ROMANIAN JUDGES’ FORUM ASSOCIATION: WHITE PAPER. TELEVISION PROGRAMS IN ROMANIA. MINIMUM INVOLVEMENT OF THE NATIONAL AUDIOVISUAL COUNCIL IN PROTECTING THE DIGNITY AND IMAGE OF JUDGES AND PROSECUTORS

Recent years have been marked by an almost continuous attack against magistrates in television programs, amid an extremely strong anti-corruption campaign until 2018, which resulted in numerous convictions of politicians, magistrates or top businesspersons. As several television owners were the subject of criminal investigations, the prosecutors conducting investigations have been the target of television shows and their fate was shared by the judges who convicted top figures, but also by the magistrates who have fought for the independence of the judiciary in recent years.

The Romanian National Audiovisual Council (CAN), which is the relevant public body in the field, got involved to a minimum extent, and the sanctions applied to protect human dignity or the right of the magistrates discredited and insulted in the television programs to one’s own image were not deterring, but late, applied only after repetitive negative behaviors and inconsistent.

All these aspects are likely to affect the trust of the Romanian public in judges and prosecutors, given that the competent authorities, through their passivity, allow concerted attacks on magistrates, defaming their reputation and mocking their work, considering that none of the alleged acts (either criminal or immoral) were proved in the shows or afterwards. The improper language used in some shows, the suspicions expressed in the public space in relation to the professional or private conduct of some magistrates, which were meant either to affect their reputation, to prevent them from carrying out certain offices (see the Kövesi case, for example), or even to create the premises for removing the attacked judge/prosecutor from the settlement of certain cases, cannot represent a manifestation of the freedom of expression to be encouraged in a rule of law. Aggressive media campaigns against uncomfortable magistrates, not followed by firm, immediate and consistent sanctions, draw attention to the inability of the institutions with responsibilities in the field to defend the values that must be protected in a democratic state.

 

  1. The main sanctioning decisions issued by the National Audiovisual Council in the period 2018-2020 in the cases regarding magistrates.

By the decision no. 390/28.08.2018, CNA sanctioned Antena 3 with a fine of Lei 40,000 (approximately EUR 8,280), noting that, in particular, in the “Sinteza Zilei” programs, only one point of view was presented exclusively and discretionary, namely the moderator’s opinion, which was taken over and repeatedly shared by the permanent gusts of the programs, practically denying the right to any other opinion, as it happened, for example in the “Sinteza zilei” program of 14 February 2018 (Mihai Gâdea to Ionel Dancă: Kiss Kövesi’s ass! Go ahead, kiss Kövesi’s ass!). Ignoring the obligation of impartiality, the show’s moderator took advantage of his position as host of the show, who must ensure that all guests have the opportunity to express any opinion, and tried to impose, by a threatening and offensive attitude, his personal opinion, which was contrary to the opinion of one of the guests. Also, after analyzing the development of the programs broadcast by the broadcaster during 20-24 March 2018, the content of the information presented to the public, the Council found that the moderators or their producers had adopted the same biased position, which clearly lacked objectivity, impartiality and balance in expressing the opinion regarding the settlement of a case in which the parties were the former Chief Prosecutor of DNA (National Anticorruption Directorate), on the one hand, and the broadcaster and some of its moderators, on the other hand. The sanction was applied more than six months after the date of the TV programs.

By the decision no.159/29.01.2019, CNA sanctioned România TV with a fine of Lei 10,000 (approximately EUR 2100), noting that, in the debate show Ediție de seară of 11.02.2018, the image of some persons was harmed by formulating criminal and moral accusations against them, without providing the public with any proof to attest the reality of the alleged facts (Sebastian Ghiță: “Mr. Andronic, Laura Codruța Kövesi wanted, with or without my help, by forcing me, pressing me, threatening me, to overthrow the Ponta government.” Dan Andronic: “Well, she succeeded.”) The sanction was applied about one year after the date of the TV show. The violation of the same legal rule was also found in the “RO la raport” program of 26.09.2018.

By the decision no.224/19.02.2019, CNA sanctioned B1 TV with a fine of Lei 25,000 (approximately EUR 5175), noting that, in the “Controverse” program of 10 June 2018, unproven accusations were brought against a Constitutional Court judge, while the point of view of that person was not presented and the moderator did not firmly request the interlocutor to prove the accusations. It was also found that, in the editions of the “Lumea lui Banciu” show, of 26 June, 15 July and 2 December 2018, the presenter used an insulting language. In this situation, which violates the mentioned regulations, the Council members also noted that, although no minimum proof was indicated to support the accusations, the broadcaster took them as true, displaying on the screen the titles: “Livia Stanciu had a relationship with a leader who was selling drugs”, “Livia Stanciu was receiving drugs at home”. The Council members found that the moderator had not fulfilled his legal obligation under which he should have firmly asked the interlocutor to prove the accusatory allegations, in order to allow the public to assess how justified they were. But, throughout the entire period during which this subject was analyzed, the attitude of the moderator Andrei Bădin was not in accordance with the provisions of Art. 40 par. (4) of the Audiovisual Code, in the sense that he either agreed to the guest’s statements regarding the judge Livia Stanciu, or he created an apparent compliance with the norm, through statements such as: “I understand, well, you accuse her of buying drugs from the market from a leader of this type of group. The SPP found out the story, they disposed of the boy, and they said, ma’am, we’ll supply you from now on … Well, yes, but what you are saying is very serious. You are actually saying now that Mrs. Stanciu is supplied with drugs by SPP… With the management’s consent… Yes, but I repeat, what you are saying is very serious. An intelligence service, in itself, a Constitutional Court judge, in office, former head at the High Court, holds, if she has this sin, well, this vice, to obtain what? To blackmail her with what?”. We ask Mrs. Stanciu to intervene, to confirm, to also ask those at SPP because you included them in this story as well. Well, what you are saying is very serious. This is a service dealing with the security of officials, it supplies drugs to an official of the Romanian State. A judge of the Constitutional Court. The person who gave you the information has showed you, I don’t know, surveillance, a photo, a film, a… Yes, you have some information, we cannot confirm it because I have no idea what it’s about, I don’t know now …. but we are waiting, I repeat, for the evidence from you and the reaction of Mrs. Stanciu and the SPP… Yes, Mr. Vanghlie, we must take a little publicity, maybe you will think about it during the break and also present us some proof in this story. You must.” The sanction was applied more than eight months after the date of the TV program.

