It was publicly admitted that in 1995 the Romanian Secret Services (SRI – the follower of Securitate) restarted to monitor the activity of Gregorian Bivolaru and MISA, as they considered that the organization he founded, as well as himself, threaten the national security. Thus, by wrongly applying the special procedure provided for in the Law for the National Security no. 51/1991, articles 13-15, the phone conversations of Gregorian Bivolaru and other MISA members have been wire-tapped. Following the same illegal attitude, on the 1st of February 1999 the Romanian Secret Services informed the authorities on the perpetuation of offences against state security, such as propaganda in favour of the totalitarian state, provided for in article 166 Penal Code (PC), and the communication of false information, provided for in article 1681 PC. By the resolution no. 500/P/1999 from the 30th of October 2000 the Prosecutors’ Office of the Bucharest Court of Appeal decided not to start the penal proceedings and the complaint was quashed. On the 27th of May 2002 the Romanian Secret Services communicated again to the Prosecutors’ Office of the High Court of Cassation and Justice (Highest Court) the fact that between 1999 and 2002 the persons previously investigated had continued to do in an organized way such actions as alleged in 1999. By the resolution no. 500/P/1999 on the 7th of April 2003 it was again decided not to start the penal proceedings, because there was no evidence of that.
But in 2003 the authorities elaborated the controversial prosecution dossier that resulted in charging Gregorian Bivolaru with the offences of sexual act with a minor, provided for in article 198 PC, sexual perversion, provided for in article 201 PC, sexual corruption, provided for in article 202 PC, traffic with minors, provided for in article 13 referring to article 12 of Law no. 678/2001 concerning the prevention and fight against the traffic with minors, and attempt to illegally cross the Romanian state border, provided for in article 70 of the Emergency Ordinance 105/2001.
As a result of the fact that “it has been ascertained the existence of data and clues that in several places in Bucharest, administered by persons and companies belonging to MISA or to its members, there have been produced and transmitted via Internet pornographic images in order to get illicit returns, viewings of persons recruited to be sent abroad, there have been sent and received emails about the organization and realization of the respective activities and of payments”, on the 18th of March 2004 the Romanian authorities initiated an aggressive and abusive campaign resulting in the breaking into 16 private locations belonging to several yoga practitioners, including Mr. Gregorian Bivolaru.
The Romanian authorities ignored the object of the prosecution dossier on the ground of which the search warrant had been issued, (that is the above-mentioned offenses), and performed a savage search followed by the seizing of tons of personal belonging and even intimate things having no connection with the reason of the search. The persons found at the locations were subject to psychic and even physical torture for many hours. Among these there was also the 17 years old Madalina Dumitru who, after 13 hours of interrogation and forced isolation,was pushed to sign a statement turned later on into a complaint by the authorities, complaint that supposedly accused Mr. Bivolaru of sexual relations and sexual perversions, incriminated by article 198 and 201 of the Romanian Penal Code.
The very next day, on the 19th of March, Madalina Dumitru who had unwillingly been transformed into an injured party, withdrew her statement taken under pressure on the 18th of March and filed a complaint against the abusive behaviour of the prosecutor. The Prosecutors’ Office of the Bucharest Court of Appeal ignored both this complaint and her statement to the press that she hadn’t had sex with Gregorian Bivolaru, and decided on the 26th of March 2004 to start the penal prosecution against Gregorian Bivolaru under the charges of sexual act with a minor provided for in the articles 198 par. 2 and 3 PC and sexual perversions provided for in article 201 par. 2 and 31 PC. The Romanian authorities continued to ignore the position of the “new” injured party and on the 1st of April 2004 decided a forceful gynaecological and anal examination for the girl, who was unwillingly escorted to the Forensic Institute (I.M.L.) by the special intervention police troops (SPIR).
