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#Romania’s flawed justice system needs a radical solution

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By guest contributor Doug Henderson.   Romania does not often make the international headlines and in recent years it has usually been well-attended protests that have drawn some fleeting, global attention. In the past week, the spotlight returned to Romania as protests started again regarding the country’s anti-corruption drive.  International commentators rightly condemned what seemed to be a heavy-handed approach by the police in dealing with protesters .

 

But how much do we understand the protests and the nature of Romania’s anti-corruption campaign? No one doubts the need for Romania, and Bulgaria, to tackle corruption. Indeed the European Union placed both countries under special supervision (a cooperation and verification mechanism - CVM) when they joined the EU and these remain in place 11 years later. It is clear that the international community supports the need for Romania to take a strong approach to this problem.  But have we paid enough attention to the need for Romania to respect the rule of law and human rights on their anti-corruption journey?

 

Fears are growing that we may have instructed them to fix a problem without demonstrating that the international community also cares how the country fixes it.  Have we offered enough strategic support to encourage Romania to adhere to European norms of respecting human rights in their methods? Have we demanded a justice system that is fair and transparent? Or did we just tell them to get results?

 

Alarm bells sounded in recent months.  A recent report written by Emily Barley, Lisi Biggs-Davison and Chris Alderton and published by Due Process and CRCE, shows Romania to be by far the worst violator of human rights within the EU. With a total of 272 violations of human rights found by the European Court of Human Rights from 2014 to 2017, Romania had over 100 more judgements against it than the next worst country in the EU.  The Due Process report explains that the vast majority of Romania’s violations were under Article 3 and Article 6 of the ECHR (238 of the 272). In terms of inhuman or degrading treatment, Romania ranks consistently behind only Russia in the Council of Europe. For violating the right to a fair trial the only worse offenders among the 47 Council of Europe members are Russia and Turkey.

 

Prison conditions are also a major concern in Romania, with the Due Process report highlighting the 104 violations found in Romania by the European Court of Human Rights for inhuman or degrading treatment, the vast majority of which occurred in detention. The European Court of Human Rights has consistently found that Romanian prisons are overcrowded, with space far below the legally required minimum per person. The report says: “In Romania, case after case has brought disgusting prison conditions to light; with infestations of bed bugs and vermin, inadequate washing facilities for prisoners, and cold, damp, dirty cells being the norm.”

 

Conditions in detention facilities have been under further scrutiny in recent days after the shocking death of former judge Stan Mustata.  He had been serving an eight and a half year sentence in Jilava prison after being convicted of taking bribes.  His lawyer Lorette Luca has spoken of the inhumane treatment he received despite having serious kidney problems and having undergone dialysis.  He was shuttled in the middle of the night from one prison to another whilst vomiting.  He later died of a heart attack in Carol Davila civilian hospital in Bucharest and the hospital notified prosecutors over his death as their concerns about his prior treatment were so grave.  The Mustata case has caused Romanian Justice Minister Tudorel Toader to order investigations into three Romanian prisons: Rahova, Jilava and Giurgiu.  Lorette Luca has said she will file a complaint against the manager of Jilava prison.

 

Concerns about the Romanian justice system begin long before anyone reaches prison.  In recent months it has come to light that protocols have been signed between the Romanian intelligence service (the SRI) and the Supreme Court of Justice and Cassation, the General Prosecutor’s office, the Superior Council of Magistrates and the Lawyers’ Bar Association.  This has seriously undermined faith in the Romanian justice system, raising questions about human rights and constitutional propriety.  These protocols reveal an alarming conflict of interests. For example, the protocol between with the Superior Council of Magistracy (CSM), the body responsible for regulating the activities of judges and prosecutors, means there is a  covert relationship that might lead the CSM and the judges it appoints to favour the interests of the intelligence services and their partners at Romania’s notorious Anti-Corruption Directorate (the DNA).   These fears are only worsened by the fact there are conviction rates of over 90 per cent in affected cases.  It is also claimed that the protocols are used to bypass constitutional safeguards in the gathering of evidence.

 

Pressure on the judiciary is another source of concern.  Marius Iacob, the First Deputy of the head of the Anti-Corruption Directorate (DNA) has made public that the DNA is handling 300 files regarding magistrates and a file can include two or three magistrates.  This means that those magistrates are vulnerable to being influenced or blackmailed.  It is likely that a magistrate handles ten DNA cases per year and so the potential for judicial abuse is vast.

 

The fear is that there could be thousands in jail whose conviction was the result of targeted or politically motivated prosecutions, covert relationships between the different pillars of the Romanian justice system and pressure on the judiciary.  After potentially facing violations every step of the way on their journey through the justices system, it is clear that these people then end up in appalling prison conditions.

 

What could be a solution to this situation?  An option on the table is an amnesty for non-violent crimes, essentially allowing a ‘reset’ button to be pressed to enable a restoring of faith in the rule of law and renewed commitment to EU justice standards.   This radical option should be considered to deal with past abuses. In addition, Romania, properly supported and held accountable by the international community, should look to the future by ensuring the independence of the judiciary and the proper adherence to European standards by the different wings of the justice system, from the intelligence services to prosecutors to prison facilities.

