The Romanian Legal Maze

, par Felix Staicu, Mihai Barloiu

The Romanian Legal Maze
Laura Codruta Kovesi. Image credits to Romania Insider

Romania, a Central – European country, with a population of approximately 18 million people, a widespread diaspora in Western Europe, a NATO member state since 2003, a UE member starting 2007 and a state that has access to the Black Sea, represents the Eastern flank of Atlanticism.

In 2016, the champion year of raising populism on the international stage, the world witnessed political “hits” such as Brexit and the election of President Trump, both outcomes being connected to Russian interference. The year was of major significance for Romania as well - the country held Parliamentary elections and the end result was a net win for the Social Democratic Party (PSD). They presented a national development plan that included major investments in an underdeveloped infrastructure, promised to aid a critically ill-equipped medical system, came up with a policy to attract investors and vowed an increase in wages. Nowhere in the PSD political campaign was it ever mentioned that they were determined to fundamentally change Romania’s Penal Code.

A pro-corruption government

Since 1990, Romania faces major problems with endemic corruption, a phenomenon that crippled the development of the country and the quality of life for the citizens. According to Transparency International, in 2018 Romania situated on the 61st position for the least corrupt country, down from the 57th place in 2017. Romania’s position in 2018 was shared with Cuba and Malaysia. Inside the European Union, Romania is the fourth most corrupt country after Hungary, Greece and Bulgaria.

Starting with 2016, the governing party PSD has engaged in a strategy to modify the Romanian Penal Code. This action divided the society into two sides, one that follows the PSD rhetoric and believes that their determination to change the justice systems by all means is justified due to abuses of the anti-corruption prosecutors in collaboration with the intelligence services, and another side who believes that PSD is actually trying to reverse the progress that the country made in its strife against corruption.

The first action that provoked public disapproval took place in February 2017, when the Government tried to pass an emergency decree that would potentially decriminalize the abuse of power while in office. The response was massive civil rallies in Bucharest and the major cities of the country such as Timisoara, Cluj Napoca and Sibiu. Two years later, the ruling coalition headed by the Social Democratic Party and its strongman and leader Liviu Dragnea, himself convicted of vote-rigging in and carrying a two-year suspended sentence, changed two Prime Ministers and nominated Tudorel Toader as the Minister of Justice. Toader wad considered one of the most experienced legal experts in Romania. During this period of time, PSD repeatedly amended the justice laws by emergency procedures and dismissed the head anticorruption prosecutor Laura Codruta Kovesi.

In comes the centrist-right President of Romania, Klaus Iohannis. In a press statement on April 1, he confirmed that a public referendum would be organized on May 26, at the same time that European elections were to be held. Iohannis accused the government of using emergency decrees “abusively and far too often”. “Justice is a matter of national interest and the people have the right to decide whether or not they want corruption to become state policy”, he said. First, the president held discussions with civil society groups and magistrates in order to identify the relevant questions that should be on the ballot paper.

PSD is opposed to a referendum on matters of justice and sources from Romania suggest that the government may attempt to create new legislation in the coming days which would force the vote to be held in separate polling stations from the EU elections. A possible objective for this maneuver would be to make it harder to reach the 30 percent turnout needed to validate the referendum. The Social Democrats accused president Iohannis of using the referendum in electoral purposes, in order to switch the debate from Romania’s rising incomes to other disadvantageous subjects for the party.

Concern for allies

Romania is currently holding the six – month rotating EU presidency. In this capacity, the country has been severely criticized by the European Commission for backsliding on the rule of law. Twelve of Romania’s most important strategic partners and allies, including the US, Germany and France have expressed concerns about the rule of law in the country and called on all parties involved in passing emergency government decrees that modify the justice sector “to avoid making changes that would weaken the rule of law and Romania’s ability to fight crime or corruption."

The joint document that was released on April 3rd 2019 on the Facebook pages of the embassies of France and Germany has the following states as signatories : Austria, Belgium, Canada, Denmark, Finland, Germany, Ireland, Norway, the Netherlands, the US, and Sweden.