Because all these events had been given extended media coverage, numerous personalities taking the stand to condemn MISA and Bivolaru, on the 28th of March, as a result of contradictory news about the interdiction to leave the country, Mr. Gregorian Bivolaru went to Nadlac border point to check whether this was true or not. Mr. Bivolaru considered this necessary since several radio stations had already announced “Bivolaru has interdiction to leave the country”, although the interdiction was meant for Gabriel Bivolaru, former deputy of the ruling party who had been condemned to 5 years’ imprisonment for bank fraud.
The reason for the journey to Nadlac was a planned trip to Hungary. Thus, in order to avoid a possible situation leading to the conclusion that he intended to escape, Bivolaru and a friend, yoga practitioner, Farkas Ferenc Zsolt, tried to get information on his possible interdiction to leave the country from an acquaintance of the latter, a customs officer at the Nadlac customs.
In the customs house, Gregorian Bivolaru and Farkas Ferenc Zsolt were retained and taken into custody. Afterwards they were taken out of the building, photographed and bodily searched. It was decided hastily to start the penal prosecution for offences provided for in article 70 and 71 of the Emergency Ordinance 105/2001 and a 24 hours’ detainment ordinance was issued. Within 24 hours, which is on the 29th of March 2004, the competence of the Prosecutors’ Office of the Arad Tribunal was declined in favour of the Prosecutors’ Office of the Bucharest Court of Appeal, the dossier with the above-mentioned offences was connected with the one under investigation at the Prosecutors’ Office of the Bucharest Court of Appeal. The two were informed of the charge, they gave statements, the start of the penal action for all these offences was decided, after which the proposal of pre-trial incarceration was made in writing.
The Prosecutors’ Office of the Bucharest Court of Appeal sent the dossier and the proposal of pre-trial incarceration to be solved by the Bucharest Tribunal. The arrest warrants no. 107/U.P ad no. 108/U.P were issued on the 30th of March for Gregorian Bivolaru and respectively for Farkas Ferenc Zsolt. Both appealed.
The Bucharest Court of Appeal in the appeal decided to release both of them and to send the proposal of pre-trial incarceration to be re-judged by the 5th District Court of Law, the competent instance in relation with the offences for which the pre-trial incarceration had been decided.
Although according to article 350 of the Penal Procedure Code the release is to take place immediately, Gregorian Bivolaru was illegally retained 10 more hours in the custody of the Police General Inspectorate.
During the same day, the 1st of April, the dossier was sent from the Bucharest Court of Appeal to the 5th District Court of Law, where on the very same day the dossier no. 3989/2004 was formed and the court attempted to judge the proposal of pre-trial incarceration in the Council Chamber.
Because of the authorities hurry to judge the proposal of pre-trial incarceration, while the defendants had not yet been released, and also having in view the extensive media coverage of the case, Gregorian Bivolaru’s lawyers rejected the whole instance of the 5th District Court of Law. As reasons for rejection were invoked the suspect hurry, while the celerity could no longer be explained by the expiry of a preventive measure and moreover, and the impressive number of procedural actions that had been conducted within few days, which gave the lawyers no time to prepare the defense. These were considered as a strong proof of the political pressures, which would hinder the court from objectively judging the case.
Judging the exception request in the dossier no. 1881/2004, the Tribunal stated in the Conclusion pronounced in the Council Chamber on the same day, the 1st of April, that there was no incompatibility, and denied the exception request.
Against the conclusion issued by the Bucharest Tribunal the lawyers 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 defence.
By the Conclusion on the 31st of May 2004, the 5th District Court of Law denied the proposal of pre-trial incarceration of defendant Farkas Ferenc Zsolt and admitted the proposal of pre-trial incarceration of the defendant Gregorian Bivolaru, and issued the warrant of arrest no. 69/U/2004 on the 31st of May 2004 for the offence of sexual act with a minor.
On the term of the 3rd of June 2004, the list with the day’s causes was posted without the names of the judges. A few hours later, when the dossier of Gregorian Bivolaru was to be judged, another list appeared, with other judges then the ones in the panel that performed the judging session.
