Judge Iulia Motoc, Romania's sole justice on the Court of Human Rights, recently participated in an event organized by the Romanian Parliament to celebrate the 20th anniversary of Romania ratifying the European Convention, during which she stated that the main reasons for Romanian cases reaching the Court regard the right to liberty and detention conditions - this being a further sign that Eastern European countries are still functioning according to the totalitarian model they had employed for decades.

Judge Motoc believes that, although key steps have been done in the modernization of the justice system, public pressure is still considered when rendering many decisions, instead of paying attention to legal standards, as demanded by the European Court. She believes that it is essential to educate the public in relation to human rights issues.

"All countries in Eastern Europe have problems with violations of Article 5 [of the European Convention on Human Rights] – this is due to totalitarian states having had different mentalities regarding the concept of freedom. Romania doesn’t pay sufficient attention to detention conditions because it is difficult to educate the public on detainees being entitled to rights. Especially in countries with a low economic level," Judge Motoc said. "The issue of detention conditions remains fundamental for Romania at the ECtHR; I think most cases, 60 to 70% of them, refer to detention conditions."

Judge Motoc also called on Romania to better respect the standards of the Court, adding: "Romania is not being convicted by the ECtHR so much for the quality of decisions, which has improved significantly; convictions are most often related to the manner of dealing with detention conditions by the Ministry of Justice and the Government in general, bodies which can improve their record if driven by public opinion. I do not think that we are currently respecting the standards required by the Court, especially taking into consideration the evaluation of the Committee on the Prevention of Torture. Violations of Article 3 are given priority at the Court, especially when related to the amount of space provided for each detainee and medical conditions. In the Third Section of the Court, where Romania is situated and where I act as a judge, 70% of the pending cases are related to these issues."

Arrests under public pressure

The second most common reason for Romanian cases reaching the ECtHR is related to the application of Article 5 §3, as explained by Judge Motoc: "[This issue] is related in particular to the way in which courts justify preventive arrests and prolong them after a certain period. We see that in Eastern Europe there was a pathology of ordering preventive arrests for long periods of time, for years or months, without finding justifying circumstances, as required by the Court, such as having a defendant trying to abscond from the investigation or having a defendant trying to leave the country. These conditions required by the case law of the Court were not considered; the courts motivated their decisions rather by invoking the pressure of public opinion. Again, we see the need to educate the public on human rights issues.”

Judge Motoc concluded by calling on Romanian courts to be more prudent in handling current decisions, treating each case uniquely and never bending to public pressure. “We must understand that, if these requirements are not met, a defendant cannot be detained only because there is public pressure in this sense," she said. "Courts have to be consistent in their motivations and never copy-paste decisions, as it sometimes happens.”

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The judge’s statements were delivered in a context where Romania has received, in recent years, numerous convictions at the ECtHR due to detention conditions and prison overcrowding. These are issues commonly addressed by APADOR-CH in the reports released after carrying out monitoring visits in detention facilities.

In relations to preventive arrests, APADOR-CH is involved in a project that was launched recently by Fair Trials International (FTI), an NGO based in London, a project entitled "The Practice of Pre-Trial Detention: Monitoring Alternatives and Judicial Decision-Making."

The project aims to contribute to a broader understanding of how preventive arrest is being used in the European Union, what are the reasons for its usage and how often are alternative methods chosen instead of preventive arrest.