Protestors who have thronged the streets of Bucharest and other Romanian cities over the last week scored a notable victory when they forced the government to withdraw its controversial decree limiting the scope of anti-corruption prosecutions at the weekend. Yet the fight is far from over. The government is expected to reintroduce its proposals in a parliamentary bill, while the opposition remains angry and mobilised. The fundamental question of how Romania deals with its corruption problem has not been resolved.
What provoked public fury more than anything was the self-serving nature of the government’s plans. Among those who stood to benefit was Liviu Dragnea, the leader of the governing PSD party who is currently barred from ministerial office following a conviction for ballot rigging. The proposal to decriminalise corruption offences involving sums lower than £38,000 threatened to create a category of acceptable theft. For a country that loses an estimated $16-33bn to corruption each year, it would have marked a huge step backwards.
Although government’s retreat is welcome, it would be a mistake to assume that everything is fine with Romania’s anti-corruption drive. In part, the abandoned decree was meant to give effect to a constitutional court ruling that limits the offence of “abuse of office” to acts specifically defined as criminal. Anti-corruption prosecutors have applied a much broader definition of the term to indict officials for acts that in most countries would be classified as negligent rather than corrupt. Reports suggest that some Romanian civil servants have become reluctant to approve spending decisions for fear of being accused of corruption if a project goes wrong. That obviously needs to change.
Serious allegations have also cast doubt on the integrity of the National Anticorruption Agency (DNA). Some of these started surfacing late last year in a series of videos released by Sebastian Ghita, a media owner and former PSD parliamentarian currently on the run from charges of corruption. Among other things, Ghita claims that the DNA works in tandem with the domestic intelligence service (SRI) to manipulate the judicial system to their mutual advantage and that the DNA’s current head, Laura Kovesi, procured his help in framing a rival media owner on charges of corruption. Although the accusations have been denied, they were enough to force the resignation of Florian Coldea, the deputy head of the SRI, last month.
Ghita’s credibility as a witness can be questioned, but much of what he says is consistent with evidence that has emerged elsewhere. The DNA has conceded that it relies on 20,000 wiretaps provided by the SRI each year and that it pursues cases instigated by senior intelligence officers. An SRI General has gone on the record to admit that his agency intervenes in the judicial system and regards it as a “tactical field” of operations. Official papers obtained by the National Union of Judges of Romania show that SRI officers work in mixed teams with DNA prosecutors without proper legal authority. Calls by judges for the authorities to investigate long-standing suspicions that SRI operatives have penetrated the judiciary have been ignored.
The DNA/SRI nexus works to the benefit of both parties. DNA prosecutors get a steady flow of intelligence that enables them to pursue high-profile individuals and burnish their reputations as defenders of the public interest. In exchange, the SRI is able to instigate prosecutions against targets of its choosing. One constitutional court judge was arrested the day after he voted to strike down a surveillance law that the SRI had been lobbying for. The allegation that intelligence officers play a covert role in directing anti-corruption investigations has also been made by Alina Bica who ran the agency responsible for combating organised crime before she herself was arrested by the DNA on charges of corruption. She claims that her fall was orchestrated by the SRI after she repeatedly turned down demands from Florian Coldea to prosecute specific individuals.
An anti-corruption effort that appears to operate as an arm of the ‘deep state’ should arouse widespread concern about the impact on civil liberties and public accountability. There are certainly plenty of reasons to think that Romania’s criminal justice system is not functioning according to accepted democratic standards. Conviction rates of 92% in cases brought by the DNA are more typical of countries like Russia and China, and highly suggestive of a system that is failing to protect defendants’ rights. A look at many high profile cases reveals why. They routinely feature abuses of fair process, including violations of the presumption of innocence, the pre-trial leaking of prosecution evidence to the media, undue influence exerted on the judiciary by prosecutors and the frequent resort to pre-trial detention as a form of leverage or punishment before the verdict.
There is a risk that Romania will become trapped in a debilitating state of political warfare over the issue of corruption unless a new national consensus emerges about how to tackle it. Reforms are needed to improve transparency, safeguard human rights, strengthen judicial independence and remove the covert influence of intelligence officers. A system that was fairer would, in turn, enjoy greater legitimacy and be more effective as a result. The key step would be for Romania’s political parties to accept the integrity of a reformed anti-corruption process and stop trying to shield their members from prosecution. In the polarised atmosphere of the last week, that looks like a distant hope.
David Clark is the author of Fighting Corruption With Con Tricks: Romania’s Assault on the Rule of Law.