7. ABUSES BY POLICE AND OTHER OFFICIALS


Surveillance, Blackmail, Control

Captain Cojocaru of the Brasov police assured Human RIghts Watch and IGLHRC, "We do not monitor gay meeting places. No one in Brasov keeps files on homosexuals; we have no undercover police." General Paun of the General Inspectorate of Police affirmed, "The police do not target homosexuals--we target situations where criminal actions are committed by homosexuals," adding that the Inspectorate department investigating "infractions of sexual life" was shut down after 1990, "just like the department that dealt with Gypsies."(1)

This is an overstatement: municipal and county police departments retain "morals" divisions under various names, most with a special brief to monitor homosexuals. Major Catalineanu, head of the vice squad in the Bucharest municipal police, told an interviewer in 1991 that his "varianta" department dealt with "forgery, fraud, prostitution and pandering, juvenile delinquency, and homosexuality."(2)

There is, indeed, ample evidence that police regard homosexuals as a special and suspect class, and justify surveillance by the argument that they are more disposed to crime. The notion of "pathological homosexual jealousy" frequently recurs. A recently published Dictionary of Useful Legal Terms, co-authored by the head of the General Inspectorate of Police, contains a special entry on "homosexuality" (although the term itself nowhere occurs in legislation), characterizing it by "misogyny in men, androphobia in women, and jealousy toward the partner of the same sex."(3) General Paun observed, "There are many cases of homosexual murders, terribly vicious, particularly partners in a couple." Captain Cojocaru said, "Homosexuals are very jealous: the moment when a partner is betrayed, murder can easily result." And--also in Brasov--Maj. Stefan Bancila, chief of the homicide division of the county police, undermined Captain Cojocaru's earlier assurances, telling IGLHRC that gay cruising areas "are breeding places of crime and murder, and of course we have informants there all the time."(4)

One newspaper describes Col. Tudor Butoi, a psychologist in the Bucharest Municipal Police, as "perhaps the number one specialist in Romania on homosexual behavior." This expert often regales the press with the horrors of homosexuality:


Murders among homosexuals have distinctive features. By contrast with crimes committed suddenly and spontaneously . . . the homosexual killer operates with premeditation, surprising the victim (often in a home they share), acting with a ferocity typically moved by savage jealousy . . . The danger does not disappear at all in the case of homosexual couples. Their jealousy is pathological. Stable couples are difficult to form. Their relations are as a rule occasional and the partners are capricious and unstable. When they attain a lasting relationship, the egoistic feeling of possession is exacerbated. Life in a homosexual couple is far from easy. For a normal man, it is excruciating torture to enter the dwelling of such a pair. In general it is a horrible pit, stinking with filth. Aging homosexuals suffer from fecal incontinence. Due to anal relations, over time, the sphincter gives way. . . .The durability of couples is maintained through gifts, money, food, orgies. Not uncommonly, the homosexual also blackmails the partner, in order not to lose him, or commits murder from jealousy. . . . To be lenient to homosexuality would be a criminal experiment.(5)

"I don't believe homosexuality is acquired by heredity," Butoi told another reporter. "The genesis of this phenomenon is in adults perverting children. . . . Homosexuality, like prostitution, is the factor which germinates theft, vagabondage, and crime." (6)

Such malign stereotypes are evidently rampant among police. Major Catalineanu told an interviewer, "Some of the police officers would like to shoot homosexuals."(7)

Catalineanu was a well-known figure to gay men in Bucharest for years. One who received asylum in the Netherlands remembers him as heading "teams of informers and policemen who beat up, chase, and even seduce homosexuals.(8)

Bogdan Dumitrescu is a gay man who has a long history with the Bucharest police, as a suspect and as an unwilling source of information. He reports that:


The police have always kept files on homosexuals. They are always interested in people in high positions, and it was those they mostly asked me about. But if they ever asked me about people I knew from the Opera Park, I refused to tell them.

Catalineanu looked after people who informed for him. There was a prosecutor in Sector 5 in Bucharest who in 1991 was blackmailing a number of gays with threats of criminal cases. He came to my home, trying to be tough, threatening to arrest me, trying to get names from me I people I had had sexual relations with. I went to Catalineanu, and he made certain that nothing happened. The prosecutor picked up some gay students at the university in the middle of an examination. Catelineanu got them out of jail, because they had worked for him.

In 1993, Catalineanu finally was promoted to the antiterrorism squad. He destroyed the files on homosexuals before leaving, so that now, when a new crime involving homosexuals happens, only he will have the information, at his disposal in his head. After 1990 policemen received a 20,000 lei bonus [$200 in 1990] for each crime they solved: Catalineanu wants that money for himself. His successors have to come to Catalineanu for information; Catalineanu gives it only if he gets the bonus.

The only way his successors can build files of their own is by blackmailing homosexuals, and naturally this still goes on.(9)


Eugen, a Bucharest gay man in his twenties, tells the following story:

I was walking in the Opera Park, one night in September 1996, about 1:00 AM. Two policemen stopped to ask me what I was doing there. They asked for my papers; I gave them, but I said, "What do you want? Is it illegal to walk in the park at night?" So they said, "If you think you're so tough, come to the station and we'll talk there."

They took me off to the main police station on Calea Victoriei--the varianta section. They put me in a cell for an hour. Then they photographed me and took my fingerprints, and sat me down with thirty or forty police photographs--front and side shots--and demanded that I say who I recognized. I refused to say. They told me I had better get out of Romania, that I would have a lot of trouble if I stayed. They said: "We will know you. We have a lot of people in photographs here."(10)

In Brasov in October 1996, Sandu V. was summoned from his home by police by officers from the morals section of the municipal police. He was photographed (face and side) and his fingerprints were taken. Police told him he was known to be homosexual--"so don't bother lying"--and asked him about private apartments where homosexuals met in Brasov, as well as men who owned gay pornography.(11) Similarly, in 1996, two men from the town of Valenii de Munte complained to ACCEPT that they had been summoned by a municipal policeman who asked them to inform regularly on other gay men.(12)

Police routinely patrol public places where gay men are known to meet, harassing them regardless of whether the men are actually performing sexual acts or simply trying to associate with others of the same sexual orientation; gay men caught there are sometimes blackmailed. Daniel I. reports:


In May 1996, I went with a friend to the toilets in the North Railway Station. One person was prowling around. He opened a cubicle where a man was urinating, and the man told him to get out. The prowler left the toilets; then he came back in a few minutes with his shirt torn, and two policemen following him. He said he had been sexually assaulted.


He must have been working for the police. He would not say who had assaulted him; probably he was waiting till the police found out who had the most resources; then he would point at that person and the negotiations would begin. Everyone who was in the toilet was taken to the police post in the station. They searched us and interrogated us about what we were doing there. My friend and I had the nerve to confront them. We insisted on being interrogated in the presence of the accuser and we demanded that he say which one of us had assaulted him. "Who tore your shirt?" He couldn't answer. And we insisted we were not homosexual and were only there to use the toilet. Finally they let us go. But they warned us that we would be arrested if were seen again in the station. And all the money in our pockets was taken.(13)

Rares A. reports a similar incident in 1995 in the Bucharest railway station toilets. He approached and initiated casual conversation with a man who quickly left the toilets. Moments later, two police came in. He was taken to the station, and information from his ID were recorded. Police interrogated and mocked him for an hour, demanding names of other people who cruised the station. "Because I was a student, they supposed they couldn't get much money from me": however, they took what he had on him.(14)

Two men, asking to remain anonymous, approached the Romanian Helsinki Committee in April 1997 claiming that at another cruising area in Bucharest, a policeman lies in wait and routinely blackmails gay men, threatening to take them to the station to be photographed if they do not pay.(15)

In Bucharest, police maintain a visible presence nightly near the Opera Park, the city's main public space in which gay men meet.(16) Beginning in early 1994, organized gangs of at least a dozen people--masked but apparently young--raided the park at night. Wielding either chains or clubs, they swept the park from end to end, beating gay men there. Numerous gay men have reported that the goal seemed to be to drive them toward the police, who waited at the other end of the park, and who refused to respond if victims, threatened or injured, approached them to complain--but would check victims' IDs, recording names and addresses. Police and gangs often appeared to be working in cooperation. Florin Radu described an incident in late 1994:

Eight of them surrounded me and hit me with chains on the head and face. My head was bleeding so badly that I was dizzy and I could barely see for the blood. When I left the park there were police there. They stopped me and checked my papers. Then they pushed me away and said, "See what happens to poponarii like you?"(17)

The attacks reached a peak in 1995, when the gangs appeared in the park two or three nights each week. In 1996 and 1997 they continued, but more sporadically.(18) Similar stories have been recorded elsewhere. A gay man in Timisoara reports that, beginning in mid to late 1996, gangs of twelve to fifteen people--usually without masks, either teenagers or in their early twenties--would sweep the central park there, driving men toward ranks of civil guards who inspected IDs.(19)

Bogdan Dumitrescu describes how Bucharest police monitor one gay meeting place:

The Opera Park is split half-and-half between the precincts in Section 3 and Section 17. They patrol the area and if you do not bribe them or come to an understanding you end up at the station writing a statement. The sub-officers are the stupidest and most frightening: they have an eighth-grade education and a bad mentality, and they will beat or abuse you for money.

Law 61/1991 is sometimes used to harass gays in meeting places and elsewhere. On August 15, 1996, at 12:15 AM, Dumitrescu was walking through the Opera Park in a comically exaggerated, effeminate manner which he calls "strutting." Police took him in, demanding whether he thought he was a girl. Dumitrescu (who had long before lost his measure of protection from police interference when Major Catalineanu was promoted) says that at the station, looking for witnesses to his offense, a policeman picked a confiscated ID from a pile: "that was the witness." He was released but in three days received a citation to pay a 25,000 lei fine (approximately $8 in 1996) under Law 61/1991, for "committing obscene acts and gestures."(20)

On January 7, 1997, Dumitrescu says,

about ten of us were at a birthday party. Over half were gay, with a few straight friends. Between 1:00 and 2:00 a.m. policemen came--regular cops and one from the Health Police; they said they were there because of "public scandal." None of the neighbors had complained, but the police watch this flat because they know a gay man owns it.

