1. National context
1.1 Relevant Statistical Information
The Romanian prison population is 28.218 under the custody of the National Penitentiary Administration (29.02.2016) and 1.155 in pre-trial detention facilities under the Ministry of Interior (14.04.2015). The population of Romania is 19.488.08.
The National Penitentiary Administration manages 35 penitentiaries, 2 Educational Centers and 2 Detention Centers for underage, and 6 penitentiaries – hospitals. The prison population consists of 25.928 convicted and 2.290 on remand.
The Police Inspectorate has 51 pre-trial facilities with a capacity of 1.868 beds. From 1.155 persons held in pre-trial facility 39 were there for less than 24 hours, 1.072 on pre-trial detention and 44 convicted. The longest period of time in pre-trail was 12 month for 1 person and 5 person with a sentence were held in pre-trail facility for more than 1 year.
The prisoners’ rights protection are provided by the Law 254/2013. Starting with 2006 (Law 275/2006) judges from the first level court were assigned the role of supervision for matters regarding the condemned persons in custody. Decisions of the custodial supervision judge can be appealed to the court.
The Romanian Ombudsman has taken the role of National Preventive Mechanism under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment.
1.2 Main problems of custodial institutions
The Romanian Ombudsman
Starting with 2015 The Romanian Ombudsman has taken the role of National Preventive Mechanism under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment. The initial assessment of institutions covered by OPCAT in Romania shows that there are more than 2000 institutions that covered by the Optional Protocol.
The mechanism is designed as a tripartite partnership of Ombudsman with professional association and NGO taking part in the visits.
In 2015, the first year of activity for the National Preventive Mechanism 15 reports following visits from a total of 46 done covered prisons and police pre-trial facilities. A special report covered prisons and police pre-trial facilities.
Main conclusions of the special report are:
- Governmental Decisions and Ministry Order regarding the implementation of the Law 254/2013 are missing;
- Overcrowding – the number of people in custody is higher than the capacity of the prison units;
- Accommodation conditions are poor and some buildings are old;
- The quality of food is poor and there no proper conditions to serve the meals;
- There is not enough medical staff to offer medical services in acceptable conditions;
The Special Reports presents proposals to solve the main issues. Separately each report includes recommendations for the institution concerned.
The European Court of Humar Rights (“ECtHR”) had many occasions over time to discuss about prisoners rights after their final conviction.
One of the main problem – raised in almost every application lodged by the prisoners – is the overcrowding. The 2012 Iacov Stanciu case raised the issue of general overcrowding in Romanian Prisons and ordered, by a cvasi pilot judgement, the Romanian authorities to take general measures to deal with the issue. Moreover, the ECtHR stated that, although the state took some measures in order to ensure the effectiveness of the protection granted by the European jurisprudence, there are still 2 conditions to achieve such a goal:
- allowing the competent national authority to deal with the substance of the relevant Convention complaint,
- granting appropriate relief, i.e. compensation is such a finding was made.
The case is still, in 2016, followed by the Committe of Ministers, the body responsible of the execution by the national authorities of the ECtHR judgments.
Apart from overcrowding, the Court had raised issues related to medical health care in prison (Gagiu, APADOR- Helsinki Committee on behalf of Ionel Garcea, Iacov Stanciu), adapted conditions for handicaped prisoners (Sandu Voicu, Ticu), correspondence (Petra, Cotlet, Enache), passive smoking (Elefteriades, Florea), offensive smell produced by a cityhall run company (Branduse).
The number of cases finalized with decision against Romania regarding the conditions of imprisonment is: 32 cases in 2013, 29 in 2014 and 75 in 2015. In 2015 the compensations paid were 459.275 Euro as in 2014 it was 196.400 Euro and in 2013 a total of 221.819 Euro.
From 1990 to 2015 CPT visited Romania 9 times. Reports and Government Responses are published at http://www.cpt.coe.int/en/states/rom.htm
The main issues raised by the June 2014 CPT Report on the visit are:
- Compared with 2010 visit the frequency and intensity of physical violence in police pre-trial detention facility has decreased,
- Conditions in most police pre-trial facilities are inadequate: overcrowding, poor ventilation, lack of natural light, lack of hygiene,
- Overcrowding of prisons, in some cases less than 2 m2 for persons staying in cell 20 – 22 hours,
- Violent behavior of staff towards the persons in custody in some cases,
- In some cases persons in custody were told by prison staff not to inform CPT representatives on violent behavior or they will be punished,
- The majority of persons in custody are not involved in work or reintegration activities,
- Lack of staff to ensure the safety of inmates and overuse of the intervention team,
- Lack of medical staff to ensure proper medical care.
