Public Hearing
Committee on Foreign Affairs, Security and Defence Policy
Subcommittee on Human Rights
Brussels, 30 and 31 October 1996

The Accountability of Law Enforcing Agencies

by Monica Macovei
Human Rights Specialist in the Office of the General Prosecutor in Bucharest

All the legal systems have known the tendency of adopting protective legislation with regard to the executive, including the law enforcing personnel. Government, which is the main drafting body, is not interested in legislation promoting a high responsibility for itself. Parliamentarian initiative works slowly, and if the majority belongs to the party forming the Government, the previous interest rule applies.

Obstacles of a subjective nature may also raise in the practice. Those called to decide in such cases would be law enforcing people as well, and there is a high probability they will be sympathetic to the cause of those found in the violation of the law. This can't be entirely avoided by legislative means. Nevertheless, clear legislation establishing the law enforcing responsibilities, and the consequences of rules' violation would diminish that risk. Well defined instruments cannot be misused.

From the human rights perspective, the accountability of law enforcing agencies is crucial. Human rights violations occur mainly during or as consequence of law implementation actions. This is why a legal mechanism providing liability for law enforcing officers and compensation for victims is strongly needed.

The protection of human rights changed from horizontal (national) level to vertical (international) level. The accountability of law enforcing agencies, as part of the general subject of human rights protection, must be paid international attention and be subjected to international regulation.

Criminal Impunity of the Members of the Government

1. Within the broad subject of impunity, as an argument to the necessity of adopting international legislative standards for filling the gaps in the national legislation, I'll briefly refer to the criminal impunity currently enjoyed by the Romanian members of the Government.

The constitutional provisions allow criminal investigations of the members of the Government in relation with their official duties, only at the request of the Chamber of Deputies, Senate or the President (article 108 para. 2). It follows that the General Attorney cannot carry on any investigation by his own decision, nor can he ask the Parliament or the President to address the investigation request. He has to wait until either the Parliament or the President requires an investigation. The restrictive provisions proved efficiently for the members of the Cabinet. Although within the last years media has been accusing more ministers and other members of the Government of criminal activities, bribery mainly, no request of investigation has been made by the Parliament or the President.

The general wording of the constitutional provisions when defining the subjects of the restrictive liability, raised debates among the law practitioners: does the expression "members of the Government" covers ministers only, and if not, which is the exact area of the ministerial positions enjoying the benefits of the constitutional text? There have been opinions saying that besides ministers, state and substate secretaries are covered by the constitutional provisions.

Moreover, on the subject of the liability and penalties applicable to the members of the Government, the 1991 Constitution pointed out that a separate law shall be adopted ("Law on Ministerial responsibility") (article 108 para. 3), stating implicitly that the ordinary legislation, as the criminal code, would not apply to the members of the Government. However, such a law has not been adopted yet and this is how, for the last five years, the members of the Government have been enjoying a legal impunity, to which they essentially contributed by failing to draft the law.

Some scholars argued that in the absence of the special legislation, the general provisions of the Penal Code should apply. Nevertheless, the lack of the law on ministerial responsibility has been an argument for adopting non-indictment decisions for some members of the former Governments. However, since in none of those cases neither the Parliament nor the President required criminal investigations, there was no legal base to carry on any criminal proceedings.

It has to be added to the subject that no law providing for declaration of property has been adopted with respect to the members of the Government.

The current failure of the legal system to allowing criminal investigations in relation with the members of the Government strongly affects the efficiency of the media's "public watch dog" role and its particular right and duty to keep an eye on those governing. Moreover, the lack of criminal investigations, though media keeps on claiming criminal activity on behalf of some ministers and other members of the Government, brings mistrust in the political system and the judiciary. Public opinion, ignorant of the legal obstacles, tend to ascribe the failure to act mainly to the judiciary.

Legal Restrictions on Public Criticsm

Yet another legacy of the elevated status enjoyed by the members of the Government (by the President as well) is contained in article 238 of the Penal Code, which sets forth the crime of "Offense Against Authority". In accordance with this article, damage to the honor proffered in public against a person serving an important state or public function, in connection with that person's official duties, if it is of such nature as to damage the state authority, shall be punished by prison from six months to five years. The punishment is higer than insult or libel whose victims are ordinary individuals. The truth proof is not admissible and investigations start ex officio and not at the request of the alleged victim. These provisions make a crime to publicly criticize the high officials even if the criticism is truthful. Such an approach is contrary to that develped by the European Court of Human Rights, providing for a strong control of the political public figures, who must accept a higer degree of criticism than the ordinary individuals (Lingens v. Austria, Castells v. Spain).

The crime of "Offence Against Authority" has not been frequently used against media, but there are still such cases, and the mere existence of the crime endangers the public criticism, as base for a real accountability of those who are given political power.

Similar provisions criminalize insult of all civil servants for facts related to their official duties (article 239). This way, the law enforcement personnel is protected against public criticism despite the possible truth of the criticism. On the political side, accountability of the Government is clearly provided by the law. Constitution states that the Government is politically responsible before the Parliament, and regulates the interpellation and questioning procedure, the mistrust motion, appointment and dismiss of Government and its members.

2. The liability of judges and prosecutors is regulated by the law on the judiciary. For criminal investigation, the approval of the Minister of Justice is required. Disciplinary action may be taken by the Superior Council of Magistrates in case of judges and by the council of Discipline in case of prosecutors (10 judges and 5 prosecutors), though there is no reason to have prosecutors deciding on judges career; the later, by prosecutors only.