By the decision no. 230/19.02.2019, CNA sanctioned TVR with a public summons, noting that the subject on which the public was informed, namely the request to revoke the Prosecutor General of Romania, submitted by the Minister of Justice to the President of Romania, was commented and presented in the show ”România 9” of 25 October 2018 only in the light of the points of view of the guests and the moderator, who actually shared a common opinion, a situation that was likely to affect the impartiality of the information, its balance and the possibility for the public to freely form their own opinion. However, impartiality implies a balance of opinions and points of view, namely to present some opposed ones as well, so that the public’s opinion on the presented subject is not influenced. (Mircea Dinescu: In Romania, we will never find somebody like him! Ionuț Cristache: No one, that’s it! He is irreplaceable. Mircea Dinescu: And Leșe has a very beautiful song. Some guy who cries, his girlfriend left him, it is a very beautiful folk song. I’m sorry I can’t think of a song now. He starts singing: A young man like me/There is no other in the world”, he says. That he feels sorry for her that she won’t find someone as handsome as him. Ionuț Cristache: Replace the young man with a prosecutor like me. Let’s hear it, how does it sound with prosecutor? Mircea Dinescu: “A prosecutor like me/There is no other in the world.” The moderator and the guests have fun in the studio). The summons was applied more than four months after the date of the TV program.

By the decision no.289/12.03.2019, CNA sanctioned România TV with a public summons, noting that, although the recorded material contained accusations concerning DNA, the broadcaster aired them without also presenting the point of view of this public institution and, in the event that it had refused or, following repeated attempts, it could not be contacted, this should have been specified in the program. The Council members also found that, in the edition of 17 January 2019, in the context of broadcasting the recording with the statement of the former prosecutor, Angela Nicolae, she made references to the private life of Mrs. Laura Codruța Kövesi. These aspects were taken over and commented in the show, and the following title was displayed on the screen: HOW WAS KÖVESI CAUGHT WITH THE SPP AGENT ON DUTY.

By the decision no.3390/04.04.2019, CNA sanctioned Antena 3 with a fine of Lei 10,000 (approximately EUR 2070), noting that, given the development of the discussions regarding the subject of the hearing in the European Parliament, on 26 February 2019, of Laura Codruța Kövesi, candidate for the position of prosecutor of the European Public Prosecutor’s Office, and the titles displayed on screen meanwhile, namely: “EXCLUSIVITY: KÖVESI HAS PREPARED HER ESCAPE; WHAT MADE THE MOTHER OF ABUSES BE AFRAID”, their broadcast did not comply with the principles of fair, impartial and in good faith presentation, considering that, in particular the title displayed on screen was likely to induce on the public the wrong idea that the former chief prosecutor of DNA intended to leave the country to avoid the hearing in the criminal cases in which she was summoned to the Prosecutor’s Office at that time.

By the decision no.358/16.04.2019, CNA sanctioned Antena 3 with a fine of Lei 5,000 (approximately EUR 1035), noting that, in relation to the way in which he spoke about Mrs. Laura Codruța Kövesi, the TV presenter did not adopt a conduct of compliance with the applicable legal provisions, and insulting persons is neither a form of criticism, nor a way to settle a debate and it is not useful for public debate, given that the respect for the fundamental rights of the person is guaranteed equally as the freedom of expression. (Mircea Badea: Lady, there are a few of us here, in Romania, who don’t give a fig about your candidature. I am one of them. I really don’t give a damn about your candidature, just saying. So, there are some people in Romania who are not interested at all, absolutely at all, in your candidature. As for me, once again, I would like that all this ridiculous, absolutely grotesque Brussels ends in an apotheosis, with the enthronement of Kövesi as European prosecutor. Because I know that she will go to jail. And I know that she will go to jail because I know what she did (…). Oh, look at that, your fairy went to jail, in Târgșor, you know. Still, the way this creature lies, in connection with some things, how to put it, so easy to prove, such as that thing with the wire tapping, the wire tapping with her, it was proved, that they were falsified. Come on, it was proved that they were not falsified and it is clearly written in the Legal Inspection Report which she also falsely quoted, when she had that press conference, on the Prosecutor’s Office steps, when Tudorel Toader threw her out (…). So, the way she still lies about things that are absolutely demonstrated, proven, obvious (…) makes me worried that she might have some sort of pathological problem. (…) Mircea Badea: So, Kövesi said: well, this is how things are done in this country, this is how it’s done and I deny, even if they catch me in the act, I say: it is not true what you see, I am not guilty of anything and this thing makes me worried, that she might have a problem and a problem or potential problem of a pathological nature. Still, maybe this lady needs specialized help, I’m thinking that maybe she really needs it. (…) I believe that in the prison system, this Kövesi lady will also have the medical care that she, well, in case she needs it.)

