, however, played less of a role in the Committee on Legal Affairs and Human Rights than they did in the decision-making process of the Political Affairs Committee.
Fortunately it is evident that the Romanians themselves are convinced that many of the items listed above are to be improved and brought at European standards in the interests of the Romanian people. All those we met unanimously expressed the wish that Romania may soon become a member of the Council of Europe. Once it has become a member of our Organisation it may be expected that the process of legal modernisation will continue, especially as Romania should soon ratify the European Convention on Human Rights and recognise the right to individual application — as it promised to do. Seen in this light the case of the rule of law and of human rights may be better served if Romania were to be inside rather than outside the Organisation.
The admission process has no doubt been a very useful one. It enabled the Council of Europe to get acquainted with Romania and appreciate Romanian culture. This period also provided an excellent opportunity to put pressure on Romania to improve its situation of parliamentary democracy, human rights, the rule of law and the rights of minorities and — it must be stated — much has been accomplished in this respect. We must, however, admit that as a means of pressure, the admission procedure has done its work and that the Council of Europe, in the future, will be more effective in obtaining improvements in the situation if Romania is a member of the Organisation. In this respect, it may also be recalled that Order No. 488 (1993) on the honouring of commitments entered into by new member states, which the Assembly adopted on 29 June 1993, instructs the Political Affairs Committee and the Committee on Legal Affairs and Human Rights to monitor closely the honouring of commitments entered into by the authorities of new member states and to report to the Bureau at regular six-monthly intervals until all undertakings have been honoured. These committees will therefore have to follow the developments in Romania closely and it is clear that the pressure which they may continue to bear on Romania may be extremely effective.
At the end of the committee's discussions on 2 September 1993, a motion to adjourn its decision until the September part-session was rejected by thirteen to twelve votes. Subsequently, the present opinion was adopted with sixteen votes in favour, four against and five abstentions.
In conclusion, the Committee on Legal Affairs and Human Rights supports the draft opinion of the Political Affairs Committee which proposes, among others, that the Assembly recommend that the Committee of Ministers invite Romania to become a member of the Council of Europe.
Moreover, it decides to submit the following amendment to the draft opinion contained in Doc. 6901:
After paragraph 7, add a new paragraph worded as follows:
"It recommends that the Committee of Ministers encourage the Romanian authorities to continue the efforts they have started to make for the implementation of the principles of the rule of law, the respect of minorities, the independence of the judiciary and the measures which have been called for in the reports of the Political Affairs Committee and the Committee on Legal Affairs and Human Rights in accordance with the requirements set by the Council of Europe."
of the Bucharest meeting of the
Committee on Legal Affairs and Human Rights
(26-28 April 1993)
Monday 26 April 1993
9.30 a.m. Opening of the meeting
Meeting with the Ambassadors of the Council of Europe member states.
10.30 a.m. Coffee break
11.00 a.m. Meeting with leaders of the parliamentary groups of the Senate and the Chamber of Deputies
12.30 p.m. Meeting with representatives of the Hungarian minority
1.15 p.m. Departure for the hotel
1.50 p.m. Departure for the Senate
2.00 p.m. Working lunch offered by the Romanian special guest delegation to the Parliamentary Assembly of the Council of Europe
3.00 p.m. Working sitting of the committee
4.30 p.m. Coffee break
5.00 p.m. Meeting with the Parliamentary group of minorities
6.00 p.m. Meeting with representatives of the Bar Association
6.45 p.m. Meeting with mass media representatives
7.30 p.m. Welcome by Mr Oliviu Gherman, President of the Senate
and Mr Adrian Nastase, President of the Parliament
8.00 p.m. Departure for the hotel
8.40 p.m. Departure from the hotel
8.45 p.m. Dinner offered by the Presidents of the two chambers of Parliament
Tuesday 27 April 1993
8.45 a.m. Departure from the hotel
9.00 a.m. Meeting with representatives of the Ministry of the Interior
10.00 a.m. Meeting with representatives of the General Prosecution
11.00 a.m. Coffee break
11.30 a.m. Meeting with representatives of the Ministry of Justice
1.00 p.m. Welcome by Mr Ion Iliescu, President of Romania
2.00 p.m. Lunch offered by the Minister for Justice
4.00 p.m. Meeting with non-governmental organisations dealing with human rights issues
8.00 p.m. Cocktail offered by Ambassador Marcel Dinu, Secretary of State at the Ministry for Foreign Affairs.
