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| An historical perspective of marginalization in the romanian context: implications for research ethics | Sana Loue *
J.D., Ph.D., M.P.H., Department of Epidemiology and Biostatistics, Case Western Reserve University, Cleveland, Ohio, sana.loue@case.edu
| "A State which fails to do its utmost to ensure the best it can for its minorities, a State which fails to understand that its fundamental interest is based on the loyalty of all of its subjects rather than the annihilation of the cultural and religious individuality of some of its subjects, a State which fails to understand that it must itself act as the greatest fighter for the deeply understood rights of its minorities, would violate not only the laws of humankind, which should guide the whole civilized community, but would also violate the very law of its self-preservation."
Nicolae Titulescu
Abstract
Vulnerability may be a consequence of marginalization, of social disorders or just a result of multiple factors (cultural, ethnic, political, economic etc). The semantics may have different meaning in different regions of the world, depending on the historical, social and/or the political context in which the research is to be conducted. The United States has designated the following classes of individuals as vulnerable persons warranting special protection in the context of research: children, pregnant women, and prisoners. In contrast, Uganda has adopted a much broader approach and considers children, orphans and street children specifically, pregnant women, mentally ill and behaviorally disordered persons, prisoners, soldiers on command, and refugees to be vulnerable. Romania has not, to date, formally addressed the need to develop special protections for vulnerable populations, who these vulnerable populations might be in the Romanian context, and what mechanisms might be adopted in the context of research. This article examines the status of several groups in Romania (women, children, homosexuals, ethnic minorities, etc) who, because they exist in one or more dimensions at the fringes of Romanian society, could potentially warrant classification as vulnerable. The article concludes with a discussion of whether individuals within these groups should be considered vulnerable and the implications for research of such classification.
Key words: vulnerable population, research ethics, women, homosexuals, children
INTRODUCTION
The Nuremberg Code, developed in 1949 to enunciate clearly the ethical principles that are to guide investigators conducting research involving human beings, sets forth four basic principles: respect for persons, beneficence, nonmaleficence, and justice. These requirements are reflected, as well, in later international documents governing research, including the Helsinki Declarations and the various guidelines that have been promulgated by the Council of International Organizations for Medical Sciences. The requirement of respect for persons is concerned with the issue of informed consent?whether a prospective research participant has capacity to understand, has been provided with adequate information about the research to be conducted, actually understood the information provided, and has given consent to participate voluntarily. In the absence of these elements, it is all too easy for research participants to be exploited. In addition, the requirement of respect for persons further demands that special protections be developed and implemented to protect those prospective participants who may be especially vulnerable. Participants are considered to be vulnerable if they have "insufficient power, prowess, intelligence, resources, strength or other needed attributes to protect their own interests through negotiations for informed consent" (Levine, 1988: 72).
Because these international guidelines are not legally binding, it is incumbent upon each nation to develop laws and/or regulations for the conduct of research by researchers within its borders that adequately integrate these principles. Not surprisingly, implementation has taken distinct paths across countries. For instance, the United States has designated the following classes of individuals as vulnerable persons warranting special protection in the context of research: children, pregnant women, and prisoners. In contrast, Uganda has adopted a much broader approach and considers children, orphans and street children specifically, pregnant women, mentally ill and behaviorally disordered persons, prisoners, soldiers on command, and refugees to be vulnerable due to one or more of various factors, such as their relative powerlessness, their lack of fluency in the native languages, the effects of trauma, limitations in cognitive functioning, and/or their lack of insight and knowledge due to age, experience, and/or cognitive functioning.
In addition to these international guidelines for the conduct of research involving humans, provisions of various international treaties and conventions are relevant to this discussion, although they are not often addressed in this context. Article 7 of the Universal Declaration of Human Rights (1948) provides that "All are equal before the law and are entitled without any discrimination to equal protection of the law." Article 26 of the International Covenant on Civil and Political Rights (1966) states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination 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.
In addition, the International Con-vention on the Elimination of All Forms of Racial Discrimination (1966) requires in Article 2 that
States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races?
