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September 29, 2020
INTELLIGENCE JUSTICE POLITICS

The SRI-PICCJ protocol raises vehement reactions in the public space. Polemics between former and incumbent DNA Chief Prosecutor. UNJR and AMR ask the General Prosecutor’s Office and SRI to publish all the protocols, and the CSAT to make public all the issued decisions

Former DNA Chief Prosecutor Daniel Morar says he did not implement SRI-PICCJ protocol: I told Mrs Kovesi that some provisions break the law

 

Former National Anticorruption Directorate (DNA) Chief Prosecutor Daniel Morar told journalist Sorina Matei that, as soon as he was made aware of the protocol between the Romanian Intelligence Service (SRI) and the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ), he informed Laura Codruta Kovesi, Prosecutor General at the time, that he will not observe the protocol since some of its provisions are breaking the law.

“In early 2009, in my capacity as DNA Chief Prosecutor, I received, for compliance, in the form of a classified document, the protocol of collaboration concluded by the PICCJ and the SRI. We’re talking about the document that was declassified and made public last week. At that moment, after reading it, I talked with Prosecutor General Laura Codruta Kovesi by phone, telling her that I do not agree with such a protocol, considering that it supplements the Criminal Procedure Code and some provisions are even contrary to the law. She told me that that is the decision taken and the protocol must be observed. I told her that neither the DNA prosecutors nor I will observe and apply this protocol. This is the reason I didn’t make the DNA prosecutors aware of the protocol, ordering solely that it be sent to the archive within the institution’s compartment for classified documents,” former DNA Chief Prosecutor Daniel Morar stated for Sorina Matei’s blog, http://sorinamatei.ro.

The former DNA Chief Prosecutor claims that, as soon as the protocol came into force, all SRI notifications started to arrive at the National Anticorruption Directorate via Laura Codruta Kovesi’s office, bearing her signature.

“Starting in February 2009, all notifications drafted by the SRI were transmitted to the DNA solely through the Cabinet of the Prosecutor General, bearing her signature, unlike previously when the notifications that were relevant for the DNA’s prerogatives were sent directly to it. Each SRI notification was accompanied by an address asking us, in line with Article 6 of the Protocol, to communicate the way the intelligence included in the notification was used. This is how the DNA prosecutors to whom these notifications were allocated found out about the existence of the protocol concluded by the PICCJ and SRI, however without knowing its content. The chiefs of sections asked me about this obligation. I confirmed that a protocol was concluded between the two institutions, but we will ignore it and, consequently, we will not communicate the way the intelligence received from the SRI will be put to good use. Consequently, all notifications received from the SRI, both those that could not be used and those that were used in or through the opening of criminal dossiers, were archived, in line with the DNA’s internal procedure in force at that moment, based on the order of the case prosecutor, within the compartment for classified documents, without performing the feedback mentioned under Article 6 of the Protocol,” Daniel Morar added.

He says that, during his term in office, the transcription and reproduction of the wiretapped phone conversations was carried out only by the prosecutor or the police officers, there being no mixed teams.

“For as long as I led the DNA, there were no joint working teams with the SRI in the criminal probe activity. That was no possible, since the SRI officers did not have, according to the law, prerogatives in the criminal probe. Consequently, there were no “standard forms in the form of tables” that, based on the protocol, the prosecutors were obliged to sign either. (…) The transcription and reproduction of the wiretapped phone conversations, even in the dossiers in which the SRI was conducting the wiretapping, was carried out only by the prosecutor and/or the police officers, since, according to both the Criminal Procedure Code dating from 1968 and the Criminal Procedure Code that came into force in 2014, the writing down of the technical monitoring activities could be made only by the prosecutor or by the criminal probe body,” Morar stated for http://sorinamatei.ro. Daniel Morar led the DNA in 2005-2012. Since 2013, Morar has been Constitutional Court judge.

 

Kovesi: DNA-SRI protocol was enforced during Daniel Morar’s stint too, it was enforced for years by thousands of magistrates, nobody noticed anything illegal

 

DNA Chief Prosecutor Laura Codruta Kovesi stated on Tuesday, for EuropaFM, that the DNA-SRI collaboration protocol was enforced when Daniel Morar was at the helm of the DNA too, it was enforced for many years by magistrates and nobody, not even Daniel Morar, denounced anything illegal in the protocol. She added that the protocol was a protocol of collaboration between institution, not a protocol of collaboration, and that “it did not give added prerogatives to these two institutions but sought to create unitary practices,” emphasising that SRI officers were not carrying out activities within the criminal dossier but only the technical activities stipulated by law.

