European Commission refuses to face up to the truth about Romania

| December 5, 2018

Faced with the rise of authoritarian populism, the EU has struggled to fulfil its mandate as a guardian of democratic standards adopted in the 1990s as a precondition for enlargement to the east, writes David Clark.

Enforcement measures initiated against Hungary and Poland earlier this year come fully eight years after Viktor Orban began his authoritarian lurch. Meanwhile, governance problems are multiplying and the populist right continues to make advances. It is doubtful that Brussels has either the policy instruments or the political will needed to make a difference.

The problem was illustrated recently when the European Commission published its annual assessment of the Romanian justice system. For the first time the Commission was forced to acknowledge an unfolding scandal that has exposed what amounts to a parallel system of justice based on secret protocols between the Romanian Intelligence Service (SRI) and a large number of law enforcement, judicial and administrative agencies. A committee of the Romanian parliament has identified 565 of these protocols, 337 of which remain in force. Only a handful have been declassified.

These revelations touch on some of Romania’s most traumatic memories. The intelligence services were specifically excluded from involvement in the criminal justice system because of the abuses experienced under the Ceaușescu dictatorship when the SRI’s predecessor, the Securitate, used the courts as instruments of political repression. A law passed in 1992 stated; “the SRI cannot carry out criminal investigation actions”. The only exception is “national security offences”, where the SRI is empowered to act in a supporting role.

The protocols show that the SRI has been able to break free of these legal constraints. They detail the sharing of confidential information, the use of “joint operational teams” comprised of prosecutors and intelligence officers, and the conduct of investigations according to “joint plans”. These activities cover not only threats to national security, but also “other severe offences”.

Although the SRI is not allowed to arrest and prosecute, it has used the protocols to co-opt other agencies into exercising those powers on its behalf. Its covert relationship with the National Anti-Corruption Directorate (DNA) in particular has allowed it to target individuals for arrest, including, apparently, a Constitutional Court judge who voted to strike down a surveillance bill supported by the SRI on 2015. The former head of the agency responsible for tackling terrorism and organised crime says the DNA arrested her after she refused to let the SRI direct her investigations.

If there is no legal basis for these activities, it has also become clear that there has been no ministerial approval or parliamentary oversight either. Traian Băsescu, who was President or Romania in the period when many of the protocols were signed, says that he was kept in the dark about their existence. There is no known equivalent within the EU of an intelligence service operating beyond democratic control in this way.

The protocols represent a major threat to standards of governance because, as the National Union of Romania Judges has pointed out, “the rule of law is incompatible with the administration of justice based on secret acts.” Yet the Commission’s report attempts to sidestep the issue by claiming that EU has no jurisdiction over intelligence matters. This is a serious dereliction of its responsibilities. Issues concerning human rights and the rule of law are very clearly within the EU’s remit and have been since the Copenhagen criteria established the democratic obligations of membership in 1993.

The Commission knows this perfectly well because it has been rightly critical of Romanian politicians who seek to undermine judicial independence. It cannot at the same time ignore the threat to judicial independence and the separation of powers posed by the existence of secret and illegal agreements linking the SRI to the Superior Council of Magistracy, the Judicial Inspection and the High Court of Cassation and Justice. Figures published in the summer showed that nearly two-thirds of Romanian judges have been investigated by the DNA over the last four years. Hundreds of those files remain open, giving prosecutors (and through them, the SRI) an extraordinary power of influence over the courts. The Commission’s report simply ignores this troubling fact.

Brussels is reluctant to face up to the truth of what is happening because it wants an end to graft and it is easier to understand Romanian politics as a binary struggle between corrupt politicians and virtuous prosecutors. For years the Commission has lauded the anti-corruption work of the DNA as a sign of progress and a model for others to follow. It cannot process the thought that at least some of these efforts provided cover for a different, yet equally insidious form of corruption. It prefers the comforting illusion of progress over the messy reality of an anti-corruption fight gone bad, and in doing so betrays the values it is mean to uphold.

The Author, David Clark, was a Special Adviser at the UK Foreign Office and is a Senior Fellow at the Institute for Statecraft. He writes here in a personal capacity.

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Category: A Frontpage, European Commission, Romania