The fundamental freedom of expression, free media and information Statement on the current conflict between freedom of media and other Human Rights, such as presumption of innocence in criminal proceedings and the right to freedom from discrimination

“It is easier to turn an arrow from its way then to stop a word that left your lips”

Media as the fourth power of the state must be kept accountable for the full consequences of its actions. In most OSCE participating states today, media does not challenge the human rights as limited in freedom of speech by state legislation. Today media conflict with the freedom of thought in a system wrongly believed to be morally self regulated much in the same way as the prices in a market economy. In reality media today many times come to violate the fundamental human rights by a public management of information without regulation by accountability or a commonly accepted convention of professional conduct.

The question of accountability when private actors carry through actions of state level is well illustrated by the recent debates regarding the situation in Iraq. Private entrepreneurs of war do not have to obey to the same regulations as state troops and are not as individual or collective actor accountable for their misjudgements to the same degree as a regular army would be. Together with the Hypocrite code one of the uncontested triumphs of human morality is, paradoxical as it might seem the existence and appliance of the conventions on conduct in war. The common sense of modern society is offended when these conventions are not kept in a war, even when keeping to them might seem contrary to the immediate purpose of that specific action of war. In the field of media and public information management, humanity has yet not reached to establish such conventions and common sense.

As we intuitively understand that media and public information by definition is based on an unequal and potentially harmful interpersonal relation – just like between doctor and patient, soldier and civilian or soldier and prisoner of war – we have a common sense understanding that this relation should be guided and regulated by some certain universal fellow values beyond the immediate interests of the one in power.

Indeed the self regulation of morality in media is many times most efficient. In other situations media seem collectively to allow them selves not to consider the inner self regulating norms of morality as valid anymore. Sometimes an else diverse and multilaterally reflecting media landscape is completely dominated by one single opinion little related to common sense or morality. We find three major such situations – when by patriotism relating to sports and international conflicts, when a specific group temporarily manage to by force implement their specific views and when relating to unfamiliar cultural and spiritual praxis undesired by the surrounding society.

We frequently experience that in the field of information incidents innocent people have being hurt. The fact that the damages inflicted by immoral and unjust actions of journalists are not so easily measurable as in the war field in Iraq might be one reason to why there is not any debate on medial accountability today.

Media plays a key role in forming the public opinion. No modern society allows teachers with no or inappropriate education to work in the educational system and still no modern state have yet issued a degree needed to form the public opinion. Those working in public media management should enjoy at least the same support and attention as the educational system. The power of a journalist is in many ways equal to that of a priest in pre-modern society. It is a profession in need of moral and spiritual education without which we risk “one blind leading another blind”. A truly free media require journalists morally free by having a tolerant moral understanding.

The public opinion is a complex and vulnerable mechanism not self regulated in a way parallel to the free market economy. As discussed in previous sessions, “hate crimes” are propelled by exactly this failed self-regulation and the failing of moral responsibility in the media environment. Still the individual journalist does not even by common morality stand accountable or convicted for such crimes, nor does the company who contracted him. An article will destroy the life of a person and in the end, if proven wrong the paper is responsible to publish a small apologize in the fifteenth page. “One dump is throwing a stone in the river and even ten wise cannot take it out”. This fact is today cynically and systematically used in accordance with the so called Machiavelli principles. The real responsibility has to come from a free minded media that is a consequence of a properly prepared journalist.

As we have started to present here the complex and severe case of the MISA yoga school in Romania, here is the situation presented from the point of view of the freedom of expression.

During the period 1997 – 2006 a number of 2700 negative or calumnious articles appeared in the media only about this yoga movement. Only less then 4% of the cases were followed by the right to reply.

The influence in the case from the media was so big that the decision of the Swedish Supreme Court denying the extradition in 2005 of the Romanian yoga teacher Mr. Gregorian Bivolaru states the following:

“Madalina Dumitru (the alleged victim) has further stated that her apprehension by the police on 18th March 2004 was filmed and that the film along with excerpts of her confiscated notes was repeatedly shown the following day on Romanian television. The pictures and the notes have also been published in several newspaper articles. This has led to severe harassment from people within her immediate surroundings and she has not been able to continue her schooling.”

“The tone in the media has, according to the Ministry of Foreign Affairs, periodically been very vicious. (…) In the case it has furthermore been made probable that the immediate TV broadcasting of the arrest and the following press campaign based upon information from the investigation was deliberately handed out by the authorities in the aim of turning the public opinion against GB”.

The lack of real accountability in the fourth power of state is seemingly a growing problem in modern open societies. It is clearly misused by states or other powers of interest to by force impose their will and ideas in society with media as agents that will not face any consequences in proportion to the sufferance they might cause.

The report made by Transparency International in Romania in 2006 show regarding the influence of media in judicial processes, that judges and prosecutors perceive that in the cases of interference with the justice, media is responsible for more than 56% of the cases, the rest being shared between the other major forces of the state.