The DNA Chief Prosecutor explained that when the protocol with the SRI was drafted, back in 2009, a working group was set up, consisting of prosecutors from several structures.

“At first, a draft protocol was devised, observations and modifications were brought to it. Then, with Daniel Morar’s approval, this protocol was photocopied (…) and thousands of magistrates enforced it for years. Nobody, not even Daniel Morar, complained that there was anything illegal in this protocol,” Kovesi pointed out.

She added that this was a protocol of institutional cooperation, not of collaboration, the latter entailing something entirely different juridically speaking.

“The notion of mixed team does not exist in this protocol, nor is there the notion of collaboration, but of cooperation. (…) Of course, it [the protocol] was necessary. In 2009 there were prosecutor’s offices that did not have a voice recorder, there were no wiretapping teams within prosecutor’s offices. The need for such a protocol and for harmonising the procedures was felt. It’s not the prosecutor’s fault that at that moment the wiretaps were made exclusively by the SRI, as established by the CSAT. At that moment, solutions had to be found in order for us to fulfil our obligations. This protocol did not give added prerogatives to these two institutions but sought to create unitary practices,” the DNA Chief Prosecutor stated.

She added that the SRI officers were not carrying out activities within the criminal dossier but only the technical activities stipulated by law.

“The SRI officers were not administering evidence, were not hearing witnesses, were not carrying out any kind of activities within the criminal dossier, they simply had specific, technical activities stipulated by law. When the prosecutor was asking for surveillance to catch someone red-handed, this joint team was formed – the prosecutor could discuss, have a dialogue with the officers carrying out the surveillance. (…) There had to be a dialogue. This activity couldn’t be done by the prosecutor alone, so this protocol established the limits and the prerogatives of each member. What I’m saying is that the notion of mixed team does not exist within this protocol, nor the notion of collaboration, the notion of cooperation does,” Kovesi pointed out.

 

Kovesi: Requests under protocol, signed by Morar; DNA, SRI co-operated before 2013

 

She added that DNA had co-operated with the Romanian Intelligence Service (SRI) before 2013 as well, as requests under the protocol between the two bodies were signed by her predecessor Daniel Morar himself.

“DNA co-operated institutionally and in writing with SRI under their protocol signed in 2009. The DNA archives have showed that the protocol had been implemented by the National Anti-Corruption Directorate in its activity even before 2013. Requests under the protocol are signed by the Chief Prosecutor Daniel Morar. The protocol was sent to all the DNA departments; prosecutors applied it, the only observation made in 2009 was that direct communication between DNA and SRI was being sought, instead of thorough the attorney general. Virtually, a direct protocol between DNA and SRI was being sought, and not a protocol for all the prosecution offices,” said Kovesi.

She added that her predecessor could have terminated the protocol, especially since he was delegated to the position of attorney general in October 2012.

“Let’s not forget that Mr Morar was delegated, and he started carrying out the duties of an attorney general in October 2012. Had there been provisions running contrary to the law, he could have certainly denounced this protocol, especially because he had all the powers of the attorney general. But prosecutors with the Public Prosecution Service kept on following this protocol after October 2012 as well. It is important to say that when this protocol was signed, a working group was set up which drafted the protocol, the draft protocol was forwarded to the prosecutor’s offices to gather their points of view to have their observations included therein. The protocol was applied by thousands of prosecutors for years. Nobody has sent any notification that this protocol would include provisions that are not in accordance with the law, because this protocol is drafted strictly in accordance with the law and does not provide for additional rights, additional obligations for any of the bodies involved,” added Kovesi.

 

PM Dancila on declassification of prosecution-intelligence protocol: I think we need to reach zero point for society’s health

 

Prime Minister Viorica Dancila said on Tuesday, in the context of the declassification of the  protocol between the Public Prosecution Service and the Romanian Intelligence Service (SRI), that a “zero point” has to be reached for “society’s health” and increased confidence in public bodies.

“I think we have to get to a zero point and I think that for the health of society, for increasing trust in public bodies, we need to see everything happening so that we get clear about many things that have appeared in the public space. I believe it is necessary for us to do so and, as you know, I have even publicly asked for declassification,” said Dancila responding to how she sees the declassification of the document and whether or not, in her opinion, declassifying other interinstitutional protocols is needed.

