The politics at the heart of Romania’s #Baneasa Case

For most international observers, the Baneasa real estate development was a Romanian success story. It was a huge investment coordinated by businessman Gabriel Popoviciu on 221 hectares owned by the University of Agronomic Sciences and Veterinary Medicine (USAMV), through a joint venture. At that time it was the biggest real estate project in Europe and the biggest development done privately in Romanian history. The result is a world class shopping centre which has attracted global brands such as Ikea. The mystery for many is how this success story has become a politicised legal dispute?

Baneasa has provided more than 20,000 jobs and provided the Romanian state with taxes and fees of over 1.15 billion Euros during the period 2005 to December 2019, exceeding several times over the circulation value of the land, as analysed by international experts. It is also important to note that the land did not disappear. It still belongs to the state-owned university, meaning that the university earned millions of Euros from the venture, allowing it to enjoy the status of being one of the most modern universities in the country.

The joint venture was later transformed into a commercial company called Baneasa Investment in which USAMV owns 49.882% and the university holds the title to the respective lands. Another interesting point is that 4 hectares out of the 221 are actually home to the modern US Embassy building. It seems unlikely that the US, a country that takes so much strategic interest in Romania, would build its embassy on the land if there was any credible legal challenge. On 8 October 2002 there was a final Romanian court decision that ruled the land was not the public domain of the state.

However, the Baneasa venture has been targeted by legal proceedings. At first, for an international observer, it was difficult to tell if this was a typical “build them up and knock them down” situation, a national resentment of successful business leaders. However, as the plot emerges, it seems clear that there are more specific political games at play.

The role of the National Anti-Corruption Directorate (DNA) seems clear. They opened a case of “abuse of office”, which was strange in itself, given that a few years before the General Prosecutor’s Office had investigated the case and had dismissed it. More specifically, the prosecutor’s office gave an order not to start the criminal prosecution on 14 February 2008 into Gabriel Popoviciu and the rector Ioan Alecu, over a criminal complaint made by the landowner Gigi Becali. Yet in the summer of the same year the DNA reopened the case on the grounds that the damage exceeded one million Euros and was within its competence. On top of that, the report of finding the damage was made by DNA specialists only in 2010, that is, two years after they arrogated the file. It is understood there was an “order from above”, which initiated a series of detentions, searches and seizures, which included the bizarre allegation that Gabriel Popoviciu offered a bribe of a calendar and a bottle of whiskey to a police officer, which if it had been true must surely have been a very disappointing bribe from one of the wealthiest men in the country. It was subsequently proven that this bribery allegation against Mr Popoviciu was untrue.

But the unseemly saga continued; University professors were apparently gathered in a room and told of a visit to the university by the DNA Prosecutor Nicolae Marin and threatened with arrest and detention in the DNA headquarters if they did not vote in the Senate that the University constituted itself as a civil party, as requested in writing by the DNA. Despite the modern nature of the university and the profits made through the venture, the fear of arrest was too much for the professors and they voted to register in the DNA file as a civil party, without being able to establish the amount of damage, because they could not calculate non-existent damages. DNA prosecutors ruled in their own right in 2010 that there was damage, and that it consisted of the market value of the 221 hectares, despite not having the expertise to make such an analysis. It is difficult to estimate any damages since the land did not disappear and still belongs to the joint venture where the university has almost a 50 percent stake. The inclusion by the DNA of the rector Ioan Alecu in the charge of “abuse of office” is also puzzling, as he is was not a civil servant.

The DNA seizure and blocking of bank financing had major implications, meaning that shopping complex was surrounded by a sea of fallow land, blocks of flats and villas that were not completed, and which were part of the investment plan. A residential neighbourhood was blocked by the DNA prosecutor, Nicolae Marin, due to a criminal complaint from a landowner, upset that he did not receive the opportunity of the venture with the University.

