Background information: Romanian protests – post-truth politics
Romanian protests – post-truth politics
Tens of thousands of people have started to gather in public squares since 31st of January 2017 in Romania, mainly in the big cities. At the time of this article, we have the fifth day of protest, a political crisis that doesn’t have a foundation, excepting a power play between the two main political actors on the Romanian political stage: Klaus Iohannis, the 4th President of Romania since 2014, and Liviu Dragnea, leader of the majority coalition that formed the government following the general elections of 11th of December 2016.
The current public action aren’t about rule of law or anti-corruption and it is my burden of proof to explain below why. Those who study the politics of post-communist area know how fragile is the political system and that the civil society suffers a cyclical damage after being embedded in the state’s affairs, how was the case after Colectiv when many experts of the civil society left their neutral position to serve in different cabinet position or to support the new populist party Union Save Romania which entered in the previous electoral campaign with a political manifesto based on anti-corruption movement, having some former members of ex-Ciolos Cabinet as candidates, previously civil society members. Also, they know another flaw of Eastern European civil society, that it tends to portrait itself in opposition to the parties that continued the politics of former communist parties, no matter if these post-communist parties have been or haven’t been reformed. A dangerous dichotomy when democracy is at stake.
Situation before 31st of January
On 18th of January, President Iohannis made an unexpected visit to the official Government meeting and, according to the Romanian Constitution, he chaired the meeting. Article 87 of the Romanian Constitution states the the President can take part in the meetings of the Government when there are debates “upon matters of national interest with regard to foreign policy, the defence of the country, ensurance of public order, and, at the Prime Minister’s request, in other instances as well”. Romania is a semi-presidential republic that ofter provokes political conflicts between the President and the Government if the representatives of these institution have different political colours, even though the President should act as mediator between the powers in the State and between the State and society.
The pretext of the participation was, according to his declarations at the beginning of the meeting, the dangers posed by the projects of two executive ordinances: one on pardon and amnesty for some criminal acts, and one on the modification of some articles in the Criminal Code and the Criminal Procedure Code. However, those subject weren’t stated in the meeting agenda and there weren’t proofs that these ordinance would have been approved through secrecy.
After this event, a political crisis between the Government, supported by the majority, and the Presidency, supported by the minority had began, including some protests that had been organized before 31st of January. Sunday, 22nd of January, the President took part in 10.000 people unauthorized protest against the amnesty and pardon in the center of Bucharest, a protest formed mainly by sympathizers of the former cabinet and members and supporters of National Liberal Party, the party that supported the election of the President, and of the Union Save Romania. Later, the People’s Movement Party joined the protests.
After this moment, the Ministry of Justice announced that two executive ordinances were in public consultation and that had been informed all institution with duties in the area of justice for notices and observations. Observations could be sent to the Ministry of Justice until 24th of January by post, fax or email or by direct deposit at its office. Moreover, a public debate at the office of the Ministry of Justice on those ordinances was organized on 30th of January, with large participation from public institutions, non-governmental organizations and concerned citizens.
However, it was questionable at that moment if the presence of the President at the Government was a legitimate one considering the reasons. Firstly, the pretext was the fight against corruption and, secondly, the ordinances weren’t on the agenda. We can assume that the pretext was a justified one, considering the fact that the National Defense Strategy 2015-2019 contains the national security objectives of “ensuring a proper functioning of the justice and of the rule of law” and “removing the deficiencies affecting good governance, strengthening the administrative capacity, and protecting the decision-making process against illegitimate and non-transparent influences and/or actions”, but there may be also some points of concern taking into considerations some Constitutional Court decisions and some efforts made by different actors related to the interference of the Romanian Intelligence Service in the actions of the judiciary.
Extra-legal cooperation between intelligence and prosecutors
On 16th of January, the National Union of Judges published an answer from the National Defense Council on the cooperation between the intelligence community and the judiciary. The Union criticizes the fact that “the supplementing of the law through secret decision represents a dangerous precedence for rule of law, obstructing the citizens to know in a real manner how large are the competences of some State institutions”. Moreover, it highlights the act of the National Defense Council of giving to the Romanian Intelligence Service duties that are not found in the known legal framework, as they evidence “the prevention of the access of some <corrupt individuals> in leadership positions, even though those haven’t been convicted through a final court decision”.
The Centre for Legal Resources outlines the dangers of the “extra-legal cooperation between the intelligence services and the criminal investigation institutions”, as well as the fact that the “practice of the National Defense Council of completing the existing legal framewrok in the national security area through classified legislation, with judicial strength lower than the law, is unconstitutional and it puts in jeopardy the democratic character of the Romanian State”.
