20 years of National Anticorruption Directorate. The water gun held to the heads of politicians

The National Anticorruption Directorate marks 20 years of existence on Tuesday. What has it meant to run this institution for two decades and what are its prospects? How do today’s politicians relate to the DNA in particular and to the fight against corruption in general?

At least four politicians who lead Romania or key institutions today are so vulnerable, either personally or in their close circle or in their parties, that they are doing and will do everything they can to keep justice under control in the long term and to weaken anti-corruption institutions.

The National Anti-Corruption Directorate is operating today at the lowest limit, almost as it did 20 years ago, when only corrupt small fish fell into the net of anti-corruption prosecutors. The obvious concern of politicians in power is to annihilate the DNA in the long term, especially for the days when they are no longer in power. The PSD, PNL and UDMR have well learned the lessons of the past. Nobody wants to wait with a gun to their head for the day someone pulls the trigger.

What interest would President Klaus Iohannis have in leaving behind, in two and a half years when his two terms at the Cotroceni come to an end, a strong and independent judiciary when his friend wins suspicious public tenders worth tens of millions of euros?

What reason would we have to believe that the justice laws will come out of Parliament OK since Prime Minister Nicolae Ciucă himself could at some point be targeted by the DIICOT investigation into the blatant method by which his plagiarism file was directed to a certain judge favoured by the Liberals?

Why would Marcel Ciolacu help to restore the power of the prosecutors when it is not at all clear how and why the millions of euros received by the party as a subsidy even during his mandate as president, not only by the leaders before him, reached the press? One indication that things are not right is precisely the PSD’s constant refusal to make these contracts public.

If we then take a closer look at the wealth declarations of some of the heads of key institutions, we understand even better why the support given to DNA in recent years is insignificant. How can justice function as it did in its glory days when at the top of the state today we have not just one Dragnea, the symbol of political corruption unleashed in 2017 against prosecutors, but several with potential?

What interest would President Klaus Iohannis have in leaving behind, in two and a half years when his two terms at the Cotroceni come to an end, a strong and independent judiciary when his friend wins suspicious public tenders worth tens of millions of euros?

What reason would we have to believe that the justice laws will come out of Parliament OK since Prime Minister Nicolae Ciucă himself could at some point be targeted by the DIICOT investigation into the blatant method by which his plagiarism file was directed to a certain judge favoured by the Liberals?

Why would Marcel Ciolacu help to restore the power of the prosecutors when it is not at all clear how and why the millions of euros received by the party as a subsidy even during his mandate as president, not only by the leaders before him, reached the press? One indication that things are not right is precisely the PSD’s constant refusal to make these contracts public.

If we then take a closer look at the wealth declarations of some of the heads of key institutions, we understand even better why the support given to DNA in recent years is insignificant. How can justice function as it did in its glory days when at the top of the state today we have not just one Dragnea, the symbol of political corruption unleashed in 2017 against prosecutors, but several with potential?

In other words, there is an interest from the very top of the state to block criminal justice. Add to this the real aversion to anti-corruption prosecutors shown by most politicians, be they mayors, county council chiefs, MPs or ministers, especially those who share budgets, positions or other advantages.

Politicians have been convinced since the creation of DNA that the institution, once in place, represents a real danger to the corrupt establishment. Former prime minister Adrian Nastase and former justice minister Rodica Stănoiu created a bottomless pit in 2002, hoping to fool Western partners into thinking they were doing something about corruption that had become systemic. The former National Anti-Corruption Prosecutor’s Office (PNA), the ancestor of today’s DNA, headed by Ioan Amarie, was chasing train controllers and petty officials.

The maximum allowed in the Năstase era was the arrest of a government adviser in November 2002, who was finally convicted two years later. The Fănel Păvălache case caused a stupor at the time, but politicians still had no cause for concern.

It was only after Adrian Năstase lost power in 2004 and the innocuous PNA was transformed into the DNA led by Daniel Morar that the institution became feared among politicians. Dozens of high-ranking dignitaries, both in opposition and in power, fell into the prosecutors’ trap. Former president Traian Băsescu and former justice minister Monica Macovei were credited with reforming major justice institutions in their first year in office (CSM, chief prosecutors’ offices, High Court), especially in the years before Romania joined the EU (2007), under effective pressure from Brussels.