Faced with the rising anger of public opinion, caused by the DNA, the then President of Romania Traian Basescu intervened in the press: “Let’s understand each other on the following: where is Popoviciu’s crime that he made an investment of several billion in Bucharest? Is it a crime? It seems that this is the public approach and it is very wrong. The problem, if it exists, is in the area of legality of land transfer, but from here to blaming an investment of such size, I consider it a mistake.”

It is interesting that President Basescu admitted that this was not a crime, but that there might be “problems” with the property title. The very mention of the very specific detail of the title deed of the property was a giveaway that Basescu was no stranger to the case at all. He had no way of knowing this judicial detail with the “problem” of the title deed, which had not been publicised and not even the defendants in the case knew it at the time of the statement.

Another very interesting fact is that President Basescu’s eldest daughter, Ioana, had bought a penthouse in one of the blocks of flats built by Baneasa Investment for half a million euros and had opened her notary office in a building there, at a small distance from the US Embassy. This was covered in the media and perhaps made President Basescu feel defensive about where his daughter got so much money from.

Bucharest insiders also point to a night when the businessman Gigi Becali’s football team had played and President Basescu was seen socialising with Mr Becali after the match. There is much speculation that some sort of deal was struck that evening to “go after” Gabriel Popoviciu. It is certainly increasingly accepted in Romania that Gabriel Popoviciu was pursued with President Basescu’s knowledge and possibly his sign-off, with the DNA executing the persecution of him, using the protocols which have drawn so much international criticism.

The political manoeuvres that were taking place were even more far-reaching. Cornel Seban, the head of the internal protection service, was forced to resign and it was alleged that his organisation was filled with those backed by General Florian Coldea, the operative chief of the SRI.

Returning to the DNA prosecutors, Nicolae Marin had become known as a “problem magistrate”, plagued by acquittals and for acting brutally, causing Romania’s conviction at the ECHR for its investigation in the Baneasa case. The ECHR in Strasbourg found by Decision of March 1, 2016 (File 52942/09) that the arrest warrant of March 23, 2009 issued by prosecutor Nicolae Marin related to Gabriel Popoviciu did not contain any of the reasons provided by law – article 183 para. (2) the old CPC – to justify the measure. “The Court concludes that, by failing to state the reasons on which it was based, the prosecutor’s mandate violated the applicable internal criminal procedural provisions.”

The European court ruled that the businessman was illegally deprived of his liberty between the time he was brought to the DNA headquarters and the time the restraining order was issued. The ECHR found that Mr Popoviciu was escorted to the DNA headquarters on March 24, 2009, around 15:00, being held in police custody until 23:30, without the deprivation of liberty in the 8 and a half hours to have a legal basis: “the applicant was not deprived of liberty in accordance with a procedure prescribed by national legislation, which makes imprisonment from 15:00 to 23:30, on March 24, 2009, incompatible with the requirements of Article 5.1 of the Convention ”.

The trial followed. In 2012, the prosecutor Nicolae Marin issued the Indictment in the file 206 / P / 2006 of 17.12.2012. The case of the Baneasa project (9577/2/2012) was assigned to Judge Bogdan Corneliu Ion Tudoran, from the Criminal Section I of the Bucharest Court of Appeal, an individual who has alternated in his career between politics and the judiciary, being in the past Secretary of State for Defense. Bucharest insiders say he had a dubious past and a son with big legal problems. During his time at the Ministry of Defence, an infamous land swap was conducted between Gigi Becali and the Ministry, resulting in both Mr Becali and the Minister Victor Babiuc serving jail time. It was known that Gigi Becali and Judge Tudoran knew each other well, going back to the 1990s.

On 23 June 2016, Judge Bogdan Corneliu Ion Tudoran sentenced Mr Popoviciu and all accused in the case for sentences ranging up to nine years in prison. Legal commentators were mystified by the judge’s actions: although the criminal offence of abuse is one of damage, he convicted the accused of abuse without establishing the damage. He gave the convictions and separated the criminal case from the civil one, forming a new file (4445/2/2016) in which to subsequently decide the issue of damage from the file 9577/2/2012. Such a course of action had not been seen before. In the reasoning of his decision, he copied and pasted the indictment exactly as it was written by Prosecutor Nicolae Marin. Mr Tudoran himself took the civil case.

