Arhiva tag-ul pentru: right to fair trial

Daniela Tarău, aged 43, was accused of fraud and placed in pre-trial detention in February 2001. She was detained for one year and nine months, then she was sentenced for three years and three months by the first instance court. The sentence was suspended by the second instance court. She was set free in November 2002, when she managed to successfully appeal the pretrial detention.

Then, with the assistance of the Association for the Defense of Human Rights in Romania –the Helsinki Committee (APADOR-CH), she filed a complaint before the European Court of Human Rights (ECtHR), contesting the excessive length of her pretrial detention and a breach of the right to a fair trial.

She always claimed she was innocent and asked for several witnesses to be heard, but all her requests were denied. In 2009, the ECtHR found in favor of the applicant and in 2010 her case was re-opened before the national courts.

After a retrial that lasted more than four years, the court reached a final decision in March 2015, finding Tarău innocent. Now she is pursuing a PhD at the Police Academy on the Romanian prison system. She is a fighter, even though she is a „nobody,” as she likes to say.

In the interview that follows, you can learn about how one can go to jail even if innocent, what life is like behind bars and how it is to be released from jail and stigmatized for a crime you didn’t commit.

The trial: Employee on probation in a suspicious work place

The story started in the summer of 2000, when Tarău, originally from Buzău, was looking for work in Bucharest. She learned from the newspaper that a company was hiring people for work abroad.

But Dalil Exim M&M Dim SRL didn’t have any contract with companies from abroad and had stolen the name from another company, which indeed facilitated labor placement abroad. In short, it was a scam.

Of course, Tarău had no way of knowing this. She and 60 or 70 others submitted applications for a job in Israel. She was hired on probation by the company that organized the scam.

Reporter: The prosecutor said your employment there constituted „an affiliation with an organized criminal group with the aim of committing fraud.” What really happened?

Daniela Tarău: I couldn’t check if the company was alright. We didn’t have access to Internet as we do now. They offered me a secretary job. I knew how to work on the computer, so I was a fit for the job profile. My collaboration with them was extremely brief, only three weeks in June 2000. Then I had some stomach problems and was hospitalized, and on the 7th of July had surgery. Then I was in recovery for eight months, which I spent at my parents’ house in a village. This is my crime, having worked as a secretary for three weeks. I wasn’t really doing much, just telling people what the company does. The invoices were made by an associate who later admitted to having committed the crime. I didn’t sign anything, I didn’t take any money, I didn’t even get paid, as I was on probation.

R: How did people find out it was a scam?

D.T.: In August 2000, when the first people waited in vain, with their luggage, in front of the door of the company, to be taken to work in Israel. The loss in this case was estimated to be 17,000 dollars and two stone crosses – one of those associated with the business wanted crosses for his parents and accepted as payment these crosses from a client. There were 62 victims. In the trial there were only 44, because some didn’t file a complaint. There were 44 complaints of which I was also accused even though I had no contact with most of them.

R: How did they pin it on you?

D.T.: One of the victims, Veronica Gori (with dual citizenship, Ukrainian and Romanian), seeing that the process was slow through the Dalil company, asked me to help her find employment in Italy, where she hoped her sick child could undergo surgery. I knew somebody who obtained labor contracts and the necessary visas and I become an intermediary. I was already in the hospital when this happened and it had nothing to do with the company. I signed an invoice for my role as an intermediary between Veronica Gori and Constatin Gheorghe, who received 1,000 dollars from her to help her go to Italy. I received no money from this transaction and Veronica went to Italy from where she never returned, as during the 15 years of court proceedings no one found her. Before leaving, however, she was one of the 44 people who filed a complaint against the company and against me.

R: Would you now sign such an invoice, knowing what happened because of it?

