Implementing a national preventive mechanism for the prevention of torture and other forms of cruel, inhuman or degrading treatment or punishment in places of detention in Romania

Author:Radu-Florin Geamanu
Position:egal Adviser, Ministry of Justice, Ph. D. candidate, Faculty of Law, 'Nicolae Titulescu' University, Bucharest
Pages:45-66
Radu-Florin Geam?nu
45
LESIJ NO. XIX, VOL. 2/2012
IMPLEMENTING A NATIONAL PREVENTIVE MECHANISM FOR THE
PREVENTION OF TORTURE AND OTHER FORMS OF CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
IN PLACES OF DETENTION IN ROMANIA
Radu-Florin GEAM;NU
Abstract
With the ratification of the Optional Protocol to the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) by Law no. 109/2009, Romania
has taken a further step in strengthening the preventive monitoring of places of detention by an
independent body as a form of preventing and combating torture and other forms of ill-treatment in
different places of detention. Consequently, Romania is to establish a National Preventive
Mechanism (NPM) for the prevention of torture and other forms of cruel, inhuman or degrading
treatment or punishment in places of detention.
The paper will focus on the study of the OPCAT provisions regarding the NPM, aimed at
establishing a system of regular visits undertaken by an independent national body to places where
people are deprived of their liberty. Due attention will be granted to the existing domestic
mechanisms and to the analysis of the legislation of certain European states that already
implemented OPCAT.Furthermore, this article will assess the difficulties which the impl ementation
of a NPM in Romania poses, the shortcomings of such an endeavour, with a view to the
understanding of the minimum pre-requisites for an effective functioning of such a national body and
taking also into consideration the Principles Relating to the Status of National Institutions for the
Promotion and Protection of Human Rights (Paris Principles).To close with, the study will attempt to
present some recommendations meant to ensure a firm and efficient implementation of the NPM in
Romania.
Keywords: Places of detention, United Nations, Optional Protocol to the Convention against
Torture (OPCAT), National Preventive Mechanism (NPM), Romanian legislation, torture and other
forms of cruel, inhuman or degrading treatment or punishment.
Introduction
Acknowledging the fact that the persons deprived of their liberty are in a fragile position, it is
the duty of the states and of the international community to ensure the full respect of their
fundamental rights. This was the reason for the United Nations to come with the adoption of the
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (OPCAT)1, being convinced, according to the Preamble, that further
measures are necessary to achieve the purposes of the Convention against Torture and Other Cruel,

Legal Adviser, Ministry of Justice, Ph. D. candidate, Faculty of Law, ”Nicolae Titulescu” University,
Bucharest (e-mail: radurfg@yahoo.com).
1 The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment was adopted on 18 December 2002, entered into force on 22 June 2006 and wa s ratified by Romania
through Law no. 109/2009, published in the Official Journal of Romania, Part I, no. 300 of May 7, 2009. For the full
text of the OPCAT, see http://www2.ohchr.org/english/law/cat-one.htm, accessed on January 25, 2012.
46 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 2/2012
Inhuman or Degrading Treatment or Punishment (CAT)2, strengthening the protection of persons
deprived of their liberty against torture and other cruel, inhuman or degrading treatment or
punishment.
The efforts of the United Nations in ensuring protection for the persons deprived of their
liberty are continous, just to mention the recent discussions within an open-ended intergovernmental
expert group in order to exchange information on best practices, as well as national legislation and
existing international law, and on the revision of the existing United Nations standard minimum rules
for the treatment of prisoners so that they reflect recent advances in correctional science and best
practices, with a view to making recommendations to the Commission on possible next steps.3
A presentation of the existing control mechanisms in Romania and a brief analyse of the
legislation of certain European states will help us to assess more accurately the current situation in
Romania and to observe different models of already implemented national prevention mechanisms,
consequently allowing us to look at the whole picture, having all the elements, thus drawing the best
fitting solutions in implementing a solid and functional national preventive mechanism in Romania,
in full respect with OPCAT requirements.
CONTENT
I. The Optional Protocol to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment
1. General presentation. Observing that the protection of human rights is of paramount
importance and is subject to continous evolution, the United Nations adopted the Optional Protocol
to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
stressing out that further measures are necessary to achieve the purposes of the CAT and to
strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman
or degrading treatment or punishment.
Although Romania ratified the OPCAT in 2009, based on the declaration made in accordance
with article 24, paragraph 1, the implementation of the obligations under Part IV, concerning national
preventive mechanisms4 was postponed for three years, thus no NPM was designated in Romania up
to this point. The three year period of postponement will expire on 1 August 2012, leaving a tight
timeframe to the relevant national stakeholders in order to designate a NPM within the assumed
term.5
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2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was
adopted on 10 December 1984, entered into force 26 June 1987 and was ratified by Roman ia through Law no.
19/1990, published in the Official Journal of Romania, Part I, no. 112 of October 10, 1990.
3 See the open-ended intergovernmental expert group meeting on the United Nations standard minimum
rules for the treatment of prisoners, 31 January - 2 February 2012, Vienna, Austria, as requested by the Genera l
Assembly, in operative paragraph 10 of its Resolution 65/230 of 21 December 2010, entitled "Twelf th United
Nations Congress on Crime Prevention and Criminal Justice", accessed on February 2, 2012,
http://www.unodc.org/documents/justice-and-prison-reform/AGMs/General_Assembly_resolution_65-230_E.pdf.
4 According to article 17 of the OPCAT, each State Party shall m aintain, designate or establish, at the latest
one year after the entry into force of the present Protocol or of its ratification or accession, one or several
independent national preventive mechanisms for the prevention of torture at the domestic level.
5 According to article 2 of the Order no. 47/2010 of the minister of foreign affairs, published in the Official
Journal of Romania, Part I, no. 100 of February 15, 2010, the OPCAT entered into force for Romania on August 1,
2009, so the three year period of postponement will expire on August 1, 2012.

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