There is in the open society a natural resentment regarding state regulating the media through legislation. Among journalists there is an inherit idea about a specific and common conduct of honour similar to that of soldiers, doctors and so on. Still it was not yet stated in conventions and is many times proven to be largely relative according to the pervading normality of the recipient society.

We consider that the lack of efficient self regulation of media in accordance with the democratic and tolerant principles stated by the OSCE participating countries regarding the protection of the human rights is a problem that should be addressed internationally.

Recommendations

• We recommend OSCE to initiate the establishment of a convention of intellectual and moral justice in media. This convention would be formalised as self regulated based on common journalistic principles developed and defined in this forum.
• We recommend to the OSCE to encourage the creation of an independent international commission that can provide an unbound referential to journalists, thus easing the pressure from specific groups of interest upon the media.
• We recommend to the OSCE participant states to support the development of public informational management into a science with at least the same importance as pedagogy.

Link to the conference document:

http://www.osce.org/documents/odihr/2007/10/27058_en.pdf

Annex Right to a fair trial: Case study on MISA yoga school – ROMANIA
VIOLATION OF THE ARTICLE 6 OF THE EUROPEAN CONVENTION – RIGHT TO A FAIR TRIAL As to a fair and public trial within a reasonable time, by an independent and impartial court established by law, with all the other guarantees, as provided for in article 6 of the Convention, these provisions were violated in 6 different situations. I. The violation of the Article 6 by not observing the presumption of innocence First of all it must be said that in the Romanian judicial system the presumption of innocence, stipulated by the Romanian Penal Procedure Code in article 52, by the Romanian Constitution in article 23, but especially by the European Convention for Human Rights, remains an empty concept that the courts do not take into account. The entire theory according to which in dubio pro reo must be applied every time when there is not enough evidence showing the guilt of the charged, especially in penal matters, remains a beautiful speech of the lawyers with no impact or relevance in a penal trial whatsoever. In this context, after 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 23rd 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 1st of April 2004, due to the fact that the prosecutors had wrongly appreciated the norms related to competence and invested the Bucharest Tribuna instead of the 5th District Court of Law with the solving of the request of pre-trial incarceration, numerous officials found it proper to come out and express their disapproval towards the release, clearly passing the message according to which simultaneously with the cause re-judging by the 5th District Court of Law, the measure of pre-trial incarceration should be also ruled. Ioan Rus, the minister of Administration and Internal Affairs, was quoted by several newspapers: - Ziua – the 5th of April 2004 – “I consider as strange the release of Gregorian Bivolaru on procedure reasons.” - National – the 5th of April 2004 – “I consider as strange the release of Gregorian Bivolaru on procedure reasons.” - Realitatea Românească – the 5th of April 2004 – “Ioan Rus wants Grieg in jail.” - National – the 2nd of April 2004 – “Ioan Rus [declared that] M.I.S.A. has been watched since 1995, but the specialists within MAI (the Ministry of Administration and Internal Affairs) decided it is time to intervene.” Bogdan Drăghici, the president of the National Federation of Civil Servants, quoted by the newspaper Jurnalul National on the 1st of April 2004, the same day when the Bucharest Court of Appeal decided the release of Bivolaru and his judging by the competent instance: “In Romania there are over 100 important civil servants, especially within the structures of the Ministry of Administration and Internal Affairs and even in the Government’ General Secretariat, who protect M.I.S.A. or are M.I.S.A. members. At the level of the central administration, in Bucharest there are tens of such employees.” The same Bogdan Drăghici declared for the Ziua newspaper on the 31st of April 2004: “There are tens of employees in the whole country. Not only in this ministry did M.I.S.A. members infiltrate, but also in others such as the Government’ General Secretariat. We now gather information from all our branches and we will release them to the press as soon as possible. [...] as persons from the central state institution, the Government, have been the main protection suppliers of Gregorian Bivolaru. [...] The companies of important members or followers of the Bivolaru’s organization were doing illegal economic activities. For these services, including the protection and information from the state institution, the employees have received material benefits [...] and sexual favors.” The same day when the release of Gregorian Bivolaru on procedural reasons was decided, that is the 1st of April 2004, the newspaper Curierul National writes: “Radu Timofte (chief of the Romanian Secret Services), the secret chief of M.I.S.A. Confidential sources close to the investigators declared last night [...] that there is certain evidence that the S.R.I. head belongs to the yogi movement. [...] President Ion Iliescu called urgently the Supreme Council for the Country Defense (CSAT) where they will discuss the replacement of Radu Timofte.” A larger number of such statements and newspaper excerpts can be found in www.gregorianbivolaru.com Considering all these statements which came to support the accusations of the Prosecutors’ Office of the Bucharest Court of Appeal, to emphasize the necessity to arrest Bivolaru and to manipulate the public opinion and instigate it to hatred and despise towards his activity and the organization he founded – the presumption of innocence cannot subsist. Moreover, although the pre-trial incarceration was requested for the serious offenses for which the investigation is till in profress (propaganda in favor of the totalitarian state, communication of false information, association in an organized criminal group, money laundering, tax evasion, pornography, pedophilia etc.), all the quoted officials tried to manipulate the public opinion by stating that the measure of pretrial