3. The protection of civic freedoms in Romania
This chapter provides an overview of the protection of civic freedoms in Romania, with a focus on freedoms of expression, peaceful assembly, association, equality and non-discrimination. It provides a review of key legal frameworks before discussing challenges and opportunities relating to individuals’ full enjoyment of civic space including related to hate speech, peaceful assembly, exclusion, and discrimination targeting particular groups and violence against women. It reviews the role of human rights protection mechanisms and provides guidance and concrete recommendations for the government on strengthening civic space in each area discussed.
The promotion and protection of civic space hinges on how civic freedoms are guaranteed and enabled, both in law and in practice. As discussed in Chapter 2, the OECD defines civic space as the set of legal, policy, institutional and practical conditions necessary for non-governmental actors to access information, express themselves, associate, organise and participate in public life (OECD, 2020[1]). Equality and non-discrimination are cross-cutting issues in this respect, as are rule of law and accountability considerations.
Romania has a series of regulations governing civic space in addition to normative acts with references to the concepts of the “associative environment” and “civil society”.1 Generally, civic freedoms are protected by law and by general and specialised publicly funded and independent institutions, notably the People’s Advocate and the National Council for Combating Discrimination (see the sections on equality and non-discrimination and non-judicial complaint mechanisms below). Key rights, such as freedom of expression and freedom of the press (both found in Article 30), the right to respect for private life (Article 28), the right of access to public information (Article 31), the right to vote and be elected (Articles 36-38), freedom of association and assembly (Articles 39-40), and freedom of religion (Article 29), are protected by the Romanian constitution (Ministry of Justice, 1991[2]). The constitution also prohibits discrimination (Articles 4 and 16). Furthermore, foreign citizens2 and stateless persons living in Romania enjoy general protection of persons and assets, as guaranteed by the constitution (Article 18) and other laws. Article 20 of the constitution specifies that its provisions shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and other treaties and pacts that Romania is a party to and that, in cases of conflict between these treaties and domestic law, international obligations take precedence unless constitutional or domestic laws contain provisions more favourable to individuals. The above freedoms may be restricted by law, and where necessary to achieve the legitimate aims set out in Article 53 of the constitution.3
Under the constitution, the abovementioned freedoms generally apply to anyone on Romanian territory, whether regularly or irregularly. However, Article 40 specifies that only Romanian citizens have the right to associate in different organisations, including trade unions and employers’ associations. Article 16 makes a similar distinction, granting the rights of equality and non-discrimination to citizens, not all persons.
During the COVID-19 pandemic, Romania introduced a state of emergency initially and later a “state of alert” to combat the effects of the virus. During these periods, certain civic freedoms were limited, thereby limiting civic space, as outlined in detail in Box 3.1 below. In March 2022, the state of alert ended in Romania and with it any related restrictions.
In March 2020, like many other states, Romania introduced a state of emergency by presidential decree (Ministry of Justice, 2020[3]) in order to effectively combat the first wave of the COVID-19 pandemic, which was extended once more in April, also by presidential decree. In May 2020, by decision of the National Committee for Emergency Situations, a state of alert was declared. Following the adoption of a new legal basis, namely a law regarding measures to prevent and combat the effects of the COVID-19 pandemic (Anti-Covid Law) (Ministry of Justice, 2020[4]), another decision declaring a state of alert was passed later in the same month. The state of alert was prolonged several times afterwards and ended in March 2022.
During the state of emergency between March and May 2020, the government of Romania declared its official derogation from key human rights obligations set out in the presidential decree of March 2020 (including, for example, freedom of movement, the right to private life, the right to education, the right to freedom of assembly, the right to private property and the right to strike), with important repercussions for civic space in the country. In order to prevent the spread of COVID-19, in March 2020, the government limited public circulation outside of homes, put a ban on inside gatherings and prohibited outside public gatherings of more than 100 persons (Ministry of Justice, 2020[5]; 2020[6]). Additionally, Internet service providers were obliged to interrupt transmission and remove content promoting “fake news about the evolution of COVID-19 and the protection and prevention measures”. Violations of these rules were punishable by fines, which were initially based on an emergency ordinance issued in April 2020. After the Constitutional Court declared this emergency ordinance to be unconstitutional, more detailed provisions on punishable offences were set out in the Anti-Covid Law (FRA, 2020[7]). In a decision issued in May 2021, the European Court of Human Rights found that restrictions on leaving homes had not violated the rights to freedom of movement and liberty of the respective applicant (a Romanian member of the European Parliament) (ECtHR, 2021[8]).
Between January and July 2021, the government maintained anti-COVID-19 regulations that allowed public gatherings of a maximum of 100 persons. In June 2021, a group of 65 non-governmental organisations (NGOs) sent a letter to the government complaining that religious, cultural or sports gatherings were allowed a significantly higher number of participants than rallies and demonstrations and called the regulations discriminatory and unjustified (U.S. DoS, 2021[9]). From August 2021 onwards, regulations allowed demonstrations or rallies of up to 500 participants in cities and villages with a COVID-19 incidence rate of less than 2 per 1 000 persons. Several NGOs and human rights activists still considered the new regulations to be discriminatory and unjustified (U.S. DoS, 2021[10]; Amnesty International, 2022[11]).
Despite some concerns regarding a lack of available information in minority languages and a rise in hate speech during the pandemic, comparative evaluations such as the Bertelsmann Transformation Index show that in Romania, violations of democratic norms during the pandemic were minor and were more in line with practice in Western Europe than other countries of the region (BTI, 2022[12]). Nevertheless, the overuse of emergency measures to pass legislation (thereby bypassing consultations with civil society and other stakeholders), even after the end of the state of alert, continues to raise concerns (for more information on this, see Box 6.8 in Chapter 6).
Source: Ministry of Justice (2020[3]), Decree 195/2020 on the Establishment of the State of Emergency on the Territory of Romania, https://legislatie.just.ro/Public/DetaliiDocumentAfis/223831; FRA (2020[7]), Coronavirus Pandemic in the EU – Fundamental Rights Implications, https://fra.europa.eu/sites/default/files/fra_uploads/ro_report_on_coronavirus_pandemic_june_2020.pdf; ECtHR (2021[8]), Terheş v Romania, Admissibility Decision, Application no. 49933/20, https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22terhes%22],%22itemid%22:[%22001-210026%22]}; U.S. DoS (2021[10]), Romania Human Rights Report, https://www.state.gov/wp-content/uploads/2022/03/313615_ROMANIA-2021-HUMAN-RIGHTS-REPORT.pdf; Amnesty International (2022[11]), Romania 2021, https://www.amnesty.org/en/location/europe-and-central-asia/romania/report-romania/; BTI (2022[12]), Romania Country Report 2022, https://bti-project.org/en/reports/country-report/ROU.
Freedom of expression is one of the crucial elements of any democratic society and is an essential prerequisite for an enabling environment for civil society. More specifically, freedom of expression enables individuals to participate in public affairs in a meaningful manner, allowing discussions and interactions with peers and public officials, including the ability to critique government spending and decision making, thereby enhancing transparency and accountability.
3.3.1. Constitutional recognition and legislation
As stated above, Romania protects freedom of expression in its constitution, namely in Article 30. Under Paragraph 1 of this provision, the freedom to express ideas, opinions and beliefs, and the freedom of creation in any form – orally, in writing, through images, by means of sound or by any other means of public communication – are inviolable (Library of Congress, 2021[13]). Freedom of expression is also set out in Article 70 of Romania’s Civil Code. The right to freedom of expression encompasses the right of access to information, which is also protected by Article 31 of the constitution. According to this provision, the right of access to information obliging authorities to provide accurate information to citizens on public affairs should not be restricted (see the section on access to information in Chapter 4).
Romania adheres to the freedom of expression provisions in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) (UN, 1966[14]) and Article 10 of the European Convention on Human Rights (ECHR) (Council of Europe, n.d.[15]), respectively. Similarly, as a member of the European Union (EU), the EU Charter of Fundamental Rights applies, specifically Article 11 on freedom of expression and information. The abovementioned constitutional and other legal provisions protecting freedom of expression, as well as the circumstances and criteria of restricting this freedom, as set out in Article 53 of the constitution, appear to be in line with these human rights instruments.
Defamation and hate speech are discussed below as two key exceptions to freedom of expression followed by a review of implementation challenges.
Defamation as an exception to freedom of expression
Article 30, para. 6 of the constitution states that freedom of expression “shall not be prejudicial” to the dignity and honour of individuals. Moreover, Paragraph 7 of Article 30 prohibits “any defamation of the country and the nation” (see section on barriers for journalists and media outlets in Chapter 4). As defined in other OECD publications, defamation is considered to be a false statement, made in any medium (written or oral), that is presented as a fact and that causes injury or damage to the character of the person it is about (OECD, 2022[16]).
Since 2014, claims concerning defamation of individuals can be pursued in Romania before civil courts. Romanian legislation is thus in line with standards set by the United Nations (UN) and the Council of Europe, representatives of which have been calling for the decriminalisation of defamation for many years to safeguard freedom of expression for journalists and other individuals (UN, 2011[17]; Council of Europe, 2007[18]). This is because, while the protection of a person’s reputation may serve a legitimate interest, criminal sanctions – as opposed to civil remedies – are more likely to lead to limitations on civic space, such as censorship and self-censorship among journalists and activists, especially when sanctions include prison sentences (UN Human Rights Committee, 2011[19]; Griffen, 2017[20]). Romania is one of only a few states in Europe that adhere to this standard of decriminalisation of defamation. The OECD’s 2022 report, The Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance (OECD, 2022[16]) found that of 22 countries surveyed in Europe (OECD Members and non-OECD Members), only 4 countries (Ireland, Norway, Romania and Ukraine) do not criminalise defamation (Figure 3.1).
Source: Data from OECD (2022[16]), The Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance, OECD Publishing, Paris.
Hate speech as an exception to freedom of expression
As in many countries hate speech, particularly online, is a growing threat to protected civic space in Romania as it frequently targets minorities, in addition to women, lesbian, gay, bisexual, transgender or intersex (LGBTI) persons and persons with disabilities, aiming to harass and attack them, and thereby exclude them from public discourse and spaces (both physical and online). While not internationally defined, hate speech may involve different forms of communication that attack or use pejorative or discriminatory language with reference to a person or a group on the basis of who they are or aim to incite discrimination or violence towards that person or group, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factors, for example (OECD, 2022[16]). These kinds of actions may serve to limit the manner in which individuals act or speak, and thus directly impact their participation in public decision making, as allowing open debate and freedom of expression and preventing attacks on others to ensure equal participation in public life, both online and offline, are essential elements of protected civic space. Freedom of expression and pluralistic public opinion cannot be realised if individuals feel they must refrain from discussing certain topics or withdraw from public debate for fear of vilification or harmful racial, gender-based or other stereotypes and discrimination (Illman, 2020[21]). It is thus important that governments take appropriate measures to ensure that all persons are able to engage online on an equal basis with others.
