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11 April 1997 Doc. 7795
ADOC7795
REPORT1
on the honouring of obligations and commitments by Romania
(Rapporteur: Mr Gunnar JANSSON,2
Finland, Liberal, Democratic and Reformers' Group)
____
Summary
Romania has made considerable progress towards the fulfilment of her obligations and commitments since joining the Council of Europe on 7 October 1993. In particular, she has ratified the European Convention on Human Rights and all Protocols thereto, including Protocol No. 11, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocols, and the Framework Convention for the Protection of National Minorities. Romania has the intention to ratify shortly the European Charter of Local Self-Government and the European Charter for Regional or Minority Languages, and the conventions which she has signed in the field of criminal law and education.
Romania has honoured the most important obligations and commitments that she entered into on her accession. Nonetheless, she still has a few problems to solve. First, she has to continue the reform of the judiciary, as to ensure that the independence of the judiciary is upheld. She also has to amend certain provisions of the Penal Code. Third, serious efforts must be made to improve conditions of detention in prisons and to end the overcrowding of prisons. On the other hand, Romania must improve both the material and the child-care conditions in orphanages, and pursue as a matter of priority a policy on family placement, and carry out a campaign against the abandonment of children. Moreover, the matter of return of confiscated real estate property to private persons or Churches should be settled. Lastly, Romania should promote a campaign against racism, xenophobia and intolerance.
I. Draft resolution
1. The Assembly observes that Romania has made considerable progress towards the fulfilment of her obligations and commitments since joining the Council of Europe on 7 October 1993.
2. In particular, it welcomes Romania's ratification, on 24 June 1994 with immediate effect, of the European Convention on Human Rights and all Protocols thereto, including Protocol No. 11, with recognition of the right of individual petition (Article 25) and the compulsory jurisdiction of the European Court of Human Rights (Article 46).
3. It also welcomes the fact that Romania ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocols on 4 October 1994 and was the first country to ratify the Framework Convention for the Protection of National Minorities on 11 May 1995.
4. The Assembly takes note of Romania's intention to ratify as soon as possible the conventions which she has signed, particularly in the field of criminal law, and by the third quarter of this year the European Charter of Local Self-Government and the European Charter for Regional or Minority Languages which she signed on 4 October 1994 and 17 July 1995 respectively.
5. It takes note of the Romanian authorities' resolve to further the rights of national minorities and especially to amend the 1995 Education Act so as to allow mother tongue instruction for members of national minorities.
6. The Assembly observes that Romania has honoured a significant number of her commitments. Nonetheless, a few problems have still to be solved if Romania is to comply with the obligations deriving from the Statute of the Council of Europe and the European Convention on Human Rights.
7. First, the Assembly urges Romania to ensure that the independence of the judiciary is upheld and asks that Article 19 of Judiciary Act No. 92/1992 be revised accordingly. It notes that the role of the Public Prosecutor Office is still very pronounced and urges Romania to continue reform in this area.
8. It also notes that certain provisions of the Penal Code now in force are unacceptable and seriously imperil the exercise of fundamental freedoms, especially Article 200 on homosexual acts and Articles 205, 206, 238 and 239 relating to insult and defamation, which interfere with the freedom of the press.
9. The Assembly draws attention to the existence of deplorable conditions in Romanian prisons and regrets that the country has made all too few efforts to improve these conditions and to end the overcrowding of prisons.
10. Regarding the situation of abandoned children in state orphanages, the Assembly encourages Romania to pursue as a matter of priority a preventive policy concerning the abandonment of children and a policy on family placement as an alternative to institutionalisation, and to improve both the material and the child-care conditions in orphanages. In addition, it considers that the relevant legislation should be clarified forthwith so as to assist the adoption of these children in Romania and abroad.
11. The Assembly encourages Romania to settle the matter of return of confiscated or expropriated real estate property, in particular to the Churches, to political prisoners or to certain communities, with due regard to the principle of restitution in integrum or, failing that, to pay just compensation and secure free access to the court system for complainants.
12. Lastly, it wishes Romania to be firmly committed to fighting racism, xenophobia and intolerance, particularly in respect of the Rom population.
13. The Assembly therefore earnestly requests that the Romanian authorities:
i. amend without delay the provisions of the Penal Code and the Judiciary Act, which are contrary to fundamental freedoms as set forth in the European Convention on Human Rights;
ii improve conditions of imprisonment forthwith and amend the legislative provisions permitting abuse of detention on remand;
iii. improve legal, physical and child-care conditions for children abandoned in state institutions, amend the country's legislation so as to assist their adoption, and carry on a determined campaign against the abandonment of children;
iv. amend the legislation relating to the return of confiscated and expropriated property, particularly Acts N° 18/91 and N° 112/95, so as to provide for the restitution of such property in integrum or fair compensation in lieu;
v. promote a campaign against racism, xenophobia and intolerance and take all appropriate measures for the social integration of the Rom population.
14. Considering that Romania has honoured her most important obligations and commitments, the Assembly hereby decides to close the monitoring procedure under Order No. 508 (1995). It retains the option of deciding to reopen the procedure as required, in accordance with its Resolution 1115 (1997), should the conditions stated in the preceding paragraphs not be fulfilled within a year after the adoption of this resolution, or if significant developments in other areas lead to legitimate concern that Romania is not honouring her obligations and commitments.
II. Draft recommendation
1. The Assembly, referring to its Resolution ... (1997), informs the Committee of Ministers that it has decided to close the monitoring procedure concerning the fulfilment of Romania's obligations and commitments as provided by Order No. 508 (1995).
2. In view of the remaining obligations and commitments, which Romania is bound to fulfil within a year, the Assembly recommends that the Committee of Ministers aid Romania's efforts, particularly through the following action under the Council of Europe-European Commission joint co-operation programme:
i. stepping up aid to Romania in carrying out her prison reform;
ii. offering assistance, particularly of a financial and educational nature, for the organisation of an information campaign against abandonment of children;
iii. carrying on a campaign against racism, xenophobia and intolerance.
III . Explanatory memorandum
by Mr Jansson
Table of contents
Paragraphs
I. Introduction 1-5
II. Political situation 6-13
III. Signature and ratification of Council of Europe conventions 14-24
A. European Convention on Human Rights (ECHR) and protocols 15-16
B European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment of Punishment (Anti-torture Convention) 17
C. Conventions on the rights of minorities 18-19
D. Other conventions 20-24
IV. Organisation of justice and judicial reform 25-34
A. Article 19 of Judiciary Act n° 92 of 4 August 1992
(administration of justice) 28-31
B. The Public Prosecutor's Department 32-34
V. Penal Code and Code of Criminal Procedure 35-45
A. Article 200 of the Penal Code 36-42
B. Other provisions 43-45
VI. Human rights and fundamental freedoms 46-74
A. Police custody 47-49
B. Conditions of detention 50-53
C. The SRI (the Romanian Secret Services) 54-57
D. Police controls 58-59
E. Freedom of the media and freedom of expression 60-69
F. Freedom to organise 70-73
G. Freedom of religion 74
VII. Rights of national minorities 75-94
A. General situation 75-80
B. Education 81-90
C. The situation of the Roma (Gypsies) 91-94
VIII. Restitution of immovable property and land reform 95-110
A. Restitution of immovable property 96-99
B. Property belonging to former political prisoners 100
C. Property belonging to minorities or communities 101-103
D. Church property 104-107
E. Land reform 108-109
F. Privatisation of industrial property 110
IX. Other obligations 111-130
A. Refugees 111
B. Local self-government 112-116
C. Abandoned children 117-125
D. Romania's transfrontier relations and Friendship Treaty
with Hungary 126-130
X. Conclusions and recommendations 131-135
Appendix I: Opinion N°176 (1993) on the application by Romania for membership of the Council of Europe
Appendix II: programme of the Rapporteurs' visit to Romania (5-8 March 1997)
I. Introduction
1. The Republic of Romania acceded to the Council of Europe on 7 October 1993 after the Assembly gave a favourable opinion on 28 September 1993. On her accession, Romania voluntarily accepted the obligations defined in the Council of Europe Statute, together with certain specific commitments. The most important of these are set out in Opinion 176 (1993)3 on Romania's application for membership of the Council of Europe, and in a letter dated 22 June 1993 from Mr Melescanu, Foreign Affairs Minister of Romania. Romania has since been monitored regarding her compliance with the obligations and commitments accepted, initially in the framework of Order 488 (1993)4 and subsequently in that of Order 508 (1995).
2. Order 508 (1995) provides for the monitoring of the obligations by which Romania is bound like any other member State, in particular respect for rule of law and enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms (Article 3 of the Statute). Also to be monitored is the fulfilment of the specific undertakings made by Romania on acceding to the Council of Europe. Lastly, a number of points were raised by the Assembly when considering the application for membership; these are mentioned in Opinion 176 and concern Romania's obligations under the Council of Europe Statute which, however, do not constitute undertakings in the strict sense.