Romania has not, to date, formally addressed the need to develop special protections for vulnerable populations, who these vulnerable populations might be in the Romanian context, and what mechanisms might be adopted in the context of research. This article examines the status of several groups of individuals in Romania who, because they exist in one or more dimensions at the fringes of Romanian society, could potentially warrant classification as vulnerable. The article concludes with a discussion of whether individuals within these groups should be considered vulnerable and the implications of such classification.
MARGINALIZATION IN THE ROMANIAN CONTEXT
Marginalization in Romania, as in many other countries, has occurred frequently along ethnic and gender differences. It is beyond the scope of this article to examine the situation of each such minority group within Romania. Accordingly, we focus on those groups that are greatest in number and/or that have provoked the greatest controversy with respect to their status within Romania.
Gender, Sexuality,and Marginalization
Women
Relatively few data are available regarding the incidence, prevalence, or nature of partner violence in Romania. For the period 1997 through 1998, a total of 544 cases of partner violence committed against women were reported; 34 of these incidents resulted in the woman's death (United States Agency for International Development, 1999). An interview study conducted with 83 women of varying educational and socioeconomic levels in Bucharest and Iasi found that 65.1% of the women had been the victim of physical violence at some point in their lives and 31.3% reported that the violence had been committed by their husband or intimate partner (Loue, 2001). Slightly more than 10% reported having been injured by their intimate partner during the year immediately preceding the interview. Over half (57.7%) reported having committed acts of violence more severe than spanking against one or more children and 15.4% indicated that they had been violent towards an intimate partner. Study participants variously attributed the violence to economic difficulties, the effects of alcohol, jealousy, a need for control on the part of the assaultive partner, and mental illness. More recently, a report of the United States Department of State found that violence against women in Romanian society is a significant problem (United States Department of State, Bureau of Democracy, Human Rights and Labor, 2001). The country experiences an average of 108 sexual incidents per 1,000 women and 41 assaults per 1,000 women. In April 2001, the Romanian edition of Playboy advised its readership in graphic detail how to beat a female partner without leaving telltale marks, in order to avoid prosecution. International and domestic protests eventually led to the publication the following July of an article detailing to economic costs of domestic violence (United States Department of State, Bureau of Democracy, Human Rights and Labor, 2001).
Romanian law continued to reflect the secondary status traditionally afforded to women until various legal reforms were mandated in late 2003. Prior to these changes, the imposition of any punishment for an act of violence against a spouse or partner acting in the capacity of a spouse was dependent upon the severity of the resulting injuries. Injury resulting in anything less than death or loss of an organ or body part, or in hospitalization for less than 60 days, was unlikely to be criminally penalized (Codul Penal art. 180, 181, 182). Although legal provisions now reflect increased attention on violence against women, Romanian law continues to lack provisions for the recognition and prosecution of spousal rape. Few systems have been developed in order to implement the changes and Romanian physicians have not received the necessary training that would permit them to identify injuries resulting from partner violence and to address the short-term and long-term physical and psychiatric sequelae of these traumatic injuries.
This recent recognition of partner violence follows a long history of the subordination of and discrimination against women. Prior to World War II, Romania was predominantly rural and was characterized by traditional patriarchal values and moral standards (Gilberg, 1979). These standards portrayed the ideal woman as subordinate, submissive, nurturing, and devoted to her family. A woman's virtue was judged in relation to her sexual passivity, thereby proscribing her enjoyment of sex. Men, however, were permitted significantly greater freedom; adultery and alcoholism were tolerated in exchange for the economic support of the family. Male superiority was presumed (Gilberg, 1979).
Following World War II, the government and communist party adopted these attitudes, first by eliminating sexuality as a topic of public discourse and, later, by attempting to control sexual relations. Unmarried couples were prohibited from sharing a hotel room. Early morning police checks of hotel rooms could result in a woman's conviction for prostitution, with no repercussions to the man involved (Harsanyi, 1993).
Education during Ceausescu's regime reinforced and extended these standards. Women were taught to believe that sex outside of marriage, which was by definition without procreation as its objective, was both immoral and a cause of insanity. The ideal woman was one who sacrificed her individuality for the sake of the community and obeyed her father, her husband, and the State. Although women were touted as men's economic equals, social conditions mandated and sanctioned their dependence (David and Baban, 1996).
