Emergency Call for Romania's Democracy

In front of the government's building in Bucharest protesters light up phones,
demanding the replacing of the existing
opportunistic, cynical and egoistic political leaders, June 2018
(Photo: Alexandru Busuioceanu)

The Romanian ruling coalition is undermining the rule of law at the moment when Romania is preparing to take over for the first time the presidency of the European Council.

“The Romanian democracy is experiencing a regression due to the lack of democratic commitment of the ruling PSD-ALDE coalition”, says Smaranda Enache, Co-Chair of the Pro Europe League, a Romanian NGO advocating for European values, pluralist democracy and respect for human rights. But it seems to be a negative trend present in almost all Central-East European EU member states, she adds. After acceding to NATO and the EU, these states almost stopped their internal reforms, and their conversion towards functional pluralist societies was abandoned. “The new elites seemed more interested in preserving their power, in populism and authoritarianism, than in deepening and fulfilling the reformation process of the former communist states”, believes Enache. In the specific case of Romania, many leaders of the governing coalition are themselves prosecuted in high corruption cases, and they are cynically undermining the anti-corruption campaign in their personal interest. On the other hand, historically speaking, democracy is rather new in these post-totalitarian countries, and the society at large does not identify yet with an authentic democratic culture.

Smaranda Enache – Co-Chair of the Pro Europe League
(Photo: Stefan Szobotka) 

Indeed, “the future looks gloomy, as we face an unprecedented attack on the rule of law in Romania, to date the most powerful counter-reaction to the implementation of the European requirements in the field of justice”, says Adrian Baboi-Stroe, Deputy Executive Director of the RO100 Platform. A London School of Economics graduate in public policy, Baboi-Stroe served as Secretary of State at the Ministry of Justice in the Cioloș “technocratic” government, in 2016, when he was in charge of the anti-corruption strategy, judicial performance assessment, and institutional transparency. According to Baboi-Stroe, the fundamentals of the existing judicial system, put in place in 2004, before Romania’s accession to the European Union, included the elimination of the political influence on the judicial system exerted through the Minister of Justice, anti-corruption measures, and other measures in accordance with the EU requirements. All that is under threat of being reversed now.

The first signs of a counter-reaction became visible some five-six years ago, says Baboi-Stroe. Back in December 2013, it was on the “Black Tuesday” that the Parliament tried to change the Criminal Code, offering to the MPs immunity against investigations by anti-corruption bodies, such as the National Anticorruption Directorate (DNA). That attempt failed, but the victors in the December 2016 elections were more determined than ever to complete their counter-reaction. “It was something we were expecting, because there was a strong political will to hamper the judiciary”, says Baboi-Stroe.

Romania has taken serious backward steps over the last two years. “As a result”, says Baboi-Stroe, “Romania finds itself isolated in Europe". The November 2018 European Parliament resolution on the rule of law in Romania, as well as the recent reports of the Group of States Against Corruption (GRECO) and of the Venice Commission are highly critical of the changes made to the Judicial Laws, to the Criminal Code, and the Criminal Procedure Code. 

Adrian Baboi-Stroe – Deputy Executive Director, RO100 Platform
(Photo: Steluța Popescu) 

The independence of the judicial system is challenged for the first time since the ‘90s 

“It is the first time since the pre-accession period that the independence of the judicial system in Romania is openly put into question”, says Baboi-Stroe.

Ironically, this counter-reform occurred after a positive report of the special Cooperation and Verification Mechanism, released in January 2017 by the European Commission. The report looked at the last 10 years since the introduction of the CVM, acknowledging the good track record of the DNA, and endorsing the new National Anti-Corruption Strategy. Only a few pending issues remained to be addressed. A responsible government would have solved these pending issues in maximum one year, believes Baboi-Stroe. In 2016, the Cioloș Government asked for a “smart phasing-up” of the CVM - a gradual process of closure based on achieving a number of specific targets. The EC addressed this proposal in the CVM report of January 2017, in the form of a list of 12 specific recommendations (such as an Ethic Code for the Members of Parliament). “We left an extremely clear roadmap with simple steps to follow,” says the former Secretary of State.