Romania has strong legal protection against hate speech, in line with international standards, although certain terms used are somewhat unclear and open to interpretation. Article 30, para. 7, of the constitution prohibits “any instigation to national, racial, class or religious hatred” and “any incitement to discrimination, territorial separatism or public violence”; while most of these terms are similar to those used in other states’ anti-hate speech legislation, the term “incitement to territorial separatism” may require additional clarification. Article 369 of the Criminal Code, on the other hand, following amendments in early June 2022, prohibits incitement of the public to hatred or discrimination against any category of persons or against a person belonging to such category on the basis of race, nationality, ethnicity, language, religion, gender, sexual orientation, political opinion or belonging, property, social origin, age, disability, chronic non-contagious disease or human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) infection. Punishments are imprisonment of six months to three years or a fine. Article 368 of the Criminal Code also prohibits “urging the audience verbally, in writing or by any means, to commit offences punishable with imprisonment from three months to three years, or with a fine” (Romanian Ministry of Justice, 2009[22]). The sanctions for such behaviour are not specified in law but may not exceed the penalty for the offence that others were instigated to commit. Specific laws passed in previous years also combat antisemitism, Holocaust denial and distortion.4 Romanian legislation likewise provides for the punishment of hate speech as a contravention under the Anti-Discrimination Law, the Audiovisual Law, the Law on Preventing and Combating Violence at Sports Games and the Law on Public Gatherings (ECRI, 2019[23]). The terminology used in the above laws and provisions does not appear to raise any further concerns in terms of compliance with international human rights standards, though some gaps remain (for further information, see the section on implementation challenges and opportunities below).
As discussed in Chapter 1, in 2021, the Romanian parliament adopted a Law for Preventing and Combating Anti-Gypsyism,5 which considers any kind of promotion of “anti-gypsy ideas, concepts or doctrines” to be a crime punishable by imprisonment for three months to three years, and the prohibition of certain rights (Ministry of Justice, 2021[24]). The distribution or making available of anti-Gypsy materials is punishable by imprisonment of between one to five years.
3.3.2. Addressing implementation challenges and identifying opportunities for freedom of expression
Generally speaking, people in Romania are able to express their opinions freely, with some exceptions. Since 2017, Article 19’s Global Expression Report (2021[25]) has classified Romania as a country where freedom of expression is considered “less restricted”, ranking it 44th of 161 countries reviewed (Article 19, 2021[25]).6 In the seven years preceding 2017, the Global Expression Report had considered Romania as a country where expression was “free”, but Article 19’s Expression Agenda Report 2017/2018 had already noted a deterioration of media freedoms and transparency in Romania from 2014 onwards, driven in particular by negative assessments of freedom of discussion, media self-censorship, access to information and civil society activity (Article 19, 2018[26]). Taking a slightly longer view, the V-Dem Institute’s Freedom of Expression and Alternative Sources of Information Index shows that between 2011 and 2021, freedom of expression in Romania was mostly stable, with a slight dip in 2016-19 and recently ranking slightly above the EU average (Figure 3.2) (V-Dem Institute, 2022[27]).
Note: The indicator asks: “To what extent does the government respect press and media freedom, the freedom of ordinary people to discuss political matters at home and in the public sphere, as well as the freedom of academic and cultural expression?”. The scale goes from low to high (0 to 1).
Source: V-Dem Institute (2022[27]), Varieties of Democracy, https://www.v-dem.net/data_analysis/CountryGraph/.
Challenges related to defamation cases and the use of strategic lawsuits against public participation (SLAPPs) are addressed in Chapter 4. The growing use of hate speech is also addressed in detail below as a limitation to freedom of expression and civic space, given the impact that hate speech has on individuals’ ability and willingness to engage in public debate.
Raising awareness of hate speech and seeking long-term solutions
Based on reports from within and outside Romania, hate speech is prevalent in the country and targets a broad spectrum of persons, including people of other nationalities or ethnicities, non-nationals studying and working in Romania, refugees, members of certain religious denominations, persons with disabilities or ailments, members of the LGBTI community and women (Government of Romania, 2021[28]).7 According to the government’s National Strategy for Preventing and Combating Anti-Semitism, Xenophobia, Radicalisation and Hate Speech for 2021-23, hateful content is rapidly becoming more prevalent, especially on social networks (Ministry of Justice, 2021[29]). Moreover, in its 2019 report on Romania, the European Commission against Racism and Intolerance (ECRI) found that racist and intolerant hate speech in public discourse and on the Internet was a widespread problem, with the Roma community, the Hungarian minority, LGBTI persons and the Jewish community as the main targets. In particular, anti-Roma hate speech has become commonplace, including by members of mainstream political parties, according to ECRI (2019[23]). At the same time, ECRI has noted the absence of coherent and systematic data collection on hate speech in Romania.
The government’s abovementioned national strategy aims to respond to, among others, the rapid spread of these phenomena, particularly on social networks and especially targeting Romanians who are perceived to be from a different ethnicity, religion, language community or culture. The strategy mentions a series of measures that state authorities have taken, including: the adoption of a legislative framework to combat antisemitism, Holocaust denial and distortion; providing education concerning the Holocaust in Romania; the adoption of national strategies for the Roma community; the use of administrative and legal mechanisms to combat discrimination in Romania; and participation in international initiatives aimed at combating antisemitism, Holocaust denial and distortion. The current strategy continues these activities, with a particular focus on, among others, improving data collection and activities on enhancing understanding of other cultures (Ministry of Justice, 2021[29]).
Programmatically, the strategy’s main actions involve setting up a working group to assess the threats posed by antisemitism, xenophobia, radicalisation and hate speech for vulnerable groups, as well as developing a unified methodology to identify and report, at the level of the National Agency for Roma, related incidents targeting the Roma community. Additional foreseen actions include conducting opinion polls and evaluating existing training programmes in the law enforcement and education sectors and conducting various other activities in academia and beyond to combat and simultaneously raise further awareness of hate speech (Ministry of Justice, 2021[29]).
The above strategy constitutes an important step in the fight against hateful expression. A 2021 Campaign called Together against Hate, organised by the governmental Department on Inter-Ethnic Relations, also received positive feedback from civil society representatives interviewed during the OECD fact-finding mission.8 The Romanian police is likewise implementing a project aimed at “Combating hate crimes and violent extremism, particularly against Roma population and increasing the quality of police service” (Ministry of Foreign Affairs of Romania, 2022[30]). This project involves awareness-raising campaigns at the national level to reduce victimisation and hate speech against Roma communities. The National Agency for Roma has integrated messages targeting the general public, mass media, online media and others in its public communication campaign to create awareness of stereotypes, prejudices and discrimination against Roma (Ministry of Foreign Affairs of Romania, 2022[30]). Moreover, in 2021, Romania set up a specialised national police unit for the investigation of hate crimes (currently composed of 3 police officers) and 48 specialised police officers tasked with the criminal investigation of hate crimes have been appointed at subnational levels (FRA, 2022[31]).
However, significant challenges remain. Thus, in the context of the execution of a key judgment of the European Court of Human Rights against Romania, the Committee of Ministers of the Council of Europe noted in 2021 that legal provisions related to hate crime “have rarely been applied and the response of the criminal justice system to such crimes remains, for the time being inadequate” (CoE Committee of Ministers, 2021[32]). In terms of implementation of key legislation on hate speech, ECRI and the Department of Inter-Ethnic Relations have both noted that the application of criminal provisions prohibiting hate speech remains extremely limited, leading to impunity in this regard (ECRI, 2019[23]; Government of Romania, 2021[28]). This, combined with the lack of uniform data gathering, results in crimes involving hate speech not always being taken seriously by prosecutors and judges, according to civil society.9 In a report published in 2021, ACCEPT, a national civil society organisation (CSO), further indicated that relevant criminal provisions themselves may be unclear. In particular, there is no definition of hatred and the distinction between criminal hate speech and incitement to hatred under Government Ordinance 137/2000 on the Prevention and Sanctioning of All Forms of Discrimination (Ministry of Justice, 2000[33]), which is an administrative offence, is not always apparent (ACCEPT, 2021[34]). At the same time, state and civil society representatives noted that the recently passed Law for Preventing and Combating Anti-Gypsyism has so far led to a few complaints and that these are still pending resolution by the competent authorities.
Furthermore, hate speech against minorities and vulnerable groups reportedly increased during the COVID-19 pandemic, when Roma people were often scapegoated and accused of being “super spreaders” of the virus.10 In its 2021 report, the government’s Department of Inter-Ethnic Relations found that an increase in hate speech, including online hate speech, was fuelled by media reports (Government of Romania, 2021, p. 53[28]). Similar instances of hate speech against members of the LGBTI community were reported in the context of an (ultimately unsuccessful) 2018 referendum aiming to limit the definition of family in the Romanian constitution to a marriage between a man and a woman. According to ACCEPT, no action was taken by public authorities in these and similar cases involving public speech that incited hatred and marginalisation of LGBTI persons (ACCEPT, 2021[34]) (see the section on equality and non-discrimination). It should be noted in this respect that the abovementioned National Strategy for Preventing and Combating Anti-Semitism, Xenophobia, Radicalisation and Hate Speech does not specifically target hate speech against LGBTI groups or individuals.
The challenge of online hate speech in particular is of widespread public concern in many OECD Members. Many citizens and CSOs are calling for for better moderation of harmful speech by social media platforms and collaboration between the public and private sector to combat the issue. As a response, a number of countries, including France, Germany, Israel and the United Kingdom have adopted legislation that encourages social media companies to take responsibility in removing hate speech and other harmful content from their platforms within a particular period (OECD, 2022[35]). That said, the OECD report An Introduction to Online Platforms and Their Role in the Digital Transformation underlines the need for governments to issue guidance for the platforms responsible for filtering or removing content to ensure that they comply with requirements without infringing on legitimate freedom of expression (OECD, 2019[36]).
To ensure equal participation in public life, Romania could:
Engage in constant monitoring and reporting, awareness raising and targeted sanctions in the area of hate speech overall, but in particular related to existing legislation, notably the Law to Prevent and Combat Anti-Gypsyism, to ensure its effective implementation.
Develop long-term plans for civic education and targeted and sustained awareness-raising campaigns for adults and children to address hate speech and discuss its impact, in co-operation with CSOs.
Ensure targeted outreach to affected groups to ensure greater representation and participation in public decision-making. Consider the introduction of targets and quotas where necessary to promote equity.
Consider investigating whether relevant criminal provisions are unclear in regard to the definition of hatred and the distinction between criminal hate speech and incitement to hatred.
Take inspiration from OECD Members’ efforts to curb online hate speech and collaborate with social media platforms to guide these actors on their responsibilities in moderating and removing hate speech and harmful content.
Review training for judges, prosecutors and police to ensure cases are taken seriously, and consider expanding education initiatives to fully address discrimination and hate speech including within the public administration and parliament, as well as representatives of the media. Consideration may further be given to developing a code of conduct for public figures, given their impact on public opinions and perceptions.
Initiate public consultations with key stakeholders, such as law enforcement and the judiciary, to identify and tackle the root causes underpinning the lack of reporting and insufficient implementation of legislation on hate speech, involving multiple stakeholders.
Similar to freedom of expression, freedom of peaceful assembly is a fundamental right in democratic societies (ECtHR, 2003[37]) and is essential for the public expression of views and opinions (UN Human Rights Committee, 2013[38]). The way individuals are allowed to publicly make their voices heard in areas of public space is a litmus test for openness and the protections afforded to civic space. Thus, laws regulating freedom of peaceful assembly and related practice need to reflect a presumption of the lawfulness of peaceful gatherings, which includes an obligation of tolerance and restraint towards such events in situations where legal or administrative procedures and formalities have not been followed (OSCE/ODIHR/Venice Commission, 2020[39]). States are also obliged to respect and ensure the exercise of this right without discrimination (UN Human Rights Committee, 2020[40]) and should only intervene where necessary and proportionate. Given the importance of freedom of peaceful assembly for civic space, it is essential that relevant legislation is in line with international human rights standards and guidance and tends more towards facilitating assemblies within sight and sound of one’s target audience than limiting this right.
