Tag Archives: prosecution

2011 Reports for Bulgaria and Romania under the Cooperation and Verification Mechanism

The European Commission has published its fifth progress reports for Bulgaria and Romania under the Cooperation and Verification Mechanism (CVM) for 2011. The reports monitor the progress of the two Member States on progress with judicial reform, the fight against corruption and, concerning Bulgaria, the fight against organized crime.

The report on Bulgaria notes that Bulgaria has strengthened the Supreme Judicial Council and improved rules for the appointment, professional training, appraisals and promotions of judges. Several organised crime and corruption cases have reached verdicts in court. At the same time, an increased number of indictments in cases related to organised crime and fraud with EU funds have been achieved. The report notes that the leadership of the Bulgarian judiciary has yet to show a real commitment to thorough judicial reform as slow progress is not just the result of shortcomings in judicial practice and in the Penal Code. Again and again the Commission points out that judicial appointments still lack the necessary level of transparency and credibility. The report also notes that there is a lack of consistent disciplinary practice in the judiciary. The Commission sees weaknesses in the collection of evidence, the protection of witnesses as well as in investigative strategies, comprehensive financial investigations and the securing of assets. The Commission recommends that coordination within the prosecution and between the prosecution and the police should be improved. The most important recommendation of the Commission is to establish proposals for a reform of the Supreme Judicial Council, the Supreme Cassation Prosecution Office and the Prosecution in general regarding structures, legal attributions, composition, appointments and internal organization.

The report on Romania points to the significant steps Romania took since the last annual report of July 2010. Romania improved judicial efficiency, re-established the legal basis of the National Integrity Agency, continued preparations for the implementation of the four new codes, launched preparations for a functional review of the judicial system and carried out an impact analysis of its anti-corruption policy. At the same time, the report also notes that consistency and results in a number of areas remain a challenge and that progress in the fight against corruption still needs to be pursued. The report concludes that Romania needs to take urgent action to accelerate high-level corruption trials and to prevent their prescription due to expiry of statute-barred periods. The fight against corruption should remain a top priority, with support from Parliament, and urgent measures should be taken to improve the recovery of proceeds of crime, the pursuit of money laundering and the protection against conflict of interest in the management of public funds.

 

 

The Wikileaks Cablegate – a Legal Backgrounder

Apart from the understandable hype surrounding the Wikileaks Cablegate, there are many legal questions that need clarification. I have tried here to summarize available sources and comments on the different aspects of the Cablegate.

1. Wikileaks Cablegate as a violation of espionage laws

Australian and US law enforcement agencies are reportedly studying the possibility of criminal charges against WikiLeaks founder Julian Assange, including charges under the Espionage Act, for publishing classified US diplomatic cables. The US Espionage Act was adopted in 1917. There are some opinions that the Espionage Act is generally viewed as outdated in light of more modern case law on the First Amendment, also shown in the federal government loss in the Pentagon Papers case. Others say that if the US really believes that the Espionage Act is a constitutional law that ought to be enforced then they’d better be prepared to go after the New York Times, Le Monde, Der Spiegel, and El Pais, all of which published the classified cables after being granted early access and were part of a clear conspiracy with Wikileaks to break the Espionage Act.

U.S. Congressman Peter King has also vowed for the US to declare Wikileaks a terrorist organization, which would presumably allow the US to use anti-terrorist legislation, possibly Title VIII of the Patriot Act. There, however, provisions allow prosecuting the person who gained unauthorized access and caused subsequent damage to a protected computer, which could only be applied to the person who stole the cables in the first place.

In conclusion, it is possible for the US government to use the Espionage Act, but it will face many hurdles due to its potential unconstitutionality.

2. Julian Assange’s Rape Conviction

INTERPOL has made public the Red Notice, or international wanted persons alert, for WikiLeaks founder Julian Assange at the request of Swedish authorities who want to question him in connection with a number of sexual offences. However, INTERPOL cannot demand that any member country arrests the subject of a Red Notice.

Assange’s lawyer, Mark Stephens has previously said that the allegations were made after Assange had consensual sex with two women who turned on him after becoming aware of each other’s relationships. Sweden’s Supreme Court was reviewing Assange’s appeal of the order to detain him. Court official Kerstin Norman, who is handling the case, said a decision is expected late Wednesday or Thursday.

There is reportedly also a European arrest warrant for Assange by the Swedish authorities, but it was incorrectly filled out.

3. Amazon Hosting for Wikileaks

Amazon Web Services has stopped hosting Wikileaks. This was done for unspecified reasons, but as Larry Dignan points out, Amazon states clearly in its terms of service that it can host you as well as terminate an agreement at will.

4. Death Threats to Julian Assange

Certain individuals in the US have publicly called for the murder of Julian Assange. In US case law advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act. I am not an expert in US law, but it appears to me that these threats constitute a violation. However, it is not clear whether someone in the US or Australia would want to prosecute those threats. In Bulgaria or in the European Union in general these threats would be prosecuted.

5. Conclusion

Three developments should be observed:

  • if and how the US decides to prosecute Wikileaks and/or the newspapers that leaked the cables, and
  • how the criminal case against Julian Assange is processed by the Swedish prosecution and courts, and
  • whether some legal action is taken against individuals that incite the killing of Mr. Assange.

 

 

Bulgarian Prosecution Denies Police Brutality during January Protests

The Sofia City Prosecutor’s Office has declined to initiate a formal investigation against police officers for the severe suppression of the protest in front of the Bulgarian Parliament on 14 January 2009.

I could not disagree more with this conclusion. I was myself witness of cases of police brutality during that day in my attempt to protest peacefully. I wrote about the police brutality the same day (you can read a Google translation of my account). I was later not surprised to see that the Bulgarian Parliament declined to form an ad hoc commission to investigate events during that day.

Now the Prosecutor’s Office tells me I didn’t see what I saw; that I am not able to discern between necessary and unnecessary use of force. True, it is up to that institution to conduct a formal investigation of events; it is also up to the prosecutors to decide whether there are grounds for starting an investigation in the first place.

But this development given all the information that we have about the events is really cynical. It is also exonerating all the acts of police brutality during that day. It is delegitimizing the whole Bulgarian law enforcement system only to protect the political instigators of that brutality.

Strangely enough, this announcement comes just a few days after the Minister of Justice announced 57 measures to reform the judiciary in order to respond to the criticism of the European Commission and Member States about our justice system.

Make no mistake – until ALL crimes in this country are prosecuted, no matter WHO committed these crimes – we will not have achieved any meaningful reform of the judiciary.