We were handcuffed and put in police cars. They searched all our papers--they took my agenda and all my phone numbers. We were taken to Section 3, where the police made jokes about me and read out the names from my agenda. Afterward they said they were putting us in the lockup. I knew this station didn't have a lockup cell; but the investigating officer said, "We have one in the basement now, just for faggots." We were kept there till after noon the next day. They made fun of us constantly. I had to pay a fine of 100,000 lei [approximately $40] under Law 61. Another man at the party, who argued with the police, was fined 400,000.(21)


Dan Hutanasu, thirty, of Bucharest, has described an incident to Human Rights Watch and IGLHRC:

On April 18, 1997, in a bus, I spoke to a man and tried to pick him up. I proposed to give him a blow job. He smiled and said that instead of doing it on the run, we would be better off going to his place. During the conversation, he was very curious to find out more details about me . . .


We locked the door, I sat on the bed. Then he told me he was a cop with the municipal police and that he was going to arrest me. He asked me several times who I was. I pleaded with him to let me go. Two minutes later he took his spray out and sprayed it at me.


I broke the window to run away but there was a metal grid preventing me, so I went for the door. He pushed me against the closet. . . . All along, I didn't hit him. He said he was going to kill me. He started strangling me, he started shouting as though I was attacking him, so the neighbors would come. I succeeded in running away. I ran to the next corner where he caught me. While running after me he was shouting as though I was the attacker. He grabbed my jacket and hit me.

I managed to get away again, leaving my glasses, jacket and my hat in the street. I was dizzy but I stopped a taxi. But the man in the taxi grabbed me and handed me over to the policeman. He took me to the police station--the Bucur Obor station which is a sub-division of Section 8. On the way, he hit me very badly, even worse than I had been hit so far: he broke my lip and I was bleeding from the mouth and the nose.


At the police station . . . I showed my student ID. They all looked at the arresting officer as though this was a delicate matter. It was after midnight. . . . They called the Section 8 headquarters and talked to a captain and asked him what to do with me. I assume the captain suggested a fine. . . . Then they put me in the same room with the police officer. His name was Viorel Jugunaru. He hit me with his fist on the face. I didn't react . . . They had me sign a statement which they dictated to me. I signed since it was true, although it did not mention that I had been beaten, that the man had agreed to having oral sex, that it had happened at his place. All it said was that I propositioned him. The proces-verbal carried the maximum possible fine under the law on "soliciting someone to have sexual relations for material profit" [Law 61/1991, Art. 2 (6): the maximum fine is 1 million lei, about $125, more than an average monthly salary]. So now I was a prostitute. That part was not read to me although the law was mentioned, and I didn't ask either. . . . They took me to the Section 8 headquarters and fingerprinted me and photographed me, front and side. They asked me if I was on drugs, if I got money from my "customers." . . . Then they let me go.(22)

Surveillance in Baia-Mare

In 1996 two gay men from Baia-Mare, in northern Romania, contacted the Romanian Helsinki Committee, saying they were fleeing police in their home city who were interrogating numerous men on charges of homosexuality.

IGLHRC investigated this case in September 1996, and Human Rights Watch together with IGLHRC returned to Baia-Mare in June 1997.(23) An atmosphere of intense fear prevails among gay men there; anxieties about surveillance abound. What emerged was a story of a mysterious inquiry, conducted by Liviu Ivan, a colonel in the county police who is reliably reported to work for the successor agency to the Securitate--the greatly feared Communist-era secret police. The inquiry seems driven by political motives and directed at a person or persons in a high position. Numerous gay men were terrorized; one claims to have been severely beaten; another was driven to two suicide attempts.

Daniel D., one of the people interrogated, reports that the case began in early 1996 when Colonel Ivan discovered "something to blackmail" two gay men in Baia-Mare, Manix B. and Avram L. Based on what Avram L. told him, he believes the two men were forced to give Ivan names of important people who had engaged in homosexual relations, possibly including persons in the police and/or prosecutor's offices in the city and county.

Ivan, although an officer in the county police, is widely known to have worked for the Securitate--and is widely believed to continue to do so. Employees at Policlinica , Baia-Mare's principal hospital, remember him as having been the Securitate officer responsible for enforcing abortion laws before 1989.(24) Apparently in 1996 Ivan obtained further names of homosexuals by searching the hospital files for patients treated for sexually transmitted diseases, or STDs (it is reported that he attempted to intimidate hospital officials) and finding the case of a policeman, Flaminius L., who contracted syphilis and infected two other gay men.(25)

In a manner reminiscent of police procedures in Sibiu three years before, Ivan then began calling in others. Gheorghe I., twenty-three, remembers that in March 1996, he stepped outside the shop where he worked and was approached by Manix B., an acquaintance, as if to point him out. Suddenly "a voice behind me said, 'I am Colonel Ivan.'" He was questioned for five hours, with Ivan telling him, "If you want to go home, you have to tell us with whom, where, and when you had sex, where you hide your pornography, and where you got it." His address book was taken, and he was interrogated about the names in it. Ivan also took him to his home and conducted a search, taking all his letters and a passport.(26) Further threats at the station followed, and he was made to write a statement with the few names of sexual contacts he reluctantly gave.

At home, that night, Gheorghe took an overdose of sleeping pills. His mother rushed him to the hospital, where for two days he suffered from partial amnesia about the interrogation. Within hours of his return home, a flood of memories returned. He went to the bath and slashed his wrists. His mother found him swimming in blood. Again she saved his life.

Ivan came to the workplace of Daniel D., twenty-five, while he was away; Ivan searched his possessions and told Daniel's colleagues he was under investigation for homosexuality. When his colleagues told him of the visit, Daniel went voluntarily to the county police. Ivan's first question to him was, "Do you like anal sex?" He demanded the names of at least forty sexual contacts before he would let Daniel leave. After four hours of intense interrogation, Ivan searched his apartment, without a warrant; Daniel had destroyed all compromising materials before leaving. Nelu P., forty, is a married businessman whose wife does not know of his bisexuality. In April 1996, Colonel Ivan came to Nelu's shop. Uniquely, in this case, he took the precaution of bringing a warrant signed by a prosecutor, perhaps expecting Nelu to be conversant with legal procedure. The mandate, however, only authorized the search of Nelu's home--not the office, which Ivan proceeded to rifle.(27) He confiscated a magazine hidden there, "designed for those who practice sexual relations between persons of the same sex,"(28) along with an address book and numerous letters. Nelu was then taken in for an eight-hour interrogation, during which Ivan kicked and beat him, demanding to know "how he did it and with whom." Manix B. was also produced, to allege before Nelu that the two had had sexual relations. Nelu was released, but underwent two more interrogations in the next two weeks in what he calls "psychological warfare." Ivan threatened to tell Nelu's wife; he commanded Nelu to call the numbers in his address book, and, when he refused, struck him "many times" on the top of his head with his fist. He suffered continuous verbal abuse and says that when he left the station after the last interrogation, he had been beaten so badly in the back and spine that he could hardly walk.

Kalman K., thirty-one, lived in a village in the county. Ivan picked him up there and took him to the police at Baia-Mare. Kalman was shown a list of forty to fifty names, including prominent people in the county, and told to identify sexual contacts. At first, he named only two: Flaminius L. and a man who had later emigrated. Ivan then demanded extensive details of these sexual experiences, and pressed for others, particularly insisting that he name his friend Gheorghe I. as his lover (a detail both deny). When he refused, two officers pushed him against the wall and physically menaced him until he agreed.

When released, Kalman immediately contacted Gheorghe. He believes that Ivan was preparing to arrest both of them. They fled to Bucharest and told their story to the Romanian Helsinki Committee.

A newspaper reporter, Ioan Toporan, was a friend of some of those interrogated. In late April, to call attention to their situation, he published a short account of the investigation:


The life of the "boys apart" has been broken up by a colonel with the name of a Tsar. Picked up from office or home, after a painstaking search (without a warrant), the victims . . . were taken to the police station, where they were kept five to seven hours, in order to obtain "confessions" and of course lists of other victims to come . . . Is [the investigation] aimed at nameless persons highly placed in the county?(29)


He was immediately summoned to the county police. There, the press officer demanded his sources, saying, "If you do not tell us, we cannot ensure your protection--a car can hit you, someone can stick a knife in you in a dark street."(30) Toporan refused.

Two articles in succession appeared in another local newspaper, under the headline "Guessing game: Who are the twelve homosexuals who have scandalized Baia?" They promised to reveal the names of those implicated: "Who are these kissing homos? . . . When we publish a list of these 12, there will be a lot of shame. . . On the subject of these 12 homosexuals there exists a criminal file." And in a thinly veiled, vulgar threat: " What does a cock have to do with the Prefect's office?"(31) The pseudonymous articles were, Toporan says, "a warning to somebody." Full revelation was promised in a third article, which never came--because, Toporan believes, "Someone in power intervened to prevent it."

Many of those interrogated remained under surveillance. Gheorghe I. states that a man came up to him in July 1996 and whispered that he had been following Gheorghe for two weeks. Nelu P. says that he received anonymous letters and phone calls threatening to reveal his homosexuality; that he believes his telephone to have been tapped; and that he was often followed in Baia-Mare by a black car which he could recognize by its license plates.