3. Pursuant to Order 508 (1995), the Committee on Legal Affairs and Human Rights appointed me as its rapporteur. Mr Schwimmer (Austria, EPP) and Mrs Durrieu (France, SOC) were appointed rapporteurs by the Political Affairs Committee and the Committee on Relations with European Non-Member Countries respectively.
4. This report is largely based on interviews conducted and information obtained during our recent visit to Romania from 5 to 8 March 19975. The rapporteurs would express their gratitude to the Romanian delegation which arranged the programme of their visit and to all the persons whom they met, including the President of the Republic of Romania, the ministers, the parliamentarians, the senior officials and the NGOs, for the quality and frankness of the talks held. They would also express appreciation for the warm welcome and the numerous marks of sympathy which they received.
5. This report also refers to the introductory memorandum6 on honouring of the obligations and commitments accepted by Romania, drawn up by the three Assembly rapporteurs following their previous visit from 18 to 20 December 1995. In addition, it takes account of comments by the parliamentary delegation of the Republic of Romania in reply to the aforementioned introductory memorandum7, observations from the Democratic Alliance of Hungarians in Romania8, and particulars supplied to us by other international or non-governmental organisations or obtained from the press.
II. Political situation
6. Romania is a multi-party constitutional Republic. The end of 1996 brought a major political change following the general elections in November. The presidential elections returned a new majority led by Mr Emil Constantinescu who was elected President. A government headed by Mr Victor Ciobea was formed in December of the same year.
7. This was Romania's first experience of a true democratic changeover with power passed to a governmental and parliamentary coalition comprising Christian Democrats, Liberals, Social Democrats and representatives of the UDMR, the party of the Hungarian minority which is the nation's largest. Two ministers belong to this minority, those responsible for tourism and minorities.
8. The ruling team is clearly resolved to lose no time in applying the programme which was its election platform. This political change is even now decisively influencing the prospective legislative activity of the next few months. The former legislature was already to have completed legislative proceedings which were crucial to the process of democratisation and the fulfilment of the commitments made with the Council of Europe, and which the new legislature is duty bound to carry on. It is also expected to adopt the government programme. For that purpose, so we were informed, the leaders of the government coalition parties had signed an agreement laying down rules for co-operation within the parliamentary majority and committing them to abide by the rule of consensus in decision-making. Lastly, it should be pointed out that under the terms of the Romanian Constitution all draft legislation not placed on the agenda of the former legislature is dropped, so that the entire legislative process has to begin all over again with the tabling of new bills. Less than three months after the elections, it is thus very hard for us to give an opinion as so few legislative schemes have been put in hand.
9. We were very much impressed during out recent visit by the change in the national political climate and the open attitude of the new governing coalition. During our talks the Romanian authorities repeatedly stressed their overriding concern for and constant attention to seriously fulfilling their undertakings. We received firm and substantial assurances, above all that the parliament would step up efforts to make the necessary reforms. In this respect, a consensus between the majority and the opposition seems to have occurred, as far as both are well aware of their responsibilities towards our Organisation.
10. This apparently successful political switch testifies to the country's standard of democracy. Moreover, the present majority has vested certain eminent members of the former government with important parliamentary functions. For instance, Mr Melescanu, former Foreign Affairs Minister, was elected chairman of the Senate Foreign Affairs Committee.
11. Meanwhile, our hosts stressed the priority which would be given to economic reform, in particular reallocation of agricultural land and privatisation of public companies. Romania thus displays a genuine political will to expedite the necessary reforms. The country is very plainly at a stage of transition to a market economy and its prime concern is to gauge the financial and budgetary impact of the reforms and measures implemented.
12. The European Union has accordingly decided to intensify relations with Romania, looking ahead to her accession. Under the PHARE programme of development assistance to Central and Eastern countries, the Union has granted Romania 731 million Ecus in aid of economic reform. An additional tranche of 330 million Ecus is planned for the funding of new projects up to 1999 on the social side of reform.
13. It is quite clear that the reorganisation proceeding in Bucharest has caused reshuffling of the ministerial and civil service staff. During the visit, MM Nastase and Melescanu handed me a memorandum on behalf of the parliamentary opposition, claiming that the new power had conducted a political "witch-hunt". Admittedly we observed nothing of the kind on the spot, and the far-reaching effects of an American-style "spoil system" are quite unknown in Romania. On the other hand, this situation clearly indicates the need for the country to adopt before all else a suitable body of labour law and civil service regulations.
III. Signature and ratification of Council of Europe conventions
14. When it acceded to the Council of Europe on 7 October 1993, Romania undertook to sign and ratify several Council of Europe conventions. On that score, we can only express full satisfaction.
A. European Convention on Human Rights (ECHR) and Protocols
15. On 20 June 1994 Romania ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and the first ten Protocols thereto (including Protocol N° 6) and at the same time recognised withe immediate effect the right of individual petition to the European Commission of Human Rights (Article 25) and the compulsory jurisdiction of the Court of Human Rights (Article 46). In addition, Romania deposited the instruments of ratification of Protocol No. 11 on 11 August 1995. The Assembly is bound to congratulate the Romanian authorities for this. However, Romania has yet to sign the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights (ETS 161).
16. Applications concerning Romania properly referred to the European Commission of Human Rights totalled 9 in 1994, 102 in 1995 and 118 in 1996. The cases chiefly concerned conditions of imprisonment, return of confiscated property, freedom of expression, protection of private life and the right to a fair hearing. To date, only some ten of the applications have been declared admissible by the Commission.
B. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Anti-Torture Convention)
17. On 4 October 1994 Romania ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its two Protocols with effect from 1 February 1995. As things stand, an initial visit to Romania was made by the Committee for the Prevention of Torture (CPT) in September 1995.
C. Conventions on the rights of minorities
18. It is a welcome fact that Romania was the first Council of Europe member state to ratify the Framework Convention for the Protection of National Minorities on 11 May 1995.
19. The commitments accepted by Romania on her accession to the Organisation can be taken to include the ratification of two more Council of Europe conventions: the European Charter of Local Self-Government, signed on 4 October 1994, and the European Charter for Regional or Minority Languages, signed on 17 July 1995. Neither of these two conventions has yet been ratified, but the Foreign Affairs Minister, the Minister responsible for minorities and the Speaker of the Senate assured us during our visit that the conventions in question presented no problem for Romania and ought to be ratified by parliament in the course of the current session, probably before the summer of 1997. Furthermore, the Minister responsible for minorities gave us his guarantee that although these conventions were not in force, Romania was already endeavouring to comply with their terms and would enact no contrary legislation.
D. Other conventions
20. The Ministers of Foreign Affairs and Justice informed us of their current preparations for the ratification of the Council of Europe conventions in criminal law matters signed by Romania on 30 June 1995: European Convention on Extradition and both its Protocols; European Convention for the Suppression of Terrorism; European Convention on Mutual Assistance in Criminal Matters. The European Convention on the Transfer of Sentenced Persons was ratified on 23 August 1996.
21. The Minister of Education also gave us assurances that it was essential for Romania to ratify without delay the conventions on secondary and higher education and equivalence of diplomas. The European Convention on the Equivalence of Diplomas Leading to Admission to Universities and its Protocol, the two conventions on equivalence of periods of university study and the European Convention on Academic Recognition of University Qualifications were signed on 2 October 1995.
22. It would also be desirable for Romania to give certain other undertakings treaty force by ratifying the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities which it signed on 27 February 1996.
23. Unfortunately the ratification of the European Social Charter (ETS 35), signed on 4 October 1994 or the signature of the revised European Social Charter (ETS 163) are not on the agenda. This is nevertheless one of the most important Council of Europe conventions and many of our contacts (the trade unions in particular) expressed the wish that Romania will be soon a party to it.
24. Romania also ratified the General Agreement on Privileges and Immunities (ETS 2) on 4 October 1994, and on 5 March 1996 became a full member of the Council of Europe Social Development Fund. Just recently, on 18 March this year, it signed four other conventions including the European Convention on Transfrontier Television, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
IV. Organisation of justice and judicial reform
25. Romania used to be criticised for having a judicial system under the control of the executive. Judges' independence and irremovability have hitherto been a serious source of concern to us. Under the Constitution and the applicable legislation, all judges in Romania have enjoyed security of office since 1994. However, this stipulation materialised only gradually. We now find that the advances made are spectacular and that justice is conclusively moving towards independence.
26. The Minister of Justice wished to point out that the training of magistrates had been significantly improved and that they now received special training in human rights. This makes them better able to determine whether current legislation is consistent with respect for fundamental freedoms.
