How the Anticorruption Directorate got into a coma

The new conditions for a prosecutor to be appointed at the National Anticorruption Directorate (DNA) are merely the last blows that de facto paralyze the institution’s activity, which has been agonizing for almost two years. Augustin Lazar and Anca Jurma are now making desperate efforts to limit as much as possible the devastating effects of Emergency Decree 92, written in secret by Justice Minister Tudorel Toader and amended shortly before the government meeting.

Unfortunately, only canceling the Emergency Decree with another Emergency Decree, or a referral to the Constitutional Court can save something. There are no other solutions. The People’s Advocate, the only one who can attack the Emergency Decree at the Constitutional Court, has strategically gone on a prolonged leave. Prime Minister Dăncilă has also gone on external visits for a week. Even without these absences at the right time, it is hard to believe that either of them could count.

At its meeting convened on Wednesday, the Prosecutor’s Section of the SCM gave an interpretation of how the toxic Emergency Decree would be applied, unanimously deciding that the new rules, ranging from seniority to appointment by competition, apply only for the future. In other words, all prosecutors remain in office. But this is only a point of view.

Another point of view is that the legislation is so confusing, that all DNA officers in office must comply with the new rules. However, Tudorel’s Emergency Decree says that in order to remain in their position, the anticorruption prosecutors must have ten years experience instead of six, and go through a contest, whereas currently, they are appointed at the DNA after an interview.

The confusing texts in Toader’s Emergency Decree are essentially the base of Attorney General Augustin Lazar’s referral made to the People’s Advocate, asking him to address the Constitutional Court. In short, everyone agrees that we are dealing with such bad texts that everybody understands what they want from them. Moreover, there are perfectly contradictory articles, some of which clearly say that appointed prosecutors remain in office, whereas others say that prosecutors have to meet the new conditions in order to remain in office.

This general chaos favors DNA clients. Since the entry into force of the Emergency Decree, DNA prosecutors have been at risk of being challenged in court by lawyers on the grounds that they do not meet the legal conditions of appointment. If they carry out criminal investigations, all these acts (witnesses, evidence, etc.) risk being declared null and void if a court decides that the case prosecutor does not meet the legal conditions of appointment.

What would you do if you were a prosecutor today? Would you risk losing your work for months or maybe years in files? Would you throw all your inquiries into your basket? You certainly can not risk anything until the legal clarification of your DNA position. This means a long break in the institution’s work. This is where the DNA is right now, in a state of paralysis and total discomfort, of which I do not see how it could extract itsel. In addition, the prospects are dismal.

Justice Minister Tudorel Toader has publicly announced his intention to go forward with the proposal he has for the office of DNA Chief until the end, indicating he would propose Adina Florea even after President Iohannis would refuse her a first time, and the latter would have to accept her proposal. However, Adina Florea has received a negative evaluative opinion from the SCM, which heavily criticized her after the hearing, criticizing in the first place the „submissive attitude” expressed by the candidate in clear words: „I am not an independent prosecutor.”

The episode of the Emergency Decree adopted on Monday is a desperate attempt to completely disconnect an institution that has long been in a coma from the last devices keeping it alive. DNA had already entered clinical death at the end of a long string of powerful blows. The majority of the SDP – ALDE, helped by the Constitutional Court, has de-penalized on a rolling basis deeds investigated by prosecutors, curtailed their attributions, and weakened the legal framework. On the other hand, institutional cooperation has entered a deep crisis.

Current has not fueled the engine as in the past. The Constitutional Court decision of 2016 removed the Intelligence Services from the investigations, but it did not forbid it to send further information on which prosecutors could begin investigations. Prosecutors complain that services have not been delivering much work in the past years. What big case file did you see open after 2016?

The media assault on televisions controlled by criminal convicts or defendants has contributed to the paralysis of the institution. An important role in blocking the activity of the prosecutors was played by the Judicial Inspection, which carried out disciplinary investigations and actions on the former head of DNA, Laura Codruta Kovesi, but also on every prosecutor who had high-stakes files.

Finally, Laura Codruta Kovesi’s execution in an exemplary fashion, with her harassment modelled on that of Judge Camelia Bogdan, the brave magistrate who sentenced Dan Voiculescu to the ICA file, produced effects in the system. All in one place, in fact – the media linkages, the attacks of politicians, the intimidation actions by the Judicial Inspectorate, the exemplary executions at the top – inhibited DNA. An institution already mutilated by the coalition of politicians with criminal problems who cut the institution’s hands and feet in Parliament.

In addition to all this, no one had its back on justice. No one has ever fought for it in real life except for a handful of journalists and the public who came out on the street each time the independence of judges and prosecutors was in jeopardy. Now, after the new Emergency Decree with lethal effects, no one came out.

The European Commission has been silent for months, as in Orban’s case, waking up when there is not much left to do. Officials in Brussels should not be surprised that Romanians’ confidence in EU institutions is collapsing dramatically from one year to the next, since the Union institutions prove to be powerless when democracy in a member country goes through serious convulsions.

Among those who have done little for justice, fighting for her independence only through a few statements of convenience, we include President Klaus Iohannis. At the top of the state, justice had an unconvincing defender, a fearful president, too comfortable and totally disengaged, an additional reason to feel abandoned.

These days, when anti-corruption has its days numbered, the president will arrive in Strasbourg, where he will once again pay lip service to the fight for the independence of Romanian justice, while all of the Western media is already placing us on a par with Poland and Hungary.

In both countries, the rule of law has already become a memory, they are the shame of the EU. Against the governments of Budapest and Warsaw, legal proceedings for sanctioning them under Article 7, namely the suspension of the voting right in the Council, have begun. In Bucharest, Dragnea, SDP, and ALDE are doing everything in their power to catch up with Europe’s plagues, and their latest deeds suggest they have already surpassed their counterparts in their efforts.

Traducerea: Ruxandra Stoicescu