Lumea Justitiei revealed in the January 22, 2020 edition how the former judge Corneliu-Bogdan Ion-Tudoran of the Bucharest Court of Appeal decided in November 2019 – while he was admitted to a sanatorium and no longer held the capacity of magistrate, having retired two months ago, on September 20, 2019 – to send one of the sons to the court to submit a stick on which was the reasoning of the Sentence no. 267F that he delivered on December 28, 2018 in case no. 4445/2/2016 in which he had solved the civil side of the Baneasa file. In the article “Reasoning from psychiatry” we showed how Ion-Tudoran, although he no longer held the capacity of judge and although the doctors had recommended him not to make an intellectual effort, considered it natural to motivate a decision that he should submit in court to make definitive his “work” of sentencing the businessman Puiu Popoviciu to 7 years in prison.
Ion-Tudoran motivated with the arguments of Nicoale Marin
In today’s edition, the Lumea Justitiei presents the fabulous motivation that former judge Corneliu-Bogdan Ion-Tudoran (left photo) was able to prepare while in the sanatorium (see facsimile 1).
As you shall see, the “legal work” of the former judge spans on 81 pages and is far from being original. We claim this because, as you shall see, the reasoning of the sentence in the Baneasa file on the civil side represents a huge copy-paste from the NAD indictment drawn up by prosecutor Nicolae Marin (right photo).
From the 81 pages of Sentence no. 267F, the first 10 pages contain the punishments applied by Ion-Tudoran in the Baneasa file, regarding the criminal side, while the following 58 pages contain the “means of proof” listed with dashes, in a copy-paste system from the indictment drawn up by prosecutor Nicolae Marin while in the NAD, today the deputy chief prosecutor at the Section for the Investigation of Justice Criminal Offenses.
Nor does the continuation of the so-called reasoning drafted by Corneliu-Bogdan Ion-Tudoran represent any of his own creations, because in an overwhelming proportion entire passages from the same indictment drawn up by prosecutor Nicolae Marin are reproduced (see facsimile 2).
ECLI Code ECLI:RO:CABUC: 2018:001.000267
File no. 4445/2/2016
(Old format number 2207/2016)
BUCHAREST COURT OF APPEAL
CRIMINAL SECTION I
CRIMINAL SENTENCE NO.267/F
Public meeting from the date of 28.12.2018
Panel constituted of:
President: Corneliu Bogdan Ion-Tudoran
Court clerk: Oana-Cristina Brebu
Public Ministry- Prosecutor’s Office attached to High Court of Cassation and Justice – The National Anti-corruption Directorate was represented by the prosecutor Daniela Baloi.
On the docket, the ruling on the criminal case regarding the defendants Alecu Ioan Niculae, Popoviciu Gabriel Aurel, Bejenaru Andrei Mihai, Diaconescu Ștefan, Luican Ion Mihai Florin, Toader Gabriel Răsvan, Todiraș Ioan, Minea Lizeta and Petrulian Gheorghe and the civil parties the Romanian State by the Ministry of Public Finances, University of Agricultural Sciences and Veterinary Medicine Bucharest, SC Baneasa Investments S.A., S.C. Baneasa Business & Technology Park S.A., S.C. Baneasa Rezidential S.R.L., having as its object the civil side disjointed from the criminal file no.9577 / 2/2012.The debates took place in the public hearing on 30.10.2018, being recorded at the conclusion of the meeting from that date, which is an integral part of this decision, when the Court, needing time to deliberate, decided on the date of 12.11.2018 and then postponed the ruling to 26.11.2018, 03.12.2018, 11.12.2018, 18.12.2018 and 28.12.2018, when, in the same composition, it decided the following:
Deliberating, in the conditions provided by art.393 related to art.397 Criminal Procedure Code, it ascertains and retains the following:
By the criminal sentence no.115 from dated June 23, 2016, the Bucharest Court of Appeal – Criminal Section I, in the file no. .9577/2/2012, which was legally invested by the indictment no.206 / P / 2006 from December 17, 2012, of The Prosecutor’s Office attached to the High Court of Cassation and Justice – National Anti-Corruption Directorate, through which the criminal proceedings were set in motion and the following defendants sent to trial Alecu Ioan, Popoviciu Gabriel-Aurel, Bejenaru Andrei-Mihai, Diaconescu Ștefan, Șerban Ilie Cornel, Pilcovici Petru-Daniel, Luican Mihai Ion Florin, Toader Gabriel Răsvan, Todiraș Ioan, Minea Lizeta and Petrulian Gheorghe, decided the conviction of the defendants, as follows:
- The defendant Alecu Ioan Niculae [ without criminal record],
– art.297 para. 1 with appl. art. 35 para. 1 Criminal code, with the application of art. 5 the new Criminal Code (art. 248 CC With reference to art. 248 1 Cp. with application of art. 41 para. 2 CC.), to 6 years imprisonment, for committing the crime of abuse of office in qualified form.
