1. SUMMARY AND RECOMMENDATIONS
I was nineteen and this was the most terrible thing that had happened in my life. I understood that I was a criminal; and I saw, too, that my only crime was myself. I hated myself; I hated this country, too, because I suddenly saw that it hated me and it had always hated me . . . As I sat in my cell and the terror of the days increased, my hair began to turn grey.
--Florin Hopris, 19, Sibiu, May 1993
Sometimes on the street I pass one of the policemen who beat me that night, and I remember how they called me a cocksucker and a pervert, how they laughed at me, how they stuck my head down the toilet . . . I wish there were someone to punish them for the way they punished me. Instead I am afraid to look at them. I look away.
--Radu Vasiliu, 18, Iasi, June 1997
Today in Romania, gays and lesbians are routinely denied some of the most basic human rights guaranteed by international law. Despite amendments in 1996 to the criminal code provisions relating to homosexual conduct--portrayed by the Romanian government as a total repeal of legislation criminalizing consensual sexual relations between adults of the same sex--gays and lesbians continue to be arrested and convicted for such relations if they become public knowledge. Moreover, they face frequent physical abuse and harassment by law enforcement officials, as well as systematic discrimination in many walks of life. Romanian law not only prohibits private sexual acts between consenting adults of the same sex, but may also be interpreted to punish speech and association that expresses a homosexual identity--or even support of such identity.
For decades in Romania, all consensual sexual relations between adults of the same sex were forbidden. Numerous legal provisions created the framework for the criminalization of homosexual conduct, for legally-tolerated discrimination, and for denying gays and lesbians the equal protection of the law. Most significantly, Article 200, paragraph 1, of the 1968 Romanian criminal code stated: "Sexual relations between persons of the same sex are punishable by imprisonment of one to five years." Paragraph 2 dealt with homosexual relations with a minor or by force, establishing higher penalties than were the case for heterosexual relations with a minor or heterosexual rape. Finally, paragraph 4 of Article 200 punished "inciting or encouraging a person to practice" the acts described in paragraph 1 with one to five years' imprisonment.
In 1996, after intense debate, and largely as a result of international pressure--especially from the Council of Europe--Article 200, paragraph 1 was amended to punish homosexual acts "committed in public, or if causing public scandal" with one to five years' imprisonment. At the same time, language was also added to the last paragraph, to punish "inciting or encouraging a person to the practice of sexual relations between persons of the same sex, as well as propaganda or association or any other act of proselytism [italics added]," with the same prison terms. Although the Romanian government presents this language as a liberalization, the expansively worded law ensures that those who engage in consensual sex in private can continue to face prosecution: the acts need only become known to instigate legal reprisal. It is, in fact, their "becoming known" which is now illegal. In contemporary Romania, being gay or lesbian--having a public identity as such, and a sexual orientation different from the majority--is, effectively, against the law.
"Sexual orientation" is a term of relatively recent coinage. Yet, describing as it does an intricate complex of factors which determine the objects of one's sexual and emotional desires, it defines a profound and rooted aspect of each individual's personality and humanity. For heterosexuals as well as for lesbians, gay men, bisexuals, and transgendered persons, this part of one's self is a place of needs and desires which are deep, intimate, and interior. For heterosexuals as well as for lesbians, gays, bisexuals, and transgendered persons, however, it also permeates the remainder of one's selfhood in ways both conscious and unconscious, casual and meaningful. It is experienced not just inwardly but through acts, gestures, and expressions, through assertions of similarity or dissimilarity from others, through hands held or touches exchanged, through conversational allusions to a partner, husband, or wife. For heterosexuals as well as for lesbians, gays, bisexuals and transgendered persons, identifying and voicing one's sexual orientation can be as important to the constitution and growth of a self as can one's race, ethnicity, gender, or religious conviction. Like those categories, it can be a significant side of the identity one shows the world. And as with those categories, discrimination or the denial of the equal protection of the law on the basis of sexual orientation violates internationally protected rights.
Article 2 of the International Covenant on Civil and Political Rights (ICCPR) states: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status. In a 1994 decision against a law similar to Article 200, the United Nations Human Rights Committee held that sexual orientation is not a valid basis for according discriminatory enjoyment of rights specified in the ICCPR. Article 200 of the Romanian penal code on its face violates this human rights norm, in that it punishes conduct between persons of the same sex that, when carried on by persons of opposite sexes, is either not criminal or receives a lower penalty. Even its criminalization of sexual acts "committed in public" is discriminatory: no comparable provision of the penal code punishes, or even mentions, heterosexual sexual acts committed in public.
The violation of one right in particular has occasioned the most widespread condemnation of "sodomy laws." Both the ICCPR (Article 17) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8) guarantee the right to privacy. In three successive decisions, the European Court of Human Rights has held that such "sodomy laws" contravene the European Convention's privacy protections. Article 200, along with similar laws which remain in force in numerous jurisdictions worldwide, violates this right in making consensual, private sexual behavior between adults subject to prosecution.
Yet the most invidious effect of these laws transcends their simple denial of privacy. They codify discrimination against a class of persons on the basis of an intrinsic aspect of their personality and humanity. They punish and persecute those unwilling to suppress all evidence of that central characteristic. Similar in this way to policies of assimilation forced upon ethnic minorities, or compulsory conversions imposed upon religious believers, they require individuals to eradicate a part of--a possibility inherent in--their deepest selves.
The implications of Article 200 thus go beyond what a legislator, at its first promulgation in 1936, called "the secrecy of rooms." Both the past history of the law, and its present status, reveal its goal as ensuring that an extensive range of rights will be denied to gays and lesbians. The law enforces inequality: it dictates that behaviors and expressions which identify people as gay or lesbian--whether they be sexual acts behind closed doors, or casual gestures of intimacy on the street--will be stripped of protection.
In researching this report, Human Rights Watch and the International Gay and Lesbian Human Rights Commission have discovered that arrests continue under the new version of Article 200, enabled by the failure of the legislators who wrote the law, as well as of local prosecutors and police, to define what the new language means. Equally important, however, the continued existence of Article 200--as well as of other repressive or simply vague legal provisions which can be invoked against a despised minority--contributes to a climate of legalized intolerance. Officials, whether in police stations, prisons, courtrooms, or hospitals, are routinely encouraged to regard gays and lesbians as persons without rights. Once arrested, those accused of violating Article 200 are routinely beaten by police, and while in detention are targeted by other inmates for sexual abuse, with the tolerance and even encouragement of guards. Throughout Romania, meeting places of lesbians and gays, as well as the few organizations that have attempted to form, exist, if at all, under the continual threat of legal harassment. And it is widely accepted that a legitimate national purpose is served by eradicating homosexuality completely from public view.
These phenomena are not just recent ones. From their first criminalization in 1936, homosexual acts were punished in Romania lest they give rise to homosexual identity and community. The law aimed to eliminate that identity and that community, seen as foreign, inauthentic, and contagious, from the national life. Private acts were penalized preemptively, before they could become public and infect a putatively sterilized public sphere. As a legislator opposed to any tolerance of homosexuality argued in 1995:
What is repellent and immoral in the street cannot be either moral or permitted in intimacy. Such a solution is contradictory, hypocritical. By nature, such acts will then be encouraged to transgress from the interior to the exterior, this being only the start of an aberrant behavior which will become more and more aggressive and, in the end, impossible to combat.