Even the total number of those interrogated is uncertain. Kalman K. says there were dozens of names on the list of homosexuals Colonel Ivan showed him. The newspaper articles cited the number 12; and Nelu P., who asked an attorney acquaintance to make inquiries, says he also heard that 12 were directly implicated.

The Romanian Helsinki Committee protested to the Ministry of the Interior, on behalf of Kalman K. and Gheorghe I. The General Inspectorate of Police responded in two letters: one said that the investigation resulted from the discovery of "a group of persons who had entered into homosexual relations"; the other, that the investigation was undertaken after complaints that Manix B. forced a minor to engage in homosexual sex; the minor "also named other homosexuals."(32)

The latter story was repeated to IGLHRC during a meeting in September 1996 with Colonel Ivan and his superior, Colonel Botea of the county police. "All those interrogated," they said, "were in the same group of homosexuals." They confirmed that the alleged aggressor was still at liberty.

It is unlikely that this alleged crime motivated the investigation--not least because, of those persons interrogated who spoke to IGLHRC, all affirmed that Colonel Ivan had not once asked about it, nor had rape or sexual relations with minors been brought up at all. Colonel Ivan's sole concern had been to extort more names of homosexuals. Indeed, Manix B., far from being a suspect, was called in at Nelu P.'s interrogation as a privileged witness, and was also used to identify Gheorghe I. The very fact that he remained at liberty is itself revealing, in a system where pre-trial detention is routinely used to jail most suspects. If evidence of the alleged crime existed at all, it would appear that it was used simply to turn Manix B. into an informer; and that investigation of a possible serious offence was abandoned in favor of a witchhunt against innocent persons. If a criminal act did take place, it did so with impunity, in order that Colonel Ivan might carry on a task perceived as more important--identifying and harassing other homosexuals.

On September 26, 1996, IGLHRC met with Eugen Rosca, chief prosecutor of the county. Rosca staged a theatrical display of surprise, asserting he had never heard of the case; calling for the file--which contained only one slip of paper, the mandate issued by the prosecutor to search Nelu P.'s house; claiming that he had known nothing about this search; and insisting that he would himself launch an investigation into how Colonel Ivan and the county police had conducted a criminal probe, in violation of Romanian criminal procedure, without the knowledge of the county prosecutor.

These statements were almost certainly untrue. Returning in June 1997, IGLHRC representatives succeeded in seeing the file again. It was still virtually empty; but it now contained a document, dated September 27, 1996--the day after the departure of the prior IGLHRC team--called a "Resolution": a hasty attempt by prosecutors to cover their tracks and devise with a story to explain the investigation. The document stated that the investigation had been initiated by an inquiry into transmission of syphilis by Flaminius L.(33) Human Rights Watch and IGLHRC received confirmation from hospital officials that this syphilis case dated from 1993--hardly a justification for interrogations which began only in 1996. Nor were any of those victims who spoke to IGLHRC asked about transmission of disease through sexual contact..(34) It also mentioned the allegations against Manix B., but confusingly offered no connection between that case and the syphilis transmission. "From the contents of the investigation," the document states, "it emerged that, within the city of Baia-Mare, there exists an organized network of men who have practiced unnatural sexual relations. The number of these persons is approximately twenty to thirty."

Finally, exploiting the status of Flaminius L.--who worked at the penitentiary and hence fell under military discipline--it refers the entire matter to the regional Military Prosecutor, based in the city of Oradea.(35)

A few days after IGLHRC representatives left Baia-Mare in September 1996, Daniel D. was summoned by Rosca's subordinate, prosecutor Ioan Brisc--in apparent retaliation for Daniel's conversations with IGLHRC. Brisc asked who he had been "gossiping with" lately, demanding whether he picked up "clients" in the restaurant where he worked, and sneering, "Why are you allowed to handle food? You are a danger to society." He ordered Daniel to reaffirm the statement he had given Colonel Ivan. Daniel refused, saying the statement had been given under duress. Though Brisc threatened to charge him under Article 200, he finally was allowed to leave.

The language of the articles placed in the Baia-Mare press, with their allusions to the Prefect's office, suggests that a highly placed official or officials may have been the ultimate target of Colonel Ivan's interrogations. Several of those questioned were asked whether they knew homosexuals in state employment; and Ioan Toporan maintains that he has been confidentially told that an attempt to blackmail or destroy the career of a person in authority motivated the investigation. What is certain is that Colonel Ivan, trained in Ceausescu's secret police to punish illegal abortions, found in Article 200 a legal pretext to apply the same invasive and abusive procedures against gay men.


Police Beatings and Torture

Physical abuse of prisoners by police remains common throughout Romania. Documentation collected by IGLHRC and Human Rights Watch, however, suggests a longstanding pattern of meting out special abuse to those suspected of homosexuality. In addition to mistreatment directly at the hands of police and guards, cases such as those of Ciprian Cucu and Marian Mutascu, and of Ovidiu Chetea, Nicolae Petricas, and Nicolae Stupariu, above, show that beatings and rapes by other inmates are performed, with the collusion or even encouragement of the authorities.

Many cases previously discussed show abuses directed by police against those arrested under Article 200, paragraph 1. Other examples show how those arrested, rightly or wrongly, under other paragraphs of Article 200 also suffer from the presumption of homosexuality--and how violence may be used to extract confessions.

Ienel Sandu was nineteen when he was arrested in 1990 in a village near Tecuci; he later spoke hesitantly and painfully about the events to IGLHRC representatives. By his own account, after wedding festivities he attended, another man (previously imprisoned for homosexuality under Ceausescu) followed him and invited him to have sexual relations. Sandu suggested coming indoors; the man refused, insisting they perform the act outside. Unable to resolve their differences, they parted, and Sandu went home alone.

The next morning, Sandu was arrested: the other man had reported that Sandu had beaten him and forced him to perform oral sex. Sandu states that village police cursed him as a homosexual, and beat him from 7:00 AM to 8:00 PM, with truncheons on the torso and the back, as well as on the hands and feet. After thirteen hours, he "confessed." He was dragged, barely conscious, to a doctor, who sent him out, and--according to Sandu--"examined" the police in private for fifteen minutes, then signed a clean certificate of his health. He was sentenced to four years under Article 200, paragraph 2.(36)

Nita Manea was arrested in 1991, when he was twenty. Convicted, with two others, of having forced sexual relations with an eighteen-year-old in Slobozia, he denies the charge. He reports that after his arrest he was beaten for several hours, on the stomach and on the palms of his hands, to extract a confession; police shouted "homosexual" and insulting phrases at him during the beatings, and threatened to rape him "as a homosexual rapes children."(37)

Marcel Brosca was nineteen and a student when arrested in March 1992. He overslept on a train trip, waking in a town called Tecuci. There was no other train that night, so he slept in the station waiting room. He was wakened by policemen, accompanied by a seventeen-year-old boy, who--after some hesitation--pointed at Brosca and told the police, "Him."

Brosca was beaten in the station police post for three or four hours. His hair was pulled; the sides and back of his head were struck against table and wall till blood poured over his face; his arms were bent and stretched; and the soles of his feet were bastinadoed. He fainted at least three times. He was not given any idea of the charges for the first two hours; eventually he was read the accuser's declaration, stating he had been forced by a stranger to perform oral sex on the train. More beatings followed, during which Brosca was explicitly mocked for homosexuality, until he signed a statement dictated by police. At his trial, he repudiated this statement. However, he was convicted under Article 200, paragraphs 1 and 2.(38)

Doru Marian Beldie was arrested in July 1992, not long after turning nineteen. He reports that, for over a week not long previously, he had had a sexual relationship for a week with another boy, whom he says was sixteen or seventeen. The parents of the other boy discovered the relationship, and reported Beldie to the police. He was taken to the Section 17 police station in Bucharest, where he was beaten severely--with truncheons on the flats of the hands and feet--for three or four hours, until he signed a confession. The policeman most active in beating him, named Lebedov, repeatedly called him a "stinking homosexual pervert" and other names.(39)

Elizov Nemaceac was twenty-eight when arrested in 1994. He was ultimately convicted under Article 200, paragraph 2 for forcing another man to have sexual relations.

Nemaceac--who denies being homosexual--admits the essence of the charges. He also states, however, that when he was arrested and taken to the municipal police station in Constanta, he was not given food or water for three days. Police told him he was being treated as a homosexual deserved to be treated. He survived by drinking water from the toilets. He was beaten by Lt. Marius Tocman, who called him a "European pervert."(40)

Dumitru Abalaesi was arrested in 1995 in Chisinau Cris, for forcing a fellow shepherd to have sexual relations. Police hung him in a position colloquially called the "macavela": stringing him up facing the wall, they beat him with a broomstick for two hours till he signed the statement they wanted. They threatened to rape Abalaesi with the broomstick, telling him "a homosexual should like to take it." Next day, taken to see the prosecutor, he refused to sign a typed version of the same statement. He showed the prosecutor the bruises on his back; his own court-appointed lawyer joked about what the backs of homosexuals should look like. The four policemen who had beaten him the day before started hitting him, in the head, stomach, and ribs, before the prosecutor; then they took him to the cellar of the courthouse and beat him till he agreed to sign.(41)


Homosexuality in Detention

Although self-identified homosexuals in prison are subjected to isolation, rape, and other forms of maltreatment by their fellow inmates--as attested by both former prisoners and by prison officials(42)

-- homosexual activity remains widespread throughout the penitentiary system. One veteran of Romanian penitentiaries, who has been imprisoned over a dozen times, says that homosexual relations are "the only form of joy" in the prisons.(43)

All sexual activity between prisoners is punishable by administrative sanction in the Romanian system. However, whereas a heterosexual couple in a mixed prison might receive a notation in their penitentiary files, and possible sanctions such as isolation, Article 200 makes homosexual relations liable to additional, invidious criminal punishment, generally resulting in more time being added to the participants' sentences. Convictions for so widespread an activity are necessarily occasional; yet selective prosecutions do take place. They appear to single out and make examples of prisoners unpopular with administrators, to receive additional sentences and serve additional time.