But the roadmap of the technocratic government squarely conflicted with the objectives of the new parliamentary majority, issued from the December 2016 elections, whose sole agenda was a vast undermining of the judiciary and of the anti-corruption policies. Instead of the fine-tuning needed to close the CVM, changes of great magnitude followed. A first attempt was the Government’s controversial Emergency Ordinance (OUG) No. 13 from February 2017, which aimed to change the Criminal Code, and to decriminalise corruption-related offences. It was a kind of a “surgical” intervention to save the decision-makers under criminal investigation, says Baboi-Stroe.

Protesters in Bucharest, in February 2017,
asking for "Solidarity", and "Social Justice. Down Privileges!"
(Photo: Andreea Iorga-Curpăn)

But the society reacted by organising protests in Bucharest and other cities in Romania, of which the biggest took place in the Capital on the 5th of February 2017, bringing together more than 250,000 people, while other over 250,000 protesters took to the streets on the same day in Cluj-Napoca, Iași, Sibiu, Timișoara, and other cities. Under the pressure of the protests in favour of the rule of law, respect for the independence of the judiciary, respect for fundamental freedoms, known as the #rezist protests, the OUG No. 13 was repealed by the Government.

Without the civic protests, Romania would have become an even more authoritarian and isolationist state

According to Enache, these civic protests were the expression of the frustration of the young generation confronted with an anti-democratic, corrupted and populist Government. The protests played a major role in preventing the current Government coalition from brutally suspending overnight the independence of judiciary and the anti-corruption process. Without the protests, Romania would have become an even more authoritarian and more isolationist state, further distanced from its European commitments. Enache believes that the protests of the Romanian young pro-European and pro-democratic generation are an inspiring example in the region, and we can see that in Hungary and Poland similar waves of protests are opposing the increasingly nationalist and populist Governments policies.

Thousands of people protested against OUG No. 13, in Iași, in February 2017
(Photo: Diana Mărgărit)

The real extent of the changes envisaged by the ruling PSD-ALDE coalition became visible only in August-September 2017, says Baboi-Stroe, when it became clear that there will be a complete change of the Judicial Laws, not only of some points. There was an in-depth plan, carefully prepared in advance, although the actual laws were quickly adopted. In the same time, the action was supported by an intense pro-government media campaign, as well as by a powerful external lobby - “experts for hire”, as Baboi-Stroe calls them - writing reports on demand, financed from obscure sources connected to prosecuted or convicted politicians and business people.

Should they come into force, the new laws will take Romania back to the political dependency of the judiciary that existed in the ‘90s, says Baboi-Stroe. The anti-corruption policies are also under a big threat, not only by giving the Minister of Justice the possibility to easily dismiss high ranking prosecutors - such as the DNA chief-prosecutor, revoked in July 2018 at the request of the Minister, but also by introducing a hierarchical control on substantive issues, in addition to the control of the legality aspects, as it was till now, opening therefore the way for the blocking of sensitive files.

We are now in a state of vulnerability in front of the EU, believes Baboi-Stroe, as all the European political parties have agreed on the resolution on the rule of law condemning Romania for the changes to the Judicial and Criminal legislation, as well as for the brutal intervention of the Gendarmerie on peaceful demonstrators in Bucharest, in August 2018. The European Commission has understood that it must react quickly, because the events in Romania unfold at a fast pace. If the EC doesn’t act quickly, its response might prove useless, which may be dangerous for the EU itself, because it risks being considered irrelevant. It may be possible that the EC will try to experiment on this issue. Triggering Article 7 could be a way to act, but it is unpractical, and uncertain as result. It is clear that the power in Romania acts swiftly and brutally, and doesn’t fear a political shaming at European level, says Baboi-Stroe. The EC could take Romania to the Court of Justice of the EU, where if Romania loses, it will be obliged to bring changes to its legislation. But it is an unusual way to solve this kind of problems, adds Baboi-Stroe, as there is no Directive for justice or fight against corruption. Provisions of the Treaty will have to be invoked.

Romania would like an „à la carte” EU membership: receiving funds, but rejecting obligations 

Enache says there is no surprise that Romania is now on the „black list”, and potentially risks sanctions from the EC. “The Romanian Prime Minister, Mrs. Viorica Dancilă, in her recent intervention in the European Parliament, did not give any sign of the fact that her Government takes seriously into consideration the repeated warnings coming from the European Commission”, says Enache. “On the contrary, it was clear that the tactic of the current Romanian Government is to cheat on the fulfilment of our obligations as members of the Union”, she adds. Like in other new member states, the ruling political elites would like an „à la carte” EU membership: accepting funds and benefices of the membership, and in exchange, rejecting values and obligations assumed at the accession moment. Such an attitude does not undermine only Romanian’s functioning democracy, but also the EU as whole. “The current Romanian Government and Parliamentary majority”, concludes Enache, “does its best to qualify Romania for sanctions from the EC”. On the other hand, Romania will take over from the 1st of January 2019 the Presidency of European Council with a challenging agenda (Brexit, cohesion policies). According to the Co-Chair of the Pro Europe League, sanctions will be postponed until the end of the Romanian EC Presidency, but if the current Government coalition will continue to undermine the rule of law, the sanctions could occur at an earlier stage.

