The fight for justice in Romania is mired in a legislative battle that confronts mistakes and guilty parties alike. Secret protocols between the intelligence services and Romania’s star magistrates could pull the handbrake on an already politically-charged fight for justice in one of the most corrupt countries in Europe.
About a month ago, Reinhard came to Bucharest to document an article about the already infamous “secret protocols” and their impact on Romania’s judiciary and anti-corruption. Usually, we’d meet up for a beer and talk. But this time we simply talked over email, as I was out of town. From a bird’s eye view, I was telling him, Romanian decision-makers may have wanted to leave a mark in history, as forgers of democracy and rule-of-law in this country (with EU and NATO accession included). They had fought various political adversaries, and surpassed many legal obstacles or constitutional limitations in order to get there (sometimes disregarding the principle that two wrongs don’t make a right). But there was no villain, so there’s no story. To be more exact, they were all heroes and villains at the same time, and that’s why we find no genuine story to be told.
As the events unfolded, Romanian decision-makers didn’t really learn anything worth telling. Now, Romania’s once again inflamed—yet another secret protocol. As citizens, the only valuable lesson we ought to learn is that democracy and rule-of-law cannot exist or be forged without transparency and accountability. What’s worth telling is that we need to improve our political culture! In order to do that, we need to ensure a higher standard of living for regular Janes and Joes, for that’s the only way they’d have enough time and interest to get involved, scrutinize decisions, participate in governance, demand that their human rights be upheld, that separation of powers be observed, that supremacy of law never be negotiated in relation to “superior” state interests…
Recent historical landmarks
In 2015, an official of the Romanian Intelligence Service (SRI) made a statement concerning the operative work at Romania’s intelligence service: Courts of law had become part of the “tactical field.” The Judicial Council (CSM) had no reaction. Just one year earlier, former President Băsescu alleged that then PM Ponta (and presidential candidate in 2014) may have been involved with the intelligence services back in his days as a young prosecutor. At least since 2004, the Statute of Magistrates explicitly forbids that judges or prosecutors might be involved with the intelligence services.
In 2015, after that “tactical field” statement, a professional association of judges requested the National Defense Council (CSAT) to disclose the list of “undercover magistrates.” Current President Iohannis and CSAT kept silent for a while; then replied in 2017 with a reference to “joint teams” of intelligence officers, prosecutors and judicial police officers, based on some secret cooperation protocols. At the end of March 2018, SRI and the General Prosecution (PG) declassified their cooperation protocol of 2009. The “joint teams” may have been illegal.
A Constitutional Court (CCR) Decision of 2016 ruled that intelligence officers cannot be involved in the criminal investigations conducted by prosecutors. The Executive swiftly followed with legislative amendments, and SRI is now confined to providing intelligence (and/or technical assistance in wiretapping) solely on cases of national security. All other wiretaps are now in the hands of judicial police, which is no longer subordinated to the Ministry of Interior, but to the Prosecution. The Law on national security, however, pre-dates the 1992 Constitution; thus, the legal framework needs further clarification.
Secrets, secrets everywhere!
Why a secret protocol, and how many other protocols are there? Apparently, SRI may have signed secret protocols not just with the General Prosecution, but also with the Supreme Court, the Judicial Council, the Judicial Inspection and the Integrity Agency. Reportedly, some of these protocols were denounced and discontinued in 2017, possibly as a result of the CCR ruling from 2016—but nobody explicitly stated this reason. Did SRI try to blackmail or extort high officials connected with Romania’s Judiciary? Or did the high officials of the Judiciary want to rub elbows with Romania’s intelligence hotshots?
Perhaps neither, in the beginning. One possible explanation for these protocols may be mere institutional inertia. Before the 2003 amendments to the Constitution, wiretaps could be decided by prosecutors directly, without an explicit and limited mandate from a judge. SRI was the only institution legally permitted to wiretap, and only they had the tools, the technical infrastructure to do that. Since both criminal investigations and intelligence gathering are shrouded in secrecy, such a protocol may have been warranted and legitimate at that time.
However, the same secrecy was no longer warranted after the series of events that started with the constitutional amendments of 2003, the new Laws on Judiciary of 2004, and the first freely elected CSM operational in 2005. An educated guess would be that SRI and PG have a long history of secret protocols, dating back in the early ‘90s; also, an educated guess would be that the most important secret protocol was signed in 2005, circumventing both the civilian control over SRI in Parliament, and the legality control over PG in the Judicial Council.