D.T.: Now I wouldn’t sign such an invoice even if my mother asked for it. What happened was way too much. No one wanted to see that in my case there was no fraud. I had signed an invoice for a loan without a return date, on my name, by which I promised to return her the money in case she didn’t find employment in Italy. I did not claim to be somebody else. The definition of fraud entails using lies and false pretexts. Where are the lies here? Where are the intent and the false pretexts? For that money, Veronica got what she asked for — as proof, she never came back. A prosecutor called Panait was the only one who tried to find her but he failed to.

R: How was the meeting with prosecutor Panait?

D.T.: In February 2001, six months after being released from the hospital and never having had any other contact with the company since leaving — I didn’t even know the two associates were arrested already from August 2000 I received a letter home asking me to go as a witness to police precept no. 3. I came to Bucharest the same day I was supposed to go to the doctor for a medial check-up. I had some trouble with the surgery wounds. I didn’t have a lawyer. I went with good intent to the police. Officer Cristina Iorga explained the charges that I was facing, saying that I was wanted since August 2000. But no one looked for me. I was called as a witness only in January 2001. She took sample of my writing and didn’t tell me anything else, and in the evening I found out an arrest warrant was released on my name. She asked me about the company, my role there and the role of the others. In the evening the arrest warrants were issued. All day they looked for prosecutor Panait, they found him and in the end even a lawyer appeared. Gabriel Stoian, the legal aid lawyer, read my statement, signed it and left. He told me – „There is nothing they can do to you, tomorrow you’ll be home!”

The next day I had a meeting with the prosecutor Panait. For some hours I tried to make a statement. Initially he tried to tell me what to write.. I said that I cannot write about what I do not know. He asked me to write that someone did this and that, that I knew the company was a scam…. I didn’t know this, how would I know this?! He told me if I write what he said I’ll be home the next day. He would write the statement and get mad every time I didn’t want to sign it and tore it apart. I thought that a representative of the state should be calm and listen to me. But he didn’t.”

R: Maybe it was a tactic?

D.T.: And when you tell me you’ll throw me out the window it’s also a tactic? That’s when my lawyer (I hired one in the meantime) said we can’t continue like this. Are we living in Stalin’s era, or what?

Panait gave in, he wrote the statement as he should, although he seemed to be unhappy and took my statement to the superior prosecutor (who at that time was Chiujdea). Before leaving the office he turned back to me, like Columbus, undecided, and asked me if I was sure that things are as declared.

He left and it took ages for him to come back with an arrest warrant. He told me he only gave me a short term of 5 days to give me time to think about my statement. He then wished me happy birthday, because it was m birthday. I’ll never forget the way he said it because it sounded like <I wish you many years to come, spent in here>…

R: And after those 5 days?

D.T.: Another 25 followed, then extensions of 30 days at a time. In total, 21 months of detention. In the first days I still thought it was a mistake; that they will figure it out and let me go. The fact that prosecutor Panait turned back twice, as if he really wanted to know the truth, threw me off. I never learned why.

The investigation: what happens when judges rule without reading the case-file

R: So while you were detained and during the trial no one asked you anything?

D.T.: During this time I gave only 2 statements – before Panait and before the police officer Iorga Cristina. During the detention nothing was done in the investigation. I made hundreds of requests through my lawyers- evidence, confrontations, criminal complaints, petitions, memoranda, revocations, replacements…I don’t know if there’s anything I didn’t try. Initially they had a serious form but then I started making complaints against the prosecutors. All of the prosecutor’s decisions by which pre-trial detention was prolonged were identical. Not even a comma added or missing – they all refer to the seriousness of the offence and the damage caused. The arguments brought by the prosecutors were taken over by the courts with little examination. At the witness hearing during the first instance court proceedings the statements were: < I maintain my initial statement and request civil damages>. They were never asked to retell the story to the judge, they just made a statement before the prosecutors and that was enough.

