Romania Shows that Judicial Reform Is No Quick Fix

By Vincent W.J. van Gerven Oei,
Romania Shows that Judicial Reform Is No Quick Fix
Protests in Romania against the anticorruption law.

The recent protests against the Romanian government and the “anti-corruption law” that it first passed and then withdrew show that EU membership, anti-corruption institutions, or thorough judicial reform are not a guarantee for the eradication of corruption or the adherence of politicians to the rule of law.

In 2011, the Romanian Center for European Policies published a report “EU Approach to Justice Reform in Southeastern and Eastern Europe,” evaluating the anti-corruption measures and judicial reforms supported by the EU in Croatia, Serbia, Macedonia, Romania, Bulgaria, Moldova, and the Ukraine. This report gives a sobering insight into the policy background of the judicial reform that is currently being implemented in Albania at the instigation of the EU, and offers us some idea of what to expect in the future.

Anti-corruption

After the EU accession of eight eastern European countries in 2004, the EU realized it didn’t have an overarching anti-corruption policy in place, which was only formalized in 2005 for candidate countries. So before their accession in 2007, Bulgaria and Romania were subjected to the so-called Cooperation and Verification Mechanism (CVM), which, for example, included the establishment of agency that control public officials’ assets. In Albania such an agency had been established under the name of High Inspectorate of the Declaration and Control of Wealth and Conflict of Interest (ILDKPKI).

The lesson learned from Romania and Bulgaria was that these types of anti-corruption institutions are better implemented before EU accession, because EU accession creates political leverage for their implementation.

Rather than relying solely on the goodwill of politicians (specifically reform-minded politicians interested in anticorruption and judicial reform) future CVM-like mechanisms should be formally linked to Schengen accession or the allocation of EU funds. This arrangement will compensate for the political commitment deficit of the post-accession period vis-à-vis society-changing reforms that were mainly driven by exterior forces. Solid change of societal values takes far more than a few years (and countries rarely dedicate more than this to necessary reforms after EU-accession). Therefore instruments to sustain such profound transitions must be well thought about.

The EU is currently actively using the carrot of opening accession negotiations to force the implementation of judicial reform in Albania. But this carrot is only appealing as long as it’s not rotten; as long as Albanian politician believe that negotiations will be opened in the future.

But once a state is in the EU, the EU has little tools to enforce anti-corruption policies that were implemented before accession. The current government initiative in Romania is a good example, but also the rise of authoritarian regimes in Hungary and Poland show that the EU is relatively powerless when the government of an EU member is intent on destroying the rule of law.

Even though the report praises the Romanian Anticorruption Directorate as one of the most “impressive” of the anti-corruption institutions founded in the region, a simple amendment to the law that legalizes corruption can in one vote destroy the effort of years.

In the beginning politicians tended to agree to adopt anticorruption legislation in a window-dressing effort to convince the European Commission that they meant to fight corruption. However, when the institutions they set up turned against them, they were not shy about using the legislative loopholes (created by themselves) to try to undermine anticorruption efforts.

What is happening currently in Romania is precisely the attempt to open such a loophole.

Judicial reform

The report further discusses the different judicial reforms implemented after the fall of communism in the different countries. The core of all these reforms was the disentanglement of the judiciary from politics, and to establish an independent judicial branch. As the report points out, in almost all cases the judicial reform failed to a smaller or larger extent, in spite of intricate and indirect election strategies implemented for new judicial governing bodies.

We see a reflection of the same EU strategy in the Albanian judicial reform, in which a large number of ad-hoc and permanent commissions choose by vote or by lot a series of new judicial institutions, all members of which are subjected to a vetting procedure that is, eventually, in the hands of the judiciary branch itself. Just like in the other south-eastern European countries surveyed in the report, this is precisely the weak spot, which is systemic in nature:

The explanation [for the systemic nature of this weak spot] seems to be connected to the complex history of the region. Under communism, politicians controlled the judiciary, and this practice continued for some time after fragile democracies were installed. Thus, for decades, the system was staffed with obedient, career-obsessed persons, while the independent, open-minded ones were marginalized. […]

To conclude, the [High Judicial] Councils disappointed. Do we have an alternative solution? Unfortunately, the alternatives are worse, as the Serbian (reappointment of judges) and Ukrainian (not establishing an independent body from the very beginning) experiences prove. […]  Unfortunately, their independence does not trigger accountability and effectiveness. We do not reject independency; we just warn that this is not the miraculous solution that we all once believed it was.

