15 Years of Anti-Corruption in Romania: Augmentation, Aberration and Acceleration

Romania’s criminal prosecution of corruption is a controversial topic. While advocates praise the National Anticorruption Directorate (DNA) for its increasing results, critics voice concerns over the abusive and excessive manner how the fight against corruption is conducted. Is Romania’s anti-corruption battle an impressive success or rather a worrisome excess? The article aims to resolve this controversy by assessing anti-corruption activity conceptually and empirically. Firstly, an evaluation scheme of anti-corruption activity -- the anti-corruption evaluation chain -- is developed, which distinguishes between three stages: 1. Input (Capacity), 2. Process (Fairness, Reasonableness) and 3. Output (Results). Secondly, each dimension is measured empirically by relying on a new set of quantitative indicators and qualitative empirical evidence (e.g. analysis of judicial verdicts by the European Court of Human Rights, interviews with magistrates). The findings indicate that Romania’s fight against corruption has resulted in the augmentation of capacity (e.g. number of human and financial resources), the acceleration of results (e.g. increasing number of indicted, prosecuted and convicted persons) and aberration from the fair trial (e.g. deficient evidence gathering, violations of fundamental rights) and from the principle of reasonableness (e.g. excessive reliance on interceptions in penal cases, excessive use of pre-trial detention etc.). Overall, Romania’s criminal prosecution of corruption has derailed into an over-zealous struggle for a “noble cause” which itself has violated individual rights, the principles of fair trial and reasonableness, procedural integrity and the rule of law

De-Politicization by Europeanization: The Emergence of the Fragmented State in South Eastern Europe

This chapter analyzes the EU-driven process of de-politicization (good governance reforms) which has accompanied the Europeanization of South Eastern Europe. It is argued that rather than to improve governance and the functionality of the state, good governance reforms have resulted in the fragmentation of the classical constitutional state (and governance). The Europeanized and fragmented state did not have the strength to rebuild coherence through a national counter-process of unity formation (as in Poland or Hungary). Instead, countries from SEE have tried to overcome fragmentation through a revival of informality (i.e. informal hidden structures based on clientelistic, secret service, organized crime and veteran/military networks). Overall, the imposed good governance agenda of neutralization, depoliticization and liberalization has fragmented and weakened the nation state and reinforced informal governance and the deep state

Europeanization and the Rule of Law: Towards a Pathological Turn

Recent scholarship has exposed the “EU’s pathological power”, which has undermined the creation of the rule of law in South Eastern Europe (SEE) and beyond. This paper discusses the “pathological turn” in Europeanization studies by identifying and providing evidence for several “pathologies of Europeanization”, i.e. legal and political deficiencies related to rule of law reform, such as legal instability, lack of generality and enforcement, and increased politicization. These pathologies result, among others, from a deficient approach of the EU to rule of law promotion and assessment. In particular, the author highlights three main fundamental problems of Europeanization in the area of the rule of law: 1) valuing quantity over quality; 2) partisan empowerment of domestic change agents; and 3) biased assessment of the rule of law. These problematic issues are further clarified on selected country examples of reform failure from SEE and the 2012 “rule of law crisis” in Romania. It is argued that given the EU’s inability to objectively assess and effectively promote the rule of law, the EU should either abstain from evaluating rule of law or radically revise its approach and methodology, for instance by following the policy advice provided in this paper

The Rule of Law

Establishing the rule of law has been one of the key challenges (next to building capitalism and democracy) for post-communist countries. 1 However, not all post-communist countries have overcome this challenge and transitioned to the rule of law. How can the rule of law be established? Practitioners have responded to this question by stressing different means (laws, judiciaries and enforcement bodies) and objectives (legality, equality before the law, law and order, predictability) of rule of law reform. Judges have argued that the rule of law requires above all judicial independence and the institutional and material safeguards to maintain it. Businessmen and economists have emphasised the importance of judicial efficiency to reduce the length of proceedings, the respect of property rights, and the enforcement of contracts. Politicians have used the rule of law as a buzzword with changing meanings, calling for judicial accountability, judicial independence, or the fight against corruption. Legal experts have advised building judicial capacity and adopting best practices (including “best” legal frameworks, international standards, anti-corruption agencies, judicial academies, etc.) to improve the rule of law. International donors, with their different priorities and agendas, have emphasised a plethora of issues to establish the rule of law, such as judicial capacity building (EU, USAID, and World Bank), respect for human rights and a fair trial (ECtHR), fight of corruption, improved judicial review, judicial independence, impartiality and training (Council of Europe and EU), law and order and minority rights (OSCE), and in general the adaptation to European and international legal standards through processes of institutional transplantation and approximation. What becomes obvious is the heterogeneity of means, goals, opinions, agendas, and priorities of diverse stakeholders, which makes rule of law reform a complex, expensive, and challenging issue