– art. 65 Criminal Code, prohibits the defendant from exercising the rights provided by art. 66 paragraph 1 letters a, b Criminal code, throughout the execution of the main sentence.
– art. 68 Criminal Code, prohibits the defendant from exercising the rights provided by art. 66 paragraph 1 letters a, b Criminal code, for a period of 5 years, after the execution of the main sentence.
It rejects, as unfounded, the civil actions brought by SC BANEASA INVESTMENTS S.A., S.C. Baneasa Bussines & Technology Park S.A. and S.C. Baneasa Rezidential SRL.
It rejects, as unfounded, the exception of the illegality point 120 from annex 2 of the Government Decision no.517 / 1999.
It rejects, as unfounded, the exception of the inadmissibility of the request for notation of the dispute in the land book.
It rejects, as unfounded, the exception of lack of interest.
It rejects, as unfounded, the exception of the tardiness regarding the invocation of the exception of the absolute nullity of the property transfer deeds.
It rejects, as unfounded, the exception of inadmissibility, regarding the invocation of the absolute nullity of the property transfer deeds.
Under the disposition of art. 267 from the Criminal Code, shall order the notification of the criminal prosecution bodies the Department for Anti-Fraud Fight (DLAF), the European Anti-Fraud Office of the European Union (OLAF), NAD, regarding the crime of embezzlement of European funds related to the Bucharest Municipality City Hall project. Bucharest, regarding the North area of the Bucharest Municipality, on the rehabilitation and arrangement of the water supply, storm water and domestic water – canal, connection to the gas network, connection to the electrical network and the establishment of access ways and roads, as well as the realization of others facilities, in order to investigate and prosecute the facts and persons related to the respective project.
– the convicted Popoviciu Gabriel Aurel to pay the sum of 10,000 lei, representing judicial expenses to the state;
– the convicted Bejenaru Andrei to pay the sum of 5,000 lei, representing judicial expenses to the state;
– the convicted Alecu Ioan-Niculae to pay the sum of 3,000 lei judicial expenses to the state
– the convicted Diaconescu Stefan at 2,000 lei judicial expenses to the state
– the civilly responsible party S.C. Baneasa Investments S.A., to pay the sum of 5,000 lei, representing judicial expenses to the state;
– the civilly responsible party SC Baneasa Business & Technology Park S.A., to pay the amount of 5,000 lei, representing judicial expenses to the state;
– the civilly responsible party S.C. Baneasa Rezidential S.R.L. to pay the sum of 5,000 lei, representing judicial expenses to the state.
Ex officio lawyer’s fee – in amount of 300 lei for each of the three defendants Popoviciu Gabriel Aurel, ALECU IOAN NICULAE, Bejenaru Andrei Mihai, Diaconescu Stefan, PETRULIAN GHEORGHE, Todiras Ioan, Luican Ion-Mihai-Florin, Toader Gabriel- Rasvan and MINEA LIZETA – will be supported from the funds of the Ministry of Justice.
With the right of appeal, within 10 days from the communication of the copy of the minute.
Delivered in open court, today, December 28, 2018.
Red. C.-B. I.-T.