27. In our introductory memorandum we noted that certain provisions of Act No. 92 of 4 August 1992 on the administration of justice still raised some important problems, specifically Article 19 concerning the independence of the judiciary:
A. Article 19 of Judiciary Act No. 92 of 4 August 1992 (administration of justice) (Opinion 176 - paragraph 7 i.)
28. Article 19 states:
"The Minister of Justice, through the general inspectors, the inspecting judges of the courts of appeal or the delegate judges, shall have the right to supervise the activity of judges of courts of first instance, district courts and courts of appeal. Court presidents shall have the same right vis-ŕ-vis judges subordinate to them.
This supervision shall be exercised through the monitoring of activities and of the manner in which professional relations with parties and lawyers are conducted, as well as through an assessment of professional qualifications and aptitudes.
Judicial decisions shall not be subjected to the above-mentioned supervision unless they become final."
29. The previous memorandum by the rapporteurs analysed in depth the multiple problems raised by this provision, tending to imperil the independence of justice (independence of magistrates from the executive not properly secured, functions of inspectors not precisely defined, risk of the Minister of Justice influencing court decisions, etc.). In our conversation with the Minister of Justice, we reiterated the Assembly's call for amendment of this provision. The supervision applied to judges should be confined to strictly administrative concerns and exclude any assessment of a magistrate's intellectual abilities or work aptitude and, more importantly, any interference with the subject-matter of the cases assigned to them.
30. The present government would appear to have heeded the remarks made; during our visit, the Minister of Justice told us that the opinions expressed by the Council of Europe experts had been taken into account and disclosed to us the text of the bill to amend Article 19 of Act 92/1992. The draft of the new Article 19 is worded as follows:
"The Minister of Justice and the Superior Council of Magistrature shall watch over the observance of the independence of the judiciary.
The Minister of Justice shall be responsible for the proper functioning of the judiciary as a public service. To this end, through the general inspectors from the Ministry of Justice, assimilated to judges, through the judges of courts of appeal delegated to the Ministry as general inspectors and through the inspecting judges of the courts of appeal, the Minister of Justice shall be informed of any matter liable to impair the quality of the service, the application of laws and regulations within the competence of the courts of appeal.
The presidents and the vice-presidents of the courts may verify the quality of the service, the observance of the laws and regulations by the sections of the courts they preside over and by the courts within their circumscription. The presidents of the courts of appeal shall exercise this right also through the inspecting judges.
In no circumstances may such verifications lead to interference in pending procedures or to a review of a matter already judged. The exercise of competencies prescribed by law to the Minister of Justice with regard to the judicial avenues of appeal shall not be considered as an interference.
31. Under the new terms of Article 19, it will rest with the Minister of Justice and the presidents of the courts of appeal to ensure that the independence of justice is upheld; the latter are therefore assigned a strictly administrative function. There should no longer be any danger of clashes between the Minister and the courts. Parliament is expected to have this bill before it very soon but, owing to the overload of business, will probably not be able to debate it earlier than April. The issue of supervision of judges thus continues to depend on review of this provision.
B. The Public Prosecutor's Department
32. In 1989 Romania discarded the Prokuratura system which used to obtain under communist rule. Members of the Public Prosecutor's Department were given the status of magistrates and placed under the authority of the Minister of Justice, from whom they receive their instructions. However, while the provisions of the Act of 4 August 1992 on the status and powers of the Public Prosecutor's Department are sufficiently clear and consistent with European standards, the rapporteurs note that the prosecution's role is still very pronounced and moreover that Ministry-prosecution relations need clarifying.
33. The dispute between the Minister of Justice and the General State Prosecutor of Romania, Mr Nicolae Cochinescu, which continued during our visit, is symptomatic of this need. Under the terms of the legislation in force, the latter official cannot be removed or, therefore, replaced. That is why President Constantinescu and the Minister of Justice have pressed him to resign. According to most of out informants, the independence of the judiciary is hard to secure if obstructed by the State Prosecutor who is in office. Conversely, the State Prosecutor, who refused to resign, declared in the press that the powers of the Minister of Justice in respect of the prosecution were unreasonable and ought to be reduced. At all events, this affair vitiates the dispassionate climate needed for the furtherance of judicial reform.
34. Lastly, one of the priorities of the new government is to combat crime and corruption. This drive, concerning not only economic and commercial activities but also public administration and justice, should in no conceivable eventuality and in no circumstances form either a pretext or a means to interfere with the workings of justice.
V. Penal Code and Code of Criminal Procedure
35. Both codes have been in force since 1969 and underwent slight amendments after the Revolution. A bill amending certain provisions of these codes was passed by parliament in September 1996 and promulgated on 14 November 1996. In our introductory memorandum we observed that some provisions of the Penal Code were unacceptable, especially Article 200 dealing with homosexuality and Articles 205 (insults), 206 (defamation), 238 (offences against authority) and 239 (contempt of public authority and of court), and likewise those of the Code of Criminal Procedure concerning house searches (Articles 101 and 103) and pre-trial detention (Article 148).
A. Article 200 of the Penal Code (Opinion 176 - paragraph 7 ii.)
36. Under the terms of Article 200, paragraph 1 of the Penal Code, "Sexual acts between persons of the same sex if committed in public or provoking a public scandal are punishable by 1 to 5 years' imprisonment". Moreover, paragraph 5 of this provision restricted the right of association between homosexuals.
37. Originally, homosexual acts committed in private between consenting adults were an offence punishable by 1 to 5 years' imprisonment. Debate on Article 200, which started in 1994, ended in failure of the attempts at amendment, and was revived in September 1995. The Chamber of Deputies then passed a new amendment to Article 200 modelled on the one presented by the Senate in March 19949, stating that homosexual acts committed in private were no longer punishable, but providing for imprisonment sentences for sexual acts between persons of the same sex committed in public or provoking a public scandal.
38. We reiterate our wish that Article 200 be finally repealed without delay, since the concept of "homosexual act" is nowhere defined and the concepts of "public scandal" or act committed in public are conducive to exaggerated or contradictory interpretations. In particular, the concept of "public scandal" signifies in Romanian law "any act known to more than two persons who reprove it".
39. It is regrettable that Article 200 of the Romanian Penal Code remains in force, notwithstanding the desire expressed by the Assembly in its opinion on Romania's accession to the Council of Europe. The Minister of Justice, whom we met during our visit, explained inter alia that the Church was exerting considerable pressure in opposition to the decriminalisation of adult homosexual relations whether in public or in private.
40. Nonetheless, according to our interlocutors, draft amendments were already circulating and debate on further revision of certain Penal Code provisions was about to resume, because the recently elected legislature was dissatisfied with the changes made in 1996. The Minister of Justice confirmed for our information that parliament was considering a new version of Article 200 providing for the decriminalisation of private relations between consenting adults.
41. We are unsure whether to regard as heartening the judgment delivered by the Constitutional Court on 22 October 1996 declaring Article 200 paragraph 1 in accordance with the Constitution, even if the Court precisely insisted on the fact that ECHR's provisions force upon internal law. At all events, the construction which it placed on the concept of "public scandal" should be applicable to all the courts.
42. Several arrests of homosexuals were reportedly made in 1995 and 1996 under Article 200. Although there have been no convictions to date, it would appear that some of those arrested are still being held on remand.
B. Other provisions
43. Articles 205 and 206, and even more article 238 and 239 clearly affect the freedom of the press even though their scope is more general.
44. Article 205, for instance, makes insult punishable by a prison term of between 3 months and 2 years or a fine. Article 206 on defamation, ie public condemnation of a person's acts (...) which may expose that person to criminal, administrative or disciplinary sanctions or to public scorn, is punishable by a prison sentence of 3 months to 3 years or a fine. Article 238 provides that a defamation directed at a high State authority is punishable by a prison sentence of 6 months to 5 years. Article 239 provides that if the insult or defamation (...) directed at an official representing the State authority in the discharge of his/her duties is conveyed through the press, the penalty is 6 months to 4 years in prison.
45. We therefore reiterate our request for repeal or at least amendment of these provisions so that they do not hamper freedom of the press.
VI. Human rights and fundamental freedoms
46. We can broadly affirm that Romania is a country which respects human rights. We were gratified to learn, for instance, that Romania was very shortly to consider draft legislation introducing an ombudsman, which is indisputably an encouraging sign for human rights protection. However, some problems remain, foremost among which is the issue of conditions of detention.
A. Police custody
47. The situation with regard to police custody would appear to have improved considerably. However, the last report by the American State Department on human rights in Romania mentions occasional police brutality against prisoners in their custody. The report said that the Government, particularly the Ministry of the Interior, was taking insufficient action to punish police officers involved in such abuses. Drawing on information supplied by Amnesty International and Human Rights Watch, it described three cases of deaths in police custody in 1995 and 1996, resulting from police brutality. In these cases, as in previous ones, investigations were launched by the Public Prosecutor's Office and are still in hand. However, some NGOs have criticised the dilatory nature of these investigations, many of which the Public Prosecutor's Office has decided to drop. The report also notes allegations of ill-treatment, ie beatings, of prisoners, especially Roma. Such cases are nonetheless the exception rather than the rule.