I asked for the first instance, second instance and third instance courts to be changed, at one point my complaints seemed more like a joke but I didn’t know what else to do. I even requested for a psychiatric evaluation of mr. Panait. None of my requests were addressed. It was just like I was forgotten in police arrest. Once a month they took me to court for my pre-trial detention to be prolonged- it seemed more like a formality. They thought I was a threat to public order.

R: The judicial error committed then was only discovered by your lawyer, years later, at the retrial. You were informed of one charge – fraud against Veronicăi Gori – but when sent to trial you were charged for fraud against all of the 44 persons who filed complaints against the company. How come no one noticed this, back then?

D.T.: At the beginning I was informed of charges for one act of fraud against Gori Veronica. All the others were charged with aggravated fraud against several people. But in the prosecutor’s file they typed with another typing machine that I too was charged with aggravated fraud. You can see that the letters are different. The procedure says that whenever something is modified in the charges you have to be informed. I was never informed. This is telling for how the prosecutor conducted the investigation. It wasn’t just a small error, which sometimes do happen, here it is about the superficiality with which the prosecutor dealt with my case. I was charged with involvement in all the cases not just he one of Gori Veronica.

Life in the police lock-up from the capital: 8 months without talking or seeing her parents and child

R: How was life in the police arrest?

D.T.: I didn’t talk at all with my parents or child (who was 8 at that time) during the 8 months spent in the police arrest. 15 years ago you couldn’t call anywhere. You could call only after the court proceedings started.

The first 3-4 months are the hardest. It depends how strong you are and how well you adapt. I have seen the files of many detainees – this is how you become a specialist in law- they were not guilty but they gave up. If you don’t believe in yourself you can’t believe in anything. I witnessed attempted suicides and self mutilations. I’ve seen so many things that I think nothing can scare me anymore.

We had hot water only for 15 minutes, twice a week, during which time the whole room had to take a shower. The haste with which I took showers stayed with me for a long time, not to be left with foam on me. The showers were like a pit. On a wall there were 3 pipes with water, coming from above. On the other wall there were three Turkish toilets, one next to the other you would touch the person using the one next to you. While some were in the shower the others were in the toilet. In 15 minutes the whole room, of 10 people had to be ready so that the next room could have their turn. You would have to go even if you didn’t manage to take a shower.

The hardest part for a woman was during the period. There were no tampons. If you only knew how many clothes were torn to be used as……..I never received nothing from them. Maybe even if they had given me something I would have refused, because I was permanently revolted.

There are things I can’t say. There were all kinds of behaviors from the guards. We had no bras and the things some of them would say …..and if you were a bit more ‚gifted’ you were not in a comfortable situation. Bras, belts, shoe lasses- they were all forbidden. After a while you learn some things and what to ask for from home.

Then there is the humiliation with the detention clothes, some huge uniforms, as if we were all obese, and which were not very flattering. You had to wear those before the court. You were arrested and showed up in the uniform …..you were already labeled as guilty.

But I only cared about proving my innocence, and not about being treated in a degrading and inhuman way. Later I learned that I could have complained about this as well before the ECHR, but I somehow thought it was normal that detention facilities be like that and not a hotel, just that I shouldn’t have been there.

The sentencing: when the prosecutor passes on a crocked file no one fixes it

R: Six months passed until the trial started and until a decision was rendered another 4 months passed. In January 2002 Daniela Tarău was sentenced to 3 years and 3 months in prison, a year less than what one of the associates from the company received. How did you react to the sentence?

D.T.: It wasn’t a surprise, considering how the trial was. I was a nobody. I was just shoveled in with the rest. Nobody, with the exception of a few judges, saw something wrong with my case. Throughout the trial none of the defendants said I have anything to do with the case, one of the defendants said that Tarau had nothing to do with all this.. It was an abuse on behalf of Panait, a case that started off bad and was never fixed.

R: After the trial you moved from the police arrest to the Rahova prison. Was it any different?