R O M A N I A
[Romania’s coat of arms]
THE DEPARTMENT IN CHARGE OF FIGHTING
Personal data operator no. 4472
Under article 222, paragraph 1, Thesis I, of Emergency Government Ordinance (OUG) no. 43/2002, referencing art. 264, paragraph 3 of the Criminal Procedure Code (C.p.c.), verified in terms of lawfulness and soundness.
DEPARTMENT’S CHIEF PROSECUTOR
DORU FLORIN ŢULUŞ
December 17, 2012
I, Nicolae Marin – Prosecutor working for the National Anti-Corruption Directorate, the Department in charge of fighting corruption-related offenses;
After analysing the criminal prosecution documents submitted in the file bearing the number stated above, involving the Defendants:
– ALECU IOAN NICULAE – under investigation for having committed the offence of aggravated abuse of office, stipulated and punishable under art. 2481 of the Criminal Code, referencing art. 248 of the Criminal Code and observing art. 41, paragraph 2 of the Criminal Code and art. 26, corroborated with art 255, paragraph 1 of the Criminal Code and art. 6 and 7, paragraph 2 of Law no. 78/2000.
Specifically, the motivation of Ion-Tudoran from file no. 4445/2/2016 is divided as follows:
-Pages 1-10 contain the operative part with the punishments applied on the merits to the criminal side of the Baneasa file;
-Pages 11-69 are a copy-paste with semicolon from the indictment of Nicolae Marin, which lists “the evidence and the means of proof that were taken into account when delivering the sentence”, respectively “statements of defendants, statements of accused, witness statements, the report of technical-scientific finding of economic-financial nature, the report of technical-scientific finding of topocadastral identification, immovable asset evaluation, as well as all the criminal prosecution material that was taken into account when delivering the condemnation decision and the decision of the High Court of Cassation and Justice “.
It is worth mentioning that Ion-Tudoran’s dashes with the means of evidence can be found in Marin’s indictment from page 447 to page 572, being written only with larger fonts and more spaced.
–Pages 70-81 contain entire passages stolen from Chapter IV of the NAD Indictment regarding the “civil side” of the Baneasa file, in which some words here and there from the beginning of the phrases, or the order of the paragraphs were modified to give the impression of one’s own creation (see facsimile 3).
given the direct and unfettered connection between the criminal sentence that solved the criminal side and the criminal sentence to be delivered, in solving the civil side of the case.
During the criminal prosecution, the Ministry of Public Finance constituted itself as a civil party, on behalf of the Romanian State, requesting by the letter no. 256113, mainly, the restitution of the good in kind and the restoration of the situation prior to the crime, by returning the good, of the land on the surface of 226, 61 ha., in the public property of the state and the annulment of the legal acts – product of the crime – the acts issued by the commissions of Law no. 1/2000, as well as all subsequent acts, concluded as a result of the title issue.
In the alternative, pursuant to Article 14 paragraph 3 from of Criminal Procedure Code and only to the extent that, at the time of the settlement of the civil action, the repair of the damage in kind is no longer possible, the Ministry of Finance requested the guilty persons to pay the sum of 600,523,000.6 lei, representing the value of the immovable property, as it was established by the technical-scientific finding report drawn up by the NAD.
At the same time, the Ministry of Finance has requested the granting of monetary damages for the use for which it was deprived, according to art. 14 para. 4 from the Criminal Procedure Code.
In essence, due to the request, the Ministry of Finance shows that, in order to relocate the agricultural lands that were in the public domain of the state, it was necessary to proceed to pass these immovable assets into the private property of the state, respecting both the provisions of the land law and the observance of Law no.213 / 1998, on public property and its legal regime.
In this respect, the provisions of art.10 from Law no. 132/1998, as well as decision no.23 from dated 17.10.2011 of the High Court of Cassation and Justice were invoked, by which the Appeal in the Interest of the Law formulated by Prosecutor General of the Prosecutor’s Office attached to the HCCJ, establishing that the removal of an asset from the public domain of the state is possible only by following the procedure provided by art. 10 paragraph 2 from Law no. 132/1998.
