Anti-anti-corruption in Romania

A controversial decision by the constitutional court defangs an effective public watchdog.

What do you do if you are a judge on Romania’s constitutional court and, like six of your eight colleagues, discover that the National Integrity Agency (NIA) is checking your assets and interests? 

Well, in a move typical of Romania’s judiciary and its political class, you decide to dismantle the annoying agency, to the (silent) satisfaction of most members of the parliament. On 14 April, the court ruled, by a large majority, that some crucial provisions in the law governing the NIA were unconstitutional. This, after the agency has been functioning for three years and after it has garnered praise from the European Commission as one of the few effective instruments created to fight corruption in Romanian public life.

Set up in 2007, after fierce struggles in the parliament and some arm-twisting by EU officials, the NIA is a body charged with collecting declarations of assets and interests from politicians, top civil servants and magistrates, with ensuring that they are made public and with carrying out administrative checks whenever suspicions arise about discrepancies between income declared and wealth displayed. If evidence of wrongdoing is found, or if the official questioned cannot explain the inconsistencies, his file is sent to court and a judicial case is started.

In other words, the NIA’s added value consists of screening the thousands of allegations about illicit enrichment or conflicts of interests on the part of mayors, ministers, parliamentarians and judges. The task is vast and, in more than 90% of cases, the allegations are trivial or groundless – both of which are among the reasons why nobody had seriously taken on the task before the agency appeared.

By contrast, in the past two years, almost 1,000 top officials have been checked, with around 50 cases of wrongdoing proven in court. Around 100 members of parliament are currently under scrutiny – almost one-quarter of the legislature. It helped that the Commission included the NIA’s activity among the benchmarks of the EU’s ‘co-operation and verification mechanism’, whose basic purpose was to keep pressure on Romania to continue rule-of-law reforms after accession.

But because the EU’s leverage diminishes after a country accedes, there comes a point when the discomfort of having to show personal wealth prevails over grand national commitments and a critical mass emerges among the political elite in favor of ending such openness. This is how most domestic media and observers interpreted the constitutional court’s decision. And since members of the court are nominated by the parliament and by the president – which, in practice, means by the parties – and since they do not have to be judges (most are not), the views of the court reflect the mood of the broader political establishment.

The reasons for curtailing NIA powers were, according to the court, “the protection of private life” and “the threat of parallel justice” represented by the agency’s inspectors’ investigations. The implication is that declarations may still be collected, but no longer made public and that the NIA will no longer have the power to check suspicious discrepancies.

This may protect individuals, but it will not protect public life. Transparency of the kind provided by the NIA has proven the best form of control over the tens of thousands of officials in the country. Nor can one speak of a “parallel justice” when NIA decisions are subject to judicial review and only the courts can decide on confiscations, says Laura Stefan, an international legal expert who advises the Council of Europe, the European Commission and the Organisation for Economic Co-operation and Development.

The government is trying to find a way around the court’s ruling to save the agency as a functional body, while José Manuel Barroso, the Commission’s president, and the US ambassador in Bucharest have made unusually frank statements in its support.

However, the NIA’s travails illustrate how difficult anti-corruption efforts are when those under investigation have the legal right to pull the rug from under the feet of investigators.

Sorin Ioniţă is the director of research at the Romanian Academic Society.

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