48. Act No. 3/1970 on regulations protecting a specific category of minors, enables children suspected of criminal offences to be remanded in custody. Since this Act does not define the applicable procedures, it does not adequately protect minors and is plainly incompatible with the European Convention on Human Rights. The police is not required to inform the families. In October 1996 Amnesty International noted cases of ill-treatment, again concerning under-age children belonging to the Rom minority.
49. During our visit we were told that President Constantinescu had made many changes to the police force, including a mass transfer of personnel in the major cities and ministerial departments, and that several senior police officers had been dismissed.
B. Conditions of detention (Opinion No. 176 - paragraph 9)
50. The state of the prison system in Romania is particularly disturbing. Although we did not visit any detention centres or prisons during our last visit (but in december 1995, we visited the penitentiary hospital of Jilava, near Bucharest, which is the only penitentiary hospital of Romania), the authorities themselves informed us that they were fully aware of the appalling living conditions, in terms of sanitation and amenities, of the 45 000 prisoners in the 35 Romanian prisons, and of the overcrowding in the prisons. 3 500 prisoners in Jilava Prison in Bucharest had gone on hunger strike. The State Secretary for Justice had stated that "some of the demands were justified". However, despite the averred desire to reach European standards, improvements in the physical conditions in prisons are mainly dictated by the financial stringencies of the State budget.
51. Romanian NGOs continue to denounce the unacceptable situation of prisoners in Romanian prisons, which are overcrowded and have very unsatisfactory sanitary and medical conditions.
52. Lastly, although responsibility for the administration of prisons was transferred from the Ministry of the Interior to the Ministry of Justice in 1990, our contact persons stressed that the prison administration still operated along military lines (compulsory uniforms, solders in overall command).
53. We can only reiterate that the Romanian authorities must at last show a willingness to make tangible improvements to the situation in prisons and the material conditions of prisoners. Financial support from the European Union might be decisive in this connection, and the Romanian authorities must give this matter clear priority in their co-operation with the EU.
C. The SRI (the Romanian Secret Services)
54. During our visit we spoke to our contact persons about the bill of 7 February 1996 on the protection of State and company secrets, which is currently before Parliament. This bill was adopted at first reading by the Senate and is aimed at transforming "SRI" structures. It steps up parliamentary supervision of "SRI" activities (a joint Chamber of Deputies/Senate committee is currently responsible for such supervision).
55. However, we consider certain of the bill's provisions dangerous in that the text also aims to reintroduce "SRI" units into government departments and public enterprises. Moreover, if it were adopted, the authorities could declare any piece of information a State secret, and in doing so, make it inaccessible to the press and the public at large.
56. Lastly, the bill under discussion mentions that any Romanian citizen who so wishes can have free access to the files kept on him/her by the former "Securitate", as in the case of other central and east European countries. Citizens' access to information on them is a legitimate demand, which the ruling Christian-Democratic majority supports, as does part of the opposition. The Director of the "SRI", who is in charge of these archives, has himself come down in favour of such legislation.
57. Some NGO reports, as well as the aforementioned report by the American Department of State, mention occasional violations of privacy: inspection of correspondence, phone tapping and searches of houses or luggage. However, such cases are very rare.
D. Police controls
58. Amnesty International10 is disturbed by the fact that, in the past two years, the Romanian police force is increasingly using firearms in the course of its duties.
59. Certain NGOs, particularly the Helsinki Committee for Romania in its 1995 report or the APT - Association for the prevention of torture - in its April 1996 report, deplore the casual manner in which the police forces check identity papers and take individuals in for questioning.
E. Freedom of the media and freedom of expression
60. All our contact persons stressed, and we ourselves noted, the extensive liberty of expression and information in Romania. The number of independent media has been constantly increasing, so that there are now some 53 private television channels, 110 private radio stations, and several hundred daily and weekly newspapers. Furthermore, a considerable proportion of the urban population has cable or satellite television. However, despite the boom in such private channels, they are only available in Bucharest and the major towns and cities. Romanian State Television and Radio are the only electronic media for the rural population.
61. Owing to this unprecedented growth in the media, our contact persons stressed that Romania would have to revise her legislation on public broadcasting and the audiovisual sector. There was also a plan to privatise the Romanian national television company.
62. Similarly, the media representatives we met stressed the importance of the code of ethics drawn up by the journalists' associations and trade unions, and regretted that it was not always respected.
63. None of the media representatives we met mentioned any attempt by the authorities to pressurise newspapers or journalists. The State television company even pointed out that its working conditions were being brought into line with those of any private media company. Parliamentarians confirmed that there was very extensive freedom of the press and assured us that the new authorities had no intention of turning the clocks back.
64. On the other hand, the media have voiced certain specific demands. The first concerns the inclusion of repressive provisions in the Criminal Code (Articles 205, 206, 238 and 239), which can be used against the press and whose abolition had therefore frequently been advocated. We again consider that it would be desirable to revoke, or at least amend, all these articles, particularly the offence of "insulting a State authority", as in all countries which respect the freedom of the press.
65. The second demand is that the Government should abolish the restriction on advertising, as the current ceiling on income from advertising amounts to 3% of total turnover, thus infringing the freedom of enterprise. Thirdly, most newspapers still depend on the State-owned company "Letea" for paper manufacture and supplies. However, there was no claim during our meeting with media representatives that the authorities used their control over this company to pressurise the newspapers. One further demand concerns the virtual monopoly on newspaper distribution: many newspapers depend on another State-owned company, "Rodipet", which takes a commission amounting to 70% of the price of the newspaper.
66. Another demand concerns freedom of access by the media to the work and sessions of the Chamber of Deputies and the Senate, including their committee meetings. Such freedom of access does exist, but strict regulations were recently laid down on access to both assemblies. We informed the media representatives that in a number of western countries journalists were also barred from some committee meetings. On the other hand, we obviously back their demand for a press room in each of the two assemblies.
67. In contrast to our previous visits, we were informed of no cases of violation of freedom of the press, apart from the current proceedings against two journalists from the ZIUA daily newspaper, and three journalists from a local paper. Quite on the contrary, it would appear that the press, and the media in general, have broad freedom of expression, as the journalists themselves acknowledge. As one of them pointed out, no action had ever been taken against journalists who complied with the ethical rules. During a debate held by journalists last March, the editor of the major daily "Evenimentul Zilei" had said that Romania had "total freedom of the press".
68. Judicial proceedings had been brought against two ZIUA journalists based on Article 238 of the Criminal Code (insulting a State authority); in October 1996 the Court of first instance handed down prison sentences of 12 and 14 months respectively, for publication of articles on President Iliescu's past, alleging that he had worked for the KGB during his studies in Moscow, and on his role in the coup d'état in December 1989. They naturally appealed, and the appeal proceedings are currently in hand.
69. Recently, three other journalists working for OPINIA, a local newspaper, were sentenced in March last by the Court of the town of Buzau to one year in prison, for libel, after they published an article dealing with the dubious operations of a former prosecutor's family. However, the journalists remained free.
F. Freedom to organise
70. During our visit in March 1997 time did not permit us to meet representatives of any Romanian trade unions. However, we had met representatives of the main unions in December 1995. The latter had complained of the then Government's hostility to the trade unions and their leaders. They had informed us of their demands and of several violations of labour and union rights.
71. In fact, their main demand had concerned the inadequacy of legislation and the fact that there was no Employment Code or civil service legislation. Nor is there any specialised court, of the industrial tribunal type, to resolve labour disputes. In some occupations strikes are completely prohibited.
72. Some degree of "industrial harmony" currently reigns, with the ruling majority endeavouring to consult with the unions and union representatives showing a conciliatory attitude in the face of the austerity policy and the planned social and economic measures.
73. In our view, Romania could now step up her efforts to bring legislation into line with European standards. The Government has ratified forty-two conventions in the social field, including the six ILO conventions, which are considered fundamental. Romania is obviously planning to introduce an Employment Code. However, although Romania has signed the European Social Charter, it has still not ratified it, despite the pledges given by Government representatives.
G. Freedom of religion
74. Freedom of religion is fully guaranteed in Romania, in accordance with he European Convention on Human Rights. During our on-the-spot talks, some parties said that the Government should resume consideration of a bill on the Churches and faiths. Romania has 15 recognised denominations and some 350 religious associations officially approved by the State Secretary for Religious Affairs. The religious life of the members of all the denominations and religious associations is free of any State interference.
VII. Rights of national minorities
A. General situation
75. The 1992 census registered some 1 650 000 Hungarians, 430 000 Roms, 120 000 Germans, and also some Armenians, Slovaks, Czechs, Ukrainians, Bulgarians, Greeks and Turks. This issue is one of the priorities in the assistance being provided by the European Commission (PHARE Programme) and the Council of Europe.
