24 April 2015
The Committee against Torture today concluded its consideration of the second periodic report of Romania on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Ioana Morar, Acting Director General, National Penitentiary Administration, Ministry of Justice of Romania, said that since it had ratified the Convention, Romania had always sought to ensure that its legislation and policies were in conformity with the Convention and its other international obligations, including as a European Union Member State. Following the ratification of the Optional Protocol to the United Nations Convention against Torture, Romania had created its own national preventative mechanism to prevent torture. Ms. Morar outlined legislative reform and progress made in strengthening international judicial cooperation, especially on extradition, as well as the protection of the rights of migrants and asylum seekers. The reform process of the last 20 years in Romania had led to significant delays in presenting reports to United Nations treaty bodies, noted Ms. Morar, but said Romania was committed to the promotion and protection of human rights and was ready to cooperate with the Committee to identify the best models and solutions to effectively realize those rights.
During the dialogue Committee Experts said overcrowding in prisons remained a very serious issue with the number of prisoners far exceeding the official capacity, and many prisons in need of renovation, highlighting Gherla Prison whose infrastructure dated back to 1540. Experts asked about reports of the ill-treatment of prisoners by special armed intervention units in maximum-security prisons who wore balaclava masks as well as allegations of torture or ill-treatment in police custody. The actions of the Romanian coastguard in enforcing ‘rescue at sea’ operations for migrants on the Black Sea were commended by Experts, and procedures for asylum seekers discussed. Experts asked about reports of secret detention facilities in Romania used for the purposes of extraordinary rendition. Trafficking of children for sexual exploitation, including in private houses in Bucharest, was raised, as was the situation of children in institutions and the prosecution of crimes committed during the communist regime in Romania.
Claudio Grossman, Committee Chairperson, in closing remarks, noted that the delegation could send any outstanding answers in writing to the Committee by close of business on Monday, 27 April. He thanked the delegation for the interactive dialogue and said the Committee would adopt and publicize its concluding recommendations on the report by the end of the session.
Ms. Morar thanked the Committee and said the delegation had sought to provide accurate answers and not avoid challenging subjects. Noting its cooperation with the Subcommittee on the Prevention of Torture, Ms. Morar said Romania looked forward to continuing its cooperation to fully implement the Convention.
The delegation of Romania included representatives of the National Penitentiary Administration, Ministry of Justice, Ministry of Domestic Affairs, Office of the Ombudsman and the Permanent Mission of Romania to the United Nations Office at Geneva.
The Committee will next meet in public at 10 a.m. on Monday, 27 April to begin its review of the combined sixth and seventh periodic reports of Luxembourg (CAT/C/LUX/6-7).
The second periodic report of Romania can be read here: CAT/C/ROU/2.
Presentation of the Report
IOANA MORAR, Acting Director General, National Penitentiary Administration, Ministry of Justice of Romania, said although it had been a long time since its initial report, Romania had always sought since its ratification of the Convention to ensure that its legislation and policies were in conformity with the Convention against Torture and its other international obligations. Romania had ratified the European Convention of Human Rights and its additional Protocols and the European Convention for the Prevention of Torture and its additional Protocols. The European Committee for the Prevention of Torture had been visiting Romania since 1995, and all of its subsequent reports had been published. The most recent visit was in 2014. Following the ratification of the Optional Protocol to the United Nations Convention against Torture, Romania had created its own national preventative mechanism to prevent torture, which since 2014 functioned within the institution of the Peoples’ Advocate, the Romanian Ombudsman.
Since becoming a Member State of the European Union in 2007, Romania had undertaken all steps to ensure that its national legislation complied with the acquis of the European Union while also developing the framework of the implementation of the Convention against Torture. Concerning legislative reform, the most important steps were the revision of the constitution of Romania, reform of the judiciary and penitentiary system, and the adoption of special legislation on specific aspects of fundamental human rights, including access to legal aid or compensation for the infringement of rights. New legislation to protect victims of trafficking in persons and domestic violence had also been adopted. The most important results came in 2014 with the entry into force of seven new pieces of penal legislation, including the Penal Code, the Criminal Procedure Code, and acts on the execution of punishment and on the probation system.