Women's limited ability to control their own lives was further curtailed by Ceausescu's decree limiting the availability of abortion to women who (1) were over the age of 40, (2) had 4 or more children, (3) were endangered by the pregnancy, (4) suffered from a severe disease that could be transmitted or that could cause severe congenital malformations or (5) were pregnant as the result of rape or incest (Ceausescu, 1966). Ceausescu's 1985 modifications to this decree further restricted women's control by increasing the age at which abortion would be permitted from 40 to 45 and by prohibiting abortion to women who had fewer than 5 living children under the age of 18 (Ceausescu, 1985). Ceausescu declared "the fetus [to be] the socialist property of the whole society. Giving birth is a patriotic duty. Those who refuse to have children are deserters, escaping the law of natural continuity" (Ceausescu, 1986: 217-218).
Concurrent with the implementation of the 1966 decree, the government instituted numerous pronatalist policies that further restricted women's freedoms. The included the award of tax incentives and monetary sums to couples who had children, the imposition of disincentives on childless couples and unmarried adults, the lengthening of the divorce process, and the cessation of the importation of contraceptives (David and Wright, 1971). This latter action was modified in 1985 to formally ban all forms of contraception (Hord, David, Donnay, and Wolf, 1991). Women and their physicians were closely monitored for compliance with these restrictions through the imposition of monthly birth quotas on factory physicians and employees, the conduct by the Securitate of investigations of alleged abortions, the posting of agents in all maternity wards and obstetrical-gynecological clinics, and the imposition of prison terms on physicians who violated the abortion restrictions (David, 1990a,b,c). In essence, Ceausescu's marriage between demographic concerns and nationalist policies turned women's bodies into instruments to be used in the service of the State (Kligman, 1992).
Gays and Lesbians
For many decades, Romanian law prohibited and criminally punished same-sex sexual relationships. One of the first provisions to criminalize homosexuality was Title 11 of the Kingdom of Romania's 1936 criminal code. The new code delineated offenses into two subcategories, those involving "infractions against indecency," which included rape, seduction, and pedophilia, and those involving "infractions against good morals," such as obscene gestures, procuring and trafficking in women, and trafficking in obscene publications. "Infractions against morals," as revised was also to include "acts of sexual inversion committed between men or between women, if provoking public scandal." Violation of this latter provision could yield a term of imprisonment ranging from 6 months to 2 years (Human Rights Watch, 1998).
A 1940 court decision suggested that the concept "public scandal" be interpreted so broadly as to include even private acts if they were to become known to anyone: "Act of sexual inversion fall under the provisions of Article 431 if knowledge about the act is divulged, as in such case they provoke public scandal." A 1948 commentary on the law explained,[T]he element of "public scandal is not a purely objective condition of punishability. Rather this element must follow from the manner in which the persons between whom these relations took place comported themselves: namely, that they provoked public scandal through their attitude, either by betraying themselves in a positive act of ostentatious depravity, or by engaging in a negative act of imprudence and negligence in [not] taking measures necessary to conceal these relations (Papadopul, Stoenescu, and Protopopescu, 1948: 462).
The 1936 code was fully revised in 1968, with the adoption of a new version by the Grand National Assembly of what had become the Social Republic of Romania. This revised code recategorized all of the laws addressing sexuality. Article 201 of the revised code tracked its predecessor Article 431 in punishing "acts of sexual perversion which cause public scandal" with one to five years' imprisonment. "Sexual perversion" was defined as "any unnatural act in connections with sexual life, other than those provided in Article 200." Article 200 of this revised criminal code provided for the imprisonment for one to five years of both individuals engaged in same-sex sexual behavior and those who were deemed to have incited or encouraged another person to engage in such behavior (Human Rights Watch, 1998).
