Written submission addressed to the Prosecutors’ Office pending to the High Court of Cassation and Justice – March 2012

To:

Dear Madam,

 
The M.I.S.A. Association recently found out about a document catalogued “TOP SECRET” (see annexes) and declassified on the 13th of February 2012, through which one authorized the “interception of communications of the named Gregorian Bivolaru” and access to spaces from Bucharest and other cities where activities “with extremist character of M.I.S.A. members” take place, authorizations emitted based on Law no. 51/1991 regarding national security.
The M.I.S.A. Association considers that S.R.I. officers, taking advantage of their function and position, attempted to compromise Gregorian Bivolaru, who was declared by the court of law as having the statute of dissident of the communist regime. This was done by fabricating evidence for an alleged criminal offence, by using means that are specific to investigations concerning national security. Secondly, we consider that they determined the prosecutors, by misguidance, to emit the warrants for national security, using false data and tendentious and denigratory appellatives, in the sense that the M.I.S.A. Association would be an extremist organization.
 
The Direction of Penal Researches of the Securitate was disbanded in 1990 and from then onwards the S.R.I. interceptions no longer had the right to be used as evidence. If they are nevertheless used in penal files, this means the tacit re-instalment of the Direction of Penal Researches of the Securitate, which was the organ that did political police. Now, through this subversive method, intimidating magistrates and skilfully making use of them, S.R.I. is reinstalling itself, more and more insidiously and obviously among organs of penal research, cunningly using magistrates to strike against politically pursued people. Treating and labelling the yoga association in the interception Warrant (just because it promotes ideas different from those of the S.R.I.) as being an “extremist” movement, without subjecting this labelling to any judicial control and without giving any chance to the functioning of the innocence presumption, is in and of itself a deeply abusive and discriminating measure, which requires exemplary sanction.
 

The Warrants we are discussing here are: Warrant no. 002061 from 13th of November 2002, assumed and signed by prosecutor Ilie Picioruş, for authorizing interceptions of phone conversations in the period 15th of November 2002, 15:00 – 14th of February 2003, 15:00, and Warrant no. 00923 from the 9th of May 2003, signed indecipherably, for authorizing the prolongation of interception in the period 13th of May 2003, 15:00 – 12th of August 2003, 15:00. The second mentioned warrant is a prolongation of an un-declassified warrant.

We mention that the courts of law that judged the penal File no. 405/85/2005 in first instance and appeal have solicited the Prosecutors’ Office to present the authorizations that underlay the interceptions of conversations between Gregorian Bivolaru and Mădălina Dumitru (the alleged injured party), but the Prosecutor’s Office, under the pretext that they were “state secrets”, refused to send these warrants.

In the first degrees of jurisdiction (first instance and appeal) the solution of acquittal was pronounced concerning the defendant. During the last judgment term of the appeal, at the High Court of Cassation and Justice, the Prosecutors’ Office sent, on the last day of the trial, the warrants emitted based on the law of national security, fact which proves, from our viewpoint, indubitably, that one pursued not only the intrusion of the intelligence and judicial organs in the private life of citizens, but also the creation of the impossibility of an efficient defense, violating the principle of weapons’ equality. The presence of these warrants and these interceptions in the file formed for criminal offenses is the direct proof of the file’s politicization.

Elements of the internal law applicable in the case:
 Law no. 14/1992 – (expressly forbids the organs of the Romanian Information Service (S.R.I.) to commit acts of penal investigation, including the gathering of evidence as main activity of penal investigation).
Law no. 51/1991 – art. 16 and 21, (expressly forbids that the activity of obtaining information required to national security and obviously its usage to infringe upon the private life, honor or reputation of citizens, incriminating as criminal offence the usage through publication (including in a penal process characterized by publicity) of such information that was known incidentally in the activity of gathering data required to national security.

În lumina celor de mai sus vă solicităm să ne comunicaţi:

In light of the above, please communicate to us:
1. Which is the lawful ground that underlies the release of recordings intercepted by the S.R.I. to other institutions of the state, in order to be used in trials that have no connection whatsoever to the object of activity and legal attributions of the Romanian Information Service (S.R.I.)? We mention that the NUP (non-penal prosecution) decision of the file on national security, on the grounds that no specific criminal offenses were discovered, dates since 2002.
2. Based on what clues or proofs is the M.I.S.A. Association labeled as extremist, provided that there never was an official accusation of this type? The M.I.S.A. Association considers that the use of linguistic labeling in Warrants no. 00923/09.05.2003 and 002061/13.11.2002, of the type “activities with extremist character of M.I.S.A. members”, is discriminating, infringes upon the presumption of innocence principle and injures the image and functioning of the non-governmental sector in Romania, in a legal and institutional frame that would ensure the observance of human rights and equality of chances, as well as the free access to an equitable act of justice.
3. Why did one not also de-classify the warrant referred to by warrant no. 00923 from the 9th of May 2003, which is assumed by no one and is signed indecipherably for the period 13th of May 2003, 15:00 – 12th of August 2003, 15:00?
4. We also solicit you to take the necessary actions for opening an investigation that will analyze the way in which prosecutor Ilie Picioruş, as well as another still unidentified person, have approved the authorization of interceptions based on false motivations related to the extremism of the Association, but the accuses eventually brought targeted alleged violations of the penal Code. At the same time, the above-mentioned prosecutors have repeatedly refused to submit themselves to the solicitation of the court of law, seriously affecting the possibility of the defendant to exert his right to defense for several years. We cannot accept, in a state of law, an algorithm of the type: issuing warrants for intercepting phone conversations in lack of penal prosecution – constructing penal files according to various recorded phone conversation – allotting financial and human resources along several years, for trials in which the main evidence is the transcription of an illegally recorded phone conversation. Abuses of this type must be signaled and sanctioned, for a correct functioning of justice.
Awaiting your response, we thank you in anticipation and are at your disposal for any other details.
 
 

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