By the decision no.576/28.05.2019, CNA sanctioned România TV with a public summons, noting that the show “Punctul culminant”, the edition of 23 April 2019, was presented in violation of the legal provisions of Art. 40 par. (4) of the Audiovisual Code, which require the program moderators to firmly request the interlocutor to prove the accusatory allegations, in order to allow the public to assess how justified they are. The Council considered that, in view of the accusatory allegations made by the guest of the show, its moderator allowed the allegations to continue, without requesting the guest firmly, clearly, as required by law, to provide the public with the evidence supporting the accusations. Thus, for example, the Council considered that Mrs. Elena Udrea’s statement that “in 2014, Maior was supporting Ponta, and Coldea was supporting Iohannis, and obviously, now there are also various candidates who are supported by secret service factions, which in their turn use the judiciary to support their candidates and to sanction them, to eliminate the others, I could not tell you now who they are”, or at the High Court, there are still judges who act on orders, judges who depend on the system, they were either promoted or they are blackmailed and there are also less honest judges who judge without receiving yellow envelopes and without taking orders.” were of a serious accusatory nature, which required a reaction from the moderator, in the sense of firmly requesting the guest to provide the evidence supporting such accusation. In the Council’s opinion, some of the statements made in the analyzed show were not simple critical opinions, within the limits of the freedom of expression, but turned into accusatory statements without also presenting any evidence to support them, therefore the public could not assess how justified the allegations were so that it could freely form an opinion. (Elena Udrea: Well, look at the great success that Mrs. Kövesi had in the High Court, in her appeal against the preventive measure ordered against her. Thus, it is obvious that at the High Court, there are still judges who act on orders, judges who depend on the system, they were either promoted or they are blackmailed and there are also less honest judges who judge without receiving yellow envelopes and without taking orders. But for now, the system continues to use the judiciary and the High Court. I would definitely say that Mrs. Tarcea is part of the system, as the lady before Mrs. Tarcea was. Victor Ciutacu: Stanciu. Elena Udrea: Stanciu, exactly, exactly. Again, the general prosecutor who finally left, who retired, is clearly part of the system. Who would be from the services now? It is more difficult for me to say because, apart from a few leaders whom I knew that they were at the top of the system and who, for now, I see in the background, I mean at least Mr. Dumbravă who was writing on Facebook, live, with a show. He was talking with details, which I think that not even the party to the case knew, about a criminal case.)

By the decision no.761/13.08.2019, CNA sanctioned România TV with a fine of Lei 15,000 (approximately EUR 3105), noting that the show “România la raport”, the edition broadcast by România TV on 25.06.2019, was presented in violation of the legal provisions that require the broadcaster to ensure a correct, objective and impartial information of the public, ensuring a clear distinction between facts and opinions and presenting to the public the evidence supporting the accusatory allegations. Thus, the members of the Council found that, in relation to the accusatory allegations made repeatedly by the guest of the show, Codruța Cerva – A very large network of trafficking in human organs. It is a network that exists for several years in Craiova and they have very, very big implications, so to say. There are people involved, such as judges, prosecutors and people from the Child Protection. – the moderator of the show did not request, as required by the provisions of Art. 40 par. (4), any evidence to support them, so as to allow the public to assess how justified they are, and even reinforced the assumption of the existence of a criminal network by extending the adoption situation that was the subject of the debate to any other cases, in general. But, according to the Audiovisual Code, Art. 40 par. (4), the program moderators are required to request firmly the interlocutor to prove the accusatory allegations, in order to allow the public to assess how justified they are. Under these circumstances, the non-fulfillment of the moderator’s obligation to request evidence in support of the accusatory statements regarding serious criminal acts against representatives of state institutions in adoption cases, regarding trafficking in human beings for the purpose of the removal of organs, also fell under the provisions of Art. 64 of the Audiovisual Code, the Council noting from the previous content that, in informing the public, the broadcaster did not ensure a clear distinction between facts and opinions.

By the decision no.1083/28.11.2019, CNA sanctioned Realitatea Plus with public summons, noting that, the shows “Lupta pentru România” of 13 November 2019, “Dimineața de știri” at 07:00 and “Realitatea românească” at 21:00, broadcast on 16 November 2019, violated the principles of information provided by Art. 64 par. (1) of the Audiovisual Code, according to which the broadcaster had the obligation to ensure a clear distinction between facts and opinions, and the information on a subject, fact or event to be correct, verified and presented impartially and in good faith. Starting from an article published in a daily newspaper, during these shows, both in Cosmin Gușă’s telephone intervention, and in the comments made in the studio by the guests and moderators, references were made to the influence of the secret service reservists in the campaign for the presidential election and the ambition of some of them to create a “black swan” in this campaign, to the interventions made by members of the secret services in the election for the presidency of political parties, to the “Coldea-Kövesi criminal combination” and to the acquittals in the files investigated by DNA.

By the decision no.182/11.02.2020, CNA sanctioned Realitatea Plus with a fine of Lei 10,000 (approximately EUR 2070), noting that, on 17.01.2020, in the show Realitatea românească, in the context of addressing the subject of illegal restitutions in Transylvania and Moldova, some of the guests made accusatory statements against some persons, in this case, against a judge from the Aleșd Court of First Instance, about whom they said that, in only one day, she gave 60,000 hectares to a false heir, although the real heir would have been entitled to 6,000 hectares and that she “moved the comma”, an action resulting in her enrichment ”she built some big villas there for herself”, and that, in the Southern Carpathians, the Bacău and Covasna region, land with an area of 12,000, respectively, 43,000 hectares was claimed absolutely illegally, where Mrs. Ioana Tăriceanu, notary, affixed a stamp for EUR 100,000, accusations not accompanied by evidence. The Council found that the subject of restitutions in Transylvania and Moldova had the nature of personal conclusions of the guests, also agreed by the moderator of the show, as reflected in the monitoring report. The members of the Council considered that biased comments, inconclusive to the public, were made during the show, in the sense that the restitutions in Transylvania were made by false or abusive decisions, restitutions that the Hungarians would have benefited of to the detriment of the State’s interests, caused by alleged illegal acts of public servants or institutions. Although the subject was one of public interest, no impartial information was ensured during the show, as the opposing views were not presented, respectively, of the judge from the Aleșd Court and of Mrs. Ioana Tăriceanu, against whom accusatory statements not supported by evidence were made, in order for the public to form their own opinion on the subject under discussion. On the other hand, no clear distinction was provided during the show between facts and opinions, given that not all statements made during the show can be classified as simple “opinions”, “value judgments” or “beliefs”, since some of them are factual accusations.