Wednesday 28 April 1993
8.30 a.m. Departure for Brasov
11.00 a.m. Meeting with the Prefect, the Mayor and other local authorities
12.00 p.m. Meeting with representatives of the German minority
1.30 p.m. Lunch offered by Mr Gheorghe Filga, Prefect of Brasov at Poiana Brasov
3.30 p.m. Departure for Sinaia
4.30 p.m. Visit to the Peles Museum and the Sinaia Monastery
6.00 p.m. Departure for Bucharest
7.30 p.m. Arrival in Bucharest
Thursday 29 April 1993
Departure of members
by the Committee on Legal Affairs and Human Rights during its visit to Romania (26-28 April 1993)
and the replies provided by the Romanian authorities
1. As things stand, the Attorney General (who is a also a military general) and his staff are subject to military law and form part of the military hierarchy. Under the new legislation, this will change on 1 July of this year, and the Attorney General's Department be independent of the military. It would be useful to have more information on this subject.
Under the Romanian Constitution, public prosecutors belong to the judiciary, are judges, and perform their functions in the Attorney General's Department in accordance with the principles of legality, impartiality and hierarchical supervision, under the authority of the Ministry of Justice.
The Attorney General's Department has always been completely independent of the military order and hierarchy. In fact, only ninety of 1 646 prosecutors (that is, 5,4%) are military personnel, and they do not work within the armed forces, having the status of judges only.
In Romania there is no Code of Military Justice, and the military judges apply the provisions of ordinary law in the cases which fall within their jurisdiction.
The authority of the military prosecutors was restricted by Act No. 104/1992 to criminal offences committed by military personnel and to offences against property owned or managed by the armed forces.
Presidential Decree No. 52/15 of 15 April 1993 appointed Mr Manea Dragulin Vasile, a former civil judge in the Supreme Court of Justice, Attorney General of Romania. Decree No. 54, issued on the same day, appointed Mr Vasile Teodorescu, former head of the Judicial Bureau of the Bucharest Public Prosecutor's Department, first Deputy Attorney General.
2. The same applies to the police, who are also subordinate at present to the military.
Under Romanian law, the police operate within the Ministry of the Interior.
The organisation and functioning of the Ministry of the Interior are regulated by Act No. 40 of 18 December 1990, while the organisation and functioning of the Ministry of National Defence are regulated by Act No. 41 of 18 December 1990.
Neither of these acts subordinates the police to the army. Both the Minister for National Defence and the Minister for the Interior are members of the government, and enjoy equal status within it.
This entirely separate organisational pattern is also provided for in the Police Organisation Bill, which is currently tabled for adoption by Parliament.
3. Although, officially, the Securitate has been disbanded, it is said that it in fact still exists under the name "Intelligence Service".
The Securitate (State Security Department) was abolished by Decree-Law No. 33 of 30 December 1989.
The Romanian Intelligence Service was established on 26 March 1990, and the powers given it by law are such that it has absolutely no connection with the old Securitate.
This has also been confirmed by Act No. 51/1991 on the National Security of Romania and Act No. 14/1992 on the organisation and functioning of the Romanian Intelligence Service.
Under these acts, the Romanian Intelligence Service's only task is to collect the information needed to identify, avert and counter threats to national security.
None of these acts provides for performance by the Romanian Intelligence Service of any action of a repressive character which might result in violation of the fundamental human rights and freedoms of citizens. This being so, any suggestion that the old Securitate survives under the name "Romanian Intelligence Service" is completely unfounded.
As in any other state governed by the rule of law, the activities of the Romanian Intelligence Service are subject to parliamentary control.
Its activities are also subject to judicial control, insofar as certain activities may be undertaken only with the public prosecutor's consent and under his supervision.
4. In January, Helsinki Watch published a report on police stations in Romania. The allegations made in it might usefully be clarified.
The Ministry of Justice and the Attorney General's Department have no knowledge of the content of this report, which has not been sent to them. Information obtained from the Ministry of Foreign Affairs and the Ministry of the Interior indicates that it has not been sent to them either.
5. A number of cases of anti-semitism have been reported, but the Attorney General has not considered them serious enough to warrant prosecution. There would seem to be no laws against incitement to racial hatred.
