Judge Toni Greblă: Four years of torment while being freed, were worse than four years in prison

The tragedy of a Constitutional Court Judge arrested by the DNA (Romanian National Anti-corruption Directorate), recorded and filmed while sleeping in his own bed and finally found innocent. The tragedy of a MAN.

AN OCCULT SYSTEM

You have been accused by the DNA of imaginary crimes, you have been publicly degraded in front of the press, and you have been forced to leave the high office of  CCR (Romanian Constitutional Court) judge, and after five years where you lived a nightmare you have been acquitted. Probably these four years in which the abuses of the fight against corruption have been brought into light have saved you. Otherwise, just a few years ago, when judges did not dare to reject DNA casefiles, you would have been convicted. Hence, the following question arises: is the acquittal enough compensation for the loss and sufferings caused by a not only unjust, but also abusive, harassing indictment?

This setup was a true tragedy to my family. We had to show confidence, wisdom and patience. For me, moreover, a career of over 40 years was destroyed by a an absurd and unfair indictment.

For four years I’ve dealt with all sorts of abuses. I was picked up with a warrant without being summoned in advance – which was a mandatory procedure. I did not know the accusations in detail. As a matter of fact, I do not know in detail, exactly, what the accusations are. I have been subjected to technical surveillance measures in violation of the principles of proportionality and subsidiarity. A provocateur agent was used – how else? – and a denouncer I have not seen in my life. The decision of the CCR on the removal from the casefile of the SRI / DIPI transcripts of the telephone conversations was not observed. I was illegally detained for 24h and shown to the public in handcuffs, although at that time I was in the custody of the Romanian state, in violation of the principle of innocence and the right to image. All these are serious violations of some provisions of the Constitution, Criminal and Procedural Law, of the European Convention on Human Rights.

Fortunately, in my case, the solution of the court is good. Not everyone had this chance, and probably if the trial would have taken place sooner and would have ended before evidence about the abuses committed by DNA prosecutors and the secret services, with which they worked hand in hand, reached the public space, the outcome would have been different.

Even so, my acquittal came after four years of torment, which I think is worse than the same number of years spent in prison in terms of stress, humiliation, ostracizing and uncertainty. That is why I can say that the end of the nightmare has given me and my family too little joy. After such trials you no longer have the power to enjoy yourself. Then, much of what was wasted in these years is permanently lost. The acquittal does not compensate for past suffering.

WE ARE DEALING WITH AN OCCULT SYSTEM WHICH USES THE TOOLS OF THE RULE OF LAW

Former President of the CCR, Augustin Zegrean, in a public statement made on the occasion of your acquittal, appreciated that the DNA indicted you to prove that “the system is stronger than CCR.” According to Mr. Zegrean, the dispute between the “system” and the CCR, in which you were a collateral victim, started as a result of it (CCR) declaring unconstitutional laws that gave excessive powers to intelligence services, leading to violations of the fundamental human rights. How would you describe this “system”? Who part of it and what were the instruments used in your case? Would it be more appropriate to talk about an “anti-system” that is opposed both to the democratic system and the rule of law enshrined in the Romanian Constitution?

Throughout history and in all countries, when information services escape civil control, and in the prosecutor’s office the judicial inspection is undermined or even annihilated, they tend to become more and more abusive.

It is what happened to us after 2013, when the tip of the iceberg of a modus operandi began to show, initiated, planned and applied as a result of the desire of SRI (Romanian Intelligence Service) people, prosecutors and courts to control state institutions and the society as a whole. At that time, fear was gradually planted in all segments of society (political, administrative, economic, and also media and justice).

There was only one fundamental institution without a “yellow card,” namely the Constitutional Court. The “opportunity” to attack CCR was the process of examining the constitutionality of the three laws known as Big Brother. Specifically, in my case, one week after the first law was ruled as unconstitutional, the DNA requested and obtained technical surveillance mandates against me. Surveillance consisted of tracking me through GPS, intercepting phone calls and communications, audio-video recording and taking photos. After I declared the second Big Brother law unconstitutional, my 24-hour surveillance was increased for my four months, including the planting of audio and video equipment in all the rooms of my home in Bucharest. This surveillance was invasive and has not been justified in ant way.

Of all the surveillance material recorded for 4 months in my apartment, no documents were added to my casefile, so it is obvious that the measure was a cruel abuse and costed the Romanian state hundreds of thousands of euros unnecessary.

