A tale of Dragnea and Tudose: The Counter-Reformation of the Romanian Judiciary
In January 2017, Romania’s freshly installed Prime Minister Sorin Grindeanu tried ramming through highly controversial legislation in the dead of night by abusing emergency ordinance powers. Had it passed, the legislation would have strongly hampered the judiciary’s capcity to prosecute certain corruption offenses, a fact so obvious hundreds of thousands of Romanians who rose up in protest. After a few weeks of demonstrations, the offending bill was revoked, the Justice minister sacked and a wedge was driven into the PSD government, one that would lead to the toppling of the Prime Minister later in the year. Everything happened under the watchful gaze of PSD party head, Liviu Dragnea, the person who would have benefitted most from the legal changes.
In late August 2017, with a new Prime Minister and a new Minister of Justice at the helm, the PSD government launched its second offensive in the battle against Romanian anticorruption authorities. This time the offensive took the form of a levée-en-masse, with Minister of Justice Tudorel Toader proposing a wide set of legislative changes, changes that would visibly and unquestionably weaken several important bodies of the judiciary. The set of changes comes at a time when PSD leader Liviu Dragnea faces a wide array of corruption charges in several cases.
With the high probability that at least one of the charges, no matter how small, would stick, Dragnea is looking at a mandatory jail sentence due to a previous suspended sentence for abuse of office. Dragnea, however, is in complete control of the Social Democrats, something that the ousting of former PM Grindeanu clearly proved — it’s no wonder that the first order of business for the Justice Ministry was to weaken the independence of the judiciary. This was evident through Toader’s avoidance of any consultations with magistrates before passing a legislative package aimed at them.
The legal changes Tudorel Toader proposes seem innocuous at first glance but have far-reaching consequences. First, the minister proposes passing the Judicial Inspection (IJ) from the Romanian Supreme Council of Magistrates to the Ministry; a move the IJ itself is critical of. The IJ is an independent watchdog body that “watches the watchers”, meaning that it investigates magistrates and judicial bodies and answers only to the Supreme Council of Magistrates (CSM). By putting the IJ under Ministry control, a politically appointed minister (member of the Executive) would have the right to investigate and drastically impact the careers of troublesome magistrates. The last time the Judicial Inspection was under ministry control was also during a PSD government. Then minister Rodica Stănoiu exercised complete absolute control over the judiciary and made sure that no high ranking PSD members were tried. Since announcing the changes, Toader has already instructed the IJ to investigate Romania’s main anticorruption body, the Anticorruption Directorate (DNA), sparking yet another scandal in Romanian justice.
Second, Toader proposes increasing the minimum age for prosecutors to 30. Considering the length of law studies in Romania, this would leave aspiring prosecutors or judges a five year window where they would have to practice law privately. This would likely mean being that aspiring magistrates will be taken under the wing of senior lawyers to “learn”. Coincidentally many Romanian politicians are actually practicing lawyers. Perhaps this would not impact the profession directly but it would likely have an impact on their professional ethics.
Thirdly, Toader proposes a new department within the General prosecutor’s office tasked with criminal investigations against magistrates. The Justice Minister would propose the head of this body, thus assuring the complete control of the minister over magistrates,
Furthermore weakening the position of magistrates is Toader’s fourth proposal, namely that magistrates be personally liable for damages in the case of judicial errors. If implemented in a certain way, this move would create the opportunity for any person indicted in the first court and later acquitted in a higher court to personally sue magistrates for damages on grounds of judicial error. It would amount to a chilling effect on future prosecutions, where judges would actively be afraid of being sued for everything they’re worth if they pass the “wrong” decision against wealthy clients who can afford to sustain even a losing trial for years.
Finally, Toader seeks to remove the President of Romania from the process of naming the heads of prosecutor bodies like the Prosecutor General, The Directorate for Investigating Organized Crime and Terrorism (DIICOT) or the Anticorruption Directorate (DNA). Currently the naming process involves a tenuous balance of power between the President, the Minister of Justice and the Supreme Council of Magistrates. In theory, depoliticising this process by removing the executive would be a step towards a better balance of power. In practice, however, this is a tactical move by Toader and those seeking to undermine the fight against corruption — the Presidency is the only office that PSD and its allies do not hold, and incumbent President Klaus Iohannis is a strong supporter of the fight against corruption. Removing him from the process would be a short term solution for the Social Democratic Minister of Justice and his party head in case there are any immediate changes. Over the long term, a more politicised control of the Judiciary would lead to a more politicised CSM, ensuring total control of the top prosecutor offices.
The consequences of these proposed changes are not clear as of yet. The opposition has denounced the changes and is attempting to stop them in parliament, although the odds seem stacked against them. Meanwhile, old friends like Adrian Năstase are singing Toader’s praises for his “courage and humour” in changing the Justice system and Toader himself has cheekily answered the US ambassador’s worried criticism by proposing that the Senate (also controlled by PSD) name the General Prosecutor “like they do in the US”. One thing is certain, the battle against corruption is far from over and the instruments of anticorruption are far from safe.
