The National Anticorruption Directorate’s (DNA) announcement regarding the closing of the controversial Microsoft dossier – because the new prosecutor that took over the dossier noticed that the suspects were indicted for crimes that expired under the statute of limitations – has sparked, as expected, a wave of reactions from the Prosecutor General, Justice Minister, politicians, but also from DNA Chief Prosecutor Codruta Kovesi.
The DNA on Thursday indicted businessmen Claudiu Florica and Dinu Pescariu for money laundering in the Microsoft case after already having sent others to court in the same case. Several final convictions were handed down in the Microsoft 1 overpriced licensing case.
On the other hand, DNA ordered on Thursday the closing of that part of the case against former ministers Dan Nica, Silvia Adriana Ticau and Alexandru Athanasiu, who were being investigated for abuse of office.
According to DNA, the case was closed because the limitation period had run to end.
“The general statutes of limitation for abuse of office is 10 years. The date of the last misdemeanour is 21.10.2004, when Government Resolution No.1778 / 21.10.2004 was adopted and from where the general statutory limitation of criminal liability began to run (and not from the date the actual damage was incurred, which was April 15, 2009, the moment the last instalment under contract No. 0115RO / 15.04.2004 was paid) – as per Ruling No. 18 / 30.01.2014 handed down by a five-judge panel of the High Court of Cassation and Justice in the case No. 4963/1/2013 regarding the time the abuse of office was actually perpetrated,” DNA said.
Anticorruption prosecutors have previously dropped charges in the Microsoft case against former ministers Ecaterina Andronescu, Mihai Tanasescu and Serban Mihailescu for the same reason.
The solution to close the case was ordered on January 8, following the expiry of the statute of limitations for criminal liability.
Apart from Daniel Funeriu, in whose case it was noted he committed no criminal offence, the accusations levelled against all the other ex-ministers expired under the statute of limitations.
On the other hand, Dorin Cocos, Gheorghe Stefan, Dumitru Nicolae and Gabriel Sandu received executory prison sentences in a Microsoft case.
Prosecutor General refers Microsoft case closing to Judicial Inspection over defective procedure
Prosecutor General Augustin Lazar notified the Judicial Inspection over disciplinary offences committed by prosecutor Mihaiela Moraru Iorga, who was in charge of building the Microsoft case.
“The head of the Prosecution Office attached to the High Court of Cassation and Justice had received a report from the Chief Prosecutor of the National Anticorruption Directorate (DNA) on the manner the case generally known as the Microsoft case had been built and the measures taken by the DNA management on July 17, 2017 in connection to this. On September 20, 2017, based on the documents referred by the DNA management on September 5, 2017, the head of the top court’s Prosecution Office notified, as initiator of the disciplinary action, the Judicial Inspection that prosecutor Moraru Iorga Mihaiela had perpetrated the disciplinary offences provided for by Art. 99(t) corroborated with Art. 991(1) and Art.(2) of Law No. 303/2004 on the judges and prosecutors’ statutes (acting on the job in bad faith or gross negligence). The referral concerns several aspects, including the manner the aforementioned case was built,” the General Prosecution Office said in a Friday release.
Mihaiela Moraru Iorga is one of the prosecutors who handled probing in the Microsoft case that was split in three parts.
Justice Minister: Grave managerial negligence concerning the solving of cases within reasonable time
The Justice Minister had a first reaction after the controversial Microsoft case was closed.
More precisely, referring to the closing of the Microsoft case – ordered based on the statute of limitations –, Tudorel Toader stated that it is “a grave managerial negligence concerning the solving of the cases within reasonable time.”
“Grave managerial negligence concerning the solving of cases within reasonable time! Not only did reasonable time for solving the case expired, but even the period of time under the statute of limitations was surpassed,” Justice Minister Tudorel Toader stated on Friday for mediafax.ro.
Kovesi replies: You can’t reproach a chief prosecutor for the closure of a case
On Friday, DNA Chief Prosecutor Laura Codruta Kovesi had a first reaction in the scandal triggered by the Microsoft dossier, stating for Digi24 that the DNA demanded the lifting of immunity of ministers in the Microsoft case because the prosecutor handling the case considered that the statute of limitations is calculated from the date on which the last instalments were paid, the said statute of limitation was not met and the judicial praxis was contradictory, a new Criminal Code and the debate on the most favourable criminal law came into being in 2014. Kovesi pointed out that the way a dossier’s statute of limitations is calculated is strictly the responsibility of the prosecutor handling the case – namely Mihaela Iorga – and that when she noted the situation she notified the Judicial Inspection since she had no other levers in such situations.