D.T.: After the police arrest, moving into Rahova seemed like heaven. I hadn’t seen the sun for 8 months. Here I started to have the privileges granted to sentenced people – visits, parcels, monthly calls, activities, TV – I found there were even people in the system from whom you can seek help. The head of the prisons, prosecutorCarmen Mihail, hepped me find a file which had gone missing and which I needed in my struggle to prove everyone wrong. The humiliation didn’t stop, though. Sometimes it was like I wanted to be hit rather than be humiliated. Thought this time I thought that I could have turned into a monster at any point.

I was at Rahova when I found out that mr. Panait committed suicide. I felt sorry for him. He was a fool. I only saw him twice but I was struck by his behavior and attitude. What he did to me …well, he wasn’t the only guilty one. There were so many courts which checked and could have fixed what he had done, but nobody did. I long forgave him, but I can’t forget.

R: You were still in Rahova when your father passed away, but you didn’t find out until months later because your family wanted to protect you, especially since while in arrest you were not allowed to go out to attend the funeral. I assume it was frustrating.

D.T.: Panait passed away on the 12th and my dad on the 25th. I last saw my dad in April 2002, a month before he died. He came with my mom and Marius, my 8 year old boy, to visit me in Rahova. I could never talk to him when he came visiting. He just stood on a chair and cried. He would only say „you brought us shame, dear!”. I was trying to explain to them it wasn’t that bad, that nobody beat me, I was downplaying everything and didn’t tell them some things. They also didn’t tell me what they went through at home. My dad never got to see that I was innocent. With him I had a closer relationship but still I could not talk to him. It hurt more to see my dad pass away that way then the fact that I was just kept there for no reason.

R: In November 2002 you were released not because you were found innocent but because two separate courts refused to prolong your arrest. What happened with the 3 years and 3 months sentence?

D.T.: I had contested the decision by which I was sentenced to 3 years and 3 months but the trail was still going on. At the Bucharest Tribunal and Court of Appeal I had contested two decisions by which my pre-trial detention was prolonged. Both decisions accepting my appeal came on the same day. One from judge Marius Sega and one from Viorica Costiniu. They released me on the condition that I don’t leave the city and to continue with the appeal. In the end I remained with a suspended sentence of 3 years, plus a probation period f 6 months. The others were sentenced to 4 and 6 years. I again contested this decision because I wanted to be proven innocent. I wasn’t successful though and from the 2nd of December 2003 I remained branded, forced to go to the police for 6 months and act as a criminal that sought rehabilitation.

R: How was it to go back to your village?

D. T.: Awful. In that small community, in the village, people avoid you and isolate you. After I got there we had a ceremony after one year from my father’s death. You know how it was? Awful. In our house, whenever I would approach a group everybody would shut up. I went through this for a long time. I went to visit relatives and they didn’t let me in, knowing that I was there.

R: Did you find work?

D.T.: Legally, no. I would go on a monthly basis to the reintegration services to say that I am an upright citizen minding my own business. Nobody would hire me because of my criminal record so I had to work without a contract, but the police didn’t care about this, they just cared about ticking their box that „the person is looked after by her parents, is looking for employment and understands her crime”. From 2003 to 2008, when I managed to find work because I had been rehabilitated, I took up all kinds of jobs which didn’t require a working contract because then I would have needed a criminal record. I was 31, with a 10 years old child, a 74 years old mother. I did house chores, cleaning, took care of elderly people, I worked around the clock.

When you have a criminal record for fraud, not everyone knows how things happened. Anyway, my parents didn’t believe me so what can I expect from strangers? What could I tell them? No one knew of my sentence. The friends I had before disappeared. No one stayed besides me except for my family, who didn’t have a choice….And among the friends I later made I didn’t mention……But I was always afraid everyone would find out and leave.

At the European Court of Human Rights from 2001 to 2009.

R: It is often said that prisons are an intensive course in other criminal activities. You specialized in ;aws while in prison. You started studying them and understanding what was going on. This is how you decided to go to the ECHR to seek justice abroad. Was there no other way?