76. In 1996, Parliament was working on the adoption of legislation on national minorities. A special Parliamentary committee had been mandated to study proposed legislation on this matter, particularly the Government's bill, which was mainly based on the text prepared by the sixteen national minorities in the National Minorities Council and the planned Democratic Alliance of Hungarians of Romania. Unfortunately, this work came to nothing.
77. During the election campaign and when it was in opposition, the current majority had promised to promote respect for the rights of minorities. We met the Minister responsible for minorities, Mr Tokay, who made it clear that minorities were a governmental priority, as demonstrated by the very existence of his office and the immediate setting up of a minorities department with the Prime Minister's Office. The fact that the Magyar Democratic Union of Romania (UDMR) is part of the governmental coalition and that several ministers and state secretaries are from minorities is an encouraging sign.
78. A governmental programme has been established for the next few months, and it is now gradually being implemented. According to the Minister responsible for minorities the programme is based on three urgent aims: use by minorities of their mother tongue, the restitution of property (belonging to the Church or specific minorities) and ratification of the European Charter of Local Self-Government and the European Charter for Regional or Minority Languages, which he hopes will be ratified within the next three months.
79. The Minister responsible for minorities assured us that he was intensifying his regular contacts with representatives of all the minorities and communities, (Germans, Poles, Jews, Turks, Roma, etc). He has also been briefed to maintain links with the Romanian Council of National Minorities, a consultative body, which had been set up by the former majority and comprises representatives of each minority. Naturally enough, it is still operating and working as a consultative body.
80. The representatives of the Hungarian minority said that undeniable progress had been made over the previous three months and that there was a genuine political will to continue. Two ministers are from the Hungarian minority, which also has 11 senators and 25 deputies (ie some 7.5% of the whole membership of Parliament). One of the priorities is ratification of both aforementioned Charters and the five conventions of the Council of Europe on education, and recognition of diplomas. The Ministry of Foreign Affairs has provided the requisite assurances in this regard.
B. Education (Opinion No. 176 - paragraphs 8 and 10 i.)
81. We interviewed the Minister of Education on the Education Act N° 84/1995 of 25 July 1995 and the planned reforms, particularly with regard to the provisions on study of the mother tongue by pupils from national minorities who attend schools teaching in Romanian.
82. The principle that members of national minorities are entitled to learn their mother tongue and to study in their mother tongue at all educational levels is secured by Article 32 of the Constitution. Section 118 of the 1995 Act reaffirms this general principle. This Act permits the introduction of classes, sections or establishments teaching in the minorities' language. In public universities, sections or groups may be introduced teaching in the mother tongue of various minorities. This Act stipulates that examinations must be taken in Romanian at all educational levels, though admission or final examinations for schools or classes which teach in a minority language are taken in the latter language.
83. The 1995 Education Act, particularly Articles 8, 9, 120, 122, 123 and 124, is shortly to be amended to enable minorities to use their mother tongues at all educational levels, i.e. from the primary level up to the technical school and university levels. Similarly, it will enable future students to take university entrance examinations in their mother tongue. Hitherto, authorization to use the mother tongue for examinations was given under an annual Governmental Decree.
84. The Minister of Education is, however, in favour of the integration of minorities, as he considers that knowledge of Romanian is vital in both general and vocational education for access to both the civil service and the labour market; nevertheless, his State Secretary responsible for the Education of Minorities clearly informed us that he was in favour of multiculturalism and multilingualism in the country.
85. Lastly, the Minister pointed out that the Government was planning to open a Hungarian university in Cluj and Hungarian departments in other universities.
86. The 1995 Act has been the subject of many protests, mainly from the Hungarian minority, which is the largest one in Romania, through the intermediary of the Democratic Alliance of Hungarians of Romania (now known as the UDMR), the Hungarian churches and especially the Council of National Minorities, which represents sixteen minorities.
87. The UDMR considers that where the use of minority languages is concerned the 1995 Act is more discriminatory than previous legislation dating back to the Ceauşescu era, and that it reduced the privileges which minorities had enjoyed for fifty years in Romania. The Act is contrary to international treaties such as the Paris Treaty of 1920 which secured the rights of national minorities. One of its further demands is that the use of the mother tongue should be allowed in dealings with local government or administrative departments. This is a perfectly legitimate demand since it is not aimed at making Hungarian a second official language but rather at facilitating its use in regions, departments and municipalities with a large, or even a majority, Hungarian ethnic population.
88. This legislation also raises the thorny question of the Hungarian churches' demand for recognition of separate religious teaching and the restitution of the 1 593 religious schools which they used to own. The 1995 Education Act recognises the existence of the public and private educational sectors but prohibits the introduction of a third, religious, sector. Solutions have been found to the problem of the restitution of the Greek Catholic schools.
89. The Minister of Education stressed that state schools provided religious education: religion was part of the compulsory school curricula in primary schools and was optional in secondary education. At the university level, there were some 14 Orthodox theology faculties, 4 independent institutes, 4 Catholic theology faculties and one Protestant theology faculty. Moreover, there were just under sixty seminaries in the secondary sector.
90. In the Government's view, the Act complies with the draft protocol presented by the Assembly in its Recommendation 1201 (1993), and furthermore represents a compromise between the interests of the smooth functioning of education and the interests of minorities in protecting and developing their cultural identities.
C. The situation of the Roma (Gypsies)
91. During our visit we met several Roma representatives. We can only note that despite their averred goodwill the authorities have not really got to grips with the problem, and we agree with them that it is extremely complex. Moreover, the Roma complain that they are subjected to violence and discrimination and are confronted with a very intense feeling of ethnic and racist intolerance. In fact, they constitute a sub-proletariat ravaged by unemployment and destitution and confined in veritable ghettos. Such insecurity obviously engenders a high rate of delinquency, which in turn prompts racist reactions.
92. The Government stress that they have managed to initiate ongoing dialogue with the Roma. The Minister responsible for minorities also pointed out that his ministerial department comprised an Office for the Social Integration of Roma. Nevertheless, one of the keys to integration is the economic factor, since the Rom community has a very high level of unemployment. However, the dialogue is hampered by the large number and varying quality of its representatives, since there are allegedly no fewer than 60 to 70 organisations representing the Roma, and they are in vehement, not to say violent, competition. This naturally raises the problem of representation in Parliament11, since, paradoxically, the deputy representing the Roma has only been elected by some 80 000 votes. It is therefore unfortunately inevitable that the other organisations complain of this de facto situation and a legislative framework which they consider unjust. Moreover, none of the organisations can specify exactly how many individuals they represent or demonstrate their actual legitimacy, which is often dubious. The Government's position is that only an electoral mandate can provide a sufficient democratic guarantee.
93. The Romanian and international press and the NGOs, including the Helsinki Committee for Romania, reported on the many incidents which occurred in 1993, 1994, 1995 and 1996, when Roma were attacked by self-defence groups, and even by the police (or public guards), who had started making punitive raids on the Roma. Amnesty International also denounced the violence against Roma (burning and destruction of houses) and the inertia of the police, who took little action to protect them. No police or judicial investigations have ever been conducted into these incidents.
94. In our view, urgent steps are needed to prevent and combat such demonstrations of intolerance.
VIII. Restitution of immovable property and land reform
95. In our introductory note we went in detail into the matter of the industrial property, agricultural land and immovable property which had been requisitioned by the State under the communist regime. According to our contact persons, this is a very complex problem but one which is nevertheless being resolved. An Act was passed by Parliament during the previous legislative period, and those currently in power must implement it scrupulously and without discrimination, as President Constantinescu has undertaken to do.
A. Restitution of immovable property
96. When the Ceauşescu regime collapsed in 1989, all persons whose property had been expropriated, nationalised, confiscated or requisitioned by the State very legitimately demanded its restitution. Court appeals were lodged, many of which were upheld. However, the Supreme Court, which had initially (Decision No. 229/1993) recognised the right of the courts to adjudicate on the constitutionality of legislation passed before 1991, subsequently, under pressure from the executive, ruled that the courts lacked jurisdiction to deal with actions for recovery of possession and prohibited Romanian citizens from bringing judicial proceedings in this field.
97. Act No. 112/1995 "regulating the legal status of certain dwellings having become State property" settled the matter once and for all. However, this Act has been seriously criticised for stipulating that the (former) owners can only recover possession of one flat, on the condition that they currently occupy it in person or it is unoccupied. Critics conclude that virtually 99% of owners are thus precluded from recovering their property. Moreover, the fact of allowing restitution of one flat only is contrary to the principle of restitution in integrum. Lastly, when the property had been confiscated in the first place, the great majority of owners had been evicted, so that very few of them currently actually occupy their flats in person. A mere 1% of all flats have been returned to their legitimate owners.