Kovesi said she has no reason to resign and explained how the crimes expired under the statute of limitations in the Microsoft dossier.
“It is an isolated case”
National Anticorruption Directorate (DNA) Chief Prosecutor Laura Codruta Kovesi went further in defending herself saying that the situation in the Microsoft file, in which the case against seven former ministers was closed is an isolated case.
“It is a situation we do not want, we did not want it. It can certainly cast a shadow over what DNA prosecutors do, but it is an isolated case and we do not have to generalize. DNA prosecutors do their job correctly. We do not know whether in this case work was done in bad faith or not, because it is an ongoing disciplinary check, but whenever problems arose regarding the conduct of a prosecutor (…) and we considered that the prosecutor made a mistake in one way or the other, we took the legal measures,” Kovesi told Digi 24.
She argued that the institution she was leading showed transparency in this case and publicly presented the situation.
Laura Codruta Kovesi added that she is unaware of the existence of such situations in other cases as well.
She said that the DNA and the prosecutor handling the case can be blamed that for some of the minister the criminal prosecution started several days after the crimes expired.
“It is true that in this dossier the DNA is to blame for the fact that a certain prosecutor started the criminal probe against crimes that expired under the statute and, just like in all situations in which prosecutors broke the law, committed procedural flaws, we applied the legal conditions. There are DNA prosecutors who committed criminal offences and who were investigated, there were prosecutors who committed procedural flaws and I notified the Judicial Inspection. In this case too, the moment we noticed a prosecutor erred, we notified the JI. I have no other legal levers at my disposal in such situations,” Kovesi stated.
She pointed out that the way the statute of limitations is calculated in a case is strictly the responsibility of the prosecutor handling the case. “I don’t suspect her [prosecutor Mihaiela Iorga] of bad faith, nor can I make any kind of statement about her until I have the Judicial Inspection’s results,” the DNA Chief Prosecutor stated.
Kovesi added that EUR 62.5 million and USD 22 million worth of assets were frozen in the four Microsoft cases. “The moment the cases are finalised in court, we will see if the damage will be recovered. So, it’s not true that the whole damage remains unrecovered because this decision was ordered,” Kovesi added.
The DNA Chief Prosecutor claims she does not know what were the criteria that the Justice Minister had in mind when he said that the closing of the Microsoft case under the statute of limitations is “grave managerial negligence,” Kovesi pointing out that: “You can’t reproach a chief prosecutor for a case being closed.”
“I won’t comment on the Justice Minister’s statements, especially since I don’t know what criteria he had in mind when he drew these conclusions, whether he relied on the DNA communique, whether he has information from the Judicial Inspection, but you can’t reproach a chief prosecutor for a case being closed. Had we had the pretence for all cases to be sent to court, we would no longer be talking about the unitary enforcement of the law,” the DNA Chief Prosecutor added on Friday for Digi24.
Asked if she will resign, Kovesi said: “There is no reason for that. When a dossier is lodged with the DNA via a notification, drafting indictments is not called for in one hundred percent of the cases. The prosecutor’s role is to administer evidence, to investigate deeds, to collect evidence concerning a person’s guilt or innocence.”
Prosecutor Mihaiela Iorga: I’m sorry I didn’t withdraw earlier from Microsoft case, there were constraints I cannot prove. Blaming me was probably the simplest way to explain its failure
Prosecutor Mihaiela Moraru Iorga, in whose case the DNA notified the Judicial Inspection regarding the way the Microsoft dossier was handled, stated on Friday evening, for B1TV, that she regrets she did not withdraw from this dossier earlier, because there were allegedly constraints she cannot prove and that blaming her was probably the simplest explanation for the dossier’s failure.
“I reproach myself with not withdrawing earlier from this dossier, because there were constraints I cannot prove,” prosecutor Mihaiela Moraru told B1TV.
She claims that blaming her was probably the simplest way of explaining this dossier’s failure.
“Yes, it was probably the simplest way of explaining the failure of this dossier. I continue to believe maybe it was a mistaken interpretation or lack of knowledge of the law, because it is clear the moment the crime was committed is correctly determined and an incorrectly determined moment of the committal of the crime leads to an erroneous statute of limitations. (…) However, it is clear that in 2015 the High Court of Cassation and Justice analysed the statute of limitations for these persons’ guilty acts and noted they did not expire,” prosecutor Mihaiela Moraru Iorga said. The prosecutor had been dismissed from the DNA but the court decided to have the decision suspended.