incarceration is necessary for the committing of these offenses and not for the ones for which the preventive measure was really asked. In this way, they created antipathy, despise and even hatred towards Gregorian Bivolaru, meant to justify the disproportionate and illegal measure in relation to the evidence gathered in the dossier. The most serious problem is the fact that not only the public opinion has been influenced, but also the courts; they were accused of being “indulgent” towards Bivolaru due to the presumed influence he had upon them through different MISA members. Consequently they seriously ignored the fundamental rights of the defendant in order to solve as quickly as possible this controversial dossier and to satisfy the state representatives and the public opinion. The same meaning has also the motivation of the judicial decision on the measure of pre-trial incarceration: “The notorious reaction of the public (who took note of the committing of serious 19 penal facts against a minor) has resuscitated a certain public disorder that justify the taking of a drastic measure towards defendant Gregorian Bivolaru, without denying the presumption of innocence to which the defendant is entitled until a final sentence. The letting at large 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 took 5 trucks of hard evidence without mentioning 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?! The violation of the presumption of innocence is obvious when – defying the article 202 of the Romanian Penal Procedure Code that states that “the penal authority is obliged to produce the necessary evidence in order to find out the truth and justly judge the case. The penal authority gathers evidence both against and in favor of the charged or the defendant. The obligations provided for in the previous paragraph shall be carried on even if the charged or the defendant confess the deed” – the prosecutors turned a statement into a complaint for an offense of sexual act with a minor in the version that incriminates the abuse of authority in order to obtain sexual favors. It must be emphasized this is the statement given after 13 hours of interrogation following the searches; this can be referred to at pages 116-117 of the cause dossier. Moreover, the minor never accused to have had sexual relations with Gregorian Bivolaru and declared before tens of reporters that she has a fiancé whom she intends to marry; she even tried to explain this during the judging of the request of pre-trial incarceration. Considering all these things, the violation of article 6 paragraph 2 of the Convention is obvious. II. Violation of article 6 by the fact that Gregorian Bivolaru was not judged by an independent and impartial instance. Another aspect concerning the violation of article 6, paragraph 1 of the Convention concerns the composition of the panel of judges. In order to judge the case on the 1st of April 2004 a panel of judges was formed that 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 5th 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 30th 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 instance, the Presidency of the 2nd Penal Section, to which the dossier was assigned. The fact that after ascertaining the incompetence of the Bucharest Tribunal for solving the request of pre-trial incarceration and after sending the cause to be re-judged by the 5th District Court of Law, it 20 was considered necessary to assign a judge with an administrative position within that instance for the presidency of the panel, and after the Bucharest Tribunal had constituted a panel of judges on the same criteria, raises big question marks about the way this dossier was managed. 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 article 6 paragraph 1 of the Convention 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. In this respect there have been numerous debates in the press, on TV and even in the Romanian Parliament, and consequently on the 1st of October 2004 the new law of judicial organization will come into force, by which the judges are taken out of the Government’s tutelage, following the requests of the European Union. This approach of the Romanian authorities proves the abovementioned and is basically recognition of the fact that until the above-mentioned date, there were no independent and impartial instances in Romania. However, on the 31st of May 2004, when the measure of pre-trial incarceration of Gregorian Bivolaru was judged and decided, Law no. 92/1992 was still in force and, as already mentioned, the panel of judges was presided by the instance’s president. The fact that the instance of the 5th District Court of Law was challenged had no relevance; the Bucharest Tribunal and the Bucharest Court of Appeal accomplished only a formality by denying the invoked arguments. III. Violation of Article 6 by the fact that the haste to judge Bivolaru’s case led to repeated violation of the right to defense Article 6 paragraph 3.b states: “Everyone charged with a criminal offence has the following minimum rights: …b)to have adequate time and facilities for the preparation of his defense”. However, after the Bucharest Court of Appeal released the charged, when the instances could no longer motivate their haste by their wish to solve the pre-trial incarceration request before the expiration of the detention measure, the judgment terms were set the same day for different instances in spite of the lawyers’ repeated request to be given a reasonable time to prepare the defense. Thus, after the Bucharest Court of Appeal had to acknowledge on the 1st of April the prosecutors’ mistake and to release the defendant due to the expiration of the detention measure, during the same day the dossier was sent from the Bucharest Court of Appeal to the 5th District Court of Law, where still the same day the dossier no. 3989/2004 was put together, and they tried to rule on the proposal of pre-trial incarceration in the Council Chamber. Because of the instance’s refusal to respect the right to defense and because of the suspicions concerning the way the made up the panel of judges, Gregorian Bivolaru’s lawyers had no other solution but to challenge the whole instance of the 5th District Court of Law. As rejection grounds, they showed the instance the fact that all this extreme haste in the situation in which the celerity could no longer be motivated by the expiration of a preventive measure, and because within a few days an impressive number of procedures was carried on, that could not be carefully examined by the