LÄNDERBERICHT Konrad-Adenauer-Stiftung e.V. RULE OF LAW PROGRAM SOUTH EAST EUROPE DR. STEFANIE RICARDA ROOS Prosecution of political corruption – green- 29th of January 2008 lighted in Romania? www.kas.de/rspsoe www.kas.de Debate has re-ignited in new EU member state Romania about the prosecution of former and current ministers under suspicion of political corruption. The waters had barely calmed down start of these investigations. According to a around the attempted appointment of DNA spokesperson, the prosecutors PNL Senator Norica Nicolai to the enclosed legalized photocopies of position as Minister of Justice when, investigation documents in support of their shortly before the publication of the request. The original papers are with DNA. long awaited European Commission President Basescu granted the requests and interim report on progress in the area forwarded the paperwork in his possession of Justice in Romania, local politics (the prosecutor’s request in writing and were divided again over an older excerpts from the investigation files) to dispute: whether eight former and interim Justice Minister Teodor Viorel current ministers should be Melescanu (PNL). Initially, the Minister investigated on suspicion of political refused to send the files along with the corruption. President’s written opinion through to the prosecutor’s office, claiming that he should Last year, these same issues were a matter have been given the full content of the files of debate for virtually all Romanian and not just excerpts of those. With this constitutional bodies (including the position, Melescanu added fuel to the Parliament, Government, President and smoldering fire in the President – Constitutional Court), the mass-media, civil Government relationship, creating new and society organizations, researchers and fierce differences dividing the Presidency observers. Since they are bound to remain and the Government: Băsescu publicly a subject of debate, it is, therefore, worth accused Melescanu of abuse of office and examining the situation and its current even threatened to have him suspended developments. It is meaningful especially in over his disobedience. Among those who light of the next progress report on Justice supported Băsescu was the President of the which, as noted by an EU official for NewsIn Democratic-Liberal Party (PD-L), Emil Boc. Service, will likely find that one of Mr. Boc stated in a press conference that Romania’s „biggest problem[s]” is the the interim Justice Minister had no right ‘to gridlock of high-level corruption case-flow. act as a gatekeeper and censor’ and agreed with President Basescu in that Melescanu Dispute unfolding in 2008 was in fact seeking to delay the unavoidable – the beginning of criminal proceedings. Debates on putting eight former and current ministers under investigation for suspicion Melescanu’s conduct was not only criticized of political corruption again became topical in the country, but internationally, too. The in January this year: the prosecutors with most important piece of criticism came from the National Anti-Corruption Directorate the European Commission (EC). According (DNA) associated with the General to HotNews Agency, the EC reportedly Prosecutor’s Office asked the President of warned the Romanian Government, urging the state, Traian Basescu, to sanction the it not to block criminal investigations and to forward the President’s approval to the anti- 2 Konrad-Adenauer-Stiftung e.V. corruption authority. This was not a Miron Mitrea; former Minister of the negligible warning, especially given that it Economy, Codrut Seres, who is currently PC RULE OF LAW PROGRAM was made on the heels of the publication of Vice-President; and the Labor Minister in the Commission progress report and the office, Paul Pacuraru (PNL). Ex-PM Nastase SOUTH EAST EUROPE possibility that the safeguard clause might is a suspect in a case of bribery and forgery DR. STEFANIE RICARDA ROOS be activated in the area of Justice in the of official documents in the process of summer of 2008 was never ruled out. awarding public road work contracts. PC 29th of January 2008 Vice-President Codrut Seres is accused of The Commission’s caution was effective. treason and supporting trans-national Tuesday, January 22, interim Justice criminal organizations in connection with www.kas.de/rspsoe Minister Melescanu sent the President’s the privatization of Romania’s largest oil opinions on the investigation cases to the company Petrom. National Anti-Corruption Directorate (DNA) and to the Organized Crime and Terrorism PNL Vice President and the PNL-supported Investigatory Directorate (DIICOT), candidate for the office of Minister of respectively. Melescanu very diplomatically Justice, Norica Nicolai, together with PNL MP stated during a press conference held at the Dan RADU Rusanu are demanding that the Ministry of Justice that he never had the Government ask the Constitutional Court, intention of censoring or encroaching on before starting criminal proceedings, if it is