From this perspective, any homosexual act is potentially exposed and open, essentially "propaganda" to be silenced. Prohibiting expression and association, preventing homosexuals from speaking or showing themselves in the ordinary gestures others enjoy and employ daily, were purposes of the law from the very beginning.
Article 200 in its various forms tries to impose a silence so complete that the acts it penalizes cannot even be unequivocally named. In so doing, it legitimates unequal enjoyment of basic human rights--to expression, association, assembly--by which emotion and experience are shared. Its survival measures the incompleteness of democratization in Romania. It betrays a refusal to allow unfettered voice and visibility to all.
The legal status of gays and lesbians--their ability to move and appear in public, to speak out and act together--is a test of the civic openness without which a civil society cannot be constructed or sustained. Gays and lesbians lay claim to equal rights. That such a claim constitutes "public scandal" reveals the boundaries of democracy in Romania today.
Human Rights Watch and the International Gay and Lesbian Human Rights Commission therefore call on the government of Romania:
Human Rights Watch and the International Gay and Lesbian Human Rights Commission call on international bodies, including the Council of Europe, the Organization for Security and Cooperation in Europe, and the European Union:
to bring an end to beatings, maltreatment, and other forms of abuse practiced by police and other officials on the basis of victims' perceived sexual orientation, and to punish those found responsible for such abuses in the past.
to press the government of Romania to undertake the above reforms;
to investigate the multiple forms of discrimination based on sexual orientation--in addition to the simple existence or absence of laws explicitly criminalizing homosexual acts--in evaluating the human rights records of applicant as well as member states;
A detailed description of legal and policy changes needed to enact these recommendations can be found at the end of this report.
The 1936 Penal Code
In 1936, the parliament of the Kingdom of Romania sat down to talk about sex, in more detail than ever before. The country's penal code, dating from 1864, was being revised;(1) in the process, sexual crimes became a particular focus of dispute. Legislators found themselves engaged not only in condemning, but in recategorizing, a range of sexual acts.
Title 11 of the new code divided sexual offenses into two subcategories. "Infractions against decency" (Articles 419-428) included rape, seduction, and pedophilia. "Infractions against good morals" were more elastic: if these crimes were not uniformly victimless, the identity of particular victims at least faded to insignificance against the offense to a more amorphous public. For all these acts were either performed in or in some way repellent to the public sphere--a sphere implicitly defined by the dissemination of information or the exchange of money. "Traffic in obscene publications," as well as obscene gestures, abused the first function; "incitement to prostitution," procuring, and trafficking in women, all offended the second. Identifying certain sexual behaviors, and delineating what the public sphere contained, moved hand in hand.
"Infractions against good morals" included a new provision. Article 431 penalized "acts of sexual inversion committed between men or between women, if provoking public scandal," with six months' to two years' imprisonment. From the beginning, the language of this article raised questions. Most of those questions persist in Romania today.
One basic uncertainty was exactly what was being criminalized. Observers today might assume the acts involved were synonymous with "homosexuality." In fact matters were more intricate. Provisions ancestral to the new law referred to "acts of unnatural indecency" or to "indecency against nature, either a) with animals, or b) with persons of the same sex."(2) These injunctions resembled European laws dating from the Middle Ages, which lumped same-sex relations with other reviled deeds, including bestiality, incest, or non-vaginal heterosexual intercourse, under broad rubrics such as "sodomy" or "unnatural acts."
The legislators wanted more exactitude: but they were quickly mired in lexicographical quagmires. "Homosexuality" was in fact used in the first proposed version of the article. The term was of recent, and foreign, coinage(3), though; some parliamentarians doubted its meaning. It was dropped "because it does not include inverted relations between women."(4)
However, other legal commentators saw "homosexuality" as including lesbian relations--but as different from "pederasty," which "can also be committed between a man and a woman, when the woman is the passive agent (coitus per anum)." All these were forms of "sexual inversion," meaning that Article 431 might criminalize heterosexual acts as well:
One might put the question whether a husband who has been mastered by this vice [pederasty], and has exercised the act through violence on his wife, can be found guilty of the act of sexual inversion--sexual relations between husband and wife being obligatory. Doctrine in general agrees that the husband does not have this right and is guilty of the offense of inversion.(5)
These terminological quandaries had a significance beyond the dictionary. The penal code attempted to classify sexual behaviors, so that (for instance) "sexual inversion" could be understood to include "homosexuality" and "pederasty," while bestiality fell into a different column.(6) Legislators were, in fact, inventing "sexualities"--an intellectual labor which had been going on in Western Europe for some time. Sexual acts previously conflated were differentiated, described, placed in categories. Those behaviors were then used to define the identities of (and sometimes to segregate legally and medically) individuals and groups who engaged in them.(7)
The same process by which the category of "homosexual" had been invented in Western Europe was recapitulated in Romania. While in Vienna and Paris the work of physicians and scientists largely drove the process, however, in Bucharest those discourses were silent.(8) The work of classifying sexualities was handed over to the law.
This vacuum of supporting discourse created confusion. There was no clear sense of what "sexual inversion" was: commentators could still invoke "pederasty," "sapphism," and "tribadism," assigning meanings to them almost at will. One closed his notes by falling back on an ancient term (and penalty), almost with relief: "In the old law, sodomites were punished with mutilation and recidivists with burning at the stake."(9)
If reticence and privacy prevented a full description of the incriminated acts, there was further uncertainty about when they were incriminated. One legislator pleaded: "Do not make this offense depend on provoking public scandal! . . . What interests us is the proven offense, and the prosecutor should prove the offense by any means."(10) The authors who included the "public scandal" language, though, defended it as limiting state power. The committee presenting the text to the two chambers observed, "The law cannot go further in its rigor, penetrating with transparent beams the secrecy of rooms where two accused persons may meet."(11)
Yet questions persisted about how far "public scandal" impinged on either the citizen's body or the "secrecy of rooms." Could private acts become a provocation? A court decision of 1940 suggested that in becoming known at all, "sexual inversion" automatically became culpable: "Acts of sexual inversion fall under the provisions of Article 431 if knowledge about the act is divulged, as in such a case they provoke public scandal."(12) A 1948 commentary agreed:
. . . the element of "public scandal" is not a purely objective condition of punishability. Rather this element must follow from the manner in which the persons between whom these relations took place comported themselves: namely, that they provoked public scandal through their attitude, either by betraying themselves in a positive act of ostentatious depravity, or by engaging in a negative act of imprudence and negligence in [not] taking measures necessary to conceal these relations.(13)
Even if "provoking scandal" necessarily entailed public behavior, its perimeters were still wide. Asked to clarify the term during debate, the text's authors replied, "For example, many persons may be accustomed to meeting in a certain place, and, because the entire world knows that they assemble there, a disturbance of public peace is produced in the vicinity." A 1939 commentator elaborated:
Scandal is public when the actors, looking to win or to search for clients, no longer make a secret of their relations, and in publicizing the disgusting vice the general moral sentiment is assaulted and public opinion is with good cause alarmed. (14)
Clearly association and expression were targeted by the language from the first. Indeed, the reference to "clients" in these comments, and the invocation of pornography as a cause of same-sex attraction, strike notes which would reverberate for many years in both legal discourse and the popular imagination in Romania. Inversion merited suppression less as individual vice than as the characteristic of an emergent group. "Sexual inversion" and its constituent behaviors were analogized to prostitution, conceived of as less relation than transaction, and stigmatized as a mode of togetherness impermissible in the public sphere.
