European Commission Must Face Reality Following Romanian Court Ruling on Protocols

Romania’s Constitutional Court has ruled, in a 6-3 vote, that secret protocols between prosecutors and the country’s intelligence service, the SRI, were unconstitutional.  The secret protocols between the General Prosecutor’s office and the intelligence service were signed between 2009 and 2016 and some have been declassified.

The ruling in the Romanian court comes just months after the European Commission finally acknowledged the secret protocol issue in its regular CVM report on the country’s progress, a measure that both Romania and Bulgaria are subjected to by the European Union due to concerns that their justice systems are far behind EU standards.  Yet the Commission was far from being robust enough in its handling of the protocol issue.  They essentially tried to dodge the issue by claiming that the EU has no jurisdiction over intelligence matters. This response was at best disingenuous.  Yes, the protocol question involves the intelligence services but there is no question that it is also intrinsically linked to human rights and judicial independence in Romania. The democratic obligations for EU membership were very clearly set out in the Copenhagen criteria of 1993. The rule of law and human rights are central to those criteria

Much has been said about whether or not Romania is fit to hold the current Presidency of the European Union, but there appears to be a reluctance in Brussels to tackle the issue of the protocols. Their very existence undermines judicial independence and the separation of powers. The web of protocols includes secret and illegal agreements between the SRI and other agencies, including the Superior Council of Magistracy, the Judicial Inspection and the High Court of Cassation and Justice. The practical implications of these protocols are clear to see. Almost two-thirds of Romanian judges have been investigated by the Anti-Corruption Directorate (DNA) over the last four years. These cases against judges remain open and ongoing, meaning that the DNA and their partners in the intelligence services, have an unconstitutional sway over the Romanian courts, something that the European Commission felt unable to face up to in the CVM report.  No other European country permits such a role to be played by their intelligence services and there can be no question that Romania is failing to meet European standards in this area. But it seems that the European Commission did not even want to listen to the Romanian judiciary when they raised the alarm by saying “the rule of law is incompatible with the administration of justice based on secret acts”.

There is good reason for the level of concern that the existence of such protocols provokes in Romania.  The country still has vivid memories of the repression of the Ceausescu era and the terrifying power held by the Securitate, the intelligence services of that time.  It was with this in mind that the country chose to forbid the intelligence services from having a role in the criminal justice system and this was enshrined in a law in 1992 that stated “the SRI cannot carry out criminal investigation actions” apart from issues of national security, when they are permitted to play a supporting role.

There is a huge practical consideration facing Romania:  What are the implications of the Constitutional Court ruling for the thousands of cases that took place during the time period that these secret protocols have been in place? Brussels too must face up to the fact that the country currently holding the EU Presidency currently has potentially thousands of victims who are imprisoned as a result of being targeted under these protocols.  There was already alarm in Romania when the parliamentary committee confirmed the existence of these protocols.  Now the Constitutional Court ruling confirms that alarm as being justified and neither Bucharest nor Brussels can ignore that fact that the protocols exist and that they undermine rights and the rule of law in Romania.