 

Traian Basescu: During Kovesi’s stint, DNA was placed under SRI’s control. Morar was running everything by the Criminal Procedure Code

 

Ex-President Traian Basescu has not given up the idea of writing a book about his terms in office. He has stated that he did not know about the protocols, but he did know the tensions between the SRI and the DNA led by Daniel Morar.

Ex-President Traian Basescu stated for B1TV that he was never informed about the existence of a protocol or about its content. He says that incumbent President Klaus Iohannis did not know about the SRI-PICCJ protocol either.

Asked whether he has anything to reproach himself with in the protocol scandal, the ex-president replied: “What should I reproach myself with? Did I request them? Protocols must exist between institutions, let’s make that clear, but they must be legal! (…) I’ll write in my book everything I reproach myself with. It’s a good thing I had the intelligence not to write it immediately, because there were many willing to get me to dictate to them the book on my terms in office. I’m still waiting, because there are still many things that have to surface.”

Traian Basescu also stated that, at one point, when he was President of Romania, he was forced to mediate a dispute between Daniel Morar and the SRI, caused by the way in which the Service was operating. He pointed out he had to side with Morar because his arguments were linked to the Criminal Procedure Code.

“There were formidable tensions due to the SRI’s modus operandi. At one point, I mediated and I sided with Morar. It started from intelligence reports too, from the way intelligence was being sent to the DNA, but don’t ask me about the precise reasons because the discussion took place in my office and I’ll never tell you what I discussed in my office. There was Maior and Coldea on one side, and Morar on the other. It concerned intelligence reports and wiretaps,” the ex-president stated.

Aked why Morar and Maior were not getting along, Basescu said: “Morar was running everything by the Criminal Procedure Code. Morar’s arguments had to do with the Criminal Procedure Code.”

“Unfortunately, if during Morar’s stint the DNA worked while observing the Criminal Code, during Kovesi’s stint the institution was placed under the SRI’s control,” Traian Basescu added.

 

Daniel Morar replies to Kovesi: CSM must decide which are the consequences of the protocol in judiciary

 

Former head of DNA Daniel Morar mentioned on Tuesday that since the protocol concluded between the Public Ministry and SRI was confirmed, CSM must analyze the consequences of this document in judiciary, as the competent authority.

“Starting from the fact that the existence of this protocol was confirmed and its provisions are now known/declassified, as a former DNA Chief-Prosecutor, I believe that the competent authority, the Superior Council of Magistracy, must analyze and decide on the substance and consequences of this protocol within the activity of the judiciary. From my point of view, this is the key element of the matter right now, not the fact that the protocol was implemented by thousands of prosecutors, as the signatory of the protocol says. Implementing the protocol by the prosecutors activating on the hierarchical subordination principle cannot be an argument that fades/removes the substantive discussion – drawing up, issuing and approving/signing this protocol” Daniel Morar stated for the blog of the journalist Sorina Matei.

The former head of DNA also explained that as far as he is concerned, he never asked for the conclusion of a protocol with SRI, and he never signed any collaboration or cooperation protocol.

“I only received the protocol signed by Mrs. Kovesi as the General Prosecutor, for compliance. Besides, my position related to the involvement of the intelligence services in the criminal prosecution activities was constant, consistent and notorious. (…) My order and my position as the head of DNA, as long as I was the head of this institution, was not to communicate data from the files that are subject to investigation to SRI, in cases in which there were notes/notices/notifications from the Service., within the 60-day term, as provided by the point 6 of the Protocol signed between the General Prosecutor’s Office and SRI. As long as I was the Chief-Prosecutor, there were no mixed/joint investigation teams with SRI officers, since they had no criminal prosecution attributions, according to the Criminal Procedure Code. As long as I was the DNA Chief-Prosecutor, the recording of the technical surveillance activities was performed according to the provisions of the same Criminal Procedure Code, namely by prosecutors and by criminal investigation bodies”, the quoted source stated.

Daniel Morar also mentioned that his assessment at that time was that one of the protocol’s provisions “is adding and even breaches the provisions of the Criminal Procedure Code”.

The statements came after the DNA Chief-Prosecutor Laura Codruta Kovesi stated on Tuesday that the collaboration protocol concluded in 2009 with SRI was implemented also when Daniel Morar was the head of DNA; the DNA Chief-Prosecutor mentioned that Morar didn’t denounce that there was something illegal related to the protocol.

