Bucharest vs. Brussels: Wrangling over the EU’s new Chief Prosecutor

Alina Mungiu-Pippidi is concerned the controversy could damage Romania’s democracy.

The Romanian government has fiercely opposed Laura Cordruta Kövesi’s candidacy to become European Chief Prosecutor.  Kövesi led Romania’s anticorruption agency, the Direcţia Naţională Anticorupţie (DNA), until she was fired last July for what many observers believe was her refusal to back off prosecuting senior members of the ruling party.  Alina Mungiu-Pippidi offers a perspective on why Kövesi is a candidate for the position and on the Romanian government’s opposition to her selection. She says the controversy has arisen from the European Union’s intervention into Romanian politics, which has set back the country’s fight against corruption. 

The Western media obsessed over Laura Codruta’s Kövesi’s firing as chief of the Romanian anticorruption agency at the demand of Romania’s Justice Minister in 2018. It is again obsessing about her now that she is the European Parliament’s candidate for the job of European Chief Prosecutor. The European Public Prosecutor’s Office (EPP) was recently created at the insistence of another Romanian, former Justice Minister Monica Macovei, currently an independent Member of European Parliament who, as Romanian Justice Minister (2004-2007), first appointed  Kövesi as public Prosecutor General in 2006. Having fired Kövesi, the Romanian government is now attacking her candidacy, publicising allegations of misconduct while she ran the agency and calling for her to be questioned about them at precisely the time she is scheduled to appear before the European Parliament on her nomination.

Whether the European Union needs a new public prosecution office is itself open to debate. Kövesi’s selection as one of three finalists to head the office is even more questionable.  It appears to be Europe’s way of taking revenge on the Romanian government for firing her. 

The EPP is based on an enhanced cooperation procedure, under which EU member states participate on a voluntary basis (Romania will, Hungary won’t).  The office will exercise jurisdiction over EU funds and financial interests. It is not clear, however, just how necessary a new institution is.  A recent report from the European Audit Court shows that the main problem of past investigations of EU funds and financial interests was the time lag between opening a case and when the administrative investigator, the European Anti-Fraud Office, OLAF, sent finalised cases to national prosecutors to pursue them.  Member state prosecution offices then discarded many cases as nearing terms of limitation or simply as too expensive to prosecute. (OLAF, which has many excellent professionals, has been reorganised several times without much success, as some of the causes of its poor performance are political and external).

Neverthelesss,  Kövesi is widely-regarded as the chief champion of EU policies in Bucharest and has emerged, with the strong support of Macovei, herself a former anticorruption champion, as a top contender for the job.  Her emergence is particularly discomforting in Romania, as the government currently holds the EU Council rotating presidency. The stakes of the confrontation are higher than mere infighting, although they play a large part: Romanians have succeeded in dragging the Europeans into an internal political feud, often framed simplistically as a battle between good and evil.

An EU Presidency with rule-of-law problems?

On 1 January, Romania assumed the EU’s annual rotating presidency – even though in November both the European Parliament and the European Commission (EC) had strongly criticised Romania for backsliding on anticorruption.  The Europe of clean government now finds one of its most prestigious institutions headed by a government scorned for corruption.

The tension between the EU and Romania has a long history. As part of the price of joining the EU in 2017, Romania (and Bulgaria) agreed to be subject for three years to the Cooperation and Verification Mechanism (CVM), a highly intrusive process for monitoring progress in curbing corruption.  Twelve years after accession, and while assuming the EU Presidency, the CVM remains in place. Some interim reports have been highly favourable to Romania (less so to Bulgaria). But changes in anticorruption legislation since 2017 and the firing of Kövesi put Romania’s Social-Democrat-led government and European institutions on a collision course. Furthermore, recent revelations show that the hunt for “big fish,” the main EC recommendation, coupled with EC demands to produce results, have actually strained rule of law in Romania.

The European Commission has promoted the Romanian example of convicting large numbers of high-level officials for corruption to the Balkan states, Ukraine and Moldova as the most effective means for fighting corruption.  And indeed, Romania’s courts have convicted many senior officials. Between 2010 and the end of 2017, a total of 4,720 final verdicts in corruption trials were handed down, an average of nearly six hundred convictions per year, with a conviction rate of over ninety per cent. Those convicted include generals, 18 ministers including one prime minister, and members of parliament from every political party.  As the traditional Romanian parties, both communists and anticommunists, had all become equally corrupt by 2012, voters returned to government in 2012 the Social Democratic Party (SDP), Romania’s main post-communist party, which they had voted out in 2004 and 2008 on grounds of corruption. The SPD’s support is not because it is any less corrupt, but apparently simply because it is perceived to support more egalitarian and efficient policies.