98. Compensation for owners unable to recover possession of their property is payable at a maximum rate equivalent to an average wage computed over a twenty-year period, that is to say an amount far below the actual value of the property. Such "capping" is against the principle of fair compensation.
99. During our visit to Bucharest we once again heard complaints from individuals who had been expropriated. The former owners stressed that it was utterly ludicrous to set the maximum rate of compensation at 20 times the average annual wage.
B. Property belonging to former political prisoners
100. During our visit to Bucharest we managed to talk to the representative of the Association of Former Political Prisoners. This association had corresponded with us in 1995, complaining of violations of the human rights of its members, who had been arrested, tried under summary procedure and convicted under the communist regime because of their opposition to it. Although they had been pardoned and rehabilitated in 1990, none of these ex-prisoners have recovered possession of their confiscated property. However, in 1997 a number of very slight changes began concerning the problem of the 60 000 former political prisoners, although none of the 80 or so orders returning property to its former owners relate to former political prisoners.
C. Property belonging to minorities or communities
101. During our interview with the Minister responsible for minorities, the latter informed us that the issue of property restitution also concerned certain minorities. In particular, the Jewish and Turkish communities were currently negotiating the return of expropriated and confiscated immovable property and had accordingly drawn up lists of the property items in question. However, the items had not yet been precisely identified or evaluated. On the other hand, the case of the Turkish community is rather difficult as the title deeds are apparently stored in archives in Istanbul.
102. The solutions obviously vary across the country: in the regions of Romania which have land registers, eg Transylvania and North Bukovina, matters are relatively simple and the property items to be returned to their owners are easily identifiable. However, restitution in integrum is virtually impossible for practical reasons (many buildings have been destroyed or demolished or are currently occupied). The authorities' only option is to provide compensation, though this necessitates an unprecedented financial effort from the State.
103. The authorities are leaving it to the courts to implement the law and to decide, on the basis of their case-law, what rules are applicable to such compensation. They are also expecting a flood of applications to the organs of the European Convention on Human Rights in Strasbourg.
D. Church property
104. The issue of the restitution of church property has been partly resolved, but it is still very complex and extremely difficult to settle. It also involves earmarking considerable budgetary resources which the Romanian State is not immediately capable of releasing, and there is the additional problem of the upkeep of church buildings and the religious heritage. The authorities are now apparently prepared to amend the law on the restitution of places of worship. However, we were also told that a distinction had to be drawn between the Hungarian churches, which had apparently been given satisfaction and had recovered possession of their places of worship, and all the others, in respect of whom the problem remains.
105. In 1948, during the communist period, the heritage (places of worship and other items of property) of the Greek Catholic Church (Romanian Church united with Rome) and the Reformed Church were nationalised and then transferred to the Orthodox Church. After the events of 1989, freedom of worship was proclaimed, raising the acute problem of the restitution of churches and other heritage items to the Greek Catholic Church and the Reformed Church, which items had previously been confiscated and assigned to the Orthodox Church. Since the Orthodox Church refused to hand over the places of worship, the authorities concluded that this was a private dispute and refrained from seeking any legal solution or ordering restitution of any property, in the hope that the hierarchies of the three churches would arrive at a friendly settlement of the problem.
106. The problems raised by the restitution of places of worship are obviously very different from those surrounding restitution of other confiscated items. Legislative Decree No. 126/1990 and Governmental Decision No. 466/1992, which was taken in pursuance of the Decree, provides for the identification and restitution of all the property of the Greek Catholic Church. Where church land has since been developed for other purposes, similar plots must be assigned in exchange.
107. The Reformed Church is attended only by members of the Hungarian minority. It too has, since 1989, repeatedly complained of the non-restitution of confiscated heritage items. The items in question are churches, real estate and also school buildings, not forgetting libraries and works of art. On 12 December 1996 the representatives of the Catholic and Hungarian Reformed Churches of Romania, Bishop Tökés Laszlo and Bishop Tempfli, met the Secretary of the Parliamentary Assembly Committee on Legal Affairs and Human Rights. They confirmed that they had recovered possession of their places of worship, apart from the Bishop's Palace in Oradea, which had been returned to the Greek Catholic Church but not to the Reformed Church. The Church is completely devoid of financial resources and mainly lives on donations from churches in the west. It is alleged that the financial aid from the State budget is not apportioned fairly between the different denominations. The churches' third demand is the restitution of the 1 593 Hungarian schools which were confiscated in 1948, 531 of which belonged to the Reformed Church.
E. Land reform
108. Where agricultural property is concerned, Article 9 of Act No. 18/1991 provides for the restitution of 10 hectares per family. Consequently, even if each spouse inherited 10 hectares, the family would still only be entitled to 10 hectares. In 1995 the National Federation of Landowners and Agricultural Shareholders (PROPACT) had informed us that in fact only 5% of all agricultural property had been handed over, that the land had often been assigned to people other than its owners, and lastly that the mayors, who were responsible for land redistribution, had often sabotaged the restitution process.
109. The new Government is aware of the urgent need to develop and modernise the agricultural sector and has therefore given priority to the reform of agriculture and land ownership. A major reform currently before Parliament is primarily aimed at return land to its former owners, up to a maximum of 50 hectares per family.
F. Privatisation of industrial property
110. The 1991 Act privatised only a little over 1 000 small and medium-sized enterprises, representing under 5% of the total value of the public industrial sector. The process of privatising public enterprises has undeniably moved into a higher gear, and dozens of privatisation bills are shortly to be laid before Parliament. This process is taking place in close consultation with the World Bank and the IMF.
IX. Other obligations
A. Refugees
111. Romania recently adopted legislation (Act No. 15/96) on the status of and regulations on refugees in Romania, promulgated in April 1996. The Office of the UN High Commissioner for Refugees in Romania considers that this Act comprises provisions contrary to international standards. Moreover, Amnesty International has reported on expulsions of asylum-seekers, including a Syrian whom Romania sent back to his country of origin without securing the necessary safeguards. The number of refugees or asylum-seekers in Romania is estimated at approximately 40 000, most of them transiting towards a western country. They cannot therefore all be considered as asylum-seekers or even refugees. However, the problem is critical because the refugees, most of them from Asia (Pakistan, Iran, India, Bangladesh, Sri Lanka, etc), are confined in the outskirts of Bucharest in appalling sanitary conditions.
B. Local self-government
112. Romania is still a centralised State. The local level comprises administrative authorities, municipal councils and mayors, who deal with public affairs in towns and villages, and department councils, which co-ordinate the work of the municipal councils. The Prefect, who is appointed by the Government, is the latter's representative at the local level and conducts a posteriori reviews of administrative decisions taken by the local authorities, referring them to the administrative court.
113. Although Article 119 of the Romanian Constitution lays down the principle of local self-government, Acts Nos. 69/1991 on local administration and 70/1991 on local elections are currently the only legislative texts dealing with local democracy, and there has been no attempt since to provide local authorities with the necessary structures and wider budgetary powers. The Government is responsible for the general management of public administration. These authorities have meagre financial resources, insufficient for the implementation of any public amenities or works policies.
114. In our introductory note we recounted in some detail the Government's dismissal of about 133 mayors, most of whom are opposition party members, between 1992 and 1995, following judicial investigations into accusations of corruption and influence-peddling, embezzlement, misappropriation, unlawful allocation of farmland, negligence in the management of public state property and municipal budgets, etc. At the time we noted that the provisions of Act No. 69/1991 on supervision of persons by the Prefect were unconstitutional, because they entitled the Prefect to propose that the Government dismiss mayors, municipal councillors and members of the department councils, and we urged the Government to revise this legislation. The Congress of Local and Regional Authorities of Europe (CLRAE) agreed with this position.
115. Act No. 69/1991 on local administration has been amended. The Congress of Local and Regional Authorities of Europe experts have deemed the amendments (dismissal of mayors and department councils by a court) to comply with the European Charter of Local Self-Government, although there is still room for improvement in a number of areas. Where Act No. 70/1991 on local elections is concerned, a new Act was passed before the local elections on 2 June 1996, stipulating that Prefects can no longer dismiss mayors from office.
116. In conclusion, we consider that these matters should be closely monitored in systematic consultation with the Congress of Local and Regional Authorities of Europe.
C. Abandoned children
117. Our introductory note mentioned the aberrant system inherited from the Ceauşescu dictatorship, which had induced many families to abandon the children which they were required to procreate by law to the care of a national network of State orphanages. Unfortunately, this practice did not end with the fall of the communist regime, and the number of abandonments has in fact increased with the current economic difficulties. There is still a problem of abandoned children, and we can only note that broadly speaking the situation has remained unchanged for the last two years. The Romanian State currently has custody of a large number of children who are not all legally orphans but were placed in institutions by their parents because they could not afford to meet their needs.
118. The situation in the Romanian orphanages has greatly improved since 1989. However, no one could provide us with official statistics, although it would appear that the orphanages accommodate some 100 000 children. According to French governmental sources, of the 300 000 children born in Romania every year, 20 000 are abandoned by their families.
