Romania: Reports of prosecutions of Romanians under Article 238 of the Penal Code; profile of prosecuted individuals or groups; outcomes of the prosecutions (January 2001-April 2002)
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 10 April 2002 |
| Citation / Document Symbol | ROM38645.E |
| Reference | 5 |
| Cite as | Canada: Immigration and Refugee Board of Canada, Romania: Reports of prosecutions of Romanians under Article 238 of the Penal Code; profile of prosecuted individuals or groups; outcomes of the prosecutions (January 2001-April 2002), 10 April 2002, ROM38645.E, available at: https://www.refworld.org/docid/3df4be9d2c.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
No reports of prosecutions of Romanians under Article 238 of the Penal Code could be found among the sources consulted by the Research Directorate.
In a March 2001 statement to the Organization for Security and Cooperation in Europe (OSCE) Supplementary Human Dimension Meeting in Vienna, a British non-governmental organization founded to "combat censorship by promoting freedom of expression and access to official information," Article 19 (Article 19 27 Mar. 2002) and The Center for Independent Journalism, a Bucharest-based "non-profit organization, offering courses and specialized training for journalists and media organizations, claimed that more than 200 individuals were in prison on the basis of "defamation provisions" of the Penal Code (ibid. 12 Mar. 2001). No corroborating information nor details on these 200 individuals could be found among the sources consulted by the Research Directorate.
According to an English translation provided by the Bucharest-based Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH), Article 238 reads as follows:
Art. 238 (offence against authority)
Prejudice to the honour or the threat, perpetrated in public, against one of the persons provided in art. 160, related to their activity and liable to prejudice their authority, shall be punished with imprisonment from 6 months to 5 years.
Hitting or any other violent acts, as well as physical injuries, perpetrated against one of the persons and under the circumstances provided under paragraph 1, shall be punished with imprisonment from 3 to 10 years; in case of serious physical injury, the punishment shall be imprisonment from 5 to 15 years and the restriction of some rights (n.d.b).
Commenting on Article 238, the APADOR-CH stated that
The crime of offense to authority, incriminated in article 238 provides for a term in prison of up to 5 years for insulting persons in high public positions. The draft passed by the Chamber of Deputies in 2000 abrogated this text but the Ministry of Justice proposes to maintain it and it also proposes punishments for insults to public institutions.
The differentiated and increased sentences for insulting people that exercise power is typical for dictatorships and runs counter to European case law. The European Court repeatedly mentioned that " politicians should accept inevitably and conscientiously the strict verification of every word and fact ... and, consequently should prove a higher level of tolerance". (Lingens v. Austria). Maintaining article 238 infringes also the principle of equality before the law, placing politicians above the others. The rule in a democracy is opposite to article 238 because the very people who exercise power should be subject to control by the media and public, control which includes a tinge of exaggeration and provocation. (Dalban v. Romania). Incrimination of insulting the institutions proposed by the Minister is in itself a measure typical for dictatorships justified and maintained by invocation of collective interests. In addition, it is absurd to pretend that institutions have "honour", this being a concept exclusively ethical and personal. Institutions have a certain public image that they create through their own activity and not through the silence imposed for fear of punishments.
The argument provided by the Ministry of Justice for retaining article 238 - protection of state authority - is unacceptable and non-constitutional. "State authority" is an abstract concept and is protected by criminal punishments only in dictatorial regimes like the regime in which the very 238 article was adopted (in 1969). In addition, "state authority" is not to be found among the reasons why article 30 of the Constitution allows for restraining freedom of speech.
Consequently APADOR-CH requires the elimination from the Criminal Code of article 238 (n.d.a).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.
References
Article 19 [London, UK]. 27 March 2002. "Introduction to Article 19."
_____. 12 March 2001. "Criminal Defamation in Romania." Statement to the OSCE Supplementary Human Dimension Meeting [Vienna]. 12-13 March 2001.
Association for the Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH) [Budapest]. n.d.a. Human Rights Developments in Romania. The Activities of the Romanian Helsinki Committee (APADOR-CH) 2001 Report.
_____. n.d.b. Defamation. Actual Legal Provisions (Penal Code). English Translation.
The Center for Independent Journalism [Bucharest]. "Who We Are."
Additional Sources Consulted
IRB Databases
LEXIS/NEXIS
Oral sources including:
The executive director of the Bucharest-based Center for Independent Journalism could not provide information within time constraints.
A representative from the Association for the Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH) has not replied to an information request on the subject.
A campaigns and development officer from Article 19 could not provide specific information on the subject.
Internet sites including:
Amnesty International
The Balkan Human Righst Web Pages
European Commission
Freedom Forum [Arlington, Va.]
Freedom House
Human Rights Watch
IGC Forum
Independent Journalism Foundation (IJF)
Index on Censorship
International Helsinki Federation for Human Rights
International Press Institute (IPI) [Vienna]
IREX [Washington, DC]
Media Online. Southeast European Media Journal [Sarajevo]
Open Society Foundation - Romania
Radio Free Europe/Radio Liberty (RFE/RL) [Prague]
UK Home Office, Immigration and Nationality Directorate (IND), Country Assessment: Romania.
US Department of State. Country Reports on Human Rights Practices for 2001.
World News Connection (WNC)