Document - Romania: Open letter from Amnesty International to the President, the Government and the Members of the Parliament


Open letter from Amnesty International to the President, the Government and the Members of the Parliament

November 1996

AI Index: EUR 39/22/96

Distr: SC/CO/GR

Following the recently held presidential and parliamentary elections in Romania, I am writing to you as Secretary General of Amnesty International, a worldwide voluntary movement that works to prevent some of the gravest violations by governments of people's fundamental human rights. At this vital juncture for Romania's future, we urge you to commit yourselves personally and the state authorities you represent publicly, to strengthening human rights protection and to promoting respect for the rights of all in Romania, regardless of race, ethnic background, gender, political beliefs and other individual differences. Amnesty International hopes that human rights concerns will be at the forefront of the policies of the new Romanian authorities.

Amnesty International continues to receive reports of human rights violations in Romania including the imprisonment of prisoners of conscience, torture and ill-treatment of detainees, which in some cases has resulted in deaths, as well as police shootings in disputed circumstances. The following is a summary of Amnesty Internationals major concerns in Romania.

Legislation leading to violations of human rights

In the past the Romanian authorities have on numerous occasions assured Amnesty International of their commitment fully to observe and ensure the respect of human rights. However, the Romanian Government has often failed to reflect this commitment in practice, particularly in the legislative field. In October 1993, when Romania became a member of the Council of Europe, the Councils Parliamentary Assembly advised Romania to bring several aspects of domestic law and practice into line with the European Convention for the Protection of Human Rights and Fundamental Freedoms. For example Romania was advised to amend its domestic legislation, in order to ensure that government ministers could no longer instruct judges. However, the Romanian Parliament has still not amended the relevant provisions of Article 19 of the Law on the Organization of the Judiciary.

The parliamentary debate on the reform of the Penal Code was another example of the gap between the Romanian Governments public commitment to uphold human rights and the progress towards that goal. The Draft Law on Amendments to the Penal Code, which was presented to parliament at the beginning of 1996, was new only in name

[The same text, together with amendments to the penal procedure, had been presented previously to the parliament under the title Draft Amendments to the Penal Code and the Penal Procedure Code.]. Its provisions had been rejected twice by the parliament and were therefore constitutionally inadmissible for deliberations in the same form.[According to Article 75 of the Romanian Constitution a second rejection of a draft law is final.] One of Romania's commitments to the Council of Europe was to amend the Penal Code so that homosexual acts in private between consenting adults were no longer penalized. The initial proposal to amend Article 200, which had been criticized by local and international human rights organizations for its vague and ambiguous wording, was adopted by the Senate. This proposal was made even more restrictive on 10 September 1996 when the newly appointed Minister of Justice amended it so that it retained a complete prohibition on all homosexual relations

[This amendment was even at variance with the Romanian Constitutional Court Decision on Article 200, paragraph 1, which came into force in January 1995.]. On 1 October 1996 the Romanian Parliament adopted the initial amendment to Article 200. This operation was apparently aimed at assuring international public opinion that Romania had fully complied with all requirements, including those set out in the resolution of the European Parliament of 19 September, to decriminalize consensual homosexual relations in private. The final vote on this law was another travesty of democratic procedures. The official count of the members of parliament who were present in the hall at the time was taken at the beginning of the session. Following the vote on the ratification of the Romanian-Hungarian treaty, the majority of the members reportedly left the hall, yet they were registered as having voted in favour of the Draft Law on Amendments to the Penal Code.

The following are Amnesty Internationals outstanding concerns on the amended Penal Code:

- Article 200, paragraph 1, of the amended Penal Code prohibits homosexual relations between consenting adults "if the act was committed in public or has produced public scandal". Paragraph 5 of the same law makes it an offence, punishable by sentence of one to five years' imprisonment "to entice or seduce a person to practise same sex acts, as well as to form propaganda associations, or to engage in other forms of proselytizing with the same aim." Amnesty International is concerned that these provisions could not only lead to the continued imprisonment of adults solely for engaging in consensual homosexual relations in private, but that they could also lead to the imprisonment of individuals solely for having exercised their rights to freedom of expression and to freedom of assembly and association.

- Several other amendments to the Penal Code also impose excessive restrictions on the right to freedom of expression. Article 168prohibits "communication or dissemination, by any possible means, of false news, facts or information or forged documents, if committed with the intent to impair the security of the Romanian state or its international relations". Article 236considers a criminal offence "public acts committed with the obvious intention to defame the state or a nation". Amnesty International considers that the formulation of these provisions is vague and ambiguous and that their implementation could result in the prosecution of persons solely for having exercised their universally recognized right to freedom of expression.