Advent of Article 200
The 1936 debates raised lasting issues. They show legislators grappling to delineate both privacy and the public sphere. And this attempt moves in uneasy but inextricable tandem with the effort not just to control but to define sexuality--to make sexual behavior intelligible in juridical terms.
"Sexual inversion" lay in an intermediate zone on the boundaries of intimacy. It was sufficiently private to seem unfamiliar, even indescribable, to most of the legislators. Yet even when it took place behind closed doors, it was not defended by the near-absolute immunity which enshrouded the family.(15)
Instead it was always on the verge of becoming a public concern. "Sexual inversion" was a site where the limits of private and public were contested.
The 1936 code was an attempt to maintain and extend the half-fact, half-fiction of the rule of law in a country already shaken by a fascist insurgency, government corruption, and endemic abuse of power. The uncertain limits it drew around the state's legitimate zone of control were part of this attempt; but the boundaries it tried to sketch between the "secrecy of rooms" and the public square would soon be even less intelligible. Within two years, King Carol II set up a royal dictatorship. Over the next five decades of first fascist and then communist rule, legal and social protections for privacy and the public sphere would disappear completely.
The 1936 code was not fully revised until 1968, when the Grand National Assembly of what was now the Socialist Republic of Romania adopted a new version. This code embodied not only the realities of a socialist regime in place since the Second World War, but also the shifting intentions of Nicolae Ceausescu after his first three years in power. After a brief liberalization, the regime was beginning to restrict renascent freedoms and resharpen its instruments of control.
The code revised and recategorized all laws on sexuality. A chapter on "infractions involving sexual life" fell within a larger section on "infractions against the person." Three new crimes were specified. Article 202 dealt with "sexual corruption" of a minor (defined as performing "acts of an obscene character" on the minor or in the minor's presence). Article 201, based closely on the former Article 431, punished "acts of sexual perversion which cause public scandal" with one to five years' imprisonment. The article defined sexual perversion as "any unnatural act in connection with sexual life, other than those provided in Article 200." Finally, the first paragraph of the new Article 200 read, "Sexual relations between persons of the same sex are punishable by imprisonment of one to five years."(16)
Thus, reference to "public scandal" was dropped, and the penalty drastically increased. In a sense, in 1968, "homosexuality" came into existence in Romania, specifically recognized by the law: but only to be banned completely. If the 1936 language drew restrictions around the public sphere, the 1968 code seemed intended to abolish the private. It paralleled Ceausescu's pro-natalist decrees--which compelled women to undergo periodic and compulsory gynecological examinations and severely punished abortions--as a draconian restriction of bodily freedom and an excuse to invade the intimate realm.(17) Yet there is every reason to think that Ceausescu also saw sexual deviance not just as a personal anomaly to be extirpated, but in political terms. To a regime which predicated its authority on its surveillance of every detail of existence, any privacy immune to social supervision was a threat.(18)
Article 200 was diplomatically useful to the Ceausescu regime as, with the advent of the 1970s, it tightened virtually every screw of social control. Since Amnesty International and other organizations did not yet recognize persons imprisoned solely for their homosexuality as prisoners of conscience, the dubious and disloyal could be charged under Article 200 without attracting international attention--allowing Ceausescu's human-rights record to remain cosmetically clear. "People who were politically difficult, from 1980 on, were always arrested for theft of public property, for abuses of authority, or for other trumped-up charges--including homosexuality," one politician remembers.(19)
A law wielded sporadically against ideological nonconformists, though, was enforced severely upon sexual dissidence--amid virtual indifference abroad. "Terrorism" is how one gay man describes it: "You never knew where they would strike, there was nobody you could completely trust."(20) One man imprisoned repeatedly for homosexuality recalls how arrests took place:
In 1983, I was arrested for the first time. I brought a man home to my apartment, we had sex, and then he left. I don't know who reported us but they moved very fast. In the morning, before dawn, four policemen came to the apartment, broke in, and picked me up. I was sentenced to four years.(21)
Another gay man remembers:
In 1988, when I was twenty-six, I went to see a friend who was renting a room in Bucharest, near Piata Rahova. There was another man who was living in the apartment. The three of us all had drinks; then my friend started showing us some porn magazines, gay and straight, which he had got from abroad. The third man left. Eventually my friend and I took our clothes off and got into bed, naked, in separate beds, looking at the magazines. We fell asleep.
When we woke up, there were police, seven or eight of them, breaking down the door. The other man in the apartment had reported us. We were taken to the Section 17 police station and beaten over and over until we signed confessions that we had had homosexual sex. I was sentenced to two and one half years' imprisonment, and my friend--who owned the magazines--to three years.(22)
In imposing a total ban on private sexual activity, Article 200 suppressed not just any public development of gay or lesbian identity but the very acts and desires on which that identity might be based. Unlike measures restricting already extant ethnic or religious groups, Article 200 was a comprehensive effort to keep a new minority identity from breaking forth. The subterranean invisibility into which gay and lesbian sexuality was thereby driven--and in which, in large part, it continues to languish--renders documenting human rights violations based on sexual orientation extremely difficult. But in itself that invisibility violated basic rights, denying its victims voice, community, mutual contact, and self-understanding.
Same-sex sexual activity continued to take place in Romania, amid matrices of secrecy and mistrust. In the absence of bars or any other legal meeting places, gay men met surreptitiously, in places where they could go unnoticed, either in darkness or in a crowd. In almost every town, a park or railway station was quietly reclaimed as a cruising area. As one man explains, "Stations and parks were places where you could wait around, loiter, and speak to strangers, without arousing undue suspicion." Often sexual activity in these places, secluded by night, seemed safer than indoors. The same man says that taking a partner home could be dangerous:
It wasn't just that your neighbors might see or hear. If you took someone home, he knew where you lived. If he was an informer, he could report you. Under bushes or in a toilet stall, even if you were caught, there was the chance that you could make a clean getaway. And if you did, maybe no one could find you.(23)
Few lesbians enjoyed even this measure of mobility. Both economic and social pressure constrained most women to marry early; nor, for most, were models or images available through which a lesbian identity could be constructed. Indeed, both women and men wrestling with homosexual feeling relied, to comprehend themselves, on any scraps of information they might find, building a mirror from shards with the glue of desperation. I.B., now a lesbian activist, remembers:
At the time, I did not even know that words such as 'lesbianism' or 'homosexuality' existed. In a closed society like pre-1989 Romania, the issue was more than a taboo: it simply did not exist. But I had been attracted to women from a very early age and was wondering . . . what was happening to me. I was lucky enough to get hold on the black market of a magazine featuring two women making love. I realized then that this was what I wanted, but I knew it was hard to get in a society where you have to pay with your freedom for being attracted to someone of the same sex as you.(24)
The regime made its own paranoia come true. Anathematizing homosexuality as a foreign influence, it ensured that chance flotsam of information from abroad was one of the few sources of identity left for lesbians and gays.
Under such conditions, survival itself was often at stake. The commandant of Galati penitentiary related one of his own experiences with the law to IGLHRC in 1993:
Early on, I had a friend and classmate at the lyceum; later on he became lead dancer at the Galati state ballet. In the Seventies, he was arrested; there was a public scandal of some sort; very possibly he solicited an undercover officer. They slapped him with a prison sentence of quite a few years. As it happened he was put here in the penitentiary where I was already working.
Before he was released I had an interview with him--that was the procedure. I asked him, "Why do you do these disgusting things, why do you want such things? You're an intelligent, educated man, an artist."
He told me, "I don't have any choice about it. This is what is normal for me."