“We, Romania’s international partners and allies, call on all parties involved in drafting emergency government ordinances modifying justice sector laws to avoid changes that would weaken the rule of law and Romania’s ability to fight crime or corruption.”

In an intervention regarding the current situation in Romania, EU Commission First Vice President Frans Timmermans declared : “Romania urgently needs to put the reform process back on track.” At a press conference in Brussels, Timmermans said he wants “to warn against any governmental action that would disrupt the Romanian judicial system by creating a systemic de facto impunity for high office holders who were sentenced for corruption. In case Romania will continue with this process, the representative of the European Commission implied that action will be carried out swiftly, potentially triggering Article 7 against Romania.

The official response of the Government is that emergency ordinances are necessary to bring the penal code into line with a recent decision from the constitutional court.

Thursday, April 4th, president Iohannis publicly announced that he sent a letter to the Parliament regarding the two topics that will compose the referendum. The first topic is to ban amnesties and pardons for corruption offenses. The second topic is to ban emergency decrees issued by the Government that relate to changes in the criminal law and whether other authorities would have the right to directly take action in order to notify the Constitutional Court regarding emergency decrees.

The legal maze in Romania is defined by a central question, do the Romanian citizens want to live in a state that is characterized by the rule of law ? Since the country became a communist state in 1947, under Soviet influence, all the way to 1989, the concept “rule of law” was non-existent. Communist dictators, first Gheorghe Dej and then Nicolae Ceausescu, imposed a system of fear and control over the population that produced long-term consequence on the population, not only in the way of life but also more importantly on the psychological level.

Corruption - A Trauma

People were traumatized by constant abuses and widespread nepotism and corruption. The year 2007 marked an important shift in Romania’s trajectory. The country became a member of one of the most select clubs in the world, the European Union. Together with this new status came multiple benefits and possibilities but also new obligations. One of them was to address the situation of the rule of law in the country, in order to establish a well-defined judicial system and fight endemic corruption.

The process was carefully monitored by the EU authorities through a CVM (Control and Verification Mechanism) imposed upon Romania as a prerequisite to its membership in the EU. This measure was required in order to clean up the corruption. As a future member state, Romania agreed to respect the CVM, in order to operate a common market such as the EU does, and maintain the free movement of people, goods and capital which is the core of the Union, all countries must adhere to a very well designed legal system that is based on the rule of law.

Rule of Law

The process of accepting and enforcing the same legislation does not identify as handing over national sovereignty, it is merely a process of defining the rules of the Union, that all countries accept willingly, in order to have a stable and reliable system and thus ensure the functionality of the common market, of the human rights, and of the fundamental liberties that the forefathers of the EU laid as brick and mortar to construct what today is the most developed and prosperous region of the Globe. The law is the engine of the European Union, without it and without its rule there is no true Union, and there is chaos.

But what is the rule of law ? The contemporary definition, as adopted by the International Commission of Jurists defines the concept as : “the conditions, structures, institutions, processes and procedures that must exist so that the individual can enjoy his life in dignity, security, and prosperity.”

A state in which the rule of law is consolidated presents multiple advantages, such as : freedom of the judiciary – basically meaning there is no interference in the legal system by the other state powers ; enhances the freedom of the individual – represents the freedom of speech, of free media ; promotes qualitative life – it creates the necessary social conditions that allow the citizens to enjoy social order ; prevents arbitrariness and dictatorship – where the rule of law exists citizens are aware of their rights and liberties and it is possible to stop authoritarian behaviors coming from the political sector at an early stage.

Having into consideration all the events and tension accumulated in Romania starting from 2016 to the present day, Mr. Klaus Iohannis has correctly identified that the key to unlocking the situation lies within the citizens of Romania. The referendum that will take place on May 26th will ask Romanian’s an existential question – Are you in favor of a country that functions on the rule of law ?

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