Following an Illiberal Path: Dragnea and Romania’s Judiciary Reforms

The latest demonstrations that took place in Romania this last summer have showed that the figure of Liviu Dragnea is polarising Romanian society. As in other cases of power accumulation in political figures, a detriment to institutional politics, Dragnea is building a personal cult around his figure.

This process of personalisation of politics in Romania resembles cases of other political figures which have made use of different political tools such as victim-hood political narrative, political and legal manipulation, to make less effective existing mechanisms of checks and balances.

Dragnea appears to be following political steps of other leaders like Recep Tayyip Erdoğan, Viktor Orbán, Aleksandar Vučić or Jarosław Kaczyński, among others. All these figures have a common trait, their considerable influence over the judiciary system. Through law and constitutional reforms as well as through informal mechanisms such as the appointment of proven loyal judges or intimidation of critical voices, these leaders have been able to limit the effects of judiciary investigations and/or sentences that could have threatened their political careers.[1]

Dragnea appears to be following the steps of other illiberal leaders, and is placing himself as the victim of a large network of plotters (including international actors) who are also conspiring against Romania’s national interests. This discourse, among other elements, is legitimising a controversial judiciary reform in Romania.

Led by the government, these reforms are likely to undermine the separation of powers in Romania, increasing legal protection of alleged corrupted government figures, and ultimately reducing transparency levels of governance in Romania.

Two Core Questions

In 2015 and under the influence of the Partidul Social Democrat (PSD – Social Democrat Party), the Romanian government started preparing a series of law amendments that would affect the entire judiciary power. Although these reforms were first presented for leveling Romania’s judiciary system up to EU standards, the announcement of the Romanian Ministry of Justice in August 2017 raised the alarms in Brussels and triggered massive social contestation in Romania.

These reforms focused on three laws, Law no. 303/2004 on the status of judges and prosecutors, Law no. 304/2004 on judicial organisation and Law no. 317/2004 on the Superior Council of Magistracy. The proposed reforms in August 2017 have been afterwards partially approved by the two Romanian legislative chambers. Law no. 304/2004, was officially changed on July 20^th 2018, renamed as Law no. 207[2]. The other two law reforms have to still be approved by the Constitutional Court[3].

These amendments have focused on key elements that grant the independence of the judiciary power in Romania.

As detailed by a report developed by the Group of States Against Corruption (GRECO) issued in April 2018,[4] one of the main consequences of these reforms is the diminishment of Romania’s judiciary system independence from the executive power. With these reforms the government is willing to create a new special prosecutor figure to investigate alleged offences from the judiciary power against politicians or businessmen.

This figure could be informally manipulated by the Romanian ruling elite and hinder judiciary investigations against sensitive figures. Moreover, this “political judge” could also clash with the PSD’s bête noire, the National Anti-Corruption Directorate (DNA – Direcţia Naţională Anticorupţie) jurisdiction, ultimately limiting the effects of the DNA’s investigations.

According to Valentina Dimulescu, from the think tank Romanian Academic Society, there have been no reports on the operationalization of this figure and it suffers from administrative difficulties.

Another reform considered by the government is changing the legal provision that rules prosecutors’ actions. The government is willing to impose a new provision stating that “the prosecutors shall carry out their activity according to the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice”, instead of the current one “the prosecutors appointed by the President of Romania enjoy stability and are independent, according to the law”.[5]

This new provision would reduce the influence of the figure of the President of Romania in the appointment of senior prosecutors, while reducing the guarantees of independence of prosecutors.

A further judiciary reform is the anticipation of retirement age of magistrates and judges, after only 20 years of service, while increasing up to six years of training for new employees. This would hinder current cases that are being investigated by Romanian courts, while creating huge gaps between retired and young magistrates.

GRECO’s report also highlights how the Romanian government announced these reforms in the middle of the summer, avoiding higher public scrutiny and reducing public participation on these reforms.[6]

Interestingly and alongside these reforms, Romania has witnessed a fierce battle between who is believed to be the most powerful political figure in the country, Dragnea, and Romania’s anti-corruption forces.

Dragnea, originally from the Teleorman County, one of the poorest regions of Romania, is “only” the president of the PSD and does not hold any position in the Romanian executive cabinet. Despite being outside the executive cabinet, Dragnea is believed to be behind the reforms proposed by Toader, a loyal friend of his.

Since Dragnea has attempted to lead the executive government in Romania, several obstacles have appeared on his way. First, in April 2016, the High Court of Cassation and Justice ruled against Dragnea, and sentenced him to two years in prison and a four-year suspension banning him from holding public office.

This sentence, which followed a previous one done in 2015, confirmed that Dragnea had illegally manipulated the 2012 impeachment referendum against the then president Traian Băsescu.[7] The 2016 sentence has since then prevented him from holding any position in government.

Following this sentence, in November 2017, Dragnea received another accusation against him. After an investigation of the European Anti-Fraud Office (OLAF), the DNA announced the indictment for fraud against Dragnea, as he was accused of leading a corruption organisation that had allegedly drained public and EU funds from rigged public tenders to a company called Tel Drum, based in Teleorman. This company was allegedly managed by figures linked to Dragnea, including his son. The total amount of public money drained to Tel Drum would have had amounted to €20 million.[8]

Among other accusations,[9] the Tel Drum case has represented a fragile point in Dragnea’s political career, as he could have had faced a larger prison sentence, while losing political legitimacy vis-à-vis the DNA and other Romanian anti-corruption forces.