A year or so later, he was picked up again, under similar
circumstances. He was set free pending trial. Before the trial began, he
ABUSE OF HOMOSEXUALS IN THE NEW ROMANIA
After Romania's violent change of government in December 1989, many of the most egregious Ceausescu-era laws affecting private life were struck down. Prohibitions on abortion were repealed within days of the National Salvation Front's pacification of the country. In some districts, it even appears that police lists of suspected homosexuals were discarded or lost. One policeman in Sibiu told IGLHRC in 1993, "After the Revolution, the police were intimidated and were not doing their jobs. Many of the old files on homosexuals had been destroyed. I had to begin rebuilding them virtually from scratch."(26)
However, Article 200 itself remained unchanged. The law only gradually began to attract international attention. The Romanian government responded to periodic questions by claiming that the first paragraph of the article, prohibiting consensual sexual relations between adults of the same sex, was a "dead law," no longer enforced.(27)
But these assertions were false. Other officials in the Ministry of Justice confirmed, at the same time, that persons convicted for homosexuality were still held in the prison system.(28)
The International Gay and Lesbian Human Rights Commission
was eventually able to document numerous abuses against the rights of lesbians
and gay men in the Romania of the post-1989 era--cases which reveal the
tenacity of prejudice among police, prosecutors, and other officials.
The Case of Ciprian Cucu and Marian Mutascu
In 1992, Ciprian Cucu, seventeen, was in the last year of high school in Sinnicolau Mare, a town near the Hungarian border. Isolated and lonely, in November 1992 he placed a personal advertisement in a Timisoara daily newspaper. The ad was titled "November dream"; in it, he asked to meet someone interested in "long-term friendship." The ad was subtly phrased to indicate his homosexuality.
The advertisement was answered by Marian Mutascu of Timisoara, twenty-two. Mutascu later said of their meeting, "I knew at once that this was the man and this was the way of life for me."(29)
They lived together for almost two months, at first staying in Mutascu's flat, which he shared with his mother; later, they moved to Cucu's family's home in Sinnicolau Mare. They were forced to hide their relationship from family members. Eventually, however, Cucu's older sister and her husband became suspicious. The sister herself reported their relationship to the police.
The two were arrested in January 1993. According to Cucu, "I was the first one to be interrogated. The investigators called me a 'whore' repeatedly. . . . Marian admitted everything during the interrogation. I tried to deny it, until I was shown my diary, which had been brought to the police by my sister. Then I realized that I would lose everything."(30)
From Sinnicolau Mare they were taken to Timisoara. "Many
police officers gathered to laugh at us," Ciprian states.
Then we were taken to the county police lockup. On finding
out the reason why we had been arrested, the warden of the lockup (known
as the "karate man") jumped on Marian, kicking him in the mouth
and stomach. He continued to kick him even after Marian fell down and lost
consciousness. I was only insulted and mocked repeatedly.
Marian and I were separated. I was taken to the pre-trial detention ward for juveniles. My cell had six beds in which, during the two months I was incarcerated, up to sixteen suspects at a time slept. Before I came into the cell, officers told the supervising inmate(31) that a homosexual was going to be put in the room. As a result, he told me from the very start that I had to have sex with him if I did not want things to go very badly. At first I resisted, but after a few blows, I was forced to give in. It was the first time I was raped--but not the last. In the course of the following month, he forced me to have sex with other inmates as well, while the other colleagues watched the "show."
Mutascu was also raped and beaten repeatedly. At a hearing after thirty days' incarceration, Cucu told prosecutors that rape was widespread in the police lockup. "Upon my return to the lockup, the warden beat me up in the presence of around twenty inmates, because I had 'exposed the secrets of the lockup.'"
Mutascu was charged under Article 200, paragraph 2, for homosexual relations with a minor.(32) Cucu was charged under Article 200, paragraph 1 (and was tried as an adult).
An article in the journal of the Timisoara police described the case in detail, including the names, full addresses, and even photographs of the accused. Treating the guilt of the two as an established fact, it placed blame on the younger partner, Cucu, a "peril to society":
[The case] has shocked the city, owing to its delicate nature and its divergence from the norm. Looking at the facts and taking into account the age of the accused, you remain shocked by what they were capable of. . . . [When arrested], the two did not admit the incriminating act--sexual relations between persons of the same sex. But after the investigation and the forensic report, it was established that this was a typical case of homosexuality. Ciprian Cucu, the "little girl," was passive, while Milorad Mutascu was active. What an activity!
It is painful that such things happen, that youngsters are cast adrift, freed from social control. Will there be repentance and reform, or a tragic ending and a fall into vice?(33)
A national newspaper picked up the story, publicizing their names across the country.(34)
During their first month in jail, both Cucu and Mutascu were forced to undergo a painful and humiliating medical examination of their genital and anal areas. "The forensic report said they could not prove I had had sex with another man," Cucu says. "But both the prosecutor and the forensic doctor insisted on discovering 'who was the active and who was the passive' in my relations with Marian."
Both Amnesty International and the Romanian Helsinki Committee moved to defend the two. Cucu was released from pre-trial detention after two months. Mutascu, however, was detained for another two months. After developing a severe and disfiguring skin infection on his legs and feet, he was finally released on May 22.
The two came to trial on June 9. Both were convicted; Mutascu received two years' imprisonment, and Cucu one year. Largely due to intensive pressure from the international community, these sentences were suspended.
Their ordeal was not over. Cucu was expelled from his school, "because teachers declared my homosexuality a danger to the other students." Employers, alerted by publicity, refused to hire Mutascu. When he managed to find a job, fellow workers' harassment drove him from it.
In May, 1995, Marian Mutascu committed suicide. Ciprian Cucu writes:
He killed himself because he could not bear the pressure of isolation and fear. I had lived with the hope that one day we would stand together again. I loved him tremendously and could not believe I had lost him. But destiny took away this last hope. . . . A part of me went into the earth with him: what continues to live is surrounded by hatred and disgrace. It is too difficult to live in a society sick with prejudice, which condemns you for things that should carry no dishonor and cause no guilt.(35)
The Case of Costel Barbu, Mihaita Boghean, Cosmin Hutanu, Augustin Moldoveanu, and Mihai Vechiu
Cosmin Hutanu was nineteen when, in Focsani, a factory town north of Bucharest, he committed the act which led to his eventual imprisonment. One evening in 1991, he was invited to watch videos at the house of an acquaintance named Mihai Vechiu. Hutanu later told IGLHRC:
He had an import-export business and he owned a video player, which was something hardly anyone in Focsani had ever seen. There were several other people in his house, watching rented movies. Later on he took me into another room where they couldn't hear, and he asked me if he could give me a blow job. I agreed.(36)
This one act was the only sexual contact between the men.
Almost a year later, in July 1992, Vechiu made a similar offer to two other friends of Hutanu's, Costel Barbu and Augustin Moldoveanu. They too accepted. Hutanu heard of this only later, through police interrogations. Vechiu lived with a woman who discovered the incident with Barbu and Moldoveanu, and reported it to the police.
On July 28, 1992, Focsani police arrested Vechiu, Barbu, and Moldoveanu, along with another man named Mihaita Boghean whom the woman also incriminated. According to Hutanu, the police initially tried to accuse Barbu and Moldoveanu of using force against Vechiu. Both men, though, knew about Hutanu's relations with Vechiu, and cited that old incident in their defense. Police promptly arrested Hutanu.