By the decision no.205/25.02.2020, CNA sanctioned B1 TV with public summons, noting that the information presented to the public about the activity of the judiciary, the Superior Council of Magistracy, the income of magistrates or some candidates to leadership positions within DNA, DIICOT and the General Prosecutor’s Office, either through the displayed texts or in the discussions during the shows were not correct, verified, presented impartially and in good faith. CNA considered that some details and information presented in the analyzed shows presented an unilateral perspective, sometimes tendentious and biased, supported by the statements of some of the guests, likely to make the public suspect the correctness and legality of some situations (for example: groups, sides, underground, secret negotiations, imposed by the system) and did not benefit from the neutrality and impartiality required for a correct and good faith information. The Council considered that the way in which the broadcaster questioned the activity and candidacies of some magistrates, or the analysis it presented regarding compliance with the “criteria” that they have to meet, exceeded the limits of a neutral, objective criticism of some aspects of the professional activity, and the information presented in this respect was accusatory towards some persons, likely to affect the public’s right to a correct, impartial information, the presentation being likely to influence the free formation of public opinion regarding the issues brought to its attention. Thus, given that the subjects themselves were of general public interest, the Council considered that information meeting the requirements of fairness, impartiality and good faith, as required by the legal regulations, required an effective verification of some of the accusatory issues presented against some authorities or persons, a verification that could have been achieved including by requesting their points of view. (Cosmina Cerva: He has almost as much as the President of Romania. Sorina Matei: Please tell me what Veve”, Mrs. Lăncrănjan did for four years at DNA. Cosmina Cerva: I don’t know, there should be a control here. As long as you pay salaries from public money, from the State, there should also be some controls. Let’s see, the activity of this prosecutor, what it consisted of in 2018. How many indictments she prepared, how many files he/she sent to Court. Of these files, how many acquittals there were and for these acquittals, I say again, these prosecutors must be sanctioned. Because, Sorina, it is not normal that I pay four thousand euro a month to a prosecutor to just sit on the files. And when I spend some more money in the Court… Sorina Matei: I’m telling you. Dragnea’s prosecutor, who is without Dragnea. Sorina Matei: Mr. Horațiu Radu is running, Mr. Horațiu Radu, someone told me and everyone knows, in the judiciary, Mr. Horațiu Radu has not prepared any criminal case, has not investigated any criminal case for some 12 years. He is running for the leadership of the General Prosecutor’s Office. Because he is with “Rezist”, with this side, with governmental agents, ECHR, E.U., these things, yes, Diplomatic Academy, forums, seminars, gatherings, this type of things, for 12 years. Mrs. Radu, there is Cristina Rotaru, the HGCJ judge. So, the Radu family has a monthly income, the lady judge is good, I mean she is seen as a legalist, but Mr. Radu, I’m sorry, he was named by Mr. Licu because he had to, because the system imposed him, Mr. Horațiu Radu as deputy at the General Prosecutor’s Office. Look, you can’t run the General Prosecutor’s Office… The General Prosecutor’s Office is a sanatorium. Is it? You can’t lead if you haven’t made one criminal file in over a decade. You don’t know anything about it. It’s not possible! Sorina Matei: Please tell me why is Horațiu Radu running at the General Prosecutor’s Office if he hasn’t made a file for 12 years? Cosmina Cerva: Because he can. Because he can, because nobody in this country wants to clean this justice system.)