2. Bodies in charge of the prisoners’ complaints
2.1 Judicial remedies
Supervision exercised by the judge which is entitle to judge all the complaints initiated by the detainees and linked to their rights guaranteed by the Romanian Law (Law 254/2013 on the execution of custodial sentences).
Civil action for liability of the State due to poor conditions of detention under tort law (”acțiune în răspundere civilă delictuală”).
2.2 Other proceedings
Administrative remedies such as: complains to the prison director or to the general director of the National Prison Administration or to the minister of Justice. Both the ministers of Justice and the General Director have inspection bodies that can check and respond to complaints. As these bodies belong to the same system that allegedly violated the prisoner’s rights, their independence may be difficult to defend. Sometimes, the prisoners send their complaints to the President of the Republic. In this case, the President asks the minister of Justice or the general director to check and respond.
Recommendations made by the Romanian Ombudsman. According to the Romanian Constitution (art. 58-60) and the Law no. 35/1997, the Ombudsman is responsible to protect the human rights and the liberties of people when they come in contact with the state authorities. In 2009 Romania ratified the Optional protocol adopted in 2002 regarding the National mechanism for preventing torture. By OUG no. 48/2014 the National mechanism for preventing torture was set up within the Ombudsman Office. In 2015, the Ombudsman has published a comprehensive report on the situation in prisons and arrest centres.
The two remedies available are accessible to the detainee through the supervisory judge based in the prison (Judecatorul de supraveghere a privarii de libertate) or directly before a civil Court.
The first one, intented to be a preventive remedy, is easier to access due to the fact that the judge is based in the prison. The Penitentiary administration is obliged by Law 254/2013 to put at the judge disposal a space inside the prison for the judicial activities. The Ministry of Justice ensures that the space is provided with all the necessary for his activity. Also, during this secondment to the prison, the judge is not allowed to perform other activities than those related to supervision of the execution of the detention. In line with this mission, the supervisory judge responds to the prisoner’s complaints regarding their rights, the prison regime and also concerning the disciplinary sanctions. In dealing with the complaints, the supervisory judge can access all information and discuss with people who can help him in finding out the truth. Before deciding, the judge has to listen to the prisoner. All the decisions of the supervisory judge are mandatory for the prisoners and the prison administration. The supervisory judge decision may be appealed by both the prisoner and the administration before the first instance court (”judecatoria”). The local court will pronounce a final decision. Contesting the decision of the supervisory judge will not suspend the execution.
The recently published regulation in application of Law 254/2013 expressly states that all expenses incurred by the detainee in application of their petition/correspondence right are supported by the penitentiary administration if the prisoners had no financial revenues in the last 30 days.
Although this remedy is easily available to the detainee, due to the actual state of overcrowding in the Romanian prisons, the effectiveness of the remedy is questionable.
The second remedy is a compensatory remedy based on tort law. The proceeding is contradictory and all rules applicable to civil proceedings are respected (legal aid available, fair trail rights, two degrees of jurisdiction etc.). The effectiveness of the proceeding is questionable due to the fact that State’s liability for tort can only be engaged if a fault is proven on the part of the alleged tortfeasor. Or, the ECtHR expressly said in Iacov Stanciu case that a presumption should exist. In addition, the scope of the remedy appears to be limited to reviewing the compliance with the national standards applicable to detention conditions, which do not cover all the criteria applied by the European Court or are sometimes in contradiction with such criteria.
3.1 Legal aid
The legal aid system in Romania is differently organized in civil and criminal proceedings. The civil law – meaning proceedings other than criminal – provides several types of legal aid such us the payment of the lawyers’ fees, the payment of the expert, translator or interpret and tax exemptions or rescheduling. On the other side, the criminal law provides that the suspect or the accused person has the right to be assisted by an ex officio lawyer, in cases the assistance of a lawyer is mandatory and he cannot afford a lawyer. An ex officio lawyer is mandatory namely during proceedings before a final conviction and in some limited cases provided by the law (such as minors, the detention provided by law is superior to 5 years, adoption of preventive measure) and is some cases after final conviction (for example when the convicted person contests some measures, other the detention conditions, taken during execution). The Law on execution of punishments provides that the legal aid is not mandatory in cases the convicted person contested the regime of execution. Although the constitutionality of this provision was contested before the Constitutional Court, the judges decided, on several occasions, that the right to a mandatory legal aid is a limited right and in other cases they have guaranteed the constitutional right to defense. The right to defense, as understood by ECtHR and the Constitutional Court may involve, in some cases, that the state provides legal aid. The applicability of the civil law to cases related to execution of punishments, although unclear in jurisprudence and in law, can be sustained by several arguments such as: after conviction, all proceedings are civil, according to the EctHR jurisprudence, the National Union of Romanian Bars protocol signed with the Minister of Justice in 2015 related to legal aid states that in some cases an ex officio lawyer can be named by the judicial authorities. Finally, if the convicted person chooses to challenge the conditions of detention based on civil law – tort law – in order to seek compensation, the civil legal aid system as mentioned above is applicable.