Hutanu told IGLHRC that police mocked him as a homosexual during an interrogation of several hours. They assured him, though, that he was only wanted as a witness and would not be charged. Hence he signed a statement detailing the one incident of the previous year, when Vechiu had performed oral sex on him.
Hutanu was conditionally released. In September he received a summons in which, despite police promises, he was listed as charged under Article 200, paragraph 1, facing five years in prison. Finally, in January 1993, Hutanu fled to Germany.
The trial of the five defendants--Hutanu, Vechiu, Boghean, Barbu, and Moldoveanu--had been postponed until the fall of 1992, apparently in part because of Hutanu's absence. It finally took place on February 24,1993, with Hutanu tried in absentia. Vechiu, Boghean, Barbu, and Moldoveanu were all convicted of consensual homosexual sex under Article 200, paragraph 1. They were sentenced to "correctional labor" in a workplace.(37)
Hutanu returned to Romania in June 1993, having decided to take his chances with the law. Within a month, police arrested him. Hutanu discovered that at the February trial he had been convicted and sentenced to one year and two months in prison, rather than at a workplace. Finally facing his legal punishment for a single sexual act, he was sent to Focsani penitentiary.
The Case of Ovidiu Banu, Lucian Blaga, Ovidiu Bozdog, Florin Hopris, Gheorghe Nastase, and Ciprian Stoica
In January and February 1993, police in the Transylvanian city of Sibiu began arresting suspected homosexuals. Five persons were eventually jailed, and charged under Article 200, paragraph 1. All were pressured to confess to sexual relations with a prominent newspaper publisher who appeared to be the target of the investigation, possibly for political motives. When enough evidence had been collected, police also arrested the publisher.
The investigation began when Nastase, nineteen and unemployed, was detained in January 1993 for riding a train without a ticket. While his arrest was unrelated to homosexuality, he was apparently already listed in police files as a homosexual.(38) While in custody, he was therefore pressured to name sexual contacts. He seems to have produced at least two names: Lucian Blaga, twenty-four, a marginal figure in Sibiu; and Ovidiu Bozdog, forty-one, publisher of a local newspaper.
Evidently Bozdog interested the police because he was a powerful, and wealthy, personality in the city. However, for precisely that reason a solid case against him would be necessary. Therefore, in early January, Lucian Blaga was also brought in. Blaga, according to Lt. Mircea Mate, the investigating officer in the case, had served at least one previous conviction under Article 200, paragraph 1. It appears that he named other homosexuals whom he suspected of contact with Bozdog. The police then started bringing in these men too.
Their arrests followed a common pattern. The first to be summoned was Ovidiu Banu, twenty-five, a puppet master at a theater in Sibiu. The investigating officer asked Banu about his relations with Gheorghe Nastase and demanded whether Banu were homosexual. Frightened, Banu acknowledged that he was. The investigating officer then read a long list of names, headed by Ovidiu Bozdog's, and asked if Banu had had sexual relations with them. Banu admitted to relations with Bozdog and with two other persons (Florin Hopris and Ciprian Stoica) who were later arrested.
The lieutenant told Banu that if he cooperated, he could go home--and invited him to give names of any "doctors, lawyers, army officers, politicians, or factory managers" in Sibiu who were homosexual. Banu refused. He was then taken to a hospital, where his genitals and anus were examined. (The prosecutor's file included a medical report showing "modifications to the penis indicating [Banu] has been an active partner in homosexual sex."(39)) Finally, he was charged under Article 200, paragraph 1.
His father was unable to raise bail for his son; Banu was held in pre-trial detention for over two months. He was isolated completely by the other prisoners after they discovered the charge against him, and one prisoner beat him and attempted to rape him.
On February 4, based on Banu's information, Lieutenant Mate summoned Florin Hopris, nineteen, a student at a private university in Sibiu.
The investigating officer was joined by a prosecutor, who read Banu's declaration implicating Hopris. (The prosecutor addressed him in the feminine gender.) Terrified, Hopris confessed to sexual relations with Banu, and with Ovidiu Bozdog. He was then shown a thick black album, full of photographs of men. Some--though not all--were police photographs taken at the time of arrest. He was told that these were suspected homosexuals, and interrogated about his relations with them.
He was released, but arrested three days later: handcuffed, taken to the hospital, and subjected to the same medical examination Banu had undergone. Held under Article 200, paragraph 1, he was placed in the police lockup. Hopris's mother sold her jewelry to raise his bail; he was freed after a week. His temples are touched with gray hair. When IGLHRC representatives asked about this, he responded, reluctantly, that it had turned gray during his time in jail.
On the same day Hopris was first questioned, Lieutenant Mate also brought Ciprian Stoica, twenty-one, a first-year university student, to the police station. Stoica denied having had sex with Florin Hopris; he was then questioned closely about his sexual relations with Ovidiu Bozdog--clearly the important person in the case--which Stoica admitted.
Like Banu, Stoica was asked to name any doctors, lawyers, politicians, or other prominent Sibiu personalities he knew to be homosexual. He was also shown the "black book," with photographs of suspected homosexuals. The investigating officer let Stoica go, with instructions to return on the following Monday. On that day, at the police station, he was handcuffed, subjected to a medical examination, and arrested under Article 200, paragraph 1.
He remained in jail for a month, since his parents were unable to raise bail.
Finally, when enough confessions had been collected, Ovidiu Bozdog was arrested on February 12, and told he had been implicated in homosexual relations by the other five suspects. The publisher denied all charges and declined to cooperate. When shown the "black book" with photographs of suspected homosexuals, he refused to look at it. According to Bozdog, Lieutenant Mate threatened his reputation, telling him, "I will have Evenimentul zilei [News of the Day--the largest national newspaper, and a venue for gossip and scandal] write about you."(40)
Bozdog was arrested under Article 200, paragraphs 1 and 2.(41) He spent a week in pre-trial detention before raising bail. He has asserted the case was launched against him on political grounds: at the time of his arrest he was preparing to launch an opposition newspaper.
The defendants were released, but for the next year and a half they faced the likelihood of trial and imprisonment. Their case eventually reached the Constitutional Court of Romania. Other newspapers in Sibiu publicized the case, to embarrass Bozdog. As a result, the other defendants suffered harassment as well. Ovidiu Banu was fired from his job, the principal support for his father as well as himself. (His father told IGLHRC, "I wish my son had died.") Children in the neighborhood threw stones at him when he walked the street, and their house was vandalized. The Hopris family's next-door neighbor called the police repeatedly, demanding to know why their son was not returned to jail.
Meanwhile, Lieutenant Mate proudly took personal responsibility for the "black book" in which names and photographs of suspected homosexuals were kept. Asked by IGLHRC in 1993 how many homosexuals the Sibiu police had on file, he answered, "Very many, extremely many."
The Case of Traian Pasca
In early 1993, two men in the Transylvanian town of Cugir broke into the home of another man, whom they believed to be homosexual. They robbed him and forced him to have sex with them. When the victim made an official complaint, prosecutors accused him of having wanted and solicited sexual relations with the two, a charge considered tenable since--as the police appeared to know--he was homosexual. The victim was then tried and convicted under Article 200.
When the events occurred, Traian Pasca, thirty-eight, was living in a workers' hostel in the town of Cugir. Pasca's court file(42) begins with his first, handwritten statement to the police. On the night of February 9, 1993, he states, Florin Musat and Dorin Foia broke down his door in the hostel. They took down their pants and demanded "relatii secsuale (oral)." Pasca says that he tried to alert the neighbors and to run away. However, Foia seized him "and put his penis in my mouth." Musat then did the same.