By the decision no.283/19.03.2020, CNA sanctioned Antena 3 with public summons, noting that, in the context of candidacies for the position of General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, one of the topics of the monitored programs was the candidacy of Prosecutor Răzvan Horațiu Radu. In essence, the debates that took place revealed a series of information according to which Mr. Radu was allegedly involved in an unprincipled relationship and a conspiracy with several journalists and members of the Prosecutors’ Section of the Superior Council of Magistracy, the ultimate goal being a negative opinion from the representatives of this section for the candidates proposed by the Minister of Justice for the positions of General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice and Chief Prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism, namely Mrs. Gabriela Scutea and Mrs. Giorgiana Hosu. Also, information was presented regarding the career and activity of prosecutor Radu, of his wife, as well as certain connections he allegedly has with politicians, journalists, businesspersons or heads of secret services. (Mihai Gâdea: Here, at the bottom, there is a gentleman, Superior Council of Magistracy is written behind him. Yes, he is a magistrate at the Superior Council of Magistracy and these gentlemen are. His name is Nicolae Solomon, Mr. Ban… What’s this story about? It‘s about magistrates, it’s about intelligence officers, it’s about journalists. This gentleman appears twice on our screen, not accidentally, Mr. Horațiu Radu. Mr. Horațiu Radu was Romania’s representative at the ECHR and ran for the position of General Prosecutor of Romania. On this occasion, the public knows more about him. The journalists from Gândul publish a shocking, absolutely shocking investigation which I would like to go through this evening. What you are about to see this evening is very rarely seen by the public. We go directly to the investigation, I will read large parts of it to you, it is extremely interesting. I ask my colleagues to display in the videowall… Mihai Gâdea: Yes. “The three prosecutors positioned themselves, even publicly, against Gabriela Scutea, so that Superior Council of Magistracy (SCM) would be convinced to give a negative opinion for the candidate Scutea. The stake of appointing chief prosecutors to the main prosecutor’s offices in Romania is huge, and the three prosecutors have been used heavily. While until now, actions were developed discreetly, through articles published in some part of the media or through professional associations, now, with the support of the SCM members, they do not even hide their options anymore. The network of deontologists and Horațiu Radu, is very strong here, ladies and gentlemen, because these are journalists from the press who sign under conspiratorial names and who are used by this group in a hallucinatory way. Prosecutor Horațiu Radu was allegedly supported to reach key positions in the Public Ministry by a group of politicians from Iași, including the former Minister of Justice, Tudor Chiuariu, the former Minister of Transports, convicted in the Transformatorul case, Relu Fenechiu. Both are said to be close to high-ranking SRI figures, but also to several SCM members: prosecutors Florin Deac, Cristian Ban and Tatiana Toader. An ambitious Moldovan, with the desire to have a good image in the media, prosecutor Radu quickly made friends in the media, but also in the secret services. After Minister Cătălin Predoiu nominated the candidates for the leadership of the big prosecutor’s offices, Horațiu Radu allegedly resorted to all his friends in the media to promote articles about the persons nominated by Predoiu and whom he did not like. Step 1- When he found out that Gabriela Scutea has big chances to receive a positive opinion from SCM, Horațiu Radu’s friend, the military prosecutor Bogdan Pîrlog, the one with August 10th, issued a statement, through the Initiative for Justice Association, accusing Gabriela Scutea that she was the artisan of designing the Government Emergency Ordinance 13. The statement was loudly taken over by the network of friends from the media that we will reveal in a future episode. Today, we can give two examples: Florin Pușcaș from stiripesurse.ro, the one who took over Pîrlog’s statement, and the journalist Alex Costache from TVR, one of the fans of the former chief of DNA, you will see him immediately, Codruța Kövesi, who writes under the pseudonym “Alin Ionescu” for G4media. Step 2 – Between 20-22 January, this year, a delegation from Romania was invited to the European Court of Justice. This delegation included, not by chance, Horațiu Radu, Bogdan Pîrlog and Alina Barbu, a law specialist at the Ministry of Justice and, look at that, the true artisan of GEO 13, as known in the world of justice. Coincidence or not, all three allegedly did not regard favorably the appointments of Gabriela Scutea at the head of the General Prosecutor’s Office and of Giorgiana Hosu at DIICOT. Step 3 – The name of Laura Codruța Kövesi is not missing from this story either, as it is known that she has at least one thing in common with prosecutor Horațiu Radu, namely the antipathy towards Giorgiana Hosu. Not by chance, at a time, information from Dan Hosu’s file…” So, what did Kövesi do? She made a file to the person who is now proposed for the head of DIICOT. “Information in the file of Dan Hosu, the husband of the interim head of DIICOT, was disseminated in the press by the home network of some magistrates. For example, by the journalist Virgil Burlă from europalibera.ro. Note that the ins and outs of this maneuver on the Kövesi-Horațiu Radu axis were accurately revealed by the journalist Sorina Matei, on her Facebook page. The journalist’s reason, however, is other than to reveal the mechanisms behind the appointment of prosecutors, namely the anger that a prosecutor liked by her good friend, Daniel Morar, was not appointed at the head of DNA. The crony relation between Horațiu Rațiu and Nicolae Solomon”, the SCM man. Attention! – In this way, the ambitious Horațiu Radu, who benefits, in addition to the support of those mentioned above, from the total support of prosecutor Nicolae Solomon, a SCM member, who is his godson, but also of his friends in SCM, prosecutors Florin Deac and Cristian Ban about whom maybe we should ask what ANI did… why did ANI not take any legal action with regard to the notification sent by the Ordo Draconum Association regarding a situation of incompatibility of the two prosecutors, Mr. Cristian Ban has managed to ensure his comeback for the leadership of the General Prosecutor’s Office. Specifically, Gabriela Scutea was asked by the same journalists, so they also delivered the questions to the journalists, not only gave them articles in the press, they gave the questions as well, if she withdraws from the race after receiving the negative opinion. Solomon, king of Vaslui, 5 files at the Section for Investigating Criminal Offences in the Judiciary – Therefore, the man from the SCM who supports Mr. Horațiu Radu, Nicolae Solomon is investigated in five cases at the Section for Investigating Criminal Offences in the Judiciary, according to luju.ro. His files concern offences of bribery, a SCM member, influence peddling, a SCM member, organized criminal group, a SCM member, abuse of office, a SCM member, unjust repression and abusive investigation, a SCM member. In making the decision on the opinion for the appointment of the heads of the prosecutor’s offices, the godfather-godson relationship with prosecutor Horațiu Radu and the friendship between their wives, both of them colleagues at INM, would have weighted heavily.)

By the decision no.284/19.03.2020, CNA sanctioned România TV with a fine of Lei 5,000 (approximately EUR 1035), noting that the newscasts of 21.02 at 21.00, 22.02 at 13.00, 04.03 at 13.00, and the editions of the “Punctul culminant’’ program of 24.02 and 03.03.2020, were broadcast in violation of the provisions of Art. 35, 40 par. (1, 2) and Art. 64 par. (1) point b) of the Audiovisual Code. In essence, during several programs, images filmed with hidden means from a private event were repeatedly broadcast, which does not justify a public interest, which is prohibited by Art. 35 of the Audiovisual Code. In this context, in the programs, unproven accusations were brought against one of the persons in the images and their point of view was not presented, which violates Art. 40 par. (1, 2) of the same Code. Also, in relation to the way of presenting the subject resulting from broadcasting the recording in question, the impartial and good faith information of the public was not ensured, as provided by Art. 64 par. (1) section b) of the mentioned regulation. Thus, in concrete terms, during these programs, a recorded audiovisual material was broadcast, without the protagonists in the images knowing it, about the meeting that took place at a restaurant, between a prosecutor (a person was run for the position of General Prosecutor of Romania), two journalists and a magistrate, claiming, through titles and comments, that this would be a “conspiracy meeting, for bribery” or that he used the press to achieve his goal, of becoming the General Prosecutor of Romania”.

In the Breaking News program of 21.02.2020, at 21.00, the broadcasting of the recording in question was prefaced by the headings: Exclusive explosive recording. Prosecutors, out drinking with the propaganda. How was the justice lynching planned? We are broadcasting the tape with the conspiracy meeting. The bribery discussed at the secret meeting. The 5-hour conspiracy meeting with beer on the table. About the bribery discussed at the conspiracy meeting, and the comment of the presenter Violeta Romanescu: Ladies and gentlemen, a breaking news recording. Magistrates at dinner last night, at a drink with the propaganda, a 5-hour drink. A recorded material was broadcast, the static images from the beginning having red arrows pointing to the persons to be referred to later. Răzvan Păștilă, Ilfov Court judge, Alex Costache-journalist (the man in the dark T-shirt), Cosmin Savu-journalist (the man with black cap), Horațiu Radu-deputy prosecutor at the General Prosecutor’s Office (the latter’s face is only half visible, being shielded by Alex Costache). Images on music background follow, which seem to be from a restaurant. At one point, from the table of the 4 men, one can hear, repeated 3 times: “And now you also have to give bribe!” The two journalists, Alex Costache and Cosmin Savu, are filmed in an outdoor setting, shaking hands when leaving that restaurant. The journalists are followed by Judge Răzvan Păștilă. These images were also shown during the comments in the studio.