The “coincidence” culminated when, on January 21, 2015, we declared the third Big Brother law law unconstitutional. The next day, on January 22, 2015, a warrant was issued and I was taken from the hotel and lead to the DNA headquarters, where an army of journalists were waiting for me, who obviously already knew what I was accused of.

During the same period, George Maior, director of the SRI, made numerous public statements in which he threatened, in an unacceptable manner, the judges of the CCR. In this situation, the CCR plenum issued a unanimous statement, in which it found that my detention coincided with threats related to the fulfillment of my constitutional attributions stipulated in the fundamental law. Later, then CCR President Augustin Zegrean confirmed both the threats against the judges in the Court and the fear among the other judges that they could also be arrested.

Yes, we are really dealing with an occult anti-system that uses instruments of the rule of law to impose its priorities against a democratic state that operates transparently and enjoys popular legitimacy. The judicial authority, or at least part of it, and the secret services, or at least part of them, have joined forces to paralyze the actions of the democratic state and its institutions governed by the Constitution.

Speaking of systems, we can see that at the time of your prosecution with the whole handcuffs show, inside the DNA existed a unit which investigated the magistrates’ corruption acts, established by the Chief Prosecutor’s Order. The prosecutors who investigated and compiled the indictment were the same ones who could prosecute and indict the judges who were supposed to judge you and decide on the indictment drafted by the DNA in your case. As a former judge of the CCR and as a defender of fundamental human rights, can you say that in that system you were guaranteed that the judges called to judge you were independent in relation to the prosecutors who accused you? Is the system ensuring justice independence and a fair trial?

I prefer to answer this question by quoting a statement by the Romanian Prime Minister, Viorica Dăncilă, which perfectly summarizes the situation you are referring to. She said:

“Over the past 4 years, over 3,000 magistrates have been investigated by the DNA. In fact, half of the magistrates in Romania have had files on their name for years, probably used to influence them, to make them take decisions agreed upon outside the courtroom.

Its not just me saying it, it is also being said with great concern by the magistrates’ associations in Romania. Using such false cases, a judge of the Constitutional Court, a vice-president of the Superior Council of Magistracy (SCM), four judges of the High Court, several judges of higher courts, a general prosecutor, a chief of the higher prosecutor’s office were removed from office. In the end, all were acquitted or the case was closed. But they were removed from office!”

The CCR judge mentioned to by the Prime Minister of Romania is me. The figures are official and uncontested. As Mrs. Dăncilă says, the associations of magistrates have expressed their concern about this situation. As long as the judges could be prosecuted by the prosecutors whose indictments they were judging, they were not independent. In the same way prosecutors who did not want to respond to the political orders transmitted by the DNA chiefs could not be free to carry out their investigations. Thus, when prosecutors are not autonomous and judges are not independent, the prosecuted have no guarantee that they will benefit from a fair trial. And most of them did not even benefit.

MY ACQUITTAL WAS UNCONCEIVABLE A FEW YEARS AGO

Your acquittal was ruled in a different context, namely the one in which by law a Section of the Prosecutor’s Office specializing in investigating crimes committed by magistrates has been created. This excluded the possibility that the prosecutors who abused your case were the same as those able to prosecute your judges. Also, the abuses committed by magistrates in your case were likely to be investigated by prosecutors who had no involvement in your investigation, thus being neutral, objective and autonomous. Do you think that this system is also had to do with your acquittal by judges who were no longer afraid of the possible abuses of your accusers?

The deviant behavior of some people in the law enforcement agencies, as well as the abuses in some judicial institutions, can be called in any was. What it is certain is that there were (do they still exist?) people who were directing these institutions and who created a network (in which part of the media played a very important role) able to go from setting the setting a target to execution without hesitation and with gross violations of the laws or by ignoring the law. The task of observing the rights that outline a fair trial lies with the national courts. Although sometimes the lack of professionalism of many prosecutors as well as judges is obvious, however, the main causes of the violation of the right to a fair trial are represented by the fear inherent in the system and the cynic opportunism of many.

The creation of the Special Section for the Investigation of Crimes Committed by Magistrates (abbreviated SSIIJ) has the gift of dispelling this fear and discouraging this opportunism by separating magistrates who have the task of combating corruption, criminality in general, and those who have the task of combating abuses committed in the fight against corruption, respectively of crime as a whole.

This avoids conflicts of interest in which prosecutors can indict their own judges. As this separation of competences and this division of magistrates’ work has advanced, and these conflicts of interest have disappeared, the chances of a fair trial have increased. This progress is undoubtedly responsible for my acquittal, as it was almost inconceivable a few years ago, when in cases with important public figures, including me as a judge of the CCR, the judges did not dare to contradict the position of the DNA prosecutors, for fear of they would themselves become their target.