In 1992, the Jewish community of Romania complained to the Attorney General's Department that the publications, Europa and Romania Mare, contained articles of a nationalistic and anti-semitic character. The Attorney General's enquiries showed that the articles complained of were polemical in character, and attacked certain individuals, but not the Jewish community as a whole. The case was closed on 4 May 1992, when a decision not to prosecute was taken — a decision which the Jewish community did not contest.
At present, the Attorney General's Department is investigating charges of engaging in nationalistic and chauvinistic propaganda brought against the editor-in-chief and two other editors of Europa by the Jewish community on 15 January 1993.
Nationalistic and chauvinistic propaganda, and incitement to racial or national hatred is punishable, under Article 317 of the Criminal Code, by prison sentences ranging from six months to five years. Under Article 166, the spreading of fascist propaganda by any means in public carries a penalty of five to fifteen years' imprisonment and the withdrawal of certain rights.
6. Homosexual acts between adults are still considered a criminal offence in Romania. It appears that about a dozen persons are serving prison sentences following conviction on charges of homosexual acts between adults.
It is true that sexual relations between people of the same sex are a punishable offence under Article 200 of the Romanian Criminal Code, which imposes severer penalties for offences against minors or persons unable to defend themselves or express their wishes, and offences committed under duress.
In pursuance of this text, a number of people are at present serving prison sentences for homosexuality.
A group of experts from the Ministry of Justice, the Attorney General's Department and other institutions has been set up to consider whether the regulations at present in force should be changed, having due regard to the law in other countries.
It must be said, however, that total decriminalisation of homosexuality would not seem possible at present, since acts of this kind are alien to the Romanian people's mentality, and offend the general moral feeling and religious conscience of the great majority of the population.
It has been suggested by some that only homosexual acts which give rise to public scandal, are committed on minors or persons unable to defend themselves or express their wishes, or are committed under duress should remain criminal offences.
7. During their visit, the Rapporteurs were told by representatives of the Gypsy and Hungarian minorities that several offences committed against members of their communities had been ignored by the Attorney General, and that this gave them the feeling that they lacked adequate legal protection. These two minorities promised to send a list of these cases to the Ministry of Justice.
The Attorney General's Department was duly notified of the incidents involving groups of Gypsies and other citizens in 1990-92, and investigated fourteen cases. On the basis of the evidence submitted, twenty-seven people were tried on charges of criminal association and damaging private property, the victims being several Gypsy families at Mihail Kogalniceanu in the Constanta region, Bolintin in the Giurgiu region and Valenii Lapusului and Peteritea in the Maramures region. In other cases, the damaged homes of Gypsy families were rebuilt by their own efforts and with the help of the local authorities, and the victims brought no criminal charges.
These incidents were rooted in older, accumulated tensions and had no ethnic character. The action taken by some residents was selective, and directed only against those Gypsy families who had behaved in a clearly anti-social manner.
Following the events of March 1990 in the Mures region, the Attorney General's Department decided to bring charges against twenty-six people, including eight Gypsies, two Romanians and sixteen Hungarians; in five cases, no proceedings were brought or proceedings were discontinued against eight people; three Romanians and five Hungarians.
8. The functions of public prosecutor and investigating judge are not separate.
In the Romanian judicial system, established by Act No. 92/1992, there are no investigating judges.
These functions are exercised by public prosecutors, working in public prosecutors' departments under the authority of the Minister for Justice.
9. It is not clear exactly why criminal proceedings were brought against Mrs Doďna Cornea, one of the dissidents under the previous regime (although these proceedings have since been suspended).
Mrs Doďna Cornea had been variously accused of committing the criminal offence of inciting people to act against the power of the state in connection with the events of September 1991.
Under Article 228 of the Code of Criminal Procedure, the prosecuting authorities are obliged to investigate whenever certain accusations are conveyed to them.
On 4 March 1993, the Public Prosecutor's Department in Bucharest decided not to prosecute Mrs Doďna Cornea.
At Mrs Cornea's request, the police in the municipalities of Roman and Piatra Neamt have initiated enquiries concerning the offence of slanderous denunciation.
10. It appears that no action has ever been taken against those who tortured opponents of President Ceaucescu under the previous regime.
In the matter of repressive action directed by the state authorities against opponents of the communist regime, the Attorney General's Department has ordered the trial, in absentia, of the former Minister for the Interior, Alexandru Draghici and three other former officials on charges of homicide. Two other former Ministers for the Interior, Gheorghe Homosteanu and Tudor Postelnicu, and six former officials are being charged with aggravated homicide in three cases.