defendants’ lawyers in order to prepare the defense – these were considered valid reasons to suspect there was political pressure and other kinds of pressure, so the instance could no longer rule objectively upon the case. The dossier is forwarded to the superior instance, which is the Bucharest Tribunal; judging the challenge request in the dossier no. 1881/2004, the Bucharest Tribunal ruled by the Conclusion pronounced in the Council Chamber the same day, the 1st of April 2004, that there was no incompatibility and denied the rejection request. The conclusion issued by the Bucharest Tribunal was appealed. At Bucharest Court of Appeal, in the dossier no. 1177/2004, Gregorian Bivolaru’s lawyers invoked the non-constitutionality of the provisions of article 52 par. 2 of the Penal Procedure Code, which states that the examination of the exception request can be done in the absence of the parties, and the instance who judges the exception request must listen to the parties only if considered necessary. Although Gregorian Bivolaru was represented by a lawyer at the Bucharest Tribunal, that judged the exception request, the constitutional provisions are violated by the fact that the defendant was not cited and called to be heard; due to the negative consequences of the denigration in the media and the exaggerate hurry with which the procedures took place, the defendant’s rights were violated, especially the right to defense. The Bucharest Court of Appeal by the Conclusion on the 2nd of April 2004 decided the notification of the Constitutional Court and suspended the judgment of the cause until the non-constitutionality exception will be solved. The Prosecutors’ Office of the Bucharest Court of Appeal appealed, thus forming the appeal dossier no. 2196/2004 of the High Court of Cassation and Justice. The appeal before the High Court of Cassation and Justice was established on the 27th of April 2004. At this first term the lawyers of Gregorian Bivolaru asked for more time to prepare the defense and to consider the appeal reasons raised by the Prosecutors’ Office of the Bucharest Court of Appeal; the instance admitted the request, but set the new term the following day, the 28th of April. The High Court of Cassation and Justice admitted the appeal of the Prosecutors’ Office of the Bucharest Court of Appeal (Decision no. 2283 on the 28th of April) therefore decided to send the cause to the Bucharest Court of Appeal for the continuation of the trial. This happened while at the Supreme Court Gregorian Bivolaru’s lawyers invoked the non-constitutionality of the provisions of article 3852 and article 362 paragraphs 1.a of the Penal Procedure Code, on which basis the prosecutor can attack with appeal or recourse the decisions. This was motivated by the fact that the mentioned texts are in contradiction with the principles governing the whole activity of the Public Ministry, which are the principles of legality, impartiality and hierarchical control, as long as exercising the appeal by the prosecutor is not subject to the confirmation of the hierarchically superior prosecutor. The High Court of Cassation and Justice, despite the provisions of Law no. 47/1992, republished, which states that the instances before which non-constitutionality exceptions are raised are obliged to refer to the Constitutional Court, ruled in this respect and denied the exception. At the Bucharest Court of Appeal, on the 10th of May 2004, in the dossier no. 1551/2004 Gregorian Bivolaru’s lawyers claimed that judges of the Bucharest Court of Appeal could no longer be impartial, given the evolution of the dossier and the already obvious pressure; they considered that somewhere else in the country there will be less interference and pressure on the justice then in Bucharest, and consequently took exception to the whole Bucharest Court of Appeal. The cause was sent again to the High Court of Cassation and Justice who considered that the exception request was inadmissible and denied it (Conclusion no. 96 on the 12th of May 2004 pronounced in the 22 dossier no. 2624/2004). Gregorian Bivolaru appealed, but this was also denied as insubstantial by the High Court of Cassation and Justice by a panel of nine judges (Decision no. 170 on the 14th of May 2004 pronounced in the Council Chamber in the dossier no. 128/2004). The rush through so many proceedings in such a short time led to the effective hindrance of the defense preparation, the courts categorically refused to take into account this fundamental right of the defendant, right that is also provided for in principle by the Romanian Penal Procedure Code in article 6. The right to defense was seriously violated if we consider that during one single day, that is the 29th of March 2004, the Nădlac customs police decide the measure of detention, the dossier was sent to Bucharest, the dossier of the Prosecutors’ Office pendant to the Arad Court of Appeal was connected to the dossier of the Prosecutors’ Office pendant to the Bucharest Court of Appeal, it was decided the start of the penal proceedings for three offenses (attempt to fraudulently cross the Romanian state border, sexual act with a minor, sexual perversions), and the proposal of pre-trial incarceration was drafted by the same Prosecutors’ Office pendant to the Bucharest Court of Appeal. In the same very busy day the General Prosecutor of the Prosecutors’ Office pendant to the Bucharest Court of Appeal found the time to solve the complaints of the minor Mădălina Dumitru against the way the search and the interrogation were performed, and by the Resolution no. 977/VIII-1/2004 on the 29th of March 2004, stated that her requests could not be taken into account; this time her capacity of minor didn’t grant her any favor; her statements were contested and she was practically obliged to take the role of injured party, although she denied it. It is probably a national or even international premiere that a presumed injured party affirms denies this capacity while the authorities contradict her, saying that her statements cannot be taken into account. It is very hard to believe that the prosecutors had the necessary time to study the dossier in all its complexity, as it has an impressive number of pages, in order to analyze the evidence and to draw up the above-mentioned documents, so that the rights of the accused be also observed and the proceedings be correctly conducted as provided for in the Romanian Penal Procedure Code, such as the right to defense and the personal freedom; furthermore, it is also hard to believe they also had the time to