Can Shor’s Testimony Get MPs Tauber and Apostolova Off the Hook?
This is a translated and slightly adapted version of an article originally published in Romanian on September 19.
Earlier this week Shor Party lawmakers Marina Tauber and Reghina Apostolova have been stripped of their parliamentary immunity and arrested the same evening. Ilan Shor himself, a fugitive from justice reportedly absconding in Israel, says his fellow party members have been taken hostage to get at him, that they are innocent, and that his earlier testimonies have the power to exculpate them.
“I have testified many a time [...] that all these people acted exclusively on my request. As I said over and over, I was just trying to get the bank out of trouble,” stated Shor, adding: “by law, considering my testimonies, you may not touch them!”
What the fugitive MP seems to suggest is that his turning himself in in the past can clear his colleagues of all the blame in what has become known as the $1B bank fraud or the ‘heist of the century.’ For one thing, he never admitted any guilt in this case, as is hinted in the quote above. Shor has been pleading innocent throughout his trial both in the district court, which convicted him to 7½ years in 2017, and in the appeal phase, which has notoriously been protracted since. But can his confessions really make Tauber and Apostolova untouchable and free from prosecution? Let’s look up the Criminal Code, shall we?
This past Monday, acting Prosecutor General Dumitru Robu requested the Parliament to authorize the prosecution of Marina Tauber and Reghina Apostolova. The MPs took a break, the Legal Committee scrambled to swiftly hear the matter, the Shor group walked out in protest, and when the sitting resumed, the parliamentary majority voted to lift the two MPs’ immunity. In a matter of hours, the National Anticorruption Center had them both detained for fear they might flee.
The swiftness of the whole operation is out of the ordinary. Per the established protocol, the Prosecutor General first petitions the Speaker, who has 7 days to present the request in Parliament before sending it along to the Legal Committee. The Committee then has 15 days to hear the matter. After seeing the Committee’s report, the legislature has 7 more days to approve or reject the Prosecutor General’s request. These are of course all upper limits. But when the law affords a maximum of 29 days for a procedure, and the MPs do it in a couple of hours, this could indicate, in the best case, a superficial treatment of the “reasonable suspicions” presented by the chief prosecutor.
At the same time, the decision to apprehend Tauber and Apostolova without delay seems warranted, given the precedent set by their party leader. The prosecutors could safely cite Art. 166 of the Code of Criminal Procedure, which says that “apprehending a suspect may be ordered if there is reasonable suspicion to assume that he or she could abscond from prosecution, obstruct justice, or perpetrate further crimes.”
What are the accusations brought?
Details are scarce about the potential implication of the two MPs in the bank fraud, but this is what we know so far: they have been accused that, holding stakes in Unibank, Tauber and Apostolova acted in concert with other Shor group members to defraud the bank. Both appear in the audit report compiled by the corporate investigative firm Kroll. Reghina Apostolova reportedly bought shares from Unibank and Banca Socială with money borrowed from offshore companies and using accounts in ABLV, a Latvian bank that played a key role not just in the $1B fraud, but also in the infamous Russian Laundromat. Marina Tauber became a shareholder in Unibank with loans from the same ABLV.
What does the Criminal Code say?
Whether Tauber and Apostolova are guilty or not is, of course, up to the court to decide. But Ilan Shor’s argument holds more than declaring his colleagues to be innocent. According to Shor, his telling the prosecutors how they acted on his orders to save the bank must work as an exculpatory amulet.
First of all, it’s not clear what testimonies exactly Shor talked about. If he referred to his famous “voluntary surrenders”, Tauber and Apostolova were not mentioned in either confessions. What he told prosecutors in other cases, we do not know, but the Moldovan criminal legislation sets out very specific exculpatory circumstances, which are definitely not applicable to the duo.
We discussed Shor’s first “voluntary surrender” in more detail in 2017 (RO). The then PG Eduard Harunjen sparked public outcry by claiming that Shor atoned for his sins in the Filat influence peddling case by coming forward and tattling on the former prime minister. While Shor did eventually get away unpunished from this particular story, the law grants exoneration only to a bribe-giver that comes forward before the police can smell the crime out. It clearly wasn’t the case.
But back to our duo. If the two MPs acted on Shor’s orders, according to the Criminal Code, this makes him an organizer or instigator, and them partners in crime or accessories.
There are two circumstances that theoretically could clear Tauber and Apostolova of guilt. The first is regulated by Article 40(1) of the Code, which states that a person shall not be held criminally liable if he or she acted on “an imperative order” from a superior. However, it adds the following condition: “provided that that order or instruction was not manifestly illegal and the person that carried it out did not know that it was illegal”. But being a shareholder in a bank hardly puts one in a subordinate-superior relationship in relation to the bank’s management or the majority shareholder, to begin with.
The second circumstance is laid out in Article 20 and is called “non-culpable conduct”: “The act shall not be considered culpable if the person who committed it was not aware of the criminal nature of his/her action or inaction, did not expect it to produce any harmful outcome and, according to the circumstances of the case, was not required or could not anticipate such.”
It’s implausible to suggest that Tauber and Apostolova borrowed money from a Latvian bank, using offshore accounts, to buy stakes in Moldovan banks and act in concert with Ilan Shor without being aware of what they were into. Their capacity as shareholders disqualifies them from claiming the “not required or could not anticipate” defense. The fact that they remained in Ilan Shor’s team and entered Parliament under the banner of his party puts further distance between them and the ignorant innocence claim.
Moreover, according to information released on Friday by the relevant parliamentary inquiry committee (already after this piece was published in Romanian), both Tauber and Apostolova seem to appear in the detailed Kroll report among the final beneficiaries of the fraud. So good luck pursuing the innocent accessories defense.
But even if all these accusations eventually turn out to be wrong, this is a matter to be investigated by the prosecutors and established by the court. It’s up to them to decide whether there was a case of “non-culpable conduct” or not, and Ilan Shor’s statement that the two MPs cannot be investigated is entirely false.
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The Code of Criminal Procedure of the Republic of Moldova (RO), lex.justice.md ↩︎