Europeanization deficit

Finally, the report addresses the “Europeanization deficit” of the political class in south-eastern European countries. As an example it takes the trend to nominate prosecutors through the Parliament, as is the case in Albania. This turns out to have been, in general, the wrong decision:

Instead of improving the situation, subordination to the parliaments is increasing the political control over the magistrates. Different political orientations must be accommodated, and even minority groups of MPs are able to block the appointment of courageous prosecutors. And by courageous we mean persons that are really willing through their actions to challenge the status quo by starting high-level investigations. We have to acknowledge that fighting corruption in highly corrupt countries is not a consensual enterprise. On the contrary, it is a highly disruptive endeavor. The responsibility of the Parliament to oversee some institutions may work when they have to fulfill consensual tasks. Anticorruption works in the opposite way.

The fact that members of parliament in candidate countries do not mingle with their peers in EU countries and develop a better understanding of the role of parliaments in EU countries. This lack of “Europeanization” or “socialization” between local political elites and the EU is a direct result of the way in which EU accession is structured. The candidate country has direct contact with the European Commission through its Delegation, but is otherwise exposed very little to other European institutions such as the European Parliament or national parliaments.

Again, this can be easily seen in Albania, where EU Ambassador Vlahutin is openly taking the side of the Albanian government, and members of European parliament are ridiculed as irrelevant.

The structural problem

The report points to “structural problem,” underlying all these different problems:

The judicial and anticorruption reforms promoted at high cost by the EU are often undermined by the Parliaments. We have to face the reality that these countries face a structural problem: the weak internal demand for anticorruption at the societal level. Unfortunately, the political parties are truly representatives of their people.

This “weak internal demand” means that there is no tradition of holding politicians accountable. Even though there have been incidental uprisings against corrupt officials, such as the January 21, 2011 in response to a corruption affair of current Speaker of Parliament Ilir Meta, or the current protests in Romania, which, interestingly, have not been covered by any of the Albanian mainstream media.

In Albania in particular, voting for a certain party almost certainly has nothing to with either the party’s policy or the accountability of its candidates. A vote is still considered more of commercial transaction on the marketplace rather than a commitment to a certain set of ideas about how society ought to be organized.

This structural problem will not be taken away by the judicial reform, no matter how successful or unsuccessful the vetting of the entire judicial branch will be. Laws can be changed, or simply be ignored. And even if the rule of law is implemented relatively fairly, this in no way implies that social behavior will be structured around it. Implementing the law is not the same as living by it – and this holds for both Albanian and EU officials.

A recent incident that bears this out quite clearly. This weekend, Minister of Finance Arben Ahmetaj appeared together with former Mayor of Kavaja Elvis Rroshi. Although Rroshi’s mandate as mayor was withdrawn by the Central Election Committee as a result of the decriminalization law, he still appears to be in power. By showing himself alongside Rroshi, Minister Ahmataj does nothing illegal, even though his action expresses his contempt for the decriminalization process and therefore delegitimates it.

The EU as a bad substitute

Finally, then, the report offers a valuable insight in the precise role of the EU in countries where there is a “weak internal demand for anticorruption.” It suggests that “by the nature of the accession process, EU is substituting this structural deficiency.” In other words, it is the EU rather than the Albanian people that is thrust into the role of holding Albanian officials accountable.

The US Ambassador can denounce corruption as much as he wants, but it is the EU Delegation that has the tools to truly enforce the new legislative framework, and, more importantly, can play an important role in the “Europeanization” of the Albanian political elite. Unfortunately it refuses to do so. Not only has EU Ambassador Vlahutin remained completely silent on the importance of anticorruption and decriminalization – she has only emphasized the vetting law – she has done damage to the image of the EU in Albania, by allowing or facilitating the acquisition of real estate in an area where regular Albanians have all reasons to believe that the most corrupt and criminal of our society live.

There are many lessons to be learned from the experience of EU-initiated judicial reform and anticorruption legislation in the countries around us, and it may be not too late to start to do so.

 



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Adelina
4 months 16 days ago

Since you’ve dragged Romania into this articles, here’s a Romanian perspective:

I understand that the author has read the report in depth, but the remarks about Romania show a superficial understanding of the anti-corruption developments in the country. Reading a few articles and some reports is not enough to have such confidence in making some of these statements. Romania joined the EU just over 10 years ago, and it has changed beyong belief in many aspects. Yes, corruption is still present, but the amount of prosecutions has been unbelievable.

The country established the DNA as an independent body which has… Read more »