Abuses persecutions and threats >>> Memorandum on abuses >>> Violations of fundamental rights and freedoms
The unprecedented abuses of the judiciary led to serious violations of several Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, in September 2004 the lawyers of Mr. Bivolary filed a complaint to the European Court for Human Rights, contesting the warrant for pre-trial incarceration .
We give below 2 examples:
A) A fter the violent actions of the Romanian authorities, which were meant to "stem the criminal potential represented by Bivolaru ”, there were also numerous official persons who publicly and shamelessly stated that Gregorian Bivolaru was guilty of the offenses attributed to him by the Prosecutors' Office of the Bucharest Court of Appeal.
As a first example, Raj Tunaru, deputy of the ruling party, requested in the session of the Chamber of Deputies on the 23 rd of March 2004: "I insistently ask the investigation authorities, especially the General Prosecutor of Romania, to issue urgently a warrant of arrest according to the legislation in force, and this to be prolonged by the judges, according to the law, until evidence will be produced in order to arrest the bastard [Gregorian Bivolaru]".
After the Bucharest Court of Appeal had to decide the release of Gregorian Bivolaru on the 1 st of April 2004, numerous officials found it appropriate to express their disapproval towards the release, clearly passing the message that the 5 th District Court of Law (re-judging the case), decides the pre-trial incarceration.
Ioan Rus, the minister of Administration and Internal Affairs , was quoted by several newspapers:
- Ziua – the 5 th of April 2004 – "I consider as strange the release of Gregorian Bivolaru on procedural reasons."
- National – the 5 th of April 2004 – "I consider as strange the release of Gregorian Bivolaru on procedural reasons."
- Realitatea Româneasca – the 5 th of April 2004 – "Ioan Rus wants Grieg in jail."
- National – the 2 nd of April 2004 – "Ioan Rus [declared that] MISA has been watched since 1995, but the specialists within MAI (the Ministry of Administration and Internal Affairs) decided now it is time to intervene."
The most serious problem is the fact that not only the public opinion has been influenced, but also the courts, that seriously ignored the fundamental rights of the defendant in order to solve as quickly as possible this controversial dossier and to satisfy both the state representatives and the public opinion. This is how the decision of pre-trial incarceration was justified: "The notorious reaction of the public (who took note of the serious crimes against a minor) has generated a certain public disorder that justifies the drastic measure against defendant Gregorian Bivolaru, without denying the presumption of innocence to which the defendant is entitled until a final sentence. The release of the defendant really disturbs the public order."
How can the judges talk about observing the presumption of innocence while disposing the most drastic preventive measure only to satisfy the public opinion intoxicated by the public statements of the Prosecutors' Office, which affirmed they seized 5 trucks of hard evidence without mentioning that they took the most personal belongings, which mocked a practice recognized in all the democratic countries – yoga – by releasing to the press accusations sustained by nothing, not even by the presumed victim, and which, after 10 years of careful monitoring by the Secret Services, considers investigations still need to be carried on in order to produce evidence for charging Bivolaru with such serious offenses?!
B) Another aspect concerning the violation of the right to a fair trial concerns the composition of the panel of judges.
In order to judge the case on the 1 st of April 2004 the panel of judges was held secret until entering in the judging room and, furthermore, the judge assigned to be the president of the panel was the president of the 5 th District Court of Law, Mrs. Mihaela Andrei. This violates the provision of Article 6 of the Convention, which states that "any person has the right to an equitable judgment… by an independent and impartial instance instituted by law". Note that, according to Law no. 92/1992 republished in 1997, the court presidents are appointed by the Minister of Justice by direct order which is published in the Romanian Official Gazette.
Furthermore, the first panel of judges who ruled on the 30 th of March 2004 as to the warrant of arrest of Gregorian Bivolaru, at Bucharest Tribunal, was presided by judge Antonela Costache who has, like judge Mihaela Andrei, an administrative position within the court, being the President of the 2 nd Penal Section, to which the dossier was assigned.
The subordination to the Government is obvious in this context ; if we also consider the statements of some Government members, as quoted above, the violation of the right to a fair trial becomes obvious. Moreover, the disciplinary action against judicial bodies is exercised by the Minister of Justice, the penal action is also exercised by the Minister of Justice (Article 91 paragraph 2 of Law no. 92/1992 republished in 1997), the Minister of Justice can give direct and compulsory orders to the prosecutors, in view of respecting and applying the law (Article 33, Article 34 of Law no. 92/1992 republished in 1997), according to Regulation no. 9 for the working of the Superior Counsel of Magistracy, the Minister of Justice can suspend by direct order any prosecutor or judge etc.