The provisions of Article 200 remained in place even after the end of the Ceausescu regime in 1989. Romanian politicians responded to growing international criticism of the law by claiming that it was rarely enforced and that all those imprisoned under the provision during Ceausescu's regime had since been freed. Despite these assertions, there have been numerous post-1989 incidents involving the arrest, beating and imprisonment of those suspected of homosexual and lesbian relationships (Human Rights Watch, 1998). The Romanian government later acknowledged, in response to queries raised by the Council of Europe in conjunction with Romania's request for admission into the European Union, that a number of individuals were serving prison sentences for homosexuality. Romanian responses to the possibility that admission to the European Union might hinge on its treatment of homosexual was both vitriolic and vociferous. Corneliu Coposu, leader of the Christian Democratic Party (PNTCD), ranted:
The Christian moral conception which remains the basis of our party's doctrine leads us to combat every deviation from the law of nature and from the moral principles of a future balanced society. Without hesitation, in debating this point of American inspiration, we give the word that we are categorically opposed? We contend that liberty must be blocked by the liberty of others?when the collective sentiment of a group or a tradition is injured by some initiative pretending to be "progressive" and modern, we must opposite it?. (Coposu, quoted in Costache, 1993).
His sentiments were mirrored by those of then-Minister of Justice Petre Ninosu, who mocked the very idea:
One of the most discussed passages of the penal code is Article 200, which punishes the animals who practice homosexual relations. This article has not been repealed, which seems to me quite normal. If we let homosexuals do as they please, it would mean entering Europe from behind. Homosexuals are our last problem (Ninosu, quoted in Cafrita, 1993).
Proposals to revise the provisions of the criminal code were similarly opposed by members of the Orthodox Church. The Romanian media characterized homosexuality as an alien incursion and corruption of Romanian values.
It was not until November 1, 1996, following this intense internal debate and strong international pressure, that Romania amended the governing provisions to read as follows:
1. Sexual relations between persons of the same sex, committed in public or if producing a public scandal, are punishable by imprisonment of one to five years.
2. The act of 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.
Accordingly, Article 200 now provides for the punishment by one to five years of imprisonment for homosexual acts "committed in public, or if causing public scandal." The adoption of this revised legislation has not insulated lesbian and homosexual individuals from arrest, police brutality, prosecution, imprisonment, and loss of rights (Human Rights Watch, 1998).
The meaning of "in public" was retained from the 1968 penal code. Article 152 of the current penal code defines an act as having been performed "in public" if it was committed
(a) in a place which by nature or purpose is always accessible to the public, even if no person is present;
(b) in any other place accessible to the public, if two or more persons are present;
(c) in a place inaccessible to the public, with the intention that the act be seen or heard, and is this result is produced in the presence of two or more persons;
(d) in an assembly or meeting of two or more persons, with the exception of meetings which can be considered of a family character due to the relations between the persons participating;
(e) in any way in which the perpetrator is aware is likely to come ot the knowledge of the public (Human Rights Watch, 1998: 43-44).
Although these provisions would appear to apply equally to both homosexual and heterosexual individuals and conduct, such is not the case. Article 321 arguably should apply to heterosexuals, since sexual orientation is unspecified. This sections provides for the imprisonment from three months to two years of a person who, in public, commit deeds or gestures, proffers words or expressions, or makes any other manifestation which tends to offend good morals or to produce public scandal.
One Deputy explained the failure to apply this provision to heterosexuals as follows:
If you see a heterosexual couple behaving in a way that suggests they have sexual relations, no one is scandalized enough to bring Article 321 to bear; it is normal sexuality, if it attracts attention it is only because we Romanians still feel a little embarrassed about publicizing such intimacies. But if two men even hug or hold hands in public, it certainly creates a scandal under Article 200. And then if it is found they are a couple, or that they have indeed had sexual relations, they would be prosecuted (Human Rights Watch, 1998: 46, quoting Deputy Stancov, June 1997).
Interpretations of the concept of "public scandal" similarly render homosexuals vulnerable to criminal prosecution as a result of their orientation. The penal code fails to contain a specific definition of the term, leaving it open to multiple and broad interpretation. General Ovidius Paun of the General Inspectorate of Police (IGP) of the Ministry of Interior explained:
What we understand by public scandal is any action that arouses the citizens, even if not done in public, but if done in conditions that cause public indignation. Suppose that two people of the same sex enter into relations in a room, but in view of a window, so that people passing in the street can see. Obviously, the people will stop, make negative comments. In this condition we say the action raises the indignation of the public (Human Rights Watch, 1998: 39, quoting Gen. Ovidius Paun, IGP, June 1997).