By issuing the title of property over the land with the surface of 224 ha, without the existence of a decision of the Government of Romania, to pass the land from the public domain, in the private domain of the state, a damage amounting to 3.353.872.606.00 lei (rol) was caused to the Romanian state.
As we have shown above, the procedure provided by art. 10 paragraph 2 from Law no. 132/1998 was not possible, given the stipulation from the donation contract, by which the Romanian State became the owner of the land and to which the change of the land destination and the purpose of the donation was forbidden.
The respective land was given to the administration of USAMV Bucharest, for its use, this institution having no obligation towards the Romanian State, respectively the payment of any rent or any royalty.
The defendants ALECU IOAN NICULAE and Diaconescu Stefan brought the land to S.C. Baneasa Investments S.A. and they deprived USAMV Bucharest of the benefits that were due to it based on the right of administration it exercised on the land.
The public property right is not the same as the right of administration, the right of use or the right of possession. The asset must be used and administered with good faith, without changing its destination or surface or being alienated, in one form or another.
The use and possession of the asset are elements of the right of administration and allow the achievement of the purposes for which the respective asset was given to them.
Both defendant ALECU IOAN NICULAE and Diaconescu Stefan contributed the land to the share capital of S.C. Baneasa Investments S.A. and, in complicity with the defendants POPOVICIU GABRIEL-AUREL and Bejenaru Andrei-Mihai they underestimated it- on the one hand, and on the other hand – through the improper exercise of their office duties, as a members of the GMS and BoD to the company, they accepted and ordered the withdrawal of the money from the company, brought as a contribution to the share capital of SC International Busines & Trading Corporation Limited, thus harming the company.
On July 31, 2012, USAMV Bucharest submitted the Senate Decision from July 27, 2012, by which, it constituted itself as a civil party with the amount of 6,194,722,180,586.5 lei (rol).
The civil side
- As noted in Chapter I section I.3 of this indictment, the land area of 226.61 hectares, is part of the state public domain, within the administration of UASVM Bucharest. According to GD 517/1999, as amended by GD 776/1999, the area of 226.61 ha is in the public domain and is contained in Annex 2, UASVM Bucharest University being mentioned in section 120.
According to GD 123/1993, as amended by Government Decision 47/1999, the surface of 226.61 ha in the public domain was put into administration of UASVM Bucharest.
What should be stressed is that all government decisions mentioned above are in force also at this time.
Given this circumstance, by report no. 256 113 dated 25.07.2012, the Ministry of Public Finances brought a civil action on behalf of the Romanian state, requesting mainly the restitution of the property in kind and to reestablishemnt of the situation prior to the perpetration of the criminal offence by returning the good, the land area of 226.61 ha, to the public property of the State and the cancellation of legal documents products of the criminal offence – acts issued by the commissions for the application of Law 1/2000 as well as all the subsequent acts signed as a consequence of the ownership title issuance.
In the alternative, pursuant to art. 14 para. 3 of the Criminal Procedure Code and only to the extent that at the time of the civil action settlement the reparation of the damage in kind is not possible anymore, the Ministry of Finance has asked that the guilty persons pay the amount of 600,523,000.6 lei, representing the equivalent value of immovable assets as it was established by technical-scientific report prepared by the National Anticorruption Directorate.
Moreover, the Ministry of Finance has requested the granting of financial compensation for the use that it was deprived of under Art. 14 para. 4 Criminal Procedure Code.
In essence, in the motivation of the request, the Ministry of Finance shows that for the restitution of the agricultural lands appearing in the public state domain, it was necessary to proceed to the passage of such property in private ownership of the state, complying both with the provisions of land laws and with the observance of Law 213/1998 concerning public property and its legal status. In this sense the dispositions of art. 10 of Law 213/1998 as well as the decision no 23 of 17.10.2011 of the High Court of Cassation and Justice have been invoked, by which the second appeal in the interest of law filed by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice was admitted, establishing that removal of property from the public state domain is possible only by following the procedure provided by art. 10 para. 2 of law 213/1998.
