The recent report drawn up by inspectors with the Upper Magistracy Council (CSM) on the performance of the National Anti-Corruption Department (DNA) is more than a judicial document aimed at monitoring an institution subordinated to the Prosecutor’s Office attached to the High Court.
The endeavour as such has had major political implications all along. Minister Chiuariu all of a sudden requested the removal of Prosecutor Ţuluş. But this had to be substantiated by an inspection (the only way to prove the magistrate’s inefficiency), which was eventually ordered by CSM.
Just days before the document was analysed by the Council, excerpts leaked to two dailies, each claiming exclusivity on the news story (which gave “exclusivity” a whole new meaning). Attention was deflected from the findings of CSM inspectors to the identity of the individual having disclosed the contents of the report before its analysis by CSM. The tactic has political implications, but it is obviously premature. Under the law, the report may be challenged by DNA (which is entitled to present its position to CSM), and after analysis the Council may or may not endorse the document. Otherwise, we can only speculate on uncertain data of no particular judicial relevance. Even as the debate shifted to the arguments put forth by inspectors, the key issue was not whether these arguments were grounded, but whether inspectors had the jurisdiction to make such an assessment in the first place.
The entire political dispute virtually focuses on two peripheral issues: who disclosed the contents of the report before its analysis, and whether CSM inspectors had the authority to set forth the respective conclusions. In judicial terms, this is yet another flaw of the Romanian institutional system. A confidential report is confidential for some reason, and jurisdiction is defined by the law (CSM may check whether jurisdiction was overstepped).
Leaving these aspects aside, a number of elements in the report are worth noting. One of the key issues was that of initial notifications and their registration. According to the report, notifications which “met all the conditions defined by the law for the initiation of judicial proceedings” were not registered immediately, whereas others were subject to checks, which (inspectors believe) comes against provisions in the Code of Criminal Procedure. Also, inspectors claim there are significant delays in the initiation of criminal proceedings, after notifications have been received.
On the one hand, we should keep in mind that Courts alone are in a position to decide whether prosecutors’ decisions are grounded. Which means that prosecutors are the only ones authorised to decide on the judicial status of the deeds presented to them and to order the prosecution of the case or not. The Code of Criminal Procedure explicitly states, in art. 224, that “in view of commencing prosecution, the prosecution body may conduct preliminary procedures.”
On the other hand, mention should be made that the registration of complaints or notifications is of utmost importance in criminal proceedings (numerous deadlines are tied to the registration date, which may either benefit or work against offenders). Keeping detailed records is the responsibility of prosecutors heading the various departments (and the serious aspect here is that problems did not begin when Doru Ţuluş took over the position, but only went on during his term in office).
A second important element in the report of CSM inspectors is the breaching of prosecutor continuity in the criminal prosecution stage. According to this principle, all measures taken under the law, from the decision to prosecute to drawing up the indictment, are to be taken by the same prosecutor. CSM inspectors found that this procedural “chain” was broken; arguments put forth by Doru Ţuluş (as mentioned in the report, and not in the DNA news release) included the pursuit of efficiency and effectiveness of the institution, as well as personnel turnover problems. It is not against the law for a department head to take over additional responsibilities. But there are quite legitimate doubts regarding the benefits of such an approach, the extent to which a department head may be involved in a particular case, the reason for breaching the continuity principle. In all these cases, an answer can only be given by CSM (these should be exceptional cases; department heads are to scrupulously explain their decisions; keeping information confidential benefits both the individuals being probed into, and the thoroughness of the investigation). But inspectors may find whether a managerial policy is in place in this respect or not. On the other hand, the personnel turnover mentioned by Ţuluş is only an excuse if he can be proved to have made all necessary efforts to implement an effective human resource policy (applications for further positions in the department, additional prosecutor assignments, employment of ancillary personnel, etc.).
The reference to particular cases is also questionable. We find it hard to understand why CSM inspectors chose to refer to particular prosecutors (as long as the responsibility in the respective cases rests with Doru Ţuluş). While generally CSM inspectors deplore the breaching of the continuity principle, in the respective cases the problem is precisely the compliance with this principle.