4. Procedures regarding disciplinary issues – disciplinary authorities and remedies available
The penitentiary administration is the authority entitled to apply disciplinary measures. A report is drafted and deposed to the head of the Department in which he is detained within 24 hours. The disciplinary commission is formed of the Prison Director and other administrative staff. The aim of the commission is to establish the truth by listening the prisoner and the witnesses and to apply, if the case, a sanction. Within 3 days after a sanction was ordered, the detainee can file a complaint before the supervision judge. The complaint suspends the execution of the disciplinary measure and the decision, taken following a contradictory proceeding, can be contested before the first instance court.
5. Prisoners’ rights protection and early release/alternative measures’ procedures
Prisoner’s rights protection is ensured through:
- Human Rights Non-Governmental Organisations can offer assistance to prepare the case for the relevant authorities and courts. Human Rights NGO have access to persons deprived of liberty. NGOs are also publishing monitoring reports on general topics related to prison conditions.
- Lawyers have access to offer support and assistance to person deprived of liberty;
- Administrative remedies – complaints to prison director or General Director of National Penitentiary Administration;
- Supervisory Judge appointed in every prison or pre-trail facility will issue decisions regarding complaints of persons deprived of liberty. Decisions of the supervisory judge can be contested to the local court that will issue a final sentence.
- Ombudsman has unlimited access to persons deprived of liberty and can issue recommendations based on findings. Romania has ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment. The Romanian Ombudsman is responsible for the National Mechanism that is a tripartite partnership of Ombudsman with professional association and NGO taking part in the visits.
- The right to complain and for correspondence is covered in full details in the Law no. 254/2013 – art. 63 and 64. The right for petition and correspondence is guaranteed and the prison administration is obliged to take all the necessary measures to facilitate the realization of this right (e.g. to install collecting points for collecting post, to supply paper and pencils etc.). In case the prisoners have no means to cover the costs for correspondence, the prison administration will cover these costs when the destination is a court or an international human rights organization.
- Complain to European Court of Human Rights after using all the national remedies.
Early release is possible based on Penal Code provisions and Law no. 254/2013 on the enforcement of sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal proceedings based on the length of the sentence, type of offence, behaviour and other elements. All persons deprived of liberty are assessed by a Commission when conditions are met for a possible early release and a proposal is submitted to the local court. The commission for early release is formed of the Director of the Penitentiary, other functionaries working in the prison, probation officer and presided by the Supervisory Judge. The proposal is submitted to the first instance court which can decide, based on the proposal, to admit the early release or to dismiss it. Although the Commission is not entirely independent and impartial, due to its composition, the proposal is reviewed by an independent court – the first instance court – which is a guarantee for a decision taken by an impartial and independent tribunal, according to article 6 of the ECHR.
Alternative measures’ procedures are possible during the trail and following the changes in the Penal Code currently there more persons sentenced to alternatives measures than to custodial sentences.
6. Concrete state of the protection of prisoners’ rights
The following difficulties were pointed out in relation to Iacov Stanciu case:
- the access to the client was sometimes difficult. In many occasions the security guards made the waiting time a lot longer than necessary. The lawyers were even refused entry and contact with the applicant when the prison staff had the slightest official reason to do so.
- as the applicant was under tremendous pressure from the staff, he was sometimes over-suspicious with the lawyers. He was afraid they ‘fraternize’ with the Government.
- access to the medical file of the applicant was also delayed and hardly readable. It seems that the medical file was a collection of hand written papers sometimes very difficult to read.
- during the Court procedure the lawyers found it difficult to understand the medical diagnostic and treatment. They tried to get clarifications from the private doctor who treated Mr. Stanciu but they were refused. From Mr. Stanciu’s letters it seems that the doctor received a call from ‘the Government’ and felt intimidated to help Mr. Stanciu’s case. The lawyers had to read medical books in order to understand and explain to the Court what went wrong with Mr. Stanciu’s medical attention (‘it was very difficult for a jurist to understand the medical language’). Furthermore, no doctor was willing to write a letter to the ECHR explaining the diagnostic and the treatment applied to Mr. Stanciu. They were afraid to fight against the Government.
- due to the absence of the official data regarding the square meters available in each penitentiary, it was very difficult for the lawyers to produce evidence regarding this issue.
- Some of the CPT or Apador-CH reports were quite outdated and the Government claimed that the situation has improved significantly since then.