Also at that time, corruption was included among the threats to national security, which allowed the secret services to become increasingly involved in criminal investigations. Their power grew exponentially so that the ‘DNA-SRI binomial’, as it was dubbed by opponents, paralysed whole armies of politicians and influential businessmen with fear and aroused the fury of the all-powerful moguls. The coalition of small and big political gangsters has plotted two attempts to suspend President Basescu, the first consummated in 2007, the second in 2012.

For all their coalescence, none of the moguls who ruled Romania from the shadows escaped investigations and, subsequently, convictions: Vântu, Voiulescu, the late Patriciu, then the new generation, Ghiță and Păcuraru. Romania then narrowly avoided becoming a failed state.

An extremely important event in the history of DNA was the dismantling of the network of influence in the judiciary, especially in the High Court, a network patronised by former PSD senator Cătălin Voicu. Then, in 2010, there was a turning point for Romania, suffocated by corruption: the disintegration of the network-state. Parliament voted to lift Cătălin Voicu’s immunity by one vote. Without it, anti-corruption history would have looked very different.

• I explained at length 12 years ago how the network state works: the network state is the opposite of the rule of law. In the network state, the powers of the state are dependent on each other, they do not function independently. In the network state, the ultimate goal is the total subordination of justice, not its liberation. The network is basically a circle of privileged people: businessmen, politicians, and magistrates, who put personal or group interests above the public interest. But the network, however extensive and powerful it may seem, quickly falls apart when state institutions begin to function properly.”

Especially after the failed attempt to suspend President Basescu in 2012, no one felt safe anymore. The investigation and conviction of former prime minister Adrian Nastase dismantled the myth of impunity enjoyed by the highest offices in the state: president, prime minister, party leader. The justice system has gained even more courage.

Anti-corruption prosecutors have gained so much momentum and power that under Laura Codruța Kovesi the institution has even turned against President Traian Băsescu, more precisely against his brother, children and protégés, see the Udrea case. Basescu had made the fight against corruption a central theme in his first term at the Cotroceni.

Adrian Nastase was probably convinced when he set up the PNA that his water pistol would never be able to fire real bullets. Nor did Traian Băsescu probably imagine towards the end of his mandate that the gun that ended so many politicians’ careers would also turn against him. The institution has devoured both its parents. A worrying sign for many.

But then came the moment when politicians tried to get their revenge. There have been various attempts over the years to change criminal legislation in Parliament, such as the Black Tuesday in December 2013. The USL of the time (Victor Ponta, Crin Antonescu, Dan Voiculescu) fought in Parliament to cut the powers of anti-corruption prosecutors.

But the frontal attack on justice began after the 2016 elections, under the Dragnea regime. Then the justice laws were butchered, and in parallel the Constitutional Court completed the disaster under the powerful influence of Daniel Morar. For reasons that are still unclear, the former head of DNA switched sides after his appointment as a judge at the CCR.

Another key moment was the CCR’s February 2016 decision, which virtually evicted the secret services from the criminal investigation. Since then, information gathered by them can no longer constitute evidence in the case. This is the moment of the disappearance of the „Prosecutor-SRI binomial”. The collaboration between the two institutions had been enshrined in the famous „protocols”. They too were the subject of much controversy. Some excesses and collaboration with the services, sometimes taken to extremes, have given the DNA’s opponents water to the mill. The media campaigns to demonize prosecutors on Antena 3 and Romania TV during the Dragnea government undermined confidence in the institution and prepared the media ground for its castration.

Several successive decisions of the CCR in recent years, coupled with legislative changes in Parliament operated by the Dragnea regime, have massively curbed the work of DNA. These include decision no. 51 of February 2016, which no longer allows the SRI to execute technical surveillance warrants (MST) for DNA, decision no. 91 of February 2018, which no longer allows the SRI to use national security warrants (MSN) for corruption, and decision no. 22 of February 2018, which obliges courts to remove evidence declared by previous decisions to have been „unlawfully obtained” from cases.