3.4.1. Constitutional recognition and legislation
Overall, while the right to freedom of peaceful assembly seems to be largely respected in practice, key legislation regulating the holding of public gatherings is out of date, with some provisions that appear to be overly burdensome and restrictive. At the same time, Article 39 of the constitution, which stipulates that public meetings, processions, demonstrations or any other assembly shall be free and that such events may only be organised and held peacefully, without any arms whatsoever, is in line with international standards and with the constitutional protections offered by OECD Members and other countries of the region to everyone within their jurisdiction (OECD, 2022[16]). Law 60/1991 on the Organisation and Conduct of Public Meetings (Ministry of Justice, 1991[41]) likewise guarantees the freedom of citizens to express their political, social or other views and to hold and attend rallies, demonstrations, events, processions and other gatherings.
According to Article 1, para. 2, of the law, assemblies set to take place in public squares, public roads or other open-air spaces must be authorised and organisers must apply for a permit to the local mayor’s office at least three days in advance of the event (Articles 6 and 7). Requiring organisers of assemblies to obtain prior authorisation is not per se incompatible with international human rights standards, although the UN Human Rights Committee has pointed out that having to apply for permission to hold an assembly undercuts the idea of freedom of assembly as a basic right (UN Human Rights Committee, 2020[40]). For this reason, the committee has noted that authorisation regimes should in practice function as notification systems, with the holding of assemblies authorised as a matter of course. When revising the law, it may thus be worthwhile to formulate the relevant provisions in a way that reflects these principles (see the section on implementation challenges and opportunities below). Domestic legislation reflects these requirements in different ways, in OECD Members and beyond. Thus, Ireland, for example, does not require the notification of a public assembly at all, even though it may be helpful to ensure that the police can help facilitate larger assemblies (Irish Council for Civil Liberties, 2020[42]). Countries such as Finland and Moldova do not require the notification of smaller assemblies or assemblies that for other reasons will not require policing (Finnish Ministry of Justice, 1999[43]; OSCE/ODIHR, 2008[44]). Spontaneous assemblies also enjoy equal protection under the right to freedom of peaceful assembly (UN Human Rights Committee, 2020[40]) and should thus not be prohibited.
Based on Article 10, para. 2, a refusal to grant a permit can be appealed before an administrative court. Articles 2 and 10 stipulate that organisers need to ensure that public assemblies are carried out in a civilised and lawful manner, without hindering the activity of public or private institutions, and that they must not continue after 11 pm. While it is important that assemblies do not unduly endanger public peace and order, a blanket ban such as the prohibition of hindering the activities of public or private institutions may at times not be compatible with the right of organisers to hold an assembly within sight and sound of the target audience (OSCE/ODIHR/Venice Commission, 2020[39]), especially as the prohibition of an assembly should always be considered a measure of last resort, according to international standards. This is especially relevant because Article 10 provides mayors with extensive rights to prohibit public assemblies. Likewise, a complete ban on assemblies after 11 pm and the rights of mayors to prohibit assemblies if extended public works are to be carried out at the time and place the assembly would be scheduled for would also appear to raise concerns with key freedom of assembly principles. Notably, the UN Human Rights Committee has emphasised the right of organisers to choose the time and place of an assembly and the promotion of an enabling environment for the exercise of the right to freedom of assembly (UN Human Rights Committee, 2020[40]). Similar considerations apply with respect to the prohibition of assemblies in certain locations set out in Article 5 of the law, e.g. in the vicinity of locations such as train or metro stations, ports, airports, hospitals, military bases or certain economic units or machines whose operation poses certain dangers.
Article 5 also prohibits two or more assemblies from occurring simultaneously at the same place or along the same route, regardless of their nature. This likewise appears to unduly limit freedom of assembly, as the UN Human Rights Committee has explicitly stated that counter-demonstrations to an ongoing assembly are also covered by this freedom (UN Human Rights Committee, 2020[40]). The European Court of Human Rights has confirmed that in such cases, the state must protect the right of assembly of both demonstrating groups (insofar as this is possible and provided that the assemblies do not unduly endanger each other or public order) (ECtHR, 2012[45]).
Moreover, Article 9 rightly prohibits assemblies that endanger national security or violate public order, safety or morality, the rights and freedoms of citizens, or that endanger their health. The same applies to assemblies which involve “the propagation of totalitarian ideas of a fascist, communist, racist, chauvinist nature or of any terrorist-diversionary organisation, defamation of the country and the nation, incitement to national or religious hatred, incitement to discrimination, public violence and obscene manifestations, contrary to morals”. While the limitation of assemblies in the interests of national security, public order, health or morals, or the rights and freedoms of others is permitted under international human rights law, it is important that legal provisions containing such limitations are formulated precisely and with care (UN Human Rights Committee, 2020[40]; ECtHR, 2003[37]). In particular, the European Court of Human Rights has stressed that restrictions on the freedoms of assembly and expression are only legitimate in cases of incitement to violence or rejection of democratic principles (ECtHR, 2015[46]). The propagation of “chauvinist” ideas or the “defamation of the country and the nation”, or “incitement to obscene manifestations” that are contrary to morals, are ambiguous terms that lend themselves to multiple interpretations and that could in practice serve to threaten or suppress assemblies propagating minority or unpopular views of certain matters of public policy.
Services and technical arrangements to ensure the conduct of assemblies as set out above are provided by the competent municipality for a fee (Article 15). According to Articles 16 and 17, local police are responsible for ensuring the protection and safety of participants and are mandated to intervene in cases of unrest or violence (Library of Congress, 2021[13]). Given that ensuring the smooth and orderly conduct of an assembly is part of the state’s duty to facilitate assemblies and reflective of its general public order mandate, requiring organisers to pay a fee for such services would not appear to be compatible with the right to freedom of peaceful assembly (UN Human Rights Committee, 2020[40]; OSCE/ODIHR/Venice Commission, 2020[39]).
Penalties for violating Law No. 60/1991 are set out in Chapter V of the law and involve fines for offences specified in Article 26. According to this provision, organisers may be fined for organising and conducting undeclared, unregistered or prohibited assemblies, among others. The organisation or participation in counter-manifestations held at the same time or place as a declared public meeting also leads to fines. Bearing in mind the unclear and at times vague terminology used in provisions prohibiting assemblies from focusing on certain issues or from taking place at specific times or in specific locations, these sanctions would likewise not appear to be compatible with international human rights standards. Indeed, the UN Human Rights Committee has stressed that sanctions imposed for unlawful conduct during assemblies should be proportionate and non-discriminatory in nature and should not be based on ambiguous or over broadly defined offences, nor suppress conduct protected under the ICCPR (UN Human Rights Committee, 2020[40]).
3.4.2. Addressing implementation challenges and identifying opportunities for freedom of peaceful assembly
In practice, individuals are generally able to exercise their right to freedom of peaceful assembly but suffer from a restrictive interpretation of an already restrictive law and from its uneven implementation. Thus, while the violent dispersal of assemblies appears to be a thing of the past, whether an assembly may take place in a certain municipality or not depends largely on the attitude of the respective mayor in charge and whether local authorities facilitate it.
Similarly, the V-Dem Institute’s Freedom of Peaceful Assembly 2021 Index concluded that state authorities “sometimes” respected and protected the right to freedom of peaceful assembly, meaning that they sometimes allowed peaceful assemblies but often arbitrarily denied citizens the right to assemble peacefully (V-Dem Institute, 2022[27]). This marked a downward turn from 2019 onwards, as previously Romania had experienced ups and downs but was generally considered a country that mostly respected the right to freedom of peaceful assembly. Before 2019, Romania already ranked lower than the EU average (V-Dem Institute, 2022[27]) and then dropped further between 2019 and 2021 (Figure 3.3).
Note: The indicator asks: “To what extent do state authorities respect and protect the right of peaceful assembly?” Responses range from 0 (Never), 1 (Rarely) and 2 (Sometimes) to 3 (Mostly) and 4 (Almost always).
Source: V-Dem Institute (2021[47]), Variable Graph, https://www.v-dem.net/data_analysis/VariableGraph/ (accessed on 14 June 2022).
Frontline Defenders has reported cases where human rights defenders participating in peaceful assemblies received administrative fines (Frontline Defenders, n.d.[48]). Notably, in a recent judgment on fines imposed following environmental protests in Romania in 2013, the European Court of Human Rights found that sanctions for political speech, however lenient, can have negative effects on public speech and that the mere failure to notify of an assembly beforehand should not, in itself, justify such sanctions (ECtHR, 2022[49]).
During the OECD fact-finding mission, civil society representatives confirmed a number of challenges related to the implementation of Law 60/1991 and the exercise of freedom of peaceful assembly in general.11 These focused on the following:
Outdated procedures that do not provide the possibility of seeking permits online.
Restrictive interpretation of the law as an authorisation procedure by authorities and uneven standards across municipalities.
A lack of clarity regarding the authority authorised to impose fines and related criteria for fines.
In 2020, 15 CSOs12 from a CSO coalition, NGOs for Citizens, took steps to modernise and improve the legislative framework regulating the right to freedom of peaceful assembly, which resulted in a draft law submitted to parliament by some members of parliament and which is currently pending (Starea Democratiei, 2020[50]).
While during the state of emergency and the state of alert related to the pandemic (see Box 3.1) the ability to hold peaceful assemblies was largely limited, some restrictions on peaceful assemblies were loosened in 2021. Nevertheless, civil society representatives reported that, in cases where the number of participants in public gatherings exceeded permitted limits, organisers of assemblies were fined, as required by applicable legal provisions at the time (e.g. after a large Pride event in Bucharest in 2021), whereas the organisers of other large public events were not.13 Overall, there is a perception among CSOs that religious, cultural or sports gatherings are allowed a significantly higher number of participants than rallies and demonstrations, according to human rights monitors (U.S. DoS, 2021[9]; Amnesty International, 2022[11]).14
To defend freedom of peaceful assembly, Romania could:
Review Law 60/1991, in consultation with civil society, to assess whether it is implemented in a manner that does not unduly restrict civic space. Such a review process could be combined with pending efforts to amend the law, which could be prioritised.
When amending Law 60/1991, consider moving towards a notification process for assemblies (rather than an authorisation process) and allowing spontaneous and simultaneous assemblies, while avoiding blanket bans of assemblies at certain locations or times, as well as unclear formulations, undue fines for assembly organisers and overly broad or high penalties.
Develop clear and standardised procedures for municipalities, including local police, to follow when dealing with notifications of assemblies and the facilitation of such gatherings. The entire process could be enhanced by ensuring that online notifications are possible in all municipalities to ensure transparency.
Offer training to local municipalities and police on how to ensure and protect freedom of peaceful assembly and facilitate assemblies in a non-bureaucratic and consistent manner, while seeking the help of CSO representatives in the development of relevant training modules.
The freedom to associate is also crucial to the functioning of democratic societies15 and an essential precondition for exercising other human rights (OSCE/ODIHR/Venice Commission, 2015[51]). The European Court of Human Rights has recognised that the participation of citizens in the democratic process is to a large extent achieved through belonging to associations which interact with each other and pursue common objectives collectively (ECtHR, 2004[52]). As such, it is also a fundamental element of protected civic space.
3.5.1. Constitutional recognition and legislation
Overall, legislation regulating associations in Romania is largely in line with international human rights standards (with some exceptions set out below and in Chapter 5). Freedom of association is protected by Article 40 of the constitution, which states that citizens may freely associate in political parties, trade unions, employers’ associations and other forms of association. Article 9 of the constitution further states that trade unions, employers’ associations and professional associations “contribute to the protection of their members’ rights and the promotion of their professional, economic and social interests”. The same applies to Article 12 of the EU Charter of Fundamental Rights. These international instruments expressly grant this right to everyone in a country’s jurisdiction, whereas the wording of Article 40 of the constitution could imply that in Romania, this right is only granted to citizens.