 

Doug Henderson served as Minister for Europe and Minster for the Armed Forces in the UK.  He served as Labour MP for Newcastle Upon Tyne North from 1997 to 2010 and was a Member of the Council of Europe from 2005 – 2010

Economy

Issuance of green bonds will strengthen the international role of the euro

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Eurogroup ministers discussed the international role of the euro (15 February), following the publication of the European Commission's communication of (19 January), ‘The European economic and financial system: fostering strength and resilience’.

President of the Eurogroup, Paschal Donohoe said: “The aim is to reduce our dependence on other currencies, and to strengthen our autonomy in various situations. At the same time, increased international use of our currency also implies potential trade-offs, which we will continue to monitor. During the discussion, ministers emphasized the potential of green bond issuance to enhance the use of the euro by the markets while also contributing to achieving our climate transition objective.”

The Eurogroup has discussed the issue several times in recent years since the December 2018 Euro Summit. Klaus Regling, the managing director of the European Stability Mechanism said that overreliance on the dollar contained risks, giving Latin America and the Asian crisis of the 90s as examples. He also referred obliquely to “more recent episodes” where the dollar’s dominance meant that EU companies could not continue to work with Iran in the face of US sanctions. Regling believes that the international monetary system is slowly moving towards a multi-polar system where three or four currencies will be important, including the dollar, euro and renminbi. 

European Commissioner for the Economy, Paolo Gentiloni, agreed that the euro’s role could be strengthened through the issuance of green bonds enhancing the use of the euro by the markets while also contributing to achieving our climate objectives of the Next Generation EU funds.

Ministers agreed that broad action to support the international role of the euro, encompassing progress on amongst other things, Economic and Monetary Union, Banking Union and Capital Markets Union were needed to secure the euros international role.

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EU

European human rights court backs Germany over Kunduz airstrike case

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An investigation by Germany into a deadly 2009 airstrike near the Afghan city of Kunduz that was ordered by a German commander complied with its right-to-life obligations, the European Court of Human Rights ruled on Tuesday (16 February), writes .

The ruling by the Strasbourg-based court rejects a complaint by Afghan citizen Abdul Hanan, who lost two sons in the attack, that Germany did not fulfil its obligation to effectively investigate the incident.

In September 2009, the German commander of NATO troops in Kunduz called in a U.S. fighter jet to strike two fuel trucks near the city which NATO believed had been hijacked by Taliban insurgents.

The Afghan government said at the time 99 people, including 30 civilians, were killed. Independent rights groups estimated between 60 and 70 civilians were killed.

The death toll shocked Germans and ultimately forced its defence minister to resign over accusations of covering up the number of civilian casualties in the run-up to Germany’s 2009 election.

Germany’s federal prosecutor general had found that the commander did not incur criminal liability, mainly because he was convinced when he ordered the airstrike that no civilians were present.

For him to be liable under international law, he would have had to be found to have acted with intent to cause excessive civilian casualties.

The European Court of Human Rights considered the effectiveness of Germany’s investigation, including whether it established a justification for lethal use of force. It did not consider the legality of the airstrike.

Of 9,600 NATO troops in Afghanistan, Germany has the second-largest contingent behind the United States.

A 2020 peace agreement between the Taliban and Washington calls for foreign troops to withdraw by May 1, but U.S. President Joe Biden’s administration is reviewing the deal after a deterioration in the security situation in Afghanistan.

Germany is preparing to extend the mandate for its military mission in Afghanistan from March 31 until the end of this year, with troop levels remaining at up to 1,300, according to a draft document seen by Reuters.

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EU

Digitalization of EU justice systems: Commission launches public consultation on cross-border judicial co-operation

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On 16 February, the European Commission launched a public consultation on the modernization of EU justice systems. The EU aims to support member states in their efforts to adapt their justice systems to the digital age and improve EU cross-border judicial co-operation. Justice Commissioner Didier Reynders (pictured) said: “The COVID-19 pandemic has further highlighted the importance of digitalization, including in the field of justice. Judges and lawyers need digital tools to be able to work together faster and more efficiently.

At the same time, citizens and businesses need online tools for an easier and more transparent access to justice at a lower cost. The Commission strives to push this process forward and support member states in their efforts, including as regards facilitating their cooperation in cross-border judicial procedures by using digital channels.” In December 2020, the Commission adopted a communication outlining the actions and initiatives intended to advance the digitalization of justice systems across the EU.

The public consultation will gather views on the digitalization of EU cross-border civil, commercial and criminal procedures. The results of the public consultation, in which a broad range of groups and individuals can participate and which is available here until 8 May 2021, will feed into an initiative on digitalisation of cross-border judicial cooperation expected at the end of this year as announced in the 2021 Commission's Work Programme.

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