Romania: Europeanisation of Good Governance: Where and Why Does It Fail, and What Can Be Done About It?

What impact does the European Union (EU) have on the development of good governance in Romania? Does EU conditionality facilitate or hinder the transition towards good governance? This brief policy-oriented chapter argues that the EU’s promotion of good governance in Romania leads to some selective progress but, overall, to the persistence of bad governance. In particular, the paper shows that Romania’s process of Europeanisation has resulted in 1. some progress across three dimensions of governance (substantive legality, capacity and efficiency/effectiveness) but 2. regress in three others (formal legality, impartiality and coherence). In other words, reforms generate more substantive laws that are adapted to international/European standards (best practices), but at the same time the new laws become instable, incoherent (contradictory), hardly enforced and less general. In addition, reforms improve capacity (inputs) and partly efficiency (outputs) or effectiveness (outcomes) but undermine the procedural and structural aspects of government quality (impartiality, coherence), for instance through increased politicisation and fragmentation of the state structures. Overall, the analysis suggests that there is no transition towards good governance in Romania, despite selective progress

Das europäische Evaluierungsdefizit der Rechtsstaatlichkeit

Liberale Repräsentanten der Europäischen Union (EU) sowie Anhänger eines liberalen Konstitutionalismus beurteilen die jüngsten „Verfassungskrisen“ in Zentral- und Osteuropa als einen Angriff auf Demokratie und Rechtsstaatlichkeit. Diese einseitige Bewertung resultiert unter anderem aus einer inadäquaten Methodologie zur Evaluierung der Rechtsstaatlichkeit. Der Autor dieses Beitrags identifiziert ein Defizit der EU bei der Evaluierung der Rechtsstaatlichkeit, welches sich in drei Kernproblematiken wiederspiegelt: (1) quantitativer „Je mehr desto besser“-Ansatz, (2) parteiische Evaluierung der Rechtsstaatlichkeit, (3) parteiliches „rhetorisches Handeln“ im Namen der Rechtsstaatlichkeit. Das Evaluierungsdefizit der EU wird anhand ausgewählter Beispiele zu Justizreformen und „Verfassungskrisen“ in Zentral- und Osteuropa (beispielsweise Rumänien, Polen, Ungarn) dargestellt. Es wird argumentiert, dass die EU aufgrund ihres Evaluierungsdefizits nicht imstande ist, die Rechtsstaatlichkeit objektiv und systematisch zu beurteilen. Die EU sollte deshalb die Rechtsstaatlichkeit in ihren Mitglieds- und Beitrittsländern nicht mehr evaluieren, es sei denn, sie ändert ihre defizitäre Evaluationsmethodik, indem sie zum Beispiel den Politikempfehlungen dieses Beitrags folgt.Liberal representatives of the European Union (EU) and adherents of liberal constitutionalism assess the recent „constitutional crises“ in Central and Eastern Europe as an attack on democracy and the rule of law. This one-sided assessment results, among others, from an inadequate rule of law evaluation methodology. The author of this paper identifies the EU’s rule of law evaluation deficit, which is reflected in three fundamental problems: (1) A quantitative “more is better” mindset, (2) A biased assessment of the rule of law, (3) Partisan “rhetoric action” in the name of the rule of law. The EU’s evaluation deficit is illustrated with selected examples of judicial reform and constitutional crises in CEE (e.g. Romania, Poland, Hungary). It is argued that given the EU’s inability to objectively and systematically assess the rule of law, the EU should either abstain from evaluating rule of law in member states and candidate countries or change its deficient evaluation approach, for instance by following the policy advice provided in this paper