It is more than clear that, by the issuance of the land ownership title on the land of 224 ha, without a Governmental Decision of passing the land from the public to the private domain of the state, a damage amounting to 3,353,872,606,000 ROL was caused to the Romanian state.
The damage was caused to the Romanian state, represented by the Ministry of Public Finance.
- In what concerns the solving the civil side, in the hereby case it should be kept in mind that, under the GD 1993 amended by GD 47/1999, the land area of 226.61 ha in the public domain has been put into administration of USAMV Bucharest.
Under the management right of the land area of 226.61 ha, USAMV Bucharest had no obligation to the Romanian State represented by the Ministry of Finance.
In conclusion, the only thing that belongs entirely to the former judge Ion-Tudoran is the sentence operative part. But this is in fact a transposition of the thinking of the case prosecutor Nicoale Marin.
Basically, from the way in which the motivation sent from the sanatorium by the former judge Ion-Tudoran is drafted, we understand that he fully appropriates the reasoning of the prosecutor Nicolae Marin and the evidence he has instrumentalized during the criminal prosecution. Perhaps he could not have done otherwise, if we take into account the fact that, during the judicial investigation at the Court of Appeal of Bucharest, the former judge Corneliu-Bogdan Ion-Tudoran refused nine requests for expertise to establish the prejudice, only relying on the reports of NAD, which otherwise has so expertly enumerated in copy-paste regime in the sentence no. 267F of December 28, 2018.
The criminal files of Ion-Tudoran from SIJCO do not move at all
On the other hand, corroborating the identity between the sentence of Ion-Tudoran and the indictment of prosecutor Nicolae Marin on the “Baneasa” file with the information conveyed in the public space, according to which the former BCA judge is the subject of several files at the Section for the Investigation of Justice Criminal Offenses (led in present by Nicolae Marin), as well as with the fact that in the summer of 2019 – when Ion-Tudoran had not yet finished drafting the motivation in the Baneasa file – the former CAB judge has allegedly had coffees with prosecutor Marin in the Special section headquarters, we ask:
Is the former judge Corneliu-Bogdan Ion-Tudoran somehow favored at the Section for the Investigation of Justice Criminal Offenses, led by Nicolae Marin, as a reward for confirming the Baneasa indictment?
We do not accuse, we legitimately ask this in the conditions in which it is notorious that Ion-Tudoran currently has several criminal complaints at the SIJCO, and yet the SIJCO does not move any file.
The Bucharest Court of Appeal allowed the sentence to be recorded by Ion-Tudoran, although he was no longer a judge
At the same time, we notice another problem inside the Bucharest Court of Appeal. Namely, although it was known that the judge Ion-Tudoran can no longer reason the decision in the Baneasa case on the civil side from December 20, 2019, when the retirement decree was published in the Official Gazette, it was allowed that on November 6, 2019, one of the sons of Ion-Tudoran filed at the registry of the Criminal Section I the motivation of the Sentence no. 267F of December 28, 2018 from the Baneasa file (see facsimile 4).
The undersigned Ghita Liliana-Aurelia, clerk within the Criminal Section I of the Bucharest Tribunal, I hereby inform you that on the date of November 4th, 2019, I received, on a memory-stick, the drafting of the criminal sentence no. 267/F of the date of 28.12.2018, to which I gave a final form for Ecris and I printed.
On the date of November 6th, 2019, I submitted one copy to each of the chief clerk Mrs. Corina Fana and Mrs. Mariana Adam.
From our point of view, it is extremely serious that the sentence was allowed to be recorded and attached to the file, although it had been drafted by a person who was no longer a judge. Because, we repeat, starting with September 20, 2019 (the date when the decree of release from the position of judge that President Klaus Iohannis signed on September 19, 2019 was published in the Official Gazette) Ion-Tudoran was no longer a judge, not being able to write any act in this capacity.
Thus we ask, how was it possible for the honorable Bucharest Court of Appeal to accept that a former judge should submit the reasoning of sentence no. 267F without the latter having the capacity of magistrate at the time of submission? The Judicial Inspection and the Superior Council of Magistracy would better clarify these issues!