However, even public knowledge of one's sexual preference may be sufficient to trigger the provisions of Article 200. According to Senator Ion Vasile of the Senate's Human Right Commission,
In a bloc of flats where twenty families live, say, one of the people is known to be a homosexual. The majority will not accept this. They are very concerned about living in the same bloc with this kind of person. There is concern because most of these people have children, who might be molested, might adopt this person's way of living? Scandal doesn't necessarily mean a scandal in the juridical sense; it means also that problems of some sort already begin. Popular concern could constitute a scandal?. We are trying to make it possible to exclude that man from the community as a danger to it (Human Rights Watch, 1998: 40, quoting Senator Ion Vasile, June 1997).
Individuals arrested pursuant to Article 200 are subject to medical examination, which may include both an examination of the anal and genital areas and insertion of instrumentation into the anus. These examinations are conducted under the mistaken belief that homosexuals suffer from anal lesions or modifications of the penis as a result of having had anal sex and the erroneous attribution of responsibility to homosexuals for Romania's cases of HIV/AIDS, much of which actually resulted from a failure to monitor the blood supply and the administration of transfusions with contaminated needles in Romania's orphanages. Although most, if not all, developed countries now recognize that homosexuality is not a psychiatric disorder and that sexual orientation may be at least partially determined by genetics, Romanian psychiatric and psychological discourse variously depict homosexuality as a personality disorder, a circumstantial and temporary behavior, and a vice deserving of punishment (Human Rights Watch, 1998).
There has been some evidence of change in the status of homosexuals and lesbians. The last person imprisoned under Article 200 was released from prison in 1998, following a vigorous campaign by Amnesty International (Gall, 2001). The gay and lesbian rights organization ACCEPT has achieved greater visibility (Human Rights Watch, 2001). Nevertheless, reports of discrimination and abuse of gay and lesbian individuals continue.
Mental Capacity and Marginalization
Children
Children lack the mental capacity of adults by virtue of their age and immaturity. Like women, children have similarly been viewed as possessions in both tradition and in law. A Romanian saying aptly reflects the status of children in the eyes of many parents: "Eu te-am facut, eu te omor," which means, "I made you, I will kill you."
A report of the World Health Organization has revealed that close to 40% of children in Romania are subject to parental abuse (Williamson, 2002). Concern regarding the status of children in Romania and the apparently high prevalence of child abuse has been voiced in numerous international forums. The United Nations Committee on the Rights of the Child expressed concern "at the occurrence of child abuse and neglect within the family and the disruption of family values which in some cases lead to children being abandoned or running away" (United Nations Committee on the Rights of the Child, 1994). The Committee specifically recommended "that greater efforts be made to provide family education" and that "research be undertaken on the issue of child abuse and neglect within the family" (United Nations Committee on the Rights of the Child, 1994). (Emphasis added.)
Abuse of children outside of the family also appears to be widespread. Recent reports to Amnesty International documented severe abuse of children at the hands of police and other law enforcement officials (Amnesty International, 2004). This abuse has not infrequently resulted in serious and permanent injury.
Mentally Ill Persons
Until relatively recently, written guidance for commitment determinations was virtually nonexistent. Instead, such decisions by physicians were premised upon the interpretation of doctrine transmitted by one's superiors. As one psychiatrist, who prefers to remain unnamed, stated in 1999 to one of the authors,
Nothing has changed about compulsory commitment from before the revolution and now. There is no clear procedure for institutionalization now? There are many uncertainties? We adjust on a case by case basis because there isn't any concrete legislation? All responsibility for the decision is on the doctor? Another problem is that there are no alternatives to hospitalization. There is the hospital and the polyclinic [periodic visits to the outpatient clinic] and nothing in between (Personal interview with author SL by unnamed psychiatrist 1, June 4, 1999).