This recording was also rebroadcast at the end of the same Breaking News program of 21.02.2020, when the presenter Violeta Romanescu made the following comment: Let’s see the images again! We see the images from last night, from the center of the Capital, a conspiracy meeting between a prosecutor, a judge and journalists. (The images from the beginning of the program are rebroadcast with sound).

Also, the audiovisual material was broadcast over the following days, as well, such as during the editions of the Punctul culminant program of 24.02. and 03.03.2020, and in the newscast of 04.04, at 13.00, as follows:

In this recording, images were presented, accompanied by the name and position written next to each man: “Journalist Alex Costache arrives at the bar alone”; “Răzvan Păștilă, Ilfov Court judge”; “Horațiu Radu. Deputy Prosecutor at the General Prosecutor’s Office”; “Cosmin Savu, Journalist”; “Răzvan Păștilă, Ilfov Court judge”. Then, with voice and title on the screen: “He should be thankful that we help him…” At the table where the four men are sitting, a few bottles of beer are circled in red. “AND NOW YOU ALSO HAVE TO GIVE BRIBE, RIGHT?” Or a recorded material is broadcast, in which, at the beginning, journalist Alex Costache is presented while entering a room, followed by Răzvan Păștilă, Ilfov Court judge. Images on music background follow, which seem to be from a restaurant, which present the persons referred to by the applicant: Horațiu Radu – deputy prosecutor at the General Prosecutor’s Office (his face is only half visible, being shielded by Alex Costache); Cosmin Savu-journalist (the man with black cap), Alex Costache, journalist and Răzvan Pastilă, Ilfov Court judge. At one point, from the table of the 4 men, one can hear: he should be thankful that we help him, that’s it! (unintelligible) the reasoning came to me in two hours (unintelligible) the reasoning came to me that (unintelligible) And now you also have to give bribe, right? Next, images without sound were broadcast, presenting Horațiu Radu talking to journalist Cosmin Savu, near the door of a room, then images that seem to be from a restaurant, where several people are dancing. The two journalists, Alex Costache and Cosmin Savu, are filmed in an outdoor setting, shaking hands. During the discussion, images of various persons, whose identities were mentioned on the screen, were repeatedly broadcast on the screen: HORAȚIU RADU, DEPUTY PROSECUTOR AT THE GENERAL PROSECUTOR’S OFFICE; RĂZVAN PĂȘTILĂ, ILFOV COURT JUDGE; ALEX COSTACHE, JOURNALIST; COSMIN SAVU, JOURNALIST. In the images, one can see Horațiu Radu and Răzvan Păștilă meeting in a room or Horațiu Radu, Alex Costache, Cosmin Savu and Răzvan Păștilă sitting at the same table, on which there are several bottles of beer. On other images, the following texts were displayed: HE SHOULD BE THANKFUL THAT WE HELP HIM; NOW YOU ALSO HAVE TO PAY A BRIBE, RIGHT? The persons were captured in the images both inside and outside a restaurant. The images were also displayed on the screen for about 10 seconds after the subject ended. During the analyzed programs, accusatory, unproved comments were made against the applicant, one of the persons appearing in those images, without the broadcaster presenting his point of view, which would have been able to clarify the alleged facts and the context of the private meeting that had taken place at the restaurant, together with the other participants.

By the decision no.307/22.04.2020, CNA sanctioned România TV with a criminal fine of Lei 5,000 (approximately EUR 1035), noting that the “Punctul culminant’’ program of 04.03.2020 was broadcast in violation of the principles of fair public information, as provided by Art. 64 par. (1) sections a) and b) of the Audiovisual Code. During that edition, there was a debate on the subject regarding the case of arresting the former minister Sorina Pintea and the way in which she was taken, with her hands handcuffed, to the hospital for medical investigations, considering her poor health. Thus, in this context, the members of the Council noted that both the moderator and the guests made statements concerning the National Anticorruption Directorate, which supported the idea that taking the person in question handcuffed, for a specialized medical examination, would be the consequence of the way in which some DNA prosecutors act, about whom the “torturers” term was used, with reference to the investigation methods used by them ever since Laura Codruța Kövesi was the chief prosecutor of this institution. The audiovisual material broadcast during the program contained the recording of this statement, mentioned in the DNA notification, while images of Laura Codruța Kövesi were presented on the split screen, then returning to the images with Sorina Pintea, detained and taken by the police. Given the development of the analyzed program, the Council found that the right of the public to receive impartial information, in good faith, had not been ensured during the program in question, since, also according to the statements of one of the lawyer guests who intervened by phone, and the DNA notification as well, the administrative procedures carried out in Sorina Pintea’s case for her transportation from detention to the hospital were not the responsibility of DNA, as it was induced in the program by the comments made on this subject. Also, the Council noted that this general conclusion of the comments made during the program was also supported by the information repeatedly displayed in titles, such as: “IT IS INHUMAN TO LEAVE A PERSON WITHOUT MEDICAL ASSISTANCE, KÖVESI’S TORTURERS DEFY THE NEW HEAD OF DNA, PINTEA’S HUMILIATION, WHO IS BEHIND THE HANDCUFFS SHOW, WHAT IS DNA HIDING IN THE CORONAVIRUS SCANDAL, THE EVENING’S DISCLOSURES CONTINUE AT CIUTACU, SORINA PINTEA WAS TAKEN TO THE CORONAVIRUS FOCUS POINT.”

