Arnaud Develay

(EU) Frontier Justice: A Broken Rule of Law

14:49, 6 decembrie 2018 | Actual, Declarații | 1267 vizualizări | Nu există niciun comentariu Autor:

“Yes hall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?”
(Matthew 7: 16)

To what extent is it possible to make a case against a Defendant short of literally grasping at the proverbial straws of incriminating evidence? The beginning of an answer to this most sensitive question requires one to examine the case filed against Moldova’s Iurie ROSCA.

On November 30th the tribunal of Chisinau finally held its first hearing bearing on the merits of the case initiated against ROSCA; one of Moldova’s most charismatic political figures who stands accused of corruption.

As was to be expected, Defense Counsel issued a barrage of preliminary motions bearing on the following issues:

  • The Prosecution’s refusal to communicate the entirety of the casefile to ROSCA’s
  • defense Counsel at the final stage of the investigative process
  • An indictment featuring a non-existent criminal code subsection
  • The state’s initial decision to bar ROSCA from traveling abroad

The Dubious “Science” of Graphology

Defense Counsel also filed a motion in support of a new expertise to counteract the Prosecution’s lone piece of incriminating evidence: a writing sample purported to have been authored by ROSCA.

At this point, it behooves the reader to know a couple of things as relates to the expertise in graphology relied upon by the State of Moldova:

  • The expert who delivered the expertise works directly for the Anti-Corruption Unit
  • No cross-expertise may be made available during the investigative phase (although it is possible to request that “complementary diligences” be  accomplished  within the scope of the expertise ordered by the Prosecution.

As pertains to graphology, the reader will be interested to note the following:

In 1993, the US Supreme Court formulated the “Daubert Standard” in Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993). Under this standard, federal judges are bound to apply the following criteria:

  • Has the practice has been tested?
  • Has it has been subjected to peer review?
  • Does it serve a real purpose?
  • Is it accurate?

As, experts in graphology are held to the same professional standard as would be a psychologist or a psychiatrist in that it is required of them to prove the scientific validity of their work.

Truth be told, graphologists are frequently unable to do so due to the inherent difficulty in proving the consistency and reliability of such a prediction. In United States v. Salee (2001), a federal court came to the conclusion that graphology was utterly lacking in merit for it is completely subjective.

The Fishing Expedition

Defense Counsel then filed a motion challenging the admissibility of countless surveillance transcripts as being totally irrelevant to the case.

The transcripts essentially bear on aspects of daily life which as such are shared by any Moldovan citizen and do not, be they taken separately or as a whole, purport to convey, let alone establish anything in the way of corruption.

To be sure, these transcripts are reminiscent of those produced by the STASI and Romanian SECURITAT agencies which figured prominently in the case against ILITCH RAMIREZ SANCHEZ.

As in the case under discussion, these operations of surveillance not only fail to inform any potential juror about relevant material (“suspect takes a shower”, “suspect talks about how much he enjoys listening to Opera” etc.) and because they can easily be subjected to doctoring, any court remotely with a fair administration of justice should call for a dismissal of the entire case as the Criminal Court of Karlsruhe deemed necessary when it was confronted with similar bogus evidence in the prosecution of CARLOS’s former right-hand man, Johannes WEINRICH.

On these last two issues, the Court will issue a decision on January 9th.

Arnaud DEVELAY is a Franco-American international human rights lawyer. He can be reached via email: