State of Nation May 2005

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The EU must support, not hinder judicial reform

by Mark Percival
May 2005

Once again the issue of judicial reform has come on to the agenda, as the new Justice Minister, Monica Macovei, strives to deal with entrenched structures and political appointments made to serve the interests of the previous government.

Justice and home affairs has been by far the most difficult and controversial part of the country’s EU accession process. The chapter was finally concluded last year in spite of serious problems identified in last autumn’s EU country report, and by NGOs working in the field; these mainly concerned the considerable power of the Ministry of Justice as well as weak safeguards on corruption compounded by lack of specialisation, overwork, low pay and lack of IT facilities.

Political immunity for present and former MPs continued to place the leadership above the law until the beginning of this year when the provision was curiously revoked as part of an IMF standby agreement, rather than because of any pressure from the EU. In 2004, in spite of the closure of the acquis communautaire, Romania was far from being a state based on the rule of law, and a large majority of citizens had little or no confidence in the judiciary as an independent institution, according to many surveys of public opinion. Yet the previous administration successfully courted the EU with cosmetic measures, while Brussels continued on its path to accession for Romania in 2007, based on a political decision which recognised that in practice the country would still fall short of many EU standards after admission.

The paradox is that because we now have a justice minister who is trying to do something serious about the problem, the extent of the difficulties in the Romanian justice system has become apparent. The further paradox is that to achieve the long-term goal of creating an independent judiciary, the ministry must intervene in the short term. Consequently Macovei’s efforts to remove political appointees from the Supreme Council of Magistrates are welcome.

Transparency is critical, and Macovei’s proposal to identify former Securitate collaborators in the judicial system is long overdue. Files must be published, following the precedent set in the Ministry of Foreign Affairs, and those found to be compromised should be retired. However, the key test of the new government’s maturity and commitment to democracy will be to resist the temptation simply to replace one set of political appointees by another, or use Securitate archives selectively as a tool against opponents. Real safeguards must be built in to the system to ensure the judiciary is strong enough as an independent institution to withstand political pressure from any future government, and the new executive must not be allowed to use judicial reform simply to entrench its own power base in public institutions over the next four years.

Macovei deserves praise for her efforts to reform the National Anti-Corruption Prosecutor’s office (PNA). The institution as well as the judiciary as a whole will only start to win respect from citizens when high level prosecutions take place. The PNA is a key example of how the previous government took cosmetic steps to suggest to the EU that it was committed to reform, while in practice leaving serious issues of corruption and political control of the judiciary largely untouched. The PNA is viewed with deep cynicism and even derision by large segments of the population. PNA General Prosecutor Ioan Amarie is even on record last year as stating that public perceptions of corruption, demonstrated in Transparency International’s annual survey, were out of touch with reality. With so few high level prosecutions, this attitude can only be described as irresponsible. The PNA’s funds were increased last year, apparently suggesting a commitment to tackling corruption, but the new money was earmarked for the expansion of the institution to take on more minor cases, rather than to tackle the big barons, or deal with major financial scandals such as the banking and investment fund collapses of the 1990s.

Yet in reforming the PNA so it takes on more high level corruption cases, Macovei must ensure that its work is politically neutral, and that the institution is not simply used as a tool by the new government to destroy its political opponents. We must see high level trials of barons linked to the Alliance as well as to the PSD if the PNA is to become a truly effective institution.

Inevitably, Macovei’s reforms have been attacked, notably by former President Ion Iliescu, who has described the Justice Minister’s behaviour as “abusive.” More importantly, though, we have a further paradox that the reforms have had repercussions for the EU accession process as MEPs and officials have become more aware of the scale of the problem. Even though the European Parliament recently endorsed the accession treaties for Romania and Bulgaria, the Commission could still invoke a safeguard clause, delaying entry by a year if it decides there are still serious issues to be resolved. There are indeed major problems with the judiciary and other areas, but it would be absurd for the safeguard clause to be invoked now, since the political decision to admit Romania before it is really ready was taken long ago. It was a bad decision, seriously compromising the EU’s credibility, but it is far too late to go back on it now. To do so would simply help the government’s anti-reformist opponents who would claim incompetence by the present administration, and take advantage of its weak parliamentary position.

Subtle attempts are already being made to upset the accession timetable. The proposal by former Foreign Minister and new PSD leader Mircea Geoana for a referendum on EU accession, not required under the Constitution, looks like a ruse to create a bureaucratic delay, especially given that a vast majority of Romanian citizens support EU entry, and there is already a specific reference to it in the October 2003 Constitution.

Rather than delay Romania’s EU accession just when real change is beginning to take place, EU officials should instead monitor judicial reform carefully and steer the government away from the temptations of short-term political expediency. Monica Macovei and many of her colleagues are very different personalities from most of the previous administration and appear genuinely committed to building a democratic society based on the rule of law. These efforts must be supported, and guided, within the context of the EU’s long established political decision to admit Romania in 2007.

Mark Percival is the managing director of Romania Think Tank, about which more can be found by visiting www.rtt.ro