Marius Aitai, who in 1992, with two other prisoners, received an additional sentence of two and one half years for having consensual sex in Gherla penitentiary,(44)

told IGLHRC representatives:

I was punished three times for this. I had a sanction placed in my file; I was put in isolation for ten days--where they fed me every other day and the guards beat me constantly; and then, six months after it happened, they told me they were going to put me in a criminal trial. Prisoners have no rights when they go to trial. I never saw a lawyer before or during the trial.(45)

In another case, in April 1995, Ionel Penciu, seventeen, was in Tulcea penitentiary, sharing a transit cell with five other prisoners, mostly minors. He entered into an affair with one prisoner, Tudorel Retea, seventeen, over a three-week period. Another inmate, Nicolae Raducanu, who was eighteen, also had sexual relations with Retea.

According to Penciu, two older prisoners discovered these relations, and blackmailed him to give them clothes and other goods, threatening to report the three. Finally they did inform the guards.

At first, as exculpation, Retea claimed he had been forced to have sex; later, court records show, he retracted this.(46) Penciu claims to have been beaten "very severely" by guards. All three were put on trial. Penciu and Retea were tried under Article 200, paragraph 1, and had one year and six months added to their sentences; Raducanu was tried under paragraph 2--because as an adult he had sex with Retea, a seventeen-year-old minor--and received three years.(47) Although the case took place well after the Constitutional Court's 1994 decision, the court file makes absolutely no effort to establish that the acts "caused public scandal": the file makes no mention of the conditions for prosecution imposed by the court.

Some prisoners allege that authorities concoct charges of homosexuality as punishment. Viorel-Daniel Munteanu was seventeen when arrested in Petrosani in January 1993, for burglary. What he ultimately received, however, was a three-year sentence under Article 200, paragraph 2, for forcing a fellow inmate to have sex with him in the police lockup in Petrosani. (48)

Munteanu admits the theft of videocassettes which led to his first arrest; in fact, he turned himself in at the police station in Petrosani. A delegation of police from Brad were visiting Petrosani, looking for a group of thieves they believed had fled there. They took an interest in Munteanu's case, and offered to help interrogate him. They did this by abusing him severely. As soon as the local investigator left the room, the Brad police twisted his fingers and tore at the flesh of his thighs with pliers; they beat him with a heavy wire spring; they hit him in the face with a large fiberglass bar, forcing it in his mouth to try to knock his teeth out; and they beat him over the back with a shovel. The beatings continued for four hours.

For ten days afterward, Munteanu was periodically beaten in the police lockup by local police, but never as seriously as the first day. Two months later, his father filed a complaint.

He maintains that the charge of homosexual rape was concocted out of a fight he and another detainee had with a cellmate. The cellmate then testified that Munteanu and the other detainee raped him; the other detainee was not charged because he agreed to testify against Munteanu. Munteanu believes police persuaded the cellmate to accuse him, to punish him for complaining about the initial beatings.(49)


8. LAW, MEDICINE, AND SEXUALITY



Before 1989 few Romanian psychologists had access to current medical information on human sexuality, or knew--for example-- that the World Psychiatric Association had removed homosexuality from its roster of mental illnesses in 1971.(50) Homosexuals were sometimes given "behavioral treatments," including electroshock aversion therapy combined with tranquilizers "to make the subject cooperative."(51)

All the same, psychiatrists interviewed by Human Rights Watch and IGLHRC agreed that homosexuality has historically not been treated primarily as a medical issue in Romania. Dr. Valerian Tuculescu, founder of the Association of Free Psychiatrists--an organization to assist survivors of psychiatric abuse--says that "during the dictatorship, the official line was that in a healthy socialist society like ours, homosexuality--like suicide, say, or alcoholism--did not exist."(52)

Psychiatric and psychological discourse on homosexuality remains confused, operating in a welter of contradictory definitions and forced distinctions--as one forensic report put it, "between homosexuality as panaphilia (perversion--sexual deviation), a property of the psychopath, and homosexuality as a neurotic phenomenon; that is to say, between homosexuality developing or being developed in the frame of a psychiatric affliction, and passing homosexuality, due to circumstances."(53) Even psychiatrists who deny that homosexuality is a personality disorder may do so in order to condemn it rather than to urge toleration. One psychiatrist who campaigned against modifying Article 200 did so on the grounds that "homosexuality is not a mental illness, it does not have a genetic, hormonal, or psychiatric cause, and therefore no medical cause. It can be considered a vice, and like any other vice it has a sure and deleterious influence on the individual himself, as well as on his family and the integrity of society."(54)

However, emerging medical perspectives--and stereotypes--have affected the legal treatment of homosexuality. The distinction mentioned above, between permanent and transient homosexuality, was often referred to by officials Human Rights Watch and IGLHRC interviewed--generally to justify penalizing one kind, or both. One prosecutor referred to "cases of homosexuality where people experience a genuine need, an intimate problem: for instance, the delicate situation of those who commit homosexual acts in penitentiaries. These were isolated people, who were driven to homosexuality temporarily, from necessity. There are circumstances to extenuate their deeds, unlike perverts in freedom, who perform this thing for enjoyment, as a hobby."(55)

Persons arrested under Article 200 are still automatically subject to psychiatric examination; these examinations account for homosexuality by "lack of behavioral inhibitions and psychomotor excitement influenced by alcohol consumption, with the effect of suppressing moral censures"; or "sexual inhibitions owing to fixation on a perverse stage, or owing to a complex homosexualism."(56)

One suspect showed: "Defensive attitude . . . Instinctive level: sexual impulses exacerbated by predominant attraction to persons of the same sex, taking the aspect of manifest homosexuality, apparently passive and of an egodystonic model. Anxiety."(57)

The purpose of these examinations is unclear; it is certainly not to recommend leniency on medical grounds.

Physical examinations of the anal and genital regions of men arrested for homosexuality are also common. These examinations are generally spurious, relying on the idea that anal sex leaves lasting "lesions" around the anus or "modifications" on the penis. Often involving retracting the foreskin and the insertion of instruments into the anus, they are profoundly degrading and humiliating to those forced to undergo them.(58) The pain and humiliation which these forced examinations cause place them in violation of numerous international covenants. Article 7 of the International Covenant on Civil and Political Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, prohibit cruel, inhuman, or degrading treatment. Article 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires states to prevent such treatment when committed by or performed with the acquiescence of public officials.

A medical issue with profound implications for the legal treatment of homosexuality has been HIV. General Paun of the IGP told Human Rights Watch and IGLHRC: "In 1989, AIDS and other sexually transmitted diseases were very rare in Romania."(59) Such statements betray remarkable amnesia (as well as ignorance about the mechanics and demographics of HIV transmission, which in Romania has not primarily taken place through sexual contact). In fact, failure to monitor the blood supply, shortages of needles and neglect of basic hygiene, and a ubiquitous practice of giving small blood transfusions to children in orphanages and other total institutions, all meant that after the Revolution Romania's pediatric AIDS crisis became an international scandal. Nonetheless, a prevalent rhetoric still depicts AIDS as an external threat, and homosexuals as its internal agents.(60) Justifying a 1993 arrest under Article 200, a police gazette proclaimed, "AIDS is knocking at our portals: launching an SOS is absolutely necessary."(61)

As homosexuality becomes inextricably associated with disease, laws on disease transmission can also be used to monitor and control suspected homosexuals.

On March 30, 1994, Maj. Vasile Ionescu of the police in the town of Fagaras appeared at Attila Horvath's door. He reassured Horvath's terrified mother: "We only suspect your son of having AIDS." Horvath, thirty-five, was told he had had sexual relations "with a number of people" and that he represented a "public danger." Ionescu hinted that he had a direct order from the mayor of Fagaras for Horvath's detention. Horvath was taken to the hospital in Fagaras. Without asking his consent, blood was taken: Ionescu said he would be informed of the results in months. He was never notified.(62)

Over two years later, on July 4, 1996, Ionescu and Plutonier Cornel Folea(63) visited Corneliu Renghea, twenty-two, a student and friend of Attila Horvath. They ordered him to the station the next morning.

The next day, Renghea says, the two officers asked whether he suspected he was HIV-positive. Citing his right to privacy, he declined to answer. The officers refused to let him speak to a lawyer; instead, Renghea says, they began "pulling down law-books, looking for a law they could arrest me under."(64)

Renghea was handcuffed and taken to the Fagaras hospital. This time, however, hospital staff refused to administer an HIV test without Renghea's permission. In an angry confrontation with the officers, Renghea refused. A hospital nurse remembers the officers as "offensive, threatening, and abusive, to him and to us."(65) Renghea was returned to the station, where Ionescu, warning he would be prosecuted, pressured him unsuccessfully to name sexual contacts. Ionescu dictated a statement that Renghea had refused to cooperate with the police. Finally, he was released. However, police offered their version to a local newspaper, which published an article--headlined "An AIDS patient infects young girls"--describing Renghea in a way which made him readily identifiable, and deploring his "cynicism."(66)

Renghea complained to the League for the Defense of Human Rights (LADO), which wrote to local police officials about the two cases. Fagaras police responded, "Though you are indifferent to the situation of the great majority of youth of good faith who can be contaminated with this virus, we are not . . . How do you defend the human right to health and life? By hiding the truth? Lying to society? Ignoring a state of peril which imperils everyone?" Police also maintained that the inquiry into Horvath's case had been initiated by a letter to the mayor from one Florin Blendea; and that Renghea had been accused by an anonymous letter, a copy of which they released. They also revealed--two years late--that Horvath had tested negative for HIV.(67)

Contacted by Human Rights Watch and IGLHRC, Blendea--an old friend of Horvath--was incredulous at the idea of Horvath's being HIV-positive, and categorically denied having informed on him. As for Renghea's case, Articles 222 and 223 of the criminal procedural code specifically forbid pursuing anonymous complaints. (Asked about this, an extremely nervous Plutonier Folea of the Fagaras police said, "We followed the spirit of the law, not the letter.")(68) The letter claims to be from a young women whose only sexual partner, Renghea, told her he was bisexual; she later tested HIV-positive.(69) Renghea denies that he is bisexual or HIV-positive, and insists no one he knows could have written the letter; he believes police themselves may have forged the letter in the wake of LADO's complaints, to justify their actions.