  1. Non-deterring and inconsistent sanctions, applied after repetitive negative behaviors.

The National Audiovisual Council is the only regulatory authority in the field of audiovisual programs, a guarantor of the public interest, an autonomous public institution under parliamentary control, managed by a council of 11 members. They are appointed, for a term of six years, by the Romanian Parliament, at the proposal of the Senate (3 members), the Chamber of Deputies (3 members), the President of Romania (2 members) and the Government (3 members).

CNA’s mission is to ensure a climate based on free expression and responsibility towards the public in the audiovisual field. In order to fulfill this mission established by the Audiovisual Law no. 504/2002, as subsequently amended and supplemented, a law that also transposes Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative actions in Member States concerning the provision of audiovisual media services, CNA issues decisions, recommendations and instructions. These include the Decision on the Regulatory Code regarding the Audiovisual Content.

Under Art.90 of the Audiovisual Law no. 504/2002, ”(1) The following actions are offences: a) the broadcasting of a cinematographic work outside the periods provided for in the contracts concluded with the copyright holders; b) the use of subliminal techniques in audiovisual commercial communication; c) the use of audiovisual commercial communication with hidden advertising content; d) non-compliance with the legal provisions regarding the granting of the right to reply; e) broadcasting a program service outside the area specified in the audiovisual license; f) the operation of audiovisual licenses by other persons than their rightful holders; g) programming and broadcasting programs, in violation of the provisions of Art. 27, Art. 28, Art. 29 par. (1)-(7), Art. 31 par. (7), Art. 32, Art. 34, Art. 35 par. (1), Art. 36, Art. 39, Art. 40, Art. 41, Art. 42 ind.1, Art. 42 ind.2 and of Art. 85 par. (3)-(9); h) non-compliance with the provisions of Art. 3, Art. 17 par. (4), Art. 49, Art. 54 par. (2) and of Art. 58 par. (1); i) retransmission by a distributor of a program service that does not come under the provisions of Art. 75 par. (1) and (2) and has not obtained the retransmission authorization; j) the retransmission by distributors of program services, in violation of the provisions of Art. 74 and 82; k) the provision of a media service without holding an audiovisual license or in the absence of the notification provided by Art. 74 par. (5); l) the refusal of the media service provider or distributor to communicate to the control staff, under Art. 88 par. (3), the requested information. (2) The actions provided in par. (1) shall be sanctioned with a fine from Lei 10,000 to Lei 200,000. (3) In case the Council decides that the effects of an action provided in par. (1) are minor, it shall give a public summons to comply with the law. (4) The individualization of the sanction in case of committing one of the offences provided in the present law shall be made by taking into account the seriousness of the offence, its effects, as well as the sanctions previously received, for a period of maximum one year.”

Also, under Art. 91 of the same regulation, “(1) Non-compliance by the service providers or distributors with the provisions of this law provided in Art. 22 par. (1), Art. 24 par. (1) and (2), Art. 26 ind. 1 par. (1), Art. 31 par. (1), (3), (4) and (5), Art. 39 ind.1 and Art. 48, as well as of the regulatory decisions issued by the Council, is an offence. (2) In the cases provided in par. (1), the Council shall issue a summons containing precise conditions and deadlines for compliance with the law. (3) In case the service provider or distributor fails to comply with the law within the deadline and under the conditions established in the summons or infringes such provisions again, a civil fine from Lei 5,000 to Lei 100,000 shall be applied.”

From a simple reading of the cases presented above, we can notice extremely many situations in which CNA considered that the effects of the found deeds are minor and only sent public summons to some TV stations: România TV – slippages related to speculative, unproven events from the private life of the former chief prosecutor of DNA (“How was Kövesi caught with the SPP agent on duty”); România TV – Elena Udrea’s statements: ”at the High Court, there are still judges who act on orders, judges who depend on the system, they were either promoted or they are blackmailed and there are also less honest judges who judge without receiving yellow envelopes and without taking orders”; Realitatea Plus – statements in the sense of a “criminal combination Coldea-Kövesi; B1 TV – obvious insults to some magistrates (for example, the use of the name ”Veve”); Antena 3 – media lynching against some journalists and magistrates, including one of the candidates to the position of General Prosecutor of Romania.

For using expressions such as “Kiss Kövesi’s ass! Go ahead, kiss Kövesi’s ass!” in several programs where a public subscription had been opened (give a penny for Kövesi!”) to cover moral damages finally found by a court as a result of the insults received by the chief prosecutor of DNA, Antena 3 was sanctioned with a fine of Lei 40,000 (approximately EUR 8,280), more than six months after the date of the TV programs.

România TV received a fine of Lei 10,000 (approximately EUR 1070), as a result of formulating criminal and moral accusations, without providing the public with any proof to attest the reality of the alleged facts (Sebastian Ghiță: “Mr. Andronic, Laura Codruța Kövesi wanted, with or without my help, by forcing me, pressing me, threatening me, to overthrow the Ponta government.”) The sanction was applied about one year after the date of the TV show.

B1 TV was sanctioned with a fine of Lei 25,000 (approximately EUR 5175), for absolutely scandalous accusations made against a Constitutional Court judge, former president of the High Court of Cassation and Justice (“Livia Stanciu had a relationship with a leader who was selling drugs”, “Livia Stanciu was receiving drugs at home”).

CNA sanctioned Antena 3 with a fine of Lei 5,000 (approximately EUR 1035), for improbable statements about the former chief prosecutor of DNA (“I know that she will go to jail. And I know that she will go to jail because I know what she did. Oh, look at that, your fairy went to jail, in Târgșor, you know. Still, the way this creature lies, in connection with things, how to put it, so easy to prove, such as that thing with the wire tapping, the wire tapping with her, it was proved, that they were falsified.”)