Criminal investigations are also under way concerning the finding of 170 human skeletons in Caciulati, near Bucharest. The complexity of the case has made it necessary to call in a number of foreign experts to provide technical assistance. Experts in forensic medical anthropology from the International Human Rights Law Group (Washington), and the Equipo Argentino de Antropologia Forense (New York) are expected in May 1993.
11. Nothing has been done to prosecute the miners who committed serious crimes during the events of 1991.
In connection with the events which took place in Bucharest from 24 to 28 September 1991, 142 trial briefs have been prepared, and 108 of these have now been settled. Prosecution of the miners' leaders, Cosma Miron and Silviu-Octavian Popescu, has also been ordered, but investigations have been hampered by the absence of Popescu (who has left the country) and by Miron's systematic refusal to appear for the inquiry. Miron was, however, questioned on 9 March 1993.
12. After riots in Targu Mures, a number of Gypsies and Hungarians were given lengthy prison sentences with no possibility of appeal or of having these sentences set aside. These judgments are considered political.
a. With regard to the disorders and grave anti-social incidents in Targu Mures in March 1990, the judiciary's role can be questioned only in cases where proceedings were actually brought.
The situation here is as follows:
—ju dgment was given in:tw
twenty-six cases involving criminal offences
fourteen cases involving minor offences.
b. Of those convicted on criminal charges, two were Romanians and twenty-four of Hungarian nationality (sixteen of these being Hungarian Gypsies). Most of the cases concerned offences against morality and public order.
Nevertheless, the following cases deserve special mention:
—Th e defendants Czerestny Pall and Barabas Ernest were sentenced to ten years' imprisonment for attempted first-degree murder and offences against morality.Ha
Having committed the offences, both of the culprits absconded to Hungary. Czerestny Pall returned to Romania, where he was arrested and convicted. The other defendant was tried and convicted in absentia. There are indications that he is still in Hungary, and intends to avoid serving sentence by remaining there.
—Th e defendant Szabadi Francisc was sentenced to five years' imprisonment. As a hospital attendant in Targu Mures on the day when the incidents took place, he had the task of taking the injured to the first-aid stations. It was proved that he immediately ascertained their nationality, and struck sixty people of Romanian nationality with a club concealed beneath his working coat. Evidence to this effect was given by a number eye-witnesses, including some Hungarian nationals working in the hospital.—
—Th e defendant Borbely Istvan was sentenced to two years' imprisonment for stabbing the commander of the city's military garrison in the back. The victim was in uniform and trying to calm an excited group of Hungarian Gypsies. The sentence could not be enforced, as the culprit absconded to Hungary, where he is still hiding.—
—Tw o Romanians were given one-year prison sentences for breaking into the headquarters of the Democratic Union of Hungarians in Romania. They were convicted of being the main perpetrators of the attack, during which serious offences against public order were committed.c.
c. All of the fourteen persons convicted on minor charges are Hungarian Gypsies living in a Targu Mures district. They banded together, armed themselves with clubs and stones, and entered the city centre, where they attacked passers-by without provocation, caused a public disturbance by their insulting language and behaviour, broke shop windows and tore down local authority signs and emblems.
They also entered two restaurants by force, breaking windows, stealing alcohol and committing sundry acts of vandalism.
The members of the gang, who were identified by many witnesses (including Hungarians), were given prison sentences ranging from three to six months.
d. It must be emphasised that all of the people charged in these cases exercised their legal defence rights fully. Most of them had two lawyers: one appointed by the court, and the other selected by themselves.
e. All of them appealed against the judgments given at first instance. In some cases, the court of appeal reduced the sentences or penalties — which confirms that the judicial proceedings were correct.
f. It should be said that Decree No. 153/1970 has been repealed in the meantime. The regulations on minor offences are now contained in Act No. 61/1990, and provide mainly for fines and, and in special cases governed by a special procedure, imprisonment for a maximum period of six months, this penalty being an administrative, and not a criminal one.