-Certain provisions of Article 238, paragraph 1, and Article 239, paragraph 1, which criminalize defamation of public officials, could also lead to contravention of the right to freedom of expression. This could particularly affect the right of journalists in Romania to impart information and ideas without interference by public authority, but also the right of other Romanians to receive such information and ideas. A public official who considers him/herself defamed can resort to legal actions which anyone, regardless of status or function, can resort to in order to protect his or her reputation. Such actions, however, should not be used to stifle criticism of state authorities or to intimidate those who voice legitimate concerns about the actions or practices of state authorities.

Amnesty International urges the newly appointed Romanian Government to reconsider these amendments to the Penal Code and to initiate their legislative revision in order to ensure that they are consistent with Romania's legal obligations under international human rights treaties.

Certain provisions ofLaw number 46/1996Concerning the Preparation of the Population for Defence, promulgated in June 1996, are at variance with internationally recognized principles on conscientious objection to military service. This law provides for an alternative service only for those individuals who on religious grounds refuse to perform armed military service. The alternative service is envisaged to last 24 months, twice the length of ordinary military service. Furthermore, this law has no specific provisions regarding procedures for exercising this right, or for the organization and implementation of alternative service. Apparently this matter is to be regulated by a governmental decision which has not been published to date.

Amnesty International believes that conscientious objection to military service arises not only from religious but also from ethical, moral, humanitarian, philosophical, political or other similar motives. The length of alternative civilian service should not be such as to constitute a punishment for a person's conscientiously held convictions. Amnesty International considers the length of alternative service prescribed by Law number 46/1996 to be punitive. The organization considers conscientious objectors who are denied the right to carry out an appropriate alternative service and who are imprisoned as a consequence, to be prisoners of conscience. Amnesty International urges the Romanian Government to revise Law number 46/1996 and to ensure that it is not at variance with internationally recognized standards.

Imprisonment of Prisoners of Conscience

At least one person is currently imprisoned solely because of his homosexuality. According to the information supplied by the General Directorate of Penitentiaries, a 42-year-old prisoner in Poarta Alba penitentiary,[ His identity has been communicated by Amnesty International to the Romanian authorities.] was arrested in November 1995. He was subsequently sentenced by the court in Constanta to two years' imprisonment "for repeatedly engaging in sexual relations with another man". Amnesty International considers him to be a prisoner of conscience and has called for his immediate release. The organization has learned that a petition for his conditional release has been sent by the prison authorities to the local court and that he may soon be set free.[ Most first time offenders are conditionally released after serving half of their prison sentence] Amnesty International urges the Romanian Government to initiate a judicial review of this case.

On 25 October 1996 a municipal court in Bucharest sentenced Sorin Rosca Stanescu and Tana Ardeleanu to one year's and 14 months' imprisonment respectively, under Article 238, paragraph 1, of the Penal Code for committing an offence against authority. They were convicted of defaming the President of Romania by publishing on 9 May 1995 in Ziua, a daily newspaper, an article entitled "A Murderer Leads Romania" as well as several articles claiming that the President of Romania is a KGB agent. Sorin Rosca Stanescu and Tana Ardeleanu are free pending an appeal. Should they be imprisoned, Amnesty International would consider them to be prisoners of conscience and call for their release. Article 238, paragraph 1, under which the two journalists were sentenced, is retained in the same form in the recently amended Penal Code.

Until the Penal Code is revised and made consistent with international human rights standards, Amnesty International urges the Romanian authorities to suspend prosecutions of all individuals who might be charged under Article 168, Article 200, paragraphs 1 and 5,Article 236, Article 238, paragraph 1 and Article 239, paragraph 1.

Torture and ill-treatment by police officers

In 1996 Amnesty International brought to the attention of the Romanian authorities new cases of reported beatings and ill-treatment by police officers. These cases support Amnesty Internationals findings contained in its report Romania: broken commitments to human rights, published in May 1995,and underline the urgent need to implement the organizations recommendations regarding investigations of allegations of torture and other ill-treatment by police officers.

In October 1996 Amnesty International published a report,Romania: Ill-treatment of minors: Gheorghe Notar Jr, Ioan Ötvös and Rupi Stoica, presenting, inter alia, an analysis of certain provisions of Law number 3/1970Concerning the Protection Regime of Certain Categories of Minors. The enforcement of this law allows police to keep minors suspected of a criminal offence in custody for up to 30 days. It does not define the procedures to be followed by police officers who take minors into custody; places no obligations on officers to inform parents or guardians of this measure; imposes no restrictions on the police to question minors held in such custody. Nor do parents or guardians have the right to an effective appeal of the police decision to detain a minor. A draft to replace this law was adopted by the Romanian Government in December 1995. The proposed provisions concerning minors suspected of committing a criminal offence were similar to the law in force. However, it had not been discussed by the Romanian Parliament. Amnesty International urges the Romanian Government to revise Law number 3/1970 and implement recommendations made in its report.

