"We are tired of being stolen from". Flickr/nitot. Some rights reserved.

At the beginning of February, the European Commission (EC) issued a report which highlighted the fact that corruption deserves closer attention across all European Union (EU) member states since it costs the European economy around 120 billion euros annually. Member states, such as Romania, which do not have fully-fledged democratic or judicial institutions and suffer from crises of legitimacy, are proven to be more vulnerable to corruption than others.

Recent months, however, have seen an increase in the effectiveness of the Romanian institutions meant to deal with corruption, such as the National Anti-corruption Directorate (DNA).

In practice, the modalities through which such institutions have been strengthened or sought to enhance their power, raise important questions. They highlight two seemingly opposing interpretations of democratic governance: legality versus legitimacy.

Legality

For the last ten years democratic institution-building in Romania has focused, under the guidance of the EU, on legality. In terms of the judicial system, this has meant creating a legal framework which allows prosecutors and judges to act in a way that is insulated from political pressures, whilst making their activity more effective.

Evidence of this lies in the reforms introduced by several governments since the country’s accession to the EU culminating in the creation of the DNA (with its own police force), together with various changes to the Penal Code and the Code Penal Procedure.

Last month also saw convictions in Romania’s high courts of former Prime Minister Adrian Năstase and three former government ministers. All of these cases had been through several courts in recent years, with considerable publicity created around them in the Romanian public space.

These developments should be regarded as a direct result of the EU’s influence and leverage, and in particular of the pressure that the European Commission has put on the Romanian government to strengthen judicial institutions, as well as increasing transparency in the justice system.

Moreover, the Commission has continuously emphasized (also here) the need for high-level cases to result in final sentences. 

Legitimacy

On the other hand, the EU has exerted little pressure in terms of making the activity of judicial institutions more legitimate in Romanian public space. As a consequence, the effects of strengthened judicial institutions on enhancing democratic governance have been rather limited. I would like to address three points here.

Firstly, the lack of legitimacy is predicated on the absence of viable institutions that can hold the judicial system accountable.  For example, the selection of cases and the professionalism with which prosecutors approach each case lacks proper accountability.

This is part of a larger picture, in which the Parliament, the government or the President tend to avoid issues of accountability, leading to a widescale perception of their illegitimacy in the public space.

The Parliament recently passed, and then quickly withdrew, a series of laws which made MPs immune to prosecution. The current Ponta government has featured a series of Ministers accused of corruption, some of whom have already been convicted. On his part, the President has overtly protested against efforts from the government or MPs to investigate various accusations regarding the business activities of his family members.

There is a general tendency among state institutions in Romania to dismiss claims for more accountability as being fuelled by political or economic interests rather than interest in the rule of law.

Second, transparency in the case of prosecutions and convictions has involved delivering to the media skillfully edited snippets of tapped phone conversations, which more or less incriminate those accused. There are been several examples where prosecutors have leaked to journalists such conversations before sentences were made public.  What is needed here is more transparency in the decision-making processes which take place within judicial institutions, and the mechanisms through which various cases are selected. This is linked to the third point, namely, the current debate raging in the public space.

Prosecutors and judges have criticised journalists on many occasions for claiming that the former’s activity should be made more transparent. Moreover, various members of the judicial system have demanded that the Government silence parts of the media, for example, by criminalizing criticism in the public space of court sentences in corruption cases.

Debates now take the form of witch-hunts backed-up by tapped phone calls supplied by the DNA. On the other hand, several media outlets have criticized prosecutions in the cases where their owners had close economic or political ties with those convicted. One example is the Intact Group owned by the former leader of the Conservative Party which has been outspoken in criticizing court decisions in several high level corruption cases (such as the case of former Prime Minister Adrian Năstase). In justifying their claims, journalists focus on aspects ranging from the personal lives of the prosecutors or judges, rather than on the actual cases of corruption.

In my opinion, debates should focus on the lessons that can be learnt from these cases in order to stamp out corruption at its roots. Low-level corruption is so widespread that it is hardly conceivable that solely concentrating on high-level convictions would have a widespread and lasting impact.

Debates should also discuss the role of the state, and of the various powers within it, in tackling corruption and strengthening democratic institutions. In the absence of such discussions, Romania’s fight against corruption will lack the necessary legitimacy.

Now that the legal framework has been constructed, and arguably strengthened, in order to allow judicial institutions to function effectively, the EU needs to put pressure on the Romanian government in order to shift its attention from legality to the rather more important task of constructing legitimacy.