Can it therefore be said that SSIIJ has strengthened the independence of the judiciary/judges or has it weakened it? Has it increased or reduced the chance of a fair trial?

Undoubtedly, the SSIIJ has strengthened the independence of judges. This has increased the chances of a fair trial, and, in the medium term, the chances of rebuilding the people’s confidence in justice. Currently, this confidence tends to approach zero, which is one of the most serious threats to the rule of law. ECHR decisions also say the same thing.

How do you explain the position of some high-ranking magistrates who want SSIIJ to be disbanded? Why are they afraid of SSIIJ?

Some magistrates, and I am referring in particular to DNA prosecutors, enjoyed a great deal of power as a result of the fact that while they could incriminate colleagues from other courts who did not share their opinions, no one, outside the prosecutors of the same court, could indict them for the possible crimes they committed. And, as you know, when it comes to abuses committed by their colleagues they prefer to let sleeping dogs lie. The emergence of SSIIJ removes this power from them and they are, of course, dissatisfied.

On the other hand, DNA prosecutors, and some of the judges they worked with in an illegal partnership against the defendants, have made an impressive number of odious abuses. These are now notorious.

As long as their prosecution and indictment remained at the hands of their own accomplices, real or potential, they were guaranteed impunity. A real de facto immunity. This immunity disappears with the creation of SSIIJ and they are, of course, frightened.

That is why we are witnessing a genuine rebellion of the representatives of these two categories of magistrates at the SCM level. They simply refuse to participate in the SCM meetings where on the agenda there are issues related to the organization and functioning of the SSIIJ, trying to block the decision making by boycotting the quorum.

I wonder what would happen if a judge would refuse to attend the proceedings of the court panel he is part of, on the grounds that he does not want to rule in certain cases assigned to him? Or if a prosecutor refuses to attend a court hearing in which a particular case is pending? Here’s how the guilty and ill-motivated resistance against SSIIJ creates a dangerous precedent and chaos in the world of justice.

THE VENICE COMMISSION IS AT RISK OF LOSING ITS CREDIBILITY

How do you explain the reservations and even the criticisms of the Venice Commission and GRECO regarding the creation and functioning of SSIIJ? Do you think that these fora have failed to understand the problems and the organization of justice in Romania or know the situation, but are involved in a political game?

Things are not hard to understand. Especially if we consider that the institutions you are referring to have high-quality experts. The only explanation for not understanding what is easy to understand is that there is no interest in understanding. There is no other possibility.

Or, if a position is determined based on interests rather than by facts, rules, principles, and legal judgments, it means that we are on the political grounds where the game of interests and balance of power prevail, and where the law of force overwhelms the force of law. I am thinking in particular of the Venice Commission, which enjoys great prestige and great credibility. Getting into political games is a sure way to lose them both. Credibility is hard to gain and easily lost. The Commission was much needed, and it has done a great service in explaining the rule of law and democracy building through law, linking the rule of law to the functioning of the democratic system. Its recent political opportunism will deprive us of its positive contribution for a long period of time.

The SCM has recently sent the Venice Commission a letter addressing its concerns regarding the appointment of senior prosecutors, the relations between the Minister of Justice and the Public Ministry, the establishment of the SSIIJ and the like. In fact, this letter rejects the criticism of the Commission’s report on Romania and even demonstrates that some of the recommendations made in the report contradict its own principles formulated in general position papers. How does this SCM response looks like to you in terms of substance and opportunity? Coming from the supreme forum of the judiciary, do you think he will be more convincing than the Government’s explanations, always suspected of political bias?

I have read the SCM letter and support to everything written in it. The response seems to me to be very appropriate, given the critical level of the relation between the Romanian Government and Parliament, and the Venice Commission. I hope that this Commission will now be more attentive to the voice of the supreme forum of the judiciary itself, which, of course, can not be suspected of wanting to limit the independence of the judiciary.

The Commission has always urged the Government to consult other concerned institutions when passing legislation affecting the judiciary. Now the main institution now in this category steps in and tells the Commission that it is wrong. This is also what the Prosecutors’ Association, the National Council of Judges and the National Council of Magistrates have said.

I think it is time for the members of the Venice Commission, when it comes to concerns regarding the policies of the Romanian Government in the field of the judiciary, to objectively identify the real dangers that threaten the Romanian justice system and understand they come from the people they are currently supporting.