Amnesty International welcomes the responsiveness to its concerns of the General Prosecutor of Romania. Military prosecutors are investigating most of the cases which the organization has brought to their attention. Increasingly, full reports of the investigations and medical documents such as autopsy reports have been made available to Amnesty International. However, existing legal procedures and the organization of the prosecutors and the police force frequently prolong the investigations. Often the initial investigation carried out by the local military prosecutor is reviewed in Bucharest and returned for additional verification of facts. This results in less effective gathering of evidence and leaves victims and witnesses more vulnerable to harassment by police officers responsible for human rights violations, few of whom are suspended from work during the investigations.

Reports of ill-treatment of Roma, particularly in police raids organized apparently to apprehend criminal suspects, have also been received. Increasingly Roma victims who have complained to Amnesty International have been subjected to intimidation and other forms of harassment by law enforcement officials conducting investigations into their complaints. Amnesty International is concerned not only that such allegations indicate further violations of human rights, but that the impunity of law enforcement officers in such cases demonstrates official endorsement of racist attitudes and acts.

In September 1995 the European Committee for the Prevention of Torture (CPT) visited Romania and prepared a report which has been sent to the Romanian authorities for a response. Amnesty International urges the Romanian Government to make public this report and to promptly implement any recommendations made therein by the CPT.

Police shootings in disputed circumstances

Amnesty International is concerned about the increasing number of incidents in which police have shot at unarmed people who were not suspected of particularly serious crimes and who did not endanger the lives of the police officers involved or anyone else. In 1995 and 1996 Amnesty International urged the Romanian authorities to investigate a number of such incidents, some of which have resulted in death. However, Romanian prosecutors have initiated criminal proceedings in only one case. All other complaints against officers who had used their guns in order to apprehend an unarmed suspect have apparently been dismissed. In two cases Amnesty International has been informed that such police conduct was considered to be legal. According to the provisions of Article 19, letter d, of the Law number 26/1994on the Organization and Functioning of the Romanian Police, an officer is permitted to use firearms "to apprehend a suspect who is caught in the act and attempts to escape without obeying an order to stay at the scene of the crime". Amnesty International is concerned that this law is at variance with principles 4 and 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and urges the Romanian Government to initiate its legislative revision.

Refugees and Asylum-Seekers

Although Romania is a party to the 1951 Convention relating to the Status of Refugees, Law number 15/1996 Concerning the Status and Regime of Refugees in Romania, which was promulgated in April 1996, does not comply

with international standards. This assessment is supported by the office of the United Nations High Commissioner for Refugees in Romania. Amnesty International has documented recent cases of the refoulementor threatened refoulementof asylum-seekers. In March 1996 Hussain Kamil, an asylum-seeker who had been imprisoned for his political activity in Syria from 1987 to 1994, and who had been considered a prisoner of conscience by Amnesty International, was forcibly returned from Otopeni Airport, where he had been detained, to Syria where he was immediately arrested and reportedly tortured.

Amnesty International calls on the Romanian authorities to respect their obligation under the fundamental principle ofnon-refoulementas provided for in Article 33 of the 1951 Convention, which prohibits any person being returned to a country where he or she would be at risk of serious human rights violations. To this end, Amnesty International calls upon the Romanian authorities to abolish the 10-day time limit for applying for asylumin Article 6 of Law number 15/1996, and to ensure that minimum procedural standards for refugee determination are introduced, such as ensuring that asylum-seekers have their applications heard individually, with adequate interpretation facilities, and that the decision-makers are properly trained in international refugee and human rights law. Furthermore, Amnesty International urges the Romanian authorities to end the practice of prolonged detention of asylum-seekers and summary deportations from Otopeni Airport and that legislation dealing with border entry is amended to conform to international standards.


Finally, Amnesty International also urges the Romanian authorities to review and implement extensive recommendations made by the organization in its report Romania: Broken commitments to human rights. These recommendations concern legislative and judicial reforms, the investigation of allegations of torture and other ill-treatment by law enforcement officers as well as the effective protection of Roma from racist violence.

Amnesty International hopes that the new President, Government and Parliament of Romania will give priority to the concerns expressed in this letter and will actively support policies which protect and promote human rights.

Yours sincerely,

Pierre Sané

Secretary General

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