At the same time, lower-ranking legislation, notably Government Ordinance 26/2000 on Associations and Foundations, does not make this distinction and, in practice, foreign citizens appear to be able to exercise this right.16 They are permitted to join trade unions and professional associations. Additionally, in case of conflict between national law and international treaties, the latter, including international human rights treaties, take precedence (Article 20 of the constitution). Nevertheless, the OECD’s Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance shows that 82% of all respondents to an OECD survey, including 91% of OECD Members, explicitly grant this right to anyone in law (OECD, 2022[16]).17 Adapting the text of Article 40 to this wording, which is also in line with international human rights standards, could help ensure consistency of the law and provide more explicit protection to all persons who are under the jurisdiction of Romanian courts.
According to Article 40 of the constitution, organisations whose aims or activities “militate against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania” are considered unconstitutional. Similarly, Articles 3 and 4 of Law 367/2022 on Social Dialogue (Ministry of Justice, 2022[53]) allow persons with work contracts, public servants, members of co-operatives and agriculture workers, as well as self-employed persons, to form or join a union but prohibit persons “holding positions of public dignity or assimilated to them” from joining labour unions.18
The main legislation governing associations is Government Ordinance 26/2000 on Associations and Foundations (Ministry of Justice, 2000[54]). The ordinance recognises two types of organisation - associations and foundations - as legal not-for-profit entities. Two or more associations or foundations may join together to form a federation (Library of Congress, 2021[13]). An association can be established by three or more persons who, based on an agreement, share “their knowledge and their lucrative activity, in order to accomplish activities of general interest, or on the interest or a group, or, as the case may be, their personal, non-patrimonial interest” (Article 4). Article 4, para. 2, also provides for a special type of association, established by citizens belonging to national ethnic minorities, the purpose of which is to defend, preserve and promote a national ethnic minority or the public representation of citizens belonging to a national ethnic minority to fulfil a public constitutional mission. Based on Article 15, a foundation may be established by “one or more persons who, on the basis of an act of will inter vivos or for cause of death, establish a patrimony designed permanently and irrevocably for achieving an objective of general interest or, as the case may be, of collective interest” (Library of Congress, 2021[13]). There have been attempts to reform the ordinance since 2018, with a recent amendment introduced to parliament in November 2022 (for further information on the legislative framework for associations and foundations, including registration proceedings, funding and reforms of such legislation of associations, see the section on key legal and policy frameworks governing freedom of association in Chapter 5).
Law 367/2022 on Social Dialogue provides more details on the regulation of trade unions, including who may found and join trade unions and what their purpose is (Ministry of Justice, 2022[53]). Article 2 of the law stipulates that trade unions must be independent of public authorities, political parties and employers’ organisations. In the exercise of their duties, trade unions have the right to take any action provided for by law and to use specific means set out in Article 27 of the law, namely negotiations, dispute resolution procedures through conciliation, mediation, arbitration, petition, protest picket, marching, rallying and demonstration or strike, under the conditions provided by law (Ministry of Justice, 2022[53]). Law 367/2022 largely retains the provisions on trade unions already set out in the previous Law 62/2011, but no longer prohibits trade unions from carrying out actions of a political nature.
Equal treatment and equal opportunities for all who wish to participate in public life are essential prerequisites for a healthy and vibrant civic space. For this reason, both equality and non-discrimination (referring to the unjust or prejudicial treatment of different categories of people) are cross-cutting themes in the OECD’s work on civic space. Moreover, to maintain an open and pluralist civic space, it is important for states to ensure that no group is excluded from decision making, public life or society overall, either de jure or de facto.
Discrimination can take many forms and shapes, ranging from unintentional unequal treatment or micro-aggressions to different forms of direct or indirect discrimination.19 Overt harassment and verbal and physical attacks may also constitute discrimination. When individuals feel excluded, unprotected or threatened, they risk losing trust in state institutions, which directly affects their ability and willingness to engage with such institutions and participate in public decision making or debate. Discrimination, in its various forms, also affects individuals’ ability to exercise other key civic freedoms related to civic space, notably the rights to freedom of expression, assembly and association.
3.6.1. Constitutional recognition and legislation
Romania guarantees the right to freedom from discrimination in its constitution, in addition to a number of anti-discrimination laws. The protection afforded by this legislative framework is generally in line with international standards, and the UN Human Rights Council’s Working Group on Discrimination Against Women and Girls, which visited Romania in early 2020, noted positive legislative and other developments to secure women’s rights (2020[55]). Similarly, a recent Council of Europe report issued by the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) praised the adoption of amendments to the domestic violence and equality laws, among others (GREVIO, 2022[56]).
Nevertheless, the wording of Articles 4 and 16 of the constitution only applies the principles of equality and non-discrimination to citizens and not to everyone on Romania’s territory. Government Ordinance 137/2000 on the Prevention and Sanctioning of All Forms of Discrimination (Ministry of Justice, 2000[33]) reiterates this constitutional principle in Article 1 but, in other provisions, e.g. Articles 3 and 6-11, it speaks of “persons”, not citizens. Such inconsistencies may affect legal certainty in this regard. Limiting the protection against discrimination to citizens would be at odds with relevant provisions in key international human rights instruments that Romania has ratified, notably the ICCPR (Articles 2, 3 and 26) and the ECHR (Article 14 and Protocol 12 thereto), which stipulate that everyone should be protected against discrimination. Similar obligations arise out of the EU Charter of Fundamental Rights (e.g. Articles 20, 21 and 23, but also in the more specialised Articles 24-26, providing special protection for children, the elderly and persons with disabilities, respectively).
Article 4 of the constitution, captioned “[t]he Unity of the People and Equality Among Citizens”, states that “Romania is the common and indivisible homeland of all its citizens regardless of race, ethnic origin, language, religion, sex, opinion, political allegiance, wealth, or social origin”. General protection against discrimination is provided in Article 16, which declares all citizens equal before the law and before public authorities, with no privileges and no discrimination. Article 6 of the constitution protects the right to identity, which includes a state guarantee for members of national minorities to preserve, develop and express their ethnic, cultural, linguistic and religious identity. This provision also states that “protective measures taken by the Romanian state for the preservation, development and expression of identity of persons belonging to national minorities shall conform to the principles of equality and non-discrimination in relation to the other Romanian citizens”. Further provisions in the constitution relating to the rights of minorities include Article 32 on the right to education in one’s mother tongue and Article 62, providing national minorities with a special seat in parliament each if they fail to obtain the necessary number of votes in elections. Article 50 also provides special protection for persons with disabilities and, in this context, specifically mentions the passing of a “national policy of equal opportunities, disability prevention and treatment, so that disabled persons can effectively participate in community life while observing the rights and duties of their parents or legal guardians”.
The main act addressing discrimination and establishing the National Council for Combating Discrimination, a body responsible for monitoring, preventing and sanctioning acts of discrimination, is Government Ordinance 137/2000 (Ministry of Justice, 2000[33]). Article 1, para. 2, guarantees “[t]he principle of equality among citizens [and] the elimination of all privileges and discrimination”, in particular with regard to the exercise of all fundamental rights. Article 3 of the ordinance defines several forms of direct and indirect discrimination and applies to public and private entities and public institutions with competencies in areas such as employment, social protection and social security, public and other services, education, the enforcement of public order and other domains of social life. Any provisions, criteria and practices which disadvantage certain persons, on grounds detailed by the ordinance, are considered discriminatory, except when they are objectively justified by a legitimate aim and the means employed to reach that aim are appropriate and necessary (Article 2, para. 3).
Article 2 of the ordinance protects a wide variety of persons against discrimination, based on characteristics such as race, nationality, ethnicity, language and religion or belief, but also sex, sexual orientation, age, disability or chronic non-contagious diseases and HIV infections. Moreover, LGBTI persons also enjoy other legal protections, such as equal age of consent and protection against hate crimes (Norocel and Băluţă, 2021[57]). In 2018, the Romanian Constitutional Court passed several judgments strengthening the rights of homosexual couples, notably in areas such as family rights and residency rights for same-sex spouses of EU citizens (Euractiv, 2018[58]; Reuters, 2018[59]). In 2020, it struck down a law adopted by parliament prohibiting activities aimed at spreading gender identity theory or opinion in educational settings (Human Rights Watch, 2020[60]).
Prohibition of discrimination, as well as measures to prevent discrimination, are further regulated and addressed in several Romanian laws, including Law 202/2002 on Equal Opportunities and Treatment between Women and Men (Ministry of Justice, 2002[61]) and Law 504/2002 on Audio-visual Media Services (Ministry of Justice, 2002[62]), which provides that commercial communications broadcasted by audio-visual media must not include any form of discrimination (Library of Congress, 2021[13]). Law 202/2002 also defines gender-based violence and specific actions to tackle it, including in cases of sexual harassment. Over the last four years, new laws have further been passed to better protect the Jewish and Roma communities and protection against hate speech has been enhanced (see the section on freedom of expression above). Notably, a new Law 276/2021 on Some Measures to Study Jewish History and the Holocaust (Ministry of Justice, 2021[63]) created a new discipline on “History of the Jews – The Holocaust”, which will be studied in schools from 2023. The law likewise foresees professional training for teachers and the establishment of a National Museum of the History of the Jews, as well as the merit-based Constantin Karadja Prize.20
Law 202/2002 established the National Agency for Equal Opportunities between Women and Men, a specialised administrative body subordinate to the Ministry of Family, Youth and Equal Opportunities. The National Agency “promotes the principle of equal opportunities and treatment between women and men in order to eliminate all forms of discrimination based on sex, in all national policies and programmes” (Article 23). Law 202/2002 also created the National Commission on Equal Opportunities for Women and Men (CONES), made up of representatives of ministries and other specialised central administrative bodies, trade unions and employers’ associations, and representatives of CSOs. This commission is responsible for gender mainstreaming national policies and ensures the co-ordination of activities of county commissions and of the municipality of Bucharest in the field of equal opportunities between women and men, which have similar compositions and competencies at the local level (Articles 24 and 25). Additionally, electoral laws contain provisions which foresee the representation of both women and men on candidate lists for central, local and European Parliament elections (Ministry of Justice, 2015[64]; 2015[65]; 2007[66]). Legislation on elections for the Senate and Chamber of Deputies of Romania is currently being amended with a view to ensuring a balanced representation of men and women on party lists, with party lists for candidates for both houses of parliament drawn up in such a way as to comply with the minimum representation quota for women and men at 33% of the total number of candidates proposed (Chamber of Deputies, 2022[67]).
Romania was the 14th state to ratify the Council of Europe Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force in 2016. To implement the convention, the Romanian parliament adopted a legislative package that included, among others, Law 174/2018 on amending and supplementing Law 217/2003 for Preventing and Combating Domestic Violence (Ministry of Justice, 2003[68]) and Law 178/2018 on amending and supplementing Law 202/2002 on Equal Opportunities and Treatment between Women and Men.
Law 448/2006 protects and promotes the rights of persons with disabilities and established the National Authority for Persons with Disabilities (now National Authority for the Protection of Persons with Disabilities, under the Ministry of Labour and Social Solidarity), which develops policies and ensures the monitoring and control of the observance of the rights of persons with disabilities (Article 8) (Ministry of Justice, 2006[69]). Additionally, in 2020, a law on Romanian Sign Language recognised sign language as the mother tongue specific to deaf people (Ministry of Justice, 2020[70]).
Emergency Ordinance 78/2004 established a body to improve the situation of the Roma community, namely the National Agency for Roma, subordinate to the government (Ministry of Justice, 2004[71]). In 2019, the Law on National Education was amended to ensure better conditions allowing members of minority communities to be educated in their mother tongues (Ministry of Foreign Affairs of Romania, 2022[30]). At the same time, while the rights of national minorities such as the Roma community are recognised in the constitution, there is no consolidated legal framework related to the protection of minority rights in Romania, since the draft Law on the Status of National Minorities has not yet been adopted, according to the Advisory Committee on the Framework Convention for National Minorities (2018[72]). The absence of such legislation was mentioned as an ongoing challenge by government and civil society interviewees.21 The advisory committee considers existing legislation regulating different aspects of national minority protection to be inconsistent and open to ambiguous, possibly contradictory interpretations.
