Identifier
Created
Classification
Origin
08BUCHAREST117
2008-02-13 13:03:00
CONFIDENTIAL
Embassy Bucharest
Cable title:  

BLAND JUSTICE: JUDICIAL INSIDERS DECRY WEAK EC

Tags:  EUN KCOR KJUS PGOV PREL RO 
pdf how-to read a cable
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ZNY CCCCC ZZH
R 131303Z FEB 08
FM AMEMBASSY BUCHAREST
TO RUEHC/SECSTATE WASHDC 7889
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RHMCSUU/FBI WASHINGTON DC
RUEATRS/DEPT OF TREASURY WASHINGTON DC
RHMFISS/HOMELAND SECURITY CENTER WASHINGTON DC
C O N F I D E N T I A L SECTION 01 OF 04 BUCHAREST 000117 

SIPDIS

SIPDIS

DEPT FOR EUR/NCE - AARON JENSEN
EUR/ERA - ALESSANDRO NARDI

E.O. 12958: DECL: 02/12/2018
TAGS: EUN KCOR KJUS PGOV PREL RO
SUBJECT: BLAND JUSTICE: JUDICIAL INSIDERS DECRY WEAK EC
INTERIM REPORT ON ROMANIAN JUSTICE REFORM

REF: BUCHAREST 01298

Classified By: DCM Mark Taplin for Reasons 1.4 (b) and (d).

C O N F I D E N T I A L SECTION 01 OF 04 BUCHAREST 000117

SIPDIS

SIPDIS

DEPT FOR EUR/NCE - AARON JENSEN
EUR/ERA - ALESSANDRO NARDI

E.O. 12958: DECL: 02/12/2018
TAGS: EUN KCOR KJUS PGOV PREL RO
SUBJECT: BLAND JUSTICE: JUDICIAL INSIDERS DECRY WEAK EC
INTERIM REPORT ON ROMANIAN JUSTICE REFORM

REF: BUCHAREST 01298

Classified By: DCM Mark Taplin for Reasons 1.4 (b) and (d).


1. (C) Summary: A recent European Commission interim report
on judicial reform in Romania provoked disappointment in many
judicial circles, with pro-reform activists hoping for a
sharper rebuke of recent backsliding. Based on comments from
many local contacts, we have prepared a "parallel report" on
the state of judicial reform in Romania, keyed to the four
European Commission Benchmarks of 1) judicial reform and
proposed amendments to the Civil and Criminal Procedure
Codes; 2) creation of a National Integrity Agency; 3) ongoing
high-level corruption investigations; and 4) measures to
prevent corruption at local government levels. Our
interlocutors note regress in a number of areas, including
hiring practices for judges that one interlocutor
characterized as "ripe for nepotism"; attempts to hobble--and
perhaps declare unconstitutional--the National Integrity
Agency (ANI); and continued attempts to weaken the National
Anticorruption Directorate (DNA). While pressure from the
U.S. and U.K. Embassies (and a Presidential veto) resulted in
withdrawal of controversial amendments of the criminal code
and criminal procedure code, there remains concern that
Parliament may soon pass a new version of these laws which
retain many dodgy elements that could seriously hamper
prosecutors' ability to investigate corruption and other
serious crimes. End Summary.


2. (C) The European Commission February 4 released its
interim report on Romania's progress in the fight against
corruption. The report was required under the terms of
Romania's EU accession and stemmed from EU concerns that
Romania (and Bulgaria) had made insufficient progress against
corruption pre-accession and required special monitoring in
this regard. A full report is due mid-year. While many
expected the report to issue a sharper rebuke of recent
backsliding in the areas of judicial reform and the fight

against corruption, the EC drafters prefaced the report with
a disclaimer that their aim was to provide a "factual" update
of progress without providing an assessment of results
achieved by Romanian authorities in the four overall
benchmarks including, inter alia: 1) judicial transparency,
efficiency, and accountability for the Superior Council of
Magistrates, and impact of newly-adopted amendments to the
Civil and Criminal Procedure Codes; 2) establishment of a
National Integrity Agency to verify the assets and conflicts
of interests of key political figures; 3) investigations of
allegations of high-level corruption; and 4) measures to
prevent corruption within local government levels.

Commission in Bucharest Takes Harder Line
--------------


3. (C) Interestingly, our local Commission contacts were
somewhat abashed at the cautious language of the official EC
report, and referred emboffs to the Commission's public
talking points on the report as the more hard-hitting and
critical commentary on the current state of Romanian judicial
reform. Dr. Dorina Nastase, head of the Political Section of
the Bucharest EC office told Polcouns that one reason why the
Commission Report did not invoke the "stick" of the safeguard
clause was because of reluctance of individual EU countries
that argued that this might impact ongoing cooperation on
other areas, including Romanian willingness to accept arrest
warrants from fellow EU members. More importantly, there was
concern that invoking the safeguard clause might impact
Romanian willingness to accept repatriated Romanian nationals
expelled from other EU states.