Significant progress had been made in strengthening international judicial cooperation, especially on criminal matters and extradition, said Ms. Morar. Policies to ensure the protection of migrants and asylum seekers and prevent their exploitation had also been strengthened. The reform process undertaken by Romania for the last 20 years had led to significant delays in presenting reports to United Nations treaty bodies, but in 2014 Romania presented its report under the International Covenant on Economic, Social and Cultural Rights, and shortly after its presentation to the Committee against Torture it would present its report on the implementation of the International Covenant on Civil and Political Rights. Romania was committed to the promotion and protection of human rights and was ready to cooperate with the Committee to identify the best models and solutions to effectively realize those rights, Ms. Morar concluded.
Questions from the Experts
The delegation of Romania was welcomed by a Committee Expert who asked whether there had been any direct application of the Convention by the courts, and in particular of Article 1 on the definition of torture. In its replies to the Committee’s list of issues, the State party had confirmed that its sanctions for the crime of torture had not changed, he noted. The Expert asked about the work of the National Mechanism for the Preventative of Torture, which was located within the Office of the Ombudsman, and whether it had carried out any visits to penitentiary institutions and released any subsequent findings. Furthermore, there did not appear to be an independent mechanism to receive and investigate complaints against the police.
Regarding legal limits on custodial periods, the Expert asked if it was correct that police custody could not exceed 24 hours and that pre-trial detention could only be ordered by a judge, was limited to 30 days with the possibility of extension, and could not exceed a period of 180 days. The Committee had received reports that persons were sometimes held in police custody for up to one month, said the Expert, commenting that everyone agreed that the risk of torture was much higher for people held in police establishments.
Concerning conditions in police custody, the Expert cited reports that sometimes police remained close while a detainee met with his or her lawyer, which should be a private conversation. There were concerning reports about cases of juveniles being interviewed without the presence of a lawyer. Detainees should have access to a doctor from the very beginning of the deprivation of liberty, as well as other legal safeguards. He noted that a project funded by Norway had paid for the renovation of some police stations, but said the conditions in many large police stations still had much to be desired, with poor ventilation, heating, facilities and so on. That was important given that in practice people often had to spend up to a month in police cells.
Overcrowding in prisons remained a very serious issue, said an Expert. The number of people in prison far exceeded the official capacity of Romania’s prisons. Despite a recent drop in the number of detainees, overcrowding was still a problem. How much living space did prisoners have on average, he asked? What alternative sanctions to imprisonment for persons found guilty of lesser crimes were available? There was an increase in inmates between 2008 and 2013, and the report listed reasons for that, one of which was rather surprising, said the Expert. The impression was that a collective pardon – or amnesty – had increased the prison population. Did the amnesty ever cover victims of torture, he asked.
Preventative detention was discussed by an Expert who asked who decided a person needed to be detained for preventative periods. There was a procedural handicap in that police actually had 72 hours to bring a detainee before a judge, rather than the 24 hours cited, for ‘administrative reasons’. A judge could then grant an extra 30 days. It was complex and time-consuming to file an appeal. The rule in a democratic system of Government was ‘bail’ before trial and not ‘jail’ but Romania had reversed that rule and that was a systematic flaw, commented the Expert.
In some prisons, especially those with the so-called ‘special intervention units’, there had been numerous allegations of the ill-treatment of prisoners, mainly conducted by officers wearing balaclava masks and from the special intervention units. How many investigations had been launched in relation to the ill-treatment of prisoners and how many staff had been sanctioned? Inter-prisoner violence was another problem and was related to the shortage of prison staff, said the Expert.
The provision of health-care in prisons and health-screening by doctors, both in police cells and penitentiary institutions, were reported to often take place in front of the prison guards. Could the delegation please comment on that? It was of utmost importance that screening of prisoners for injuries was done confidentially and not in front of the guards. Was it correct that a prison doctor was asked to approve that a prisoner – his patient – was fit for a punishment? If so that could badly undermine the patient-doctor relationship, said the Expert.
An acute issue related to prisoners in maximum-security prisons serving the most severe regimes, which were known as ‘RMS’. He noted the new 2013 law on Custodial Sentences which meant the RMS regime could apply to prisoners serving life sentences, sentences of more than 30 years or prisoners who posed a risk to the establishment. Prisoners serving RMS regimes had fewer benefits than other prisoners and received less visits.