D.T.: I couldn’t get a retrial without an ECHR judgment. With the help of APADOR-CH I filled a complaint before the ECHR in December 2001. I received a decision in 2009. The ECHR found that I was unlawfully deprived of liberty, that I didn’t have a chance to appeal my arrest and I wasn’t offered the possibility to properly defend myself in court, so I wasn’t given a fair trial.

Quote from the ECHR judgment in Tarău v. Romania:

„The defendant was placed in pre-trial detention for 11 months, starting with February 2001 and filed a complaint before the Court claiming a breach of the right to be released after a reasonable time (established in relation to the facts of the case), as well as the right to appeal the decision to place someone in pre-trial detention and the right to equality of arms between the detainee and prosecutor. In relation to the procedure that followed the pre-trial detention the defendant complained about a breach of the right to a fair trial as she was not allowed to ask questions from the witnesses heard in the trial and to have her witnesses heard. ECHR held unanimously that the Romanian state breached the right to freedom of the defendant because the authorities did not justify the necessity to prolong the pre-trial detention and did not afford to the defendant the right to participate in the proceedings and have a real defense in the appeal proceedings against the pre-trial detention. The ECHR also found a breach because the defendant couldn’t question most of the witnesses of the prosecutor and no witnesses of the defense were allowed.”

R: After this what happened?

D.T.: In December 2010 the Supreme Court sent the case for a re-trial to a court from district 1 of Bucharest. I wrote the re-trial request myself. In 2010 I again had to run after documents. It was a long search for the case-file, for over 6 months, at the Supreme Court and district 1 court, both saying the case-file was not with them. Eventually my lawyer, Marius Iorga, found it under some sacks of concrete in an abandoned archive from district 1 court. Then I realized that the judge didn’t understand the ECHR judgment based on which the Supreme Court ordered the re-trial only for me and not for the other defendants as well. He considered he had to have a re-trial for all of the defendants. It was a blatant breach of procedure. The others had served their sentence and one was arrested in another case. We kept on telling the judge that this is not how he was supposed to act, the prosecutor said the same, just that the judge did not understand. Seeing that we couldn’t get through to him – he asked the Supreme Court 6 times for clarifications- the prosecutor asked for the case to be moved.

The Supreme Court, annoyed by all of the questions and noticing the big error made by the judge moved the case to the district 3 court where, thank God, we came across a well prepared judge.

R: Oddly enough, in district 3 you came across judge Denisa Chiujdea, the wife of prosecutor Dan Chiujdea, former supervisor of Cristian Panait, who oversaw your case back then, right?

D.T.: Miss Chiujdea, looking at the case-file– then the Tarău v. Romania case was on the exam for all the judicial institutions – saw that her husband was a prosecutor and wanted to abstain. But another panel of judges found that it has been 15 years since then and that the grounds are no longer relevant. Prosecutor Chiujdea was not the one who conducted the investigation, he only had a brief connection with it … but this was of concern to us as well, people talk at home about work, right?

R: It turned out she was the most professional judge you came across, right?

D.T.: Yes. Miss Chiujdea noticed that two volumes were missing from the criminal investigation file which consisted of 6 files. Volumes 1 and 2 were missing, where everyone’s witnesses were. When a judge sees that files are missing he has to redo those files. Accordingly we had to redo those 2 volumes. The district 1 court refused to redo them. The court asked all over for the files to be redone. This took 10 months. In volume 1 we had the initial statements of the victims. The judge wanted to re-hear all of the persons: 2 were dead, some left the country…For a year she heard everyone, 90% of the 44 victims said they did not know ms. Tarău. Some of them said we’ve seen each other there.

„After all of these years I find out that not even my mother thought I was innocent”

R: After 4 years of court proceedings the acquittal came. The prosecutor appealed the judicial decisions. Why?

