According to a study conducted by the Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR-CH), pre-trial detention is used too often in Romania, although legislation provides for less costly alternatives.
Seventy percent of lawyers surveyed said they encountered cases of legally unsubstantiated pre-trial detention.
The 2014-2015 report was produced as part of a European Union-funded project, where a common research methodology was applied in 10 EU member states, with research data gathered through monitoring of pre-trial detention hearings, analyzing case files, as well as surveying defense lawyers and interviewing judges and prosecutors.
APADOR-CH has identified a series of problematic issues, such as:
1. The decision-making procedure: Despite extensive defense rights provided by law, in practice the enjoyment of these rights remains limited. Lawyers are often notified about a case shortly before its hearing, meaning they often have only 30 minutes to study the case file.
Even judges will sometimes have insufficient time to read the file, and therefore will rely too strongly on the prosecutor’s arguments. While prosecutors rarely provide evidence in favor of detention, the defense lawyers are not able to provide evidence to counter their arguments for detention.
2. The substance of decisions: Many national courts fail to provide substantial reasoning for pre-trial detention orders. The research demonstrated that the most common reason given for ordering detention is that the accused presents a potential danger to the public, followed by the potential risk of a repeat offense and the flight risk of the defendant.
Yet researchers found that in fact the severity of the offense is usually the real reason for ordering pre-trial detention, albeit in violation of European human rights standards. Seventy percent of lawyers said have encountered pre-trial detention being ordered on unlawful grounds.
“It really depends who the prosecutor in the case is, he knows the file better than anyone so I tend to give preference to him. Generally the lawyer does not analyze or contest evidence. If the prosecutor is well prepared and the [defense] lawyer poorly prepared, you do not have much to consider, and the defendant is clearly disadvantaged by the system.” - A Romanian judge interviewed for the study.
3. Use of alternatives to detention: Despite different alternatives to detention being available by law, including house arrest, judicial supervision and bail, they are rarely used. Judges are reluctant to consider non-custodial alternatives to detention as they consider them to be less effective.
In the vast majority of cases reviewed during the research, alternatives to pre-trial detention were not even considered.
4. The review of pre-trial detention: Although in all cases observed and the case files reviewed, the pre-trial detention decision was reviewed in compliance with the law, the initial decision to detain was generally upheld, often based on the same reasons as in the previous order, and alternatives were never ordered. In the cases observed and reviewed, no new evidence was provided at the review stage.
The full report can be found here.