 

UNJR and AMR ask  the General Prosecutor’s Office and SRI to publish all the protocols, and the CSAT to make public all the issued decisions

 

National Union of Romanian Judges (UNJR) and the Association of the Romanian Magistrates (AMR) are asking the General Prosecutor’s Office and SRI to publish all the protocols or agreements since 1990 until today, and the CSAT to make public all the decisions issued since 1990 on justice.

“We are publicly asking the General Prosecutor’s Office and SRI to immediately publish absolutely all the cooperation protocols or agreements concluded since 1990 until today between any of their subordinated structures. We are also asking CSAT to publish all the decisions issued since 1990 regarding or related to justice. If we want to separate from the communist past and heal the judiciary from the Securitate bad habits and practices, we must start by finding the truth regarding these secret documents that influenced justice since 1990 until today. All the truth!” reads the press release issued by the magistrates’ associations.

According to UNJR and AMR, in a state that pretends to be a democratic one and to respect the separation of powers, justice cannot be made according to secret documents, as in the communist period.

“Whoever claims the contrary has serious deficiencies in understanding democracy, first of all, and the meaning of the respect of the human rights and freedom. The content of the Protocol concluded between the General Prosecutor’s Office and SRI in 2009 confirms the concerns publicly expressed by UNJR and AMR starting from 2015, on the SRI’s involvement into judiciary. The fact that SRI was the one who initiated the declassification of this Protocol is praiseworthy and represents a first step in returning to the democratic normality and bringing back the credibility of this institution” reads the quoted source.

However, the magistrates’ associations accuse the behavior of the representatives of the General Prosecutor’s Office, labeling it as “serious and           inexcusable”, given that they acted based on this protocol for all these years, “which caused effective consequences in the criminal prosecution cases, making the respect of the right to defense and to a fair trial of the indicted persons to be questioned”.

“Beyond the fact that the Protocol is adding provisions to the law and has provisions that are contrary to the law, by accepting it, prosecutors and prosecution offices have ceded their operational independence to SRI, seriously affecting the status of the prosecutors and the citizens’ trust in their activity. This protocol has undermined the independence of the prosecutors like no other document did, yet since 2009 until today, no reaction appeared in the public space from the prosecution offices to challenge the subordination to the SRI. When a prosecutor, who is a magistrate, agrees to be subordinated to a SRI officer, he undermines his independence by himself, seriously compromising his reputation and status” the press release also states.

According to the magistrates’ associations, those who signed and implemented this protocol must assume it and be accountable for it.

“If there are prosecutors who didn’t know its content or who didn’t accept its implementation, they must publicly say this at least at the eleventh hour, otherwise their status will be compromised. UNJR and AMR emphasize once again that the gravity of those in the Protocol cannot be denied, because in a democratic state, justice cannot be made by documents that are not only secret, but also inaccessible to the indicted person and to the judges, but they add provisions to the law and/or provisions that are contrary to the law” reads the quoted source.

 

MEDIAFAX notifies Prosecutor General about crimes committed by the signatories and enforcers of the PICCJ-SRI Protocol

 

MEDIAFAX has sent to the Prosecutor General a notification about potential crimes committed through the signing and enforcement of the protocol concluded by the SRI and the Prosecutor General’s Office, with the following suspicions: encroachment of office, abuse of office, compromising the interests of the judiciary, embezzlement, misuse of funds.

At the same time, the document asks Prosecutor General Augustin Lazar to order the declassification and investigation of the other protocols that the Romanian Intelligence Office signed with other institutions too, and to make them public.

The notification will also be sent to the Supreme Magistracy Council, Justice Minister, Ombudsman, Presidency, House Speaker, Senate Speaker, Senate and House Judiciary Committees, Senate and House Committees on Abuse, Parliament’s Intelligence Committees.

The Prosecutor General is notified to trigger the criminal accountability of all persons that signed and enforced the Protocol, for the committal of the following potential crimes:

Abuse of office – By concluding the Protocol of cooperation, its signatories deficiently carried out their duties, allowing the breaking of legal provisions through the setting up of joint operative teams, thus invalidating the evidence administered in criminal dossiers.

Compromising the interests of the judiciary – By enforcing the Protocol, both its signatories and enforcers (the prosecutors) gave SRI officers unauthorised access to the evidence in the criminal dossiers.

Encroachment of office – Based on the Protocol, SRI officers carried out, with the permission of prosecutors, acts of administering evidence, which was not part of their prerogatives.

Embezzlement and misuse of funds – The implementation of the Protocol entailed the expenditure of public funds that were given another destination, being initially allocated to the institutions that signed and implemented the Protocol for them to carry out the activities stipulated by law.

 

 

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