Neither Renghea nor Horvath is homosexual. However, comments during their interrogations indicate police suspected they were. Horvath was picked up after an acrimonious divorce from the daughter of Fagaras' mayor; he believes the investigation was an attempt to humiliate and discredit him. In turn, Renghea believes that police suspect him of sexual relations with Horvath.

Police justified their attempts to force HIV tests by citing Article 309 of the 1968 penal code, which punished with six months' to three years' imprisonment "transmission of a venereal disease through sexual relations, through sexual relations with persons of the same sex, or through an act of sexual perversion, by a person who knows him/herself to suffer from such a disease." In the new penal code, parliament added a provision specifically penalizing transmission "of AIDS, by a person who knows him/herself to suffer from this disease," with five to fifteen years' imprisonment.(70)

Confidentiality of medical information is also fragile in Romania. Hospital staff, in violation of Ministry of Health regulations, often reveal persons' HIV status to a press eager for scandal; they are seldom if ever punished. (71) In 1996 Cristian Giulan, twenty, of Brasov, attempted suicide in the wake of testing positive for HIV. He woke in the hospital, with a TV crew from the largest national network filming him. Footage of a "homosexual AIDS victim" was broadcast nationally. No investigation was ever launched into which hospital personnel had notified the TV station, or admitted the crew to the ward.(72)

Other forms of medical information are also disseminated. In 1995, Iulian M. applied to receive a sex-change operation. (73)

Within weeks of his first interview with doctors, an account of his case appeared in a national magazine, with enough details--including his initials--for him to be readily identifiable. He states that only the doctors could have revealed the information. As a consequence, Iulian lost his job.(74)


9. INTERNATIONAL LAW AND DETAILED RECOMMENDATIONS


As this report shows, Article 200 of the Romanian penal code violates international human rights standards. By subjecting to prosecution sexual relations between persons of the same sex that "produce a public scandal" (paragraph 1) and criminalizing incitment or encouragment "to the practice of sexual relations between persons of the same sex, as well as propaganda or association or any other act of proselytism committed in the same scope" (paragraph 5), Article 200 opens the door to severe and arbitrary curtailment of virtually all civil and political rights of gay men and lesbians in the name of popular prejudice. This article not only violates international standards prohibiting discrimination and restricting a government's interference with the right to privacy, it violates the right to expression, association, and assembly, by subjecting to possible prosecution any public manifestation of or supportive speech about homosexuality, as well as organizations or even gatherings of gays and lesbians.

International law clearly condemns denying fundamental liberties to persons on the basis of qualities inherent to their individuality and humanity. Sexual orientation is such a quality, a deeply rooted and profoundly felt element of selfhood.(75) Article 2 of the International Covenant on Civil and Political Rights 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, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status." Further, Article 26 of the ICCPR states that "all persons are equal before the law and are entitled without any discrimnation to the equal protection of the law" and that "the law shall prohibit any discrimnation and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

The United Nations Human Rights Committee recognizes sexual orientation as a status protected from discrimination under international law. In a 1994 decision regarding a Tasmanian law similar to Article 200, the committe unanimously held that sexual orientation is not a valid basis for discriminatory denial of rights specified in the ICCPR. The committee endorsed the plaintiff's contention that the relevant sections of the Tasmanian code "distinguish between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation, and sexual identity."(76) In holding this to violate Article 2 of the ICCPR, the committee thus affirmed that no right recognized in the ICCPR can be recognized in varying degrees according to sexual orientation. No state may arbitrarily consign gays and lesbians to diminished and discriminatory enjoyment of any fundamental freedom.

Article 200 of the Romanian penal code on its face violates the principle articulated by the Human Rights Committee in that it punishes conduct between persons of the same sex that, when carried on between persons of opposite sexes, is either not criminal or receives a lower penalty. The law imposes a severely unequal punishment on homosexual acts "committed in public"; punishes homosexual acts committed with "minors" more severely than heterosexual acts, and sets the age of majority four years higher; and allows homosexual rape to be punished with subsequent denial of civil rights, unlike heterosexual rape. In ways both large and small, explicit and implied, Romanian law establishes the inferior status of gays and lesbians.

Despite Romanian government claims to the contrary, both the past history of the law, and its present status, reveal that the law enforces discrimination: 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--may render an individual subject to police harassment, abuse, and penal sanction.

The government of Romania has also contended that the new language of Article 200, paragraph 1, does not infringe on the recognized right to privacy and does not penalize private homosexual acts. However, the text of the article itself --as well as the statements of those who devised it and those who enforce it-- clearly violates international norms limiting governmental interference with individuals' privacy, in that it criminalizes consensual same sex sexual relations between adults that, although carried out in private, becomes known to the public and produce "a public scandal." Article 17 of the ICCPR promises:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, and correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Similarly, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms reads:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


A now-substantial body of international law affirms unequivocally that laws criminalizing consensual, private sexual acts between adults are a flagrant violation of these provisions. In three successive decisions, Dudgeon v. United Kingdom (1981), Norris v. Ireland (1988), and Modinos v. Cyprus (1993), the European Court of Human Rights has held against sodomy laws. Although the European convention allows three qualifications upon the right to privacy--giving scope to interferences which are embodied clearly in law, serve a legitimate aim including "the protection of public morals," and are necessary to achieve that aim in a democratic society--the court has maintained that sodomy laws cannot be justified on these terms. Neither public morality nor any political exigency can override the right of lesbians, gay men, and bisexuals to sexual privacy.

In Dudgeon, the court held that laws penalizing such activities could not be held "necessary in a democratic society":

Although members of the public who regard homosexuality as immoral may be shocked, offended, or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.(77)


In Norris, the court rejected the government of Ireland's contention that "the moral fibre of a democratic nation is a matter for its own institutions," reaffirming that "such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions can have on the life of a person of homosexual orientation."(78) Finally, in Modinos, the court held that even the Cypriot government's "consistent policy of not bringing criminal proceedings in respect of private homosexual conduct on the basis that the relevant law is a dead letter" was irrelevant to the government's obligation to repeal the law.(79)

Yet, although Article 200 effectively eliminates privacy protections for lesbians and gay men, the impact of so-called "sodomy laws" is still more dangerous and wide-ranging. Wherever they are in force, such laws confirm inequality throughout a roster of civil and political rights, stigmatizing homosexuals and relegating them to second-class citizenship.(80) In restricting the speech of gays and lesbians, or even speech about them, and in contravening their elemental rights to associate and assemble, Article 200 only makes particularly explicit the underlying tenor and intent of such provisions: to eliminate all visible manifestation of homosexuality, by denying gays and lesbians the equal protection of the law. That denial of equal protection in Romania is the true "public scandal."


Recommendations

Human Rights Watch and the International Gay and Lesbian Human Rights Commission therefore call on the government and parliament of Romania to eliminate legal discrimination based on sexual orientation.

1) Article 200, and any explicit mention of "sexual relations between persons of the same sex," should be eliminated from the penal code altogether. The crimes penalized in paragraphs 3 and 4 should be combined, in gender-neutral language, with the relevant provisions of Article 197 on rape. Paragraph 2 should be combined with Article 198, on "sexual relations with a minor female," to create a single law criminalizing all sexual relations with minors, regardless of the gender of the actors or victims, and with a uniform penalty and age of consent. Paragraphs 1 and 5 of Article 200 should be stricken completely.

2) Other references to "public scandal" in the penal code, particularly in Article 321, should be eliminated. That law--a Communist-era provision originally punishing "hooliganism"--should be rewritten and clarified to specify the nature of deeds which "offend good morals," as should similar provisions in Law 61/1991; otherwise these laws will continue to invite discriminatory enforcement.

3) A single law should address sexual relations committed in public, whether heterosexual or homosexual, and impose a reasonable penalty, if criminalization of such relations is deemed necessary by the Romanian government. "Sexual relations" should be clearly defined in the penal code.(81) Definitions of "committed in public" and "committed in private," when applied to sexual acts, should be rendered complementarily clear, respecting personal autonomy and taking into consideration the historically problematic and vulnerable character of privacy in Romania.

4) Discrimination and interference with privacy are not features unique to Article 200: the whole corpus of laws dealing with sexuality in Romania demands revision, as a hash of overlapping and ill-defined terms. Article 201, punishing "sexual perversion," is dangerously vague and should be eliminated. Article 197 should be rewritten so that all sexual acts (clearly defined, and not restricted to vaginal intercourse) forcibly committed upon another person, without regard to gender, are explicitly criminalized and receive the same punishment. Paragraph 4 of Article 197, which exempts any rape from punishment if the victim marries even one of the assailants, should be eliminated.(82)

5) Article 309, paragraph 2 of the penal code, which specially criminalizes "transmission of AIDS" by "a person who knows him/herself to suffer from that disease," is poorly written: it ignores the actual nature and transmission of HIV(83), and does not punish knowing (or intended) transmission of "AIDS," but any transmission of the syndrome/virus by a person who knows him/herself to "have" or carry it, regardless of intent or of any precautions which may have been taken. It thus codifies the idea that any sexual activity on the part of people living with HIV is potentially criminal, should accepted precautions somehow fail.(84) In addition to discriminating overtly against persons living with HIV and AIDS,(85) it opens a new ground for monitoring and infringing on the rights of an already reviled group, gay men. The provision should be repealed; and the Ministry of Health should see that its own existing standards are both enforced and expanded, to protect the anonymity as well as confidentiality of HIV test results, and to ensure that no one is given an HIV test without informed consent.