g. In conclusion, the following comments can be made:
—th e penalties imposed on the Hungarian Gypsies are fully justified by the seriousness of the offences committed;—
—th e prison sentences were carefully graded to match the seriousness of the criminal offences (attempted murder, serious bodily harm, serious offences against morality, etc.) and the evidence produced in court;—
—Ro manians, and not only Hungarians, were tried and convicted;—
—in every single case, the defence rights and right to legal remedies of the accused were guaranteed;—
—th ere is nothing in the substance of the cases to justify the impression that these were "political" trials. They were concerned with anti-social conduct, which must naturally and necessarily be punished in order to protect the rule of law.13
13. In Harghita, Hungarians serving eighteen-year prison sentences were not released, in spite of the general amnesty
Judgment No. 14/1990 of the Harghita Court, modified by judgment No. 1594/1990 of the Supreme Court, sentenced the defendants Nagy Istvan and Ambros Pavel to eighteen years' imprisonment, and the defendants Vass Kiss Elöd and Nagy Imre to fifteen years' imprisonment, for the crime of first degree murder.
The facts found by the courts were the following: on the afternoon of 22 December 1989, the defendants were among a group of persons who attacked the police station at Dealul, in the Harghita region. The defendants assaulted the senior police officer, Cheuchesan Liviu, knocking him to the ground, kicking him and striking him with heavy objects, seriously injuring him in the process. The victim managed to take refuge with his family in their flat, which was above located the police station, but the attackers followed and forced him to jump from the first floor in order to save the lives of his wife and daughter. In the garden, the defendants continued to strike him violently with wooden sticks, even after he had lost consciousness, eventually causing his death.
In the course of the attack on the building, the defendants broke down doors, smashed windows-panes, threw the victim's belongings from the window and finally set the whole building, including his flat, on fire.
The courts decided that the provisions of Section 1 of Decree-Law No. 3, issued by the Council of the National Salvation Front on 4 January 1990, were not applicable in this case. This text introduces an amnesty for political offences scheduled in the Criminal Code and special laws and committed after 30 December 1947. Paragraph 2 of that article defines political offences as:
"Actions aimed at:
a. expressing protest against the dictatorship and the cult of personality, against terror and the abuse of power by those who held political authority;
b. demanding respect for fundamental human rights and freedoms, obtaining civil, political, economic, social and cultural rights, and eliminating discriminatory measures;
c. obtaining satisfaction of any other democratic demands."
Given the specific circumstances of the case, it was decided that the crime in question was not a political offence, within the meaning of these provisions, but an action directly aimed against human life. This meant that the amnesty provisions of Article 1, paragraph 1 of Decree-Law No. 3 of 4 January 1990 did not apply.
It should also be said that the public prosecutor who filed the indictment, the chief prosecutor of the Harghita district, who confirmed the charges, and four of the five judges in the district court (including the President) are Hungarian nationals.
14. It might be useful to study two bills recently put forward by the German minority, as well as a third, concerning primary schooling
This question is largely concerned with certain aspects of minority rights. Here, mention may usefully be made of the setting-up of a Council for National Minorities, the role, purpose, powers and membership of which are described below.
1. The Council for National Minorities was established by Government Decision No. 137 of 6 April 1993 to act as an advisory governmental body. Its activities are co-ordinated by the Secretary General of the government.
2. The Council has the task of liaising with the legally-constituted organisations which represent the national minorities. It is responsible for legislative, administrative and financial problems connected with exercise by minorities of their rights respecting preservation, development and expression of their ethnic, cultural, linguistic and religious identity, as defined in the Constitution of Romania, in current legislation and in the international conventions and treaties to which Romania is a party.
3. The Council has authority to:
a. establish and maintain contacts with representatives of the legally-constituted organisations of persons belonging to national minorities;
b. make proposals on the drafting of bills and government decisions to solve problems arising in its area of competence;
c. propose to the government or the Secretary General of the government the adoption of administrative measures for the lawful solution of problems arising in its area of competence;
d. inform the government, normally every three months, of problems which it has examined;
e. maintain permanent contacts and co-operate with local government bodies for the purpose of identifying their specific problems and finding solutions to them;
f. establish and maintain relations with international governmental and non-governmental organisations and with other international agencies concerned with problems relating to respect for the rights of persons belonging to national minorities;
g. receive and examine applications and complaints submitted by institutions, organisations or individuals concerning its sphere of activity.
4. The Council works either in plenary session or in committee.
5. The Council's membership comprises fourteen representatives of central government authorities — secretaries of state, directors general and directors — and thirty-six representatives of the seventeen ethnic minorities and groups in Romania. The central government authorities represented on the Council are the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of the Interior, the Ministry of Defence, the Ministry of Finance, the Ministry of Culture, the Ministry of Education, the Ministry of Labour and Social Welfare, the Ministry of Youth and Sport, the Secretariat of State for Religion and the Department of Local Government.