For those individuals who are institutionalized, whether voluntarily or involuntarily, treatment may be less than ideal. Treatment, such as electroconvulsive therapy, may be imposed without patient knowledge or consent (Personal interview with unnamed psychiatrist 2, 1999). A 1998 report revealed "disastrous" conditions in Romania's psychiatric institutions. The facility at Poiana Mare, for instance, had been without running water for weeks, with erratic electricity and no heat. Five hundred patients were tended to by 19 doctors, only 6 of whom were psychiatrists; none of the nurses had had any psychiatric training. The patients' diet frequently consisted of 20 liters of potato or cabbage soup divided amongst 100 patients twice a day; this was supplemented with meat twice a week. Twenty-five patients in the facility had died of malnutrition during the previous 6 months (Rogers, 1998). Eighteen patients died in Poiana Mare in January and February 2004, primarily as the result of dehydration and malnutrition (Amnesty International, 2004).
Inspection of six psychiatric hospitals in Romania revealed that patients were often permitted only one shower each week and often did not provide either basic toiletries or towels; that toilets were often malfunctioning and inappropriate for use by patients with disabilities; that many patients wandered naked; that few recreational activities were available to hospital patients; that incontinent patients often spent the entire day in feces-covered or urine-soaked bedding; that wards were often overcrowded; that patients often lacked their medications; that electricity, water, and/or heat were often absent, even in winter. These conditions have led to allegations that Romania is in violation of various provisions of the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms which prohibit torture or inhuman or degrading treatment or punishment. The denial of adequate medical care has also been alleged to violate Article 12 of the International Covenant on Economic, Social and Cultural Rights which provides for the right to the enjoyment of the highest attainable level of physical and mental health, as well as Principle 1(5) of the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (Amnesty International, 2004).
Romania instituted new legislation pertaining to the institutionalization of mentally ill persons, which became effective in August 2002. The Law on Mental Health and Protection of People with Psychological Disorders (Legea sanatatii mintale si a protectiei persoanelor cu tulburari psihice) requires that a special commission confirm within 72 hours of an individual's admission to a hospital the treating psychiatrist's determination that the patient must remain involuntarily. This assessment must be reviewed, in turn, by the public prosecutor within 24 hours; the prosecutor's decision may be appealed to a court. Despite the passage of this law, as of 2004 it had not yet been implemented due to the government's failure to promulgate regulations for its enforcement.
Additional provisions prescribe informed consent as a prerequisite to a psychiatric evaluation, communication of the findings to the individual or his or her representative, and confidentiality of the findings, except as otherwise permitted by law. Disclosure would be authorized pursuant to the request of a court or the administrative hierarchy, with the consent of the patient or his or her legal representative, for the purpose of physician training or research, or for the purpose of referring the patient for care or treatment elsewhere. "Norms of care" provide for treatment using the least restrictive means possible. Patient consent is required as a prerequisite for the initiation of treatment except in instances in which the patient is dangerous to himself/herself or to others, the patient is unable to understand that he or she is ill and needs treatment, the patient is under a court order to receive treatment, or the patient is a minor.
The legislation further provides that individuals voluntarily confined for mental health treatment have the right to leave at any time. An individual may be admitted involuntarily only after all attempts at voluntary admission have failed. A decision to involuntarily institutionalize an individual may be made only by a qualified psychiatrist and only in situations in which the individual is at risk of harming himself/herself or others or the individual lacks insight into his/her illness, the lack of treatment could lead to a worsening of the individual's condition, and admission to a psychiatric facility represents the least restrictive alternative available.
Despite these protections, and perhaps owing, at least in part, to the lack of enforcement mechanisms, numerous abuses have been documented. Investigation of psychiatric hospitals in six locations throughout Romania found that many of the individuals involuntarily confined in psychiatric facilities do not suffer form an acute mental disorder and do not require psychiatric treatment; that individuals are confined against their will; that medications are administered, not to alleviate psychiatric symptoms, but to subdue behaviors that appear to result from frustration at their confinement; that minors are confined in wards with adults, despite the inherent dangers to the child; and that individuals being held for criminal law violations are often confined together with mentally ill patients, rendering the patients exceptionally vulnerable to violence. These conditions have prompted Amnesty International to charge the Romanian government with violations of the provisions of the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, both of which Romania is a signatory.