4. (C) Nastase stressed that in its talking points for the
Romanian media, the Commission office had explicitly defended
the National Anti-Corruption Directorate (DNA). She also
noted that the EC press points referred to a lack of
"convincing progress" in fighting corruption, as well as
procedural delays in bringing to court 10 important
high-level corruption cases. Similarly, the Commission
Office had explicitly referred to recent attempts to amend
the Criminal Code and Criminal Procedure Code, noting their
"serious negative consequences" for the prosecution of
criminal cases. Nastase said that another area for criticism
was the lack of a coherent recruitment and training strategy
for the judiciary and delays in establishing the National
Integrity Agency. Finally, the Commission's talking points
evinced concern about the overall pace of judicial reform and

BUCHAREST 00000117 002 OF 004


the need to defend the legal and institutional tools needed
to ensure continuation of the fight against corruption.
Nastase also expressed gratitude for the U.S. Embassy's
active involvement (along with the U.K. Embassy) in calling
public attention to the potential negative impact of the
recent Criminal Code amendment, and welcomed future
coordination on judicial reform issues.

Judicial Hiring: System Ripe for Nepotism
--------------


5. (C) The recent election of the leadership of the Superior
Council of Magistrates (CSM) underscored that the CSM still
has far to go in cleaning its own house. The controversial
election of Lidia Barbulescu as CSM President was greeted
with protest from NGOs--and some snickers from the Public
Ministry--that the old guard is still in charge. The CSM
initially reported that Barbulescu, the sole candidate for
the position, was elected unanimously. When General
Prosecutor Laura Kovesi protested that she had voted against
Barbulescu, the CSM leadership held a recount and sheepishly
acknowledged that there had been a miscount. (Note:
Barbulescu was investigated by former Justice Minister and
anti-corruption advocate Monica Macovei for abuse of power
when she tried to amend Romania's bar exam requirements to
ensure her daughter passed. She also opposed the annulment
of a provision allowing magistrates to purchase certain
properties at discount prices.) The Bucharest EC office
described Barbulescu as "anti-EU, anti-NGO, anti-any outside
interference. She believes judges make their decisions
before God and no one has the right to question them."


6. (C) The CSM has also been under fire for its strategy to
hire more judges and prosecutors in the face of a major
staffing crisis. Traditionally, judges and prosecutors must
graduate from the highly competitive National Institute for
Magistrates (NIM) with a curriculum including a series of
exams and years of training. The CSM initiated a new policy
in which applicants with five to ten years of judicial
experience could become judges or prosecutors via an
expedited interview with CSM and one exam. Critics,
including the Bucharest EC office, have charged that the CSM
system is "ripe for nepotism." Similarly, NIM director Mihai
Selegean noted that the CSM's definition of "judicial
experience" is a loose one that could include both clerks and
attorneys. He described the CSM's interviews as a sham,
lasting between two to three minutes per applicant, adding
that the exams have never been administered. His comments
were echoed by General Prosecutor Kovesi, who remarked in a
January 30 meeting that of the 240 new hires from this
process "maybe 10 per cent might be good." When emboff
queried Barbulescu on the interview process, she snapped:
"Time does not matter. We focus on substance!" In her first
act as President of the CSM, Barbulescu lifted the June 2008
expiration date for this interim recruitment policy.

ANI: A Watch Dog With Three Legs and No Teeth
--------------


7. (C) The creation of a National Integrity Agency (ANI),an
administrative body charged with the verification of public
figures' assets and potential conflicts of interest, was one
of the requirements for Romania's entry into the European
Union. However, 6 months past its scheduled launch date, the
ANI remains non-operational and faces significant political
battles. At a recent meeting with NGOs and the diplomatic
community, the ANI Vice President Catalin Macovei, the
agency's sole employee, noted that during several rounds of
interviews, Parliament rejected all applicants for the
position of the agency's President. Macovei said he had to
"beg" for the keys to the ANI's office and Parliament has
continually blocked efforts to hire investigators.
Parliament's budgetary allocations for the ANI also reflects
its attitude towards the agency; investigators would only be
paid 4,800 to 16,800 USD per year, and only 2,200 USD has
been allocated for training all investigators for the entire
year. Macovei was unsure whether government and private
institutions were legally obliged to cooperate with
investigations.