Mental health care in prisons was also an acute problem, said an Expert, noting that there were no permanent psychiatrists posted in any prisons across the country. He asked what the Government was doing to address the mental health needs of prisoners.
Regarding conditions in places of detention, an Expert spoke about reports of poor conditions in places of detention which she referred to as ‘dungeons’. Another Expert asked whether the Government intended to improve living conditions in ‘Gherla Prison’ which was one of the oldest prisons in Romania and had infrastructure which dated back to 1540, and had been a maximum-security prison since 1989. What concrete measures had been taken to achieve the Government’s strategic plan to improve the living conditions of prisoners and to achieve the minimum accommodation standards in all places of detention?
An Expert asked the authorities to send a strong message of zero-tolerance to law enforcement officials, asking them not to use excessive force because persons deprived of their liberty were especially vulnerable to ill-treatment. Training for law enforcement officials had to be strengthened to be effective and efficient.
Unaccompanied and abandoned children faced discrimination and were exceptionally vulnerable, as were child victims of trafficking. They did not receive assistance and were often questioned without the presence of a legal representative. They may not even have a legal identity due to a lack of birth registration.
Trafficking of children was raised by an Expert who noted that the United Nations Special Rapporteur on trafficking in persons had raised deep concerns about reports of ‘domestic trafficking’ in Romania. The Special Rapporteur had said there were houses in Bucharest which held children locked in basements and used them for sexual exploitation, and regularly changed the houses they kept them in so the authorities could not find them. Could the delegation please comment?
The institutionalization of children with mental health issues and disabilities was raised by an Expert. He said although there had been a decrease, the Committee had been informed that there was a disproportionate number of Roma children being held in residential institutions. Although children with disabilities had been relocated in recent years from big institutions to smaller institutions, there were still very concerning reports of their physical and emotional neglect and the use of corporal punishment and unlawful restraints. The Committee had received alarming reports about the conditions in those institutions, he said, asking how both private and State-run facilities were inspected. Children had no effective avenue to lodge complaints. What was being done to reintegrate children into the community and into families and to avoid keeping them in institutions?
People were kept in mental health care institutions and when it came to treatment their consent was not sought. They were described as ‘voluntary patients’ but many reports stated that in practice voluntary patients were not allowed to leave the institution. The use of mechanical restraints in such institutions was also raised by an Expert who asked about records of such use and monitoring of mental health care institutions.
Non-refoulement and extradition proceedings were raised by an Expert who asked whether the Government of Romania had rejected, for any reason, any request for extradition by a third State for an individual suspected of having committed an offence of torture and thus initiated its own prosecution as a response. Had any cases of refoulement, extradition and expulsion subject to the receipt of diplomatic assurances occurred since the consideration of the last report, he asked.
Did Romania have any agreements with other States related to the return of asylum seekers, asked the Expert? The delegation was also asked about periods of administrative detention for irregular migrants, asylum seekers and refugees.
The State party was commended for the actions of the Romanian coastguard, who had developed and enforced ‘rescue at sea’ operations. The Expert said at a time when hundreds of people were dying at sea this was something of great value worth highlighting. He also commended Romania for releasing from interim detention any person who launched an asylum claim, and did not simply treat asylum seekers as criminals, which represented best practice.
The Committee had received information about reports of rendition flights through Romania and an inadequate response from the authorities, said an Expert. He raised reports, in the media and other sources, that agencies of the United States may have had secret detention centres in Romania, including prisoner transit centres, between the years of 2003 and 2006. The former head of the Romanian Intelligence Agency had reportedly said the same. The official position seemed to be that Romania had explicitly taken no interest in knowing what the United States Central Intelligence Agency (CIA) did on its bases in Romania. The Expert asked if the delegation could comment on those issues.
There were reports that the Roma community and other minority populations were excluded from certain services and support systems in Romania, said an Expert, asking the delegation to comment. Was anything being done to address the anti-Roma attitudes that prevailed across the country? Were there any Roma persons within the police force, the delegation was asked.
Concerning judicial reform, an Expert said there were problems regarding the lack of judges and magistrates and the huge case load that caused delays; there may not be the will to work quickly as seen in other countries, commented the Expert.