The institutionalization of mentally ill criminal offenders is governed by Article 114 of the Romanian Penal Code, which provides for the treatment of criminal offenders found to be mentally ill and a danger to society (Codul Penal). During the Ceausescu regime, Article 114 was used in conjunction with Decree Law 12, "On the Medical Treatment of Dangerously Mentally Ill Persons," to systematically confine dissidents, on the recommendation of the State Prosecutor or health authorities, as mentally ill persons. Dissent, often expressed through the propagation of "anti-state propaganda" or illegal departure from the country, was itself viewed as a symptom of severe mental illness. One psychiatrist in Romania, interviewed for this article, explained why, in his opinion, this had to be true:
Under Ceausescu, political opponents could not exist? In Ceausescu's time, there was a man who said in the street with a banner, "Down with Ceausescu." Strictly professionally speaking, it was difficult to believe that this was a real political opinion because it was so obvious that no one would allow him to express himself, so he had to be delusional and couldn't adjust. Real political opposition [sic] were subversive (Interview of psychiatrist 1 by SL, June 4, 1999)
Pursuant to Decree Law 12, the decision to commit an individual was made by the State Prosecutor or by health authorities (Deletant, 1995). Not infrequently, individuals potentially subject to commitment were presented to the medical authorities by the local police (Interview with psychiatrist by SL, May 28, 1999). One such incident in Bucharest in 1979 was described to the author by one of the psychiatrists interviewed for this article:
There was a patient, (name), from Yugoslavia. She was in Romania. One morning I saw her in triage. She was in her 30s, a little agitated. Two policemen had taken her at 6 a.m. She had said that the basic rights were not respected in Romania, so she wanted to go to Yugoslavia, so they took her to the hospital? People can be involuntarily institutionalized with schizophrenia if they are very agitated? If a doctor tried to make problems, they put him in jail (Interview with psychiatrist 3 by SL, May 28, 1999).
Extensions of the original period of confinement could be ordered by the court. Release of an individual from compulsory confinement was dependent upon the recommendation of the psychiatrist at the facility in which the individual had been committed; often, the psychiatric recommendations were a function of political considerations rather than medical findings (Amnesty International USA, 1978).
Three types of institutions were utilized for the confinement of individuals pursuant to Decree 12. A proportion of such individuals were hospitalized in the "high security wards" of ordinary psychiatric hospitals for a few months. Others were held, for a period of 7 or 8 weeks pending their trials, in the psychiatric wards of prison hospitals. Those found to be both mentally ill and guilty of "anti-state propaganda" were committed to psychiatric hospitals for the criminally insane for a period of several years (Deletant, 1995).
Once committed to a hospital pursuant to Decree 12 and Article 114, the individual had no right to refuse treatment. "Treatment," which was usually administered without any previous medical examination, often consisted of injections of neuroleptic drugs and/or insulin, electric shocks, and/or beatings (Bloch and Reddaway, 1977).
Article 114 continues to provide the basis for the institutionalization of individuals who have committed crimes and are believed to be mentally ill (Codul Penal, April 14, 1999). The judge, prosecutor, or defense counsel in such a case may request a psychiatric evaluation from a forensic psychiatrist, for the purpose of determining whether the individual was "aware" at the time that he or she committed the crime in question. If the individual was not "aware," he or she is committed to a special hospital until the illness is in remission (Interview with psychiatrist by SL, June 4, 1999). Article 113 provides for the ambulatory, i.e. outpatient treatment of such individuals. In such cases, the hospital in which the individual is evaluated refers the patient to a generalist in the community for treatment pursuant to Article 113 (Interview with psychiatrist by SL, June 4, 1999). Theoretically, if the individual is "committed" to outpatient treatment pursuant to Article 113 but fails to continue with his or her medication regimen, he or she may be brought back to court for proceedings pursuant to Article 114 (Codul Penal, April 30, 1999). However, there is actually no system of follow-up to ensure that such individuals are able to obtain their prescribed treatment or actually do pursue treatment as ordered (Interview with psychiatrist 1 by SL, June 4, 1999).
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