Romania has a semi-presidential system of government, one where a directly elected president shares executive power with a government appointed by, and serving with, the continuing confidence of a democratically elected legislature.  In the 2014 presidential elections, the Romanian public chose a member of the Liberal Party, the Lutheran mayor of Sibiu Klaus Iohannis, over the SDP candidate. The result has been a contentious cohabitation. With more than half of the heads of Romania’s 41 regional governments, the județes, and numerous mayors indicted for corruption by the time of the 2016 parliamentary elections, a critical mass of politicians seeking some form of judicial redress was created. In 2016, the SDP again won a clear victory (even though its government was forced to resign in 2015 under pressure from the street). It now also controls most of the județes and mayoral positions.

The majority in parliament has used every opportunity since its latest victory to tame the anticorruption onslaught. It started with the vulnerable articles in the anticorruption law (those questioned by European Court of Human Rights, for instance) and in 2017 mounted a comprehensive legislative review meant to reduce what they claimed was the unaccountable power of the judiciary. While the 1994 Constitution, practically immune to reform given the amendment process, guarantees that the Romanian judiciary is fully independent – starting with a constitutional court, which frequently rules against the government — and continuing with a Judicial Council mostly elected by magistrates,  the criminal code is subject to parliamentary control.  It is here that a major battle has been fought.  Heartened by their two victories in a row (2012, 2016), and a two-thirds majority in the parliament, the SDP and its allies have sought to increase the rights of defendants in corruption trials and curtail the article making the “abuse of function” offense, the basis for many anticorruption convictions, a crime (Ordinance 13).

Supported by some Facebook-based civil society and opposition parties, the anticorruption agency has for all practical purposes declared war on the government, trying to indict the SDP ministers who sought to pass Ordinance 13 or even defend it publicly (like the Minister of Foreign Affairs). The Romanian Constitutional Court (RCC), which includes in its ranks Ms. Kövesi’s predecessor (who secured most its convictions),  eventually ruled that “The Public Ministry – the Prosecutor’s Office attached to the High Court of Cassation and Justice – the National Anticorruption Directorate has assumed its competence to carry out a criminal investigation in an area that exceeds the legal framework . . . .  Through its conduct, the Public Ministry – the Parquet of the High Court of Cassation and Justice – the National Anticorruption Directorate has acted ultra vires, assuming a competence that it does not possess – the control of the way of adopting a normative act.” This decision sealed Kövesi’s fate with the SDP.

A trade-off between anticorruption and rule of law?

Some evidence exists that anticorruption policy under Kövesi ended in conflict with the rule of law, although the corruption of her enemies is not under dispute. The prosecution has proven to be independent from the government, but not from other sources of influence. The Romanian Constitutional Court also ruled that the Romanian Intelligence Service (Serviciul Român de Informații RIS) overstepped its legal authority when it became too involved in anticorruption investigations. According to reports presented to parliament, the RIS sought 250,454 wiretap warrants during the anticorruption crackdown, beginning with 3,849 in 2005 and rising to 44,759 in 2014 (11 times as many), of which 99% were approved by the courts. (The Bucharest Appeals Court has never denied them a single warrant.) For 2015 alone, the last date when an RIS report was made public, “national security” warrants outnumbered corruption-related ones by four to one, with evidence spilling over from security warrants into prosecutors’ corruption files without proper authorisation from judges. The total number of wiretaps was 16 times more than the FBI’s in the same year (in a country of under twenty million); the budget of RIS was twice of that of Germany’s intelligence service, the BVF, in 2017.

Furthermore, evidence assembled through freedom of information requests shows that the entire executive branch, parliament and the top courts have been wiretapped at least since 2010. Even though the constitutional court ruled in 2016 that RIS should no longer be empowered to organise wiretaps for the anticorruption prosecutors and other judicial authorities, this leaves plenty of material in the hands of the secret service to blackmail politicians and magistrates. Indeed, this might explain much of the political instability that the current president complains about.

Former President Traian Bãsescu, credited with unleashing the anticorruption crackdown in 2005 (he enjoyed two terms totalling ten years), saw many of his close relations and family imprisoned (or indicted) after he left office.  He has subsequently acknowledged that the crackdown has gone too far. He explained that he could not have won against the oligarchs without the secret services, but that his second term ended before he was able to put the latter under proper civilian control.  The 2018 CVM report ignores entirely the RIS’ role in undermining the rule of law and due judicial process, stating: “The operation of the intelligence services is not a matter for the EU and falls outside the CVM benchmarks.”