In country there is not much more that can be done. The reaction of civil society has been extraordinary, says Baboi-Stroe. The NGOs have filed complaints to the Presidency, the Parliament, the Venice Commission. The largest popular protests since the years ’90 were staged in Bucharest and in the whole country. Small victories were won, but it became clear that the fight is unequal. “Without a parliamentary representation, one has no voice”, says the former Secretary of State. The positive side is that people are looking for new ways to act: they start thinking of getting involved in politics. They no longer consider politics as something dirty.

There is a need for new parties, for new political elites to replace the existing opportunistic, cynical and egoistic leaders

Enache too believes that protests alone cannot solve the endemic problems of the postponed deep reforms of our states. There is a need for the creation of new parties, there is a need for new political elites, able to replace those in power now, whose leaders are opportunistic, cynical and egoistic, able at any moment not only to change laws, but even to risk Romania’s geo-strategic orientation, if their personal interests are in danger.

“Everybody talks about the poor quality of politics”, says Diana Mărgărit, spokesperson of Demos, a new political party, registered in September 2018. “In order to raise the bar, we decided to get involved”, she adds. There are many “new” parties, but with “old” politicians. However, Demos is genuinely new, as all its members are coming from NGOs, having a long experience of public protests. This can be a double edge sword, agrees Mărgărit: on one hand the members of Demos may be inexperienced in politics, but on the other hand they are fresh, open to new ideas, impossible to blackmail, far from any illicit activities.

Diana Mărgărit - Spokesperson, Demos
(Photo: Al.-R. Săvulescu)

The political orientation of Demos is towards social programmes. “The Government speaks about a high economical growth. But if life is so good in Romania, why have almost five million people left the country to work abroad?” asks Mărgărit. Actually, the level of poverty is increasing. According to the 2018 report of the EP, the level of people at risk of poverty or social exclusion in Romania is 38.8% - almost double compared to the European average of 23.5%.

Today’s politicians introduce changes in all aspects of life, but even if they could draft good laws (justice, anti-corruption, administration), which they don’t, problems would still persist, says Mărgărit.  People will still lack access to education, to health services, to infrastructure - not only roads, but also water and sanitation, and even electricity. Why are people offering informal payments in hospitals? Because of the precarity of the health system. If you punish bribery, that doesn’t solve the precarity of the system. Therefore, says Mărgărit, we need a coherent political programme, which Demos is able to offer.

But there are serious barriers raised by the political establishment in order to discourage new political parties. "For example", says Mărgărit, "we will need 200,000 signatures to be able to participate to European Parliament elections in 2019. This is a huge challenge. In Hungary, you only need 50,000".

However, even if Demos, as well as other new parties, such as USR (The Union Save Romania), already in the Parliament since December 2016, or RO+ (The Romania Together Movement), struggling for the last six months without success to register because of bureaucratic and legal challenges, will win the future elections, the task of these parties will be of monumental proportions when the time will come to undo the PSD-ALDE legacy, says Baboi-Stroe. These are lost years of wasted energies, and we still don’t realise the real magnitude and ramifications of the changes that were made, he adds. In addition to the Judicial and Criminal Laws, other massive changes have been hastily brought to the Administrative Code. As of now, nobody can fully estimate the future implications of all the changes that were made. At this point we only see the tip of the iceberg, but probably its ramifications are considerably deeper, and they will only be discovered in time by the practitioners - judges, lawyers, public servants, believes Baboi-Stroe.

The December 2016 elections had a very low turnout, of under 40%. They were won by PSD (Social Democratic Party), which formed an alliance with ALDE (The Alliance of Liberals and Democrats) to obtain a Parliamentary majority, and form the Government. This coalition is also supported by UDMR (The Democratic Alliance of Hungarians in Romania).