01 March 2008

Litmus Test for the Romanian DNA (EN)

Tuesday, the Anti-Corruption Prosecution--DNA, formerly known as PNA--launched its annual activity report for 2007. Chief-Prosecutor Morar also announced that 80+ people were finally discharged of criminal accusations in the Commercial Fleet case. Media attention thus shifted away from the actual report: Some commentators focused on President Băsescu's previous mandate as minister of transportation and his responsibility regarding the Fleet--allegedly sold at a loss of €270 mil., while the third expert report shows only €10,000. Others continued with accusations concerning the President's bearing or control over General Attorney Laura-Codruţa Kövesi and Chief-Prosecutor Daniel Morar, emphasizing that Morar's mandate at DNA will end some time this fall. But what of the report, in and of itself?!?

Not everybody is convinced as to
DNA's impartiality and/or independence, according to UNCAC art. 30. Some people think DNA has too much discretionary power, disregards too many of the defence rights, appears to be selectively incompetent or inept when sending indictments to the courts, or even breaches the fundamental principles of the Romanian legal system. Since its creation in 2002, DNA's structure, attributions, jurisdiction and competencies suffered no less than 16 legislative changes operated by government decrees or acts of parliament. In addition, the anti-corruption legal framework that DNA is called to enforce suffered almost 30 successive limitations by decisions of the Constitutional Court. Thus, Chief-Prosecutor Morar is right when defending DNA's apparent ineffectiveness against an ever-changing, volatile legislation.

But there's at least two more reasons for the
DNA's apparent ineffectiveness: To begin with, the fight against corruption should run along three dimensions--prevention, administrative control and criminal sanctions (alongside education). DNA only takes care of the third, while the situation is rather unclear for the other two. The National Control Authority, established in summer 2003 to take charge of the second dimension, was soon thereafter dissolved in summer 2005. Thus, while the National Integrity Agency was initially meant to implement only administrative prevention (and, possibly, education) programs, ANI should now cover parts of the administrative control systems in the fight against corruption. We already know that ANI isn't operational, but it might (finally) have a President and 33 inspectors hired, by the end of March. A second reason, less complex, but just as important, may relate to the Superior Council of Magistracy's incapacity to provide a clear and effective procedure for the selection/recruitment, professional training and promotion/demotion of magistrates.

The 2007 activity report also points out specific short-comings in the judiciary, overall. Too many cases lagging behind, piling up on the prosecutors' desks; too many indictments being returned from court on technicalities; too many procedural and constitutional exceptions in the preliminary hearings; too many jail sentences being suspended from execution--especially for public sector defendants. Last, but not at all least, the report tells of a lot of corruption cases within police and the judiciary itself! Equally disquieting, especially in a country still fearing the discretionary power of the pre-1990s secret police, DNA wire- and/or ambient-tapped more than 9.000 hours of conversations among eventual culprits. On a personal note, then, I expected the report to assess the numbers, results and impact of undercover agents running integrity tests, as well as to inform about the most vulnerable sectors and/or most exposed positions in the system. And, if possible, I wished for a brief evaluation of DNA's media relations and their impact on the (actual or perceived) impartiality of court proceedings.

Under these circumstances, what to conclude on the Romanian DNA? From a UNCAC perspective, the findings are inconclusive, and we'll have to wait for the results of an independent evaluation over Mr Morar's 3-year mandate, ahead of an improved version of Romania's third anti-corruption strategy, 2008-10. For now, DNA seems independent enough, but rather ineffective--and, allegedly, sometimes irresponsible :( Such perception of ineffectiveness may result from a faulty or insufficient institutional arrangement, from expectations too high, from overall under-budgeting in the judiciary... While further reforms are needed, several rounds of elections due in 2008-09 may block progress, and the upcoming EU report of July may easily trigger the safeguard clause, precluding Romania from using additional EU money in the implementation of UNCAC provisions :(
The Litmus test turned ugly: we contemplate a vicious circle since the CoSP failed to agree on a review mechanism and an accompanying system of technical assistance--I guess now the only hope lies with the Anti-Corruption Practitioners Network out of Bratislava?!?

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