ROMANIA: AMBASSADOR'S MEETING WITH PROSECUTOR

C O N F I D E N T I A L SECTION 01 OF 02 BUCHAREST 001267

SIPDIS

SIPDIS

STATE DEPT FOR EUR/NCE - AARON JENSEN

E.O. 12958: DECL: 11/07/2017
TAGS: PGOV KCOR KJUS PREL RO
SUBJECT: ROMANIA: AMBASSADOR'S MEETING WITH PROSECUTOR
GENERAL KOVESI

REF: BUCHAREST 1230 AND PREVIOUS

Classified By: Political Counselor Theodore Tanoue for Reasons 1.4 (b)
and (d).


1. (C) Summary. In a meeting with the Ambassador, Prosecutor
General Kovesi expressed concern that new amendments to the
Criminal Code and Criminal Procedure Code would affect all
court cases and turn Romania into a "paradise for crime."
Kovesi expected parliament to override the president's veto
and noted that this was just the latest in a series of moves
to erode prosecutorial independence. The Ambassador raised
concerns that Romania was becoming a haven for cyber crime;
Kovesi responded by welcoming enhanced cooperation from the
embassy on cyber crime and corruption in particular. End
Summary.


2. (C) The Ambassador met with Prosecutor General Laura
Kovesi on November 7 and discussed the effects of
parliament's recently passed amendments to the Criminal Code
and Criminal Procedure Code (reftel) as well the need to
enhance bilateral cooperation on cyber crime. Kovesi said
she feared that the sweeping changes (which the interpreter
labeled simply "criminal amendments") would affect all cases
before the courts and turn Romania into a "paradise" for
crime. She said that parliament was likely to override an
expected presidential veto.


3. (C) Kovesi observed that prosecutors' work on corruption
cases involving five current ministers, several past
ministers and many high-level public servants had "attracted
adversity." She claimed that Justice Minister Chiuariu only
feigned support and that his actions were aimed at
restricting prosecutors, as evidenced by his attempt to
dismiss a key anticorruption prosecutor at the National
Anticorruption Directorate (DNA). She added that the
Superior Council of Magistrates (CSM) was disappointingly
silent about recent legislative actions, and complained of
the lack of institutional outrage against dismantling the
independence of prosecutors.


4. (C) She said that the amendments followed three other
significant moves by the government and legislature to impede
prosecution of serious crime in Romania. These included
parliament's rejection of the law establishing the
Directorate for the Investigation of Organized Crime and
Terrorism (DIICOT) which would have empowered DIICOT to
prosecute organized crime in the same way that DNA had been
made responsible for prosecuting high-level corruption. The
President had sent the law back to parliament and the law was
now blocked in parliament, with opponents of prosecutorial
independence possibly aiming to reorganize DIICOT and DNA to
limit their independence.


5. (C) A second blow came in the changes enforced
retroactively to the law on ministerial responsibility, in
which the Constitutional Court decided (in response to an
appeal in the ongoing corruption case against former Prime
Minister Adrian Nastase) that former ministers should enjoy
the same immunity from prosecution as current ministers,
lifted only with presidential or parliamentary approval. The
DNA had appealed the High Court's application of this
constitutional finding to Nastase's case since such findings
usually were not applied retroactively. Kovesi said that the
government dismantled the president's "green light"
commission and had yet to reconstitute a replacement,
effectively blocking ten cases against past and current
ministers from being prosecuted.


6. (C) The third blow came in September when parliament
modified the Fiscal Code to prevent financial inspectors from
requesting investigations following routine controls. Kovsei
said that prosecutors no longer had the administrative
reports necessary to launch money laundering investigations.
She said the reality was that all files regarding
macroeconomic crimes were now blocked and that her office
could direct resources only toward a few cases.


7. (C) Kovesi complained that her office was not consulted
before major changes were made by parliament, and that
prosecutors were summoned by a parliamentary commission in an
attempt to force investigators to reveal details of ongoing
investigations. She noted bitterly that the underlying
philosophy behind these moves was the presumption that
"prosecutors are breaking the law and suspects are victimized
and need protection."


8. (C) In an exegesis of the worst aspects of the revised
Criminal Code and Criminal Procedure Code, Kovesi said that
prosecutors would now have to seek in writing a suspect's

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refusal to hand over evidence before being able to seek a
warrant from a judge. She described an absurd scene where
police would have to ask a suspect to hand over drugs, write
down the refusal, then hope that a search warrant might help
them find something when they returned. Similarly, an
apprehended homicide suspect would have to be released out of
police custody if the defense attorney asked for the
additional 24 hours guaranteed in the new amendment. She
added that nearly all criminal investigations would be
limited to six months, unless technical expertise was
required. She said this arbitrary time limit would nullify
several hundred pending cases. Kovesi said that the most
worrying provision was a new 10 million euro threshold for
"serious" crimes. She added that lesser crimes would have
narrower statutes of limitations that would likely draw only
suspended sentences.


9. (C) Kovesi was also critical of Romania's judicial system,
noting that she was recently reprimanded by the High Court
when she spoke out against recent judgments that referred
high-level cases back to prosecutors for procedural reasons.
She noted an 82-year-old woman was sentenced to prison during
the same time period and asked rhetorically "Why is it okay
to decide in this case, but avoid politicians' cases?"


10. (C) The Ambassador brought to Kovesi's attention the slow
progress in the investigation of a Romanian hacker who had
caused serious damage to eBay over several years, noting that
eBay might soon decide to block Romanian IP addresses from
its services, and that five other e-commerce companies were
considering following suit. Kovesi said she would speak with
the case prosecutor, figure out what needs to be done, and
meet with the visiting senior eBay executives next week.
Kovesi said she highly valued U.S. training provided in cyber
crime and welcomed greater cooperation. She said that the
fight against organized crime, corruption, cyber crime, and
credit card fraud were among her top priorities, and welcomed
further support from the Embassy in specifically addressing
cyber crime and corruption. Kovesi thanked the Ambassador
for taking the initiative to meet, and thanked the Embassy
for its intention to release a press statement that would
draw some attention to the problems of the new criminal code
amendments.


11. (C) Comment: Prosecutor General Kovesi's concerns
regarding the impact of the recent parliamentary changes to
the criminal statutes appear to be well-founded.
Institutionally, prosecutors appear isolated and under
increasing political pressure. While Democratic Party and
Liberal Democratic Party parliamentarians have assured us
that they will vote against these amendments when they are
vetoed by President Basescu, we have heard informally that
the old guard of the Social Democrats and the governing
Liberals have the votes to override. The Ambassador will
continue to speak out against these amendments, and plans to
give a speech next week reviewing both past accomplishments
and conveying challenges in the areas of civil society, press
freedom, and the fight against corruption. End Comment.
TAUBMAN