hand in the dossier to the General Prosecutor in order to study and analyze attentively whether minor Mădălina Dumitru’s complaint was well-grounded or not. It is also worth to mention that between the 29th of March 2004, when the Prosecutors’ Office pendant to the Bucharest Court of Appeal requested the measure of pre-trial incarceration, and June 2004, when the Conclusion of the 5th District Court of Law by which the measure of pre-trial incarceration was decided remained final, the prosecutors continued the investigation of the merits and as various procedural documents were issued they were added to the initial dossier. In all this period, the defenders requested several times, according to article 172 Penal Procedure Code, to be called for every act of penal investigation, but the claims handed in through the registry got too late to the prosecutors, others disappeared, sometimes the prosecutors themselves “could not be found”; thus, the judicial bodies proceeded to various investigations in the absence of the defenders. The proving documents can be found at pages 1087-1123 of the dossier. In this context, it is even easier to understand the instances’ refusal to grant reasonable terms for the preparation and the assurance of Gregorian Bivolaru’s defense. The flagrant violation of article 6, paragraph 3.b of the Convention is therefore more than obvious. IV. Violation of Article 6 by the fact that the judgment was not suspended in order to allow the Constitutional Court to judge the exception of non-constitutionality When the exception of non-constitutionality of the provisions of article 52 of the Penal Procedure Code was invoked, the judging instance was obliged, according to Law no. 47/1992 concerning the organization and working of the Constitutional Court, to suspend the judgment and to send the cause to be solved by the Constitutional Court, the only one empowered to rule as to the constitutionality of the provisions of a law. The Law of the Constitutional Court provides that an exception of non-constitutionality can be denied by judging instances only if it is considered inadmissible because it does not concern a law or an ordinance, it was not invoked by the court, the parties or the prosecutor, or it was subject to a prior constitutional check (prior to the enforcement of the law or ordinance), or the Court had already ruled on the invoked text and declared it not constitutional. In Bivolaru cause none of these points that could have justified the denial of the non-constitutionality was applicable, and the High Court of Cassation and Justice admitted the appeal of the Prosecutors’ Office against the conclusion of the Bucharest Court of Appeal by effectively pronouncing in place of the competent instance as to the constitutionality of article 52 of the Penal Procedure Code, as one can easily see in Decision no. 2283 in dossier 2196/2004 of the High Court of Cassation and Justice – Penal Section. A fortiori the High Court of Cassation and Justice flagrantly violated the legal provisions by drastically denying the non-constitutionality exception invoked. The High Court of Cassation and Justice, by the Decision no. 2283 on the 28th of April 2004, also refused to send the dossier to the Constitutional Court after at the supreme court Gregorian Bivolaru’s lawyers invoked the non-constitutionality of the provisions of articles 3852 and 362 paragraph 1.a of the Penal Procedure Code, on which basis the prosecutor can attack with appeal or recourse the ruling. This was motivated by the fact that the mentioned texts are in contradiction with the principles governing the whole activity of the Public Ministry, which are the principles of legality, impartiality and hierarchic control, as long as exercising the attack by the prosecutor is not subject to the confirmation by the hierarchically superior prosecutor. Despite the provisions of Law no. 47/1992, republished, which states that the instances before which the non-constitutionality exceptions are raised are obliged to go to the Constitutional Court, the High Court of Cassation and Justice pronounced ruled and denied it. V. Violation of Article 6 by the fact that the objections raised during the solving of the request of pre-trial incarceration were ignored without arguments It is useless to comment the way in which the instances pronounced every time upon the objections formulated during the solving of the request of pre-trial incarceration; in none of the judicial decisions there were arguments on why Bivolaru’s affirmations were repeatedly ignored. The argument invoked by the judging instances, that the challenge reason provided for in article 48.d of the Penal Procedure Code, which provides that “the judge is incompatible if in the respective cause, …d)there are circumstances showing he is interested in any form, he, the husband, or a close relative” could not be taken into account, is a natural consequence of its subordination to the executive power, as shown above. Consequently, acknowledging that the objection reason is valid in this case would have meant to acknowledge not only that the instances (as already notoriously known in Romania) are neither independent not impartial, but also that the “Bivolaru dossier” was truly instrumented in a such manner to give satisfaction to the certain members of the Government who had publicly expressed their opinions. VI. Violation of Article 6 by the fact that the authorities justified the measure of pre-trial incarceration by the so-called attempt to escape, without taking into account the submitted evidence The 5th District Court of Law decided the measure of pre-trial incarceration claiming that Gregorian Bivolaru has been escaping, although his lawyers sustained the defendant is hiding as he received threats that made him consider his life in danger. In this respect they handed in the declarations of two acquaintances of Bivolaru, certified by the lawyer, in which they testify the defendant received threats saying “he was going to be eliminated”. Gregorian Bivolaru had serious reasons to take such threats seriously, considering his past when he had been the victim of a criminal action and he is still alive thanks to the fact that he was not at home when the explosion took place. The lawyers continuously asked the judging instances for the defendant’s protection, taking into consideration the authorities haven’t taken any measure in this respect up to the present moment. However, the judging instance appreciated this newly-occurred situation represented only affirmations meant to delay the