IF WE ABANDONED THE PRINCIPLE OF THE SUPREMACY OF THE CONSTITUTION, WE WOULD ALSO ABANDON THE EXISTENCE OF THE STATE ITSELF

CCR found that the law by which the SSIIJ was established is in line with the provisions of the Constitution. The same conclusion was made with regard to other laws on the organization of the judiciary. Under these circumstances, the High Court of Cassation and Justice (of Romania) notified the CJEU asking it to say whether it was required to observe the CCR decisions even when they were in contravention of the recommendations of the Venice Commission or the European Commission. In other words, the HCCJ has requested that CJEU recognize its right not to apply the decisions of the CCR and, as a consequence, to override the Romanian Constitution. This given a state is a member of the Council of Europe or the EU precisely because and only because its Constitution allows it; and only because, in gaining membership, its Constitution has been deemed to be compatible with the principles and norms of those organizations. How do you comment on the HCCJ action? Do you think that it is up to the CJEU or the Council of Europe to provide exceptions to the observance of the Romanian Constitution and the decisions of the CCR, or to issue recommendations contrary to them (the Constitution and CCR decisions)?

The only institution that can interpret the Constitution of Romania is the CCR and its decisions are compulsory. CCR also has the monopoly over checking the constitutionality of the Romanian laws.

EU regulations are binding for Romania only to the extent that they are in line with the Romanian Constitution. Romania’s commitment to observe them is valid precisely because it was allowed by the Constitution.

If it were not allowed, it would have been null and void, and this nullity can not be covered by a CJEU decision.

When Romania was welcomed in the EU, and also in European organizations such as the Council of Europe, those who accepted its membership checked whether among the fundamental values that define their statute and legal system, on the one hand, and the Romanian Constitution, on the other hand, there is compatibility. Thus, there is no question of a conflict between EU law and Romanian constitutional law. If it occurs, according to EU Treaties, the Romanian Constitution prevails. If we abandoned principle of the supremacy of the Constitution, we would also abandon the very existence of the state. I wonder if that’s what the HCCJ wants?

Beyond this fundamental question, I have a problem with the level of professional competence of some magistrates who are asking the CJEU or the Council of Europe such questions. The CJEU is not a court of appeal for CCR decisions and I do not think that, despite political pressure, it will accept to behave in this way. If it does not, it will put HCCJ in bad light. If, hypothetically, it does, it puts itself in a bad light. Romania could not apply such an interpretation.

The Council of Europe is an intergovernmental organization whose decision-making body is the Committee of Ministers. The Venice Commission is a consultative body of the Council of Europe. Do you think it is normal and possible for this Commission to address to Romania recommendations whose compliance is deemed mandatory and whose non-compliance is to be punished in international relations without having previously passed the adoption procedure at the level of the Committee of Ministers? Does it seem fair tot you in the international legal order that the advisory forum of an international organization creates direct relations with other subjects of international law without going first through the decision-making bodies of the organization in which it operates?

The answer is no, to both questions. Indeed, the Venice Commission is an advisory body. Its opinions are primarily directed at the bodies of the organization in which it operates, namely the Council of Europe. These, I am talking about the Parliamentary Assembly and especially the Committee of Ministers, may or may not adopt its opinions/reports. Only after its adoption by the Committee of Ministers, which decides by consensus, a opinion/report or recommendation becomes binding, at least politically. In fact, a totally ignored aspect, even the European Commission, which asked Romania to take into account the opinion of the Venice Commission, states that this should be done in cooperation with the Committee of Ministers of the Council of Europe, of which Romania is a full member. This has not happened so far. In conclusion, the claim of the Venice Commission or of someone else that its opinions, communicated directly to the Romanian Government, are mandatory for the Romanian authorities is abusive and, therefore, outside the order of international law. Hence, it has no legal value and can not generate to any legal effect.

SSIIJ SHOULD BE TURNED INTO A DIRECTORATE AS IS DNA AND DIICOT

What other legislative measures do you think should be taken by Romania in order to ensure that its justice system is truly independent, objective and professional, and also to ensure is has a genuine rule of law, in concert with the principles of democracy and the observance of human rights?

In order to not allow the serious abuses made by the Romanian justice system to happen again and in order to have a genuine rule of law in Romania, much has to change.

However, three measures are particularly urgent: strengthening the role, structure and independence of the Judicial Inspection; the effective exercise of the parliamentary control over the SRI; keeping and consolidating SSIIJ, as well as its transformation into an autonomous directorate, as DNA and DIICOT already are.

For all the other issues, the existing legislation will have to be reviewed, calmly and professionally, through consultation, so that it can be applied unitary and without excesses.