119. We gathered from our contacts with the NGOs that the authorities are determined to improve living conditions in orphanages, and above all to tackle the problem at source by developing a policy of preventing abandonment and of placing children in foster families in order to avoid committing them to state institutions, and to phase out the system of confining children in orphanages. On the other hand, the policy on the adoption of abandoned children seems to be making no progress at all.
120. The Romanian authorities are aware how much work remains to be done, in two directions12:
- Firstly, finding a quick alternative to confining children in state institutions, notably by developing a prevention policy (a "State child allowance" was introduced in July 1993 in order to encourage parents to keep and bring up their children), and a policy of placing children in foster, or even adoptive, families. The Ministry recently launched a poster campaign to promote fostering and adoption of children and to combat abandonment.
- Secondly, humanising the living conditions of the children who do have to stay in an institution: while the living conditions in orphanages have improved, the authorities admit that the practical conditions are unsuitable and that the medical, nursing and educational staff is definitely inadequate and untrained; medical care is insufficient; and above all, the children suffer problems of psychomotor development resulting from their confinement. Nevertheless, there has been a conspicuous drive to increase supervision (increased numbers of child-care specialists). The NGOs have mentioned that the institutions were faced with more and more children suffering from AIDS. Because of under-staffing such children are kept in separate centres and have separate schooling.
121. The Council of Europe should support these efforts. We might stress that the Romanian authorities receive a great deal of outside help in protecting abandoned children: not only are many NGOs supplying them with humanitarian aid, upon which the SERA and "Salvati Copii", but also, and above all, they receive financial aid (12 million ECUs) under the European Union PHARE Programme, which has been operational since spring 1995 and is aimed at promoting staff training, providing legal assistance, preventing the "institutionalisation" of orphanages and introducing new methods of caring for the children.
122. Adoption legislation is extremely complex, as the Romanian Parliament has successively passed three Acts, one in July 1990 (making adoption subject to the written consent of the parents, guardians or legal representatives), another in July 1991 (setting up a Romanian Adoption Committee mandated to co-operate with the central authorities abroad responsible for action), and the third in July 1993 (Act No. 17/93 provides for a judicial procedure for declaring a child to have been abandoned and withdrawing parental authority; a child who has not been visited for six months is deemed to have been abandoned and therefore becomes adoptable). But the fact is that the legislation inherited from the communist era is still partly in force. For instance, Act No. 3/70, organising the abandonment and the "institutionalisation" of children in orphanages, is still fully in force, even though some of its provisions were repealed, prohibiting any national or international child adoption policy. The authorities acknowledge this situation of deadlock, admitting that it is impossible to issue regulations on the abandonment of children and therefore that current legislation does not allow adoption.
123. Obviously, the practical and effective implementation of these policies is in fact subject to improved economic conditions and a change in social attitudes. Many people express hostility to any reform of the orphanage system, because it provides employment for 100 000 individuals. According to the NGOs, a policy of "de-institutionalising" abandoned children and placing them in foster families, and the nationwide introduction of social assistance services and mother and child protection and family planning centres could provide new jobs.
124. Furthermore, Romania is facing a new phenomenon, namely homeless children living in the streets.
125. We might conclude by pointing out that Romania ratified the United Nations Convention on the Rights of the Child as long ago as 1990 and that it is also a Party to the Council of Europe's European Convention on the Adoption of Children and European Convention on the Legal Status of Children born out of Wedlock. On the other hand, it has not yet signed the European Convention on the Exercise of Children's Rights.
D. Romania's transfrontier relations and Friendship Treaty with Hungary
126. Romania has been conducting intensive diplomatic activities with her neighbouring countries, and has undertaken to negotiate and conclude a number of bilateral treaties. This is a positive factor for regional stability.
127. On 16 September 1996 Romania and Hungary concluded a Treaty of Understanding, Co-operation and Good Neighbourly Relations. According to all our contact persons, this Treaty has decisively and lastingly stabilised relations not only between the two countries in question but also among all the countries of the region. At the request of Hungary, the text comprises a reference to Assembly Recommendation 1201 (1993) on the rights of minorities. This provision initially prompted some controversy, which was settled by adding the following comment to the treaty: "the Recommendation does not concern collective rights and does not require special autonomous status to be granted on the basis of ethnic criteria".
128. A military co-operation agreement and an intergovernmental co-operation agreement on combating organised crime, drug-trafficking and terrorism were also concluded between Romania and Hungary on 19 February 1997. Moreover, several governmental agreements aimed at boosting economic relations and transport between the two countries were signed last March. The Romanian President, Mr Constantinescu and the Hungarian Prime Minister, Mr Gyula Horn, are planning to meet within the next few months in order to deepen co-operation and dialogue.
129. A Friendship Treaty is currently being negotiated with Ukraine, a text which the Romanian Minister of Foreign Affairs is hoping will be concluded in the very near future.
130. Lastly, all our contact persons stressed the country's determination to join NATO and the European Union, which are the new priority, as had previously been the case with accession to the Council of Europe. This is no doubt why Romania wishes to comply as soon as possible with all commitments it has made and to make all efforts to participate more actively in the work of the Council of Europe, without being obliged to dedicate some of them to the monitoring procedure. The vast majority of our contact persons, parliamentarians, ministers, NGOs, the media, etc, have noted the positive effects of the monitoring procedure and are therefore in favour of closing the procedure, as they consider the overall results to have been very positive for the country.
X. Conclusions and recommendations
131. These conclusions are the result of extended work carried out on several visits since 1994. The aim of the monitoring procedure is to secure concrete results in the field of parliamentary democracy, human rights, the rule of law and the protection of minorities.
132. We note that the Romanian authorities have made considerable progress in the honouring of the obligations and commitments and that the country has become a genuine pluralist democracy. Romania has come a long way in many different fields, and we cannot but welcome the speed with which it has ratified some of the Council of Europe's most important legal instruments, such as the European Convention on Human Rights with all its additional protocols, the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Outline Convention for the Protection of National Minorities.
133. During our last visit the Romanian authorities reaffirmed their intention to honour the last obligations incumbent upon them under the terms or Opinion No. 176 (1993) on the application by Romania for membership of the Council of Europe, and in particular to ratify the European Charter of Local Self-Government and the European Charter for Regional or Minority Languages.
134. Accordingly, we have decided to propose that the Assembly close the monitoring procedure as set out in Order 508 (1995) and leave it to the Monitoring Committee, in accordance with Resolution 1115 (1997), to appraise the reforms which will be carried out in the fields in which less progress has been made (revision of the Criminal Code, rights of national minorities, conditions of detention, the fate of abandoned children, employment legislation, action against intolerance and racism, restitution of immovable property, etc). If these conditions are not fulfilled within one year from the adoption of this resolution, or else if significant developments in other fields provide legitimate reasons for considering that Romania is not honouring her obligations and commitments, the Assembly will then reopen its monitoring procedure.
135. We recommend that the Committee of Ministers expedite, within the framework of the joint Council of Europe/European Commission co-operation programme, the supply of aid to Romania so that she can complete her reform of the prison system, and that the Council of Europe offer its assistance and advice in organising a public information and education campaign in favour of action against racism and intolerance, as well as support for the new policy of preventing abandonment of children.
APPENDIX I
OPINION No. 176 (1993)
on the application by Romania
for membership of the Council of Europe
adopted by the Parliamentary Assembly of the Council of Europe
on 28 September 1993 (46th Sitting).
_______
1. The Assembly has received a request for an opinion on the accession of Romania to the Council of Europe (Doc. 6548) from the Committee of Ministers in pursuance of Statutory Resolution (51) 30 A adopted by the Committee of Ministers on 3 May 1951.
2. It observes that democratic parliamentary elections were held in Romania on 27 September 1992 and that they were monitored by an ad hoc committee of the Assembly. Presidential elections were held on the same day (first ballot) and on 11 October 1992 (second ballot).
3. It appreciates the contribution made by Romania to the work of the Council of Europe both at parliamentary level since its parliament obtained special guest status on 1 February 1991 and at intergovernmental level since acceding to the European Cultural Convention on 19 December 1991.
4. The Assembly attaches great importance to the commitment expressed by the Romanian authorities to sign and to ratify speedily the European Convention on Human Rights and to recognise the right of individual petition to the European Commission of Human Rights (Article 25 of the Convention), as well as the compulsory jurisdiction of the European Court of Human Rights (Article 46 of the Convention).
5. It appreciates the written declaration of the Romanian authorities in which they commit themselves to basing their policy regarding the protection of minorities on the principles laid down in Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights, as well as the commitments laid down in the letter dated 22 June 1993 of Mr Melescanu, Minister of Foreign Affairs of Romania. It wishes the honouring of these commitments to be monitored in accordance with Assembly Order No. 488 (1993).