trial and, without taking into account the statements in the media, the filed declarations and the simple fact that by guaranteeing his protection they could ensure Bivolaru’s presence at the trial, concluded that the affirmations are not proven and, with no other analysis, decided the measure of pre-trial incarceration concluding the defendant was escaping the prosecution. This is another reason to ask the European Court for Human Rights to acknowledge the violation of article 6 paragraph 3.b of the Convention, which stipulates the right to defense. Excerpt from the independent report released in 2006 by SOJUST on the juridical system of Romania Chapter 5: Human rights III. The M.I.S.A. caseA. The actual case One of the cases that arose publice suspicions regarding the procedural correctness and compliance with the fundamental rights is that of the Spiritual Movement for Integration into the Absolute (MISA) 25. The M.I.S.A. leader, Gregorian Bivolaru and others of his disciples were prosecuted, put under arrest, beaten by the Securitate even from the 70’s. One does not rule out that the prosecution of the M.I.S.A. leader continued after 1989 as well. To these, one adds the public’s reticence towards the yoga techniques, especially in the 90’s, due to a lack of a reasonable education. The biggest official action directed against MISA took place in March 2004: Operation “CHRIST”. On the 18^th of March 2004, a few hundred policemen, gendarmes and prosecutors forcefully broke into several personal property buildings belonging to yoga students, locations where tens of yoga practitioners were living together, pursuing their spiritual practice by the model of the Indian ashrams. The immersion was broadcasted by several TV stations and an entire country could see the breaking of doors by law-enforcement officers and the forceful treatment of persons who were found in the buildings (of whom some were foreign citizens): while being held at gunpoint, they were summoned to lie down on the floor, face down and hands around their necks; they were not allowed to get dressed; they were not asked for their approval to be recorded on camera. In one of the cases, it seems that there was no search warrant. Several tens of persons were carried by police vans to the Prosecutor’s Office where they were questioned. One did not allow them to contact their lawyers, for the reason that they were questioned as witnesses, and the Romanian Law provides for the possibility of allowing defense only for parties, and not for witnesses27. According to the content of the search warrants, they were supposed to concern information data, regarding information users and traffic. The people who were searched claimed that huge quantities of personal goods were confiscated28, some of them without being mentioned in the search protocols and most of them having no connection to the motives specified in the warrants whatsoever; two years later, the owners were only returned one third of all these. One of the evidence, the journal of a yoga practitioner witness, was released to the press and made public, although the authorities guaranteed confidentiality. The prosecutor now investigates organized crime and human traffic cases concerning some of the MISA members. One has instituted the measure of “insuring arrestment” on 70 buildings for covering the damages that they claimed. Officially, one has noted that, under the cover of courses for initiation in the yoga practices, the investigated persons attracted, manipulated and exploited the participants (of whom many were minor) to their own personal interest, thus endangering their psychic development29. Nevertheless, from the contradictory data published by the media, there are only 8 victims. Some of the investigated persons were sent to trial. A completely unusual thing for Romania, the entire indictment was made public30 by the penal prosecution body, which among violating the rights to an equitable trial and the protection of the investigated persons’ private life, may be yet another element for the manipulation of public opinion. B. The MISA files With all the internal investigations performed by the CSM31 or the judiciary ones performed as a consequence to the filed complaints, the presumptive negative aspects concerning the actual development of the investigation were not cleared up. From the 55 penal complaints that were filed in May 2004, only 9 were retained in view of solving at the Prosecutor’s Office, and those for a single offence. The rest got a non-prosecution resolution, without even questioning the victims; at present, this resolution is appealed at the Supreme Court. At the same time, two arrest warrants were issued on the name of Gregorian Bivolaru (gone to Sweden), one for the offense of sexual act with a minor and the other for human traffic. These were the grounds for the Romanian State’s request of his extradition. But the Supreme Court of Stockholm got to the conclusion that, due to the violation of the presumption of innocence, of implicating the political scene32and the media in this case (one even got a special mention that the authorities deliberately turned the public opinion against the defendant), the Romanian Justice cannot ensure an equitable trial to the citizen whose extradition was requested, a reason for which the Romanian State’s request was turned down33. After two more months, the Swedish Government accepted to grant Mr. Bivolaru the statute of political refugee. C. Possibly violated rightsOn the way in which the searches, the hearings and the investigations were conducted one has questions as to the possible violation of several internal dispositions (illegal confinement; threatening; unjust repression; illegal entry; destruction; misfeasance against the person’s interests; misfeasance by restraining rights; attempt to determine false testimony; illegal arrest and abusive investigation; abusive behavior) and international ones (freedom from torture, the right to liberty, the right to a fair trial, freedom from arbitrary interference with one’s privacy and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association; freedom from discrimination; the right to own property). The inefficiency of the internal investigations concerning the claimed abuses is all the more serious as Bivolaru got the asylum and then the refugee status in a foreign country. From this viewpoint, the competence or the bona fide of the Romanian bodies is seriously questioned. Source: http://www.sojust.ro/sistemul-juridic-din-romania-raport-independent/5-human-rights.html