More recently, in June of this year, Dragnea received a prison sentence of 3 years and six months. This sentence was made after it was demonstrated that he had abused of office when hiring two PSD members to officially work for a charity while indirectly working for him and his wife. Dragnea still has time to appeal this sentence before going to jail.[10]

Reaction and Illiberal Tics: Copying Populist Political Narratives

The increasing authoritarian stance of Dragnea is not only reflected by the above-mentioned judiciary reforms, but also by the political narrative this politician has attempted to introduce in Romania’s society. Being the judiciary reform the most effective action of the PSD leadership to avoid further negative sentences against them, Dragnea has also used other political mechanisms to block judiciary investigation’s against him. Dragnea’s modus operandi recall informal mechanisms used by other illiberal political leaders.

In this sense, Dragnea has tried to establish a political narrative where a “parallel” state, led by anti-corruption forces (mainly by the DNA) and foreign secret services ¡, are plotting to topple him and, consequently, attack Romania’s national interests.

As the Turkish President, Erdoğan, did when fighting the Gülen Movement, Dragnea through the “parallel” state discourse has been able to partially delegitimise the work done by Romanian agencies in the fight against corruption and crime.[11] This discourse is especially effective in Romania, where the legacy of the Securitate is still present, and Dragnea has been able to draw parallels between Ceaușescu’s regime modus operandi and the current anti-corruption bloc. This discourse has also legitimised aggressive discourses against the EU, the political targeting of George Soros and institutions linked to this figure (as Orbán has done in Hungary).[12]

Moreover, Dragnea has also appealed to religious and traditional family values. For example, this last September, the Romanian Senate adopted a law draft for changing the constitutional definition of family, making same-sex marriage illegal. This draft law is the previous step before organising a popular referendum on this constitutional change. As expected, Dragnea has been the main voice supporting the celebration of a popular referendum to carry out this constitutional modification.[13]

Finally, in his anti-EU stance, Dragnea gave support to the polemic decision of Donald Trump’s administration when in May of this year the U.S. moved its embassy in Israel from Tel Aviv to Jerusalem. This decision triggered harsh critiques from the international community and especially from Brussels, which saw it as a destabilizing factor in the already fragile political context of the Israel-Palestine conflict. Romania, alongside other Eastern European countries, blocked an EU statement against Trump’s move on Israel, although none of these countries has moved its embassy to Jerusalem.[14]

Political Outcomes

One of the main outcomes of the current polarised political context in Romania has been the firing, this last summer, of the head of the DNA, Laura Kövesi. Kövesi’s dismissal came after a campaign led by Dragnea, which finally forced President Klaus Iohannis to accept a decision of the Constitutional Court to sack Kövesi for “excess of authority”.[15] After this decision, Justice Minister Toader is pushing for the appointment of Adina Florea, believed to be close and loyal to the PSD, as the head of the DNA.[16]

Having “beheaded” the DNA, and reducing the judiciary system’s autonomy, Dragnea appears to be winning the political fight against the anti-corruption bloc in Romania. If the leader of the PSD is able to survive this legal and political battle, Romania would rapidly follow the illiberal path set by neighboring countries, such as Hungary, Poland or Turkey.

Furthermore, the personalisation of power in Romania would grant carte blanche to Dragnea to officially become the most powerful political figure, establishing a political system that would grant him immunity vis-à-vis the judiciary power ultimately creating an opaque crony capitalism market.

In the end, Dragnea is filling a long list of new autocratic and illiberal regimes that have little respect for transparency and human rights.

[1] https://www.nytimes.com/2018/05/01/world/europe/hungary-viktor-orban-judges.html

https://foreignpolicy.com/2018/03/09/how-aleksandar-vucic-became-europes-favorite-autocrat/

https://www.reuters.com/article/us-eu-poland-chronology/chronology-poland-clashes-with-eu-over-judicial-reforms-rule-of-law-idUSKBN1JU25U

[2] http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=16610

[3] http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=16611 & http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=16612

[4] http://www.just.ro/wp-content/uploads/2015/09/Greco-AdHocRep20182-Final-eng-Romania.pdf

[5] Ibid. p. 13

[6] Ibid. p.8

[7] https://anticoruptie.hotnews.ro/stiri-anticoruptie-20951412-liviu-dragnea-afla-vineri-sentinta-dosarul-referendumului.htm

[8] http://www.euronews.com/2018/02/02/insight-into-romanian-corruption-networks

[9] In September 2017, Dragnea was accused, alongside his ex-wife Bombonica, of using public funds for hiring PSD members to indirectly work for them https://medium.com/romania-corruption-watch/liviu-dragnea-daddys-long-awaited-reprieve-fb73f8530a19 and in November 2017, Dragnea was again accused of using public funds through the PSD and paying $100,000 to a U.S. lobby firm to get high-level meetings with President Donald Trump and Vice President Mike Pence, among others https://medium.com/romania-corruption-watch/liviu-dragnea-the-beginning-of-the-end-6d94c5a257b8 , among other corruption accusations: http://www.balkaninsight.com/en/article/romania-ruling-party-chief-probed-in-brazil-03-09-2018