Key national strategies and other government actions
The government has developed a range of national strategies to enhance equality and to protect and promote the rights of individuals threatened by exclusion or discrimination. These include strategies to reduce poverty and social exclusion, promote equal opportunity and treatment between women and men, combat domestic violence and sexual violence, offer barrier-free movement to persons with disabilities and to foster inclusion of Roma and migrants in society (see the section on implementation challenges and opportunities below). More detailed procedural steps on the preparation of such strategies, including consultations with stakeholders in the preparation phase, as well as overall government co-ordination in this regard and monitoring and evaluation of strategies, are set out in the 2022 Government Methodology on Developing, Implementing, Monitoring, Evaluating and Updating Government Strategies (Ministry of Justice, 2022[73]).
In the field of gender equality, the latest National Strategy for the Promotion of Equal Opportunity and Treatment between Women and Men and Preventing and Combating Domestic Violence spanned the years 2018-21. The equal opportunity pillar of the strategy focused on the following areas: education, labour market, healthcare, balanced participation of women and men in the decision-making process and gender mainstreaming. The pillar related to domestic violence focused on strengthening relevant legislation, enhancing victim support and protection measures, preventing domestic and sexual violence, and monitoring and evaluation measures taken. A new national strategy is pending adoption.
The most recent national strategy for people with disabilities, called “A society without barriers for people with disabilities”, covered the period 2016-20 and aimed to stimulate the active participation of people with disabilities in the community by increasing accessibility to the physical environment, information and communications, through quality social services and better monitoring of the way rights of persons with disabilities are respected. A new strategy is still pending adoption.
In April 2022, the government passed its latest Strategy for the Inclusion of Romanian Citizens belonging to the Roma Minority for the Period 2022-2027 (hereafter the “Roma Inclusion Strategy”). Crucially, the strategy notes that the development, implementation, monitoring, evaluation and review of public policies and programmes that impact Roma will be carried out with the active involvement of representatives of the Roma community while adopting an inter-cultural approach and bearing in mind the importance of maintaining gender awareness. Based on an in-depth evaluation of the status quo of the Roma community and an evaluation of the previous Roma Inclusion Strategy (2015-2020), the six main objectives of the strategy (Ministry of Justice, 2022[74]) focus on enhancing Roma access to housing, education, employment and healthcare services, and conducting research on Romani cultural heritage and cultural identity, as well as combating discrimination, anti-Roma discourse and attitudes generating hate speech or hate crimes. There are also individual action plans to achieve these six objectives.
To implement, monitor and evaluate the strategy, a special inter-ministerial committee was created by decree of the prime minister. This is co-chaired by a representative of the Prime Minister’s Office and the President of the National Agency for Roma. The committee is composed of representatives of various public institutions, including the line ministries responsible for areas as diverse as finance, development, investment, labour, entrepreneurship, health, education, family and culture, the ombudsman and various specialised national agencies or similar bodies dealing with equality, employment, pensions, public order and other related matters. The activities of the committee are carried out through various working groups which address the following matters: the right to housing; the right to education and cultural identity; the right to health; rights of the child; entrepreneurship and jobs; intra-community mobility; combating discrimination; and the promotion of legislative changes. The strategy further includes detailed instructions on how it should be implemented at the local, county and central levels and foresees at least one review in the middle of its implementation period.
In late November 2022, the government passed a Strategy for Surveillance, Control and Prevention of HIV/AIDS Infection for the Period 2022-2030 (Government of Romania, 2022[75]), which aims to improve the policy and regulatory framework and enhance inter-sectoral and inter-institutional collaboration and co-ordination by establishing a National Inter-Sectoral Committee for Tuberculosis and HIV/AIDS Control, but also to improve the capacities of the Ministry of Health in this field.
The above strategies are important instruments to protect and promote equality in Romania and to ensure that individuals and groups are not discriminated against. The initiating authorities have habitually involved relevant civil society groups in the course of their development, as is required by the relevant government methodology (Ministry of Justice, 2022[73]). However, civil society interviewees noted that the development of these documents is rarely based on accurate and up-to-date data.22 Even where new strategies have been developed at regular intervals (e.g. in relation to Roma rights), the situation of many of the above groups has not always improved. This may be due to a lack of effective monitoring and evaluation in practice, despite existing monitoring rules and procedures in the government methodology and in a specialised government regulation outlining processes for developing, monitoring and evaluating public policies at the central level (Ministry of Justice, 2005[76]) (for further detail on weaknesses in monitoring and evaluation of strategies, see the section on implementation challenges and opportunities below).
At the same time, there is currently no overall governmental anti-discrimination strategy that focuses on equal rights in general and on strengthening anti-discrimination bodies. In 2007, a general anti-discrimination strategy was adopted by the National Council for Combating Discrimination (Ministry of Justice, 2007[77]) but this was not followed by further such strategies and was, in any event, not a government strategy. Moreover, there is no dedicated strategy in place to protect the rights of LGBTI persons.
In the education sector, the segregation of certain pupils based in particular on their ethnicity or disability constitutes a longstanding issue, which is, according to ECRI, not addressed in legislation on combating discrimination (ECRI, 2019[23]). The Ministry of Education has, however, passed Framework Order 6134/2016 on the prohibition of school segregation in pre-university schools, which these schools are obliged to follow. Articles 4 and 5 of the order defines segregation as the physical separation of pre-schoolers or pupils from their peers into units, groups, classes, buildings or separate parts of a classroom, in a manner that disproportionately reduces their numbers in classes when compared to the overall percentage of such groups in the population (Ministry of Justice, 2016[78]). In addition to prohibiting all forms of segregation, the above order creates a special National Commission for Desegregation and Educational Inclusion to co-ordinate the implementation of an action plan for school desegregation and to improve educational quality. Failure to comply with requirements of the order leads to different forms of liability, although the order does not contain references to particular offences set out in administrative or criminal law. While it is positive that the Ministry of Education is seeking to combat segregation in schools, including this phenomenon in anti-discrimination legislation would demonstrate the importance of fighting it and could help ensure accountability in schools which continue to practise it. Moreover, the consequences of violating legal provisions that prohibit segregation would also become clearer, which could further help eradicate this form of discrimination.
3.6.2. Addressing implementation challenges and identifying opportunities for equality and non-discrimination
While, as stated above, Romania has laws against discrimination and has developed many strategies to assist different groups suffering from exclusion and discrimination, implementation challenges remain. It is crucial that measures are taken to monitor, counter and raise awareness of inequalities and to create a level playing field where all persons benefit from equal protection of their rights and are enabled to contribute to policy making on an equal basis. The various challenges and opportunities facing particular groups are described in greater detail below.
Improving the inclusion of ethnic minorities, including the Roma community
As discussed above and in Chapter 1, numerous strategies and policies have been developed to enhance the inclusion of minorities including Roma into Romanian society and to reduce inequalities and discrimination. Thus, the Council of Europe has commended Romanian efforts to promote minority cultures and education and has recognised steps taken to facilitate the representation of minority communities in parliament (Council of Europe, 2018[72]). During the OECD fact-finding mission, government representatives reported that minority seats in parliament were mostly filled and that having lower electoral thresholds for deputies from minority communities worked well in practice.23 ECRI has also praised Romania for its new legislation criminalising antisemitism as well as for the measures it has undertaken to address the educational needs of the Roma community, the school dropout rate and school segregation affecting the Roma community (ECRI, 2019[23]).
The government has likewise reported instances where prefects have organised consultations between civil servants and Roma NGOs, including on how to improve social assistance and reduce unemployment and the school dropout rate in the Roma community (Ministry of Foreign Affairs of Romania, 2022[30]). It has further organised awareness-raising campaigns and projects in different counties relating to education and Roma children’s rights and combating discrimination. To combat school segregation, a National Committee for Desegregation and Educational Inclusion was established and a methodology for monitoring school segregation was implemented in the 2021-22 school year, as well as related training sessions (Ministry of Foreign Affairs of Romania, 2022[30]). Government interviewees noted that in a number of counties, public officials responsible for Roma issues have strong ties to the local Roma communities and to grassroots movements, allowing them to develop action plans based on adequately assessed community needs.24 However, they acknowledged that it is also sometimes difficult to identify those in need due to a lack of trained social workers at the local level. Both government and civil society representatives described the National Agency for Roma as severely understaffed and under-resourced.
Notably, as discussed in Chapter 1, the Roma Inclusion Strategy also confirmed, with reference to a 2018 comparative study on the needs of Roma communities conducted by the Romanian Institute for Evaluation and Strategies, that while the situation has improved in some respects, there remain visible differences between the Roma and majority populations (Government of Romania, 2022[79]). During the OECD fact-finding mission, representatives of government and civil society alike noted that Roma continue to be excluded from many aspects of daily life, including infrastructure, employment, healthcare and education.25 This negatively impacts their ability to engage with public institutions and officials and to influence decision making, compared with the rest of the population.
Pertinent reports further indicate that prejudice against minority groups, particularly Roma, persists within the majority population (see Chapter 1) (IRES, 2020[80]). In surveys aiming to ascertain how comfortable individuals would be with minorities and vulnerable persons (including Roma and persons with a different gender, skin colour, sexual orientation, ethnic background, age or disability) in the highest political positions, in a work environment or in a private/family context, responses from Romania demonstrated a significantly higher level of discomfort than the EU average (EC, 2019[81]). In its Fourth Opinion on Romania, published in 2018, the Council of Europe’s Advisory Committee on the Framework Convention on National Minorities noted as concerning the persistent negative attitudes against the Roma community, and also anti-Hungarian sentiment (Council of Europe, 2018[72]). These challenges hamper effective implementation of the abovementioned laws, strategies and other activities to reduce inequalities and combat discrimination.
In its recently adopted Roma Inclusion Strategy (2022-27), the Government of Romania reflected on the challenges experienced when implementing the previous strategy (2015-20). Based on evaluation reports prepared by both civil society and international bodies and institutions, it found that implementation had been hampered by a lack of an effective monitoring and evaluation mechanism and the fact that action plans adopted at local levels merely replicated national measures but did not adapt them to the realities on the ground or available resources (Government of Romania, 2022[79]). Similarly, the Advisory Committee on the Framework Convention for National Minorities concluded that the 2015-20 strategy had not identified sources of funding, nor did it contain mechanisms to ensure implementation at the local level (Council of Europe, 2018[72]).
One particular challenge in this respect is the absence of up-to-date national-level data on the Roma population, on which strategies are based.26 This lack of regular data collection was confirmed by civil society representatives, some of whom noted that the government was not permitted to collect individual data relating to a person’s ethnicity.27 A 2018 report monitoring the implementation of the 2015-20 strategy indicated that this may be due to a misinterpretation of the EU General Data Protection Regulation (GDPR) and of existing legislation on data protection (EC, 2019[82]), notably Law 677/2001 for the Protection of Individuals with Regard to the Processing of Personal Data and the Free Movement of Such Data (Ministry of Justice, 2001[83]) which has since been repealed. In 2015, the then UN Special Rapporteur on extreme poverty and human rights noted such a misconception during his country visit to Romania, stating that while Law 677/2001 prohibited the processing of data of a personal nature on a person’s ethnic or racial origins, the relevant provision (Article 7 of the law) also allowed for certain exceptions, e.g. where the respective individuals had given their consent, or where data collection serves the protection of important public interest and relevant safeguards are in place (UN, 2015[84]). Given that up-to-date and accurate data is an essential prerequisite for conducting evidence-based policy making in specific areas, Romania should focus on developing its national data-gathering capacity as a priority.