Did the Presidential Commission for the Study of the Communist Dictatorship in Romania have within its mandate the identification and exposure of individual perpetrators of human rights violations, including torture? In the report, information on investigations was provided which included references to genocide, executions and murder but very few references to acts of torture. An Expert asked whether any charges had been brought for torture, and expressed concern about reports of impunity.
The delegation was welcomed by an Expert who said it was encouraging to see it led by a woman, in addition to seeing that the Permanent Representative of Romania to the United Nations Office at Geneva was also a woman. She asked whether the delegation could provide any gender-disaggregated data on the prison populations in Romania; how were the needs of women detainees and prisoners addressed?
What was done to address different forms of violence against women, were forms of mental violence and sexual violence, particularly in the family setting, also prohibited? The Convention’s definition of torture was not limited to physical acts, she recalled.
Response by the Delegation
The Ombudsman was the only national institution designated to act as a national preventative mechanism for torture in Romania, confirmed a delegate. The staff of the national preventative mechanism consisted of 23 people, including the Deputy Ombudsman and 11 employees at the headquarters and 12 employees at the three regional centres, including legal advisors and specialists. The national preventative mechanism, being a department within the institution of the Ombudsman, did not have a separate budget but was more than adequately funded, said the delegate.
The national preventative mechanism carried out monitoring of persons in detention for signs of torture and other forms of inhumane or degrading punishment, and made both announced and unannounced visits to places of detention. The Ombudsman made recommendations following visits, commented on legislation and drafted policy proposals. On 20 April 2015 the national preventative mechanism made an experimental visit to the Rahova Penitentiary in order to introduce new members of the mechanism and other specialist collaborators to its working methods and to draw up reports about the situation in the penitentiary.
The definition of a place of detention in Romania’s law was any place where persons were deprived of their liberty under a decision of an authority, upon its request, or with its explicit or tacit consent, said a delegate. The national preventative mechanism could intervene in private custodial settings, including private residential centres for children.
Other types of detention facility visited by the mechanism included psychiatric hospitals, detention and remand centres, detention centres for foreigners, reception centres for asylum seekers, educational and juvenile detention centres, homes for the elderly and residential homes for juveniles.
The national preventative mechanism was independent, as was the Ombudsman, a delegate stressed, and in accordance with the law members of teams making visits were also independent from any public authority. Visiting teams consisted of at least one physician and a representative of a non-governmental organization. The Ombudsman organized meetings with representatives of the professional associations and had concluded cooperation agreements with the Romanian College of Physicians, Romanian College of Psychiatrists, National College of Social Workers and the Romanian Sociologists Association. It had also concluded cooperation agreements with several non-governmental organizations, including the Romanian Association for Transparency, Romanian Group for Human Rights and the Romanian National Council for Refugees.
Regarding children in institutions, a delegate said the replacement of the old child-protection sector was a Government priority, and following major reform in the 1990s some 300 ‘traditional institutions’ were closed down, the majority of which were for children with disabilities. Instead the Government was promoting reintegration into families or alternative family-type hostels or foster care. Romanian legislation expressly prohibited the placing of children under three years of age into institutions. The process of the deinstitutionalization of children affected was being sped up and would be completed by 2020.
The National Authority for Child Protection was responsible for upholding the rights of children, but it had no statistics on ethnic groups in order to ensure equal treatment without any discrimination on the grounds of ethnicity, language and so on. As of 31 December 2014 there were 58,178 children in the State Protection System. There were 21,540 children living in residential institutions, of whom 17,453 children lived in the 1,153 State-run institutions and 7,235 of those children had a disability. Only 83 of the institutions were classified as ‘traditional facilities’ such as placement centres, and those would be closed down by 2020. There were 4,087 children living in privately-run institutions, of whom 180 had a disability. Finally, there were 36,000 children placed with families, such as foster homes or child-minders, said the delegate.
Concerning adults interred in psychiatric institutions, a delegate explained that a person could be placed in one with a judicial ruling or the decision of a psychiatric doctor approved by a medical commission of three physicians. Both the ruling and decision could be appealed by the individual concerned or their representative.