Due to the repeated refusals of the Bucharest courts to take into account any request or argument in favour of Gregorian Bivolaru, and due to the above-mentioned unjustified change of the panel of judges and the secrecy around its composition, the lawyers took to exception the panel of judges.
Obviously the Bucharest Tribunal found no incompatibility ground and denied the exception request on the same day; appeal is declared immediately after this decision in secret session.
The Bucharest Court of Appeal in the appeal dossier no. 1938/2004 accomplished a mere formality by denying the exception as unsubstantiated (Penal Decision no. 969 on the 4th of June 2004).
The Bucharest Tribunal, in the previously contested panel of judges, set as judging term the same day, the 4th of June 2004, for the appeal declared against the pre-trial incarceration, and started the session only half an hour after the dossier’s arrival from the Bucharest Court of Appeal.
Due to the futility of any other request, the deferral of the judging was requested, given the rush in judging such a complex cause, furthermore considering that one of the defendant’s lawyers could not be present, being absent from Bucharest at that time.
None of these aspects was considered relevant for the judging instance; on this ground, the entire Bucharest Tribunal was again taken to exception.
On the 5th of June one judged both the exception request, by the Bucharest Court of Appeal, and the appeal declared against the conclusion that had denied the exception request, by the High Court of Cassation and Justice.
Taking into account the history of the Gregorian Bivolaru’s dossier until the present moment, the instance’s impartiality affected by political pressure, and the impatience of the public opinion reflected in tens of pages in almost all the newspapers asking the arrest of Bivolaru, at this time the decision of pre-trial incarceration of the 5th District Court of Law remained final, in the absence of the defendant who is considered to be absconding.
Due to the fact that clearly he was not given the legal chance to defend himself and thus prove his innocence, Gregorian Bivolaru took the chance of running to Sweden, an older democracy and claim his innocence there.
Mr. Gregorian Bivolaru asked for political asylum in Sweden on the 24th March 2005. Mr. Bivolaru was called back to an investigative interview at the Swedish Migration Board in Malmo, on the 4th of April 2005. During the second appearance in the procedure of the asylum request, the MISA mentor was arrested by the Interpol due to the international warrant issued by the General Police Department Bucharest almost a year before. Gregorian Bivolaru remained to custody at the Malmo Police Department.
Mr.Bivolaru's lawyer made several requests for him to be released pending trial, requests analyzed by the Court of Malmo on the 29th of April, on the 23rd of May and on the 2nd on June 2005. All these requests were declined.
During this period Mr. Bivolaru could be contacted only a few times by his friends. The meetings took place under strict police surveillance.
The asylum case was received by the Department of asylum at the Swedish Migration Board who also have appointed a public counsellor for Mr. Gregorian Bivolaru. Further information regarding the case has been requested by the authorities, indicating that the case is already undergoing investigation.
Friday the 15th of April 2005 Romanian police made it official through a press release that they had issued a new warrant in order to strengthen the extradition case.
The trial in Sweden was heard in utmost security between 11 and 12 October. The audience was only allowed access in the trial room after minute security searching. Electronic devices were not allowed and the audience hall was separated from the Court board and the mentor of MISA by an armoured glass. Gregorian Bivolaru was asked whether he agrees public hearings, which he did, but he asked for the journalists not to be allowed recordings.
First part of the hearings, Gregorian Bivolaru was announced the accusations to support the extradition request submitted to the Swedish Court by the Romanian authorities. He gave specific answers to each accusation, pointing out these are but political framings plotted by the former prime minister Adrian Nastase. As concerns the alleged affair with Madalina Dumitru, Gregorian Bivolaru stated it is mere forgery of those who want to harm him. He related how Madalina Dumitru was forced by the prosecutors to sign a false statement and although she repeatedly wanted to disclose the framing thereafter, the Romanian authorities disregarded her, breaking her right to free expression.