Ensuring equal participation for persons with disabilities
Mechanisms are in place to help persons with disabilities exercise their civic freedoms on an equal basis with others. Thus, according to the government, access to buildings is verified on a regular basis (Ministry of Foreign Affairs of Romania, 2022[30]). The quality of public and private social services facilities is regularly assessed (Ministry of Foreign Affairs of Romania, 2022[30]) and Romania guarantees the right to education of all persons with special educational needs. In the employment sector, policies and laws have been amended and projects have been implemented with funds from the state budget and EU funds, to stimulate the employment of vulnerable groups, including people with disabilities (Gîrlescu, 2021[85]).
However, as in many other countries, civic space for persons with disabilities is restricted by multiple obstacles in their daily lives, which range from challenges accessing institutions, buildings, their own homes, information and public transport, to unemployment and consequently, poverty, social exclusion and obstacles to participating in political and social life and decision making (Grigoraș, Salazar and Vladu, 2021[86]). Overall, the rate of employment of people with disabilities in Romania is low, by some definitions as low as 17.97% (Gîrlescu, 2021[85]). Relevant laws and policies are described as ineffective by the abovementioned European Network of Legal Experts, largely due to reduced training opportunities, poor infrastructure, and pervasive stigma and discrimination, with employers often not willing to adapt their working conditions (Lordache, 2021[87]). More than half of Romania’s children with disabilities are educated in segregated settings or are completely excluded from the education system; the quality of their education is often poor, according to a 2021 diagnosis commissioned by the National Authority for the Rights of Persons with Disabilities, Children and Adoptions (now the National Authority for the Protection of Persons with Disabilities) (Grigoraș, Salazar and Vladu, 2021[86]; Gîrlescu, 2021[85]).
Civil society interviewees confirmed that persons with disabilities suffer numerous forms of discrimination in their daily lives, especially in the employment sector, and struggle to make their voices heard.28 They reported that a chronic lack of employment or underemployment leads to widespread social exclusion from public life, particularly in rural areas.
Countering discrimination against the LGBTI community
The situation for members of the LGBTI community has improved in some ways over the last decades, as evidenced by Article 2 of Government Ordinance 137/2000 (Ministry of Justice, 2000[33]) which explicitly protects against discrimination on the basis of a person’s sexual orientation (among others), coupled with other legal protections for LGBTI people, related to equal age of consent and hate crimes (Norocel and Băluţă, 2021[57]). Still, this group of persons continues to suffer daily attacks, both verbal and physical, according to civil society. A national survey commissioned in 2021 by the NGO ACCEPT found that 43% of people surveyed supported a legal form of same-sex union in Romania, either as civil unions or marriage (ACCEPT, 2021[88]). However, against the backdrop of this progress in creating an inclusive environment, the LGBTI community has nevertheless been targeted by recent legislative proposals with the aim of restricting key rights and acts of aggression during NGO-organised events, according to the European Commission (EC) network of legal experts in gender equality and non-discrimination (European Network of Legal Experts) (Lordache, 2021[87]). These attacks remain uninvestigated, with no sanctions or other forms of accountability for the initiators, and CSOs interviewed during the OECD’s fact-finding mission noted that key judgments of the European Court of Human Rights involving the rights of LGBTI persons remained unimplemented.29 Moreover, in 2018, a number of political parties initiated a referendum seeking to constitutionally limit marriage to a man and a woman, thereby excluding same-sex marriage (Norocel and Băluţă, 2021[57]; ACCEPT, 2021[34]). The 2021 country report on Romania of the European Network of Legal Experts noted that while the referendum failed due to an active boycott leading to a low turnout, no measures were taken to assess, respond to and tackle the homophobia that persisted after the referendum was declared invalid (Lordache, 2021[87]).
According to observers, there is a growing homo- and transphobic climate in Romanian society and LGBTI persons experience different forms of discrimination in their daily lives (ECRI, 2019[23]). In 2022, Romania ranked 26th out of 27 EU countries for LGBTI rights protection (Rainbow Europe, n.d.[89]). In addition, a 2020 EU Fundamental Rights Agency (FRA) survey found that Romania, alongside Poland, had the joint highest rate in the EU of LGBTI victims of physical or sexual attacks (FRA, 2020[90]). Thus, in Romania, 15% of survey respondents reported that they had been attacked due to their sexual identity in the preceding 5 years (the EU average is 11%) (FRA, 2020[90]). Currently, a draft law prohibiting the use of materials in schools that allegedly promote being LGBTI is pending before the lower house of parliament (Gupta, 2022[91]; Human Rights Watch, 2022[92]). CSOs working on the protection of human rights expressed concerns regarding the above initiatives and saw them as attempts to restrict civic space for LGBTI persons.30
Strengthening gender equality and combating violence against women
Recent years have seen Romania pass a spate of legislation and policies to strengthen and protect the rights of women, enhance equal opportunities and combat violence against women. This is of particular importance to ensure their equal and full participation in public life. At the same time, while approaches to gender equality have progressed over the last decades, paternalistic attitudes continue to prevail and both a lack of balanced representation in central and local public bodies and gender-based violence are ongoing challenges. Notably OECD data on social institutions and gender from 2019 demonstrates that, with a score of 16.6,31 there is a moderate level of discrimination against women in Romania (OECD, 2019[93]). According to civil society interviewees, the COVID-19 pandemic and ensuing lockdown have since reinforced traditional gender roles in families and the working environment for organisations focusing on gender issues has deteriorated overall.32 While the National Agency for Gender Equality was praised for its willingness to collaborate with civil society, it is perceived as weak and lacking continuity in its work programmes, as being stretched too thin and as requiring more broad political support.33
Many international observers have likewise noted that Romania could do more to ensure gender equality at all levels of society. Thus, Romania ranked 25th in the 2021 Gender Equality Index of the European Institute for Gender Equality, with a score 13.5% below the EU score (EIGE, 2021[94]). In 2020, the UN Human Rights Council’s Working Group on Discrimination Against Women and Girls noted that Romania was progressing towards gender equality at a slower pace than other EU member states, stating that political instability – due to frequent changes of government – had hindered the continuity and implementation of relevant laws, public policies and institutional reforms (2020[55]). One explanation from civil society is that, in Romania, gender equality policies may have been introduced as a result of EU accession, in a top-down manner, meaning that broad political support may still be lacking.34
This is confirmed by international and national observers, noting that in Romania, gender, gender equality and gender studies have been publicly delegitimised and portrayed as threats to tradition and nation (Băluţă and Tufiș, 2021[95]), with a backlash against women’s rights by conservative cultural, political and religious movements, in particular with regard to sexual and reproductive rights. On this note, the UN Human Rights Council’s Working Group on Discrimination Against Women and Girls noted that there was no comprehensive national strategy on sexual and reproductive health or sexuality education in place, even though Romania has one of the highest teenage pregnancy rates in Europe, predominantly in rural areas (2020[55]). Overall, a European Values Study conducted in 2020 found that traditional stereotypes as to the roles of men and women in society were twice as prevalent in Romania as in other EU countries (Băluţă, 2021[96]), although a Gender Barometer35 conducted in 2018 demonstrated that the vast majority of people surveyed unanimously considered that in a family, both spouses should earn money to support the family (96%) (Băluţă and Tufiș, 2021[95]). The same 2018 Gender Barometer also found that over the last 20 years, perceptions of women in leadership roles in economics or politics have changed significantly for the better.
Nevertheless, one of the key issues raised by civil society representatives was the insufficient representation of women in politics.36 A 2019 report on equality between women and men in the EU noted that, in Romania, the proportion of women in single or lower houses of parliament was lower (21.9%) than the EU average (30.2%) (Figure 3.4).37 Additionally, men occupy four out of every five seats in regional assemblies and women’s representation in local assemblies is likewise very low, with Romania ranking lowest of all EU countries with local assemblies only comprising 12% women (EC, 2019[97]). It is hoped that pending amendments to electoral legislation (which already contain provisions on ensuring the representation of both sexes on party lists) will ensure a greater gender balance in such bodies.
Source: EC (2019[97]), Report on Equality between Women and Men in the EU, https://ec.europa.eu/info/sites/default/files/aid_development_cooperation_fundamental_rights/annual_report_ge_2019_en.pdf.
A further obstacle to women’s full participation in society is the discriminatory violence they face. OECD data on violence against women from 2019 indicates that in Romania, 24% of women have experienced physical and/or sexual violence from an intimate partner at some time in their lives, which is among the higher levels of EU countries surveyed (OECD, 2019[98]) (Figure 3.5).38 The UN Human Rights Council’s Working Group on Discrimination Against Women and Girls has also reported high tolerance of domestic violence, as well as victim-blaming attitudes, resulting in under-reporting of gender-based violence, in addition to relevant authorities’ tendency to minimise the seriousness of such offences (2020[55]). The 2021 Gender Index of the European Institute for Gender Equality noted that Roma women and girls were particularly vulnerable to domestic violence, sexual violence, trafficking of women and early marriage, as were girls whose parents work abroad, girls and women with disabilities (particularly those who live in state institutions), and women and girls who work and/or live on the streets (EIGE, 2021[94]). The Gender Index further identifies new forms of gender-based violence, such as revenge pornography and cyber violence as particularly concerning for girls and young women.
Note: The percentage of women who have experienced physical and/or sexual violence from an intimate partner at some time in their lives
Source: OECD (2019[98]), Gender, Institutions and Development - Violence Against Women (indicator), https://data.oecd.org/inequality/violence-against-women.htm.
To counter inequality and discrimination more effectively, Romania could:
Prioritise adopting the Law on the Status of Minorities as a first step to strengthening the rights of minorities in practice and enhancing legal clarity. Constitutional and other legislation could likewise be amended, so that not only citizens but all people in Romania are protected by law from discrimination.
Adopt a more co-ordinated and inclusive approach when implementing the new Roma Inclusion Strategy. It may further be useful to debate ways of obtaining up-to-date data prior to the mid-term review of the strategy and to use this review to conduct an in-depth monitoring and evaluation exercise of what has worked well in the past and what has not (and why not).
Likewise prioritise the adoption and implementation of relevant new national strategies (e.g. on persons with disabilities and domestic violence) in consultation with affected communities, once existing ones have expired, as well as a general strategy for enhancing equality in Romania by ensuring the implementation of relevant anti-discrimination legislation and by strengthening anti-discrimination bodies. Consideration may also be given to addressing problems faced by the LGBTI community in Romania, and whether a strategy or other public document focused on protecting and enhancing the rights of LGBTI persons could help to resolve them. Existing and future strategies should focus on the collection of up-to-date data in addition to evidence-based monitoring and evaluation mechanisms.
Initiate special training and awareness-raising programmes for teachers and parents in the education sector regarding the needs of Roma children and children with disabilities. In addition, existing orders on combating segregation in schools may need to be reviewed to assess their usefulness, identify hurdles to their effective implementation and introduce sanctions for non-compliance, with consideration given to including measures to combat school segregation in relevant anti-discrimination legislation.
Further strengthen implementing bodies such as the National Agency for Roma, the National Authority for the Rights of Disabled Persons, and the National Agency for Equal Opportunities for Women and Men, e.g. by providing them with sufficient funds, staff and political backing to ensure they can adequately fulfil their mandates.
Provide more civic education to adults and children on civic freedoms, notably of different under-represented population groups (e.g. LGBTI persons, disabled persons, Roma community, women), especially in rural areas, and engage in awareness raising initiatives to prevent discriminatory violence.