6) Police surveillance of gays and lesbians, including the keeping of lists, should cease; blackmail and other forms of abuse must be appropriately punished. Investigations must be launched into allegations of police brutality and torture; those responsible for such violations must be held accountable. Police and other law-enforcement officials should be trained in sensitivity to Romania's minorities, including gays and lesbians, to ensure that the formal or informal designation of minority populations as suspect classes comes to a halt.

6) Human Rights Watch and IGLHRC call for a halt to the imprisonment of persons solely for consensual sexual acts performed between adults. However, homosexuals are of course arrested and imprisoned under other charges; and any prison system is likely to contain men having sex with men, and women having sex with women, who may not identify themselves as homosexual. Such persons are frequently subjected to isolation, beatings, and other forms of abuse within the Romanian prison system. Penitentiary authorities should protect prisoners suffering from such abuse; should punish prison officials (as well as inmates) who engage in, encourage, or condone maltreatment of or discrimination against such prisoners; and should eliminate those aspects of prison governance--including the supervising-inmate system--which permit and further these abuses.


Human Rights Watch and the International Gay and Lesbian Human RIghts Commission also call on international bodies to act to persuade the Romanian government to amend its laws and practices. In particular:

1) The Council of Europe should continue to press for full compliance on the part of the Romanian government with the commitments it undertook upon admission. The Council should make clear that this includes full repeal of both paragraph 1 and paragraph 5 of Article 200. Under Resolution 1123, passed April 24, 1997, the Parliamentary Assembly of the Council of Europe suspended for one year the procedure of reporting on Romania's progress toward fulfilling its commitments. The Council should treat this as a firm deadline for Romania to complete the remaining legal reforms specified in the resolution and in the rapporteurs' final report;(86) these explicitly include the elimination of Article 200.

The Council should also press for the repeal of other legislation which has a discriminatory impact. The Council should consider, in its future external and internal reporting procedures, recognizing gays and lesbians as a minority along with national, ethnic, and racial minorities, as this may provide a framework for considering questions of discrimination beyond the mere existence of "sodomy laws."(87)

2) The Organization for Security and Cooperation in Europe, and particularly the Office for Democratic Institutions and Human Rights, should explicitly discuss the question of discrimination against homosexuals in forums to address the implementation of commitments under the OSCE's "human dimension."(88)

3) The European Union should include, in its new basic treaty, specific reference to sexual orientation as a category protected against discrimination. In keeping with the principles of the 1994 Roth Report and Resolution "On equal rights for homosexuals and lesbians in the EC,"(89)

discrimination against homosexuals should be explicitly investigated and taken into account as a significant aspect of the human rights records of new states applying for admission.

4) The North Atlantic Treaty Organization should carefully weigh the human rights records of applicant states, and particularly their treatment of minority populations, including lesbians and gays.

APPENDIX I: LEGAL TEXTS

Article 200 of the penal code: 1968 version, as published in Buletinul Oficial no. 79-79/June 21,1968:


Sexual relations between persons of the same sex

1. Sexual relations between persons of the same sex are punishable by imprisonment of one to five years.

2. The acts described in paragraph 1, if committed on a minor, on a person incapable of defending him/herself or of expressing volition, or through force, are punishable by imprisonment of two to seven years.

3. If the acts described in paragraph 2 result in grave damage to bodily integrity or health, the punishment is imprisonment of three to ten years; if they result in the death or suicide of the victim, the punishment is imprisonment of seven to fifteen years.

4. Inciting or encouraging a person to practice the acts described in paragraph 1 is punishable by imprisonment of one to five years.

Article 200 of the penal code: current version, as enacted by Law 140/November 5,1996:

Sexual relations between persons of the same sex

1. Sexual relations between persons of the same sex, committed in public or if producing public scandal, are punishable by imprisonment of one to five years.

2. The act of a major having sexual relations with a minor of the same sex is punishable by imprisonment of two to seven years and denial of certain rights.

3. Sexual relations with a person of the same sex incapable of defending him/herself or of expressing volition, or through force, are punishable by imprisonment of three to ten years and denial of certain rights.

4. If the acts described in paragraphs 2-3 result in grave damage to bodily integrity or health, the punishment is imprisonment from five to fifteen years and denial of certain rights; if they result in the death or suicide of the victim, the punishment is imprisonment of fifteen to twenty-five years and denial of certain rights.

5. 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 committed in the same scope, is punishable by imprisonment of one to five years.




Article 201 of the penal code: 1968 version, as published in Buletinul Oficial no. 79-79/June 21,1968:


Sexual perversion

1. Committing an act of sexual perversion which produces public scandal is punishable with imprisonment of one to five years.

2-4. The dispositions of Article 200, paragraphs 2-4 apply correspondingly.

An act of sexual perversion is any unnatural act in connection with sexual life, other than those described in Article 200.



Article 201 of the penal code: current version, as enacted by Law 140/November 5, 1996:

Sexual perversion

1. Acts of sexual perversion, committed in public or if producing public scandal, are punishable by imprisonment of one to five years.

2-5. The dispositions of Article 200, paragraphs 2-5 apply correspondingly.

An act of sexual perversion is any unnatural act in connection with sexual life, other than those described in Article 200.

Article 204 of the penal code, as published in Buletinul Oficial no. 79-79/June 21,1968 (unchanged in the current penal code):

Punishment of attempts

Attempts to commit the infractions described in Articles 197-198 and 200-203 are punishable.

Article 321 of the penal code, as introduced in Law 6/1973 (unchanged in the current penal code):



Outrage against good morals and disturbance of the public peace

1. The act of a person who, in public, commits deeds or gestures, proffers words or expressions, or makes any other manifestation which tends to offend good morals or to produce public scandal, is punishable by imprisonment of three months to two years, or with a fine.

2. If the acts described in paragraph 1 gravely disturb the public peace, the punishment is imprisonment of six months to five years.



Law 61/1991, as published in Monitorul Oficial no. 196/September 27, 1991 (excerpts):


A law to punish acts of violation against norms of social cohabitation, public order, and public peace

Article 1. To ensure a climate of public order and peace necessary to the normal conduct of economic and social-cultural activity, and to promote civilized relations in daily life, citizens are obliged to maintain a civil, moral and responsible demeanor, in the spirit of the laws of the country and of the norms of social cohabitation.

Article 2. The commission of any of the following acts constitutes a misdemeanor, if not performed under conditions in which, according to criminal law, they are considered criminal acts:

1. Engaging in public in obscene or injurious deeds, acts, or gestures, offensive or vulgar expressions, threats or acts of violence against persons or their reputations, which disturb the public order and peace, or which provoke the indignation of citizens or damage their dignity and honor, or that of public institutions;

2) Constituting a group formed of three or more persons, with a view to committing illicit actions, contrary to public order and peace and the norms of social cohabitation, as well as acts of encouragement or support given, in any form, to any such group of persons, which incites to social disorder; . . .


(Punishments for these offenses are detailed in a schedule of fines, which can be converted to terms of imprisonment if not paid.)


Translations by the International Gay and Lesbian Human Rights Commission

APPENDIX II: HUMAN RIGHTS WATCH POLICY

ON LESBIAN AND GAY RIGHTS (1994)



Human Rights Watch opposes state-sponsored and state-tolerated violence, detention, and prosecution of individuals because of their sexual identity, sexual orientation, or private sexual practices. Human Rights Watch derives this policy from the right to life, liberty, and security of the person (Universal Declaration of Human Rights, Article 3; International Covenant on Civil and Political Rights, Articles 6 and 9), rights of freedom of expression and association (UDHR 19 and 22; ICCPR 19 and 22), the right against arbitrary detention (UDHR 9, ICCPR 9), the right to privacy (UDHR 12, ICCPR 17) and the prohibition of discrimination on the basis of status (UDHR 2, ICCPR 2, 26).



ACKNOWLEDGMENTS



This report was written by Scott Long, advocacy coordinator and european regional specialist for the International Gay and Lesbian Human Rights Commission (IGLHRC). Julie Dorf and Sydney Levy read the report for IGLHRC; Kieran Burns, Roy Dickinson, David Geer, Steffen Jensen, Kurt Krickler, Mona Nicoara, and Peter Norman all provided information and suggestions. For Human Rights Watch, the report was reviewed by Jeri Laber, Holly Cartner, Dinah PoKempner, and Cynthia Brown. Alex Frangos and Emily Shaw provided production assistance.

The report is based in part on a research mission undertaken by Human Rights Watch and IGLHRC in June and July 1997, to investigate the situation of gays and lesbians under the new law on homosexuality in Romania. Research was conducted by a working group whose members included Vera Campeanu, Daniel Iorga, Scott Long, Yves Nya Ngatchou, Mona Nicoara, and Bogdan Voicu. Members of the mission visited and interviewed inmates in fifteen penitentiaries, as well as members of parliament, representatives of the ministries of justice and the interior, and numerous local prosecutors and police. Ion Iacos and Manuela Stefanescu of the Romanian Helsinki Committee; Adrian Coman of ACCEPT; Ioana Stancel of the Asociatia Romana Anti-SIDA (ARAS); and Nicolae Stefanescu-Draganesti of the Liga Apararii Drepturilor Omului (LADO) provided invaluable assistance to the mission, as did Michael Holscher, George-Valentin Serbanescu, and Sorin Volpe. Follow-up research was also conducted by Dennis van der Veur and Adrian Coman. Human Rights Watch and IGLHRC gratefully acknowedge the cooperation of the Romanian Ministry of Justice, and especially of Ana Iacovescu, director of international relations, as well as of Col. Radu Moldovan and Col. Mircea Ruse, who together permitted unprecedentedly open access to the penitentiary system.