Mihaiela Moraru Iorga explained that this concerns two dossiers, one based on a notification that a company lodged in regard its own employees, while the 2013 dossier was opened following a notification lodged by the Prime Minister’s Audit Body.
“In 2010 there was a notification lodged by a company involved in the implementation of these Microsoft licensing contracts. The notification concerned the actions of its employees. Criminal prosecution acts were carried out in the dossier registered in 2010, the criminal prosecution is started in personam, house searches were carried out, a rogatory commission was established, which still operates. The dossier we are talking about today, which was closed based on the statute of limitations, is an entirely different dossier, registered on 21.05.2013 as a result of the notification lodged by the Prime Minister’s Audit Body. This notification concerned guilty acts from 2009. We took note ex officio of guilty acts carried out from 2004 to 2009, which aided the guilty acts committed in 2009,” Iorga said.
Asked when the dossier was taken away from her, Moraru said: “In September 2016. The talks between us on the body of evidence became tenser and I drafted a report on my own initiative, asking for the dossier to be redistributed. In the report, expecting there would be talks concerning the reasons, I said I cannot solve the dossier without an accounting assessment and an IT assessment that would establish a concrete damage.”
She claimed that the damage mentioned was estimative, and for it to be certain an expert should have established that the licences’ market value was lower than the value included in the contracts.
Udrea on the closing of the Microsoft dossier: “How many years in jail should Kovesi get for a damage of USD 67 million?”
After the Microsoft case was closed, ex-Tourism Minister Elena Udrea claims that the case was “smoke and mirrors,” in her view its only goal having been to damage her score in the presidential elections of 2014. Moreover, she rhetorically asked in a Facebook posting: “I wonder how many years in jail should Kovesi get for a damage of USD 67 million?”
“<<The biggest corruption case>> Kovesi was boasting with in October 2014 was just smoke and mirrors. Especially for the naïve people who believed or still believe that the DNA is really fighting corruption! In fact, the only goal for which this dossier appeared, three years old when the scandal erupted, was to damage my score in the presidential elections of 2014. Back then, a week before the voting, my ex-husband was arrested, which meant a terrible blow for my candidacy, which came in addition to my subpoenaing at the DNA, as witness in some case, with all the press – informed by Kovesi – clamouring to film me on the first day of the campaign, and which was followed by an even stronger attack through the appearance of photographs showing me and Alina Bica in Paris, an action orchestrated by Coldea. The photographs meant an even heavier blow, coming just three days before the voting,” Elena Udrea wrote on her Facebook page.
To back her claims, Udrea pointed out that no one apart from her husband was tried.
“The dossier stood still until the crimes expired under the statute of limitations and the money that Kovesi had pompously declared ‘the biggest fraud’ were lost. Well, if that’s the case, isn’t Kovesi’s action abuse of office? Shouldn’t she be held criminally accountable for the damage created by covering up this dossier until the crimes expired under the statute of limitations? If the “independent” ICCJ [High Court] judges sentenced me to 6 years because Bute boxed in Romania and they made me pay his bout, how many years in jail should Kovesi get for a damage of USD 67 million, certain and caused by her acts of corruption?” the ex-minister wrote.
“BOMBSHELL in the Microsoft case! Seven MINISTERS got away scot free because the DNA didn’t realise the crimes expired. The damage stands at USD 67,000,000,” Elena Udrea wrote in the conclusion of her Facebook posting.
PSD’s Stefanescu: It’s mandatory for those who are playing around with people’s lives to be accountable
PSD Deputy Secretary General Codrin Stefanescu stated on Thursday that the DNA’s announcement regarding the closing of the Microsoft case proves that “it is mandatory for there to be in Romania, just like in all European countries, accountability on the part of those who are playing around with people’s lives.”
“The question is who repairs for these people who have been harassed for years in a miserable investigation backed by no evidence, who repairs the period of stress they went through, their health, their public image and the weight that pushing down on the shoulders of these people and their families, their children, their parents, years in which this body – the DNA – harassed them, summoned them, summoned them before its headquarters, under the spotlight, casting a shadow over them, one that has left its mark. What happens with the prosecutors who undertook this filthy dossier, prosecutors that tried to destroy the lives of innocent people, only for them to come up, years later, and announce they closed it and to admit that what they tried to piece together has nothing to do with reality. Aren’t we right when we come up and say that it is mandatory for there to be in Romania, just like in all European countries, accountability on the part of those who are playing around with people’s lives, of those who decide to trample the image of an innocent person?” PSD Deputy Secretary General Codrin Stefanescu stated for MEDIAFAX.