Another problematic aspect of Romania’s unstinting corruption campaign is that many of those declared anticorruption “heroes” during the crackdown years appear in retrospect to have been criminals themselves.  Two of the main prosecutors who sentenced oligarchs were afterwards convicted for corruption; others faced disciplinary procedures. The first head of the National Integrity Agency (Horia Georgescu), the head of the Anti-Organised Crime Unit (Alina Bica), the main businessperson close to RIS, who denounced targeted oligarchs (Sebastian Ghita), were all arrested under the current president, Mr. Iohannis.

Either the first anticorruption force (praised in EU CVM reports) was a gang of criminals who targeted the other gangs, in typical post-Soviet fashion (their appropriation of numerous public contracts and other spoils is well documented in several official investigations), or they were the political victims of a new presidency (as they claim). In either case, one would expect some concern in the EU’s CVM reports when yesterday’s prosecutors become today’s criminals. But there has been none. As Romanians are very litigation-minded, thousands of complaints are routinely filed against magistrates (Kövesi herself has a score). There has been no mention also of other problematic facts in this annual CVM report, which could have all been corrected in due time. Under Kövesi, for instance, all three challengers to President Iohannis’ reelection bid (due fall 2019) were indicted by anticorruption prosecutors, (two were partially cleared by the courts in 2018). None were charged with a clear-cut case of bribery or other outright corruption offense.

Internal wiretaps by her own subordinates leaked to the media do not cast Kövesi or her inquiries in a particularly good light. She fired her most successful prosecutor, Doru Tulus, who managed to get Romania’s entire soccer establishment behind bars, accusing him of having wiretapped her (which he denies) after he declined to follow her targeting directions. She also failed to act against a branch of the DNA in Ploiesti, which routinely violated procedures while handling all top political indictments. The Ploiesti case became a major embarrassment when an indicted politician who was cooperating with prosecutors recorded how together they faked evidence. By law, prosecutors should record everything, but in fact it was only the criminal who recorded these sessions. The Judicial Council eventually suspended the prosecutors involved. Finally, the fabulous conviction rate of over ninety per cent should also raise eyebrows. RCC ruled in late 2018 that Romania’s Supreme Court partly trespassed the random assignment of cases for the section judging top politicians, meaning that many cases must be retried. None of the corners cut or the procedural violations feature in the CVM report, where the stress on the high conviction rates seems to have created the incentive to pursue them whatever the cost.

Can corruption decrease without justice improving?

Wide-ranging objective and perception indicators both show some success for Romania’s anticorruption drive.  Much is attributable to its general increase in development and sound economic policies (privatisation and liberalisation of what used to be the source of much corruption – energy and utilities). As Romania doubled its income (with the public administration being an important beneficiary) and introduced transparency reforms, the administrative corruption from the early nineties has gone down considerably. The latest results from Eurobarometer  put Romania close to the EU average on bribery (it was the worst in Europe 10 years ago). While corruption persists in the form of some government favouritism for public contracts, facilitation payments are rarer and procurement is becoming more competitive.

Romania’s anticorruption policies have failed, however, to create a meritocratic civil service, with the administration and public service remaining highly politicised and often incompetent. Romania’s anticorruption prosecutors have worked to cleanse institutions of corruption - from soccer clubs to universities, but they could not by themselves turn corruption from the norm to the exception in ten years without substantial sector reforms. And those were sidelined in favour of criminal justice, which became increasingly instrumentalised as a vehicle for processing corruption cases.  Not even the judiciary itself was properly reformed during the anticorruption crackdown, let alone the rest of the state. Romanians remain the main suppliers of new lawsuits filed at the European Court of Human Rights and have the highest number of due process violation convictions per capita (more than Turkey and Russia).

While the SDP and its allies have certainly played a negative part, it is worth investigating if Romania’s anticorruption backsliding, as perceived by the European institutions, is not due also to how the battle against corruption has been waged (corners cut on procedures to secure convictions and the meddling of a secret service controlled by the President used against political parties under the pretense of ‘security’). The stress on political corruption led to an extreme politicisation of anticorruption similar to the Italian model, with constitutional conflicts between various branches of government. Between 2016 and 2018, the RCC had to intervene several times, sometimes ruling in favour of the government, sometimes against (they struck down more than half its changes to the Criminal Code, for instance). Protesters routinely demand that the CCR be “depoliticised” and “lustrated” - and this is how it started in Hungary and Poland. It’s not just one side that threatens the rule of law.