It is crucial that the exercise of civic freedoms, essential for maintaining and protecting civic space, is protected by functioning, accessible and effective oversight mechanisms, in both law and practice. Such mechanisms may include administrative proceedings, which can lead to court proceedings that also address human rights complaints. However, the focus of administrative proceedings in Romania is often on violations of administrative or other laws by public administrations and only indirectly on the violation of individuals’ human rights. Human rights complaints mechanisms explicitly examine human rights violations but unlike courts, do not generally issue binding decisions or sanctions for non-compliance with the law. On the other hand, ombudsman institutions traditionally interact closely with citizens and act as guardians of their rights and mediators with the public administration. Their privileged contact with citizens as well as their expertise in the functioning of public administration puts them in a unique position to promote the principles of open government, both in its own functioning and in that of the public administration as a whole (Zuegel, Cantera and Bellantoni, 2018[99]). Generally, it is important that all oversight bodies, both judicial and non-judicial, are well funded and sufficiently staffed, with appointment and funding mechanisms that strengthen their independence from the executive.39
In Romania, the law provides individuals or groups alleging violations of civic freedoms with a number of options: they can either take their case to non-judicial human rights complaints mechanisms such as the People’s Advocate, the National Supervisory Authority for Personal Data Processing or the National Council for Combating Discrimination, or they can follow court processes. The above complaints mechanisms each have a somewhat different focus but are all independent from the executive, both structurally and financially. This independence has allowed these bodies to review and raise awareness of cases where state actions have impacted the civic freedoms of individuals and groups, and to evolve into important protectors of civic space as a whole.
3.7.1. Non-judicial complaints mechanisms
The People’s Advocate (ombudsman)
The main human rights protection mechanism and thus one of the key guarantors of civic space in Romania, aside from the courts, is the People’s Advocate, established by Chapter IV of the constitution to defend individuals’ rights and freedoms (Article 53). Furthermore, based on Article 59 of the constitution, the incumbent may exercise his/her duties upon the request of aggrieved persons or ex officio.40
Article 1 of Law 35/1997 on the Organization and Functioning of the People’s Advocate specifies that this body is a national human rights institution under the Paris Principles adopted by the UN General Assembly (UN, 1993[100]), which is also reflected in the fact that the institution is an autonomous organ independent of any other public authority (Article 2) (Ministry of Justice, 1997[101]).41 The law contains further provisions on appointment procedures (Chapter II), complaints procedures (Article 17 and following), and accountability, incompatibilities and immunities (Chapter VI).
The institution of the People’s Advocate exercises its powers either ex officio or at the request of individuals (Article 16). He/she may also be consulted by the initiators of draft laws and ordinances which, based on their content, concern citizens’ civic freedoms (Article 30) or by the Constitutional Court when it reviews matters falling within his/her purview. At the same time, this institution may notify the Constitutional Court of the unconstitutionality of laws before their promulgation. Like other national human rights institutions, the findings of this body are not binding.
The head of the institution is appointed by the Chamber of Deputies and the Senate, in a joint sitting, based on nominations made by the permanent bureaus of both houses of parliament, following recommendations received from parliamentary groups from both houses; his/her term of office may be renewed once (Articles 6 and 7 of Law 35/1997). Under Article 9, the incumbent may be dismissed before the end of his/her term if he/she violates “the Constitution and laws”, by a majority vote of the deputies and senators present in the Chamber of Deputies and the Senate in a joint sitting, at the proposal of the permanent bureaus of both houses of parliament, which in turn is based on a joint report of the legal commissions of both houses.
In mid-June 2021, the legislative committees of both houses of parliament convened and voted to dismiss the current People’s Advocate, claiming that she had violated the constitution and other laws (IOI, 2021[102]). Following notification of the unconstitutionality of this act before the Constitutional Court, the latter issued a decision in late 2021 confirming that this removal from office had been unconstitutional and reinstated her. While stressing that, in principle, parliament was competent to remove the People’s Advocate from office, the Constitutional Court noted that it had over-interpreted the law, as the existing legislative framework did not regulate separately and exhaustively in which circumstances such a step would be justified (International IDEA, 2021[103]). The People’s Advocate has remained in office since her reinstatement but the legislative framework has so far not been clarified.
According to Article 59 of Law 35/1997, the institution has its own budget, which is part of the state budget and is approved following an advisory opinion of the Ministry of Public Finances and then forwarded to the government for separate inclusion in the draft state budget. Any objections to the government’s draft budget may be raised in parliament.
In its latest annual report for 2022 (People's Advocate of Romania, 2022[104]), the People’s Advocate reported that in the same year, it conducted 2 468 ex officio proceedings and received 12 033 complaints, the majority of which concerned access to justice (2 011 complaints), the right to petition (1 865), the right to private property (1 373), the right to a decent standard of living (950) and the right to information (906). Furthermore, in line with the above, it conducted 281 investigations and issued 174 recommendations and 3 special reports. It also submitted 11 complaints to the Constitutional Court.
The National Supervisory Authority for Personal Data Processing (ANSPDCP)
For Information on the National Supervisory Authority for Personal Data Processing, see the section on institutional frameworks and constraints under the section on protecting personal data and open Internet in Chapter 4.
The National Council for Combating Discrimination
A third key human rights protection institution is the National Council for Combating Discrimination (hereafter “the council”), established by Government Ordinance 137/2000, as an autonomous public state authority tasked with: preparing and enforcing public policies on non-discrimination; preventing all forms of discrimination; mediating in discrimination disputes; investigating, ascertaining and sanctioning acts of discrimination; monitoring cases of discrimination; and providing specialised assistance to victims of discrimination (Articles 16-19 of the Government Ordinance). According to Article 19, para. 2, of the Government Ordinance, the council exercises its legal authority in response to petitions and complaints from natural or legal persons or takes action ex officio. Article 30 of the Government Ordinance states that the council’s budget is covered by the state budget. The council draws up the draft budget with the Public Finance Ministry’s approval.
Decisions of the council are taken by its steering board, which also appoints the president from among the council members under Article 22 of the Government Ordinance. As stated in Article 23, the steering board is a collective and deliberative decision-making body composed of nine members appointed in plenary sessions by both houses of parliament. Based on Article 24, nominations to appoint members to the steering board are filed with the permanent bureaus of the two houses of parliament, which conduct interviews of the respective candidates in a joint session. The candidates are then confirmed during a joint session of the Chamber of Deputies and the Senate by majority decision, based on the report of the permanent bureaus.
The council submits annual reports to parliament, in line with Article 22, para. 2, of the Government Ordinance. In its 2021 report (2021[105]), it found that in 153 out of 1 048 petitions received (the highest number of petitions ever), public officials had engaged in discriminatory behaviour. The main grounds for discrimination were cited as “social category” (301), beliefs (98), nationality (75), disability (73) and ethnicity (49). The topmost areas where discrimination was found to have occurred were access to employment and profession (397), personal dignity (mostly relating to harassment or demeaning treatment of others; 263) and access to public services (248).
Addressing challenges and identifying opportunities for oversight bodies
Generally, the work of the People’s Advocate and the council is viewed positively by civil society.42 Both bodies have collaborated frequently with civil society and with other human rights bodies to raise awareness of key challenges. The People’s Advocate has numerous collaboration agreements with CSOs in areas as diverse as LGBTI rights, children’s rights, the situation of persons deprived of their liberty and persons with disabilities. During the OECD fact-finding mission, the council’s engagement in support of vulnerable groups was praised. Most recently, it has partnered with different organisations to implement projects addressing discrimination in relation to education and the rights of LGBTI persons (CNCD, n.d.[106]).
Tensions between parliament and the People’s Advocate leading to her dismissal in 2021 appear to have dissipated with the new government. On numerous occasions the People’s Advocate has made use of its competencies to raise concerns about the constitutionality of draft laws and laws or emergency ordinances impacting the rights of individuals (EC, 2020[107]). It remains very active overall; in 2022 it submitted 14 complaints to the Constitutional Court (People's Advocate of Romania, 2022[104]). The office is also widely respected. Recommendations of this body are generally followed, despite not being legally binding.43 In a positive step, it has also recently enhanced its capacity for outreach by improving its online presence.
The council’s steering board takes decisions that help raise awareness of exclusion and discrimination in all parts of life; in 2022, decisions were taken as regards discrimination in media publications and in areas such as public services, employment and healthcare (n.d.[108]). At the same time, numerous civil society representatives expressed concern regarding the lack of funding for the council, in addition to the fact that members of its steering board are appointed by political parties, both of which pose risks to its independence and the quality of decisions.44 Similar concerns regarding the politicisation of the appointment process have been raised for many years and, in 2018, the Constitutional Court revoked the appointment of one member for not respecting the legal requirements (Gîrlescu, 2021[85]).
To ensure more effective oversight, Romania could:
Review the needs of the People’s Advocate and of the National Council for Combating Discrimination, as key mechanisms that oversee the exercise of civic space in Romania, to ensure that their budgets allow them to fulfil their mandates and ensure independence and sustainability.
Consider amending the relevant law to ensure that the reasons for dismissing the People’s Advocate are outlined clearly and unambiguously, in line with international standards and recommendations, as a means to safeguard the stability of this institution.
Review the process by which members of the steering board of the National Council for Combating Discrimination are appointed.
3.7.2. Strengthening the role of the judicial system in protecting civic space
Individuals who assert that rights related to civic space have been violated by an administrative act or by the acts of other individuals, may also initiate proceedings before competent courts to decide on the matter by alleging a violation of the relevant applicable legislation. In cases involving criminal acts, such as hate speech or hate crimes, they may send a complaint to the public prosecutor who can then decide whether to initiate criminal proceedings in any given matter.
According to Article 21 of the constitution, “[e]very person is entitled to bring cases before the courts for the defence of his legitimate rights, liberties and interests”. The same provision also refers to administrative justice that is “optional and free of charge”. Article 124 of the constitution specifies that justice shall be rendered in the name of the law and that it shall be “one, impartial and equal for all”. The provision further includes a reference to the independence of the judiciary.
The Romanian judicial system is made up of district courts, tribunals (at the county level and in Bucharest), specialised tribunals (for cases involving minors and family law, as well as commercial law), courts of appeal and military courts (EU, n.d.[109]). As per Article 126 of the constitution, the highest court is the High Court of Cassation and Justice, which ensures that other courts apply and interpret a unitary interpretation of the law.
The Constitutional Court of Romania is the “guarantor for the supremacy of the Constitution” (Article 142). According to Article 146 of the constitution, this court adjudicates on, among others, the constitutionality of laws prior to their promulgation by the president and the constitutionality of (promulgated) laws, ordinances or treaties. Before promulgation, notifications may be submitted to the Constitutional Court by the president, one of the presidents of the two parliamentary chambers, the government, the High Court of Cassation and Justice, the People’s Advocate, or at least 50 deputies or 25 senators. The court may also review initiatives to revise the constitution ex officio. Once laws have been promulgated, the Constitutional Court will review their potential unconstitutionality if brought before a court, commercial arbitration or by the People’s Advocate.
Improving the independence, quality and efficiency of the judicial system
While the court systems generally function well, a number of weaknesses have the potential to impact the rule of law. Thus, the World Justice Project (WJP) Rule of Law Index 2021 ranks Romania relatively low for both civil and criminal justice (at 37th and 50th place among 139 countries around the world) in terms of accessibility, affordability, corruption, government influence, delays and enforcement, among others, although it scored higher on the question of “no discrimination” regarding both civil and criminal procedure (WJP, 2021[110]). Additionally, the 2022 EU Justice Scoreboard, based on Eurobarometer surveys (EC, 2022[111]), noted that the level of perceived judicial independence in Romania continues to be average among both the general public and companies, with 48% of the general population and 49% of companies perceiving the level of independence of courts and judges to be “fairly or very good” in 2022, which is a slight decrease from 2021 (51%) and 2016 (51%).45 More than one-third of the persons and companies surveyed based this on their belief that the judiciary was subjected to interference or pressure from government or politicians and economic interests.