The report also draws on numerous fact-finding missions conducted by Scott Long, on behalf of IGLHRC and the Romanian Helsinki Committee, between 1992 and 1996. Vera Campeanu, Razvan Ion, Yves Nya Ngatchou, Mona Nicoara, Aurelian Seres, and Bogdan Voicu participated in the missions. Ion Iacos, Manuela Stefanescu, and Renate Gavrilas-Weber, of the Romanian Helsinki Committee, assisted with this work, as did, in several cases, the Societatea Independenta Romana a Drepturilor Omului (SIRDO). The first mission to investigate the situation of gays and lesbians in Romania was undertaken jointly by Russ Gage of IGLHRC, Kurt Krickler of the International Lesbian and Gay Association, and Henning Mikkelsen of the World Health Organization in 1992. Gratitude is due them for helping to bring the issue to the attention of the human rights community; their work represents the beginning of a long campaign for change which--unfortunately--has not yet seen its final results.

1. 1 It would be hard to contend that eliminating a division specifically targeting Roma has significantly mitigated the tendency throughout law enforcement in Romania toward automatic presumption of their guilt.

2. 2 Interview by Doru, "Si politistii sint oameni . . ." Opinia medicala, 1991.

3. 3 Pitulescu et. al, p. 209. The entire article makes an implicit case for full criminalization of homosexuality, arguing that "Specialists sustain that homosexuality falls under the category of perversions in which are comprised pedophilia, zoophilia, necrophilia, etc. . . . In many countries, homosexuality is forbidden by law because it produces disturbances in adaptation and familial and social integration."

4. 4 Interview by Daniel Iorga and Ioana Stancel with Maj. Stefan Bancila, July 1997.

5. 5 Miruna Munteanu, "Crimele comis de homosexuali," Zeghea, August 13-19, 1996.

6. 6 Zaschievici and Barbii, "Crimele oribile comis in ultimul timp . . ." Libertatea, November 9, 1996.

7. 7 Doru, "Si politistii sint oameni . . ."

8. 8 Cristian Constantin, quoted in Jolande van der Graaf, "Roemenie jaagt op homoseksuelen," Rotterdams Dagblad, March 23, 1992.

9. 9 Interview by Scott Long and Bogdan Voicu with Bogdan Dumitrescu, June 1997.

10. 10 Interview by Scott Long and Yves Nya Ngatchou with Eugen M., June 1997.

11. 11 Interview by Yves Nya Ngatchou with Sandu V., July 1997.

12. 12 Interview by Scott Long with Adrian Coman of ACCEPT, June 1997.

13. 13 Interview by Scott Long with Daniel I. June 1997.

14. 14 Interview by Scott Long with Rares A., June 1997.

15. 15 Interview by Scott Long with Ion Iacos of the Romanian Helsinki Committee, June 1997.

16. 16 In the spring of 1997, a private security service, ARGUS--billing itself as a "rapid reaction force" or "antiterrorism unit"--also began stationing a car with tinted windows near the cruising area of the Opera Park at night, possibly to photograph or otherwise identify gay men. Representatives of Human Rights Watch and IGLHRC observed this car repeatedly in June 1997.

17. 17 Interview by Scott Long with Florin Radu, 1995. The term roughly means "buttfuckers."

18. 18 Bogdan Voicu to Scott Long, June 1997.

19. 19 Interview by Scott Long with Silviu in Timisoara, June 1997.

20. 20 Proces-verbal B-1693741, politia Sector 5, Bucuresti.

21. 21 Dosar no. 3970/97, judecatoria Sector 1, Bucuresti.

22. 22 Interview by Yves Nya Ngatchou with Dan Hutasanu, July 1997.

23. 23 In September 1996 Scott Long and Bogdan Voicu spoke to Daniel D., Georghe I,, Kalman K., Nelu P., Ioan Toporan, Colonel Liviu Ivan and Colonel Botea of the county police, and Chief Prosecutor of the county Eugen Rosca; in June 1997 Long and Voicu spoke to Daniel D., Gheorghe I., Kalman K., Ioan Toporan, prosecutor Ioan Brisc, and various personnel at Policlinica 1 in Baia-Mare, as well as with other persons who wish to remain completely anonymous.

24. 24 Conversation by Scott Long and Bogdan Voicu with Nurse Carmen Barbolovici, and interview with Dr. asist. Grigor, Dermatology Department of Policlinica 1, June 1997. Other informants have reported that Colonel Ivan had a reputation for engaging in abusive behavior, including blackmail, towards women who sought abortion.

25. 25 See "rezolutie" in dosar no. 61/P/1996, Parchetul de pe langa Tribunalul Maramures; confirmed by Dr. Grigor. Copies of this and other documents are on file with Human Rights Watch and IGLHRC.

26. 26 No warrant from a prosecutor was shown--a procedure required by Articles 104 and 216-219 of the c criminal procedural code.

27. 27 Authorizatie de perchezitie 61/P/1996, 3 April 1996.

28. 28 Proces-verbal of the search, found in dosar 61/P/1996 by Human Rights Watch and IGLHRC in June 1997.

29. 29 Ioan Toporan, "200 e un articol," Nord magazin, April 12-21, 1996.

30. 30 Toporan also claims that, months later, Ivan threatened to frame him with a concocted statement accusing him of rape.

31. 31 "?Ghicitoare: cine-s cei 12 homosexuali care au scandalizat Baia?" and "Cine-s cel 12 pupaciosi homo care au scandalizat Baia?" Graiul Maramuresului , May 5 and May 19, 1996; the articles were signed "E. Pidosnicu" (a complicated pun in Romanian). The Prefect is the highest authority of the county.

32. 32 IGP, Grupul de Control, letter no. 44.719, July 22, 1996; Comitetul pentru Drepturile Omului, letter no. 12.577, May 13, 1995.

33. 33 Knowing transmission of sexually transmitted diseases (STDs) is criminalized by Article 309 of the penal code (see next chapter); probably this detail was partly an attempt to shift the public record of the investigation away from the controversial Article 200.

34. 34 Human Rights Watch and IGLHRC were allowed to examine hospital records by staff in the Dermatology Section, Policlinica 1.

35. 35 The exact contents and whereabouts of the full file in the case (which holds, as a note in the 1997 file specifies, seventy-nine documents, including letters seized from Nelu and Gheorghe) are also mysterious. On September 26, 1996, Colonel Ivan told IGLHRC that the file had already been sent to the military prosecutor in Oradea. Yet the documents shown IGLHRC in June 1997 contain a note from chief prosecutor Rosca formally sending the file to Oradea--a note also dated the day after the departure of IGLHRC's mission in 1996. And several days after that departure, Daniel D. was shown a large file (containing his previous statements given to Ivan) while being interrogated again by a county prosecutor--indicating the file was still in Baia-Mare. It seems likely that police and prosecutors, anxious to conceal the evidence, will consistently claim the file is in some place other than where human-rights investigators happen to be.

36. 36 Sandu, who when visited by IGLHRC representatives in Galati penitentiary was extremely frail and weak, with severely impaired vision, seemed an unlikely candidate to overpower anyone. Interview by Razvan Ion and Scott Long with Ienel Sandu, Galati penitentiary, January 1993.

37. 37 Interview by Razvan Ion and Scott Long with Nita Manea, Galati penitentiary, January 1993.

38. 38 Interview by Razvan Ion and Scott Long with Marcel Brosca, Galati penitentiary, January 1993.

39. 39 Interview by Razvan Ion and Scott Long with Doru Marian Beldie, Jilava penitentiary, January 1993; interview by Scott Long, Yves Nya Ngatchou, and Bogdan Voicu with Beldie, Gherla penitentiary, December 1993.

40. 40 Interview by Vera Campeanu and Scott Long with Elizov Nemaceac, Poarta Alba penitentiary, June 1997; dosar no. 2992/1995, judecatoria Constanta.

41. 41 Interview by Scott Long, Mona Nicoara, and Bogdan Voicu with Dumitru Abalaesi, Arad penitentiary, June 1997. Abalaesi says one of the policemen was named Harmigiu.

42. 42 Interviews with Colonel Zinca in Galati; testimony of Ciprian Cucu; interviews with Ovidiu Banu, Florin Hopris, and Ciprian Stoica; interview by Scott Long, Mona Nicoara, and Bogdan Voicu with Col. Marian Bucur, director of Arad penitentiary, June 1997.

43. 43 Interview by Scott Long and Yves Nya Ngatchou with Gheorghe Ioan, January 1995.

44. 44 Sentinta penala 733/1992, judecatoria Dej. One of the prisoners actually received three years. Owing to procedures for combining sentences Aitai in fact had six months added to his term.

45. 45 Interview by Scott Long, Yves Nya Ngatchou, and Bogdan Voicu with Marius Aitai, Gherla penitentiary, December 1993; interview by Long and Nya Ngatchou with Aitai, Gherla, January 1995.

46. 46 A short summary of the trial in the file--dosar nr. 3766/1995, judecatoria Tulcea--shows that Retea stated "that these relations happen all the time in Tulcea penitentiary, that no one was forced, and that it should not be a matter for condemnation."

47. 47 Sentinta penala 1219/1996, judecatoria Tulcea; interview by Scott Long and Bogdan Voicu with Ionel Penciu, Aiud penitentiary, July 1997.

48. 48 Sentinta penala no.2114/1994, judecatoria Deva.

49. 49 Interview by Scott Long, Mona Nicoara, and Yves Nya Ngatchou with Viorel Daniel Munteanu, Deva penitentiary, January 1995.