The right for a fair trial

On the Rule of Law – the right for a fair trial

(With examples from the violation of the right for a fair trial in Romania)

As a continuation of the exposed problems with division of powers in a unicultural society that ware presented in the first session on this afternoons topic, Soteria wish to point out some specific problems related to the concept of fair trial. We have to mention first that these particular problems are added to the ones mentioned previously by our distinguished introducer, Mrs Monica Macovei namely: corruption of the justice system and especially the political corruption.

As it was noticed in various situations, the freedom of speech and especially the freedom of media can come much faster into use than the freedom of the mind of the people in that society. In some cases the mind of the people involved in the justice process is still under some totalitarian tendencies while the influences from the media grow freely, expressing sometimes intolerance and hate toward the ones that are different. These two situations can work together and create severe violations of the human rights and make almost impossible a fair trial even if the laws on the paper will allow it. Thus the pressure that the prosecutors and judges have to face in their work comes sometimes not only from a corrupted system but also directly from the society. A prosecutor that tries to stay objective in his work have to face also the public pressure created by a media that is not used to reflect multilateral points of view and that serve a society which is not used to accept the ones that are different. This phenomenon is affecting different minorities and some of the most affected groups are the spiritual and religious minorities. In their cases the fact of being different then the society around might come from a fundamental difference in the set of beliefs and it cannot be easily spotted and treated as such without an awareness on this aspect.

Many OSCE participating states, especially from the eastern region, experience problems created by the mindset of prosecutors and judges that were formed and determined by cultural and professional norms that would not anymore be valid in a just and tolerant society. The whole scale of latent and acute problems is present in the former communist countries as well as other nations in transition from a nation ruled by strong cultural dogmas to a society ruled by law and tolerance. This problem often combines with another problem arising from the new form of conformist society that emerges – the unicultural society created in close collaboration between state and media. From this situation especially the rights for a fair trial by those whose behaviour differ from the norms are vulnerable. We will now speak from the perspective of those with a spiritual praxis that differ from that of the surrounding society. The trials in their case are per se unjust when targeting the very structure of the undomesticated spiritual praxis under guise of the individuals’ actions within this structure. A social and cultural intolerance thereby easily turns into a judicial mistake.

Since we have been starting to show in this forum the very complex and severe case of MISA yoga school in Romania, we consider necessary to give the perspective of a fair trial that in this case was violated. In the document that is made available to you in the DDC as an appendix to this statement we have given a full report on the violation of the Article 6 from the European Convention for human rights (1950) – the right for a fair trial in the case of MISA members. The number of juridical mistakes and violations upon the human rights in this case are so numerous that we needed a full annex only to mention them. This is a result of the political corruption that still exists in the Romanian juridical system (as shown also in the opening of this working session by Mrs Monica Macovei) combined with the inflamed reaction of the mass media in a society yet tributary to an attitude of intolerance.

As it was briefly shown before in other statements from SOTERIA INTERNATIONAL, one of the leading figures of this yoga movement, Mr Gregorian Bivolaru was granted in the beginning of 2006 the status that is equivalent to political asylum in Sweden. From the decision of the Supreme Curt of Sweden we can read that:

“In the matter there has been referred to several letters from individuals and from organizations, among them the Helsinki Committee for the defending of human rights in Romania, and Amnesty International, concerning harassment and crime against basic rights committed by Romanian media and institutions against MISA and Gregorian Bivolaru. In the letters it is adduced that Gregorian Bivolaru runs the risk of being pursued in Romania and that he cannot expect to have a fair trial there.”

As a reaction to that event the Romanian PM, Mr. Catalin Popescu Tariceanu, officially declared that: “If the yoga teacher is granted asylum in Sweden because his fundamental rights are not respected here in Romania, then that is a clear proof of the fact that justice does not function here”!

Illustrating even more what we have stated before, after the decision of the Supreme Court of Sweden was published the Romanian minister of Justice at that time, Mrs Monica Macovei, our distinguished introducer today, asked for an investigation from the Supreme Council of Magistrates (SCM). The results of this investigation – in our opinion formed on the facts shown in the annexed document – are in themselves an example of how the justice process can be corrupted in a society manifesting a certain degree of intolerance. The report from SCM concluded among other things that the images that invaded the media immediately after the severe events that took place in March 2004 were not from the prosecutors but from yoga practitioners that were dressed in policemen and filmed themselves as brutalizing other yoga practitioners and then deliver the film to the media. Also the reason for the decision of the Supreme Court in Sweden was mainly the failure of the minister of Justice to provide proper documentation to the Swedish Supreme Court. Even Mrs. Monica Macovei declared for the media at that time that:

“Actually this report is rushed and protective for the magistrates. It is large as it actually comprises a list of dates and measures, but no verification whatsoever has been made as to the legality of each measure, under the excuse of the magistrates’ independence. I want to say that I see here a dangerous tendency and it is not the first time I see this in a Superior Council of Magistrates inspection. Under the justified concern for the magistrates’ independence, they practically refuse to undertake any responsibility check.”