The Swedish Court could therefore learn about the warnings he had been repeatedly given along years, which said he would get in trouble unless he closed the Yoga School. He told about the rulers in power in 1994, who threatened him he would be destroyed he and the yoga school unless he closes the yoga classes. Then he described the fire set on his house in February 1995 and the aggressive media campaign against him and the Yoga School.
Madalina Dumitru was examined in the second day of the hearings. She stated that she never had sexual intercourse with Gregorian Bivolaru, it was all framed accusations which she did want to disclose, but nobody would consider her statement. As she described the aggressive attitude of the authorities against her, her deposition had a strong impact upon the Court. The fact that the gendarmes did not show their identity when they performed the searching and acted like burglars exceeded the judges imagination. Also she mentioned that it was not Gregorian Bivolaru her yoga teacher, but Claudiu Trandafir.
On the October 21st 2005 – by the decision no. 2913-05, The Supreme Court of Justice in Stockholm has declined the requests for extradition submitted by the Romanian authorities and established that Gregorian Bivolaru cannot be send to Romania because he would not have a fair trial there and might be inflicted serious persecutions due to his religious beliefs.
As the file went to the Court in Romania also, the truth started to come out and pressure was put on the judges to follow the political point of view. But because of the European attention exercised by MEPs like Jens Peter Bonde, Helmar Broke or Ulla Sandbæk, the justice system was pushed to the right track and on the 23rd April 2010 the Sibiu Court ruled the acquittal of Gregorian Bivolaru in the case no. 405/85/2005. The Prosecutor's office immediately formulated an appeal, contesting the Court's decision.
On the 14th of March 2010, The Alba Iulia Court of Appeal rejected the appeal formulated by the Sibiu Prosecutor’s Office against the decision of acquittal of Gregorian Bivolaru thus certifying the fact that the acquittal of Gregorian Bivolaru is correct and legal and therefore remains valid.
The main evidence given by the prosecutors in a file in which Gregorian Bivolaru is accused is the transcription of phone conversations between the defendant and the alleged guilty party. For years, courts of law have solicited the Prosecutors’ Office to file the authorizations that have underlain the interception and recording of these conversations, but this was repeatedly refused for the reason that the documents would be classified.
In the first court of law the defendant was acquitted, as shown before and this was also the case in the appeal. In the third and final judgment, in the last day of the trial which was on the agenda of the High Court of Cassation and Justice (on the 16th February 2012), the Prosecutors’ Office decided to put to the file some evidence which could not be fought against since it was the last day of the trial. But instead of proving the Gregorian Bivolaru's guilt, it undoubtedly shows the results the intrusion of informational and judicial organizations in the private life of citizens.
The documents they brought were two warrants. Both of them were issued based on Law 51/1991 regarding Romania’s national security, but from the content of the respective criminal file one can only derive accusations about common law, without any accusations regarding threats to the Romanian state. As a consequence, all interceptions were illegally done.
The warrants in discussion were: Warrant no. 002061 from the 13th of November 2002, assumed and signed by prosecutor Ilie Piciorus, for authorizing the interceptions of phone conversations in the period 15th of November 2002, 15:00 – 14th of February 2003, 15:00, and Warrant no. 00923 from the 9th of May 2003, signed indecipherably, for authorizing the prolongation of the interception in the period 13th of May 2003, 15:00 – 12th of August 2003, 15:00. The second warrant is a prolongation of a warrant that does not exist.
We are talking about a principle here. We cannot accept, in a state of law, an algorithm of the type: issuing warrants for intercepting phone conversations in the absence of criminal prosecution – constructing criminal files according to various recorded phone conversation – allotting financial and human resources along several years, for trials in which the main evidence is the transcription of an illegally recorded phone conversation. Abuses of this type must be indicated and sanctioned in order for justice to function properly”, declares Gabriela Ambarus, president of the M.I.S.A. Association.
The Law no. 14/1992 expressly forbids the departments within the Romanian Information Service (S.R.I.) to commit acts of criminal investigation, including the gathering of evidence as the main activity of criminal investigation.