The system proves efficient. All the alleged violation of law have been investigated; it is true that most of them ended in non-indictment decisions; in few cases there have been prosecutions. The main weakness is the length of the proceedings, mainly in the investigating stage.

The Problems of the Military Justice System

3. The criminal liability of the police officers, as the main actors in the law enforcing area, is another issue I will pay attention, mainly because it is very sensitive from the human rights perspective.

The Romanian Penal Code regulates the conduct of the police by providing torture, abusive behavior, abusive investigation, unlawful search, etc, as crimes. Problems raise from the maintenance of the military structure of the police and the parallel military justice. Police officers, when accused of wrongdoing, are investigated by military prosecutors and tried by military judges in military courts. Civilian prosecutors may not undertake investigations of police officers. Neither may civilian judges trial such cases. The law applied in military courts is the same with the law applied in civilian criminal proceedings. Military prosecutors and judges belong to both structures, civilian (the General Prosecutor's Office and Ministry of Justice) and military (the Ministry of Defense).

However, military prosecutors and judges answer to higher military authorities and not, ultimately, to civilian officials. Law on the Military Courts and Prosecutors' Offices (no. 154/1993) provides that only active military officers may be appointed to serve as military judges and prosecutors. They all have military grades and are promoted in accordance with the military grading system set forth by the Ministry of Defense. Military prosecutors and judges are paid by the Ministry of Defense and enjoy all the other rights of a military. In case of violation of the military rules they are responsible in the terms of the Disciplinary Military Statute.

Besides being a manifestation of the interference of the executive with the judiciary, the military structure of both investigators and investigated raises the question of impartiality and objectivity of the former, who could be tempted to protect the prestige of the military as whole. The judicial practice prior to 1989 has proved that. Only a few police officers were prosecuted and convicted for criminal offenses, though, for instance, beatings in the lock ups were frequent. The physical brutality has substantially declined in lock-ups and prisons the past six years, but it still continues during police interrogations (see Amnesty Report, 1995). Comparing the number of violations claimed to the number of those prosecuted and convicted, one may notice that the latter are still few. The requirement of the civilian control over the police is obvious, and it is constitutionally guaranteed by the principle of equality before the law.

In the neighboring countries, this issue is still unsolved. The Bulgarian legal system gave up the military justice system but brought it back reasoning that the civilian judicial actors failed more than military ones to prosecute police wrongdoing. In Hungary, the military courts have been abolished, while the military prosecutors' offices are still functioning.

Other Structural Problems of the Legal System

In addition, structural problems diminish the legal system's capacity to deter police misconduct. First, the non-indictment decisions adopted by the military prosecutors cannot be appealed in the court (this rule applies to the non-indictment decisions adopted by civilian prosecutors as well). The victims of police abuses may only complain hierarchically within the Military Section of the General Prosecutor's Office. My experience in the General Prosecutor's Office proved that for the last three years, the leading body of the military prosecutors' offices is open to dialogue with international and national non governmental organizations working in the human rights field, and it overturned quite many non-indictment decisions adopted by their subordinates. Nevertheless, the principle of access to court requires that the ultimate decision belongs to independent judges. At this point, it has to be stressed that though prosecutors are part of the judiciary, they do not enjoy the guarantees of independence, immovability and publicity.

Another structural problem which affects both the capacity of the legal system to deter police improper behavior and the civilian liability of police officers is the rule stating that no person may sue for damages for conduct which also constitutes a crime under the Penal Code. In practice, this means that police are virtually never subject of civil lawsuits.

The current Romanian legal system excludes court interrogations of police officers. The written reports prepared by police in the course of criminal investigations are presumed true. The knowledge that they will not have to defend their actions in the court creates a powerful incentive to use extra legal means in search for evidence and pressure in order to obtain confessions. In practice, if a defendant asserts that he was coerced or tricked into making admissions, the judge does not require that the officer in question appears in the court to be questioned under oath. As a result, the large majority of allegations of police misconduct made in the court go uninvestigated.

The above procedural rules, coupled with the military judicial oversight create the legal and practical framework of a highly diluted responsibility of police officers, in both criminal and civilian fields.

Resistance to change is pronounced. Although debated by scholars, the military structure of the police and the military judicial oversight are not within the intended changes on behalf of the Government. Moreover, in May 1995, the Ministry of the Interior submitted to Parliament draft legislation on the status of the policeman which would bar investigation of any police officer for alleged criminal conduct absent prior authorization by Minister of Interior; the authorization doesn't have to be motivated and is final. The draft is currently under discussion of parliamentarian commis sions. The wish, on behalf of police, to gain a high degree of criminal impunity clearly follows from that. If adopted, such legislation would also affect the independence of the judiciary, which would have to ask the executive power for approval to investigate. Hope in the wisdom of the next legislature (parliamentary elections are scheduled on November 3, next).

Concluding, the police does not enjoy a legal criminal impunity, nor this exists in practice (there are prosecutions and convictions) but still many legal and mental obstacles interpose to a complete and fair criminal and civilian liability. These impeach on the redress of human rights violations, and creates a feeling of mistrust in the capacity of the legal and judicial systems to protect individuals against abuses of power.

Monica Macovei has worked as a human rights specialist in the Office of the General Prosecutor in Bucharest. She has in that capacity sought to ensure that instances of police misconduct would be properly investigated and, if necessary, followed by prosecutions. This has proved to be a difficult undertaking. There is even a chance that by going to the hearing in Brussels she might have lost her job.

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European Parliament: 30-31/10/1996, revised 05/03/1997