Responding to the question about allegations that Romania was used for extraordinary rendition by the United States or anyone else, a delegate strongly emphasized that Romania was a State party to the Convention against Torture and endorsed the position of the European Union in that respect. With regard to secret detention centres, the delegate said an investigation by Romania’s Senate and Parliament concluded that there was no evidence or proof that there were such detention centres used by a foreign authority to hold or transfer detainees suspected of terrorism. The authorities continued to try to shed light on those allegations.
A delegate described the work of the Government Agency for the Roma which coordinated Government programmes aimed to improve the situation of the Roma community. Every year the police academy and police training schools reserved a quota for members of national minorities which included the Roma ethnic group.
Responding to the question about the detention of irregular migrants, a delegate said a third country national may be detained if they presented a risk of absconding, if they avoided or hampered the return or removal process, or if they were the subject of an expulsion decision. A third country national could only be held in custody for six months, with the possibility of an extension by a court decision following a request by the General Inspectorate on Immigration.
Providing statistics on cases of migrants who had been declared ‘undesirable persons’ in Romania between 2010 to 2014, a delegate informed the Committee that there were 31 cases and the placement in centres for such foreigners did not exceed, on average, a period of three months.
Concerning the situation of the migrants who were rescued by the Romanian Coast Guard on the Black Sea, a delegate said from August 2013 to the present date, 503 persons had been rescued. Some applied for protection on the day of rescue which led to their placement in open reception centres for asylum seekers under the administration of the General Inspectorate for Immigration. Migrants who did not apply for asylum on the day of their rescue were taken into public custody and placed in closed centres. After a few days of their placement in those closed centres they applied for asylum and were then transferred to the open reception centre facility.
The definition of torture, provided in Article 282 of the Criminal Code, was in full conformity with the definition of the United Nations Convention against Torture, as well as other international instruments, confirmed a delegate. The same sanctions applied, although the sanction of life imprisonment for an act of torture which led to the death of a person had been eliminated and replaced with a maximum sanction of 25 years imprisonment.
Regarding the punishment of crimes committed during the communist regime, a delegate said according to the new Criminal Code the limitation of liability did not remove liability in cases of genocide, crimes against humanity and war crimes, irrespective of the date they were committed; and murder, aggravated murder and crimes committed with intent that led to the death of the victim. Thus, acts of torture committed during the communist regime could still be judged if they were classified under those offences, said the delegate. For example, there was a case of crimes against humanity currently pending at the Bucharest Court of Appeal, in the procedural stage, she noted. The delegate provided details of the 35 individual cases and the current status of the judicial proceedings. She said that criminal trials were filed against six of the 25 persons. One case was under appeal, one was under criminal investigation and three persons had deceased. Of the other 29 cases, four persons had deceased, 12 had been dropped for a lack of evidence and 13 investigations were ongoing.
The Government of Romania agreed that in a mature democracy bail should be the rule, not jail. However, that did not mean that all detention was irrational or unlawful, commented the delegate, adding that pre-trial detention played an important role in a balanced criminal justice system. Persons who presented a genuine risk of fleeing, of endangering witnesses, tampering with evidence, endangering the community or who were reasonably suspected of intent to commit a new offence had to be detained before their trial in the absence of reasonable alternatives. Only a judge could order pre-trial detention, there was a maximum duration provided for by law, the right to appeal the measure, periodical review and the right to compensation for unlawful detention.
There were currently 29,369 inmates in detention in Romania. To tackle overcrowding in prisons, a delegate briefed in detail on measures taken which were a combination of the increase in capacity by building new prisons and renovations of existing institutions. The increase in beds had decreased the deficit from 14,000 to 11,000 places, taking into account the normal four square metres of living space allocated to each inmate. In 2014 €5,211,000 was spent on repairs to penitentiaries, which was an increase in the funding allocated in 2013. The delegate spoke about other modernizations to improve living conditions in detention places and said a new women’s wing was being opened at the Gherla Prison. She noted that there were special programmes to address the needs of women in detention.
On juvenile justice, a delegate noted that the age of criminal responsibility was 14 years. There were special juvenile detention centres that provided full education and schooling, as well as social rehabilitation regimes where minors followed intensive specific programmes and activities. The centres all provided religious, moral and psychological support, sporting and recreational activities and medical assistance.
