EU institutions slam judicial overhaul in Romania

EU institutions slam judicial overhaul in Romania
By bne IntelliNews November 14, 2018

The European Commission urged Romania to suspend implementation of the country’s controversial new justice laws in the latest Co-operation and Verification Mechanism (CVM) report on the country released on November 13. 

The European Parliament also expressed “deep concerns” at the redrafted legislation relating to the judicial and criminal legislation in a resolution adopted by MEPs on the rule of law in Romania on the same day.

There was better news for Bulgaria, however, which is also subject to the CVM monitoring regime. In the CVM report on Bulgaria the Commission praised the series of reforms undertaken in the past year, indicating that it could lift its monitoring of the country at the end of 2019. 

The CVM monitoring was introduced for both Bulgaria and Romania due to concerns that corruption and, in Bulgaria’s case, organised crime had not been sufficiently addressed before their entry into the EU in 2007. This led some observers to say the two countries had been allowed into the union too soon, and subsequent accession candidates are being subjected to a more rigorous assessment. Bucharest and Sofia have sought to exit the regime but so far without success. 

Backsliding in Romania 

This year’s report saw a role reversal between the two countries. In the last few years Romania had usually been praised in the annual CVM reports for the steps made to fight corruption, especially for the activity of the National Anticorruption Directorate (DNA). However, the Commission noted in its most recent report that corruption prevention is being held back by political developments, which undermine the credibility of progress.

The European Commission set out eight additional recommendations in the report, including the immediate suspension of the implementation of the justice laws. Romania has lately been criticised by the EU and the country’s international partners for changing the justice legislation, which they claimed could jeopardise the rule of law and weaken anticorruption legislation. The changes are seen as aimed at protecting top officials from prosecution. 

“The entry into force of the amended justice laws, the pressure on judicial independence in general and on the National Anti-Corruption Directorate [DNA] in particular, and other steps undermining the fight against corruption have reversed or called into question the irreversibility of progress,” the EC said.

It added that the twelve recommendations set out in last year’s report are no longer sufficient to close the CVM and recommended a set of new measures for Romania. According to the Commission, Romania should suspend immediately the implementation of the justice laws and subsequent emergency decrees, and revise the justice laws taking fully into account the recommendations under the CVM and issued by the Venice Commission and GRECO.

Another area of concern is appointments within the judicial and law enforcement system. Laura Codruta Kovesi, who formerly headed the DNA and was seen as the prime driver behind anti-corruption efforts, was removed from the post earlier this year, despite President Klaus Iohannis’ efforts to keep her at the helm of the organisation. 

Last month, the justice minister sent his proposal to appoint Adina Florea as the new head of DNA to the president despite the fact the Superior Council of Magistrates (CSM) says Florea is unsuitable for the post.

Commenting on the situation, the CVM said that Romania should also suspend immediately all ongoing appointments and dismissal procedures for senior prosecutors and relaunch the process to appoint a chief prosecutor of the DNA with proven experience in the prosecution of corruption crimes and with a clear mandate for the DNA to continue to conduct professional, independent and non-partisan investigations of corruption. 

Romania should respect negative opinions from the CSM on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place, the report added.

In addition, the country should freeze the entry into force the changes to the Criminal Code and Criminal Procedure Code and reopen the revision of the Criminal Code and Criminal Procedure Code taking fully into account the need for compatibility with EU law and international anti-corruption instruments, as well as the recommendations under the CVM and the Venice Commission opinion.

Meanwhile, the European parliament endorsed its resolution on the rule of law in Romania, with MEPs backing the document by 473 votes to 151, while 40 MEPs abstained. 

The resolution urges the Romanian parliament and government to fully implement all recommendations of the European Commission, GRECO and the Venice Commission, and to refrain from conducting any reform which would put at risk respect for the rule of law, including the independence of the judiciary. It addresses other threats to the rule of law in Romania, including the legislation pertaining to NGOs’ functioning, media freedom and the “violent and disproportionate intervention by the police during protests” — a reference to the August 10 antigovernment protest in particular.

Romania responds angrily

The Romanian authorities rejected the EU's reports as politically biased. The European Parliament’s resolution is “deeply politicised, not based on facts,” according to Romania’s Prime Minister Viorica Dancila. She also accused the European Commission of not considering the answers provided by the Romanian authorities to its enquiries prior to drafting the CVM report. Controversial protocols signed between the intelligence services and prosecutors and judges were reported to the Commission and yet they are not adequately addressed by the report, she complained.

“It is unacceptable that we are required to suspend [the legal] procedures. I am outraged,” she added. 

The EU’s reports on the rule of law in Romania are likely to prompt internal political turmoil with a negative impact on the economy, as the opposition attempts to capitalise on the situation while the ruling coalition still holds a robust majority in parliament.

Should the European Commission eventually take legal steps against Romania, a scenario possible given the government’s inflexible position, this would dramatically weaken the ruling coalition. The main opposition party, the National Liberal Party (PNL), has already announced a no-confidence motion and former prime minister Victor Ponta is reportedly negotiating with the regional leaders of the senior ruling Social Democratic Party (PSD) to join his own political vehicle ahead of a possible PSD collapse. 

However, no alternative to the incumbent ruling coalition is feasible under the current structure of the parliament, and early elections would not change the situation much. The political turmoil expected in the coming years is likely to hinder improvements in the public administration, thus exerting significant negative pressures on the economy.

Unexpected praise for Bulgaria 

By contrast, the overall positive assessment of Bulgaria in its CVM report came as a surprise as political tensions in the country have been increasing in the last few months, with people’s dissatisfaction provoking constant protests against the government.

According to the report on Bulgaria, the country has almost achieved the targets in most areas, with the most significant single step being the adoption of the reform of the general anti-corruption framework in January 2018. The report noted that some legislation changes have raised controversy, but that overall “the legislative system has delivered reforms more predictably and less controversially than in the past”.

Despite being mostly positive, the report once again noted that the media environment in Bulgaria has significantly deteriorated, with the media sector being “characterised by intransparent ownership and weak enforcement of journalistic standards”.

“Such a situation affects the quality of public debate and therefore risks restricting the access of the public to information, with only a limited number of independent sources,” the report noted.

Unsurprisingly, the Commission also urged Bulgaria to show concrete results in the fight against top-level corruption. “The Bulgarian authorities will need to show concrete results and build a track record evidenced by final decisions in high level corruption cases. The new anti-corruption institutional framework requires continued monitoring in view of the need to consolidate the progress made,” the report reads.

Despite that, the EC expects to lift the monitoring before the end of the mandate of its current members.