The two executive ordinances
On the 31st of January, in a late meeting of the Government focused on the budget, the two ordinances were brought to attention. The Minister of Justice announced afterwards that:
- the ordinance on pardon and amnesty has been transformed in a law project proposal, and therefore sent to the Parliament where it will follow the ordinary legislative circuit, including again the public debate. The Government has the constitutional capacity to initiative legislation, but the Parliament is the decision-maker. This was one of the requests of the previous protests, that the ordinances should follow the ordinary procedure. The Government initiated law proposal excludes the pardoning of punishments based on acts of corruption.
- the emergency ordinance on the modification of the Criminal Code (Law 286/2009) and the Criminal Procedure Code (Law 135/2010) was adopted. The main argument of the protesters is that it decriminalized the abuse of office and that the neglect of duty article is removed. However, it is not so true, as I will explain below. But yes, the amendments changed the definition of abuse of office and not only. On 1st of February, the Official Journal published the ordinance – Ordinance 13, entering into force, with some points (part I of the ordinance) entering into force 10 days after the ordinance it was published, including the changes to the definition of abuse of office. On 4th of February, the Prime-Minister Sorin Grindeanu announced that on 5th of February a Government meeting with be held to find a solution of possible abrogation or prorogation of the Ordinance 13.
Before and after. Two articles
- Abuse of office is defined in art. 297 (1) & (2). Criminal Code before Ordinance 13, art. 297 (1): The civil servant act that, by exercising its duties, does not perform and act or it performs it improperly and that causes a prejudice or a damage of the rights and legitimate interests of a natural or legal person shall be punished by imprisonment from 2 to 7 years and the prohibition of the right to hold a public office. Criminal Code after Ordinance 13, art. 297 (1): The civil servant act that, by exercising its duties, knowingly, performs an act by violating the express provisions of a law, an ordinance or an emergency ordinance of the Government or does not perform an act stipulated in express provisions of a law, an ordinance or an emergency ordinance of the Government and that causes a material prejudice higher than 200.000 RON or a certain, effective, serious damage of the rights or legitimate interests of a natural or legal person, otherwise how are stipulated and guaranteed by the current laws shall be punished with imprisonment from 6 months to 3 years and fine.
- Neglect of duty. Criminal Code before Ordinance 13, art. 298: The culpable violation by a civil servant of an office duty, by its non-fulfillment or by improper fulfillment, if it is caused a prejudice or a damage of the rights and legitimate interests of a natural or legal person shall be punished with imprisonment from 3 months to 3 years or a fine. Criminal Code after Ordinance 13: art. 298 is removed.
Why changes were necessary
There have been some arguments by the officials and others by other experts in the field of criminal justice and/or criminal policy. I am going to present them briefly here considering the fact that most of these arguments are real and necessary to be solved.
- The Constitutional Court, the single institution with duties in the interpretation of the Constitution, pronounced in 2016 some decisions with impact on the respect for human rights. It said that the dispositions of the article 246 of the Criminal Code from 1969 and the dispositions of the article 297 (1) of the latest Criminal Code are constitutional to the extent that through the words “fulfills improperly” is understood “fulfills by breaking the law”. The interpretation offered space for abusive interpretation and risks related to the trial safeguards, as is highlighted by some cases in an article published by the Guardian.
- Venice Commission is also brought into discussion by some advocates of the change, with a clarification related to the fact that the interpretation of issues as abuse of office, excess of authority and other terms should be interpreted in a narrow sens and with a high threshold due to its vulnerabilities to political maneuvers. According to the definitions that were used for abuse of office before the ordinance and for the neglect of duty, practically, any public official or civil servant could be convicted if one of their acts would have been canceled by a higher court in an extreme scenario.
- The emergency ordinance was used to make the compliance of the national Criminal Procedure Code with the Directive (EU) 2016/343 of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, including art. 8(4).However, the section that is used is not among the complaints of the protests.
Some legitimate discontents. Some not.
- Doubtful process of ordinance approval. “In the night as thieves” has become a slogan for the protest due to the hour of the change. However, all recent governments approved ordinance at an improper hour of working. 22 PM in this case is normal. The decree was in public debate, but the decision-maker decided to go forward with it as it was prior to the consultation. Second reason of discontent is that the the ordinances weren’t in a public agenda, being announced at the end of a Government meeting on budget. Thousand of people went to protest in front of Victoria Palace in that night hearing that the ordinances have been passed. The third issue, that it was published in a hurry in the Official Journal is not validated. Recent cabinets, including the current one, used ordinances passed in the evening/night and published next day at the first hour in the Official Journal. The electronic version of the Official Journal is updated and published early. For example, the ordinance on free train tickets for students has been published in the same conditions, at the same hours.
- Is there decriminalization? Some people are saying that acts under 200.000 RON are decriminalized. However, the information is not true. The second part of art. 297 of the Criminal Code offers the basis for the criminal investigation. Moreover, the discussion is not about 200.000 RON decriminalized, because either it is a high prejudice as this, either it is a certain, effective, serious damage of the rights or legitimate interests of a natural or legal person (no matter of the threshold) it continues to be investigated under Criminal Code. Now, what happens to some cases that do not meet these three situations (1. over 200.000 RON, 2. certain, effective, serious damage of the rights or legitimate interests of a natural or legal person, 3. acts that restrict the exercising of a right of a person or creates a situation of inferiority based on few criteria1 are criminalized and remain punishable by imprisonment. Other situations will be investigated under civil law also with the recovery of the damages.