As outlined by the EC in its 2021 and 2022 country reports, amendments to justice laws defining the status of magistrates and organising the judicial system and the Superior Council of Magistracy in 2018 and 2019 had a serious impact on the independence, quality and efficiency of the justice system (EC, 2021[112]; 2022[113]), all of which are central to the protection of civic space and of the rights of individuals. In mid-November 2022, the president of Romania promulgated three new laws relating to the status of judges and prosecutors, judicial organisation and the Superior Council of Magistracy, respectively (Ministry of Justice, 2022[114]; 2022[115]; 2022[116]). In a recent urgent opinion (Venice Commission, 2022[117]), limited in scope to certain key points,46 the Venice Commission regretted that parliament adopted these laws in October via an emergency procedure, thus leaving little time for debate, although earlier drafts had been consulted upon with all stakeholders (see Chapter 6 for a discussion of the use of emergency procedures to pass key legislation in general). At the same time, the commission noted that in Romania, response to the new laws was largely positive and many reforms reviewed (relating to the appointment of judges to managerial positions, the appointment and removal of high-ranking prosecutors and instructions to lower-ranking prosecutors) did not appear contrary to European standards. However, the Venice Commission did find that provisions on the appointment of judges to deputy manager positions, the appointment of high-ranking prosecutors, the competencies of the General Prosecutor to intervene in prosecutorial decisions and the reporting hierarchy of the judicial police should be revisited and rendered more compliant with key rule of law requirements.
The above reforms are a welcome improvement and will help ensure greater independence of the judiciary and prosecution services. Functioning justice systems are key to safeguarding the rights of individuals and civic space in general. It is hoped that, following the additional recommendations made by the Venice Commission, further reform efforts will ensure full compliance of the relevant laws with international rule of law principles. In its most recent report on Progress in Romania under the Cooperation and Verification Mechanism (EC, 2022[118]),47 the EC considered recent reforms to be an important overhaul of the legislative framework and welcomed the Romanian government’s commitment to engage in further reforms while bearing in mind the Venice Commission’s recommendations. Based in part on the above reforms and a continuing commitment to pursue further reforms, the EC recently decided to discontinue the special rule of law monitoring process (under the Cooperation and Verification Mechanism) that existed since 2007, following Romania’s joining of the EU.
In terms of the practical functioning of the judiciary, interviewees pointed to the important role that the Constitutional Court in particular plays in upholding important civic freedoms.48 In its 2020 country report on Romania, the EC likewise praised the fact that the process for preparing and enacting laws was well regulated and specifically mentioned the possibility of constitutional review both before and after the adoption of legislation, as part of an extended institutional setup of checks and balances (EC, 2020[107]). Additionally, the OECD noted as a good practice the speed with which Romanian courts moved to online processes and innovative technologies during the COVID-19 pandemic (OECD, n.d.[119]).
Romania is encouraged to continue positive reforms relating to its judiciary and prosecution service, in line with recommendations made by regional bodies such as the EC and the Council of Europe’s Venice Commission, as a means to further strengthen judicial independence and impartiality and prosecutorial autonomy, thereby ensuring due process for all individuals.
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Notes
← 1. Notably, Article 51 of Government Ordinance No. 26/2000 on Associations and Foundations states that within central and local public administration authorities, it is mandatory to operate “structures for the relationship with the associative environment”, while Article 7, para. 7, and Article 8, para. 2, speak of public officials in administration who are responsible for the relationship and for interaction with “civil society”.
← 2. Foreign citizen refers to a citizen from a country other than Romania.
← 3. According to Article 53 of the Romanian constitution, these legitimate are: the defence of national security, public order and health or morals; conducting a criminal investigation; and preventing the consequences of a natural calamity, disaster or an extremely severe catastrophe.
← 4. See, for example, Emergency Ordinance No. 31 of 13 March 2002 on the Prohibition of Fascist, Legionnaire, Racist or Xenophobic Organisations, Symbols and Facts and the Promotion of the Cult of Persons Guilty of Committing Crimes of Genocide against Humanity and of War Crimes, published in Official Gazette No. 214 of 28 March 2002, with amendments of 2015; Law No. 157 of 2 July 2018 on Measures to Prevent and Combat Anti-Semitism, published in Official Gazette No. 561 of 4 July 2018; Law No. 174 of 9 October 2019 on the Establishment of the National Museum of Jewish History and the Holocaust in Romania, published in Official Gazette No. 820 of 9 October 2019; and Law No. 276 of 25 November 2021 on Some Measures to Study Jewish History and the Holocaust, published in Official Gazette No. 1127 of 25 November 2021.
← 5. The law defines anti-Gypsyism as any “perception regarding the Roma [that is] expressed as hatred against them”, as well as “the verbal or physical manifestations motivated by hatred against Roma” that is directed against members of this ethnic group, their property, their institutions and leaders or their traditions and culture.
← 6. In its report, Article 19 places each country surveyed into one of five expression categories: free, less restricted, restricted, highly restricted and in crisis. Each country’s freedom of expression score reflects not only the rights of journalists and civil society but also how much space there is for individuals and members of organisations to express and communicate; how free each and every person is to post online, to march, to research and to access the information they need to participate in society and hold those with power to account.
← 7. Interviews with CSOs, February-July 2022.
← 8. Interviews with CSOs, February-July 2022.
← 9. Interviews with CSOs, February-July 2022.
← 10. Interviews with CSOs, February-July 2022.
← 11. Interviews with CSOs, February-July 2022.
← 12. The CSOs were: CeRe: Resource Center for Public Participation; ActiveWatch; Center for Public Innovation; Greenpeace Australia; Miliția Spirituală civic association; MozaiQ Association; Centrul FILIA civic association; Văcăreşti Natural Park Association; Civil Society Development Foundation (FDSC); Association for Technology and Internet (ApTI); Federation of Non-Governmental Organisations for Social Services (FONSS); E-Romnja Association; Center for the Study of Democracy (CSD); and Átlátszó Erdély Egyesület (Transparent Transylvania Association).
← 13. Interviews with CSOs, February-July 2022.
← 14. Interviews with CSOs, February-July 2022.
← 15. See European Court of Human Rights (2004[52]), Paragraph 92, where the court emphasised that associations, including those protecting cultural or spiritual heritage, pursuing various socio-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting a minority consciousness, are important to the functioning of democracy.
← 16. The exception to this is a limitation on non-EU foreigners being members of political parties.
← 17. The report was based on a survey of civic space protection in 32 OECD countries and 19 non-OECD countries.
← 18. Based on Article 4 of the law, magistrates and military personnel within the Ministry of National Defence, the Ministry of Internal Affairs, the Romanian Information Service, the Protection and Guard Service, the Foreign Information Service, the Special Telecommunication Service and subordinate or coordinating units and/or sub-units of these offices are not allowed to join labour unions.
← 19. Indirect discrimination occurs where a general policy or measure which, though couched in neutral terms, has a particular discriminatory effect on a particular group; see, for example, European Court of Human Rights, Biao vs. Denmark, Application No. 38590/10, [GC] Judgment of 24 May 2016, para. 103.
← 20. According to the law, the prize is awarded to Romanian and foreign citizens, institutions, associations, foundations and other non-governmental organisations in the country and abroad, for special merits in presenting and promoting: the history, culture and traditions of Jewish communities in Romania; the national and international knowledge of the contribution of this national minority to the evolution and modernisation of Romanian society over time; protecting the memory of Holocaust victims; developing educational and research programmes on the Holocaust in Romania; and promoting the fight against antisemitism.
← 21. Interviews with government and civil society representatives, February-July 2022.
← 22. Interviews with civil society representatives, February-July 2022.
← 23. Interviews with government representatives, February-July 2022.
← 24. Interviews with government representatives, February-July 2022.
← 25. Interviews with government and civil society representatives, February-July 2022.
← 26. Most strategies are largely based on EU reports and statistics.
← 27. Interviews with civil society representatives, February-July 2022.
← 28. Interviews with civil society representatives, February-July 2022.
← 29. These judgments include, among others, ECtHR, M.C. and A.C. v Romania (ECtHR, 2016[120]), application no. 12060/12, judgment of 12 June 2016 regarding hate speech against LGBTI persons, and ECtHR, X. and Y. v Romania (ECtHR, 2021[121]), application no. 2145/16, judgment of 19 April 2021, regarding gaps in legal gender recognition proceedings.
← 30. Interviews with civil society representatives, February-July 2022.
← 31. According to the data, the lowest OECD score (best) is Switzerland at 8.1 and the highest (or worst performer) is Chile at 36.1.
← 32. Interviews with civil society representatives, February-July 2022.
← 33. Interviews with civil society representatives, February-July 2022.
← 34. Interviews with civil society representatives, February-July 2022.
← 35. The 2018 Gender Barometer was conducted by the IMAS Survey Institute in collaboration with the Center for Curricular Development and Gender Studies: FILIA and the Center for Support and Training for the Development of a Fair Society. The study was conducted between 15 November 2018-23 December 2018, on a representative sample of 1 140 people.
← 36. Interviews with civil society representatives, February-July 2022.
← 37. At the same time, a 2021 study on political representation of women in Romania found that the number of female candidates in both national and local elections in 2020, while still low, had increased somewhat since the previous elections in 2016, see Ionela Băluţă and Claudiu Tufi, Political Representation of Women in Romania, commissioned by Friedrich-Ebert-Stiftung, December 2021, at https://www.academia.edu/71806700/Political_Representation_of_Women_in_Romania.
← 38. Austria is at the lowest end of the spectrum with 13% and Latvia at the highest end with 32%.
← 39. For national human rights institutions, these requirements are also reflected in the UN Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (the “Paris Principles”). The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris (7-9 October 1991) and adopted by UN General Assembly Resolution 48/134 of 20 December 1993. See in particular B.2 (Composition and guarantees of independence and pluralism).
← 40. Ex officio refers to instances where the People’s Advocate initiates investigations on his/her own initiative, and not based on an individual complaint, as per Article 16 of Law 35/1997.
← 41. Article 2 of the law indicates that this institution also functions as the National Mechanism for the Prevention of Torture in Places of Detention based on the Optional Protocol of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The People’s Advocate also has special competencies related to protecting children’s rights, with one Deputy Advocate designated by law (Articles 13 and 14) as the Advocate of the Child.
← 42. Interviews with civil society representatives, February-July 2022.
← 43. Interviews with government and civil society representatives, February-July 2022.
← 44. Interviews with civil society representatives, February-July 2022.
← 45. The level of perceived judicial independence is categorised as follows: very low (below 30% of respondents perceive judicial independence as fairly good or very good); low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%).
← 46. The urgent opinion focuses only on topics raised by the Council of Europe’s Parliamentary Assembly in its Resolution 2466 of 13 October 2022, namely the civil and disciplinary liability of magistrates, the competitions for admissions into the judiciary and rules on the status as well as the appointment and removal of specialised and high-ranking prosecutors. The opinion emphasises that due to its urgent nature, it also did not cover these points in their entirety and cannot be seen as expressing a view on the compatibility of the three laws with European standards on any points other than those mentioned above.
← 47. The Cooperation and Verification Mechanism (CVM) was established at the accession of Romania to the EU in 2007 as a transitional measure to facilitate Romania’s continued efforts to reform its judiciary and step up the fight against corruption. It represents a joint commitment by Romania and the EU. In line with the decision setting up the mechanism and as underlined by the Council of Europe and the Court of Justice of the EU, the CVM ends when all benchmarks applying to Romania are satisfactorily met.
← 48. Interviews with civil society representatives, February-July 2022.