Pasca finally escaped; by the time he came back, the two were gone and his watch had been stolen.
Pasca states that they were drunk, and that they had had "abnormal sexual relations" with him twice in the past. He asks the police to take legal measures against them.
In 1994, IGLHRC interviewed Musat and Foia in Aiud penitentiary, where they were serving their sentences under Article 200. They confirmed this account. Pasca, an acquaintance, was known in town as a homosexual; drunk and passing his hostel, they decided to pay him a visit and "rough him up a bit."
Next morning, they were picked up by police on Pasca's complaint. Police found Pasca's watch on Musat. When they were taken to office of prosecutor Dana Ghitoaca, Pasca was also there, to face them as their accuser. However, a remarkable and disturbing series of events then happened through which the victim became a defendant in turn.
According to Musat, when he was arrested police informed him that Pasca had accused the two of raping him. They advised the two men to declare in their statements that Pasca had sex with them of his own free will; then, police told them, the two would be set free.
Police and prosecutor, clearly, were assembling a case against Pasca for committing homosexual acts. According to Musat, police wanted Pasca himself to withdraw his declaration and affirm that the sex was consensual. Getting declarations to this effect from the two assailants was the first step. The police wrote such declarations and Musat and Foia signed them. The three together were then taken before the prosecutor, who spent most of this session confronting not Foia and Musat but Pasca, accusing him of being a homosexual (Musat believes the police had prior information on Pasca(43)), and demanding to know why he did not try to run or resist when the two attempted to have sex with him. According to Musat, Pasca--intimidated--said nothing. The prosecutor then made out a mandate of arrest against Pasca.
The file shows that the prosecutor charged Pasca under Article 200.(44) This is followed by a declaration from Pasca, dated February 11, 1993. This declaration is in a handwriting other than Pasca's (judging from the first declaration), though it appears to be signed by him. He states he had known Foia for ten years, Musat for five. In February 1992, a year before these events, they came together to his place and forced him to have oral sex. "I said nothing because I did not want to make problems for them, and I hoped it would not recur." In April 1992, the writer says, the same thing happened, and they had oral sex in the same way. "I may mention that they broke my door both times, but I cannot prove these things with a witness."
On the night of 9 February, they broke his door again. The remainder of the account roughly follows his previous statement.
To the authorities' frustration, Pasca was still insisting that he had been violently assaulted. Finally--as Musat said, "after they had bullied him enough"--he retracted this statement as well, at least in part, in ambiguous language which nonetheless admits "guilt." A third, much shorter declaration, also dated February 11, is typed. In it, Pasca acknowledges simply: "I recognize that I committed the infraction for which I am kept in custody, namely, sexual relations between persons of the same sex; I entered into sexual relations with Foia Dorin and Musat Florin"--although he adds, "but by force." A handwritten scrawl on the declaration, not written by Pasca, reads, "Start a penal action under Article 200."
On June 28, 1993, all three were tried in Alba Iulia. In addition to the charges of violation of domicile and theft leveled against Musat and Foia, all three were found guilty under Article 200 and sentenced to one year and six months under that charge. No paragraph of the article was specified during the trial, an apparent instance of judicial indifference or incompetence.(45)
Traian Pasca had been under pre-trial detention since February. He served his term until November, when he was finally paroled.
The Case of Ovidiu Chetea, Nicolae Petricas, and Nicolae Stupariu
In 1992, Ovidiu Chetea, an eighteen-year-old florist, was arrested in Timisoara. He claims his arrest was a pretext for the police to gain entry to his flat and arrest his roommates, who were suspected of homosexuality. Prosecutors charged Chetea and two of his roommates under Article 200, paragraph 1.
Their disturbing story exemplifies the invasiveness, and corruption, of a judicial system avid for evidence of private acts, as well as the brutality of prisons where the three underwent repeated beatings.
Chetea lived with Nicolae Petricas, twenty-four, and Nicolae Stupariu, thirty-one. All three (Chetea and Petricas later told IGLHRC) were gay; all worked at the main flower market in Timisoara. The exact circumstances of Chetea's arrest on March 13, 1992 remain unclear; his court file(46) deals exclusively with the accusation of homosexuality. He later received a suspended sentence for theft; Chetea says he was arrested for stealing flowers, but that police knew one of his roommates, Stupariu, was homosexual, and seized Chetea as an excuse to enter their flat and collect evidence.
The indictment ultimately produced in the case details what the police found at the flat; it exhibits as well the penetrability of private life in Romania. There were "various materials of a pornographic nature (videocassettes and magazines), exclusively depicting sexual relations between men, as well as a letter sent to the aforementioned accused by a person living in Holland (having emigrated from Romania) through which they were given these materials and the addresses of some homosexuals the defendants could contact in order to be able to emigrate." In addition, police confiscated Stupariu's address book, noting that it contained mostly male names. On this basis, Petricas and Stupariu were arrested. During interrogation, Petricas identified Ovidiu Chetea as one of his sexual contacts.
Chetea told IGLHRC that he was beaten severely by the police, because he refused to admit his homosexuality and to confirm his relations with Petricas. The beatings were so intense that he repeatedly lost consciousness.
Meantime, he says, Stupariu was beaten as well. Chetea contends that the beatings contributed to Stupariu's later death, in August 1993, apparently of an unidentified stomach disorder. Stupariu had seemingly refused to confess to his relations with a person identified in the prosecutor's report as "Adi" from Deva, with whom he had allegedly had sexual relations in the city of Hunedoara in August 1991. One persistent question in this case is how the police had obtained this information. A possibility raised by Chetea is that "Adi" was an informer who had given the police Stupariu's name--lending credence to the possibility that Chetea was detained for theft in order to gain more evidence against Stupariu.
Prosecutors rejected Stupariu's denials. "We consider the formulations of the defendant irrelevant," the report notes, citing Stupariu's ownership of the cassettes and magazines in the flat as evidence that he was a confirmed homosexual. The indictment also cites evidence given by another roommate, who told police that the defendants had made effeminate gestures to one another and had only been visited by other men.
Petricas and Stupariu were kept under arrest for one month. They were both freed, according to Petricas, when they paid bribes of one hundred DM (approximately U.S. $75 at the time) each to have their pre-trial detention warrants canceled. Ovidiu Chetea remained detained for four months.
Petricas and Chetea both report that they were beaten and raped by their cellmates, who numbered over sixty. They believe that this took place with the knowledge of the guards, who had made a point of identifying them to the other prisoners as homosexuals. And, in one incident recounted by Petricas, as they were lining up naked to go to the showers, one of the prison guards demanded to know which were the homosexuals. He then separated Chetea, Stupariu, and Petricas, and beat them with a wooden club.
On the night before Petricas and Stupariu were freed, the guards announced their impending departure to the other prisoners. The two were then forced to have sex with the entire cell-group--or rather, were shared out, with half taking Stupariu, half Petricas. In a trial on June 26, 1992, Petricas (who was charged with having repeatedly broken Article 200, paragraph 1) was sentenced to two years in prison. Chetea received a year and six months for the same charge; Stupariu, who was charged only with the one "crime" with "Adi" in August 1991, received one year. Petricas's and Stupariu's sentences were suspended--because, Petricas claims, they paid further bribes to the court. Chetea's sentence was not.