Furthermore, Law no. 51/1991, in articles 16 and 21, expressly forbids that the activity of obtaining information required by national security, and obviously its usage, infringes upon the private life, honour or reputation of citizens, incriminating as a criminal offence the usage through publication (including in a criminal process characterized by publicity) of such information that was known incidentally in the activity of gathering data required for national security reasons. In Gregorian Bivolaru’s case, certain information of a highly intimate nature has been illegally used as evidence, and its usage in a public trial brings serious prejudices to the honour and reputation of the person it involves.
After the acquittal in the Court of Appeal, the Prosecutor’s Office made an appeal to the Supreme Court of Cassation and Justice of Romania. The reasons for appeal have been presumed serious mistakes de jure, resulting in what prosecutors deemed as a wrong decision for acquittal and wrong application of the provisions of art.88 of the Criminal Code. The appeal was adjudicated by the panel of judges including Ionut Matei, Ioana Bogdan and Cristina Rotaru, within the criminal division of the High Court of Cassation and Justice, deciding the following: „Accepts the appeal formulated by the Prosecutor’s Office attached to Alba Iulia Court of Appeal against the criminal decision issued by Alba Iulia Court of Appeal. Quashes the decision appealed as well as the criminal sentence of the Law Court of Sibiu and decides the case retrial. Decision is definitive.”
The abusive nature of the decision is given by the following:
Judges Ionut Matei, Ioana Bogdan and Cristina Rotaru have exercised their function in bad faith through the following actions:
A. In the formulation phase of grounds for appeal, the Prosecutor invoked some reason which was not taken into account, while the panel of judges have considered another reason for annulment. So, although an appeal’s judgment implies that it should analyze the reason why the appeal was raised, judges quashed the acquittal decisions for reasons other than those legally raised initially. They didn’t even pronounce themselves on those reasons. And neither debated with the parties, as required by law, the new reasons they had in view.
B. The same judges who overturned the decisions of acquittal, although expressed a clear opinion against the defendant by listing the reasons for overturning the decisions of acquittal were the ones who were assigned to re-trial particular case. In fact, it means that the trial was assigned to those who already made a decision and expressed of condemnation (by annulling the acquittal verdicts).
C. At the last hearings they questioned the injured party Madalina Dumitru, although the law provides that during the appeal trial, except the hearing of the defendant other evidence cannot be given. Only in a later stage after the decision over the appeal was made, after scrapping previous decisions, the court has the possibility for such hearings in the explicit stage of the retrial.
D. The motivation for the decision of cassation lacks legally binding elements, on which judges from Sibiu and Alba-Iulia already ruled, and which had to be clarified whether or not they remained valid (trial termination, prescription, etc.).
E. Although it was allowed to file in the last minute an evidence of the prosecution, judges have not granted the defendant an opportunity to defend himself.
The new evidence consisted in two mandates authorizing the interception of defendant’s telephone calls, issued before the prosecution, under Law no. 51/1991 on national security in the years 2003-2003, by the Prosecutor of the High Court of Cassation and Justice, at the request of SRI, and unlawfully used in this case in which defendant is prosecuted for common law offenses. This evidence was rejected by the court of first instance to be unlawful and the court of appeal upheld that solution.
The approval of the submission by the representative of the Public Ministry, at the final appeal hearing in February 23, 2012, of the declassified interception warrants (after eight years of inquiry conducted by the independent courts who requested the declassification and submission of this information, and the refusal of the evidence requested by defense council led the defendant to the impossibility to make the defense and to discuss the contradictory evidence in serious violation of defendant’s right to a fair trial protected by art. 6 of the European Convention on Human Rights.
Another serious abuse consists in the magistrate’s refusal to present the judgment in open court. Provisions of Art. 310 PPC are: "The judgment is pronounced in open court by the president of the council assisted by the registrar."
However, paradoxically, without having been delivered, news about the solution in the "Bivolaru" case have been circulating since early that evening on the main television news channels, starting with 21.00.