As one trial against Mr. Bivolaru and 21 other yoga teachers started in Bucharest in June 2007, the right for a fair trail was again trespassed by the judicial authorities by publishing the indictment – in itself a document that is violating several times the presumption of innocence – in the main stream media in the same day as the file was send to the court. More details you will find in the appendix of this statement. We will end with an excerpt from a report released in 2006 by SOJUST – SOciety for JUSTice. This society is made of judges, lawyers and other workers in the romanian judiciary system. The justice system in Romania – an independent report. In chapter 5 section 3 we find MISA case analyzed. Here is the conclusion:

” The way in which the searches, the hearings and the investigations were conducted raises the issue of the possible violation of several internal dispositions (illegal confinement; threatening; unjust repression; illegal entry; destruction; misfeasance against the persons’ interests; misfeasance by restraining rights; attempt to determine false testimony; illegal arrest and abusive investigation; abusive behavior) and international ones (freedom from torture, the right to liberty, the right to a fair trial, freedom from arbitrary interference with one’s privacy and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association; freedom from discrimination; the right to own property).”

The full text can be found in the annex to this document. Source: http://www.sojust.ro/sistemul-juridic-din-romania-raport-independent/5-human-rights.html  

Recommendations:  

• We recommend that OSCE will support an educational program for the countries with a “young” democracy that will explain the right to be different in a modern and free society. That will remove a part of the pressure that the magistrates have to face and will ensure a fair trial for the people that are part of spiritual and religious minorities.  
• We recommend Romania to review the grounds for the trial against the members of MISA yoga school and to ensure a fair trial to them. As a consequence of the above mentioned problems we recommend a public debate (maybe using the “lessons” from this particular case) in order to educate the public opinion of the dangers of intolerance regarding the fair act of justice.  

Link to the conference document: http://www.osce.org/documents/odihr/2007/10/27030_en.pdf

The police forces’ internal video recordings from raids conducted 18th March 2005 towards 16 private collective homes are shown on TV the same evening, displaying innocent people half asleep half naked in humiliating positions enforced by the Special Forces conducting the raids. Private diaries and photographs taken during the raids are published in mass media only days later. Transcriptions of private telephone conversations bugged motivated by reason of national safety are appearing in media.

In continuation this summer of 2007, the prosecutor’s indictments documents are published in media the same day they are given to the court.

 The mass medial aggression, fuelled by close collaboration with politicians, police and prosecutors endangers the separation of power as it in the domestic culture creates a preconceived conviction.

A country side police officer acting on his own initiative twice apprehends a young woman by the request of the woman’s mother and brings her to a psychiatric hospital. Second time she is forced into treatment of schizophrenia with heavy medicines. When asked about the grounds on which to act the police officer replies that “Every one knows that this yoga is dangerous. I did her a favour to bring her out of it.”

A young judge working with reforms in the Ministry of Justice under former the Minister of Justice Macovei stated that methods and attitudes built up under the Ceausescu regime are so deeply rooted in the judges and prosecutors who were active in this period, that he does not believe in de facto changes before a change of generations.

When the Supreme Court of Sweden in 2005 denies extraditing the leader of MISA to the Romanian authorities, it is motivated also in concern of the general hostile attitudes created by this close collaboration between state and mass media.

The MISA case is not unique. Here in Poland is an almost parallel case with a spiritual movement called The Himavanti Fraternity.

In Scandinavia the publishing of caricatures of the Prophet Mohammed in Danish media raised the question of freedom of speech in relation to spiritual tolerance without any actual result.

 In Sweden there is an ongoing debate regarding if non governmental schools run by organisations with a spiritual praxis different than the generally accepted should be allowed, even when they comply with the curriculum stated by the Swedish Ministry of Education.

 These and many other question questions can by their nature not be solved within a culture without foreign perspectives.

Soteria recommend the establishment of a commission under the OSCE/ODIHR representing directly the diversity of authentic spiritual praxis followed in the OSCE participating countries. Such a commission would as needed issue recommendations in the following areas: 

 - Recommendations to parliaments on legislative matters to secure the respect of non-domesticated spiritual praxis. 

 - Recommendations to the national organs regulating mass media in order to hinder campaigns and aggressions towards any specific spiritual praxis based in spiritual xenophobia. 

- Recommendations on how to open the educational system in order to provide the pupils a tolerance towards lives based in different spiritual praxis.

Link to the conference document: http://www.osce.org/documents/odihr/2007/09/26774_en.pdf