What next?

Making Kövesi Chief Prosecutor at the EPP would defy Romania’s European Council Presidency and guarantee that Romania’s main SDP leaders continue to have problems. SDP President Liviu Dragnea has already petitioned the European Court of Justice for having his name brought up in a European fraud case where it did not initially feature, due to joint OLAF- DNA action. (A favourite company to which Mr. Dragnea had handed many public contracts previously lied to get EU funds from another source. It is unclear how and why he is involved in the investigation. When I blacklisted him for this relationship years ago, prosecutors cleared him: in fact, he had no serious legal troubles until chairing the SDP after 2014.)

It is fear of cases like these that explains why the Romanian government so strongly opposes Kövesi’s candidacy.  On top of the friction created by her candidacy, the addition of several new recommendations to the CVM, when a year ago Romania had reportedly fulfilled all requests, will likely make the CVM hard to swallow for the Romanian government.  Additional recommendations will simply be asking more than the majority in parliament is willing to do. A victory in the May 2019 European Parliament elections by European parties in favour of Article 7 (triggering the provision of the EU agreement allowing a qualified majority of member states to suspend Romania’s voting rights), combined with the SDP’s successful defence of its government (Romania legislative elections are scheduled only in 2020), would mean more confrontation to come. The SDP will not back down, even if Dragnea falls from power.  The party has a majority in parliament.  All the regional assemblies and a critical mass of elected rank-and-file politicians - mayors and judet heads - who are afraid of imminent sentencing or arrest support it as well.  On the EU side, it has now found an ideal case to test Article 7.  Unlike Hungary, Romania does not have allies that will block the move. A November 2017 resolution against Romania in the European Parliament already drew a large cross-party majority.

Initial reforms to reduce the scope of “function abuse” offenses and curb prosecutors’ power were popular even with non-SDP mayors.  They too have legal concerns.  The escalation of the last two years, however, has swept aside such concerns.  The two sides now use whatever methods they can to get at one another. Kövesi’s hearings with the new Judicial Inspectorate (suspected to be a political weapon) are scheduled during her hearings in Brussels for the EPP job.  The secret service is compensating for having lost court cases against Mr. Dragnea by leaking a massive number of secret documents about him (after he tried to cut its budget). The service leaves suitcases of documents on people’s doorsteps, which then are admitted as evidence with no problem.

Like Macovei, an old friend and ally who fought alongside me in the Coalition for Clean Parliament and defended me in court when SDP politicians tried to intimidate us (they have now become more civil), I also cherished the hope that EU intervention would solve Romania’s corruption problem. I am now, however, more concerned that its efforts are damaging Romania’s democracy.

Romania’s remaining corruption problem is a problem of political development. We Romanians cannot solve it by repressive and democratic means simultaneously. We have to trust the institutions that hold the middle ground - the Judicial Council, the Constitutional Court.  We must address Romania’s main problem:  mainstream parties, completely discredited by corruption charges, and populated by politicians who are blackmailed by the secret service. Turnout is under forty percent in ordinary elections and might be half or less in elections for the European Parliament.

Professional evaluations of EC anticorruption efforts (for the Balkans, DEVCO, ENP, EULEX, both by the Audit Court and independent contractors) have been critical of its approach. In my forthcoming book for Cambridge University Press, Europe’s Burden: Promoting Good Governance across Borders, I examine over a hundred cases of EU anticorruption intervention (through assistance and conditionality), from Greece to Ghana.  I do not find a single unmitigated success, not just Romania. I had thought perhaps Croatia would be one, but Croatians disagree. So far, CVM’s good reputation rests mainly on what it has done on to prompt change in Romania and Bulgaria.  It is absurd, after Romania’s backsliding, to cling to the Romanian episode as a success story or claim that, because Romania has fallen out of favour with Brussels, Bulgaria is now suddenly doing better. It is perhaps time to audit the soundness of the European Commission’s anticorruption approach in both countries by measures other than how many of its recommendations have been adopted. The time has come to rethink the EU’s approach to anticorruption — in member states and in development assistance.

The EU needs to invest more in depth and sustainability, putting the Romanian fires out rather than stoking them. We Romanians who support honest, effective government have to win majorities in elections, as we did with the Coalition for Clean Parliament in 2004 when we turned the tide.  Not just fight those who win. While the EU worries Romania may follow in the footsteps of Hungary and Poland, I fear the EU is actually pushing it their way. 

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