In December 1992, the prosecutor appealed this decision, asking that Stupariu and Petricas be imprisoned, and calling attention to the gravity of their crimes and the "social threat" they represented. On February 8, 1993--a year after the ordeal began--this appeal was rejected by the Timisoara court.(47)
1. Codul Penal 1 Maiu 1865 cu modificarile din 1874, 1882, 1893, 1894, 1895--Textul Codului Penal si Procedurii Penale. Editura Libraria Noua, Bucuresti, 1908. See also HOSI Wien/Auslandsgruppe, Rosa Liebe unter dem Roten Stern. Zur Lage der Lesben und Schwulen in Osteuropa, Fruhlings Erwachen Verlag, Hamburg, 1984, pp. 42-43.
2. Transilvania, Art. 242; Bucovina, § 129 (both laws from regions annexed to Romania after the war). Ratescu et. al, eds., p. 681. The 1864 code, modeled on the Code Napoleon, had no comparable provision.
3. 3 It had been coined in 1867 by an Austro-Hungarian doctor, Karoly Kertbeny (or Benkert).
4. 4 Ratescu et. al, eds., p.680.
5. 5 Ratescu et. al, eds., p. 681. It is clear, at least, that here "pederasty" is used to refer to anal intercourse between adults. (However, the commentary seems to propose a distinction between "pederasty" and "sexual relations" proper. By contrast, in contemporary Romanian legal practice, anal sex is regarded as a raport sexual or relatia sexuala; oral sex, though, is often instead categorized as mere perversiune sexuala. See below, note 99. ) The commentator in question was I. Ionescu-Dolj, President of the Legislative Council's Section of Public Law.
6. 6 In fact the new code placed "sexual acts committed between humans and animals" in a separate article, 432, and punished them with 3 months' to one year's imprisonment "if provoking public scandal."
7. 7 Thus Michel Foucault observes "the appearance in nineteenth-century psychiatry, jurisprudence, and literature of a whole series of discourses on the species and subspecies of homosexuality, inversion, pederasty, and 'psychic hermaphroditism'; see Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. R. Hurley, Vintage (New York, 1980), p. 101.
8. 8 Dr. Valerian Tuculescu, former president of the Association of Free Psychiatrists, remarked to Human Rights Watch and IGLHRC: "Sexuality has never been regarded primarily through the prism of medical knowledge in Romania. It has always been treated as a political and moral problem." Interview by Scott Long and Bogdan Voicu, June 1997.
9. 9 Ratescu, et. al., eds., p. 681. Partial redundancies in the code as enacted also suggest a breakdown of classifications. For instance, rape is defined in Article 419 as a man forcing "a person of either sex" to enter "a sexual relation"; Article 420 then penalizes for "violence against decency" any person who "commits any act of sexual inversion" by force on another person, imposing a virtually identical penalty but leaving such an act (and its exact distinction from rape) undefined. Apparently "inversion," once again, was something different from a full "sexual relation."
10. 10 Ratescu, et. al, eds., p. 681.
11. 11 Ratescu, et. al., eds., p. 681.
12. 12 Cas. II, dec. 297, 1940; cited in V. Papadopol, I. Stoenescu, and G.V. Protopopescu, eds., Codul Penal al Republicii Populare Romane Adnotat, Editura de Stat, Bucuresti, 1948, p. 462; emphasis added. This raises the question of whether police or prosecutors could create, then certify, scandal simply by releasing information to the public--a question that would reappear in at least one case from 1990s Romania (sentinta penala 02.03.1993, cazul Radu Alexandru, Tribunal Militar, Bucuresti; discussed in part 5 below) Other jurisprudence cited by the 1948 commentary, however, drew a much narrower circle of admissibility: "The element of provoking public scandal does not exist when this scandal follows from the act of other persons, who through their maneuvers have managed to discover the relations between the accused, and have given them notoriety. The same applies when the authorities have discovered such relations and have made an act of which the public previously knew nothing into a matter for discussion." Papadopol, et. al, p. 462. However, the 1939 commentary strongly implies a broader latitude, citing in lieu of a definition of "scandal" the example of "the well-known public scandal provoked in Germany in 1908, through the revelations of M. Harden against the pederasts, who were discovered as well among official persons." In that case--which outraged Wilhelmine society in its waning days--relations conducted in private among a circle of powerful (and adult) aristocrats indeed became known solely through the broadsides and "maneuvers" of Harden, a crusading journalist.
13. 13 Papadopol, et. al., eds., p. 462; emphasis added.
14. 14 Both in Ratescu, et. al., eds., p. 680.
15. 15 Clearly the heterosexual family lay at the center of what legal concept of "privacy" existed (and the word itself is problematic to translate into in Romanian); the only sexual offenses punishable within the family's penumbra were those which assaulted its sanctity, including adultery, bigamy, and incest. These fell into a title separate from other sexual offenses, as "crimes against the family." Marital rape was explicitly exempted from punishment.
16. 16 Codul Penal si Codul de Procedura Penala. Editura "Cutuma," Bucuresti, 1992. For full texts, see Appendix 1.
17. 17 Comments by conservative Romanian politicians in the 1990s, which portray homosexuality as an assault on Romanian reproduction, raise the possibility that Ceausescu may have conceived Article 200 at least partly in the context of his own pro-natalist policies designed to raise the birth rate.
18. 18 Similarly, in justifying a sodomy law introduced in the USSR in 1934, Stalin's chief prosecutor described homosexuality not as a vice but as a political grouping outside state control: "So who are the bulk of our clients in these sorts of cases? Is it the working class? No! It is classless hoodlums . . . either from the dregs of society, or from the remains of the exploiters' class. They have no place to go. So they take to--pederasty. Together with them, next to them, under this excuse, in stinky secretive little bordellos, another kind of activity takes place as well--counterrevolutionary work." Cited in Masha Gessen, The Rights of Lesbians and Gay Men in the Russian Federation, International Gay and Lesbian Human Rights Commission, 1994, p. 9.
19. 19 Interview by Razvan Ion and Scott Long with Imre Andras, member of the Romanian Chamber of Deputies, March 1993. Despite the restrictions on its mandate, Amnesty International took up several cases of persons falsely accused of homosexuality by Romanian authorities. These included Gheorghe Rusu, who was sentenced to three years' imprisonment on charges of "homosexual acts" as punishment for requesting to join his wife and child in France; and Mihail Botez, who applied to marry a French citizen and emigrate to France, and was sentenced to one year's imprisonment under Article 200 after what Amnesty International called "a carefully staged 'frame-up' by the state security police." Amnesty International World Report, 1980, pp. 291-92..
20. 20 Interview by Scott Long with Daniel Iorga, June 1997.
21. 21 Interview by Scott Long, Yves Nya Ngatchou, and Bogdan Voicu with Mihai Crismareanu, Braila Penitentiary, June 1997.
22. 22 Interview by Scott Long and Yves Nya Ngatchou with Mihai Tintila, Iasi Penitentiary, June 1997.
23. 23 Interview by Scott Long with E.M.,Cluj, May 1994.
24. 24 Interview by Mona Nicoara with I.B., 1995; in Rachel Rosenbloom, ed., Unspoken Rules: Sexual Orientation and Women's Human Rights, International Gay and Lesbian Human Rights Commission, 1995, p. 165.
25. 25 Interview by Razvan Ion and Scott Long with Col. Ion Zerca, Galati Penitentiary, January 1993.
26. 26 Interview by Razvan Ion and Scott Long with Lt. Mircea Mate, Sibiu, May 1993.