6. In accordance with commitments made by the Romanian Parliament and authorities, as well as the remarks and proposals contained in the reports of the committees concerned with the application for membership, the Assembly calls the attention of the Romanian authorities to the necessity of instituting separation of powers, guaranteeing the real independence of the media, and ensuring the conditions for the free functioning of local administrative bodies. The Assembly recommends that the Romanian authorities sign the European Charter on Local Government as soon as possible.
7. It expects that Romania will shortly change its legislation in such a way that:
i. Article 19 of the Act on the organisation of the judiciary, and possibly other legal provisions, will render it impossible in future for a minister to give instructions to judge;
ii. Article 200 of the Penal Code will no longer consider as a criminal offence homosexual acts in private between consenting adults.
8. The Assembly calls upon the Romanian Government to return property to the churches and to permit the establishment and operation of church schools with a particular view to teaching children of minority groups their mother tongue.
9. In accordance with commitments entered into by the Romanian authorities, the Assembly urges them to implement improvements in conditions of detention. It also calls upon the competent Romanian political leaders to reconsider in a positive manner
the issue of releasing those persons imprisoned on political or ethnic grounds.
10. The Assembly proposes that the Romanian authorities and the Romanian Parliament:
i. adopt and implement as soon as possible, in keeping with the commitments they have made and with Assembly Recommendation 1201, legislation on national minorities and education;
ii. make use of all means available to a constitutional state in order to combat racism and anti-Semitism, as well as all forms of nationalist and religious discrimination and incitement thereto.
11. The Assembly recommends that Romania sign the European Charter for Regional or Minority Languages as soon as possible.
12. The Assembly considers that Romania is able and willing:
i. to fulfil the provisions of Article 3 of the Statute which stipulates that “every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”;
ii. to collaborate sincerely and effectively in the realisation of the aim of the Council of Europe as specified in Chapter I of this Statute, thereby fulfilling the conditions for accession to the Council of Europe as laid down in Article 4 of the Statute.
13. The Assembly therefore recommends that the Committee of Ministers, at its next meeting:
i. invite Romania to become a member of the Council of Europe;
ii. allocate ten seats to Romania in the Parliamentary Assembly.
14. The Assembly also recommends that the Committee of Ministers encourage the Romanian authorities to continue the efforts they have started to make in order to implement the principles of the rule of law, the respect for minorities, the independence of the judiciary and to take 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 established by the Council of Europe.
APPENDIX II
PROGRAMME
of the Rapporteurs' visit to Romania
(5-8 March 1997)
Wednesday 5 March 1997
Arrival at Bucarest Airport in the afternoon
Accommodation at Hotel Intercontinental
Evening free
Thursday 6 March 1997
9 am Meeting with the Romanian Parliamentary Delegation to the Parliamentary Assembly of the Council of Europe (Senate)
Mr Vasile, Chairman of the Delegation
Mr Dumitrescu, member of the Democratic Party
Mr Frunda, member of the Hungarian democratic Union of Romania
Mr Lazarescu, member of the National Liberal Party
Mr Melescanu member of the Party for Social Democracy of Romania
Mr Steolea, member of the Party for Romanian National Unity
10 am Meeting with Mr Gyorgy TOKAY, Delegate Minister to the Prime Minister, Minister for the minorities (Victoria Palace)
11.30 am Meeting with MM. FRUNDA, MARKO and VERESTOY, representatives of the hungarian minority (Senate)
1 pm Working lunch hosted by the Romanian Parliamentary Delegation to the Parliamentary Assembly of the Council of Europe
3 pm Meeting with Mr Valeriu STOICA, Minister of Justice (ministry)
4.30 pm Meeting with representatives of the media (Senate)
Curierul National (The National Courrier)
Europa Libera (Free Europe)
International Press
Nationea (Nation)
Nine o'clock
Oglireda (The Mirror)
Romania Libera (Free Romania)
Ziua (The Day)
Radiodifuziunea Romana (The Romanian Radio station)
Pro FM
Televiziunea Romana (Romanian Television)
Antena 1
Pro TV
Tele 7 ABC
Mediafax
Rompres
6 pm Meeting with Mr Virgil PETRESCU, Minister of Education (ministry)
8 pm Meeting with the Ambassadors of Council of Europe's member States in Bucarest (Embassy of Finland)
Friday 7 March 1997
9 am Meeting with representatives of NGO working in the field of human rights' protection (Senate)
Asociata "Salvati copiii" (Association "Save the Children")
Societatea de educatie sexuala si contraceptiva (Society for sexual and contraceptive education)
Centras
Asociatia pentru apararea drepturilor omului-comitetul Helsinki (Association for human rights - Helsinki Comity)
Liga pentru apararea drepturilor omului - LADO (League of human rights)
Liga pro Europa (League for Europe)
Federatia Romilor (Roms' Federation)
Asociatia studentilor Romi (Association of roms' students)
Asociatia Fostilor Detiniti Politici (Association of former political detainees)
10.30 am Audience with Mr Petre ROMAN, Speaker of the Senate (Senate)
12 am Meeting with Mr LUPU, Vice-Chairman of the House of Deputies (Parliament's Palace)
1 pm Meeting and lunch hosted by Mr Adrian SEVERIN, Minister of Foreign Affairs (ministry)
3 pm Audience with Mr Emil CONSTANTINESCU, President of the Republic of Romania (Cotroceni Palace)
4 pm Press conference (Senate)
6 pm Departure of Mrs Durrieu and Mr Schwimmer
Saturday 8 March 1997
2 pm Departure of Mr Jansson
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Order No. 508 (1995)
Draft resolution and draft recommendation adopted by the committee on 7 April 1997 with 30 votes in favour, 1 vote against and 1 abstention
Members of the Committee: Mr Hagĺrd (Chairperson), MM Schwimmer, Bindig, (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Alexander (alternate: Smith), Aushev, Bartumeu Cassany, Berti, Besostri, Clerfayt, Columberg, Contestabile, Deasy, Dees, Demetriou, Deniau, Mrs Err, M Fogaš, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fydorov, Mrs Gelderblom-Lankhout, MM Guenov, Gürel, Mrs Holand, Mr Hunault, Ms Jäätteenmäki (alternate: M. Jansson), MM Jaskiernia, Jeambrun, Kelam, Kirkhill, Koschyk, Kostytsky, Kovačević, Loutfi, Mrs Lundholt, MM. Magnusson, de Marco, Martins, Mészáros, Micheloyiannis, Mosetic, Nastase, Németh, Mrs Noveská, MM Oleksy, Pantelejevs, Patnick, Pollo, Polydoras, Poppe, Prokop, Rhinow, Robles Fraga (alternate: Lopez Henares), Rodeghiero (alternate: Speroni), Solé Tura, Solonari, Stačiokas, Symonenko, Tahiri, Vishnyakov, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin, Ms Chatzivassiliou, Ms Kleinsorge and Ms Clamer
1 1 By the Committee on Legal Affairs and Human Rights.
2 2 This draft report was prepared in close consultation with Mr Schwimmer (Austria, EPP), Rapporteur for opinion of the Political Affairs Committee, and Mrs Durrieu, (France, SOC) Rapporteur for opinion of the Committee on Relations with European Non-Member Countries.
3 3 Reproduced in Appendix I.
4 4 An initial report on the honouring of obligations and commitments by Romania was drawn up by Mr König and myself in May 1994 following our visit to the country from 27 to 30 March 1994 (joint memorandum AS/Jur (1994) 23 - AS/Pol (1994) 18).
5 5 The programme of the visit is given in Appendix II.
6 6 Memorandum AS/Jur (1996) 19, available from the Secretariat on request.
7 7 See document AS/Jur (1996) 31.
8 8 See document AS/Jur (1996) 19 Add.
9 9 This amendment was furthermore prompted by a decision which the Romanian Constitutional Court delivered on 15 July 1994, confirmed at appeal in January 1995 (Judgment 81, published in Official Gazette No. 14/15 of January 1995), declaring that the first paragraph of Article 200 in its application to homosexual acts committed in private by consenting adults was unconstitutional, provided that the relations in question did not occur in public or cause public scandal. As the Constitutional Court's judgments are binding and immediately enforceable, nobody is supposed having been prosecuted or convicted under Article 200, paragraph 1 of the Penal Code since.
10 10 Communique of March 1997, AI Index EUR 39/01/97.
11 11 Article 59 para. 2 of the Constitution provides that "Organisations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one Deputy seat each (...). Citizens of a national minority are entitled to be represented by one organisation only".
12 12 Mrs Durrieu, Rapporteur of the Committee on Relations with European Non-Member Countries, points out that there is no birth control policy in Romania, even though contraception and abortion are not banned under current legislation. However, contraception is prohibitively expensive. The authorities are therefore also trying a third approach, namely setting up a family planning network.