D.T.: Yes, the judge found me innocent of all 44 crimes. For all of them she found there was no evidence to prove my intent for fraud. The appeal was just a formality. They had no evidence. The prosecutor was basically saying that since some of the victims saw her at the company, convict her in respect of those victims. The appeal court – this is where I was nervous – could decide between two things:

– dismissing the case because of the statute of limitation, or

– acquittal because there was no crime– what judge Chiujdea did.

At the appeal court the prosecutor was very feisty, and said she will ask for my conviction. Absurd. More than 14 years have passed, the statute of limitation has passed, but I didn’t want the proceedings to stop because of the statute of limitation because this would have meant I was still guilty. What silenced the prosecutor was that one of the defendants came in court and said he still has copies of the files and brought them to court. There we finally found all of the statement from the file. Finally! I must admit that for the next hearing the prosecutor changed her behavior radically. After reading them she didn’t want to propose any other evidence and the Appeal Court rejected the appeal.

R: How was acquittal day?

D.T.: 31 March 2015 was the day in which the Appeal Court rendered the final verdict. When I came home I told my mother that I won and she said <dear, not even me believed you! > Can you imagine that after all of these years I find out that not even my mom thought I was innocent? I asked her what didn’t you believe? She didn’t say anything; she realized she shouldn’t have said that….

R: What did your boy say?

D.T.: The boy was by my side throughout this story, since he was 8 until he turned 23. He always said he believes me, but how can I know what he really believed? He was always with me at every court hearing. I think he wanted to know what was going on, to have everything under control.

I had no reaction, it was as if I had no direction, I had no one to fight with. I am not even now fully aware that it is over, and it is as if I don’t have the strength to rejoice. For year, the first thing I did in the morning was to check the court website to see if anything happened.

What next: another lawsuit for damages and a new life in another country with no prisons

The story of Daniela Tarău is probably unique, not only from the perspective of the judicial error she faced but also because she was not overwhelmed and she didn’t give up when faced with what would break most people. Prison could have turned her into a criminal, even if she wasn’t one before going there. Instead of this a new path opened up for her. She graduated from Law school in 2011 with a 9.4 average, then pursued a master’s degree in criminal law at the Police Academy where she is now pursuing a PhD on „The Romanian prison system from the perspective of ECHR judgments”. She is also pursuing a master’s degree in pedagogy and would like to work in academia.

Now she has started another lawsuit, in which she is seeking damages from the Romanian state for the suffering she’s been put through.

R: Romania does not have very good jurisprudence on this. The Romanian state is in no hurry to pay for its mistakes, it barely admits them. Marcel Țundrea, the man who spent 12 years behind bars for a crime he didn’t commit, died soon after being released and he only received 5.000 Euros in damages. What do you think the Romanian state will do in your case?

D.T.: I think that a guilty country should pay its debt without being asked for it. It is still me that has to prove that I suffered from being placed in detention, it’s not enough to just say that I was in detention. To prove that during this time my dad died not knowing that I was innocent; that my boy attempted suicide while I was there; that my family was mocked and isolated without any blame; that I couldn’t find work for years because of my criminal record and that this whole story took over 15 year of my life. These years drained me, but I will still continue with this trial.

R: And after that?

D.T.: Then.. I don’t know. There comes a time when you realize where you are, that you proved what you wanted to prove and that you want peace. I’m 43. If I become rich after this lawsuit I think I’ll leave Bucharest. Here I couldn’t build a new life. Here from the balcony I see every day the van that comes from Giurgiu prison. I think I should move to a place where to start over. Even if at 44 or however old I’ll be when this trial ends, it might be late, but why not? I would like to move to Sibiu and work there in academia. In Sibiu there are no vans and no prisons. I would like to live in a county with no prisons.”

Daniela Tarău sued the Romanian state and asked for 900,000 euros in damages for the judicial error that changed her life.