- The existence of the neglect of duty is quite questionable in its essence due to other acts and situations highlighted in the Criminal Code. One of them is the abuse of office. I have to mention that in the Criminal Code remains the following office-related crimes: embezzlement, abuse of office, abusive behavior, usurpation of function, conflict of interest, information-related crimes, illegal financing crimes.
- The situation of the legal notice from the Higher Council of Magistrates. In a meeting, the Superior Council of Magistracy offered a negative legal notice related to the ordinance. There are some issues here. Firstly, as a guarantee of the independence of justice, it has a very large and inclusive composition, from judges and prosecutors to civil society representatives and other members. Secondly, its notice is consultative. Thirdly, according to the Constitutional Court, the legal notice of the Superior Council of Magistracy should be required by the initiator of the normative act exclusively on matters that concern the direct organization and functioning of the authorities of the judiciary, which is not the case. Moreover, in other cases, it would provoke a constitutional conflict with the activity of the Legislative Council.
- On 4th of February, the Romanian Ombudsman noticed the Constitutional Court with an exception of unconstitutionality, after the decision made by the General Prosecutors and the visit of the President of Romania based on some arguments: some questions on the arguments that motivates the emergency, and the fact that the Government does not define the meaning of “serious damage”, the necessity of use of the violation of the law in a lato sensu meaning, including decision by sub-national entities, and a problem with the exception from abuse of office of the adoption of legislative and normative acts based on a discriminated created between individual administrative acts and normative acts.
- The General Prosecutor/Public Ministry attacked through the administrative contentious the ordinance asking for its withdrawal, most probably an ineligible request. The executive ordinance is not an administrative act according to the Romanian law, therefore it cannot be suspended through this procedure, and, secondly, not only that it hasn’t produced any damage, but it hasn’t entered into force.
- The subject of possible corrupt politician to be helped by the changes is minimum as I have highlighted previously based on different arguments. There are other crimes, there are other arguments. Now, there is another issue, a socio-political one, because recently there have been politicians that have been accused by different prosecuting institutions, forced to withdraw from the electoral competitions, and afterwards winning the case in front of the judges. Others have been in preventive arrest for days or months before coming the time to go in front of judge for the risks they presumably had. And there is another issue, that in a democracy, the burden of proof belongs to the prosecutors, not to the person labeled as guilty.
At the time of publishing this summary, the Prime-Minister announced that will organize a Government meeting tomorrow, 5th of February, to find a method of abrogation or prorogation of the articles entering into force after 10 days. However, it will be a very difficult job, because an ordinance that will do that has a risk of being declared unconstitutional, the process of its adoption is questionable at least related to the necessity taking into consideration that those parts haven’t entered into force and you cannot justify the criminal policy according to the will of the masses as in a “robespierrean” justice, terror justice. And lastly, the opposition is asking for the resignation of the Government, a movement that betray the reason of the protests. Lastly, there is a wider framework of recent events, after the elections, especially scandals before these events.2
Update, 5th of February 2017:
The Government announced that an emergency executive ordinance has been passed. It was published in middle of the day immediately after the announce of the Prim-Minister in the Official Journal, meaning that Ordinance 13 was abrogated. However, the abrogation ordinance seems to be unconstitutional.
A new project will be developed to solve the issues that the ordinance tried to addressed through a project that will follow the ordinary parliamentarian adoption procedure. Secondly, the abrogation ordinance need to be passed in the future by the Parliament.
Lastly, even if we are talking about the process of the approval by the Parliament of today’s ordinance, even if we are talking about a new project through ordinary parliamentarian procedure, the risk of a worse project is high. The recent memory remembers the democratic backsliding of July 2012 or the one of the “Black Tuesday” (“Martea neagra”) one year later, two real assaults on justice made by the Parliament.
- race, nationality, ethnicity, language, religion, sex, sexual orientation, political affiliation, wealth, age, disability, disease [↩]
- As an example removed from the public agenda, there is a scandal in which a former deputy and businessman, known as being closer to the Romanian Intelligence Service, disappeared; it is under investigation and in the Europol’s Most Wanted List of Fugitives for corruption and laundering of the proceeds of crime. Through his television, he has made serious allegations related to the ties between intelligence community and prosecutors’ offices, including the Anti-Corruption Directorate (DNA), and other possible undemocractic actions. However, the special investigation committee created inside the Romanian Intelligence Service to answer to some of these allegations concluded that the general who was subject of the mass-media debate hadn’t violated the law or the internal norms. In the same meeting, he requested his removal from office, ending a 12-year activity as deputy director. [↩]