The next step was that, without waiting for the settlement of the civil case, the High Court rejected the appeal of the defendants in the Baneasa case, reducing the sentence applied to Popoviciu to seven years in prison. That is why the businessman, who was in London, surrendered to the British authorities and asked not to be extradited on the grounds that he had been abusively convicted by a corrupt political-judicial system. The extradition case is currently pending before the British courts.

Back in Bucharest, the saga continued. Judge Tudoran requested retirement. There are reports that he felt under psychological pressure due to criminal complaints from various victims, which were analysed at the SIJCO, alleging connections with the underworld. On December 28, 2018, he issued sentence no. 267 / F (4445/2/2016), in which he found the existence of a prejudice and orders that all the land be returned to its original state. This was a particularly nonsensical decision, which would have entailed the demolition of the whole Baneasa mall and the US embassy, a ludicrous idea that could not possibly be in Romanian citizens’ interests.

On September 19, 2019, Mr Tudoran requested retirement. He then decided to resign to escape criminal investigation, and his resignation was approved by the Decree of the President of Romania no. 704 published in the Official Gazette no. 764 of September 20, 2019. He then disappeared without finalising any justification on the sentence on the civil side, which the judges of the High Court were waiting to be sent on appeal. After several attempts by clerks from the Bucharest Court of Appeal to track him down, the media discovered that he had been hospitalised for psychiatric illness. Opinion is divided on whether he genuinely suffered such illness, or it was made up to protect him from criminal responsibility.

Lumea Justitiei revealed for the first time that on November 4, 2019, while Judge Bogdan Corneliu Ion Tudoran was in a psychiatric unit, his son appeared at the clerk office of the Bucharest Court of Appeal and handed over on a USB memory stick (of course with no signature), in electronic format, the reasoning of the civil sentence from December 28, 2018. The reasoning — not even in a signed form — could no longer be accepted, because Mr Tudoran was no longer a judge, he had been officially retired.

The Board of Management of the Bucharest Court of Appeal officially found, in writing, “the impossibility of drafting decision no. 267 / F of 28.12.2018 ”, so that on June 12, 2020, the High Court decided: “It cancels the appealed criminal sentence and sends the case for retrial to the same court, respectively to the Bucharest Court of Appeal”.

The status of Judge Tudoran remains a problem. He has been criminally investigated by the SIJCO. The case prosecutor Mihaela Iorga Moraru cannot bring Mr Tudoran to hearings on the grounds that he has been hospitalised for more than a year. This was followed by shockwaves over footage showing Mr Tudoran’s secret visit to the SIJCO in August 2019. He was photographed and filmed with his son. It is reported that he was visiting Nicolae Marin, the current head of the Section for the Investigation of Criminal Offences in Justice, “for a coffee”.

The plot then thickened even further as it was discovered that Chief Prosecutor Nicolae Marin was the author of the indictment, which Mr Tudoran copied and pasted verbatim. Questions still circulate about whether Mr Tudoran was really unwell. When did this illness start? How was he mentally healthy for the criminal trial but then unable to reason for the civil side? Was the illness a ruse, fabricated to take him out of circulation and protect him from scrutiny over his alleged close links to Nicolae Marin? Nicolae Marin and Laura Kovesi’s connections to the controversial protocols with the intelligence services also continue to cause concern.

There appears to be a trail, leading from President Basescu, down to Judge Tudoran, which created and executed a nonsensical case against a development that Romania should be proud of. The result of this case is that many people are in prison as a result of Mr Tudoran. The exception is Gabriel Popoviciu because he surrendered to the British authorities. The case does not reflect well on Romania, at a time when international investors need to see that in a country that dearly needs FDI, investment is rewarded, not persecuted.