A EU report concludes that Romania is regressing in the rule of law

Romania might be about to take over the European Union presidency, but the country was in the headlines for a different reason this week.  The European Commission released their Cooperation and Verification Mechanism (CVM) reports on Romania and Bulgaria this week and in Romania’s case the report did not make cheerful reading, with the European Commission concluding that that the country is regressing in respect of the rule of law and its justice system.

What is most striking is the sensitive area that the CVM report seemed to dance around.  This year has seen a Romanian parliamentary inquiry unearth 65 protocols between the Romanian Intelligence Service (SRI) and the Anti-Corruption Directorate (DNA) and a wide range of other law enforcement, judicial and administrative agencies.  One of these protocols is with the Superior Council of Magistracy (CSM), which is responsible for regulating the activities of judges and prosecutors. This protocol is especially alarming as it points to intelligence services pressure and control over the judicial system.

Another element of concern is that the protocols are used to circumvent constitutional safeguards in the gathering of evidence. A particularly shocking revelation was that the DNA has a confidential agreement with the ANCPI, the public land registry and real estate agency, giving prosecutors direct access to its database. This allows the DNA to obtain personal data without the need for a warrant or any proof of wrongdoing. It is widely accepted that this contravenes Romania’s constitution as well as the European Union’s Charter of Fundamental Rights.

The European Commission could not help but be aware of these serious infringements.  Indeed Frans Timmermans, the first Vice-President of the European Commission, told the European Parliament plenary sitting when he addressed the situation in Romania that an investigation of the protocols is needed.

Yet the CVM report was issued this week and offered a very weak response to the protocol scandal.  It tried to emphasise that the protocols were with prosecutors and shied away from the fact that the court institutions too (including the Superior Council of Magistracy), had such arrangements with the intelligence services.  This fact makes the CVM’s assessment wholly inadequate when it says: “It is the role of the courts to establish whether or not specific allegations of abuses are substantiated and an open and impartial investigation would be needed to establish whether there were systemic failures such as illegal gathering of evidence or illegal influence on magistrates, and whether the existing legal safeguards need to be strengthened.”

How can we expect courts to tackle such allegations when they themselves have protocols with the intelligence services?  It would be laughable if the consequences were not so grave for Romania and for European standards.

One European parliamentarian summed it up perfectly by privately saying: “This section of the report is simply not credible.  The European Commission is treading on thin ice.  They do not deny the existence of the protocols.  The very existence of these protocols is an affront to European principles on the rule of law and justice. To casually suggest that the Romanian courts should check if there are any outcomes from these protocols is a disgrace.  Such arrangements do not belong in a European member state and the Commission should be brave enough to say so.”