Evidence obtained through torture, or evidence deriving from torture, may not be used in criminal proceedings, said a delegate. Evidence obtained illegally was excluded from legal processes, said a delegate, adding that it was prohibited to use violence, threats or other coercive means, or to make promises or inducements for the purpose of obtaining evidence. Case law was poor in that area, she commented, but a preliminary court decision was taken in that regard on 28 November 2014 at the Bucharest Court of Appeal.
Follow-Up Questions from the Experts
An Expert raised the use of pre-trial detention in remand facilities, often in police stations, saying the Committee’s view differed from the delegation in that regard. Although it may not be torture, instances of mistreatment and misconduct by police officers were still frequently reported. Another serious issue was racist behaviour committed by the police, mainly against members of the Roma community.
It was an unusual practice in Europe to have a permanent presence of special intervention unit officers, who were masked and wore helmets, in high-security closed penitentiaries. There were allegations of mistreatment of prisoners and most were alleged to have been committed by officers with the special intervention unit. The Committee believed such units should only be used as a last resort.
Trafficking in persons was raised by an Expert who noted the extensive response received to the list of issues about actions being taken to combat trafficking. However Romania remained as a source, transit and destination country for men, women and children subject to labour trafficking. It remained a significant source of trafficked victims within Europe. There had been a few hundred cases investigated annually, a handful of prosecutions, but support to victims was largely only provided by non-governmental organizations. Did the Government plan to provide funding to those non-governmental organizations and to establish a shelter for adult victims in Bucharest?
Referring to the report of the Special Rapporteur on the sale of children, an Expert noted he had said there were 2.2 million children placed in institutions in Romania as a result of abandonment or lack of birth registration. A large number of those children had been trafficked. She asked the delegation to comment.
An Expert returned to the issue of secret detention facilities, recalled that the Special Rapporteur himself had said there was enough evidence to determine that the CIA used secret detention facilities in Europe between 2002 and 2005, namely in Romania and Poland. He asked if there was any official investigation from the Government. The Committee was united in condemning terrorism but had seen examples of countries losing their moral superiority in the way they sought to tackle terrorism and interrogate suspects. There was no protection for human rights in secret detention facilities, he added.
An Expert referred to the case of Gabriel Dumitrache, a man who died in Police Station No 10 in Bucharest on 4 or 5 March 2014 after allegedly being chained to an iron pipe and beaten to death by police officers.
Response by the Delegation
The increase in the population of prisoners in the penitentiary system was due to an increase in crime and prosecutions, and the speeding up of settlement circumstances. By the end of 2014, 30,156 inmates were registered in prison, a decline of approximately 3,200 inmates as an effect of the entry into force of the new Criminal Code in February 2014. The new criminal legislation included alternative sanctions to imprisonment which led to shorter sentences for offences committed prior to that date. The Roma population within the penitentiary population was approximately 1,031, she noted.
To tackle the problem of violence among inmates a new strategy was implemented in 2013 which meant specific behavioural or aggressive problems could be tackled on a categorical basis. They included sexual abuse or assault, suicidal tendencies, mental health disorders, alcoholism or drug addiction, aggressive or angry behavioural issues and psychological disorders. Staff had received new guidelines and training on how best to deal with those categories of inmates.
There was no indication of secret detention facilities on Romanian territory, repeated a delegate, noting that the Senate Commission carried out investigations between 2005 and 2008, submitting its report in 2008. The authorities were committed to investigate any serious allegation, not just hearsay or any reports published in the public sphere, commented the delegate.
Compensation for victims of the former communist regime had been available since March 1990, by law, so the problem was settled. The Government had tried to prosecute all members of the former communist regime for their crimes, and the Commission appointed to do so had explained very well in its reports the challenges associated with that.
CLAUDIO GROSSMAN, Committee Chairperson, noted that the delegation could send any outstanding answers in writing to the Committee by close of business on Monday, 27 April. He thanked the delegation for the interactive dialogue and said the Committee would adopt and publicize its concluding recommendations on the report by the end of the session.
IOANA MORAR, Acting Director General, National Penitentiary Administration, Ministry of Justice of Romania, thanked the Committee and said the delegation had sought to provide accurate answers and not avoid challenging subjects. Ms. Morar said they would provide outstanding answers to the Committee, and noting its cooperation with the Subcommittee on the Prevention of Torture, said Romania looked forward to continuing its cooperation to fully implement the Convention.
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