In other words, the defendant and the defense council learned informally, from television, the solution in the case, journalists being informed by representatives of the High Court of Cassation and Justice directly about it, while lawyers and other parties present at the High Court of Cassation and Justice were not.
The fact that the members of the panel explicitly refused to make delivery in public hearing in Case no. 405/85/2005 is a very serious misconduct, a flagrant violation of the Code of Criminal Procedure and an unacceptable behavior, full of contempt towards justice, lawyers, parties in the case and the public interested in the outcome of the case, all of them waiting over 12 hours for the magistrates to fulfill their professional duties.
The issue was raised in a request note for communication of public information, registered under no.13805 dated 26.04.2012 the response to which stated that indeed the decision was not given in a public hearing, and that the Superior Council of Magistrates do not consider that an abuse, despite the fact that legislation provides that all decisions that were not proclaimed in a public hearing can be subjected to an absolute nullity.
Another misconduct is that the three judges delayed repeatedly and without reason the decision in the File no. 405/85/2005.
Appeal debate took place in public session on 23.03.2012, at that time the delivery was postponed for 08/03/2012. Subsequently, there have been another 3 delays in delivery on the dates 21/03/2012, 29/03/2012 and 12/04/2012, the decision being given after an interval of 49 days. The repeated unreasoned postponing of decision, is a violation of Art. 306 CCP, which provides that: "Deliberation and judgment are made soon after the debates. For good reasons, deliberation and delivery may be delayed up to 15 days. " Such delays seem the more abusive, especially since the three members of the panel's decision was the cassation by holding for retrial, by the same panel, a decision that could be delivered in due time.
The members of the court violated the provisions of art. 310 CCP which provides that: "the judgment shall be drafted not later than 20 days after delivery.", in this case the deadline being on 02.05.2012.
Thus, although the time limit concerned to start retrial on the merits of the case by the High Court of Cassation and Justice was established on 24.05.2012, the panel delayed much over the legal term the motivation and judgment drafting, which was filed with just two days before the first hearing which violated the right to an effective defense.
The first term of the re-trial was set very shortly after the decision of annulment was announced, thus the defense council was given little time to study it and prepare their defense. The defense council considers abusive and in bad faith that the terms of sessions were given such a short interval (7 days initially, on 1.06.2012, and amended to 14 days, 07.06.2012, at the motivated insistence of lawyers) while in most cases at the same hearing there were granted reasonable time intervals, some even in September 2012. This decision shows the determination to condemn.
Such a term makes impossible for the lawyers to make an effective defense. It provides that, as mentioned above, judges have motivated their decision just two days before the decision to quash, while holding for retrial by the court of appeal, and from the motivation it does not appear what will be happen at the next hearing date, although the court had a legal obligation to clarify this.
Another disciplinary misconduct is the lack of motivation for cassation, decision no. 1131 of 12.04.2012.
Although that decision was ordering the cassation of two decisions broadly motivated by the first court and the appeal court that decided the cease of criminal trial against the defendant on 8 supposed crimes, the high court has not motivated at all in fact the reasons that led to the quashing of the decision appealed, so the only reason that may indirectly transpire from this omission is unlawful embrace of a solution to dispose themselves of judgments of acquittal. In this context the meaning of Article 6 of European Convention on Human Rights also includes the obligation for the judges to give reasons for their decisions.
Another abuse refers to the aggressive behavior of judge Matei Ionut during the hearing on 23.04.2012, which had an undignified attitude during trial against the lawyers that provided legal assistance to the parties concerned and in the file.
The stunning abuse on June 6th 2013, when the same judge canceled his own decision to hearing the defendant by rogatory commission in Sweden.
This unworthy attitude has affected the defense council, who were challenged by the harsh tones, interrupted in the steps they took, being treated with contempt and irony. Moreover, such situations in which judge Ionut Matei does not show a dignified, civilized and impartial attitude during the hearings have been repeatedly adopted also in media, leading to harassment and slandering in society of yoga practitioners.