Also, CNA sanctioned România TV with a fine of Lei 5,000 (approximately EUR 1035), for a media lynching carried out over several days against some journalists and magistrates, including one of the candidates for the position of General Prosecutor of Romania. The intimidating nature of the operation of capturing some sequences from the private life of certain persons involved in a procedure of filing in leading positions in the Public Ministry can also be noticed. This type of actions infringes the legal norms regarding the person’s right to life, but are also in conflict with the requirements of exercising the right to information imposed by Art. 31 of the Constitution (ensuring the correct information of public opinion). Such behaviors, amid the inconsistent and deficient legislation, the lack of dissuasive, discouraging sanctions, risk becoming common practice, close to the invasive methods applied in sad historical periods, therefore must be disapproved as categorically as possible.

The amount of all these accumulated fines is not even equal to the monthly salaries of some TV producers, hosts of shows where fierce and unproven criticism against some magistrates has become a banality.

 

  1. Lack of reaction of the Superior Council of Magistracy

According to letter no. 6919RF/22.07.2020, issued by the National Audiovisual Council upon the request of the Romanian Judges Forum Association, between 2018-2020, this authority did not receive any notifications sent by the Superior Council of Magistracy, the constitutional guarantor of the independence of justice, for possible cases of non-compliance by radio or television stations with the provisions of Law no.504/2002, which could prejudice the right to a fair trial or the legitimate interests of any of the parties to cases pending in court or under investigation, the presumption of innocence of the accused persons, the rights of persons in custody, arrested or detained, the specific rights of certain categories of victims, as well as in situations where the programs concerned tend to carry out a public trial in the audiovisual space, in parallel with the judicial trial.

Also, SCM did not notify the National Audiovisual Council in cases where the right of reply/rectification of the Council or the magistrates was not broadcast, nor did it send to the National Audiovisual Council press releases containing the institution’s point of view on the topics of certain radio or TV programs or on certain issues debated in them regarding the judiciary, the activity of courts and prosecutor’s offices or the conduct of proceedings, in general.

Also, SCM did not notify the National Audiovisual Council in relation to the transmission of unrealistic data by the television/radio broadcasting service providers regarding: a) the organization and functioning of courts, of prosecutor’s offices attached to them, of the Superior Council of Magistracy or their legal duties; b) statistical data regarding the judicial system; c) elements of the career of magistrates; d) the procedural stage of a case and the court or prosecutor’s office that it was referred to; e) the volume of activity, the workload of courts/prosecutor’s offices or magistrates.

The last time the members of the National Audiovisual Council debated notifications of the Superior Council of Magistracy was in 2017 (the public meetings of 2, 7 and 14 February 2017), but it was about two requests submitted by the former SCM (2011-2016), on 23.12.2016 and 27.12.2016.

SCM submitted to CNA exclusively proposals to amend the Regulatory Code regarding the Audiovisual Content, twice, in 2017 and in 2018. This happened as a result of the proposal made by a CNA member, responding to the letter sent by the General prosecutor of Romania at that time, Augustin Lazăr, who requested CNA to take action in the context of the pressure put by the media against the judiciary, showing that it is necessary to adopt a reaction for the correct information of the public, based on the Audiovisual Law, under which the National Audiovisual Council has the crucial role to ensure a climate based on free expression and responsibility towards the public in the audiovisual field.[1]

  1. Conclusions and proposals

The reaction of the General Prosecutor of Romania also took into account the fact that, through the CVM (Co-operation and Verification Mechanism) Report of 25 January 2017, the European Commission noted that “Their conclusions (SCM, our note) provide valuable support to magistrates, but the difficulty in securing an equivalent level of media coverage for the SCM compared to the initial criticism is symptomatic of the challenge facing the judiciary in terms of the media. Although the decisions of the SCM are always transmitted to the National Audio-Visual Council, there has been no progress in terms of effective redress or corrections in the media that launched or relayed the attacks. This is a consequence of broader issues concerning freedom of expression in line with the Council of Europe standards and the case law of the European Court of Human Rights. Whilst the wider issue of media regulation and redress is as such outside the CVM, there is a direct link with judicial independence. The new SCM and Government could also further follow up on the recommendation to explore a more robust mechanism so that the SCM can support magistrates wishing to defend themselves in court or itself defend magistrates in court.”[2]

Subsequent reports did not come back on these issues, given an avalanche of significant shortcomings and setbacks in the field of the rule of law, found by all relevant international bodies (European Commission, Venice Commission, GRECO, Consultative Council of European Judges, Consultative Council of European Prosecutors).

The protocol concluded by the SCM and the National Audiovisual Council (http://www.cna.ro/Protocol-de-colaborare-dintre.html) meant a small, necessary step, but its implementation was rather symbolic and its validity has no longer been extended after 2017.

The minimum involvement of the National Audiovisual Council in protecting the dignity and image of magistrates was complemented by the inexplicable inactivity of the Superior Council of Magistracy, which is unable to defend effectively the magistrates who have fought corruption and for the independence of the judiciary in recent years.

It is clear that the sanctions provided for by the legislation in force are not at all discouraging for media-lynching behavior regarding uncomfortable magistrates and that it is necessary to supplement the legislative framework with new, truly dissuasive sanctions, up to suspending TV broadcasting or, as the case may be, closing TV broadcasting and interdictions to resume for long periods.

Normative regulation is required, as well as the immediate implementation of effective redress and measures for correcting the information by the TV channel that launched or relayed the attacks against judges and prosecutors.

It is also necessary to regulate by law the obligation of the Superior Council of Magistracy to notify the National Audiovisual Council when TV shows tend to conduct a public trial in the audiovisual space, in parallel with the judicial trial, when magistrates are mocked, but also in cases where the right of reply/rectification of the SCM or of the magistrates or the professional associations representing them was not broadcast or when the TV programs present unreal data regarding the judiciary, the magistrates’ career or the procedural stages of the investigated cases.

[1] See the webpage https://www.paginademedia.ro/2017/02/cna-propune-institutiilor-partenere-sa-vina-cu-sugestii-la-modificarea-codului-audiovizual/ [last accessed on 30 July 2020].

[2] See the webpage https://ec.europa.eu/info/sites/info/files/com-2017-44_ro_1.pdf [last accessed on 30 July 2020].

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