50. 50 Interview by Long and Voicu with Dr. Valerian Tuculescu, June 1997. The WPA's Diagnostic and Statistical Manual (III) was finally translated into Romanian in 1993.

51. 51 Interview by Vera Campeanu and Scott Long with Dr. Aurel Romila, June 1997. Romila insists, though, that such treatments were carried out infrequently, and only on voluntary subjects.

52. 52 Interview by Long and Voicu with Dr. Tuculescu, June 1997.

53. 53 Forensic-psychiatric report on Traian Pasca by the County Forensic Laboratory, Alba, 712/IV/46/15.04.1993.

54. 54 Dr. Rodica Nastase, "Homosexualitate privita din punct de vedere psihiatric," in Homosexuality: propaganda a degenerarii umane, pamphlet of the Asociatia Studentilor Crestin-Ortodox din Romania (ASCOR), 1995.

55. 55 Interview by Long and Voicu with Prosecutor Luha, Alba, July 1997.

56. 56 Forensic-psychiatric reports on Mariana Cetiner by the County Forensic Laboratory, Alba, 3034/IV/261/18.10.1995; and by the "Prof. Mina Minovici" Forensic Institute, Bucharest, A6/16/760.

57. 57 Forensic-psychiatric report on Pasca. "Anxiety" and "defensiveness," of course, might also be taken as natural responses to imprisonment, particularly (as in this case) in the immediate wake of being raped.

58. 58 See particularly the accounts of Vasiliu and Presnac, and of Ciprian Cucu, above. In Cucu's case the examination was not performed until he and Mutascu had been jailed separately for over two weeks--making it blatantly medically useless as an evaluation of their relationship (although each had been raped and sexually abused by other prisoners in the police lockup).

59. 59 Interview by Campeanu and Long with General Paun, June 1997.

60. 60 Dr. Maria Georgescu of the Asociatia Romana Anti-SIDA (Romanian Anti-AIDS Association) told Human Rights Watch and IGLHRC, "HIV has completely infected the political discourse about homosexuality by now. Everyone treats an issue of civil rights as if it were one of sanitation." Interview with Vera Campeanu and Scott Long, June 1997.

61. 61 Horodinca, "Anuntul miserios," Tim-polis, February 1993.

62. 62 Interview by Scott Long and Bogdan Voicu with Attila Horvath, July 1997.

63. 63 Plutonier is a junior officer's rank.

64. 64 Interview by Scott Long and Bogdan Voicu with Corneliu Renghea, July 1997.

65. 65 Interview by Scott Long and Bogdan Voicu with Mariana Aros, July 1997.

66. 66 Lucia Baki, "Un bolnav de SIDA infesteaza tinerele fete," Buna ziua Fagaras, July 22-30, 1996.

67. 67 Politia Municipiului Fagaras, 135158/13.08.1996; Inspectoratul de Politie al Judetului Brasov, 1775/22.08.1996.

68. 68 Interviews by Scott Long and Bogdan Voicu with Florin Blendea and Plutonier Cornel Folea, luly 1997.

69. 69 Letter registered as 143.381 with Fagaras police.

70. 70 The old version of Article 309, according to the IGP, rarely led to imprisonment; persons found to carry STDs were usually forcibly impounded in clinics. No one is apparently yet serving a sentence for knowing transmission of HIV; however, according to General Paun, a woman is now under arrest and facing trial for the offense. Captain Cojocaru elaborated that "six or eight persons raped a girl, who was already infected with HIV. They were convicted under Article 197; she is charged with transmitting AIDS to some of them." Human Rights Watch and IGLHRC were unable to discover more about this extremely disturbing case.

71. 71 Order 1201/16.10.1990 of the Ministry of Health instructs all health institutions "to take necessary measures for strictly respecting the professional secrecy and confidentiality of the diagnosis, which is communicated only to the patient, or in cases of children only to the parents and legal guardians." Order 912/11.9.1992 states that "the activity of informing about HIV infection shall be performed so as to respect anonymity and professional secrecy."

In 1995 the Ministry of Health proposed requiring bi-annual HIV testing, regardless of consent, for persons in certain "risk groups," including medical personnel, dialysis patients, pregnant women, prisoners, prostitutes, and "members of sexual minorities." (Directia Generala a Medicinei Preventive si Promovarea Sanatatii, comunicat no. 11406/13.05.1995). The measure was never implemented, but there is evidence that testing of inmates in the penitentiary goes on in a random fashion, at the point of entry or later, without consent and in some cases without explanation or subsequent notification. (Interviews by Scott Long, Yves Nya Ngatchou, and Bogdan Voicu with Dr. Constantin Ouatu, Iasi penitentiary, and Dr. Paul Duma, Deva penitentiary, June 1997.)

72. 72 Interview by Daniel Iorga, Scott Long, and Bogdan Voicu with Cristian Giulan, July 1997.

73. 73 The first sex-change operation was performed in Romania in 1994, amid frenzied publicity. None has been performed since, though one doctor states that seventeen or eighteen persons are receiving either pre-operative counseling or hormone treatments. (Interview by Scott Long and Bogdan Voicu with Dr. Cristian Bengescu, June 1997.) Amid the general restrictiveness of Romanian laws on sexuality, it is interesting that new legislation--law 119/1996--creates a procedure for postoperative transsexuals to change their legal identity, a provision more liberal than many Western European states possess.

74. 74 Interview by Scott Long and Bogdan Voicu with Iulian M., June 1997.

75. See Human Rights Watch's policy statment on gay and lesbian rights attached as appendix II.

76. 76 Nicholas Toonen v. Australia, U. N. GAOR, Hum. Rts. Comm., 15th Sess., Case no 488/1992, U.N. Doc. CCPR/c/50/D/488/1992. The committee declined to consider whether sexual orientation constituted an "other status" under Article 2 or Article 26 (the ICCPR's other equal-protection statement), noting simply that "the reference to 'sex' in articles 2, para. 1, and 26 is to be taken as including sexual orientation."

77. 77 Dudgeon v. United Kingdom, 4 Eur. H. R. Rep. 149 (1981).

78. 78 Norris v. Ireland, 13 Eur. H. R. Rep. 186 (1989).

79. 79 Modinos v. Cyprus: 16 Eur. H. R. Rep 485 (1993).

80. 80 Laws similar to Article 200 are in force in numerous jurisdictions worldwide. The exact number of so-called "sodomy laws" in existence around the globe is difficult to calculate. The very term is inaccurate: many laws, like Romania's, incriminate consensual sexual acts between women as well as "sodomy" between males. The laws may be written in widely varying ways: some regulate particular sexual acts, such as anal sex, regardless of the gender of the actors, while others specifically target same-sex sexual activities; still others may entail a blanket prohibition of "unnatural" or "indecent" acts, which may be applied with particular rigor against homosexual activity. As of 1997, the International Gay and Lesbian Human Rights Commission was aware of ninety countries which had laws fitting these descriptions in force over some or all parts of their territory.

81. 81 Examples cited above show that this expression is subject to wildly divergent interpretations under Romanian law. There is recurrent uncertainty, for example, whether oral sex is a "sexual relation" or a "sexual perversion," or indeed whether the first of those terms subsumes the second; while the Alba Tribunal's decision on the appeal of Mariana Cetiner appears predicated on the assumption that fondling and kissing constitute a "sexual relation" between women. Only an exactitude of definition which eluded the authors of the 1936 and 1968 codes can close these latitudes and lacunae.

82. 82 Such laws implicitly define rape as a crime against a woman's (or a family's) honor, which can be redressed through marriage, rather than as a crime of violence against the physical integrity of the victim , which should be punished through criminal sanctions. See "A Matter of Power: State Control of Women's Virginity in Turkey," Human Rights Watch, June 1994.

83. 83 Most conspicuously, "AIDS" is not transmitted; the HIV virus is. A person who has not developed AIDS can still transmit the HIV virus to another person, who may or may not develop AIDS.

84. 84 The report (communicated by one policeman to Human Rights Watch and IGLHRC) that the law has already been brought to bear against a rape victim clearly shows that--in the view of those who enforce it--it may be construed to punish inadvertent and even explicitly involuntary transmission of HIV. The law seems intended not as a public-health measure but as means of controlling suspect populations, including prostitutes (against whom, according to General Paun of the IGP, the existing Article 309 was primarily enforced) and also gay men.

85. 85 A 1996 resolution of the United Nations Commission on Human Rights, "The protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS), E/CN.4/1996/43, confirms that "the term 'or other status' in non-discrimination provisions in international texts should be interpreted to cover health status, including HIV/AIDS," thus bringing HIV status under the protection of Articles 2 and 26 of the ICCPR. Resolution 1994/29 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities also affirms that "discrimination on the basis of AIDS or HIV status, actual or presumed, is prohibited by existing international human rights standards and . . . the term 'other status' in non-discrimination provisions in international human rights texts should be interpreted to cover health status, including HIV/AIDS."

86. 86 11 April 1997; ADOC/7795

87. 87 Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe establishes principles regarding the protection of minorities. Recommendation 924 of the Parliamentary Assembly (1981) is a comprehensive statement on discrimination against homosexuals. In practice, however, rapporteurs on new states applying for admission have restricted themselves to questioning laws criminalizing private, consensual homosexual behavior between adults. The Council's reporting procedures and other forums should consider broader questions of discrimination against homosexuals in member and non-member States.

88. 88 The Report of Subsidiary Working Body 1 of the (then) CSCE Warsaw Human Dimension Implementation Meeting, 1993, called attention to "groups which were not 'national minorities' but which nonetheless suffered discrimination, including women, homosexuals, migrant workers, and conscientious objectors."

89. 89 One of the most wide-ranging statements on the rights of homosexuals made by any elected or international body thus far: European Parliament, Doc_EN/RR/244/244267.