8. (C) The CSM appears to have joined Parliament in its
efforts to crush the fledgling agency, when CSM President
Barbulescu declared that a Constitutional Court's decision
last week (e.g., that the law establishing the National
Council for the Study of Securitate Archives (CNSAS) is

BUCHAREST 00000117 003 OF 004


unconstitutional) should be extended to cover other
"unconstitutional institutions". Many read her comments as
being a veiled threat against the ANI. One European diplomat
summed up the situation: "The Commission decided that Romania
must have a watch dog, so Parliament created one with three
legs and no teeth."

DNA: Prosecutors under Fire
--------------


9. (C) Also under fire is the National Anticorruption
Directorate (DNA),which has become a prime target of the
politicians and magistrates it investigates. Both Parliament
and the CSM have tried to remove the DNA chief prosecutors
and limit the DNA's power through restructuring. At the core
of President Basescu's reasons
for vetoing the appointment of Norica Nicolai as Justice
Minister is the control that the Justice Minister has over
appointing the new head of the DNA when incumbent head Dan
Morar's term expires this August. Bucharest EC
representatives confided concerns that Parliament would try
to change the law regarding this process to remove
presidential approval authority over the appointment,
increasing the Justice Minister's influence. Our Commission
contacts said that they have explicitly warned the GOR, "Do
not touch Morar."


10. (C) Similarly, General Prosecutor Kovesi told emboffs
that restructuring the DNA is high on the CSM's agenda, and
said that this was because of the agency's recent
investigations targeting magistrates. Kovesi predicted that
Barbulescu wants to further weaken DNA's semi-independent
status within the Public Ministry, diluting its investigative
powers and limiting its financial freedom. Kovesi pledged
that she would make every effort to prevent this, including
requesting postponements to any proposals to restructure the
DNA and continuing to use the media as her mouthpiece. Anca
Jurma, one of DNA's Chief Prosecutors, admitted that she
fears a restructuring proposal from Parliament or the CSM in
the near future. She noted that the Justice Ministry has
made its own efforts to sideline DNA by refusing to include
the DNA in the EC-mandated Action Plan for judicial reforms.
Visibly frustrated, Jurma noted that in the midst of
Parliament's efforts to derail ten high-level corruption
cases of former and current ministers, the DNA continues to
proceed with investigations and that one case would be going
to court very shortly.

Criminal Procedure Code Amendments
--------------


11. (C) Pressure from U.S. and U.K. embassies (reftel)
appears to have temporarily shamed Parliament into backing
off a highly controversial amendment package to the criminal
procedural code that caused significant political fallout
last October. President Basescu returned the package to
Parliament for revisions and on February 7, the Senate's
legal committee eliminated several controversial amendments.
The Senate removed both the ban on wiretapping before the
initiation of criminal prosecution and the sanctioning of
journalists who broadcast audio/visual investigative
evidence. The Senate approved a more moderate threshold for
the charge of "abuse in office with serious consequences" of
around 270,000 euro, instead of the 9 million euro threshold
proposed by the Chamber of Deputies. Unfortunately, the
amendment package will proceed to the Chamber of Deputies
next week, opening a dangerous window for MPs, such as
parliamentary Speaker Bogdan Olteanu, to reverse the Senate's
positive modifications. Meanwhile, the Justice Ministry has
assembled a working group, including judges, prosecutors, and
Romanian and European legal experts, to draft new criminal
and criminal procedural codes, which Ministry contacts
predict will also be on the table this year. These codes
would take precedence over the amendments currently in front
of the Parliament.


12. (C) Comment. The EC's lukewarm characterization of
Romania's shortcomings on judicial reform obscures the
disappointment felt by our European counterparts. Advances
since 2004 in judicial reform have regressed in the past six
months, with the controversial tenure of former Justice
Minister Chiuariu, Parliament's criminal code antics, and the
election of a questionable CSM president. Parliament had to
be publicly embarrassed before retracting amendments that
would have seriously impeded criminal investigations and

BUCHAREST 00000117 004 OF 004


which would have left many of their most corrupt members to
walk free. Even after last fall's public rebuke, it is
likely that the Chamber of Deputies will again try to erode
the criminal code in coming weeks. Our British colleagues,
for instance, in recent days have lobbied PSD President
Mircea Geoana, whom they characterized as "wobbly." We
intend to work with British counterparts to convince MPs that
this would be an ill-advised move. Some contacts have
evinced the hope that the onset of both local and general
elections later this year may have a salutary effect, as MPs
may try to avoid bad corruption-related publicity before
voters head to the polls; the criminal code's progress later
this month will test this theory. However, non-elected
officials, such as CSM members and the Constitutional Court,
will be able to act with relative impunity in trying to
weaken the most promising--and most vulnerable--forces in
judicial reform, the ANI and DNA. End Comment.
TAUBMAN