27. 27 Early in 1992 the International Gay and Lesbian Human Rights Commission (IGLHRC) conducted a fact-finding mission to Romania, accompanied by representatives of the International Lesbian and Gay Association (ILGA) and the European Council of AIDS Service Organizations (EUROCASO). Undersecretary of state Lucian Stingu of the Romanian Ministry of Justice confirmed that, so long as it remained on the books, any homosexual organization in Romania would be illegal, as a "threat to public order." However, he insisted to the mission that no prisoners were held under paragraph 1 of Article 200: all those imprisoned before 1989 had been freed in subsequent amnesties, he claimed, and the law was not being enforced. He promised that the paragraph would be repealed before "the next visit of representatives of your organizations." Interview by John Clark, Russ Gage, and Kurt Krickler with undersecretary Lucian Stingu, 1992; cited in Kurt Krickler, "Hoffnung in Rumanien," LAMBDA Nachrichten, July-August-September 1992, pp. 50-51.
28. 28 Letter from Adrian Duta, undersecretary of state in the Ministry of Justice, to Stefan Cooper, July 1992 ; interview by Razvan Ion and Scott Long with Adrian Duta, January 1993.
29. 29 Interview by Scott Long with Marian Mutascu, June 1993.
30. 30 This and other citations of Cucu's account are taken from Ciprian Cucu, testimony to the International Tribunal on Human Rights Violations Against Sexual Minorities, New York, October 1995 (available from the International Gay and Lesbian Human Rights Commission).
31. 31 The supervising inmate or sef de camera is delegated by prison guards to maintain order within the cell. Not only do supervising inmates routinely abuse their authority, extorting sexual and material favors from cellmates, but such abuses are tolerated, condoned, and even actively encouraged by prison officials. The supervising inmate essentially serves as a surrogate employed by guards and other penitentiary staff in order to violate the rights of prisoners with impunity.
32. 32 The age of consent for women involved in heterosexual relations in Romania is fourteen; there is no age of consent for heterosexual men. Article 200, paragraph 2 at the time provided a penalty of two to seven years' imprisonment for same-sex relations with a partner under eighteen.
33. 33 Gigi Horodinca, "Anuntul misterios," Tim-Polis, February 1993. AIDS was used as a justification for the investigation. In February 1993, before the trial, Razvan Ion and Scott Long interviewed with the prosecutor in the case, Liviu Cretiu. He explained that the two were being held in pre-trial detention for "psychiatric evaluation, since their relationship was clearly abnormal." He also noted: "We suspect the older partner of infection with AIDS, and this is a danger to society, and he should not be on the streets." However, he revealed that Mutascu had neither received nor been offered an HIV test. Asked to justify his suspicions, Cretiu said, "The police are qualified to make this judgment, and they have made it and I accept it."
34. 34 Gheorghe Crisan, "Visul de noiembrie s-a spulberat brusc," Tineretul Liber, February 22, 1993. Other reporters encountered a hostile reception. "At the end of January," according to Cucu's testimony before the International Tribunal on Human Rights Violations Against Sexual Minorities, "we were visited by a journalist from Radio Timisoara. . . . During the visit the investigator told my parents that he would no longer allow the journalist to air shows that 'violate the criminal code by defending a crime.' He said he would make the reporter reveal the name of a man who, on [another] show, had admitted he was homosexual." This was confirmed in an interview by Razvan Ion and Scott Long with the reporter, Mioara Dan, February 1993.
35. 35 Ciprian Cucu, testimony to the International Tribunal on Human Rights Violations Against Sexual Minorities.
36. 36 Interview by Scott Long, Yves Nya Ngatchou, and Bogdan Voicu with Cosmin Hutanu, Focsani penitentiary, January 1994.
37. 37 As provided in Article 86 of the penal code, introduced in Law 6/1973. Hutanu's file in Focsani penitentiary, inspected by IGLHRC, did not indicate where these sentences were carried out or how long their durations were. Trial in absentia is provided for in Article 291 of the code of criminal procedure.
38. 38 Interview by Razvan Ion and Scott Long with Lt. Mircea Mate, Sibiu, May 1993. In 1993-94 Ion, Long, and Bogdan Voicu visited Sibiu three times, interviewing Ovidiu Banu, Ovidiu Bozdog, Florin Hopris, and Ciprian Stoica, as well as Chief Prosecutor Ion Emrich, Lt. Mate, and other members of the police; most of this account is based on those interviews.
39. 39 File no. 5711/1993, judecatoria Sibiu.
40. 40 Interview by Ion and Long with Ovidiu Bozdog, May 1993.
41. 41 Gheorghe Nastase and Florin Hopris had admitted to having had sex separately with Bozdog when each was seventeen, making them minors under Romanian law; see files no. 5298/1993, 5711/1993, and 5943/1993, judecatoria Sibiu.
42. 42 Dosar no. 3268/1993, judecatoria Alba Iulia.
43. 43 When IGLHRC representatives Scott Long and Yves Nya Ngatchou visited Cugir in April 1994--observing the still-smashed door of Pasca's domicile--his contemptuous neighbors indicated his homosexuality was well-known: "Everybody knew about him and the things he did," one said.
44. 44 No paragraph was specified. Article 4, paragraph 2 (defining a "continued and complex" infraction) was applied, apparently because Pasca had confessed to a previous experience with the two.
45. 45 Sentinta penala no. 1569/1993, judecatoria Alba Iulia; on file with Human Rights Watch and IGLHRC.
46. 46 Dosar no. 5856/1993, judecatoria Timisoara. Copies of most documents on file with Human Rights Watch and IGLHRC. In March 1994 Scott Long, Yves Nya Ngatchou, and Aurelian Seres visited Timisoara and interviewed Nicolae Petricas and Ovidiu Chetea; this account is largely based on their stories. Nicolae Stupariu, by that time, was dead. See also Anca David, "Un tanar homosexual a fost torturat de puscariasi," Libertatea, July 15, 1996.
47. 47 Chetea benefited for a time from the incompetence of the authorities. A document found in a file in the courthouse in the distant city of Oradea (dosar no. 6819/1993; copies of contents on file with Human Rights Watch and IGLHRC) indicates that, on July 15, 1992--while he was serving his Article 200 sentence--his theft case came to trial in Timisoara, and he was given one year's imprisonment--suspended. This suspension should not have affected his imprisonment for homosexuality. However, in what was either a judicial bungle or a highly irregular act, on July 17, he was set free.
He was picked up again in Oradea, in March 1993; the file in Oradea states that he was stealing flowers from a cemetery.
Oradea prosecutors contacted the Timisoara court, which informed them of Chetea's sentence for homosexuality. Attempting to cover up the irregularity of his release, however, Timisoara offered no information on why the sentence had not been served.
Chetea then remained in detention for nine months without trial. He was kept there by the prosecutors and court in Oradea, who tried repeatedly and unsuccessfully to obtain word from Timisoara on whether his previous sentence had been amnestied or fulfilled.
In November 1993, the Romanian Helsinki Committee had received from the Ministry of Justice a list of persons imprisoned for homosexuality. Ovidiu Chetea appeared on this list. On December 20, IGLHRC representatives received permission from the Ministry of Justice to visit him in Oradea penitentiary. IGLHRC arrived at the penitentiary on December 22, to find he had been released the day before.
It seems possible that he had been freed in order to hide the details of his case, as well as the series of judicial errors by which the Oradea court--abetted by the stonewalling of authorities in Timisoara--kept him in prison for nine months, while having no clear information on what previous crime he was being held for.