The report’s dangerous omissions

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The European Commission report has re-inflamed spirits in Bucharest after a period of relative calm following the legislative election last December. The fight for power had stopped and President Traian Basescu even seemed willing to keep himself within the boundaries of his office up to a certain point and leave the Government and Premier Ponta the executive powers they have under the Constitution.
We have watched two such moments – the Algeria hostage crisis and the visit of the IMF review mission. Maybe this wouldn’t have been so important under different circumstances but, having in mind similar situations in the past, where Basescu had been personally involved with the Iraq hostage crisis (2007), coordinating the entire rescue operation from Cotroceni, or the conclusion of the two agreements with the IMF (2008 and 2011), the difference is quite major. It shows that President Basescu was aware of the fact that he had lost political supremacy and that he would have been willing to limit his actions to the terms and conditions set forth by the peace deal with PM Victor Ponta.
Well, the latest Commission report is now reconsidering everything. Basescu, who felt he had been wronged by his suspension last summer, has found back the perfect argument for reigniting the fight over power and, by that, the fight for keeping his control of Justice, his last stronghold. This becomes very clear from the very first words of his statement on the report: ‘Today, I present the official position of Romania on the CVM.’ No one else, Parliament, Government or Superior Council of Magistracy (CSM) can do that – he claimed – except the president, albeit Romania is not a presidential republic.
With its political and biased tone, the document gives Basescu a new legitimacy (again coming from abroad) by revisiting political themes, namely ‘concerns’ voiced by the preliminary report on the president impeachment, such as attacks (which were never corroborated) on the Constitutional Court and selected magistrates or Ordinance no. 34 by which the Ponta Government was abrogating the mandatory referendum turnout (by that trying to undo a severe abuse made by the Boc Government and to bring Romania in line with the European practice, in conformity with the recommendations of the Venice Commission), as well as other unfounded allegations suggesting so-called attempts to undermine the rule of law.
It is the second consecutive time that the European Commission exceeds its prerogatives, bringing considerations of a political nature instead of preparing what should have been a strictly technical report, in keeping with is original purpose.
The European Commission’s view on Romanian Justice is very far from reality. The report praises judicial institutions as well as the community of magistrates, while still claiming they are being ‘attacked’ and ‘harassed’ by the press as well as by a certain part of the political establishment.
Reality is different. The justice system in Romania continues to be unprofessional, characterised by poor performance and politically subordinated to the former Basescu-PDL regime. Moreover, judicial institutions are marred by conflicts, inner power struggle that led to a severe public image decline, especially because of those high magistrates who, while denouncing so-called attacks and pressure on their independence, align themselves, obediently and serenely, on one side of the political spectrum. The report praises the work of DNA and General Prosecutor’s Office
against corruption, but sees no problem in the fact that, despite the countless criminal complaints filed over eight months ago by government authorities and the Romanian Court of Auditors against many officials of the former regime, former ministers and civil servants, the anti-corruption prosecutors have not deemed it necessary to investigate into blatant cases of corruption, influence peddling, abuse of power and embezzlement.
A stunning thing is that the report actually calls for the banning of all negative comment on court decisions and actions of judicial institutions, irrespective of the fact that criticism is justified when it refers to judicial errors, abuse and injustice which are often presented before international courts that eventually award damages payable by Romania from tax-payers money, entailing no accountability of the magistrates for the errors made whatsoever.
On the one hand, the Commission insistently demands a stronger magistrate independence, with absolutely no sort of control and legal or public liability for those (both for unfair decisions and for actions violating the magistrate’s statute, such as political engagement) and, on the other hand, it wants new regulations for the mass-media, a move, most probably, intended to stop all criticism of judicial institutions. That’s a very dangerous position, as, in the absence of accountability, the separation line between independence and abuse and between democracy and a police-state becomes very thin and easily transgressible.
We do not know who the authors and the sources of this report are, but we do know that its content is dangerous not only by what it upholds and recommends as regards the press, but also by its grievous omissions on the incompetence of magistrates, violation of magistrates statute by blatant political engagement, severe judicial errors, prosecutors’ abuse and, not least, the visible lack of integrity with some of the magistrates, starting with those sitting in the Constitutional Court, High Court, CSM and integrity inspectors. One cannot claim that magistrates and ANI inspectors are being ‘harassed’ by the media only because journalists dare ask questions about their wealth, for example, and they refuse to justify it to the public and give transparent answers, invoking ‘the right to privacy’. The report is totally biased also from this point of view. The ANI head, for instance, is subject to serious suspicions uncovered by the press (corruption and abuse in office) and, yet, the Commission is not urging him to either give explanations or resign as it does when it comes to MPs and ministers suspected of corruption or incompatibility. The double standard is striking. Reading the first seven pages of the document, one may think it has been drafted by an analyst from a think-tank with poor knowledge of Romania and with some hidden agenda as well.
Another thing the report skips is the CSM boycott of the appointment of Mrs. Pivniceru as Minister of Justice. For someone who might claim the report depicts ‘real’ state of play in the Justice system in Romania since last July, it is more than strange that whoever wrote the report failed to mention this episode, that speaks volumes about the behind the curtain struggle for the political control of the judiciary in this country.

Or the fact that, by positioning themselves in President Basescu’s sphere of control, CSM members have completely discredited their independence and, even more seriously, behave in a totally opposed manner than their magistrate status would require, something that made almost 2,000 judges in Romania ask that some of the Council member be recalled. The report does not say anything on the fact that the election of a prosecutor as head of CSM cannot be a guarantee for the independence of magistrates, knowing that a prosecutor is hierarchically subordinated and that the election was impaired by flagrant violations of the regulation on the organisation of elections in the Council. On this particular point, one needs to note that the acting Prosecutor General of Romania, Daniel Morar himself, would have not been entitled to vote on the Council under the law, and the petition filed by the Association of Magistrates in Romania raising that miscarriage of procedure is now being deferred endlessly.  In addition, despite two members – judges Danilet and Ghica – being recalled, CSM refuses to meet in session to effect the recall decision. And yet, the report doesn’t see any problem with CSM and the fact that it is challenged by thousands of magistrates… The Commission’s spokesperson said: “We fully support CSM!” One might wonder why…

With this report, the European Commission is playing an extremely dangerous game in Romania, a country with little democratic experience, but with a vast authoritarian past. The report references to ‘attacks and harassment of institution and magistrates’ can very easily induce in the general public the idea that the European Union, the champion of human rights in the world so far, is now banning one of the fundamental rights – the freedom of speech, as well as the right to information.