investigations. He claimed to have acted in necessary to obtain the consent of the observance of the law during the entire Parliament. Both of them say that both the procedure and that it was never his intent Constitution and the Ministerial Liability Act to postpone investigations. At the same (No. 115/1999) foresee the obligation to time, the interim Minister of Justice obtain such an approval. dismissed all responsibility for the outcome of criminal investigations. Those opposed to asking for the Parliament’s approval Current dispute: need for Parliament approval. Yes or no? Last week, however, Romanian Prosecutor General Laura Codruta Kovesi opposed the Is this the green-light for the prosecution of theory that the Parliament’s approval needs the eight (ex-) ministers? Apparently, not to be sought. She also stated that the yet. Melescanu had barely sent through the Parliament’s opinion is not even necessary papers he had received from the President in cases where MPs in office at present are and the photocopies of the files when a new put under investigation for the commission dispute had begun. A question now being of criminal offenses. She argues the General posed in the political circles is: does the Prosecutor’s Office is a subject of law that Parliament need to give an opinion on the may fulfill its duties without the intervention beginning of criminal investigations of those of other public institutions. Kovesi’s view former or current ministers who are also was supported by the Chief-Prosecutor of members of Parliament? the National Directorate against Corruption (DNA), Daniel Morar, who refers to a Those in favor of asking for the November 2007 verdict of the Constitutional Parliament’s approval Court. The Court ruled that the provisions of the Ministerial Liability Act which allowed for The Speakers of the two chambers of the the intervention of state authorities in this Parliament – Bogdan Olteanu (PNL) and matter, was unconstitutional. Nicolae Vacaroiu (PSD) – last week said the Parliament’s approval would be necessary. What does the Constitution say about Their opinion is endorsed by the Social that? Democratic Party (PSD), by the National Liberal Party (PNL) and by the Conservative The legally decisive Constitutional provision Party (PC). This is no surprise since four of is Article 109 of the 2003 Romanian the people on the list of ‘the eight’ are Constitution. It regulates the competence of members of those parties and MPs: former the members of the Government. Under art. PSD President, Adrian Nastase, who was 109, paragraph 2 ‘Only the Chamber of Prime-Minister from 2000 to 2004; former Deputies, Senate and President of Romania Transport Minister and PSD Vice-President, may ask that members of the Government 3 Konrad-Adenauer-Stiftung e.V. should be put under investigation for competent Prosecutor’s Office without offenses committed in the exercise of their having the right to refuse doing so. For that RULE OF LAW PROGRAM office’. According to art. 3, both liabilities reason, the refusal of the interim Minister of and penalties that may be considered in the Justice Melescanu is interpreted by experts SOUTH EAST EUROPE case of members of the Government may as being against the law. DR. STEFANIE RICARDA ROOS be regulated by an act dealing with ministerial liability. The new version of the Ministerial Liability 29th of January 2008 Act of 2007 (post Emergency Ordinance No. This is all the Constitution provides 3/2005 and Act no. 90/2005 approving the regarding the criminal investigation of said Emergency Ordinance) should bring in www.kas.de/rspsoe former and current ministers. It contains no major novelties. It foresees that, in the case dedicated provision on what the preliminary of criminal investigations against former procedure should look like or on how the ministers the ‘regular’ steps of criminal President and the two Chambers of the proceedings are to be followed, according to Parliament, respectively, must exercise their the Code of Criminal Procedure. Act no. competence and duties regarding the 115/1999 would not apply in a case like beginning of criminal proceedings. The this. The amendments were required by the Constitution does not address the right of European Commission as part of the the Parliament to vote against the request accession negotiations to lift the immunity of the President thereby allowing them to from prosecution former ministers used to block the beginning of criminal enjoy. investigations. The Romanian Constitution nonetheless What do the Act on Ministerial Liability does not indicate if ministers in office alone and the Constitutional Court say about or together with former ministers benefit ministerial liability? from immunity from prosecution. It is the majority opinion that art. 109 grants Ever since it was adopted in June 1999, the immunity only to ministers in office. The Act on Ministerial Liability has been Constitutional Court found the same in its amended in its most relevant points for the Decision on July 5, 2007 (no.