A third issue in the report is the prosecutors’ failure to notify preliminary investigations and the decision not to prosecute to the individuals in question. Inspectors found that the DNA policy is based on the misinterpretation of art. 228 in the Code of Criminal Procedure. Indeed, the article does not bind prosecutors to notify the decision. While it may not be an explicit legal obligation, its importance is nonetheless undeniable (save in exceptional circumstances). There is no doubt that notification of the respective proceedings (which at a certain point may have affected people’s rights and interests) benefits the individuals in question. Naturally, exceptions should be discussed on an individual basis, but the inspectors’ report (although accused of looking into errors of law) refers to the rule being broken, and not to exceptional cases.
Not least, mention should be made of inconsistencies in records on the number of cases. In its own Action Plan, DNA undertook to monitor cases older than one year since registration in the institution, whereas the reform strategy (on which CSM expected to see statistics drawn up) stipulates the monitoring of cases older than one year since registration in the system (DNA may also receive cases from other structures which decline jurisdiction). The absence of comprehensive records (and the registration flaws) is indeed a problem for an institution whose legal task is to prosecute corruption offences and (like any other prosecutor’s office) to “establish the truth.”
What is the overall image of the Corruption-related Offence Department, in light of the CSM inspectors’ report? While we have no data on the activity of DNA as a whole (information in the media specifically refers to this department), the image is rather disquieting. Leaving the particular aspects of the cases aside (such a discussion would be irrelevant, as these aspects may be analysed, on an individual basis, in a confidential CSM meeting as required by the law, and prosecutors, Doru Ţuluş included, may explain their decisions), what we see is that the institution is highly personalised. There may be various assessments of the data presented by inspectors. But it makes little difference if we talk about 20 instances of flawed decision-making or about 18 (and two in which CSM inspectors overstepped jurisdiction). What matters, in political and institutional terms, is the practice within this structure. And the small-scale image in the Corruption-related Offence Department may be extended (though not indiscriminately) to the Romanian judiciary as a whole.
This, just like the Department audited by CSM, is a system marked by individual personalities. Which is the case not only in the judiciary. We should not overlook that for the past eight years (during which, partly because of the problems in the EU accession negotiations, the judiciary came to the forefront of the political debate) each minister imposed their own “style,” criticised by Power, Opposition or the media. We had a Justice system that some regarded as obsolete and criticised as rigid and reluctant, whose name was Rodica Stănoiu; we had a more reliable one, with some European veneer, named Cristian Diaconescu, followed by a bright, resolute and well-meant period (albeit with few concrete outcomes) under Monica Macovei; the series of “regimes” concludes with Tudor Chiuariu’s hesitations and errors (particularly in terms of image). At no point did we have objective assessments, because in the judiciary, unlike in other fields, the bureaucratic component is missing. Each successive inauguration is a shock that gets the system (which should operate regardless of who manages it) highly personalized. In Romania, like in an enlightened absolutist regime, it is the “monarch’s” character and personality which shapes the performance of the system.
These features hold true in the department headed by Doru Ţuluş. He may be a very competent leader. I honestly believe that there are people who have unbelievable memory and can remember all deadlines set in each case assigned to their department. It is equally possible for a department head to take over many of his subordinates’ tasks. Doru Ţuluş may also be presumed innocent with regard to the breaching or compliance with the prosecutor continuity principle. But such a system is not desirable, because it cannot be efficient. No institution may operate properly when it relies on two-three individuals (regardless of their abilities), particularly when it comes to the fate of innocent people (until otherwise proven). No institution, be it a school, a hospital or DNA, can operate properly without detailed records kept in place. It may be difficult to put the finger on a problem in an often overcrowded institutional network, but someone must do the chores, too.
Basically, the question asked by CSM inspectors is whether the judicial reform and anti-corruption fight can be completed by resolute and publicised “heroes,” or by insignificant, yet reliable clerks whose work is truly secret until it is made public, whose achievements are hardly spectacular and who never make newspaper headlines. More often than not, bureaucracy is a system that hampers performance and reduces the efficiency of an institution. But, as Max Weber argues, the threats entailed by personalised institutions are a lot more serious. Empirical evidence tells us that, while too much bureaucracy does harm, too little of it does no good either.
