The European Commission criticised Bulgaria and Romania for their lack of progress in judicial reform and the fight against corruption in its latest Co-operation and Verification Mechanism (CVM) report issued on November 15.
While the two countries have made some progress, their failure to meet all criteria set by the EC means hopes of the CVM being lifted this year were dashed. The mechanism, introduced to monitor issues of corruption and the rule of law that were not addressed before their accession to the EU, will be extended at least until the end of 2018.
With the aim of meeting the EC’s criteria to end the CVM, both countries put a lot of effort into changing legislation before the latest report. However the two governments have been strongly criticised by citizens and organisations for their lack of transparency and, in the case of Romania, the government seems unwilling to actually undertake the necessary reforms.
Romania had previously been seen as a rising star in the fight against corruption, given the intense activity of the country's National Anticorruption Directorate (DNA). However, the EC noted in the report on Romania that reform momentum was lost this year, slowing down the fulfilment of some of the recommendations made by the EC, and with the risk of re-opening issues which the January 2017 report had considered as fulfilled. Challenges to judicial independence have also been a persistent source of concern, the commission warned in its report.
“[D]espite the commitment of the government to seek to close the CVM as soon as possible, progress in addressing the January 2017 CVM recommendations has been affected by the political situation. Within a nine months period since the January 2017 report, Romania has seen two governments, while growing tensions between state powers (parliament, government and judiciary) made the cooperation between them increasingly difficult,” the report said.
The EC’s concern is not surprising considering the events of this year, and the repeated efforts by the government to weaken anti-corruption legislation to allow top officials to avoid prosecution.
Back in January, the government adopted an emergency ordinance to decriminalise certain corruption offences, such as abuse of office. The move lead to the biggest anti-government protests in Romania since the fall of communism, with 500,000 people on the streets at their peak. Giving in to street pressure, the government repealed the ordinance.
“Even though the emergency ordinance was abrogated by the government and also repealed by the parliament, the events left a legacy of public doubts,” the commission said. It also noted that the positive progress and the continued good results of judicial institutions in the fight against corruption were called into question by those events.
More recently, around 20,000 people protested in Bucharest on November 5 against planned changes to legislation which are seen as increasing political control over the judiciary.
The draft amendments have been twice rejected by the Superior Council of the Magistracy (CSM) noting issues like judicial independence. Concerns have also been raised by the president of Romania and civil society.
“Some of the proposed changes covered issues like the role of the Judicial Inspection and the personal responsibility of magistrates, as well as the appointment of senior prosecutors: issues which touch on judicial independence and where changes raised questions about whether the January 2017 report assessment with regard to progress on the independence of the judicial system would have to be reconsidered. The strong negative reaction from the judiciary and parts of civil society focused heavily on the issue of judicial independence,” the report noted.
The EC added that the capacity of the government and the parliament to ensure an open, transparent and constructive legislative process on the justice laws will be crucial.
The Commission invited Romania to implement the necessary actions and fulfil all recommendations, and will assess progress again towards the end of 2018.
Within Bucharest, both sides of the debate claimed the CVM had backed up their position. President Klaus Iohannis said he considered the CVM report a “serious warning” that the ruling coalition should take into account, but Justice Minister Tudorel Toader, the instigator of the proposed judicial overhaul, claimed the report had a positive conclusion, namely that Romania could fulfil its objective of having the CVM supervision lifted.
Bulgaria fails on transparency
In Bulgaria, Prime Minister Boyko Borissov’s government has proposed amendments to several laws after taking office in May, hoping to get a better assessment by the EC. Although these efforts have been praised, the Commission noted that the Bulgarian authorities failed in terms of transparency.
"We have seen progress in many areas but there is still more work needed. Bulgaria has met or made progress on several of our recommendations, but not yet all. I count on the Bulgarian government to implement all the planned reforms, and to avoid backtracking, so that we can move towards the goal of ending the CVM under this Commission's mandate,” the EC’s First Vice-President Frans Timmermans said in a statement upon issuing the reports.
The Commission noted that although Bulgaria must speed up reforms, this should not lead to the bypassing of consultation procedures, which would risk creating a climate of uncertainty and a lack of ownership.
“Bulgaria should ensure the irreversibility and credibility of the judicial reform process by establishing an environment of mutual trust and cooperation between institutions, crucial for the successful implementation of reforms,” the report noted after pointing to the widespread criticism of legislation amendments this summer.
The amendments to the Criminal Procedure Code and the Judicial System Act provoked very strong objections from magistrates, political parties, NGOs and international institutions, which claimed that they violated the constitution and the independence of the judiciary. The legislation changes were adopted by the Bulgarian parliament in July, using an urgent procedure without any debate. Both were supported by the ethnic-Turk Movement for Rights and Freedoms (DPS), which is officially in opposition but believed to informally support the ruling coalition.
The EC also noted that the process of electing the new Supreme Judicial Council (SJC) also has left “doubts over possible undue influence on judges through the SJC could undermine the impression of an independent decision-making process within this key institution” and said that the new composition of the SJC must try to create an atmosphere of open debate and transparency on key decisions in order to rebuild trust among magistrates and the wider public.
In its previous report on Bulgaria in January the EC noted that the country had failed to make any significant progress in the past 10 years. Bulgaria has made slow progress in the fight against top-level corruption and organised crime, which resulted in a lack of trust among citizens in the judicial system, the earlier CVM report said.
According to the November report, the country has made significant progress in legislation changes but will need further follow-up in the coming months.
Like their Romanian counterparts, the Bulgarian government saw the report as very positive. In a statement to the media, the justice ministry said that the report had given an excellent assessment of the reforms made and said it confirms the clear perspective for the ending of the CVM.