But the coup de grace dealt to DNA by the Dragnea regime was the establishment of the Special Section for the investigation of crimes committed by magistrates and the activation of the Judicial Inspection used as a political bludgeon against troublesome magistrates. Now it is the turn of politicians to have their investigators transferred to the Special Section, which is being misused as a means of pressure and intimidation. The Special Section opened a criminal case against former DNA chief Laura Codruța Kovesi and called former SRI first deputy Florian Coldea to hearings.

President Klaus Iohannis himself bowed to the infernal pressure from the PSD, initially asking Laura Codruța Kovesi to resign. Kovesi refused, a gesture the current president has never forgiven her for. Kovesi was eventually dismissed by former justice minister Tudorel Toader. In July 2018, President Klaus Iohannis signed her dismissal decree, the announcement was made by the Presidential Administration spokesperson.

Hated in the country by corrupt politicians, Laura Codruța Kovesi became head of the European Public Prosecutor’s Office. In Brussels and in the Western press Kovesi enjoys an excellent reputation. A new institution designed to investigate fraud involving EU funds, the European Public Prosecutor’s Office becomes operational in June 2021. As hard as they fought to get rid of Kovesi and the DNA, politicians found themselves with another gun to their head, put there by Brussels. More difficult to neutralise, but not impossible, the European Public Prosecutor’s Office has already opened investigations in several countries, some of which have already resulted in convictions.

At home, the anti-corruption momentum has gradually died down. With the Special Section and the Judicial Inspectorate’s axe hanging over their heads, DNA prosecutors have slowed down significantly. The next DNA chiefs after Kovesi (Călin Nistor interim until Crin Bologa, appointed in February 2020) have lived off the big corruption cases started before them, during the „binomial” era. Most of the cases opened in recent years are cases of low or medium corruption. Apart from the cases of Sorina Pintea (health minister in the Dancila government) and Adrian Chesnoiu (agriculture minister in the Ciucă government), DNA has not produced any other cases of grand corruption in the last two or three years.

Meanwhile, the judge who convicted Dan Voiculescu has been removed from the bench. The harassment of troublesome magistrates continued under the PSD-PNL-UDMR government. Judge Cristi Dănileț, for his part, was excluded from the judiciary for ridiculous reasons. Exemplary executions with the aim of inhibiting the Romanian justice system to the maximum. The methods of the Dragnea regime have not changed, only refined.

Even the few magistrates who still have the courage to raise their voices and criticise the justice laws drafted by the Ciucă Government are being targeted by complaints for alleged disciplinary offences and are themselves at risk of exclusion.

President Klaus Iohannis, like Traian Băsescu, won both his terms in office with anti-corruption rhetoric and is ending up trying to bury the institution as deeply as possible. Politicians have seen their dream with their own eyes, almost totally annihilating the justice system. We are dealing with the pendulum effect: the fight against corruption has fallen from one extreme to the other. From the „republic of prosecutors” we are returning step by step to the „network state” of Cătălin Voicu’s time. The Supreme Council of Magistrates, the High Court and other key institutions are again colonised with people approved by politicians.

The DNA has ended up functioning as it did in its early days, a water gun, except that all the politicians who think they are untouchable today forget what happened to their predecessors once they left power. They also forget that an institution, once created, can always function again like a gun firing real bullets. All it takes is political will. It is lacking today, but no one can guarantee that it will be the case in two, three or five years’ time.

Has all this effort in recent years been in vain? Has the DNA achieved its deterrent purpose of discouraging high-level corruption? Partially, yes. The effort has not been in vain, but Romania has missed the chance to have a functioning and coherent DNA under several electoral cycles. In reality, the National Anticorruption Directorate has been operating at full capacity for about ten years. Therefore, there was not enough time for a real anti-corruption culture to emerge in society.

There is, however, little reason to hope that the parties will not succeed in rebuilding the „network state”.

Brussels has created enough mechanisms linking European funds to the functioning of the rule of law, plus the European Public Prosecutor’s Office headed by Kovesi. It will be difficult for the anti-corruption fight to get its engines revving again, but when the ‘network state’ threatens to set Romania back 20 years, there is still a chance that the institutions will work again.

Translated article