Elected on a strong anti-corruption ticket at the end of 2004, former President Băsescu pushed for a new defense strategy in early 2005. Under the Constitution, the President is in charge of national defense and international relations, so that course of action was just fine. Corruption was listed as a vulnerability to national security; hence, tighter cooperation between SRI and PG was warranted at the highest level.
- Was that warranty legal? Not really, since a strategy of the Executive may not add substance to an act of the Legislature.
- Could the Judiciary have intervened and fixed the situation? No, because of the in-built secrecy of the national security/defense strategy and its implementation via secret protocols.
- Was that addition in breach of the constitutional principle regarding the separation of powers? Probably yes, but the Constitutional Court never had to solve a case on that matter.
- Ultimately, that warranty was no longer sustainable after 2009, when Parliament adopted the new Criminal Codes, or after 2014, when the Codes entered into force.
The road to hell is paved with good intentions
Heroes and villains at the same time, our Romanian decision-makers: They had all wanted to do something good, namely to increase the capacity of the state to uncover cases of large scale corruption. But they simply hadn’t realized that two wrongs didn’t make a right, that one simply cannot fight corruption by breaching fundamental principles stated in the first article of the Constitution. Then came the good intention to cover the “mistake,” and keep covering, so that nobody can trace it back to the responsible decision maker. Then came the good intention to expose the chain of bad decisions, but only in regards to vested political interests, not at all to re-establishing the rule-of-law. Throughout, the decision not to upgrade the Law on national security in Parliament, where all of these issues must have been discusses. And those were wrongs 3, 4 and 5, while what’s right still remains out of sight.
Last week, we learned that CSM has also signed a secret protocol with SRI in 2012. Due process, rule-of-law, separation of powers may have been at stake all the time! I hope we’re not left with rule-o’flaw, instead. This may be a good illustration of state capture or a prima facies proof that “deep/parallel state” theories have some merit. But the simpler explanation is that mixed teams of heroes and villains employed the standard “trial and error” approach to displaying, conserving or amassing political power. In this particular case, they messed with the Judiciary; unfortunately, too many magistrates didn’t see anything wrong with that.
We owe it to ourselves now, citizens, magistrates, politicians, to get things right, to show each other that we’d learned the lesson. We need to revisit the progress reports on reforming the judiciary, and get rid of all the window-dressing or sugar-coating. The progress on the surface doesn’t mean a thing, as long as the core beneath proves to be rotten! And, in the process, we should realize that “national security” is not a “superior” state interest that may warrant breaches of the constitutional principles, disregard for existing laws or messing with the Judiciary as a whole! For the Judiciary may be the regular citizen’s last line of defense against an abusive state.
They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. —Benjamin Franklin, 1775
Why all the hubbub?
Romania’s Anti-corruption Law of 8 May 2000 turns of age this week. Some top level politicians and media moguls were convicted of corruption; on top of the years they have to spend in jail, their combined assets worth upwards of €100 mln. are to be confiscated. They claim to be the victims of a “deep/parallel state” run by a clique of intelligence officers, anti-corruption prosecutors, political pawns connected with former President Băsescu and, possibly, some civil society activists owing to George Soros’s money and interests. Such clique is tantamount to the mythical might of the former Securitate, so they’d be victims of the political abuses by an oppressive political regime armed with a powerful secret police. Many of these “oppressed” politicians (from all political parties that took turns in government), charged with corruption, found refuge in other jurisdictions, fleeing to Serbia, Madagascar or Costa Rica, with the hope that extradition back to Romania won’t be possible in the foreseeable future.
While the claim may seem ridiculous, the political and technical implications are not. Romania’s fight against corruption features several abuses or outright illegalities that should be dealt with on a case-by-case basis, in court of law. Yet, the current coalition in power attempts to amend legislation in favor of such self-proclaimed victims of justice and/or anti-corruption, without regards to the overall damage they’re about to bring over the entire Judiciary. The secret protocols being unveiled these days allow the parliamentary majority to generalize from individual cases and seemingly force the political opposition to accept the situation. However, the source of the scandal may be traced back to the political decision to fight corruption solely with criminal sanctions, instead of complementing the effort with administrative controls, preventive management tools, and education.
More thoughts on these issues are available in this interview. And if you understand Romanian, you may want to listen to our podcast on the secret protocol of 2009 between PG and SRI.