Letter to Mr König,
Rapporteur of the Political Affairs Committee,
by Mr Frunda, Romanian guest delegation
Dear Mr König,
The answer to your questions was given on behalf of the Romanian delegation by Mr Dudita, President of the delegation. Unfortunately, the Hungarian Democratic Alliance of Romania (RMDSZ) was not consulted on the answers. On the contrary, we received the answers just after they had been sent off.
Question No. 7
The HEAR made repeatedly legal denouncements against "Great Romania" and against its chief editor's anti-Hungarian outbursts and articles. We never received any answer to our motions, the persons responsible had never to account for their acts. It does not correspond with the affirmation of the general prosecutor, according to which there is no legal frame against the inciting encouragement of anti-Semitic, anti-Hungarian, racial-hatred actions. Article 317 of the Romanian Criminal Code states "nationalist chauvinistic propaganda, inciting to racial or national hatred, if the act is not establishing an offence stipulated by Article 166, is punished with prison from six months to five years". Article 166 concerns fascist propaganda).11
Question No. 12
In connection with the events from Marosvásárhely (Tg. Mureş), we consider the criminal procedures injust and illegal.
Only Hungarians and Gypsies were sentenced1. The last time Cseresznyés Pál and Barabás P. Were sentenced, each to ten years in prison for attempted murder committed with brutality and for breach of the peace. In our opinion the trial and the sentence are political projections. Both sentences are collective accusations of the Hungarian demonstrators. Neither the organisers of the events, nor the assassins of the three victims of the events (whom the HEAR denounced) were prosecuted. The investigating organs could not identify those four persons who stoked the victim with mortally dangerous blows before Cseresznyés. He kicked Cofariu only once in his abdomen and the doctors unanimously concluded that he did not endanger the victim's life. And even so, he was sentenced to ten years in prison!
In the case of Cseresznyés the superior court held the trial on 30 April for the appeal of the condemned. The prosecutor asked for the rejection of the appeal and that the sentence be confirmed. The president of the court postponed the sentence until 17 May. (We are attaching the sentence of the Maros — Mureş — county law court and the motives for the appeal — both in Romanian.1
Question No. 13
In the case of the convicted from Oroszhegy and Zatalaka, the HDAR (and the barristers of the defendants) requested the public prosecutors of the state, to announce extraordinary appeal against the illegal sentences. (According to the present Romanian code of procedure the convicted is having the right to appeal. The second appeal court is final. Against this only the public prosecutor can present an appeal). The sentence is obviously illegal, because it did not enforce Decree No. 4 of 1990, which is granting amnesty for all criminal acts, which were committed till 11 December 1989 (inclusively) for political (revolutionary) reasons.
In the same time, according to the Constitution, we requested the President of Romania to grand pardon to the convicted. Till the present we have not received an answer to neither of our requests. (Enclosed the requests — in Romanian — handed in to the public prosecutor and the President).
Yours most respectfully
(signed) Frunda György
Reporting committee: Political Affairs Committee (Doc. 6901).
Committee for opinion: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 6548 and Reference No. 1766 of 3 February 1992.
Opinion approved by the committee with 16 votes in favour, 4 votes against and 5 abstentions on 2 September 1993.
Secretaries to the committee: Mr Plate, Ms Coin and Mrs Kleinsorge.
1 1See Doc. 6901.
2 1During the Assembly's May session the rapporteurs were informed that the Hungarian minority did not agree with some of the answers given by the Romanian delegation. A copy of the letter from Mr Frunda (Hungarian Democratic Union of Romania) is included in Appendix III.
3 2See Doc. 6901.
4 3Addendum V to Doc. 6724.
5 1See for instance the first report on the accountability of the Secret Service, Home Affairs Committee, House of Commons, London, 1993.
6 1Advocate in the sense of a barrister, solicitor, practising lawyer, attorney (United States of America), etc.
7 1"Romania, continuing violations of human rights", Amnesty International report of May 1993, AI Index: Eur. 39/07/93.
8 1See Recommendation 1201 (1993).
9 2Article 8 of the draft Protocol.
10 1International Herald Tribune of 21 July 1993.
11 1The appendices to this letter, denouncing these acts, are available from the Secretariat on request.